Clause 22 - Exception for provision of health services

Care Bill [Lords] – in a Public Bill Committee am 2:30 pm ar 16 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 2:30, 16 Ionawr 2014

I beg to move amendment 41, in clause 22, page 20, line 32, after ‘is’ insert ‘authorised or’.

This amendment seeks to introduce wording which replicates the terms used in other legislation on the boundaries between social and health care in order to meet the concerns of the Joint Committee on the draft Bill about a court’s likely interpretation of any substantive differences introduced by this Bill.

The clause sets the boundary between what is NHS-provided and free at the point of use, and what is social care. Where that boundary is drawn and how it is understood by decision makers, both in the NHS and in local authorities, is a critical part of the Bill. It is as important, I think, as discussions we have had on eligibility, because it determines whether someone is in a paid-for system or a free system when it comes to their direct experience of the service. If that boundary moves, it has big consequences for the individual and the public bodies concerned, and shunts costs one way or the other. If the shift moves access to the NHS, that can increase costs for the taxpayer; if the change goes the other way, it can shift the burden more squarely on to the individual.

I have some form on the issue because I researched and wrote a series of reports entitled, “Who Cares, Who Pays?”, which helped to expose the postcode lottery of the rules operated by the NHS in the 1990s, and showed how different NHS bodies were interpreting their obligations under the legislation and guidance that applied at the time. The obligations were ultimately tested in court. The most seminal case is that of Coughlan, which was heard by the Court of Appeal. That is set out in some detail in the explanatory notes and is intended to be reflected in the language in this clause. It took a major inquiry by the health service ombudsman to force the then Government to set in place a national eligibility framework, and a process of review and compensation for those who had been wrongly excluded from NHS-funded care.

When I reflect on my time as a Minister in the Department of Health—as I do from time to time—one thing that strikes me about this policy area is how jumpy officials were about what the Minister might say about NHS continuing care. I am sure the Minister will be incredibly careful about what he says. The concern was that a Minister’s words might inadvertently trigger a challenge in the courts or help a different interpretation of where the boundary sits. That jumpiness leads me to table this amendment, because words matter when it comes to drawing the line between what is free and what is not. For perfectly good reasons, and on the recommendation of the Law Commission, the Bill does not use the same wording as the current legislation, and in the response to the Joint Committee’s recommendation on this issue, the explanation was that to do so would be to confuse.

My contention is quite the contrary: not to use the same words as before is to confuse and run the risk of a series of dangers, which I will try to describe. Instead, regulation-making powers are proposed in the legislation to guarantee that the boundary remains where it is.  That is fine, but it applies only as long as the Government of the day have that policy. The Government of the day can very easily change their mind, and a subsequent Government could do so even more easily and choose to use the regulation-making power to decisively shift the boundary through secondary legislation, rather than through the additional scrutiny that primary legislation requires. For me, having the boundary clearly demarcated in statute, in primary law, is very important.

This issue returns to the proposition that I put to the Minister when we debated clause 14 on charges. Fundamental principles should not be set in secondary legislation. Despite reassurances from the Government in response to the Joint Committee on this point, my fear is that we will open a Pandora’s box, regardless of the good intentions that I know were part of this change in legislation.

The Pandora’s box is that clinical commissioning groups are still relatively immature bodies finding their feet and developing their policies and practices. They may well argue that the Coughlan judgment no longer applies, as the wording in section 21(8) of the National Assistance Act 1948, on which that judgment is based, no longer exists. The material question is about what the law says now and what it will say once the Bill becomes an Act. The relevant parts of the legislation are as follows. Section 21(8) of the 1948 Act says:

“Local authorities have no power or duty to provide support under Section 21 (social care in care homes) if that care or support is authorised or required to be made under the National Health Service Act 2006”.

Clause 22(1) keeps the words “required to be”, but we lose the word “authorised”. We have a situation where the 1948 Act effectively prohibits local authority involvement if the NHS has the power or duty to provide support, whereas the drafting of the Care Bill prohibits support only if the NHS is under a duty to provide it. That might seem like a small drafting point, but the problem is real. Wherever budget pressures are great—we can debate how great they are now compared with the past and what they might be in the future—primary legislation where there are separate bodies with separate statutory duties comes into play.

I urge the Minister to accept the amendment, or at least take it away and give it genuine and serious consideration. To do otherwise runs the risk of opening a Pandora’s box. Simply relying on regulations is not sufficient. Regulations can be a useful tool, but they should not be the way in which the boundary is secured. By accepting the proposal, he will prevent a new wave of disputes over who pays for care. That is fundamentally why I moved the amendment and why I remain concerned, why the Joint Committee was concerned and why until this point I have not been reassured. I look forward to the Minister’s response.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health 2:45, 16 Ionawr 2014

Clarity on the distinction between what local authorities are responsible for and what the NHS is responsible for is of great importance, as my right hon. Friend the Member for Sutton and Cheam says. Our intention is to retain the existing boundary. Clause 22 does that by setting out the limits of what a local authority may provide by way of health care. It does that by reference to what is required of the NHS and providing that such matters are off limits to the local authority. The clause therefore sets the boundary  between the responsibilities of local authorities for the provision of care and support and those of the NHS for the provision of health care. Currently, in the case of the provision of accommodation under section 21 of the National Assistance Act 1948, local authorities are prohibited from providing anything that is

“authorised or required…to be provided under the National Health Service Act 2006”— that is, things that the NHS has the power to provide and things it is under a duty to provide. That has sometimes led to confusion and uncertainty over what services might have been so authorised.

Section 29 of the 1948 Act, which deals with non-residential welfare services—and with which I am sure my right hon. Friend is familiar—sets the prohibition on what a local authority might provide by reference to matters required to be provided under the National Health Service Act 2006. There is therefore currently a difference in the “health service prohibition” depending on whether the support being provided is by way of accommodation or otherwise. The Bill does not distinguish between those two types of support—residential and non-residential. They are both examples of how need might be met under the Bill. Given the uncertainty in identifying what might have been authorised in some cases and given also that we no longer distinguish in any event between the different types of support—residential or non-residential—we have tried to make this boundary much clearer, while still retaining the ability to fix the boundary where it currently lies. We have framed the prohibition on the provision of health care services by local authorities by reference to services that the NHS is required to provide.

The Committee should note that we have also made provision for a regulation-making power, as my right hon. Friend said—clause 22(2)—so that where there is uncertainty on these matters, or where the need arises, we can clarify and detail the types of service that may or may not be provided by local authorities and in which circumstances. In that way, and if necessary, a local authority may be prohibited from providing a service if it is something that the NHS is providing. The regulation-making power gives us far greater flexibility than is currently available to control the boundary and prevent gaps or undesirable overlaps in provision. I hope the Committee is reassured that in the case of any regulations that might further restrict what a local authority might do, which might in theory lead to a gap in provision—it is not intended that such gaps be allowed to arise—such regulations would be made by the affirmative resolution procedure.

The provisions in clause 22 are not intended to change the current boundary—let me place that clearly on the record—and we do not believe that they will have that result. The limits on the responsibility by reference, as now, to what should be provided by the NHS remain the same. However, the prohibition, combined with the regulation-making power, is framed in a way that allows greater flexibility and greater clarity. I hope that I have reassured my right hon. Friend and that he will feel able to withdraw his amendment.

Photo of Meg Munn Meg Munn Llafur, Sheffield, Heeley

As a former practitioner and a constituency MP, I want briefly to tell the Minister that this is an incredibly  important area. The issue of continuing health care has been enormously complex over the years. Twenty years ago we used to have a debate about whether somebody needed a bath as a health bath or a social bath—I always thought a social bath was perhaps where more than one person was involved. However, at the end of the debate nobody disagreed that somebody needed a bath, but we would spend an enormous amount of time deciding whether it should be provided by somebody, say, from the district nursing service or from a care service. It was not a very helpful way to proceed.

Much more fundamentally, I have had cases in my constituency recently where somebody had payments and a very personalised service. Suddenly, following a period in hospital, they were deemed to be eligible for continuing health care support. Through that they lost control over the decisions about what kind of care and support they could have, so the issues that the right hon. Member for Sutton and Cheam has raised—about both the funding and the ability to make those kind of decisions—are fundamental.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I assume that the hon. Lady will be pleased that we have legislated to provide a right to request a personal health budget if someone has NHS continuing care. It comes in from April, and from October this year there will be a right to have a personal budget. This is the first time that we have given a patient control over resources within health care. It is an enormously significant advance and it narrows the gap between social care and health care. It means that when someone’s condition deteriorates and they move from support within social care to become entitled to NHS continuing care, from October they will not lose that control. They will have a right to maintain control over it.

Photo of Meg Munn Meg Munn Llafur, Sheffield, Heeley

I very much welcome that and agree that it will, I hope, give greater continuity of overall care and achieve the holistic approach for which I have been arguing throughout the Committee. I also welcome the fact that we will look at regulations on this matter. Over time, regulations create the opportunity for Government to respond to changes out there and identify where there are problems. Whatever the intentions are—I think they are proper in terms of establishing this difference—I am convinced that there will be difficulties, as there always are, in implementation, not least because we continue to be in a time of great austerity and cuts.

I do not particularly want to harp on about that. My fundamental point is that this issue causes a lot of problems for people and will continue to do so. Therefore I am pleased to note that there will be regulations on this. Obviously, the opportunity to see and comment on them would be greatly appreciated.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

I echo the point about control when it comes to CHC. One of the frustrations was that a one-size-fits-all approach was taken—“You can have this or not.” As a Minister, I had to sign a number of authorisations to allow PCTs to start effectively to operate a direct payment system for that very reason. It is good that we are now going to have that policy translated into the system that the Minister has described. I listened incredibly carefully to what he said. Today’s amendment was intended to probe. This is not one of those occasions when I can offer the Minister any  suggestion that I have been persuaded, because I have not—I really have not. There are unintended consequences, and if there is no change, they will be in an Act. A benign Government such as this one, with their clear commitment to keeping the boundary where it is, will be able to do that through regulation, but a less benign Government, under financial pressure or whatever it might be, will be able to use the regulation to move the boundary.

What we will do is allow secondary legislation to be the place in future where the boundary is tested, debated and changed. To me that seems the wrong place to do it. We have a clear establishment of case law in this area and that is not fully embodied in the drafting of the clause. I will look for ways to return to this issue. I hope I will continue to have conversations with the Minister about it. I am dissatisfied with his response, but I will not press the matter to a Division today. However, I may wish to divide the House on this issue if I get the opportunity at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.