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Health and Care Bill

My Lords, I start with the amendments on ICB membership, children’s palliative care, hospital discharge and adult social care.

On integrated care boards, I hope noble Lords will recognise that the Government have listened to both this House and the other place. We have proposed some changes to the drafting of Amendment 105 in the name of the noble Lord, Lord Bradley, which I am aware that the noble Lord has seen. We hope that he recognises that our amendment in lieu meets the original intent of his amendment.

On Amendment 11, we hope that Amendment 11A in lieu, proposed in the other place, meets the expectations of your Lordships’ House. To avoid a number of unintended consequences or implications, we proposed an amendment in lieu that will ensure that those who pose a threat to the independence of the health service are excluded from the ICB and its committees. We have applied the same test to committees as we have to the main board, and the conflict of interest provisions and safeguards in the Bill also apply. We are grateful for the discussions on this question that we have had with noble Lords, including with the Front Bench opposite, and we hope that this amendment will be satisfactory.

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I now turn to one of the first areas where the other place has chosen to disagree with the amendments made by this House: hospital discharges. The Government listened to the strength of feeling expressed by your Lordships’ House, and I am grateful to many noble Lords —in particular, the noble Baronesses, Lady Pitkeathley and Lady Wheeler—for their insights and persistence in ensuring that we try to get this right. We are also grateful to Carers UK for working with the department to co-produce the new statutory guidance on hospital discharge.

The Government wholly agree that carers should be involved in discharge planning where appropriate. Our amendment in lieu achieves this in a way that can be implemented effectively and does not create unintended discharge delays. It introduces a new duty on NHS trusts and foundation trusts to involve both patients and carers in discharge planning. It explicitly states that they should be involved as soon as is feasible. Unlike Schedule 3 to the Care Act, this duty applies whenever the adult patient has care and support needs following discharge.

Existing discharge guidance stresses that discharge teams should consider carers’ preferences and ascertain whether they are willing and able to provide care and support post-discharge before an assessment of longer-term needs. This will be set out in the new statutory guidance, and because people should not be put under undue pressure to provide care, we will stress that no assumptions should be made about their willingness or ability to care. We anticipate that the new duty, supported by this statutory guidance, will promote a culture of including carers in decision-making while avoiding some of the unintended consequences.

We have heard the concerns expressed in this House about young carers being left out of discharge planning. This duty includes young carers, and statutory guidance will also highlight existing duties for hospitals to notify local authorities if they identify a young carer or have concerns. Local authorities must then carry out a young carer’s needs assessment if it appears that the young carer may have a need for support. Similarly, robust protections already exist in law for parent carers and sibling carers of a disabled child. We will continue working closely with the Department for Education to ensure that we use guidance to signpost existing rights and protections.

Existing carers’ rights to an assessment of their own needs will remain unchanged under the new arrangements. Guidance will make it clear that hospital staff should make carers aware of these rights and signpost them to relevant services. This should trigger local authorities to carry out assessments and put in place support for those who are eligible. I hope that noble Lords will feel reassured that this amendment achieves much of what Amendment 51 sought to achieve, while not putting barriers in the way of local areas adopting the discharge to assess model.

I turn to dispute resolution in children’s palliative care. We ask the House to support the amendment passed by the other place in lieu of Amendment 90. This requires the Secretary of State to commission a review of the causes of disagreements in the care of critically ill children between the providers of care and persons with parental responsibility, how we can avoid those disagreements and how we can sensitively handle their resolution. This report will be laid before Parliament with a set of recommendations, alongside the Government’s response.

We share the aim of the noble Baroness, Lady Finlay, to ensure that best practice is embedded across the system, but our efforts should be focused on working together to develop holistic evidence-based solutions. There are already a number of examples of best practice and work in this area, but more can and should be done. From the work already undertaken, it is clear that there needs to be a focus on making sure that everyone involved, especially families, understands the process and has their voices heard. No final decisions have been taken on how this independent review will be carried out or who will run it, but the department will engage with relevant stakeholders, including the noble Baroness, to develop its scope. The review will engage with a broad range of stakeholders to gather evidence. We expect this to include evidence from

parents and clinicians who have been involved in children’s palliative care disputes, including disputes that did not progress to court.

Finally, we turn to the issue of the adult social care cap. We strongly recommend that the House consider accepting the settled view of the other place and retain the clause. The Government’s Motion also contains several crucial amendments to support the operation of charging reform. These changes were originally tabled in this House but were lost through the removal of the clause on Report.

The Government have announced their plan for a sustainable social care system. It is the only affordable plan on the table. It is also the only fair plan on the table, ending unpredictable care costs for everyone by introducing the £86,000 cap on an individual’s personal care costs. We heard the suggestion that the cap on care costs is somehow a target for everybody. That is absolutely not the case: it is meant as a protection, a backstop. It is also vital to recognise that where someone is drawing on care in their own home or is in a residential home, but has a qualifying relative such as a partner or child still living at home, their housing assets are not taken into account at all when working out how much they need to pay.

Removing the Government’s cap on care costs would be fundamentally unfair. It cannot be right that two people living in different parts of the country, contributing the same amount, should progress towards the cap at different rates based on differences in the amount their local authority is paying. If a less well-off person living in Hertfordshire got more of their care paid for by their local council than someone making exactly the same contribution to their care in Hartlepool, the person from Hertfordshire would hit the cap first, through something neither person had control over.

A final important point is that those who oppose the Government’s proposed approach to how the cap works may not have compared it in a like-for-like way with the parameters proposed in 2014, when the Care Bill was passed—proposals that were never implemented because they ended up being unaffordable. The analysis typically accepts the more generous elements of the Government’s plans before opposing the elements where we have had to make some very difficult trade-offs.

Reverting to the unfair form of metering in the Care Act, while keeping the more generous parts of the Government’s plans, would cost about £900 million per year by 2027-28. To make the same level of savings we would have to raise the cap, reduce means-testing support or expect people to make contributions towards their daily living costs that are unaffordable from most people’s income. None of these are desirable options. Opposing Motion G in my name and supporting Motion G1 would result in additional cost, plus the additional funding required to cover the cost of free care of people under the age of 40 with a disability.

Amendments 80P and 80Q, tabled by the noble Baroness, request a regulation-making power which would force trailblazer local authorities to implement a metering-at-cost policy. It would be wrong to trial and report on a policy which the Government are not implementing. This would clearly affect financial

arrangements to be made by the other place. As such, we believe that these amendments involve financial privilege.

The Government have also previously considered this issue and concluded that the fairest system was for the cap to be the same for everybody, no matter their age, where they live in the country or the nature of the care and support they need to draw on. Younger adults will benefit from the announced charging reforms. From 6 April 2022, the social care allowances are being uprated in line with inflation to allow everyone to keep more of their income. The Government’s reform plan also includes a more generous means test, which means that more people will be eligible earlier for state support towards the cost of care, reducing the amount that people will have to pay for their care each week.

I am afraid that we will also be opposing Motion G2 in the name of my noble friend Lord Lansley. It seeks to amend a primary power and would enable the introduction of a percentage cap, which is currently not possible under Section 15 of the Care Act 2014. The Government considered a percentage cap previously, but even Sir Andrew Dilnot, after looking at the issue for some time, considered it unworkable.

People’s asset values fluctuate regularly, and regular assessments would have to be made to ensure that they are paying the right amount for their care. Such a system would be intrusive for people who must comply with full disclosure of all assets. The likely consequence is that some people would avoid approaching their local authority to seek the care they need. It would also mean that if somebody’s circumstances changed and the value of their chargeable assets changed significantly —for example, if they entered residential care or their spouse died—the level of their cap would change very significantly too. Nobody would be able to plan for what their future care costs might be, and, of course, far more people would need to have their assets assessed.

Therefore, after careful consideration, the Government decided against a percentage cap and in favour of a flat cap. The Government do not think it helpful to suggest through an amendment to primary legislation that something is workable and implementable when we know it is not in practice. Furthermore, this House cannot be expected to assess such a complex proposal at this late stage of the Bill.

We on the Government Benches must insist on Motion G and that this clause be restored with the necessary additional amendments to support the operation of charging reform. The other place has now voted on these clauses twice, and overwhelmingly. In opposing it, this House could be directly undermining the Government’s attempts to put social care on a sustainable footing for years to come and thwarting the clear will of the democratically elected Chamber. I gently urge noble Lords that this matter should not be returned to the House of Commons.

Finally, I am afraid we must also reject Amendment 81. While we agree on the need to make progress, it is not in the interests of good government to be forced to implement reform of this complexity and scale through a deadline set in primary legislation—and the other place shares this view.

We are getting on and implementing social care reform. We have operational guidance out for consultation. We have announced a small number of local authorities that will act as trailblazers to test the reforms from January 2023, but we must take time to engage with local authorities as they build the necessary infrastructure and use these trials to refine delivery systems and guidance ahead of a full national rollout. We must go through the learning process.

I remain grateful for all the work and consideration this House has given to the Bill and I hope that noble Lords will feel able to accept the Motions standing in my name.