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Lord Hunt of Kings Heath: My Lords, I know Mr Whittaker and I have great respect for his views. All I was saying was that the Government have taken very careful note of the comments that have come back as a result of the Fit for the Future? consultation. While physical standards are important--and it is worth making the point that previous governments have also required standards in relation to room sizes--I very much accept the point that, at the end of the day, it is quality which counts. Our endeavour, through the regulations and the national minimum standards, will be to ensure that that comes through in the regulatory process.

Baroness Barker: My Lords, I take a great deal of heart from the Minister's response. I believe that he shares our concern about the emphasis being on quality of care rather than physical standards.

However, I return to a point made by the noble Earl, Lord Howe, in relation to one of his earlier amendments. People who are now being cared for in residential and nursing homes are of a greater degree of frailty than ever before. Care providers realise that for many older people, particularly those who are mentally frail, moving them from the establishment in which they live is seriously disadvantageous to their health. Therefore, increasingly, clinical treatment will be given in those establishments.

However, I take heart from what the Minister said. I shall not press the amendment at this stage. However, I suggest to the Minister that as clinical governance becomes, perhaps, the guiding force in the provision of local services, we may well find that work on the ground is ahead of the Government and that clinical governance will be applied more widely. However, I take on board the points that the Minister made and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 34 not moved.]

Lord Hunt of Kings Heath moved Amendments Nos. 35 to 39:

    Page 12, line 26, leave out paragraph (a).

    Page 12, line 30, leave out ("such") and insert ("children's").

    Page 12, line 38, leave out ("such") and insert ("children's").

    Page 12, line 39, leave out ("subsections (1) and (3)") and insert ("this section").

On Question, amendments agreed to.

[Amendment No. 40 not moved.]

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7.15 p.m.

Clause 22 [National minimum standards]:

Earl Howe moved Amendment No. 41:

    Page 12, line 47, at end insert--

("( ) In preparing or amending the standards set out in the statements, the appropriate minister shall consult any person whom he considers it appropriate to consult.").

The noble Earl said: My Lords, we move to a pair of issues which I raised in Committee and about which I feel increasingly exercised relating to the setting of minimum standards; namely, the case for consultation and for parliamentary scrutiny.

In moving Amendment No. 41, I shall speak also to Amendment No. 42. Since our debates in Committee, a lot of water has flowed under the bridge in the sense that the consultation exercise on Fit for the Future? has now been concluded and the Government have had a considerable further period in which to reflect on their approach to minimum standards for care homes.

I do not wish to confine my remarks purely to care homes because the ramifications of the amendments run much wider. But care homes are a good place to start.

When speaking to an earlier amendment, I mentioned the huge pall of uncertainty that has descended on the care homes sector in the wake of Fit for the Future?. In a sense, some of that uncertainty was an inevitable price to pay for any honest attempt--and I accept that this is an honest attempt by the Government--to raise standards in care homes. What has been unfortunate with this particular exercise, with the greatest respect to those responsible for the CPA proposals, is that what emerged from it, taken as a whole, was neither practicable nor balanced. As I said previously, the suggested CPA standards were too numerous and, in some cases, were over-prescriptive. Others, such as the staffing ratios, were ill thought through.

The signals emanating from the Department of Health in recent weeks have suggested that those concerns have been fully taken on board and that what will emerge--it is hoped, quite soon--will be something a good deal more manageable and considered. Perhaps the Minister will enlighten us on that if he is in a position to do so.

But, at the end of the day, there are lessons to be learnt. One is that the whole process of setting minimum standards may have a profoundly destabilising effect on an industry. The Government's view appears to be that given a transition period of a few years, most care homes willing to upgrade will be able to do so. A transition period of five years has been talked about, albeit unofficially.

But it is no good talking of a five-year period of grace when the reality is that lending institutions and providers of capital will not contemplate lending further money to the bulk of the sector, at least until existing debt--typically long-term money of 10 to 20 years' duration--has been repaid.

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Furthermore, lending institutions need good security. While some flexibility in enforcing minimum standards may be good in certain circumstances, there is another side to that coin. How is a bank supposed to know whether a care home represents good security if there is continuing uncertainty over whether or not it meets the standards? The way Clause 22 is framed means that such uncertainty is bound to occur. What kind of a standard is it that is neither a regulation nor mandatory but which, in some as yet undefined way, must be taken into account? Will the Minister comment on that?

All the minimum standards which issue from this Bill, not only those that relate to care homes but those for boarding schools, independent hospitals, agencies and so on, will be of the most profound significance for those sectors of the care and healthcare industries. The biggest single question that arises from them will be the question of who pays. So far, we have not had much reassurance on that question from the Government.

I am concerned about the ethics of a Bill which imposes new requirements on individuals and businesses, requirements which have the potential to put those people out of business, a Bill which contains no provision to contribute to the costs of meeting those requirements and which allows for the requirements to be imposed by a Minister at the stroke of a pen without any reference to Parliament.

To a layman, there would seem to be human rights implications here but we are assured by the Government that that is not the case. However, at the very least, Parliament should be afforded the opportunity, if it so chooses, to debate each set of minimum standards. It is simply not adequate for the Minister to say, as he did in Committee, that parliamentary scrutiny of the minimum standards is unnecessary when the regulations on which they are based will already have been laid before Parliament.

In my respectful submission, that is no substitute for Parliament being able to sanction the detail and to ratify measures which, as I have explained, will be of the deepest significance for the registered services in question.

The Bill makes no provision for consultation. I do not regard that as acceptable. If the Government intend to consult anyway, as any reasonable government would, why do they not put that on the face of the Bill? The amendment is framed in such a way as to give the Secretary of State discretion to consult only a limited circle of organisations in the event of changes of a very minor nature being proposed. I hope that the Minister will take on board the concerns that I have expressed. I beg to move.

Lord Clement-Jones: My Lords, I want to indicate agreement with the spirit of these amendments particularly since, unlike similar amendments in Committee, they go to the process rather than to the content of the regulations. The process is the key here.

In relation to the Fit for the Future? draft standards, which I support, I do not believe that it is at all subversive to believe that the process by which they are

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put into practice should be absolutely clear and put forward in the way that the noble Earl, Lord Howe, suggested.

There are major implications, and certainly I have had a degree of correspondence since Committee stage. They concern access to care homes, availability, costs incurred by such homes, and indeed the local employment which is provided by such care homes. All these matters are raised by the nature of the standards themselves. It is therefore absolutely key that there should be a proper consultation process. It seems to me that a process such as that described by the noble Earl is certainly one way forward. I hope that the Minister, even if he cannot accept this particular modus operandi, will consider something rather stronger than the provisions in the Bill at present.

Lord Jenkin of Roding: My Lords, perhaps I may put a question to the Minister. In an earlier amendment, my noble friend on the Front Bench spelt out what is clearly a very serious situation facing the owners of many of these care homes. I shall not weary the House by repeating what he said, because he has referred to the subject again on this amendment.

On the earlier amendment, the Minister said that he did not think that the picture was as black as it had been painted. I think that he owes it to the House to give us some evidence of that. The question I want to ask is: is he satisfied that those who are making this complaint--I am sure that complaints are being addressed to his department and not only to the Conservative and Liberal Democrat Front Benches--are giving accurate figures of the financial position which they face? I ask that question because some years ago, as a constituency MP, I found myself caught up in a dispute over the amounts that the local authorities were paying for residents in private care homes and what the care home owners were saying that it cost them to provide those services.

The complaint rather fell to the ground when, one after another, the home owners said, "We are not disclosing our figures" and I said to them, "Well, it is no good coming to weep on my shoulder. Unless I have the figures I cannot pursue the claim either with the local authority or with the Secretary of State". I came away with the impression that I was not being told the whole story and that in fact they were doing rather better than they were prepared to admit. They may have found that their margins were under pressure, and that was why they were complaining.

So the question I ask is: given the seriousness of today's situation, which seems to me to be of a completely different order of magnitude, is the Minister now satisfied that the correct figures are being disclosed and, if they are not, should not the department be actively pursuing the matter so that the Government can be satisfied that their rather more optimistic noises--more optimistic than have come from this side of the House--may well be justified?

When the Minister responded earlier, he quoted figures of the number of homes that are being bought and sold. With the greatest respect, I am not sure that

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that meets the case. If people are having to sell in substantial numbers, they may find somebody, some new person, who says, "I can make a go of this and I will take it on" whereas the truth of the matter may be that at the end of the transaction he may be in exactly the same position as his predecessor. The Minister did not laugh this off, but one can underestimate the seriousness of what appears to be affecting this sector at the moment. The real worry is that if the number of beds decline at a time when the population is ageing and its needs are growing, that has very serious implications indeed.

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