Care Bill [Lords]

Public Bill Committee, 14 January 2014.

Clause 5 - Promoting diversity and quality in provision of services

Liz Kendall (Labour, Leicester West)

I beg to move amendment 80, in clause 5, page 5, line 40, at end insert—

‘(g) the importance of ensuring independent and effective advocacy services from those with the relevant skills.’.

I am sure that we are all delighted to be back here today, Mr Rosindell. We hope to make swift progress this morning so that we can get to the heart of the Bill, which is eligibility criteria and the longer-term reforms to social care funding. The amendment aims to ensure that when councils look to provide high quality, diverse services, they also bear in mind the importance of high quality independent advocacy and support. In the other place, the Government recognised the need for advocacy support and put it in the Bill. That is really welcome. As the Minister will know, the care system is incredibly complicated and having a good, independent advocate helps people make sense of it.

One of the issues raised with us by organisations that work with older and disabled people is that, although the requirement for that independent advocacy and support is now in the Bill, they are concerned about how it will be available on the ground. Will care organisations get the support and, dare I say it, funding from local councils to make sure that those advisers are available? At the moment, the clause talks about the framework for good quality services and support but it does not include independent advocates. The amendment would make it clear that good quality service cannot be delivered without that independent advocacy.

Norman Lamb (Liberal Democrat, North Norfolk)

I join the shadow Minister, Mr Rosindell, in saying how thrilled I am to be back here with this group of friends, if I can put it that way, for another delightful session. The shadow Minister should not look so mean spirited.

I should like to digress briefly to say something more broadly about advocacy, which is strictly related to the amendment, I hasten to add. We will discuss the issue in more detail later but I wanted to mention the point that the hon. Lady made about the Government amendment in the Lords. Clause 68 places a duty on local authorities in certain specified circumstances to arrange an independent advocate to be available during processes such as assessments to facilitate the involvement of an adult or carer. This represents a significant step forward in supporting people who have particular difficulties in being fully involved in the process of meeting their care and support needs. It has been particularly well received both in discussion in the House of Lords but also more widely in the voluntary sector. I am grateful to the shadow Minister for acknowledging that in a very generous way this morning.

When the case was made, I took the view that it was overwhelming and that we should be willing to amend the Bill accordingly. In tabling the amendment, the shadow Ministers reflect the importance of ensuring that people have access to effective and independent advocacy services when considering how their care needs can best be met. The amendment would mean that local authorities should consider advocacy services when fulfilling their duty to shape local care markets. It is important that local authorities shape a market in which a wide range of services can come together to provide a truly holistic approach to health care and support needs that puts people’s needs and experience at the centre of how services are organised and delivered. I strongly believe that access to effective advocacy services is critical for many people as they consider how their care needs can best be met.

Clause 8 already explicitly includes information, advice and advocacy services as examples of types of service that may be provided to meet people’s needs. It is therefore clear that, when providing a duty to shape local care markets of services to meet care and support needs under clause 5, local authorities will have to consider advocacy services alongside all other types of service.

Liz Kendall (Labour, Leicester West)

I understand the case that the Minister makes. If a council wants to shape an effective and diverse market, it would want to ask users and families what they think about existing services. However an independent advocate might have a very good idea of whether the right kind of market in services is out there. That is partly why we tabled an amendment to this clause: not just so that councils should have advocates to help users and families, but to make sure that they are involved and give their views about whether the market is delivering for the people to whom they are providing advocacy. That is my key point.

Norman Lamb (Liberal Democrat, North Norfolk)

I absolutely agree. Councils should ask advocates and others for their opinions as they seek to shape their view of the local market and produce their statement of the market and so forth. That is not actually what the amendment seeks to do. I make that point gently to the shadow Minister, but I absolutely agree that it makes sense that their views should be taken on board and they should be properly consulted.

I can assure the Committee that we will make clear in guidance the importance of making sure that people can access effective advocacy services to ensure their continuing well-being, and that advocacy services form part of the wider set of services that local authorities should consider when shaping local markets. I think that the guidance will reinforce the point that the shadow Minister seeks to make in the amendment. I therefore reassure shadow Ministers that the Government understand the purpose of the amendment, but I hope that I have demonstrated that the Bill already achieves those intentions. I hope that they will agree to withdraw the amendment.

Liz Kendall (Labour, Leicester West)

I am grateful for that response. If the Minister can make sure that the guidance to authorities on shaping the market includes asking independent advocates, as well as users and families, what they think about it and involve them in shaping those services, I would be happy to withdraw the amendment.

Norman Lamb (Liberal Democrat, North Norfolk)

I will seek to ensure that the guidance achieves exactly that.

Liz Kendall (Labour, Leicester West)

I beg to ask leave to withdraw the amendment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 34, in clause 5, page 5, line 48, at end insert—

‘(4A) Regulations may make provision for arrangements for the independent arbitration of disputes between local authorities and providers concerning the fees paid by local authorities, the regulations shall prescribe the matters that are material to making a determination and the circumstances in which the arbitrator’s determination is binding on relevant parties.’

The amendment intends to address another aspect of the market-shaping duty, which is what clause 5 is all about. It recognises that local authorities have a role and responsibility not just for those they pay for, but for everyone with care needs. When the Joint Committee took evidence on this clause on market shaping, we were struck by the trenchant way in which witnesses gave evidence on issues around the market-shaping duty, particularly its interaction with the commissioning responsibilities of local authorities. There were a particularly striking couple of evidence sessions where we had witnesses from the care sector provider organisations.

There was a real sense of alienation and anger about what many in the room on that occasion saw as long-standing problems and a long-standing dysfunction in the commissioning relationship. This was not just a concern of private providers; it was echoed by the charitable sector. Strong representations came from the UK Home Care Association, the Voluntary Organisations Disability Group, the National Care Forum and the new body, Care England.

The concern is long standing. Commissioning has in practice turned out to be crude procurement. It is not a genuine process of determining the level of need and the range of options to meet that need, and having proper conversations in advance of procurement with potential providers.

Anne Marie Morris (Conservative, Newton Abbot)

Does my right hon. Friend agree that there was also concern that this was very much a decision made on financial lines? Therefore, for many of the organisations selected to undertake the provision, it was a question of the biggest and the cheapest rather than the services that individuals needed.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

My hon. Friend anticipates the point that I was about to make. It was also made in the Joint Committee consideration. It is about price driven below cost. During our second sitting last Thursday, we discussed in this Committee one of the consequences of that. It is about contracting by the minute: time and task-oriented commissioning, which results in the 10-minute or 15-minute chunking of contracts, so that there is barely any time for interaction beyond performing the basic tasks before getting the documents signed and rushing off to the next job.

My hon. Friend just made the point that, all too often, the conversation is about price. That is a real source of tension. The National Audit Office study, “Oversight of user choice and provider competition in care markets”, refers to a report by the Office of Fair Trading that found

“that providers felt there was a lack of clear strategic direction from local authorities, and a lack of commissioning and procurement skills—which was leading to market inefficiencies and difficulties in planning.”

That, of course, does not apply to every local authority; there are examples of good practice and we need those to be leading the others to improve quality. Care England argues that local authorities are using their monopsony power to force prices down regardless of quality considerations or prevailing economic conditions. The absence of agreement about how objectively to set a fair rate for care can and does end up with local authorities being challenged by judicial review. It cannot be right—it makes no sense—that litigation effectively becomes the only route by which meaningful dialogue and negotiation takes place. That is not a measure of a healthy market; it is a measure of a dysfunctional one.

That is why clause 5 is so important. It is about trying to get local authorities to look beyond their own purchasing responsibilities to the whole of the care market in their locality. Amendment 34 seeks to provide a back-stop power—an arbitration mechanism. In the Joint Committee report, we recommended that local authorities should be required properly to take account of actual costs of care when setting the rates they are prepared to pay providers. The Government gave many positive responses to our recommendations. They said that they would make a change to the personal budget provisions. I will come back to that when we discuss a later group of amendments.

The Joint Committee also recommended that an independent adjudicator was necessary to settle disputes between local authorities and providers over the cost of care. The Government said that they would investigate that as part of last summer’s consultation. It would be helpful if the Minister gave us some information about the Government’s thinking post their response to the Joint Committee’s report. Quite simply, the amendment would give the Government a regulation-making power to establish an independent adjudicator. That is only part of the changes needed to address the concerns to which we will come back, particularly when we consider the quality of commissioning in a later group of amendments. For now, I look forward to the Minister’s response to this amendment.

Norman Lamb (Liberal Democrat, North Norfolk)

I find myself agreeing with a lot of what my right hon. Friend said. He used the expression “crude procurement”, which is too often the experience of many care providers. I have been clear that we need substantially to change practice and move away from procuring on the basis of time for care at home, and also from just procuring a place in a care home, rather than commissioning for great outcomes for improving someone’s well-being. Of course, that is central to the clause and the Bill. The Association of Directors of Adult Social Services is working with the Government to look to design best practice commissioning.

Those local authorities who get it right give clear incentives to care home providers to improve quality and outcomes for people, and focus on the well-being of their residents. My right hon. Friend is, however, right to say that practice is variable and that far too much commissioning and procurement is going on around the country.

Sarah Wollaston (Conservative, Totnes)

Will the Minister also accept that one of the unintended consequences of the existing arrangements is cross-subsidy by self-funders of those being funded? Does he see arbitration as a way to address that?

Norman Lamb (Liberal Democrat, North Norfolk)

I understand the risk of cross-subsidy; there are many claims that that happens. One of the good things that will emerge from the Bill is far greater transparency about the local authority’s negotiated fee and what the self-funder pays through what is declared in the personal budget, or independent personal budget, which will make any practice of that sort much more difficult. It is hard to predict the exact consequences, but that transparency will ultimately help everyone and make unacceptable practice much more difficult to mask.

The amendment raises an important issue about the relationship between local authorities and care and support providers and how to resolve disputes, should they arise. The Bill recognises the importance of ensuring a variety of high quality services to meet the needs and preferences of all local people, not just those whose care is arranged by the local authority. As part of local authorities’ day-to-day functions, they will agree contracts with providers from whom they intend to commission care and support. Sometimes, those will be block contracts or framework agreements agreed in advance to allow for flexibility over time, but, increasingly, they will be more specific contracts tailored to individual cases and preferences. Where the local authority has put in place a framework agreement or agreed prices on an individual basis, we are clear that prices agreed with providers as part of a contractual discussion are for the agreement of the parties involved.

Sometimes, there will be a dispute between the local authority and provider about the prices proposed or other matters and, occasionally, disputes may become intractable. The amendment would, in effect, require the appointment of a new independent arbitrator to adjudicate in any unresolved disputes.

I understand why that has been suggested and the model from the groceries code adjudicator provides an example of how that could operate. Of course, the problem is that that legislation requires the supermarkets to pay for the adjudication system, but I do not think the suggestion here is for the providers to pay for that and my fear is that the cost of any system would have to come out of the money available for care. Any disputes that arise as part of a contractual negotiation would have to be resolved through that process.

Local authority commissioners and providers should agree prices for care and support that reflect the particular circumstances in their local market. However, such negotiations do not take place in isolation. Local authorities must have regard to the importance of ensuring sustainability in the market as part of their market-shaping function under the Bill. That new duty is made clear in clause 5(2)(d). It means, for instance, that local authorities should not set prices that risk undercutting the stability of the market as a whole. Providers also have a clear responsibility, as they participate in negotiations over local fees.

I completely understand and am realistic about the pressures that providers are under and the respective bargaining power of the parties. We are clear that they should not sign up to contracts that tie them to fee rates that will risk the quality of services or the working conditions of those providing them. In that way, the incentives already exist—both in the Bill and as a matter of business practice—to militate against unreasonably low fee rates. I make the point again about transparency, which the Bill will offer.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the Minister consider and comment on the role that the Care Quality Commission can play through its thematic inspections? There is clearly an issue about how prices are set, how contracts are arrived at and the quality of the commission. The old system of routine inspections was meant to address that, but the evidence is that it did not. Will the Minister say how he expects the CQC to use its thematic powers so that that issue is addressed?

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to my right hon. Friend for giving me the opportunity to deal with that. There have been suggestions that, through this legislation, the CQC will disappear from the picture. It will not—it will have the power to conduct the thematic inspections. I very much expect those powers to be used, and they should be used where commissioning practices put the quality of care at risk. That might apply in a whole range of different circumstances.

It is important that commissioners are held to account if they are behaving in a way that undermines the quality of care. If we have a commissioner/provider split, we have to get both sides of that equation right to achieve great care. I think we all have to recognise that, so I am grateful for my right hon. Friend’s intervention.

Appointing or establishing a new independent arbitrator would add cost and bureaucracy to the commissioning process. It would be most likely to increase the risk of disputes, and might lead to participants in a dispute feeling absolved of a responsibility to negotiate and compromise. It could also mean issues becoming protracted by requiring more time for resolution, inevitably risking the continuity of care and support.

For those reasons, I cannot support the amendment. I urge my right hon. Friend to consider withdrawing it in light of my response.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I have listened closely. I am not entirely persuaded, but I want to go away and think about what the Minister has said. The Government have been minded to propose legislation governing adjudication in the groceries market and have recognised that there is an imbalance of power between different parts of that supply chain. I think there is a similar issue in the care sector.

Norman Lamb (Liberal Democrat, North Norfolk)

In making his case, how does my right hon. Friend argue that such a system, if there is to be one, should be paid for? As I said earlier, the supermarkets pay for the adjudicator system. Is he suggesting that providers should pay? If not, does he concede that the money spent on running such a system would not be available for providing care and support from a local authority?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister makes a fair challenge. Of course, any money that comes out of the system is potentially care forgone; I appreciate that entirely.

In response to my Committee’s recommendation, the Minister and the Department said that they would consider the issue actively over the summer. The Minister’s response today has not reflected how that consideration took place. Will he say more, between now and Report, or in correspondence, about what actively happened? It would not have been unreasonable for the Department to have engaged with the provider sector to determine whether there was an appetite for such a measure. I have picked up on generalised support in my discussions with providers.

I have heard what the Minister has said, but I am not entirely persuaded. Today, however, is not the day for dividing the Committee on the amendment, not least because I am sure the Minister will point out its technical deficiencies. However, I want to leave him under no illusions that the issue is one of serious concern. There is a dysfunction here. Simply hoping that things will be better in future because of practice changes is not borne out by similar hopes over the past decade. I beg to ask leave to withdraw the amendment.

Clause 6 - Co-operating generally

Liz Kendall (Labour, Leicester West)

I beg to move amendment 82, in clause 6, page 7, line 23, at end insert—

‘(f) sharing information and data so as to ensure high quality care and support.’.

Clause 6 seeks to ensure that all the different bodies co-operate with one another to improve care and support. Amendment 82 would ensure that, even when they are co-operating, all such bodies shared information and data to make sure people got the best possible care and support. All hon. Members will know from constituency cases that the different bodies that are supposed to work together often do not share information about the people who are using and receiving services. The amendment would ensure that local bodies worked together to share information where appropriate.

The clause refers to a range of different bodies: councils, NHS bodies, chiefs of police, the probation service and Ministers of the Crown responsible for issues such as employment, training and social security. I want to give a specific example to illustrate my point. Last year, I spoke at an event organised by the Strategic Society Centre, an excellent think-tank that examines policy in relation to social care. The event was also supported by Independent Age.

The event considered brilliant research on attendance allowance claimants. The Minister knows that 1.3 million elderly people in England currently claim attendance allowance—a non-means-tested means of support to give extra money directly to people who have a high level of need. Some 80% of attendance allowance claimants have a long-term illness associated with heart disease, diabetes, stroke and arthritis. More than half have nine or more mobility problems or difficulties, which is a really high level of need. Despite that, more than a million claimants currently get no help whatever from local council social care services, and fewer than one in 20 get help from NHS community nurses. We know that specialist nurses working in the community can help people with heart disease and diabetes to manage their conditions better so that they can stay at home, their problems do not escalate and they do not end up in hospital.

The Strategic Society Centre and Independent Age rightly highlighted the “missing million” people who have high levels of need, but do not get social care or NHS support when they might really benefit from it. Not only would they benefit, but taxpayers would too if people could be helped to stay living at home rather than ending up ringing 999 and going in an ambulance to accident and emergency.

The research also showed that about a third of attendance allowance claimants are cared for by a son or daughter; 30% by a partner; and 15% by another family member—perhaps a brother or a sister. All that information is held by the Department for Work and Pensions. In other words, the DWP has amazing information about people and family carers who might benefit from up-front help and support.

We have already talked about the fact that carers often do not come forward because they do not think of themselves as carers but as people trying to look after the person they love. We need to do more to identify them, and the DWP has that amazing information. Ensuring that the DWP shares information with local councils and social care would be a brilliantly effective way of getting the shift to prevention that all hon. Members want. I think I might have raised the issue with the Minister before; I am passionate about it. The Government need to get better at sharing information and data.

Has the Minister ever had a conversation with his DWP colleagues about this matter? Does he agree that if the amendment were added to the Bill, Ministers of the Crown would be required to talk to one another and get the issue sorted out? I tabled the amendment to get better care and better value for taxpayers’ money, but it would also require every Minister to do what we all say we want them to do—to work together.

I hope the Minister will accept the amendment. Will he at least tell me whether he has ever had a conversation with his DWP colleagues about joining up the work to get the best outcomes for people and taxpayers?

Norman Lamb (Liberal Democrat, North Norfolk)

I totally agree with everything the hon. Lady said. Attendance allowance is a powerful concept, because it is a direct payment that gives the individual total power to determine how they spend it in their best interest. The concept should therefore be strongly supported. It was interesting to hear what the hon. Lady said about the session she attended, but there has been a paucity of analysis of the impact of attendance allowance, how effective it can be, and who does and does not get it—some people who are entitled to it do not claim it. Her point about better collaboration was well made, and the Bill seeks to address that issue. Subsection (7)(d) states:

“the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England”.

Co-operation is therefore very much at the heart of the Bill.

The hon. Lady asked about the conversations I have had. I have had lots of discussions with DWP about better collaboration, particularly on mental health and unemployment, but there is great potential for more effective joined-up work. I have not had a specific discussion about that issue, and I will do. That is a very good point, and I am grateful to the hon. Lady for suggesting it. There is a lot we can gain by doing what the Bill tells us we should be doing and collaborating more effectively.

The Government agree that it is paramount for information and data to be shared effectively across organisations, including between commissioners and providers, to aid effective integration, for the purpose of achieving good care. However, we must understand and address the root cause of the current issues with effective information sharing. The Government do not believe that the amendment would help to achieve such a complex and technical goal. There are enormous frustrations about the failure to share information, whether between the Department for Work and Pensions and other parts of the health and care system; providers of health and care services locally, which do not share information with each other; or the commissioner and the provider locally. There are failures of good information sharing all over the place; they need to be addressed and we need to understand why such failures occur and how to unlock them.

This will require detailed work in order to understand how such information sharing can happen effectively, overcoming both technical and cultural barriers. Organisations often work in silos, without thinking about the bigger picture of the care that they are jointly providing to an individual. Officials at the Department of Health are undertaking that work, which I have made clear must be an absolute priority. Integrated care, about which I am passionate, is held back by the barrier of the failure to share information properly between organisations. Often, local organisations put up barriers that do not need to be there; they think that they have to have them to meet privacy requirements, but they end up preventing good care by operating in silos. So I regard this as a high priority.

We have been clear that good data and information sharing is important—indeed, vital—to integrated care, which is why better data sharing between health and social care is included as one of the national conditions attached to the better care fund. “The power of information” strategy also set out a number of ambitions, including the use of information to drive integrated care throughout the entire health and social care sector, both within and between organisations.

Data sharing is governed by laws on data protection and confidentiality, and we would expect relevant partners to share information where relevant in accordance with the law when exercising their care and support functions to ensure high-quality care and support.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I totally support my hon. Friend the Member for Leicester West in her amendment. Is there a particular reason, in terms of the organisations that the Government want to have sharing, why education institutions were not specifically mentioned? That seems to be an omission, again, to consider the needs of young carers in the clause.

Norman Lamb (Liberal Democrat, North Norfolk)

The Bill allows for the sharing of information between departments of an authority—a social care authority would also be the education or children’s services authority, so there should be that co-operation between departments in the authority and, indeed, with the education institutions beyond the authority in the public sector. The hon. Lady makes a good point; I absolutely agree with the spirit in which she is focusing on it. If I can provide her with any further helpful guidance and response I will seek to do so.

Clause 7 provides a specific duty to co-operate in individual cases. Where a local authority or one of its relevant partners requires the co-operation of the other to obtain information relevant to care and support functions, it could request such information and the local authority or relevant partner must co-operate in providing the information, unless doing so would be unlawful or have an adverse effect on its functions.

I hope that I have reassured the shadow Minister that information and data sharing will fall within the scope of the co-operation duties. The amendment is therefore unnecessary, but I completely share her absolute clarity of view that information sharing is essential in order to achieve not only good care, but the most efficient use of resources.

Liz Kendall (Labour, Leicester West)

I thank the Minister for his response. He understands that information sharing is absolutely essential. I am happy to withdraw the amendment on the basis that, first, the Minister has accepted the general principle and that, secondly, he will go and talk to his colleagues in the DWP about the specific issue of attendance allowance. If he makes any progress on this, will he keep Members updated and will he acknowledge that the issue was raised by the Opposition, and that if he makes any progress, we have, in part, been responsible for that?

Norman Lamb (Liberal Democrat, North Norfolk)

I try not to be tribal in my politics. I have already acknowledged that the point the shadow Minister made is a good one. I am very happy to keep Members informed about any progress that is made, but I commit to entering that discussion with DWP because I think it is worth while doing.

Liz Kendall (Labour, Leicester West)

I beg to ask leave to withdraw the amendment.

Clause 7 - Co-operating in specific cases

Norman Lamb (Liberal Democrat, North Norfolk)

I beg to move amendment 1, in page 8, line 23, leave out subsection (6).

Andrew Rosindell (Conservative, Romford)

With this it will be convenient to discuss Government amendments 2, 3, 5 to 7, 15 and 22 to 24.

Norman Lamb (Liberal Democrat, North Norfolk)

This is a highly contentious set of new clauses which, I suspect, will detain the Committee for hours. In fact, it is a set of small amendments of a minor and technical nature. The purpose of the amendments is to ensure that the Bill is drafted as clearly as possible. To this end, I have tabled a set of amendments to include further definitions of terms, including “young carer”, “parent” and “child’s carer” in the glossary at clause 79(1) to ensure maximum clarity. These changes reflect our determination to get the detail of the Bill absolutely right, rather than any change in policy. I hope they will receive the Committee’s approval without the need to detain ourselves any longer.

Clause 8 - How to meet needs

Norman Lamb (Liberal Democrat, North Norfolk)

People’s needs for care and support cover a wide spectrum. Care and support can be provided in a number of different ways. The purpose of the clause is to illustrate some of the ways in which care and support needs might be met. It is critical that the new approach to care and support set out in the Bill focuses on people, their needs and their outcomes. As such, we do not want to set out a detailed or prescriptive menu of types of services into which adults’ needs have to be slotted. Rather, we want local authorities to have flexibility in how they meet people’s needs so that they can innovate in care and support to achieve better outcomes.

The clause ensures that there are no legal barriers on the types of care and support that can be provided. Instead, the clause sets out a list of examples of how care and support needs can be met. This approach and the use of illustrations is intended to act as a signal that in a modern care and support system, we should be thinking about more than just the traditional ways of meeting care and support needs, such as placing someone in a residential home or making domiciliary care visits. These may, of course, be the best way of meeting someone’s needs. However, their needs may also be met through counselling services, information and advice and other kinds of good services or facilities. This could cover a wide range of services, so although the list contained in the clause gives some examples, it is not exhaustive. The most important thing is that people get the care and support they require.

The clause enables this to happen. It sets out the flexibilities that local authorities have in arranging for care and support. The local authority may meet people’s needs in care and support by arranging for another organisation to provide a service or by providing the service itself. It also enables the local authority to make a direct payment to the person who needs care and support so that they can manage and buy their own services, increasing the control that people have over their lives and the services that they receive. I hope that the clause meets with the Committee’s approval.

Clause 10 - Assessment of a carer’s needs for support

Liz Kendall (Labour, Leicester West)

I beg to move amendment 84, in clause 10, page 9, line 41, after ‘adult’, insert

‘or an individual under the age of 18 with caring responsibilities’.

Members of the Committee will know that clause 10 relates to family carers’ needs for support. The amendment would extend the right to have a carer’s assessment to young carers to ensure consistency with the changes that the Government propose to the Children and Families Bill. We welcome the fact that the Government have finally agreed to amend that Bill to extend the right to an assessment to young carers aged under 18. Young carers will no longer have to request an assessment or be undertaking a regular and substantial amount of care. We also welcome the fact that the Government have agreed to develop what they call a whole-family approach to assessments and support in both the Children and Families Bill and this Bill so that young carers’ needs are included when assessing an adult’s needs for care and support.

As the Minister will be aware, Opposition Members and some Government Members have consistently pressed the Government to make these changes. I want to pay a huge tribute to the work of the National Young Carers Coalition, the Carers Trust and Carers UK for their tireless efforts on this issue. Amendment 84 would ensure that changes in the Children and Families Bill to ensure that young carers’ needs are assessed are mirrored in this Bill to make it crystal clear what local authorities’ responsibilities are in this area and to ensure absolute consistency.

There are an estimated 700,000 young carers in Britain with an average age of 12; some are as young as eight or nine. Caring can put a huge strain on these young people. It can rob them of a normal childhood. It can disrupt their education and have a serious effect on their health and later life chances. This issue has been raised many times before on the Floor of the House and it is important that we also reflect it in Committee today. Nearly one third of young carers in secondary school have educational difficulties or miss school because they have to look after or help to look after a parent. Many feel isolated when they are growing up.

School staff are often unaware that students are carers so it can be a hidden cause of underachievement. Many young carers leave school with no qualifications. They are less likely to be aware of their rights and to understand or be aware of the information, advice and support that is available. Later in the Committee, we will return to our amendments that seek to put a clear duty on local authority children’s services to identify and support young carers, by working with schools and higher and further education institutions—colleges and universities—in particular, to ensure that they have a specific duty to identify student carers. The Government have made progress on the issue, but a clear duty on schools, colleges and universities to identify young carers would make a big difference.

I pay tribute to my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley), who has been campaigning on the issue and has produced a private Member’s Bill. The amendment reflects what she has done in working with young carers’ organisations.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I absolutely support what my hon. Friend says. I did some research with young carers. Their caring responsibilities impact hugely on long-term issues, particularly the development of relationships and long-term health needs, including their future as a whole. Making a change is absolutely vital.

Liz Kendall (Labour, Leicester West)

A big challenge in many areas of public service is to shift the focus to prevention. Ensuring that young carers get the support they need early on will have a big impact on them and their later life chances across a whole range of areas. The amendment would ensure that there is absolute clarity and consistency in both Bills.

I want to ask the Minister for further clarification on the whole-family approach that the Government say will be put in place by the combined changes under the Children and Families Bill and the Care Bill. I understand that more details of the whole-family approach to supporting young carers and the people they look after will be set out in forthcoming regulations.

I want to raise an issue that has been brought to our attention by the Carers Trust. It says that the regulations must make it clear that when there is a risk that a child or young person’s well-being would be negatively affected by their caring role, care and support should be delivered to the whole family in a properly co-ordinated way, genuinely looking at both needs together and having a package of support that meets the needs for care and support of both the adult and the young carer.

Who is working on the regulations in the Department of Health and the Department for Education? Will the Minister commit to ensuring that both Ministers work together and that, crucially, they work with the National Young Carers Coalition, the Carers Trust and Carers UK to ensure that the regulations and the guidance to councils are genuinely joined up? When will the regulations be published?

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to the shadow Minister for allowing me to intervene. I absolutely commit to close collaboration with the groups that she referred to and I join her in paying tribute to the campaigning work that they have done. There has so far been a fruitful collaboration in achieving the advances. In getting the regulations right, it is critical that that collaboration should continue, which of course has been the whole spirit of the legislation throughout.

To pick up on another of the hon. Lady’s points, there needs to be close collaboration between my Department and the Department for Education, so that officials can ensure that the two pieces of legislation marry up effectively and lead to the whole-family approach to which she refers.

Liz Kendall (Labour, Leicester West)

I am grateful to the Minister. When he rises to respond to the amendment, it would be useful to get a sense of the time scale. We really need to make sure that when guidance goes out to councils about everything in this Bill, the guidance on young carers is part of it. Otherwise, people will not start as they mean to go on; the Minister will know that the first bit of bumf they get about their new roles is what they will end up developing their work programme with. I am concerned that there might be a delay and want him to make sure that there is not. I will sit down now; the Minister can respond during his other comments if he likes.

Meg Munn (Labour, Sheffield, Heeley)

I want briefly to support the amendment. I have the honour of being the patron of Sheffield Young Carers, so I have had the opportunity to speak to quite a few carers about their situation. They tell me that too often they are met by disbelief; teachers and other people do not believe them—“How can this young person take on this role? It is just an excuse for why their homework has not been done or they are late to school”. That disbelief does not stop with teachers, but spreads to people in social care. It is one of the effects of the separation of caring services for children and adults.

It is so long ago since I trained. I was a generic social worker so we did the whole lot, as it were. Even when we worked in separate teams—I was in children’s services—we worked very closely with our colleagues in adult services. However, as time has gone on, and for good reasons because there is greater specialisation, that split often means that those who work in social care with adults just do not have the children in their heads. They do not consider what is happening—the effect on the children of being in a household where somebody has significant needs or what they are doing. The approach of putting young carers into the Bill is important.

My hon. Friend the Member for Leicester West has said that the issue is important in relation to the information that goes out early on and the training to support the process, but it is also important in making a fundamental statement that young carers are important and that they also have needs as children that need to be met. They should not be seen as something separate.

I know it takes far more than words in legislation to achieve cultural change, but it is enormously important that there should be such change. There is much greater identification of young carers now than ever there was, and we should take heart from the projects that have been run. In Sheffield, projects have been run about young carers in particular schools and those schools identify a far greater number of young carers than others. We can do a lot to improve the situation, but it is important that the issue appears in the Bill.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I want to underscore the point about the significant difference that the Bill will make for young carers. I thank the Government for listening to the lobbying and the recommendations of the Joint Committee.

I want to raise one issue that the Minister might be able to comment on: the interaction of the new duties around assessments of young carers and eligibility. We will come back to the issue later, but it is relevant here too. When it comes to eligibility, in some cases the assessment of a carer’s needs—in this case, a young carer’s needs—may well give rise to the identification of support needs for the person for whom they are providing care. However, that person may not themselves meet the eligibility criteria and may fall below the threshold.

As a consequence, the young carer continues to shoulder a disproportionate and unfair burden in what they have to do as a carer. Eligibility needs to be framed more subtly than it has been historically to take that into account, so that the threshold is personal and reflects the circumstances of the whole family. That issue is central to the design of eligibility. I hope the Minister will say something about that now or when we come to clause 13.

Bill Esterson (Labour, Sefton Central)

I echo the comments of my hon. Friends and the right hon. Member for Sutton and Cheam. It is important that we put children at the heart of all we do. In our lengthy debate in the Children and Families Bill Committee, we repeatedly returned to the importance of putting children first and ensuring that their needs are considered. I am glad that other Members have spoken about that.

In previous debates, the Minister has said that he does not like to legislate unnecessarily, and I hear that. However, we have been talking about the need to give guidance to councils. We can have the best intentions in tabling amendments, but the issue is the reality on the ground. Will the Minister spell out what the Bill will mean in practice and how it will improve not only the assessment of needs but their identification in the first place?

On Thursday, my hon. Friend the Member for Sheffield, Heeley talked about the reluctance of young carers to come forward to be identified and the fact that they are often not believed. Those are all important points. It would be helpful to know how the Minister thinks young carers can be identified and supported, what that will look like on the ground and what the practicalities are of what he intends.

Norman Lamb (Liberal Democrat, North Norfolk)

First, I confirm to the shadow Minister that we expect the draft regulations to be published for consultation in May. I repeat that we will collaborate with the Carers Trust and the National Young Carers Coalition in that ongoing work.

My right hon. Friend the Member for Sutton and Cheam said that the assessment of a young carer’s circumstances might identify the needs of the adult—perhaps a parent—for whom they are caring, and that there needs to be sensitivity about their individual circumstances. I share that view. One of the longer-term pieces of work that we are doing, which he knows about because it was referred to in the White Paper, is to try to be more subtle and creative in how eligibility works in the long term. Of course, local authorities can choose to recognise the whole-family circumstance and the need for support for a parent, even if they do not meet the formal eligibility criteria.

I do not want the hon. Member for Sefton Central to get the impression that I am anti-legislation. I made the point last Thursday that passing something in this place does not always change the world; there has to be a combination of legislation and effective implementation. Sometimes legislation can do enormously good things and lead the way for changing cultures. The potential power of the Bill is that it will much more effectively recognise the vital need of young carers to be properly supported. The hon. Member for Oldham East and Saddleworth said that their needs are absolutely central. She or the shadow Minister made the point about teachers responding with disbelief—sometimes it can be even worse than that.

I met a young carer in my office, when Radio 1’s “Newsbeat” brought her in. She talked about how one teacher had been dismissive of her caring responsibilities; they were not really so important and homework came first. The teacher did not recognise the pressures that this 15-year-old girl was under, so there is an enormous need for a change of culture and for proper recognition of the need to support young carers. The changes that have been made are enormously important in advancing that cause.

The amendment extends the duty to assess carers to include a duty to assess young carers under 18. Furthermore, as the provision being amended provides the definition of carer for the purposes of the Bill—this is critical—it would, in effect, extend all the provisions in the Care Bill relating to carers, and adults caring for adults, to include young carers under 18. The Government have already amended the Children and Families Bill, putting a young carer’s entitlement to an assessment on a similar footing to the provisions in the Care Bill for an adult carer’s assessment so that the two pieces of legislation marry up properly.

The amendment to the Children and Families Bill consolidates and simplifies legislation relating to young carers’ assessments. The right to an assessment of needs is extended to all young carers under the age of 18 regardless of whom they care for, what type of care they provide or how often they provide it. I appreciated the shadow Minister’s welcoming the amendment, although she was a touch churlish in suggesting that we had finally accepted the case for amendment. There was, as I said, a good collaboration that resulted in a change and agreement to amend over last summer. It was widely welcomed by the groups campaigning on behalf of young carers, and I welcome her support for that and for the whole-family approach, which she also referred to in her contribution.

Meg Munn (Labour, Sheffield, Heeley)

I understand the Minister’s concern about inadvertently widening the definition for the whole of the Bill, but can he say a little more about that? There is genuine concern borne out of experience as well as talking to young carers. How will the Government ensure that the whole-family approach is adopted if it is not in the Bill? Will it be in the guidance that it refers across to the Children and Families Bill? How will it happen? Leaving it to good will and a general sense that this is what ought to happen is not enough.

Norman Lamb (Liberal Democrat, North Norfolk)

I hope that I can reassure the hon. Lady. The approach will absolutely be in the regulations that will be published in draft form in May. She and anyone else can respond to the consultation. I accept the points that she made in her earlier speech that too often these days within local authorities there is not good enough collaboration between social workers working on behalf of adults and those working on behalf of children. It is one of the perhaps unforeseen consequences of greater specialisation and of the creation of children’s services that bring education and children’s social work together; we have ended up with a bit of a divide between adults and children. That needs to be addressed.

The Government need to recognise the situation, and we are, through trying to marry up the two bits of legislation, but local authorities absolutely need to recognise it. Indeed, those who educate social workers need to recognise it, because if we are to make a whole-family approach a reality, all parts of the system need to work to achieve it.

Bill Esterson (Labour, Sefton Central)

The Minister mentioned education. Of course, local authorities do not have direct responsibility for what goes on in many schools. There is often difficulty in the relationship between different parts of local authorities and schools. Children spend large parts of their time in schools, and that is where these issues can best be identified. Can I push the Minister a bit further on how he sees that identification working in practice? He mentioned changing the culture, so that teachers and others believe children when they say they have caring responsibilities, so they can be assessed.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful for that intervention. It is not always possible for Government to force things to happen but I agree that schools play a vital role in this. I have already referred to the duties of co-operation in the Bill. Schools need to work to identify where youngsters have caring responsibilities and be prepared to work with local authorities to achieve support for those youngsters, and to ensure that their caring responsibilities do not adversely affect their opportunities in education and later life.

I ought to press on. The amendment to the Children and Families Bill makes it clear to local authorities that they must carry out an assessment of a young carer’s needs for support on request or on the appearance of need, and provides the appropriate links between children’s and adults’ legislation to enable local authorities to align the assessment of a young carer with an assessment of an adult they care for.

In addition to that amendment to the Children and Families Bill, clause 12 of the Care Bill makes it clear that a local authority may combine an adult assessment with an assessment relating to a child, including a young carer’s assessment, provided all parties agree. That, of course, helps to facilitate the whole-family approach.

The Government’s amendment to the Children and Families Bill about young carer’s assessments, together with the Care Bill provisions on combining assessments and the forthcoming regulations on a whole-family approach to assessing and supporting adults, provide a clear legislative framework to support local authorities to consider the needs of young carers and protect children and young people from excessive or inappropriate caring roles.

This amendment to the Care Bill would duplicate provision within the Children and Families Bill. It is one thing to have the two bits of legislation gelling well together, but there is no need for duplication when something is clearly provided for in one piece of legislation. I believe, therefore, it is unnecessary. Because of the extended role of the definition that I have referred to throughout the Bill it would be confusing to have similar provisions in both Bills. I hope, therefore, that the shadow Minister will agree to withdraw the amendment.

Liz Kendall (Labour, Leicester West)

I am grateful to the Minister for his response. I want to try to put this in its basic terms. If a social worker goes to assess a person who needs care and support and sees that they have children, those children are probably caring quite a bit for their parent. Does that social worker also conduct an assessment of the young carer, perhaps at a separate time?

We want to get the best results for the young carer, but we also want to avoid duplication. A social worker with generic skills can see the two people, do separate assessments and then bring them together. Unless we have something in the Bill that makes it clear to local authorities that, when they are assessing the adult they should also assess the young person—rather than doing it in a totally separate Bill focusing on children’s social workers—I am concerned that we will end up with duplication.

The Minister says that he does not want duplication in the Bill. I am more concerned about waste and duplication on the ground in reality and practice. It would make sense for a social worker with generic skills who could do both, to do that, but I am not yet clear that that would not be done by separate departments. I seek assurance from the Minister that that practical example will be addressed, rather than two separate work programmes and work streams going on in separate Government Departments and separate council departments. That is a practical issue to which I hope the Minister will respond.

Norman Lamb (Liberal Democrat, North Norfolk)

It is absolutely the intention for the two Bills to gel; for the regulations to develop the concept of the whole-family approach; and for the whole emphasis coming from Government, in terms of guidance and instructions to local authorities, to work on a whole-family basis.

Emma Lewell-Buck (Labour, South Shields)

May I press the Minister on his thinking about who would carry out the assessment? Would it be an adult social care worker, or a children’s social care worker? My worry is that a caring child could be lost in a battle of different departments saying, “Not my responsibility”.

Norman Lamb (Liberal Democrat, North Norfolk)

I completely agree with the hon. Lady that there is a risk of, “This is not my responsibility. It’s your responsibility”, and passing on to another department. It could be either, depending on the identified or apparent needs of a particular family.

The absolute need for those departments to work closely together and to make a reality of the whole-family approach is completely shared by both sides of the Committee. A clear and strong message goes out from both sides that that has to happen. The policy has to challenge some of the silos that have developed in social work and bring back the concept of looking at the whole family. As I said earlier, that has to be addressed in education as well as in provision of service.

Liz Kendall (Labour, Leicester West)

The issue is complicated. We do not want to make things more complicated than necessary, but we need to ensure that it is clear to people in practice who does what, and that we do not have two separate systems developing. I know that the Minister is committed to ensuring that that will not happen. I am grateful that he told us when the draft regulations are due to be published, and that he will continue to work with carers and young carers’ organisations. On that basis, I beg to ask leave to withdraw the amendment.

Liz Kendall (Labour, Leicester West)

I beg to move amendment 92, in clause 10, page 10, line 38, at end insert—

‘(10A) Where an adult is being assessed for NHS Continuing Care and this is to be provided in whole or in part in the community, and that person has a carer who is providing or about to provide care, the local authority must ensure that a carer’s assessment under this section and section 12 is carried out of the carer’s ability to provide or continue to provide care.’.

Andrew Rosindell (Conservative, Romford)

With this it will be convenient to discuss amendment 97, in clause 14, page 14, line 7, at end insert—

‘(3A) Services of an intimate nature can only be provided to the disabled person.

(3B) Regulations may make provision about what is, or is not, of an intimate nature for the purposes of subsection (3).’.

Liz Kendall (Labour, Leicester West)

As hon. Members know, clause 10 is about assessing carers’ needs for support. Amendments 92 and 97 are about assessing carers’ needs in two important areas. The first is in relation to NHS continuing care. The other is a separate issue, about ensuring that there is clarity in the Bill on the needs of families who are looking after someone, who often has a disability, and on ensuring that carers are not charged for the replacement service if they themselves need a break, and the person for whom they are caring needs to have care and support while the carer is having a break. I will go over the amendments and try to be as clear as I can, if that was not my most clear opening statement.

Amendment 92 seeks to ensure that carers of people who receive NHS-funded continuing care, rather than council-funded social care, do not fall through the gaps, and definitely get an assessment to ensure that their needs are met. Any hon. Member who has dealt with issues with constituents on NHS continuing care knows that it can be a nightmare.

There are often difficulties and rows between the NHS and councils about who should pay for someone’s needs, and family carers often fall through the gaps. If they are caring for someone who receives NHS continuing care, their own needs must be assessed by the council, but because the NHS is paying for the continuing care, that carer is often ignored. Our amendment seeks to ensure that even if care is NHS funded, a family carer will have the right to have their needs assessed and to receive support.

Carers UK raised the matter with us and it was discussed in the other place on amendments tabled by Baroness Pitkeathley, who has championed carers’ issues. It is important to clarity the matter, which is yet another area where two parts of the system do not work together. I hope the Minister will agree that the measure must be clarified to ensure that carers of people who receive NHS continuing care get the necessary assessments and support.

Amendment 97 relates to the wider issue of when family carers are charged for services and support. The Bill is trying to clarify charging, including if and when carers are charged for services and support. Carers UK is worried that it does not go far enough in defining when a service is for a user and when it is for a carer. For example, if a carer is struggling to look after someone and needs a break, they need that service as a family carer, but the person being looked after also needs a replacement service while the carer is on a break. Carers UK is worried that there is not enough clarity about that in the Bill. We do not want a carer to be charged not only for their own support but for the replacement service for the person being cared after. Carers UK is worried that the lack of clarity, particularly in relation to families looking after disabled relatives, could cause confusion among the people doing the assessments, the social workers and the councils in terms of their charging policies, and that there is a risk that carers could be increasingly and wrongly charged for services.

A related issue is my fundamental belief that disabled people must retain choice and control over the services they receive. There is a concern. If the carer needs a break and a replacement service needs to be put in place, we must ensure that the disabled person who receives that replacement service retains choice and control of what is happening to them. Our amendment seeks to ensure that disabled people retain that choice and control and are not simply given a service while their loved one is away. I am explaining this as clearly as I can.

Under the Carers and Disabled Children’s Act 2000, services provided to a disabled person to meet their carer’s needs, such as having a break, cannot include intimate services for the disabled person. That is what our amendment seeks to replicate. During the debate on clause 1, the Minister said that he was not sure whether the word “choice” added anything to the concept of individual control over day-to-day life. I am convinced that it does, and the amendment would entrench that in the Bill to ensure that disabled people continue to have choice in the services they receive.

I want to take this opportunity briefly to make a wider point about charging carers. There is provision in current legislation for councils to charge carers for services and support. However, in practice, many councils do not use that power because they rightly understand that carers do a phenomenal job. They do so, as my hon. Friend the Member for Sheffield, Heeley said, because they are looking after someone they love, and that delivers a big saving to the taxpayer. Councils understand that, and many councils may not want to charge carers for such services.

I want to put it on the record that I was pleased to hear the debate in the other place, when Baroness Pitkeathley spoke about how Hertfordshire county council recently reversed its decision to charge carers: first, because it decided that if carers thought that they could not afford to pay the charge and gave up work, they would end up having to claim benefits, which would cost the local authority more; and, secondly, because it understood that many carers tend to be on lower incomes than other people of the same age, because they have had to give up work to take on their caring responsibilities, and so they would be unable to meet the charges levied on them. The concern, however, is that as local authority budgets are squeezed, councils will come under increasing pressure to charge carers for their services and support. According to the Health and Social Care Information Centre, 400,000 carer assessments were carried out in 2010-11. The Government’s own impact assessment for the Bill stated that the number of carers receiving an assessment after the Bill has been enacted is likely to go up by between 230,000 and 250,000.

The Joint Committee on the draft Bill—hon. Members will correct me if I am wrong—recommended that the Government protect carers from being wrongly charged. I understand that the Government have already attempted to meet that recommendation by amending clause 14. I hope that they will take a step further and provide complete clarity on ensuring not only that carers looking after someone who receives NHS continuing care are properly assessed by the council, but that they are not charged for the replacement services, as well as their own services in support.

I have attempted to explain that as clearly as I can. If I have not, I beg the Committee’s forgiveness.

Norman Lamb (Liberal Democrat, North Norfolk)

Amendment 92 would impose a specific requirement on the local authority to assess the ability of a carer to provide, or to continue to provide, care of an individual who is being assessed for NHS continuing health care in the community. I am not convinced, however, that such a requirement is necessary.

I sympathise with the sentiment of the amendment, and I completely understand the concerns expressed by the shadow Minister. When someone is being considered for NHS continuing care, the risk is that the carer gets forgotten. That risk of course applies across the board, and we debated it last Thursday. There is a need for the whole system to be much more focused on the carer, as well as on the person being cared for.

It is important that no assumptions are made about a family member’s ability to care, or about an existing carer’s ability to continue to care, either by the NHS or by local authorities. If a carer is identified in the course of an NHS continuing health care assessment, the national framework for NHS continuing health care and NHS-funded nursing care makes it clear that the clinical commissioning group should: inform such carers about their entitlement to have their needs as carer assessed; and, where appropriate, advise the carers either to contact the local authority or, with their permission, refer them to the local authority for an assessment. That directly addresses the concern expressed in the amendment.

Provisions in the Care Bill provide a lower threshold for a carer’s assessment than exist now. We propose to remove the existing requirement that a carer should be providing, or intend to provide, substantial care on a regular basis. Instead, the local authority will be required to offer a carer’s assessment where there may be a need for support. That is the only bar that needs to be cleared—a very low one.

Where the person whom the carer supports is being assessed for NHS continuing care and wishes their care to be delivered in the community, the local authority is likely to regard the carer as needing to be supported. A carer’s assessment would then be triggered. Clause 10(5) already requires a carer’s assessment to include an assessment of whether the carer is able, and likely to continue to be able, to provide care for the person needing care. Importantly, it also requires an assessment of whether the carer is willing, and likely to continue to be willing, to provide that care.

Nothing prevents a local authority from carrying out its assessments jointly with those being carried out by other bodies. Indeed, I encourage that approach and hope that the better care fund will shift things in that direction. We expect that to happen, and that approach would be entirely in accord with the co-operation requirement in clause 6. It will be helpful to consider that circumstance further as we work with stakeholders over the coming months on drawing up the regulations that will set out further provisions on assessments.

Grahame Morris (Labour, Easington)

Before the Minister moves to the next amendment, will he clarify whether he intends to use part of the better care fund to set up the infrastructure for assessment?

Norman Lamb (Liberal Democrat, North Norfolk)

The better care fund sets out criteria on national conditions. There is a separate strand of funding in it for the preparation that local authorities will have to do to implement the provisions in the Bill.

Amendment 97 would introduce an unnecessary layer of regulation and potentially reduce flexibility in deciding how best to provide support. This is a complex area, and I do not entirely understand what the amendment seeks to achieve. That has nothing to do with the shadow Minister’s explanation, but it is not entirely clear, simply from looking at the amendment’s wording and its place in the clause, how it would work.

Meeting a carer’s needs will usually require providing some support direct to the carer, as one might expect. That may be in the form of a direct payment to allow the carer to purchase gym membership, or a laptop to keep in touch with others. However, depending on the circumstances and individual preferences, that may also include some type of care directly to the adult needing care, even though it is aimed primarily at the carer’s needs. I hope that the Committee is reassured that neither of the amendments is necessary and that hon. Members will feel able not to press them.

Liz Kendall (Labour, Leicester West)

I am grateful for the clarification on NHS continuing care, to which amendment 92 relates. I shall therefore be happy to withdraw the amendment. However, perhaps the Minister can clarify, first, whether a carer would be charged not just for their break, but for the service that replaces them when they are on their break. Secondly, when a council supplies that replacement service, will that adult—and especially disabled adults—still have the choice and control over that service? We do not want councils to supply replacement services that are not what that disabled person wants. Those are the two issues on which I wanted a bit more clarification from the Minister, either now or in a letter.

Norman Lamb (Liberal Democrat, North Norfolk)

I am happy to write to the shadow the Minister to try to clarify all this further, but the carer would not be charged for care provided to the person they are caring for, to enable them to take a break or whatever it might be. In answer to the hon. Lady’s second question, I would want to ensure that the same degree of attention was paid to the individual’s needs and wishes, rather than any determination or assumption being made by others about what they need. That is at the heart of the Bill. I will happily write to her to expand and develop that point further.

Liz Kendall (Labour, Leicester West)

I am grateful to the Minister for that helpful clarification on those two points. I can imagine constituents coming into my surgeries worried about this if it is not absolutely explicit. It would be great if the Minister could write to me. On that basis, I beg to ask leave to withdraw the amendment.

Clause 11 - Refusal of assessment

Norman Lamb (Liberal Democrat, North Norfolk)

Clause 11 states what must happen where an adult or a carer refuses to have a needs or carer’s assessment. It is important to make the point that as long as a person has the capacity to do so, they should be free to choose whether their needs are assessed and whether to have their needs met after an assessment. We should respect the individual’s right to choose, and this clause retains that right.

There are some exceptions, which I will cover a little later. In the majority of situations, we do not expect this clause to apply. However, there may be some circumstances, such as where people who have been referred to the local authority from elsewhere do not agree that they need care and support. These people should have the right to refuse that assessment, which acts as the gateway to the care and support system, and the system should respect this right.

The clause also protects the interests of the local authority. Owing to the nature of care and support services, it would be extremely difficult and completely inappropriate to force care and support upon someone who did not wish to receive it. However, an adult who has previously refused a needs assessment retains the right to approach the local authority at a later date and to request an assessment, even if they refused one earlier. Under these circumstances, the local authority is required to provide an assessment in the same way as it must for any other person.

As I mentioned earlier, there are some exclusions from this right of refusal, which I shall turn to next—

Jim Shannon (Strangford) (DUP) rose—

Grahame M. Morris rose—

Norman Lamb (Liberal Democrat, North Norfolk)

I give way first to the right hon. Member for Strangford.

Jim Shannon (DUP, Strangford)

Just “honourable” will do. Is there a procedure in place for members of a family who are concerned for a relative to the extent that they fear that the person’s health would be detrimentally affected by not having an assessment and getting the help they need, even though the individual can make up their own mind?

Norman Lamb (Liberal Democrat, North Norfolk)

I apologise for inappropriately promoting the hon. Gentleman. Where a family has concerns, it would be entirely appropriate for them to raise them with the local authority. Indeed, the Bill will create in statute adult safeguarding boards, so such concerns could be raised through that mechanism. I hope that addresses the issue the hon. Gentleman raises.

Grahame Morris (Labour, Easington)

This was a major discussion point in the Joint Committee led by the right hon. Member for Sutton and Cheam. For illustrative purposes, could the Minister share with the Committee an example of the sort of situation where an individual might refuse such an assessment?

Norman Lamb (Liberal Democrat, North Norfolk)

It is simply that some people regard themselves as very self-sufficient. They do not want to interact with the local authority. They have capacity and are steadfastly determined to do their own thing. In our society, they have the right to make that decision.

As I mentioned earlier, there are some exclusions to the right of refusal, which also helps to address the hon. Gentleman’s intervention. First, if the adult lacks capacity, the local authority must carry out the assessment if it believes that that would be in the adult’s best interests. Secondly, the local authority must carry out the assessment if the adult is experiencing, or is at risk of, abuse or neglect. These exclusions provide an important safety net to ensure that vulnerable members of society are fully assessed and, if necessary, provided with the appropriate care and support.

Clause 12 - Assessment under sections 9 and 10: further provision

Liz Kendall (Labour, Leicester West)

I beg to move amendment 86, in clause 12, page 11, line 47, at end insert—

‘() specify when an assessment must be carried out face to face.’.

Clause 12 sets out some further issues in relation to the assessment of adults for services and support. The amendment would ensure that the regulations that the Government will be bringing forward on how assessments are carried would specify the kinds of cases where assessments must be conducted face to face. Amendment 87 would ensure that local councils work closely with organisations like the Alzheimer’s Society and others that have a track record in knowing how to get the best possible assessments of people for care and support. This might seem like a minor issue, but getting the assessment right is vital. If the assessment is right, everything can then flow from that.

Emma Lewell-Buck (Labour, South Shields)

Does my hon. Friend agree that without a face-to-face assessment, serious safeguarding issues may be missed? How can assessments be done over the phone? Unless a person is seen in their environment or their home, it is not possible to know what is going on with them.

Liz Kendall (Labour, Leicester West)

My hon. Friend hits the nail on the head. In some cases it might be possible to do an assessment over the phone, but I know from my family’s experience that even issues that should be relatively straightforward are not. Often older people do not want to admit that they are struggling or have any issues or problems. They do not want to say that they might need a few home adaptations, and that might be in a relatively straightforward situation. However, I know from my family experience that when one goes to the house and sees the conditions, one realises straightway that this person is struggling—they are looking a bit stressed, worried and concerned. They do not want to ask for that help, but it would really benefit them, as the family carer, and the person they are caring for.

I am all for using technology for assessments—not that we would necessarily think a telephone was technology these days, although we might call our smartphones technology. However, although I am all for using IT, phones and the like, I am concerned that unless we specify that there are many cases in which face-to-face assessments are essential, we will end up with a tick-box approach that does not meet people’s needs. I know that the Government hate that kind of approach.

Let me turn to advice lines. They are a separate matter, but offer an illustration of an issue relating to amendment 87. We need advice lines to offer help from people with specific experience and expertise.

Bill Esterson (Labour, Sefton Central)

To reiterate the point about using evidence from previous campaigns, does my hon. Friend agree that the evidence of encouraging older people, over many years, to take up the benefits to which they are entitled shows exactly the same point? Unless people are prepared to go and see people, and particularly older people, they are reluctant to sign up for benefits, because there is a reluctance, a pride and a misguided desire not to impose on others. We have had evidence of that already for many years in a number of areas, including benefits. This assessment could have the same impact.

Andrew Rosindell (Conservative, Romford)

Order. I will clarify for the shadow Minister that we are dealing with amendment 86, not amendment 87, which we will come to next.

Liz Kendall (Labour, Leicester West)

I thank our wonderful Chair. I was trying to deal with both amendments to move on swiftly, because the two are related, and I forgot the specific procedures of the Committee for a split second. I shall stick to face-to-face assessments.

My hon. Friend has raised an important issue. We have seen the impact of not having that kind of face-to-face advice in a number of areas, not just social care. This is not simply a matter of making sure that people get the right help and support, absolutely central though that is; it is also about value for money. If the assessment is not good and does not identify a person’s needs, and if that person does not get the right help and support, we will not help people to continue living in their own homes, which is exactly what they want and what taxpayers need to make sure that we get the best value for taxpayers’ money.

Most importantly, we need to make sure that face-to-face assessments take place for people suffering with dementia. Dementia is still a frightening condition for many families and there is still too much stigma associated with it: people are worried and embarrassed if a loved one is struggling with dementia. Our concern is that if light-touch assessments are too generic and are not carried out face to face, people will not receive the best possible help and support. Amendment 86 seeks to ensure that when the Government come forward with regulations, they contain a substantial chunk about when face-to-face assessments are appropriate.

The Alzheimer’s Society and other organisations have pressed us on this issue; I hope the Minister either accepts the amendment or gives a clear response about what will be included in the regulations.

Grahame Morris (Labour, Easington)

As well as supporting the points made by my hon. Friend the Member for Leicester West on dementia and Alzheimer’s disease, and the importance of a face-to-face interview as specified in amendment 86, I want to say a few words about autism and the importance of ensuring that assessments are complete. The amendment would require the Government to come forward with further regulations about assessments. I have met local representatives of the National Autistic Society in my constituency. They raised particular concerns with me about the operation of guidance in the Autism Act 2009: that when assessments are made the assessors are trained in understanding autism.

The term “autism” is fairly broad and when I talk about it I refer to all conditions on the spectrum, including high-functioning autism, Asperger’s syndrome and classic autism. Like others, I welcome the Government’s amendment to the Care Bill that was brought forward in another place, enabling the development of regulations that specify where community care assessments should be carried out by assessors with specific expertise. We touched on this a little earlier. However, although this was debated in the other place, it is still unclear whether autism will be included in the regulations. Perhaps the Minister can help.

Proper assessments are needed so that people with autism receive the right support that will meet their needs and, as we just heard from my hon. Friend the Member for Leicester West about people with dementia and Alzheimer’s disease, these needs are often hidden and difficult to identify. I understand that autism is a complex condition. Some people are able to live relatively independent lives, but others suffering from a more acute form of the condition may need ongoing specialist support or more low level support. As well as a knowledge of the difficulties that a person with autism can face, I would argue that an assessor needs specific skills to carry out the assessment successfully.

In the statutory guidance published after the passage of the Autism Act in 2009, the Department of Health provided clear direction that autism training is essential for community care assessors to ensure the needs of adults with disabilities are fairly assessed. What we seek in this amendment is an assurance that the regulations for this Bill will look at the specific needs of adults with autism in line with that guidance. The statutory guidance states that an assessment should be carried out by “trained practitioners” who have a “good knowledge of autism” and should take account

“of the communication needs of adults with autism”.

The guidance also states that local areas should develop or provide specialist training for those in key roles that have a direct impact on access to services for adults with autism. These could be GPs or community care assessors, so that

“within each area, there are some staff who have clear expertise in autism”.

I am not saying that everybody has to be trained, but otherwise—I hate the expression “pin the tail on the donkey”—but we could end up with a postcode lottery.

In order to meet these duties, assessments need to be carried out by specialist assessors, so there is a need to reinforce the recommendations of the statutory guidance. National Autistic Society research found that just over half of English local authorities had specialist training available for their staff. There is clearly a deficiency that needs to be addressed.

I recognise that the Government’s proposed new regulations present a opportunity to stop poor community care assessments for people with autism, or at least address that deficiency. Too often those needs are not identified and, as my hon. Friend the Member for Leicester West pointed out, it is not purely for altruistic reasons, or because of complaints, that we need to do this. If we do not pick up these needs and provide an appropriate level of support, the consequence for the public purse is often very much more when these people default either to hospital or other institutions for more expensive in-patient care. There are complex and variable ways in which autism can affect a person’s ability to function in everyday life and engage effectively with an assessment process. As is the case with those who suffer from dementia, it is often difficult to interact with someone who has autism and to find out what their needs are. Those of us with local authority backgrounds know that it has proven difficult for non-specialist assessors to understand and respond to those challenges.

I am grateful to have the opportunity to raise this issue. I ask the Minister respectfully whether he agrees that regulations requiring specialist arrangements for those with autism would reinforce the existing requirements in the Autism Act 2009. To that end, will he confirm that autism will be included in the regulations and guidance that he issues?

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I rise to make a couple of points in support of the amendment. I support what my hon. Friend has said about the importance of face-to-face assessments for families caring for those with dementia. I have personal experience of the issue because my mother died of Alzheimer’s disease last year, and I got a very different perspective on the problems that my stepfather faced over the phone than I did when I was actually there. A telephone conversation does not give any sense of how someone is dealing with the circumstances that they face. A face-to-face assessment is absolutely vital.

I had a visit from a constituent who is Hungarian, for whom English is a second language. Her son came to the surgery to represent his mum’s views. She was caring for her husband who was in the late stages of Parkinson’s disease and she had chronic back problems, but she was not able to communicate the issues that she faced on a day-to-day basis, so she was managing stoically. I was able to make representations on her behalf, but that should not be necessary. I emphasise the importance of a face-to-face assessment and someone who can speak the appropriate language in such circumstances.

Norman Lamb (Liberal Democrat, North Norfolk)

I will pick up quickly the points made by other hon. Members before I move on to the shadow Minister’s speech. I am grateful to the hon. Member for Easington for raising autism, and he made a good point. To return to the discussion with the hon. Member for Sefton Central about the power of legislation, we are in quite a good position with the Autism Act and the autism strategy that underpins it, but we know that implementation is patchy. We have a long way to go before people with autism are treated properly by the health and care system.

I was pleased to hear from my hon. Friend the Under-Secretary that he hopes the refresh to the mandate for Health Education England, on which he is working, will contain something specifically focusing on autism and the need to improve the understanding and awareness of health professionals and others about such issues. The hon. Member for Easington will be aware that we are currently undertaking a review of the autism strategy, and he should feel able to contribute to that if he wants to. He may already have done so.

We must do more to implement the Autism Act and the underpinning strategy locally. In clause 12 we have the power to ensure that the assessment is “appropriate and proportionate”, which includes ensuring that the assessor has the appropriate experience of carrying out specific assessments, such as on autism. They can also consult people who have experience in that area. I refer in particular to clause 12(1)(f), which refers to the ability to consult a person with expertise, so that issue is specifically addressed.

We have also been consulting on specific groups, in terms of the regulations. We have identified and been clear about deaf-blind people, but we have asked about other groups that it may be appropriate to consider in that regard. The hon. Gentleman made the point about autism and that has been noted.

The amendment would provide for a power that specifies when an assessment must be carried out face to face. We believe that local authorities should be given the flexibility to determine how assessments are carried out on a case-by-case basis. The clause as drafted provides power for regulations to make provision to ensure that assessments are carried out in

“an appropriate and proportionate manner”,

which is the phrase that is used. The regulations that we intend to make will require local authorities to consider the adult or the carer—whomever the assessment is done on behalf of, or with—their preferences and the extent of their needs to ensure that the assessment is both appropriate and proportionate.

Bill Esterson (Labour, Sefton Central)

The Minister has not come on to the point put to him by several hon. Members about the need for a face-to-face assessment. He made the point that the decision should be taken by the person being assessed, or presumably, their carer. Will he say a bit more about that? Does he accept that sometimes—my hon. Friend the Member for Oldham East and Saddleworth made this point from personal experience—the individual is not best placed to judge their situation? Does he feel that there is a time when there is perhaps a need for intervention of some kind that insists on a face-to-face assessment?

Norman Lamb (Liberal Democrat, North Norfolk)

I completely accept that. The point was made by the hon. Member for Oldham East and Saddleworth and by the shadow Minister about the risk sometimes in not getting the full picture by telephone, and I understand that completely. The point I am making is that I think that it needs to be done on an individual basis, and not mandated for specific categories of cases, because I think we could end up with unintended consequences. There will be cases in which an appropriate and proportionate approach can be delivered only by a face-to-face assessment. I completely accept that. Was the shadow Minister waving her hand in agreement, or did she want me to give way?

Liz Kendall (Labour, Leicester West)

I wanted to intervene. I really want to press that issue, because of my personal experience of somebody in my extended family, who is in their 70s, who has had multiple different problems with cancer, and who is looking after somebody else in their late 70s who has had multiple heart failures and heart operations, and who now has Alzheimer’s. An assessment was given over the phone. The person who I am referring to was so worried about coming forward anyway, because they thought that it was embarrassing for the family member to have dementia. She did not question the phone assessment and I said, “Why on earth are you having a phone assessment? Why is that person not round there?” It was done on the phone, so this is already happening. We do not want to specify individual groups of people, laying down in detail every single person, but this is happening and it is a problem already. Council budgets are being squeezed and as ever more carers are going to be assessed under the Bill, the problem will get worse. That is not good for anyone and I do not feel that I have enough crunch from the Minister about what he will do about it.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful for that intervention. I would say that the circumstance that she describes does not meet the test in the clause, in that the assessment must be appropriate and proportionate. She describes a complex set of circumstances in which a proper and thorough assessment would absolutely be needed.

Other hon. Members have made points about the type of assessment. The assessment that we are legislating for here is not just a question of “Do you pass or fail a eligibility test?”. It has a much richer purpose than that, which is to identify what can be done to reduce the deterioration of a condition and what can be done to help an individual and their family to support themselves—a point made by the hon. Member for Sheffield, Heeley last Thursday. That is what we should seek to do; not just offer replacements, but help people to manage and build on their assets and their abilities, to help them be more resilient. With a thorough assessment, we possibly end up achieving a saving further down the line. A rushed box-ticking exercise is a false economy. As the shadow Minister says, the Government are focused on getting rid of tick-box exercises that achieve nothing, other than satisfying the Government inspector.

I am with the shadow Minister completely on the importance of proper assessments taking place, but I do not think it makes sense to mandate specific circumstances. I am clear that face-to-face assessments are appropriate in many complex circumstances.

Grahame Morris (Labour, Easington)

I am grateful to the Minister for giving way. I do not doubt his sincerity or integrity. I listened carefully to the assurances he gave. I understand the reluctance to place a firm commitment to face-to-face assessments in the Bill. Is it possible to achieve the same ends through fuller guidance? What is running through my mind are the debates we had on the 15-minute care visits. They should not be standard practice. There is an argument over whether they are reasonable or not, but rather than outlaw them, because there might be circumstances in a small minority of cases where there is some merit in them, we—

Andrew Rosindell (Conservative, Romford)

Order. May I remind the hon. Gentleman that he is making an intervention, not a speech?

Grahame Morris (Labour, Easington)

I am trying to ask whether the Minister could confirm the matter in guidance.

Norman Lamb (Liberal Democrat, North Norfolk)

To respond to that neat and concise intervention, I am sure that we can develop the guidance further.

Liz Kendall (Labour, Leicester West)

That is what amendment 86 says. Clause 12 says:

“Regulations must make further provision about carrying out a…assessment”

It then lists things that those regulations should do, to which the amendment adds,

“specify when an assessment must be carried out face to face.”

We are not saying, “Put it on the face of the Bill.” We are saying that the regulations must include it. I do not mean to be pedantic, just accurate.

Norman Lamb (Liberal Democrat, North Norfolk)

I give way to the hon. Member for Sheffield, Heeley.

Meg Munn (Labour, Sheffield, Heeley)

May I draw the Minister’s attention to an issue that also affects the whole process of assessment? Too often, the people who are in need of care, as the shadow Minister has said, have no idea what is out there. An assessment should be a proper assessment of need, rather than, “Do you need shopping?” or “Do you need personal care?” Getting to a point where there is a proper understanding that the assessment is about need, and therefore asking someone one or two questions over the phone will not suffice, is fundamental to doing it properly.

Norman Lamb (Liberal Democrat, North Norfolk)

I absolutely agree. It must be a proper and thorough assessment of need, as the hon. Lady says. If I may, I will respond to the shadow Minister’s intervention, which came before that of the hon. Member for Sheffield, Heeley. Whether the circumstances in which assessments should be face to face are mandated in the Bill or in regulations, the amendment still mandates such assessments. There will still be a regulatory requirement. That is the point that we are making and indeed resisting. I will give way to my right hon. Friend.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful to the Minister; he is being very generous.

Norman Lamb (Liberal Democrat, North Norfolk)

Too generous.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am sure that others assessing the Minister’s performance might conclude that. I want to say that guidance is good, but it is not sufficient. It is not sufficient even to have it in regulations or in statute; it is essential to have it in heads and hearts. Practice has to change to reflect the difference that the legislation will bring about: an asset-based rather than a deficit-based approach; a focus on outcomes; and a future focus rather than a focus on needs in the here and now. Such things require a significant shift in training. Can the Minister tell us what discussions he has had and what discussions he intends to have with the College of Social Work and others responsible for setting curricula in this area, because this is about the training of the future generation of social workers and the retraining and reskilling of the existing ones who will be doing assessments under this legislation?

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to my right hon. Friend for elevating us to a higher plane for our aspirations. I am not being rude to the shadow Minister, but my right hon. Friend talks about the need for the culture shift, and I completely agree with him on that. It is a hearts and minds thing, and the training of social workers is central to that. I can assure him that we will have discussions with the College of Social Work and others to ensure that training is consistent with what we are trying to achieve.

We have heard that people’s needs are often complex and should be considered locally on an individual basis. Face-to-face assessments are likely to be suitable in many cases, but they should be determined according to presenting needs and the details of the cases. They should be decided by the local authority, which will be best placed to do so. What is suitable in one case may not be so in another, so the amendment provides for over-prescriptive regulation-making powers. That is always a temptation, I know, for the Labour party—sorry. We believe that local authorities should retain the flexibility to consider each case individually when determining how the assessment is to be carried out. As I have stated, what is most important is that assessments are “appropriate and proportionate”—the wording in the clause—to the person’s needs and outcomes. We believe that that will allow for more effective assessment.

I hope that Opposition Members will agree and feel reassured that the clause as drafted ensures consistent practice in the assessment process, and will withdraw the amendment.

Liz Kendall (Labour, Leicester West)

The reason why I have spoken about this issue is that I saw a phone assessment done and was very angry about it, because it was not fair or right. We need to change that, and of course we need to change the practice on the ground. No one wants to be over-specific in the legislation. If the Minister will not accept this amendment, which is about what the regulations will cover, but will at least confirm that the issue of face-to-face assessment will be mentioned in the guidance that is put out, or anywhere in the regulations, so that councils will consider it, I will be happy to withdraw the amendment.

Norman Lamb (Liberal Democrat, North Norfolk)

I am happy to reassure the shadow Minister that that will be more than mentioned. It is important. One point that we should remember is that there are plenty of face-to-face experiences that people have that are also deeply disappointing and that do not achieve their aim. If someone is not listening and understanding and is going through a tick-box exercise, a face-to-face assessment can be just as bad. As my right hon. Friend the Member for Sutton and Cheam says, this is more about elevating the whole culture and having it much more person-focused to ensure that people’s needs are understood and then addressed.

Liz Kendall (Labour, Leicester West)

I beg to ask leave to withdraw the amendment.

Clause 12 - Assessments under sections 9 and 10: further provision

Liz Kendall (Labour, Leicester West)

I beg to move amendment 87, in clause 12, page 11, line 47, at end insert—

‘() require joint working with organisations with appropriate expertise in exercising local authorities’ functions under sections 9, 10 and 11.’.

Thank you, Mr Bayley, and welcome back to the Chair. I will try to be brief. Amendment 87 would ensure that local councils must work with organisations with appropriate expertise when exercising their function under clauses 9, 10 and 11, which deal with how adults who need care and family carers are assessed. I touched on those matters in my comments before lunch. The reason why local councils must work with other local organisations with relevant expertise is that we know that many community and voluntary groups—including the Alzheimer’s Society, Age UK, disability organisations such as Scope and Mencap and organisations such as the National Autistic Society and the Royal National Institute of Blind People—have local branches in or close to our constituencies. They have a huge wealth of expertise on which local councils must draw when they assess the people who use services and the needs of family carers.

I think the Minister will agree that that is important, and we wanted to specify that the forthcoming regulations will include that in the guidance. Many councils already try to do so. I know from my experience that local councils are under a lot of financial and time pressure, but unless we ensure that the regulations and the guidance that accompanies them specify that they should work with local organisations, I am concerned that some councils—not my own, of course—will take a quick-fix approach and try to do everything themselves without drawing on the wealth of local expertise. That is the point we are making in amendment 87, and I hope the Minister will agree that the issue should be covered in the regulations and guidance.

Norman Lamb (Liberal Democrat, North Norfolk)

Thank you, Mr Bayley. It is so good to be back after our brief sojourn in the Chamber for Health questions. I hope the shadow Minister accepts the genuineness of my position when I say that I am completely with her regarding the sentiment of the amendment, but we believe that the Bill already provides for what it argues for.

We agree that it is important to encourage local authorities to work alongside all the brilliant organisations that she referred to in the third sector that can contribute to the assessment process. As drafted, the clause provides for a power in regulations that requires local authorities to carry out assessments jointly with an expert or a person of any other specified description in specified circumstances. These will include assessments of deaf-blind people, but we are consulting on what further groups or circumstances the power should apply to. It will ensure that local authorities use relevant expertise to support effective assessments.

Paragraph (f) also provides for a further power allowing local authorities to work jointly with or consult an expert or person of any other specified description before or during the assessment process. That will allow local authorities to engage with individual experts from third sector organisations to assist them in the assessment process. More generally, in clause 78, the Bill allows local authorities to delegate their functions to third parties. Sometimes, outside organisations might be better placed than the local authority itself to carry out some of its care and support functions. For instance, an outside organisation might specialise in carrying out assessments for certain disability groups where the local authority does not have the in-house expertise.

A combination of those provisions already offers sufficient scope to ensure the joint working that the hon. Lady rightly argues for. Indeed, our provisions would go further by being able to require joint working in specified circumstances, rather than providing a more general requirement to work together as in the amendment. That will achieve partnership approaches more focused on the issues and individuals of greatest importance. I therefore hope the shadow Minister agrees that the Bill’s existing provisions meet the objective she seeks and will withdraw the amendment.

Liz Kendall (Labour, Leicester West)

I thank the Minister for his comments. I am grateful for his putting on the record that local councils should draw on expertise from relevant organisations that work with old and disabled people. As long as that is properly reflected in the guidance, I beg to ask leave to withdraw the amendment.

Clause 13 - The eligibility criteria

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 37, in clause 13, page 13, line 31, leave out subsection (7) and insert—

‘(7) Needs meet the eligibility criteria when—

(i) there is, or will be, an inability to carry out several personal care or domestic routines and/or

(ii) the individual will be unable to maintain control over several aspects of their day-to-day life or;

(iii) involvement in several aspects of work, education, training or recreation cannot or will not be sustained; and/or

(iv) several domestic, family and personal relationships cannot or will not be sustained; and/or

(v) there is a risk of abuse or neglect,

(a) they form part of a combination of needs described in paragraph (a).’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss amendment 94, in clause 13, page 13, line 36, at end add—

‘(9) The regulations in subsection (6) are subject to the affirmative resolution procedure.’.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Clause 13 is a pivotal part of the Bill’s architecture. It is the mechanism by which this and future Governments will determine the line that will be drawn on eligibility and access to state support for care needs. It is a critical part of the Bill, and we need to focus on getting it right now and for the future. We must also bear in mind the interaction of the clause with clauses 10 to 12, which deal with the shift that was set out in the White Paper and reinforced by the Bill and a number of changes made after Joint Committee scrutiny and during consideration in the Lords. They recognise that the assessment process and eligibility need to be focused on how we achieve the right outcomes, and how that is centred on a person’s well-being. This is much more about focusing on people’s strengths and their support networks and so on.

Clause 13 provides that legal power for setting the eligibility threshold that represents the minimum requirement for access to state-funded support. It marks an important shift from a system where eligibility was determined locally with reference to statutory guidance, but was none the less an environment in which it was clear that access was a lottery. Different authorities made different choices, some perverse, some rational; but as a result, determining whether one got state support for social care needs was a lottery. Integration of NHS services with social care was made that more complicated. We are moving to a system where the threshold is set at a national level with reference to regulations.

The second volume of the Dilnot commission report makes the following statement about the current eligibility criteria, which were put in place in February 2010:

“It is our view that there are problems with the current FACS scale, and we believe that it should be replaced in the future with a more objective scale—one which can be the basis of a clearer, fairer and more coherent social care system.”

That is what I seek to debate through the amendment. I want to raise a number of issues that have been brought to my attention—and, I am sure, that of other Members—by charities, not least Scope, but also others in the Care and Support Alliance. They are concerned about how we ensure that the eligibility system works well for those they represent.

How do we set in place a new way of judging eligibility that reflects the well-being principle in clause 1? Let me give some context. In 2005, 76 local authorities set their eligibility rules at the moderate level, and around 70 set it at the substantial level. That was out of the 152 local authorities in England that have social services responsibilities. By 2009, things had shifted significantly—from 76 to just 38 at the moderate level, rising to 108 at substantial. The trends were there and the lines were crossed between 2005 and 2009.

In 2008, the Commission for Social Care Inspection identified a number of trends and challenges. It mentioned tightening eligibility criteria as not being an effective way of managing demand for support, and produced evidence to show that doing so did not manage demand very well.

Grahame Morris (Labour, Easington)

Will the right hon. Gentleman give way?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Let me just finish my point and I will be more than happy to give way to the hon. Gentleman. I thank him for putting his name to the amendment.

The Commission for Social Care Inspection also said that an eligibility-based framework increases the likelihood of front-line staff assessing for bands and services, rather than assessing people’s situations according to need and risk to independence. That is another thing the Bill is trying to change.

Grahame Morris (Labour, Easington)

I am grateful to the right hon. Gentleman for giving way. He is making some important points about trends and the pressures and demands, not least because of a growing elderly population and the effect that has on core mobility for some. Does he recognise that since 2010, substantial reductions in allocations to local authorities have affected their ability to deliver social care and support? According to the figure cited today in Health questions, £1.8 billion has been cut from social care budgets since 2010.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I certainly acknowledge the point about that trend continuing. As I understand it, whereas in 2009 we had reached 38 local authorities providing services at the moderate level, the trend has meant that today the figure is 16. From memory, 138 local authorities have now set the eligibility level at substantial. The trends are there and will clearly reach a point where the vast majority of authorities have set the level at substantial.

Bill Esterson (Labour, Sefton Central)

I completely agree with the right hon. Gentleman on the need somehow to find a way of setting the criteria at moderate. Does he accept the figure cited by the London School of Economics—that some £2.8 billion would need to go back into local authority social care in order to achieve that objective?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

There are a variety of estimates. The Personal Social Services Research Unit has produced an estimate based on the work it has done for Scope, which I was going to come on to. If I may, I am going to develop that point, because it is important in considering how we solve the conundrum of working within the Government’s spending limits and the implications such limits have for how the policy is taken forward.

The Dilnot Commission argued that an urgent review of eligibility was needed that looked at the views of users and carers, at academic research and at international experience. Clearly, that will take time. A review has already been started, about which I hope the Minister will be able to say a little more in a moment. The Dilnot Commission recommended setting eligibility at substantial as a temporary measure, pending the full review that it will recommend in its report.

When the draft Bill Committee considered the Dilnot Commission’s proposals, particularly the recommendation on changing the nature of eligibility and how it is assessed, we strongly supported that recommendation and made a number of our own in our report. In fact, we called for the early publication of the regulations setting the first national eligibility threshold, and for a consultation on the draft. I was grateful to the Government for publishing the regulations, and the consultation ended in November. It would be good if the Minister told the Committee what the next steps are on the formulation of a set of new eligibility criteria.

Also, I thank Scope and members of the Care and Support Alliance for the work that they have been doing to highlight eligibility, which I think is the reason why so many hon. Members—on both sides of the Committee—have signed the amendment. Those organisations have commissioned some very detailed work from the Personal Social Services Research Unit, which reveals the impact of tightening eligibility during the past decade and the impact of future generalised tightening of eligibility. Rightly, Scope points to the economic modelling by Deloitte that suggests that earlier intervention at what is currently called the moderate level would make better use of resources. Indeed, Deloitte estimates that central Government would save £700 million and that local authorities and the NHS would save a further £570 million if there were intervention at that point.

Norman Lamb (Liberal Democrat, North Norfolk)

I do not know whether my right hon. Friend has had a look at the Deloitte study, but it is clear that its costings are pretty speculative. They are based on very small case studies, and on comparing different studies and trying to conflate them. That is not to suggest in any way that it is not a valuable piece of work, but we have to treat it with some caution.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is absolutely right to treat the study with caution and the Treasury would be even more likely to do so; I understand that only too well. However, that gives rise to a question: why has the Treasury, regardless of administration, not done the work to establish a model on which we could base decisions about investment in preventive social care? We had recommendations from Derek Wanless when he did work for the previous Administration to build the case for increased investment in the NHS, which said that there should be a similar piece of work done for social care. That was never commissioned, but it is something that we need, because it would provide a more objective basis for some of these debates about funding social care.

Norman Lamb (Liberal Democrat, North Norfolk)

I completely take my right hon. Friend’s point about the need to understand better the impact that one can have by investing more in preventive care. I hope that he will be pleased to hear that there will be a thorough scientific evaluation of the integrated care pioneers, so that we can see clearly the effects of this very different model of care that is being used in those areas.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am not pleased—I am delighted to hear that that is the case. Again, I congratulate the Minister on his leadership in this area, not least because we have a very different approach with the pioneer programme. It is not piloting, but implementing measures, at scale and pace, in several areas, and then using them to pull the rest into the change of approach that we want to see through the better care fund. That is absolutely right and I welcome that evaluation.

Amendment 37 attempts to blend the well-being principle in clause 1 with the approach taken in the current fair access to care services guidance about the definition of “moderate needs”. Back in 2008, the Commission for Social Care Inspection argued for a change of approach. It proposed a shift of thinking, away from a narrow focus on FACS criteria to—again—an asset or strength-based approach. Its report said:

“Decisions about eligibility should primarily be based on barriers to people’s dignity and quality of life.”

In other words, decisions should be based on people’s well-being.

The Commission for Social Care Inspection proposed “three priorities for intervention”. They were:

“Immediate intervention: required when without immediate support a person’s wellbeing would be seriously threatened. Early intervention: where problems are likely to develop and threaten a person’s independence within six months….Longer-term intervention: where people’s independence would be threatened within the year without intervention.”

In other words, it proposed changing the focus to maintaining independence rather than supporting increasing dependency. Unfortunately, that approach was not adopted in the guidance that was issued in February 2010, although that guidance took some important steps forward.

The Dilnot commission said:

“FACS is a blunt tool for adjusting the generosity of the system.”

It points to the work by the Audit Commission that found that FACS levels used by local authorities actually had little effect on average social care spend. There are other factors at play when it comes to how much local authorities are choosing to pay in social care spending. I am sure that we will debate those in Committee.

We have already established that the prevention duty in the Bill is not contingent on the eligibility threshold set out in clause 13, but that clause gives people access to a number of legal rights around care planning and personal budgets. Prevention duty does not do any of that. It is a duty that stands on its own, so I would be grateful if the Minister commented on how the Government intend to ensure that the prevention duty is made real on the ground, and is not just something that continues to have lip service paid to it.

In drawing my remarks to a close, I want to ask the Minister what work has been done to understand how the draft regulations compare with the existing substantial threshold in the current guidance governing eligibility criteria. My own local authority has done just that. It has examined the draft regulations, compared them with its current understanding of the extant guidance and concluded that they are not the same: that the regulations are more generous than the old “substantial”. I gather that the Association of Directors of Adult Social Services has concluded much the same.

That does not invalidate the arguments that Scope and others have made, but it points up the difficulties. I hope that the Government will continue to engage with Scope and other charities on these issues. I also hope that the Minister will seriously consider a complete overhaul of eligibility, to link it directly to the well-being principle and build on the work that the Commission for Social Care Inspection undertook. It is particularly important that it is made clear that the Government are open to this ongoing evolution of the way in which eligibility is to be assessed in the future. In a way, the regulations that have been published so far are just a staging post and they ought to be a short-term staging post to something that is much better and that much more genuinely reflects the Bill’s spirit and intentions.

My purpose in securing the debate through the group of amendments is to probe the Government’s intentions and seek further clarity about how they intend to use the regulation-making power and what guidance they intend to have sitting around it to ensure that the spirit of the Bill is translated into practice on the ground.

Liz Kendall (Labour, Leicester West)

I want to speak about amendment 94 and make some wider comments about clause 13 and the critical issue of eligibility criteria.

Amendment 94 essentially seeks to ensure that the regulations that set out who will be eligible for care under the new system should be subject to an affirmative procedure. I understand that this means that, when the regulations are published, they must be approved by a Committee in both Houses to become law. Without this amendment, the regulations might be subject only to a negative procedure, which would mean they would automatically become law unless there was an objection from either House. We have tabled the amendment because how we set the eligibility criteria will be absolutely central to the new care and support system and to the so-called cap on care costs—that is, the future funding of social care. It is essential that Parliament properly considers this before the regulations are introduced.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady is absolutely right that this should be subject to affirmative procedures. Does she therefore feel that this is adequately covered by clause 121(4)(a), which appears to provide for affirmative procedure for the eligibility part of the Bill?

Liz Kendall (Labour, Leicester West)

I hope the Minister will explain. I hope that the right hon. Gentleman does not expect me to explain or justify the Government’s measure. I hope that the Minister will do that.

Hugh Bayley (Labour, York Central)

Order. It may help the hon. Lady to say that, when she has concluded her remarks, she could obviously look at this particular point and, if she was minded to speak again, she could do so.

Liz Kendall (Labour, Leicester West)

Thank you, Mr Bayley. I hope that the Minister will respond to that in his comments. My point is that this is such an important issue that the regulations, which will set out the eligibility criteria, must have greater scrutiny. We are being asked to agree a Bill that will have implications for hundreds of thousands of elderly and disabled people before we have had a chance to scrutinise properly the eligibility criteria. That is the purpose of our amendment. I will say more about that later, but I want to make some wider comments, as the right hon. Member for Sutton and Cheam has done, about the eligibility criteria, which, along with the clause on the so-called cap on care costs, is at the core of whether the Bill will succeed in delivering care and support to the people who really need it.

The eligibility criteria and the cap on care costs are intimately related, but unfortunately many people have not yet realised that. I noticed that, when I said that on Second Reading, the Secretary of State turned to the care Minister and asked, “Is that the case?” It certainly is. Unless and until people are assessed as having eligible care needs, the money they spend on their care will not count towards the so-called cap. That means that hundreds of thousands of elderly and disabled people who are not defined as having eligible care needs because their care needs are not substantial will be paying out for home care and other types of care, and the money they spend will not count towards the cap. It will count towards the cap only if they meet the eligibility criteria. It is important that all hon. Members and, more importantly, members of the public realise that.

We need to be clear that the capped-cost model is essentially about helping people retain more of their savings and assets when they pay for their care—residential care, in particular—and protecting their savings from being wiped out by catastrophic costs. The eligibility criteria will ensure that the people who need care and support actually get it. How those criteria are set will determine whether older and disabled people get the help they need to remain living independently in their own homes and whether they can take part in family and community life. Crucially, the criteria will prevent problems from escalating. That is the key challenge for the future—for people who want to remain healthy and living in their own homes and for the public finances. Unless we keep more people fit, healthy and living in their own homes for longer, so that they do not have to go into expensive residential care or use expensive hospital services, the public finances will be under increasing pressure.

We are discussing health and care settings, but it is interesting to read the Office for Budget Responsibility’s fiscal sustainability report—it has published two so far. It says that the primary pressure on public finances in the future will be from our ageing population. We are all aware of the pressure of pensions on the public finances, but the OBR says that there will also be pressure from the NHS and social care. Unless we stay fit, healthy and working for longer, pressure will be put on the NHS and social care budgets, which, the OBR says, is the primary medium to long-term risk for the public finances. Opposition Members are determined to ensure that we have a decent care system and that our public finances are properly dealt with, and NHS and social care spending is absolutely essential.

Bill Esterson (Labour, Sefton Central)

I completely agree with my hon. Friend; it is crucial that we get the funding right. Does she agree that the Government should be calculating the financial impact of setting the eligibility criteria at different levels, looking at whether there is a long-term invest-to-save prospect, and at what level the eligibility criteria should be capped to achieve that? That is something that should come out of the Bill and, in particular, this amendment.

Liz Kendall (Labour, Leicester West)

I agree that, if we are to get the fundamental changes we need in our health and care system to improve care for those who use it and get better results for the public finances, we need to take not a short-term, salami-slicing approach, but a longer-term view about how we can get the best value for money for taxpayers. Later—possibly not today—we will come to some of our proposals on how we could achieve that by working with the Office for Budget Responsibility, because it could play an important role. My hon. Friend’s point, however, is essential.

Opposition Members welcome the proposal for clearer national eligibility criteria. That was included not just in the Dilnot commission’s report: the previous Government’s Green Paper on social care before the general election also called for clearer national eligibility criteria to be introduced to help reduce the difference in interpretation between different councils and the postcode lottery in services and support. I have a brief example from my constituency that brought that home to me.

A constituent came to me because his wife had had diabetes. She had ended up having her foot amputated, which is, unfortunately, all too common for people with diabetes. She was assessed by the council as needing some grab rails so that, essentially, she could hop into the bath to wash. They waited and waited for the grab rails to come. During that wait, which took nine months, her condition worsened and she ended up going into hospital. When she came back out, she found it difficult to move around at all and her daughters had to come round to wash her, which she found humiliating and her husband was upset by it.

Her needs escalated so much that the grab rail was no longer good enough. The council then said, “Okay, now you need a wet room,” which was much more expensive than a grab rail. It finally came around with the equipment to make the wet room, but that was four days after she had died. That was incredibly distressing for the family and I was extremely concerned about what on earth was going on.

When I spoke to the council, I was told that the woman had been defined as having substantial needs, but, even within that category, she was not a priority; that was terminally ill people, blind people and incontinent people. Different councils may interpret “substantial” differently, but the need for much clearer eligibility criteria is essential.

Norman Lamb (Liberal Democrat, North Norfolk)

Does not the shadow Minister’s case study describe awful, dysfunctional care? I am not disagreeing with her about the absolute need for clearer criteria, but plenty of areas around the country achieve that joined-up care and do not end up letting people down in the miserable way that she described.

Liz Kendall (Labour, Leicester West)

I absolutely agree that some councils are better than others. Actually, the point I make is to welcome clearer national eligibility criteria, which are important. We called for them when we were in government, the Dilnot commission called for them and now the Government seek to provide them in the Bill. I welcome that, but we also need to ensure that the eligibility criteria are set in the right way and at the right level. That is essential to achieving our goals, which the Government claim they want to achieve too.

Sarah Wollaston (Conservative, Totnes)

Will the hon. Lady please clarify that in the shocking case she has set out, the lady was already eligible? It was not an issue about her eligibility for care; it was more an issue of poor practice on the part of her local authority. If the hon. Lady were to visit Torbay—perhaps she already has—she would know that the policy of putting such things in place within 24 hours makes an enormous difference. That is why Torbay is very good at reducing avoidable admissions.

Liz Kendall (Labour, Leicester West)

I have visited Torbay and seen what they are doing there, which is excellent. There are issues of eligibility criteria and poor practice. However, I want to come to the key point about national eligibility criteria. Those are not the only thing that will deliver decent systems of care and support—it is important to have the criteria, but the practice matters too. It also matters at what level we set the eligibility criteria.

Clause 13 states that the new minimum threshold will be set out in regulations. The Government have published the draft regulations, with a proposed threshold broadly similar to the definition of “substantial need” that is currently in use. I cannot over-emphasise the real concern that exists. As Members will have read in most of the briefings they received, the big question raised by organisations that work with older and disabled people is about eligibility criteria. That is their key concern with the Bill. It is essential to be clear about those concerns.

Ministers in the other place have said that setting eligibility criteria at the level of substantial will not stop councils providing care and support to people with moderate needs. However, in reality, many councils will provide care and support based on those eligibility criteria. They will fulfil their statutory responsibilities, and the real concern is that people with moderate needs will lose out.

Andrew Griffiths (Conservative, Burton)

Everyone in the room supports the hon. Lady’s objective to cascade care and make it available to more people. We all want to see those with moderate care needs getting the support that they so desperately need. However, we also recognise that things have to be paid for in the real world. Is she genuinely saying that there is not a cost involved in cascading care down to those with moderate care needs? If she is not saying that, can she tell us what she thinks it would cost to change the eligibility criteria from serious to moderate?

Liz Kendall (Labour, Leicester West)

The hon. Gentleman will know that there is a cost in not providing up-front care and support, which I will come to. If we do not help people to stay at home, keep fit and live independently, they end up in more expensive residential or hospital care. We need to look at these matters in the round.

Andrew Griffiths (Conservative, Burton)

If that is the case, just so that I am clear, is the hon. Lady saying that if a criterion of moderate needs does not end up in the Bill, she would make it a manifesto commitment for her party at the next election?

Liz Kendall (Labour, Leicester West)

I am not saying that at this stage. We are concerned about the care that people are getting, but we are not making spending commitments. I am trying to make the point that we need to have a much clearer understanding of the costs and benefits of setting the eligibility criterion at substantial. That is the issue most raised by our constituents and the organisations, and it is only right to cover it in Committee.

The right hon. Member for Sutton and Cheam rightly said that we were already seeing a trend under the previous Government towards more councils delivering care only at substantial level. However, I think that trend is accelerating. Since the election, we have seen a 60% reduction in the number of councils providing care for people with moderate needs. Nine out of 10 councils provide care only to people with substantial needs. I believe the right hon. Gentleman was at Health questions earlier when my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley) said that Salford council had unfortunately had to reduce the support it provides, which will affect more than 1,000 people in her constituency. That is an issue of concern.

Norman Lamb (Liberal Democrat, North Norfolk)

Does the shadow Minister accept that the majority of councils that are at substantial were at that level by 2010? To follow on from the comments of my hon. Friend the Member for Burton, I understand the point about the manifesto commitment, but is the shadow Minister and the Opposition arguing now that the criterion should be set at moderate?

Liz Kendall (Labour, Leicester West)

If I said, “I want the criterion set at moderate”, it would be a spending commitment, which we are not making at this stage. I am making a case that has been raised with us by our constituents and organisations.

Members of all parties need to be honest about what is really possible in the Bill. It has some laudable aims that we support, such as moves towards prevention and well-being, but such moves are already extremely difficult and will become more so in future as local council budgets are further reduced. I am a strong champion of reform, and I believe that there is much reform that can be done. The Government proposals for integration do not go far enough. Integrating only £3.8 billion of a total NHS and social care budget of £120 billion is depressingly unambitious. We should not believe that the laudable aims in the Bill can be achieved through the package of reforms the Government are putting forward alone. We need to go further on integration and a whole load of other issues. At the moment, the aims of the Bill risk being meaningless unless the bolder reforms are put in place.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

One of my constituents came to my surgery on Saturday. Rebecca has been blind since birth. She is in her 20s and has had her care package cut from 13 hours to eight hours. She said to me, “As soon as I finish my meeting with you, my personal assistant will have to go home. I will not see anybody until Monday. I will not have any contact with anybody until Monday. I will not have any support from anybody until Monday.” Those are the practical considerations. She also mentioned her concerns about disability living allowance, which we talked about earlier. Does my hon. Friend agree that these things are happening to our constituents?

Liz Kendall (Labour, Leicester West)

As I said at last week’s sitting, we need to look at the context, particularly when we are thinking about working-age disabled people. That means looking not only at what the Bill says and does but at the Government’s other changes, particularly welfare reforms. Their combined effect on people has been profoundly concerning.

Another reason why I am emphasising the point about eligibility criteria is that it is essential for working-age disabled people. We need to remember that for them, the cap on care costs has never been the issue and is not now. Any extra funding from the cap on care costs will not benefit the vast majority of working-age disabled people, because for them the issue is about access to care and support. It is not about protecting their assets, their incomes or their savings in their homes.

Norman Lamb (Liberal Democrat, North Norfolk)

It may be.

Liz Kendall (Labour, Leicester West)

But not for most—the vast majority—and we need to be aware of that. The Government’s proposals in the Bill on the capped care cost model will benefit older people who have more substantial savings and assets in their home. When we debate a later clause, we will set out why we support any move that caps catastrophic care costs, but eligibility criteria are essential for working-age disabled people.

As Baroness Grey-Thompson said in the other place, the criteria and how they are set will mean the difference between disabled people getting the support they need for the basics of daily life—getting up, getting washed, dressed and fed, being able to get out and about in their community, being able to get skills, training and employment, and having a full and independent life with the same chances and choices as everybody else—or being trapped and isolated in their own homes.

Scope and other disability organisations say that four out of 10 disabled people already say their care does not meet their basic needs, and they have warned that if the threshold and the eligibility criteria are set too high, at substantial, as the Government currently plan, more than 100,000 disabled people will be shut out of the system and prevented from living independent lives with dignity.

We need to be aware of the choices that are being made in the Bill. Any extra money going into social care from the cap cost model will not benefit working-age disabled people. Let us not forget that a third of social care users are adults with a disability. We need to think about both issues together, but we should be clear about where the benefits currently lie.

Norman Lamb (Liberal Democrat, North Norfolk)

I am absolutely with the broad thrust of the hon. Lady’s remarks about the need for a big shift towards prevention and much earlier intervention, but I want to test whether there is anything between us. When I intervened on a speech that she was making on Thursday, asking her whether she was arguing for more money, she said it was a question of using the money more effectively and bringing health and care together—the integration argument. I agree with her on that. When challenged earlier by my hon. Friend the Member for Burton and by me, she made it clear that she was not making a commitment on the moderate level of need, so are we not in the same place? We all recognise the constraints on public finances, and that it is all about how we use the money more effectively to achieve better care and more preventive care, not about throwing more money at it—because there is none.

Liz Kendall (Labour, Leicester West)

I hate to disappoint the Minister, but before the next election we will present our proposals for health and care. Our job as Opposition Members is to scrutinise the Government’s proposals, to be clear about what they will and will not achieve, and sometimes, if the Minister does not mind my saying so, to point out what we believe to be the reality of the care system and to say whether we believe the Government’s objectives, as set out in the Bill, can be achieved. I am sure he will agree that that is part of our job as an effective Opposition. We will come forward with more proposals before the next election.

The difference between us is that Opposition Members have already put forward proposals for much bigger and bolder reforms—the full integration of health and social care. A £4 billion integration budget is unambitious. We would go far further. That would enable us within existing resources to get better care and better value for money for taxpayers. As I am sure the Minister would expect me to say, this Committee, fabulous though it is, is not the place for us to set out our full proposals for the next manifesto.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Will the hon. Lady give way?

Liz Kendall (Labour, Leicester West)

I shall make progress. I have taken many interventions, and at this stage the right hon. Gentleman is not going to get me to say more about our proposals.

It is not just disabled people who are affected. We know that there are concerns about whether older people are getting the help and support they need to stay living at home. Age UK says that 800,000 older people have a care need but currently get no support. We are starting to see the impact of reductions in social care for older people manifesting itself in more elderly people being rushed to A and E, being admitted to hospital, and getting stuck in hospital because they cannot get the help and support they need at home. Last year, £225 million was spent on keeping people in hospital because they did not have the care they needed in the community or at home. That money could have paid for a year’s worth of home care visits for more than 30,000 older people.

That spending has a range of causes. The Government’s big reorganisation has taken the health service’s eye off the ball, and local council social care budgets are having an impact. That is not good for families, for older people or for taxpayers. In the other place, the Minister understandably talked about the costs of providing care for people with moderate needs, but there are also costs of not providing up-front preventive care and support.

The right hon. Member for Sutton and Cheam mentioned Deloitte’s economic modelling on investing to save. Deloitte says that for every £1 invested in supporting a working age disabled adult with moderate needs, £1.30 is generated in return as people go back to work and contribute more through taxes and as benefit bills are reduced. Deloitte’s work is not new. Members may have forgotten the previous Government’s partnerships for older people—POPs provided preventive services for older people—which were brilliant initiatives proposed by my right hon. Friend the Member for Birmingham, Hodge Hill (Mr Byrne). Those projects showed that sometimes very low levels of help and support make a big difference to people and provide a big saving to the public purse.

In 2007, the DWP’s Office for Disability Issues and Bristol university considered the economic benefits of home adaptations and equipment. One example they gave was of how such things could reduce falls among elderly people and reduce the need for much more expensive hospital care. Members may be aware that the average cost of a hip replacement, which is common after a fall, is £29,000 to £30,000. That is almost five times higher than the average cost of a major housing adaptation and 100 times the cost of fitting a hand rail or grab rail. The Audit Commission’s “Fully Equipped” report states:

“If a drug was discovered with a similar cost-profile, it would be hailed as the wonder-drug of the age.”

The problem is that Government Departments still have too much silo mentality. We are taking too short a view of how to make best use of taxpayers’ resources. Whatever the Government claim about the changes they are making, for many on the ground it is simply the short-term salami slicing of services and support, which ends up worse for people and costs the taxpayer more. We need a much bolder response. Over the medium to long term, we need to consider the joint budgets for the NHS and social care, and we need a Treasury that gives longer time scales to get better outcomes. We did not achieve all that in government, and this Government certainly are not achieving it, either, but that is what we should be trying to do.

On the eligibility criteria and the cap, it is essential that the Government make it clear that, if someone has low or moderate needs—such as needing help getting up, washed, dressed and fed, needing help with the shopping or needing a grab rail, even if they are only a little bit wobbly—and they pay for that help, it will not count towards their cap. The Government have not been publicly explicit about that, which is a real concern for the public. If people are told that their care costs will be capped but that a lot of the up-front prevention on which they and their family are spending money will not count towards the cap, they will be not only disappointed but genuinely and rightly angry. They will feel conned and that the cap is not a cap.

Before I sit down, I will return to amendment 94. We need proper scrutiny of the regulations, because the eligibility criteria are crucial to what the Bill is intended to achieve. That is why we tabled amendment 94, which I hope the Minister will accept. We need to have a hard dose of reality about whether the Bill will achieve what it says it will achieve if councils’ statutory responsibilities do not ensure that they shift the focus towards prevention and early intervention.

Sarah Newton (Conservative, Truro and Falmouth)

It is a pleasure to serve under your chairmanship, Mr Bayley. I rise in support of the amendment tabled by my right hon. Friend the Member for Sutton and Cheam and supported by a number of colleagues. While no one in the room would not be genuinely concerned by the individual cases that have been raised by Opposition Members, it is disappointing to hear no commitments about anything that we can do about it. Government Members are left to deal with the reality that we find in our country today and to take the necessary and difficult decisions to do something about it.

The Committee will be pleased to know that I will make a very short speech about some specific points. I hope that the Minister will lay out for us his vision—I have heard it before and it is a very compelling one—for what we will do not just in this Bill, but in a whole range of measures that the Government are bringing forward, to support people with disabilities to play a full part in our society. There cannot be anybody in this room who does not want to see people with disabilities playing their full part in our society.

To digress for a moment, I was privileged to have been at meeting recently where I shared a platform with Lord Coe. We were reflecting with a large number of organisations representing people with disabilities on the terrific legacy of the Paralympics and how those games changed the nation’s understanding of what people with disabilities can contribute. We debated what more we can do to keep that legacy alive and challenge some negative assumptions about disability and what more we can do as a society to enable people to play their full role. There was tremendous support in that room for the whole range of things that we are doing, particularly in enabling people who want to work to do so and to overcome any barriers to employment.

For too many years people with disabilities were cast to one side, not really helped to get into education and employment or to participate in voluntary work. We are seeing a real sea change from a whole range of things that the Government are doing. I support the amendment because I am concerned that when we set the eligibility criteria we have a one size fits all. We are looking at the needs of frail and vulnerable elderly people at the same time as those of young, determined people with disabilities who really want to be able to work. It seems incredible that we could come up with eligibility criteria that would meet such a diverse group of people. I would like to see the individual needs of people of working age with disability explored to ensure that they can fully participate in society and benefit from all the other reforms that we are putting in place, particularly enabling them to work.

An unintended consequence if we do not get the eligibility criteria right is that we will have supported someone with disability to get a job, perhaps through the Work programme or one of the other excellent schemes that we have in place, only for them to be held back because they are not supported with their social care package. They might have a physical disability and need help to get out of bed in the morning and dress themselves ready to go to work. It would be a lack of joined-up policy making if we did not have in place the right level of social care support for someone who, with that level of support—perhaps a moderate level—could leave their home, go to work, participate in education or volunteer. They are all things that the Government want, and what people living with disabilities want to be able to do.

The assurance that I am seeking is on how the Minister proposes to enable working-age people with disabilities to receive the support that they often need so that they can work or join in education or volunteering opportunities.

Bill Esterson (Labour, Sefton Central)

I am pleased that the hon. Lady supports the amendment calling for the eligibility criteria to be set at the right level, which is what the debate is all about. However, does she recognise that, at a time when local social services departments have seen 20% of their funding cut, it is becoming increasingly difficult to achieve the right eligibility criteria and the right level of service that she quite rightly says is needed? Does she support putting back the money that is needed based on the sort of assessments and analyses that have already been mentioned in this debate?

Sarah Newton (Conservative, Truro and Falmouth)

I have been a councillor myself. I know that councillors are now facing tough choices about how they are going to spend the money that they have raised themselves locally or the money that is given to them by the Government. All of us, whether a parish councillor, a district councillor, a councillor in a unitary authority or a Member of Parliament, are elected to make difficult decisions and to prioritise.

For me, the case is absolutely clear cut. What could be more important to a local authority than protecting the most vulnerable people in our society? I condemn councils that cut their social care budgets, because it is the wrong thing to do. There are councils around the country that are not making those choices. They are protecting the most vulnerable people in their community and providing good services. The issue is about choices. I am not saying that they are not difficult choices, but they are choices. Of course, the Government have made extra money available to councils’ adult social care budgets to help them better integrate their services with the NHS. Opposition Members cannot have it both ways. If they support and believe in reform, they should support the Bill, because it will enable the breaking down of silos and the innovative work, which we so desperately need, to happen. There are pioneer parts of the country that have been doing that. We want to ensure that all councils across the country are as good as the best, such as the council in Torbay. It has not waited for the Bill; it has, frankly, got on with it, because it has understood its clear responsibilities to the most vulnerable people in their communities. The Bill will ensure that all other councils take a similarly responsible view.

Grahame Morris (Labour, Easington)

There is so much to respond to. I am trying to be nice—

Hugh Bayley (Labour, York Central)

Order. Is it an intervention on the hon. Lady’s speech?

Grahame Morris (Labour, Easington)

Yes. It is an intervention on an earlier point about the other care crisis—that for young adults. I am keen that we can produce a piece of legislation that will help the frail elderly and working-age disabled people. My concern is that, although we have worked effectively, this is a critical clause. The Paralympic legacy, referred to by the hon. Lady in such glowing terms, may well be that 100,000 working-age people will be denied the support and care that they require if we set the eligibility criteria at substantial rather than moderate. That is the reality. We should be honest about that.

Sarah Newton (Conservative, Truro and Falmouth)

I support the amendment to ensure that working-age people with disabilities receive the support that we all want to see them have and which they richly deserve. That is why I hope the Minister will lay out for us how the Bill and other measures that the Government are introducing will enable that to happen.

Liz Kendall (Labour, Leicester West)

Has the hon. Lady done the figures on how much her amendment would cost?

Sarah Newton (Conservative, Truro and Falmouth)

I have met the same organisations that you will have met and read the various research papers that have been published on this matter. As we debated earlier, there is a range of numbers. However, I honestly believe that the Minister, in his response to amendment 94, will be able to describe to us how the needs of working age people living with disabilities will be met.

Liz Kendall (Labour, Leicester West)

The hon. Lady will know that her amendment and that of the right hon. Member for Sutton and Cheam pretty much follows the description of moderate care needs under the current FACS system. So if Government Members have asked Opposition Members whether we are committing to that and what the costs would be, it is only right that we ask the same question of the hon. Lady and the right hon. Member for Sutton and Cheam.

Sarah Newton (Conservative, Truro and Falmouth)

Unfortunately, I am not a Minister in the Government, so that is not a question for me. I am sure that the very capable Minister in the room this afternoon will, in responding to this debate, be able to communicate to everyone’s satisfaction how that will be done.

Norman Lamb (Liberal Democrat, North Norfolk)

My understanding is that setting the eligibility criteria at moderate would cost £2.7 billion for both adults of working age and of older age. That is the cost of setting it at that level.

Sarah Newton (Conservative, Truro and Falmouth)

I had finished my contribution, but if there are any more interventions, I would be happy to take them.

Hugh Bayley (Labour, York Central)

Let me make one brief comment from the Chair. Quite a number of Members from both sides of the Chamber have been using this troublesome word “you”, when exchanging views between each other. “You”, in the context of the Committee, refers to the Chair and I decline all responsibility for the accusations that have been going backwards and forwards. Please try to use, as you do most of the time, the formulation “the hon. Member”.

Meg Munn (Labour, Sheffield, Heeley)

I am sorry to say that I found the contribution of the hon. Member for Truro and Falmouth rather disappointing. The idea that we are here to set out what a Labour Government would do is just nonsense. This is a Committee, looking in detail at a Bill that your Government—not your Government, Mr Bayley.

Hugh Bayley (Labour, York Central)

Someone is listening—hooray!

Meg Munn (Labour, Sheffield, Heeley)

Certainly not your Government, Mr Bayley.

—that the hon. Lady’s Government are putting forward. That is why we need to look at this issue. I take issue with a number of things that the hon. Lady said, which I shall cover briefly because what I have to say is far more important. However, the idea that some councils are willingly cutting their services and are struggling just because they are a bit silly or not doing as well as somebody else is frankly nonsense. I can hardly contain my anger when, by 2016, my local authority will have suffered a 50% cut of its whole budget. This is happening to local authorities particularly in the north, in those areas where they have a lot of need. It does not become the hon. Lady to stand there and pontificate the way she did.

This is a fundamental clause in the Bill. It is also a fundamental concept that people in social care services across the piece have struggled with and will always struggle with. The need to respond to low level needs to prevent greater needs arising is universal among all people who need social care services. However, there is no bottomless pit, no endless supply of money, and there never will be. Therefore there has to be some way of judging who can get help and support, and eligibility criteria are supposed to be the fairest way to do it.

On the ground, it will always be difficult to do this. I want some general commitments about the principle from the Minister, specifically on an aspect of the amendment concerning domestic, family and personal relationships being damaged by the failure to provide care. That is an enormously important part of amendment 37. I want to understand the overall intention around maintaining independence. Do the Government view the need for eligibility criteria to be holistic, and therefore give discretion about what is provided in order to maintain that independence? Or is there a view that as part of an assessment certain needs are eligible and others are not?

I will give an example to explain what I mean. Many people are cared for at home by a partner, a close relative—a daughter, a son—and they provide a wide range of care, sometimes often quite personal. After a period of time, they are struggling and things are getting more difficult and they need additional help. The help they may need is not for the most intimate care. It may be that what they need to relieve the pressure on the household, to support the person who is doing the personal care, is cleaning or someone to sit with the person. It may be a very low-level care service and relatively cheap. It could be seen as meeting low-level needs. It is not absolutely necessary but it is what enables the much more personal and greater care needs to be continued by an informal carer.

Is that dealt with in the Government’s approach to the eligibility criteria? To me that is fundamental. If we get to the point where somebody who is offering a very high level of care to a relative is told, “You can’t have shopping, cleaning or whatever, because they are not care needs that we will meet because they are low-level,” the Bill will fail. Because to refuse a little bit of help of that nature for somebody, who in all other respects would have high-level needs, could well be the straw that breaks the camel’s back, and then there will be much greater needs to be met, perhaps through residential care.

That is what I am concerned about. It is the holistic approach that will allow people on the ground to make those judgments in individual cases about how they continue to lever in the informal and family care that I talked about on day one of the Committee. The Minister graciously said he very much agreed with me about how we should envisage the process. Is that the Government’s intention? It is fundamental to whether the Bill can deliver on its intentions.

Grahame Morris (Labour, Easington)

Although we have had a lengthy debate covering many points, there are a couple of things I want to raise. Clause 13 and the amendments go to the heart of the Bill. We have to be honest about what the Bill will do. We are establishing a framework and recognising principles, but are we putting in place the mechanism to solve the care crisis? I regret that in my opinion if we set the eligibility threshold at substantial rather than moderate, I do not think we are addressing the care crisis.

I want to say a few words in support of that argument. Earlier today we had Health questions. I do not know whether I am allowed to refer to that during the debate; I did earlier and did not get called to order, so I will try again. Many Opposition Members are concerned that the problem of increased pressure on accident and emergency departments comes in no small part from, first, the cuts to social care in local authorities such as my own and, secondly, the increased pressure on and demand for social care. The eligibility threshold is not an abstract issue; it is directly related to the present crisis. It is older and disabled people with moderate care needs whose needs are going to escalate and who are going to rely more on emergency care if they are shut out of the social care system because the threshold is set too high.

When I raised that issue at Health questions, the Minister replied that it is not a new phenomenon or an escalating crisis. However, what is new is that we have an ageing population and an increasing number of people with interlinked conditions and co-morbidities, which is placing more intense demands on services. Even without the cuts in funding and changes such as the reorganisation of local authority services, the demographic change will put growing pressure on social care. We must tackle that crisis. Older and disabled people with moderate needs rely on social care to help them wash, dress and cook healthy meals. Those things contribute to people’s personal dignity and allow them to have control over their day-to-day lives.

There is a clear and present danger if we set the eligibility criteria too high. There will be a problem if the cap means that only the people with the most substantial needs are eligible. Those people will not go into care, but will get worse in their own homes and will present at A and E. It is a false economy, because it will create a great demand on resources. My hon. Friend the Member for Leicester West tabled an amendment to an earlier clause that would have placed a duty on local authorities to promote the independence of disabled people. Unfortunately, it was not accepted. However, this amendment would help to address that important issue.

I am concerned that setting the eligibility criteria at substantial will undermine the principle of prevention and early intervention, which we debated at length under clause 1. We need to give disabled and older people the support they need to live independent and fulfilling lives. It is clear that older and disabled people with moderate needs rely on social care to live worthwhile lives and have personal dignity and control over their day-to-day lives. It is therefore essential that the national eligibility threshold be set at a lower level than that in the current regulations. I understand the financial pressures and the costs involved.

A report entitled “The other care crisis” was commissioned by a raft of national charities, including Scope, Mencap and Leonard Cheshire. It found that four in 10 respondents said that social care services currently do not meet basic needs of the kind I have outlined. If the new eligibility system continues to exclude younger, working-age adult disabled people from the care system, the Bill will not achieve the aim of promoting the well-being of care users.

It is clear that setting the threshold at substantial will fail to make the Bill’s well-being principle, which we debated under clause 1, a reality. Does the Minister accept that, and if not, will he explain why?

Sarah Wollaston (Conservative, Totnes)

I support the amendment in the name of my right hon. Friend the Member for Sutton and Cheam. I shall not reiterate the points made by my hon. Friend the Member for Truro and Falmouth, as those are exactly the reasons why I lent my name to the amendment.

In the draft Care Bill Committee, the issue of well-being was at the heart of our discussions, particularly the emphasis on prevention and the opportunities in the Bill to achieve that. I know that not a single member of the Committee does not recognise that that is the ideal we strive for and that funding is the main issue. The trouble, as the Minister will know, is that the incentives are all related to admitting to hospital, and none of the incentives are linked to prevention because for local authorities that are already hard pressed, there is no benefit in offering extra care.

I very much welcome the better care fund. At a hearing during our evidence sessions on the draft Care Bill, the evidence was that such funding drove integration in practice. We cannot legislate for integration. We must clear the barriers away and put in place the opportunities and the drivers—financial drivers in particular. I recognise that that is the intention, but when he responds, will the Minister set out the concerns expressed by many about the integrated better care fund, as it is now known, and tell us how many claims there are on that resource already? We know, through the passage of the Bill, some of the new obligations on councils in relation to assessments. Those are planned to come out of the better care fund.

Will the Minister set out in detail the spending timetable for that fund? Concern has been expressed in the Health Committee that there is only a relatively short time to spell out how that will be spent. Because the focus today is on the amendment and the issue of prevention, will the Minister tell the Committee who is leading on how the prevention aspect of the Bill will be driven forward to use the fund in the most appropriate way and as was intended?

Emma Lewell-Buck (Labour, South Shields)

I support amendment 94. In the light of the comments of my hon. Friend the Member for Sheffield, Heeley, I should like to point out that my local authority is the seventh hardest hit in the country, yet we have a higher than national average number of social care clients. As the lead member on my council for adult social care prior to entering the House, I had to make some very difficult decisions and had to face the people directly affected by them. I wonder how those on the Government Benches would fare if they were faced with such cuts and such levels of demand.

On amendment 94, I echo the comments of my hon. Friend the Member for Leicester West regarding clearer eligibility criteria and their scrutiny. Unless we set out the mechanisms by which a person is eligible for care, how can we move on to meet their needs and achieve the aim of the Bill to get better support for social care clients? My local authority, like many others, is able to offer care only to those who meet the “critical” and “substantial” criteria for fair access to care, but the situation is far worse than that because within those criteria local authorities have scope to state what “critical” and “substantial” mean. Consequently, as budgets become smaller, criteria tighten, fewer people qualify for support, and fewer people have their needs met.

It is little wonder, then, that the Royal National Institute of Blind People reports that 43% of blind people have fallen out of the system, or that Age UK reports that 250,000 fewer people aged over 65 were in receipt of care and support in 2012-13 than in 2007-08, and that the overall number of people receiving social care has fallen by 347,000 since 2008. These are worrying trends. It is good that we have been successful in ensuring that people—including people with health conditions and those with disabilities—live longer. Age UK in my area reports that an increasing proportion of the people it speaks to are aged 90 and above. It is clear, though, that as the population ages, care needs will inevitably be greater.

I am realistic, and I understand that money is scarce, but setting a high eligibility threshold that denies people care is not a long-term solution. The condition of people with moderate needs often deteriorates if they are left unsupported. When they then hit a crisis, the point of acute care is a far greater burden on the taxpayer. It is therefore imperative that we get this right and that thorough scrutiny of the eligibility criteria be afforded.

The criteria are fundamental to the Bill. They differentiate between those who are deemed to require support and those who are not. As such, they should be subject to approval by both Houses. Our amendment may give some small peace of mind to thousands of current and future adult social care clients. I urge the Minister to listen to what has been said in today’s debate.

Bill Esterson (Labour, Sefton Central)

I want to add Sefton council’s comments about the eligibility criteria. It currently spends about £93 million a year on services to adults, which is 40% of its controllable budget. It also says that, as we debate this measure today, councils are starting to consider their budgets for future years. They face the prospect of having less to spend on such services, and the situation worsening. I think we are all aware of the Local Government Association’s graph of doom, and the prospect that the demand for social care will exceed the funds available for all council services within a few years unless something changes.

Heather Wheeler (Conservative, South Derbyshire)

Surely the announcement of the £3.8 billion and a further £1.1 billion means that councils can forward-plan, join up on well-being committees and link acute hospitals and social care from the two different tiers of councils? Was that not the whole point of making that announcement early on? That is the biggest amount of money—really chunky money—ever announced.

Bill Esterson (Labour, Sefton Central)

Yes, and it would be fantastic news if it was new money and not being taken from existing budgets, which is the reality.

Heather Wheeler (Conservative, South Derbyshire)

It is £3.8 billion from the NHS.

Bill Esterson (Labour, Sefton Central)

It is not new money overall. The reality is that it is taken from a budget elsewhere in the system.

Andrew Griffiths (Conservative, Burton)

Will the hon. Gentleman give way?

Bill Esterson (Labour, Sefton Central)

I will not give way, because we will not agree. That is the reality. The point that Sefton and other local authorities make is that they find it extremely difficult to balance the budget with existing resources.

Andrew Griffiths (Conservative, Burton)

On that point, will the hon. Gentleman give way for a very short intervention?

Bill Esterson (Labour, Sefton Central)

No, I will not give way. The hon. Gentleman can sit there and demand as much as he wants, but I am dealing with the original point. The money announced is an important step in the right direction to integrate health and social care, absolutely, but unless there is new money for new services to replace what is being delivered at the moment, that will not achieve what is needed.

Liz Kendall (Labour, Leicester West)

Many Government Members do not realise that not only is the better care fund not new money, but many of the costs of implementing the capped cost model—new assessments, setting out the metering system and the care accounts—will come from that. In other words, money that is currently spent on users in the NHS and on social care will be taken away to set up a new system of care accounts and the capped cost model. That is what will come out of that fund.

Government Members should be aware that many councils are concerned that those costs will be far higher than the Government claim. Money is being taken off existing users to fund a new system. People must be aware of that when the Government make their claims about the better care fund.

Bill Esterson (Labour, Sefton Central)

My hon. Friend is in a strong position, given her background, to comment on such things. Given the costs of reorganisations of one sort or another, there is a danger that the money is not used effectively and that service users, within social care or the NHS, do not see the benefits of the funding. Such damage was done by the £3 billion reorganisation, when eyes were taken off the importance of patient care. The reality is that such reorganisations and rebadging do not benefit patients or service users.

Paul Burstow rose—

Sarah Newton (Conservative, Truro and Falmouth)

Will the right hon. Gentleman give way?

Bill Esterson (Labour, Sefton Central)

I am not right hon. I will give way to the right hon. Member for Sutton and Cheam.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am very grateful. This has been an interesting exploration of the concerns of the hon. Gentleman and his own local authority. My understanding is that Sefton spends about £236 million a year. That is its budget. Currently, according to its accounts, it has about £200 million in its reserves. That seems an extraordinarily large amount of reserves and suggests that the council is not necessarily using its own money to protect services.

Bill Esterson (Labour, Sefton Central)

The right hon. Gentleman is trotting out the line of some of his coalition colleagues, which they have been trotting out since 2010. If he looks at the budget headings on the reserves, he will find that they are all earmarked for significant capital projects, including some extremely expensive regeneration projects. Also, some of that money can be spent only on those projects. “If only it were that simple” is my answer to him.

Sefton and other local authorities have raised concerns about the long-term budget. In its submission to the consultation stage of the Bill, Sefton asked that consideration be given—

Sarah Newton (Conservative, Truro and Falmouth)

Will the hon. Gentleman give way?

Bill Esterson (Labour, Sefton Central)

Not yet. I am just getting to the point that Sefton raised with me. Its point was that changes being made in the Bill have significant further financial implications. The amendments we are debating now are rightly probing what the eligibility criteria should be, which I think Sefton would broadly support. But they cannot do anything without resources. The Department for Communities and Local Government’s budgets suggest that the money will not be there, which will make it very difficult for the council to deliver services to social care users and users of other services. I will now give way to the hon. Member for Truro and Falmouth.

Sarah Newton (Conservative, Truro and Falmouth)

I am very grateful to the hon. Gentleman. Perhaps it is just me, but it seems a thoroughly confused situation. I was director of Age Concern, responsible for campaigning and fundraising, and then director of the International Longevity Centre, before I came to this place. When I held those positions, I recall that the Labour party agreed with me that it was unfair that the NHS had considerable increases over many years and the councils did not. The Labour party argued long and hard that councils should be given NHS funds to enable them to meet the needs of people in their communities and to enable them to integrate, arguing that there would be considerable savings by doing so.

Hugh Bayley (Labour, York Central)

Order. I have to interrupt. The clause does not go back over the history of funding of local government and the NHS. I hear what the hon. Lady says, but we ought to stick to the eligibility criteria, which is what the clause is about.

Bill Esterson (Labour, Sefton Central)

My hon. Friend the Member for Leicester West dealt with the point very well in her intervention earlier when she expressed concerns about moving budgets around and the impact on other service users. That comes to the heart of some of the points she was making around additional costs being generated unless we get the eligibility criteria right at this stage, because it is about investing for the long term.

I was extremely concerned by the comments of the hon. Member for Truro and Falmouth, condemning councils that have cut their social services budget. When the Government cut councils’ budgets overall by 40%, as they did with local authorities across Merseyside, it is impossible for the social services budget to remain untouched, so instead of condemning councils, the hon. Lady should reserve her comments for central Government.

Grahame Morris (Labour, Easington)

On the better care fund, which has been mentioned by a number of Members on both sides of the Committee and which was previously the integration transformation fund, is there a risk of creating an unrealistic expectation in authorities such as Durham county council and in Sefton, Truro and Falmouth that this money is available to assist with this issue, when it seems to be earmarked to assist, at least initially, in reconfiguring in the community services that were previously hospital-based? It seems that there will be huge demands on the fund across the country.

Hugh Bayley (Labour, York Central)

Order. Before I give the floor back to the hon. Member for Sefton Central, let me say that we will have opportunities to debate care costs and budgets in subsequent clauses. It is reasonable for Members on both sides to make the point that if the eligibility criteria for care are broadened, there will be a cost implication, but we have probably heard enough now about eligibility criteria and costs, and we should look at the question of the power of local authorities to determine eligibility and the eligibility criteria themselves.

Bill Esterson (Labour, Sefton Central)

I am, of course, guided by you as Chairman, Mr Bayley, although my hon. Friend the Member for Easington made the point that Sefton council has made to me, expressing grave concern about conflicting demands for this and other funds and the danger of raising expectations among care users and carers. It is a point well made.

My final comments are about the cap. This is the link with the eligibility criteria, which are the subject of the amendment. My hon. Friend the Member for Leicester West pointed out that people may think their care costs count towards the cap when they do not, and that if people are not assessed as eligible because of how the eligibility criteria are set, that is one source of concern, and there are others. I raised the issue of top-up fees with the Minister of State in Health questions earlier, and there is also the issue of so-called hotel costs, including food costs. The combination of those factors is why getting the eligibility criteria right is so important when it comes to expectations and people’s understanding of what care costs are going to be.

There need to be clear explanations to the public of what they can expect. That is why it is important that we get right the balance between national and local decision making. I, like everybody else, would like to see eligibility criteria set at a lower level. That is why amendment 37 is so important. I look forward to the Minister’s response. He mentioned a figure of £2.7 billion to achieve that. Perhaps he can tell us whether that is the Government’s intention. That would go a long way to resolving confusion, meeting expectations and above all meeting the care needs of people in the coming years.

Hugh Bayley (Labour, York Central)

Given that many Members on both sides have raised the cost implications of the eligibility criteria, it would be reasonable for the Minister to respond to those points. However, I remind him and those who might make interventions that a series of clauses on local authority charges and the cap on care costs are coming up. Anyone wishing to debate those matters would be better off raising them when we come to those clauses.

Norman Lamb (Liberal Democrat, North Norfolk)

Thank you for that helpful guidance, Mr Bayley.

I shall start by responding quickly to the shadow Minister’s wider points. I was reminded of the Labour party’s response to the Dilnot recommendations when they were first published. The then shadow Secretary of State, the right hon. Member for Wentworth and Dearne (John Healey), said:

“Our concern is to protect the one in ten of us who have to pay over £100 000 for the costs of care in older age, as well as those hardworking people on modest incomes more likely to care for relatives and less likely to get help in doing so. And we must also protect people from the lottery of where they live not what they need determining their care assessments and level of support.”

That constructive, mature view completely mirrors the Government’s position on Dilnot.

My slight fear—misplaced, I am sure—is that it was convenient for the Opposition to support the Dilnot report strongly the moment it was published, when they perhaps felt that the Government would not implement it. When, unexpectedly for the Opposition, the Government announced that we would do what Dilnot recommended—and that is fantastic—the Opposition’s tone suddenly changed to one of less enthusiasm: criticism that the recommendations do not go far enough and are limited in what they can achieve.

My plea to the Opposition and the shadow Minister, for whom I genuinely have a great deal of respect, is that we should recognise that the reform in question is very significant. Let us be absolutely clear and honest about what it does and does not do and combine to make sure that we make the very most of it, so that it becomes embedded and leads to the behaviour change that we are all after.

Liz Kendall (Labour, Leicester West)

The Minister has been uncharacteristically unfair. We have always supported anything that stops people facing, through no fault of their own, catastrophic care costs and the loss of the savings and homes for which they have worked hard all their lives.

The Minister did not take part in the few and rather thin cross-party talks on social care. Andrew Dilnot had clearly said that the baseline issues on funding, as well as reform for the future, had to be addressed. It is right for us to scrutinise the Government on that and say that there has to be enough money in the system as well as reforms for the future. I have a lot of respect for the Minister, too, but he has been uncharacteristically unfair about Opposition Members, who have rightly been raising concerns.

Norman Lamb (Liberal Democrat, North Norfolk)

I thank the hon. Lady, who accuses me of being uncharacteristically unfair. She is absolutely right in saying that the Opposition’s duty is to challenge and scrutinise, and there is a challenge in respect of the proposal to set the criteria at something equivalent to substantial. I would characterise the Opposition’s contributions as being strong on the wringing of hands but not that strong on any solution. As some Government Committee members have said, the Government are getting on with fundamental reforms. The £3.8 billion better care fund sets a bottom line. Any area can be much more ambitious than that if it chooses to, and I encourage them to do so, but this is the first time it has happened. As my hon. Friend the Member for Totnes made clear, it is all about the incentives. Until now, as I am sure the shadow Minister will agree, the incentives within the NHS have incentivised activity in acute hospitals through the payment by results system, rather than effectively incentivising prevention of ill health. This is the first substantial shift of resource from repair to preventing ill health, and it should therefore be strongly welcomed.

Liz Kendall (Labour, Leicester West)

It is simply not true to say that nothing had been done before. First, we legislated for care trusts, which brought together all the care for local authorities and NHS budgets, and which the Government’s Health and Social Care Act 2012 scrapped entirely. Secondly, there were huge initiatives to bring funding together, including joint budgets, pooled budgets and partnership for older people projects, which brought about huge shifts in provision. On the tariff, before we introduced it, the NHS had no idea what it paid for any kind of care. We always said that the tariff was a first step and needed to be reformed, but under previous Governments, before we introduced it, no one knew what the NHS paid for care. I strongly refute the Minister’s claims.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to the shadow Minister for that helpful intervention. I simply make the point that I was talking about financial incentives. This is the first big financial incentive to shift action towards the prevention of ill health. That is enormously to be welcomed.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Does the Minister agree that it is possible to count on the fingers of one hand the number of care trusts that were actually established, and that the scale and ambition of pooled budgets under the last Government’s legislation amounted to a fraction of what the budget that he is establishing will achieve?

Norman Lamb (Liberal Democrat, North Norfolk)

I agree. I strongly supported the care trusts’ complete openness and straightforwardness about that. It was wonderful that some areas chose to do that, but the numbers were tiny.

Meg Munn (Labour, Sheffield, Heeley)

The integration of health and social care has been a holy grail for a lot longer than anybody here is discussing. Twenty years ago, under the previous Conservative Government, a great deal more was done. Work was done on the ground; when I was in social services 20 years ago, I worked in an integrated care team to do it. Labour legislated for local authorities to pay into the health budget when people were kept in hospital instead of being discharged. It has been going on for a long time. Can we get on with moving forward instead of rewriting history? It really is terribly boring.

Norman Lamb (Liberal Democrat, North Norfolk)

The Opposition seek to challenge and scrutinise; that is absolutely their duty. Surely it is fair for me to respond and to be clear that what this Government are doing is radical and substantial. A lot of people in the King’s Fund and across the health and care system are absolutely thrilled that at last, they are able to do what they have wanted to do for a very long time.

Moving on to the key points raised by hon. Members, my right hon. Friend the Member for Sutton and Cheam made a specific point about the work to make the process of assessing eligibility a bit more sophisticated and nuanced. The White Paper first raised the potential to do so, and I am keen that we should put a lot of emphasis on developing that more interesting approach. There is a risk that setting the criteria high will send out the message that people must get sicker and more disabled before any help will be available.

I will come to why I think there are lots of things in the Bill that seek to prevent that, but if we can make the process of assessing eligibility more nuanced and if we can assess people as eligible for help much earlier, that makes a lot of sense. Hon. Members will understand that this is quite complex, and it requires a lot of work to get it right. We are committed to working with those parties that have an interest, including organisations such as Scope, to get it right. That is not something that can be done overnight, but I am interested in trying to make progress.

Let me address some of the other points that were raised. The Bill provides the power for the Secretary of State to set, for the first time, national eligibility criteria for care and support. That is one of the key changes that the Bill will make and addresses the concerns we have heard from stakeholders about the lack of transparency and the variability in decisions made by local authorities on whether a person is eligible for services. My right hon. Friend the Member for Sutton and Cheam recognises the importance of the national minimum threshold. His amendment would set the eligibility criteria in the Bill, rather than in regulations. It would also appear to prescribe in guidance a level of national eligibility close to the level of “moderate needs” described in the current framework.

The significance of the national minimum threshold is undisputed. Consultation has demonstrated almost universal support for a national approach. There can be little consistency in the current system between local authorities on what needs are eligible. Local authorities can set their own thresholds for eligibility and change them over time. That results in uncertainty and can even lead to reductions in services if, for instance, the local authority decides to change its eligibility criteria. We have heard in lots of contributions about the extent to which authorities under both Governments—that is the truth of it—have changed from “moderate” to “substantial” over the last few years.

It has therefore been the Government’s goal from the outset to overcome those problems by introducing a national minimum threshold. The best way to achieve that is by setting the threshold—which, incidentally, the Dilnot commission recommended setting as substantial—in secondary legislation, as recommended by the Law Commission. If we were to set out the eligibility criteria in the Bill, as suggested, future changes to the threshold would be possible only through primary legislation, which would be cumbersome and time consuming.

Moreover, the amendment seems to prescribe a level of eligibility broadly equivalent to moderate in the existing framework. That is contrary to the policy set out in our draft eligibility regulations, which propose a threshold equivalent to that in use in the vast majority—more than 85%—of local authorities. The intention behind our policy for national eligibility, together with funding announced in the spending review, is for local authorities to be able to maintain access to care and support when the new framework comes into effect. This is a minimum standard; authorities may be more generous.

My right hon. Friend the Member for Sutton and Cheam talked about whether what we had consulted on met the substantial level, as currently defined. We have heard from local authorities that the current draft of the criteria is too low, while in part the voluntary sector has said it is too high. We will continue to work with stakeholders in local government and the voluntary sector, and with the assessment and eligibility task and finish group, of which Scope is a member, to get the wording right. We will consult on the next version of the regulations in May. I hope that helps.

I caution against looking at clause 13 in isolation—this goes to the heart of the issue that my hon. Friend the Member for Truro and Falmouth raised—as the Bill also includes new duties to provide preventive and other universal services intended to delay or reduce needs in the first place. For instance, under the duty in clause 2 for preventive services, it may well be appropriate for a local authority to decide that helping disabled working age people back into work would achieve good results for the individual in terms of their central duty of well-being under the Bill, but would also, as the argument goes, reduce costs in the longer term for the local authority, so that everyone gains. That is one example of how the provisions in the Bill are much broader than just the eligibility criteria.

In addition, Torbay has a formal eligibility criterion of “substantial”, yet we know from the way in which it works—in a highly integrated way, focusing on prevention—that its interventions, in very many cases, on a community-wide basis, are made at a level that is much lower than substantial. The Bill of course enshrines that approach—intervening early to reduce or delay ill health further down the line. That is backed up by the better care fund, with the complete focus on outcomes—on achieving results for people. We are putting money with the legislative provisions; the two go hand in hand. I am talking about legislative provisions that focus on prevention, together with money to incentivise and facilitate new ways of working, bringing local government and the NHS together in a way that we have never seen before, other than in those pockets of excellence around the country.

We can add to that the whole focus of the Bill on an individual’s well-being, on their assets as individuals and on the importance of helping people to build their resilience and their families’ resilience in order to be able to manage conditions of disability or ill health. This whole approach is designed to achieve the objectives and to assist and support people at a much earlier stage.

There is also the work that was alluded to earlier. The shadow Minister made the very good point about the DWP working closely with the Department of Health. There is this long-overdue shift towards pooling the public resources. In some areas, that is done through the experiments with community budgets. Deploying the enormous resources of the DWP together with the resources available in health and care can achieve so much more than having them in isolated silos. That is the Bill’s big objective. There are the duties of co-operation, together with the duties of integration and prevention. The power of this is potentially enormous. As I have said in response to the hon. Member for Sefton Central many times already, legislation on its own is not enough, but this measure creates the foundations for a much more rational approach.

I am sure that we would all ideally like the minimum threshold to be set at a lower level. However, independent research has shown that the cost of setting the threshold at moderate would be £2.7 billion a year. That is a huge amount of additional money to find in the current financial climate. Although the Deloitte report points to the potential for savings, which I completely accept—the whole thrust of my argument is for a much more preventive approach—the argument and analysis is quite thin in terms of reliability, and Governments have to find, if they commit to that, the money up front. It was noticeable that, although there were contributions from the hon. Members for Sefton Central, for Easington and for South Shields specifically calling for “moderate”, that was not met with support ultimately from the shadow Minister, who does not commit to it, and rightly so in my view. That is the Opposition’s position: they are not committing to the moderate level as the eligibility criterion. We all need to be clear on that.

Liz Kendall (Labour, Leicester West)

Does the Minister think it was right for the coalition to impose the biggest cuts of any Department—a third in total—on local councils if we want to improve care and support for older and disabled people? Does he think that was the right decision?

Norman Lamb (Liberal Democrat, North Norfolk)

I have two views—first, that we took the decision to compensate for that in terms of social care with £7.2 billion over the spending period. Some local authorities sought to use the money for its proper purpose. Not all did, but that is the responsibility of local authorities, not of this Government. Analysis by the King’s Fund demonstrated that if the money was applied to social care and if local government sought to achieve the efficiency savings that were possible, services could be protected. Some local authorities have chosen not to commit all of that resource to social care, and we see the consequences of that.

Secondly—I give this as a personal view—there is enormous scope in local government to achieve substantial savings from different ways of working. The tri-boroughs in London, for example, have reduced the bureaucratic administrative burden, freeing up resources for the front line. That is the sort of innovative thinking that has to go on in local government, and there are many in local government who recognise that and I applaud them for it. I think the shadow Minister accepts, even if some others do not, that the whole purpose these days is to make better use of the available resource, because there ain’t any more money available, given that we are still spending £100 billion more than we are bringing in in taxes every year, trying to sort out the deficit that we inherited.

It is important to get the eligibility criteria right, otherwise we risk destabilising the care and support system. Therefore the Government have already engaged with service users, carers, voluntary organisations and local authorities on the wording of draft regulations to make sure the language is correct. Amendment 94 would require regulations made under clause 13(6)—in relation to making eligibility determinations—to be subject to affirmative resolution. However, we do not think that is necessary, and I shall try to explain why.

The regulations that set the eligibility criteria under clause 13(7) are already subject to affirmative resolution. My right hon. Friend the Member for Sutton and Cheam made this point earlier. Since these regulations describe the national eligibility threshold, we believe it is right that this is the case. In practice, we do not anticipate that the powers in clause 13(6) and (7) would be disaggregated. Regulations would cover both matters together, the criteria and any matters about how the determination should be made. There would be a single set laid together and that would be subject to the affirmative procedure.

I can confirm that we have no intention of making regulations using the power in clause 13(6) alone. However, if Government were ever to use clause 13(6) alone, this would be solely for procedural matters around making the eligibility determination, which would not affect the threshold itself. Such regulations would not normally be required to be made under the affirmative procedure.

We are all agreed that the national minimum threshold is of the utmost importance. I hope, therefore, that we agree on the value of making regulations under the affirmative procedure so that Parliament will have the opportunity to scrutinise them before they are introduced, as well as any future changes to them.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

We have had a full debate on probably one of the most important provisions in part 1. I am grateful to hon. Members who have taken part—those who supported the amendment and those who challenged it—because there is undoubtedly a public expenditure challenge to it, which I will briefly address in a moment.

Clause 13, more than anything else, brings to the surface at national level a debate that has been bubbling away for decades about something that has been contracted out to local decision making and local debate, allowing Governments to absolve themselves of responsibility in determining access to social care. Although future Governments may consider it an incredible millstone, it is an incredibly good thing that this Government are preparing to say that there should be national eligibility. That elevates the debate to a national one. It is right that we also debate the financial aspects.

I have said that eligibility criteria are a poor way of managing demand. We have had plenty of examples of that on both the negative and the positive sides, Torbay being the best example of the positive. None the less, it is setting its criteria at “substantial” and managing some of the pressures in the system in a way that demonstrates that it is not just eligibility criteria that give rise to those pressures in the first place. We have learned from the debate some interesting things about the evolution of policy on both sides of the Committee. We await the emergence of more policy from the Opposition with bated breath, not least whether there will be a manifesto commitment on fair access to care criteria.

I was disappointed in one regard, because I had hoped that the debate would lift its sights beyond just talking about the current FACS criteria and the current draft of regulations, both of which are still locked in a deficit view of the world. I hoped that we would talk a bit about how we might do what the Minister suggested could happen in future, but perhaps that can be for another time.

We are told that the cost is £2.6 billion. The Minister said that local authorities say that the current draft regulations would result in a more generous set of criteria than the old “substantial”, and NGOs claim it is the other way round. That sounds like the old decimalisation debate and how to compare—[Interruption.]

Hugh Bayley (Labour, York Central)

Order.

Hugh Bayley (Labour, York Central)

Fifteen minutes have elapsed, so the Committee is back in session. Paul Burstow was on his feet; I invite him to continue his speech.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Before the Division I was talking about decimalisation and the context of “substantial” and what it means. As we have heard, the consultation revealed that NGOs are worried that the draft regulations are drafted too tightly and that local authorities are worried that they are too generous. My local authority seems to reflect what the Local Government Association says more generally. That comparison—how we compare one old penny with one new pence or how we compare the old “substantial” with the new “substantial”—is an important part of getting the regulations right and ensuring that we know what the new system will do in practice. On the basis of the current draft regulations, the cost might not be as high as £2.7 billion, because I suspect that the costing was done on existing FACS criteria. Therefore, the gulf might not be as big as suggested.

I want briefly to pick up some comments about the impact of an ageing society on this debate and some comments from the Office for Budget Responsibility and members of the Committee about ageing being the biggest drain and driver of care costs. I want to say two things about that. First, I do not think that is true. The evidence points to multi-non-communicable disease being the principal driver of health care costs, along with the increase in the number of people dying and where they die. If they die in hospital, the cost is massively greater—we will come to that in a moment. We have seen a phenomenal increase in life expectancy, and we have a fixation on the dependency ratio, which is misleading and exaggerates the scale of the problem. If we take into account the fact that people live healthily for longer, a different picture is revealed. I suggest that people look at some of that evidence, because that might remove some of the panic.

The Minister said that he was keen to make progress on developing a more sophisticated way of determining eligibility. I welcome that. He rightly said that this is a complex area and that we need to work with NGOs and others that have a stake in it. Will he undertake to give the Committee a letter setting out the timetable and the scope of the work? We need to know how long the eligibility criteria that he is currently consulting on will be the basis for access to the new, reformed system, and when something better will be put in their place.

Norman Lamb (Liberal Democrat, North Norfolk)

I am happy to write to the Committee to set out in more detail what the work is about and its scope, although I cannot be precise about the time scale. I share my right hon. Friend’s view that age-related cost pressures are only part of the overall picture.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful for that intervention. The amendment was always intended to be probing and to enable a debate to take place. The debate has been revealing and informative. It is useful to have the Minister’s undertaking about the future direction of travel and the fact that there will be further consultation. Although it was right to use the amendment as the fulcrum of the debate, the idea that one would put such detail on the face of the Bill is something that would give pause for thought to everyone who wants to see the right level of eligibility set. It is right that there is flexibility in the regulations.

Liz Kendall (Labour, Leicester West)

It is right that the right hon. Member for Sutton and Cheam intends to withdraw his amendment. He and the hon. Members for Truro and Falmouth and for Totnes have tabled an amendment that could have big cost implications, and it is only right that they should say where the money would come from. The amendment does not do that. Opposition Members would not table amendments unless we could say how they would be paid for.

When we tabled amendment 94, we took advice from one of the Clerks about whether it would go further than the provisions currently in the Bill. If adopted, it would indeed go further, because it would require that regulations made under subsection (6) be subject to the affirmative resolution procedure. It is essential that we fully scrutinise the regulations on eligibility in the way that amendment 94 suggests. We therefore intend to press it to a Division.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to ask leave to withdraw the amendment.

Clause 14 - Power of local authority to charge

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 38, in clause 14, page 14, line 9, at end insert

‘and in assessing the cost a local authority incurs, it must (unless either Condition 2 in section 18, or either Condition 2 or Condition 4 in section 20, is met) ignore the cost it incurs (directly or indirectly) in assessing that need under sections 9 or 10.’.

Hugh Bayley (Labour, York Central)

With this it will be convenient to discuss the following:

Amendment 39, in clause 14, page 14, line 9, at end insert—

‘(4A) Where a local authority that meets an individual’s needs under sections 18 to 20 is satisfied that the individual’s means are insufficient for it to be reasonably practicable for the individual to pay the amount which would otherwise be charged, the authority shall not require the individual to pay more for it than it appears to them that is it reasonably practicable to be paid.’.

Amendment 98, in clause 14, page 14, line 29, at end add—

‘(9) A local authority should publish on its website the current cost that the local authority incurs for particular services for which it may make a charge.’.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Clause 14 covers charging for services where they have been provided to a person with eligible needs. Amendment 38 seeks to clarify what I believe is an unintended consequence of the current drafting. As drafted, the clause would allow local authorities to charge for social work assessments. That is not something that local authorities can do at present. Because the clause permits assessments to be delegated—clause 78 provides for delegation of functions in a number of ways—it sets up the possibility that the assessment process can be subject to reimbursement to those undertaking the assessment for their costs. It will be possible for that to be passed on as a charge to the individual. My amendment would simply put beyond doubt that the local authority or someone delegated to do the task should ignore the costs incurred directly or indirectly in assessing the person’s needs.

Amendment 39 returns to an issue raised during the joint scrutiny of the Bill—the legal limits to charges. At present, the primary statute that governs this is section 17(3) of the Health and Social Services and Social Security Adjudications Act 1983. They really knew how to name Acts in those days. That contains a provision that prohibits domiciliary care charges that are not “reasonably practicable” for a person to pay. That protection—or long stop—is not found in the Bill. Although it may be replicated in regulations—indeed we have had similar assurances to that effect—the Department of Health has not so far addressed the concern raised in Committee. I hope it is an area on which the Minister can give us further comfort.

My point is that this is a matter for primary legislation. It is an essential principle that would underpin regulations and guidance. When we took evidence on this, we were told that the courts and the local government ombudsman found that this test of “reasonably practicable” in primary legislation was of value to them when they came to make their determinations. While the regulations may set out a process by which charges are calculated and may, as Ministers have said so far, have a goal of a fair charging system, that leaves open the possibility that that could be changed in regulations in future.

There will be cases that are out of the ordinary. This is about testing legislation to ensure that it is flexible enough and has principles that enable the out of the ordinary circumstance to be taken properly into account. In those circumstances, there might be someone who does not have sufficient resources to pay a charge, even when they have been financially assessed as able to do so.

There are court cases that have determined on the matter and have used the test of “reasonably practicable”. There are ombudsman cases. Indeed the ombudsman has considered several cases over the years and found the current long-stop test an important aspect when coming to a judgment in favour of one party or another. It is that safeguard of “reasonably practicable” that my amendment would maintain in law to allow for the possibility that no matter how good the regulations are, or indeed the guidance, life can throw up something that is not anticipated, and we ought to try to make sure the primary legislation deals with that.

Grahame Morris (Labour, Easington)

I fully understand the right hon. Gentleman’s sentiments and support his efforts. It was one of the 10 points of contention in the Joint Committee. If I may ask a stupid question, what does “reasonably practicable” mean—in practical terms?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

That is a very good question, although an obvious one. In considering this in the Joint Committee, we had the benefit of the advice of Professor Luke Clements as our adviser on the care aspects of the legislation. He drew our attention to existing case law using this phraseology from the Act—I will not repeat the full title—as being an important way to ensure that attempts to capture various different scenarios in regulations did not leave out individual circumstances.

For me, this is about making sure the individual circumstances can be properly factored in when a decision is being made. Drawing up a set of criteria can never capture all individual circumstances, so the amendment would give that additional comfort—that back-stop—that enables people to challenge local authority decisions about charges. So what I want to hear from the Minister is why he thinks moving that from primary legislation to regulations is satisfactory and why putting similar language in regulations would not itself suggest that it would be better to maintain the status quo in this particular area.

When I was drafting the legislation—I am surprised no one has asked me this question so far—such a consideration was not put to me in the advice I received. I regret the fact that I did not ask the question. I took the opportunity as Chair of the scrutiny Committee to revisit such questions. On the advice that we received, I think the Government should pause, reflect and consider making this small and modest change.

Liz Kendall (Labour, Leicester West)

Amendment 98 would require local authorities to publish on their websites and in other places the costs that the local authority incurs for the services that it charges for. We tabled the amendment because it is important now and will be increasingly important in future that local councils are clear about their care costs. The two things I most have in mind are their costs for home care and for residential care.

Imagine someone does not live near their family—their mum or dad. Many of us have been in such a situation. Perhaps our mum or dad are reaching the point at which they need care and support. In such cases, we think about moving closer to mum and dad, or we think about mum and dad moving closer to us so that we can be there to help them if they need care. It is often the case that someone needs home care, but also residential care. If someone’s mum or dad—someone they love—is going into a care home, that can be a really distressing experience. People might want their parents closer to them so that they can go and see them. People might also think their parents will need help getting up, washed, dressed and fed, and the son or daughter might want to help out. That can be done more easily if the parents are closer rather than miles away. Some families may want to do that whatever the costs are, but it is important that we think about this issue. Charges for home care, particularly for those in private residential care homes, are increasing.

We recently did a freedom of information survey about home care charges that showed that they have increased by quite a bit since the election. If someone gets 10 hours of home care a week and five meals on wheels, which is the average profile of a care user, it now costs on average £7,900 a year, which is up almost £740 since the general election, or £15 a month. Charges for meals on wheels have increased by a fifth and community transport charges have almost doubled.

The key issue, however, is the huge variations in what councils charge. While home care remains free in Tower Hamlets, it costs more than £20 an hour in Cheshire East. The hon. Member for Harrogate and Knaresborough might like to know that home care costs £17.30 an hour in his area and it costs £16.80 an hour in the constituency of the hon. Member for Weston-super-Mare.

Therefore, someone with a family member who lives in Tower Hamlets—and therefore got free home care—might think, “Actually, my mum or dad should move closer to where I live,” but they could be charged quite a lot if they moved to another area. It is important that families know about the costs of care so that they can use that information when making their decisions.

That is also really important in residential care, as the rate that the local authority pays for that will determine the cap on care costs. Often, in the slightly better-off areas of the country, such as those represented by the Secretary of State for Health or, indeed, the Prime Minister, the amount councils pay for residential care might be less than £400 a week, but the private care homes charge much more: £800 a week or even more. The gap between the council rate and what people are charged can be really big and people will have to pay that themselves. Families therefore need to know what the real charges are for care in their area, not because that would stop them from making decisions on where their loved ones get care and support, but because it would allow them to think through the financial implications of the care and support.

The information is hard to get. We had to issue freedom of information requests to get the data. When we rang up the councils and asked them, they often said, “No, we’re not going to tell you—you have to do an FOI.” That is not right. Councils should be open about what they charge so that people can properly plan for the future. That is why we tabled amendment 98.

The rest of the debate is in Hansard.