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Earl Howe: I am grateful to noble Lords who took part in the debate. It has been useful, and I thank the Minister for his reply. As he said, the key objective is that everyone should have confidence in the panels. If they do not, his aspiration that their recommendations will be accepted in most cases will not be realised. I am sure that the way forward is as he suggested in his final remarks; that the Government should look at the draft regulations, take account of the comments on them and try to find ways of building a local authority involvement in the selection of the panels.

With regard to the amendment spoken to by my noble friend Lady Noakes, the essence of her argument was that that there should be a retrospective regulatory impact assessment of the dispute panels. After a period of time, we should be able to gain a sense of the burdens they are placing on the disputing parties. It is not merely a question of computing the cost of the panels in pounds and pence, but of all the work that goes into preparing cases, which will result in us being able to see the burdens to which, sad to say, the Bill will give rise.

However, I note the Minister's comments. I did not expect him to warm to the amendments, but they raise a fundamental point; that we are into the territory of further regulation, even though it is on the public rather than the private sector. I shall read carefully what has been said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

[Amendments Nos. 100 to 108 not moved.]

Clause 6 agreed to.

Clause 7 [Adjustments between social services authorities]:

Lord Hunt of Kings Heath moved Amendment No. 109:


On Question, amendment agreed to.

Baroness Barker moved Amendment No. 110:


    Page 6, line 19, at end insert—


"(d) to recover from the responsible NHS body expenditure incurred as the responsible authority for a patient's case in the performance of functions wrongly required of the social services department under section 2(1)(b)."

The noble Baroness said: Amendments Nos. 110 and 111 have not previously been spoken to. The Bill is unclear on the adjustments between social services authorities. Amendment No. 110 would give to social services departments the power to recover from the

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responsible NHS bodies costs which they had to make when they had wrongly been determined to be the responsible body. As a result of our discussions yesterday, Members of the Committee will be aware that the NHS decides which is the responsible local authority and not the local authorities themselves. It therefore seems only fair and equitable that if a social services authority has wrongly been deemed to be responsible for a patient's care, it should be able to recover its costs.

Amendment No. 111, which I accept is not well drafted, is a probing amendment. It deals with adjustments and the issues of ordinary residents. When older people have undergone acute hospital care, they often want to move. There may be good reasons for that desire; for instance, to be closer to their families. It is also the case that under the directive at their disposal they may choose to have their subsequent care in the authority. What will happen when different authorities have different charging regimes and different eligibility criteria? What will happen when different authorities run different financial assessments?

Under the Bill, what is deemed to be a responsible authority—that in which the person is deemed to live or to be registered with a GP and therefore a PCT—may find itself having to make payments and meet costs for services provided by another responsible authority which are wholly different. The Minister will correct me if I am wrong, but I see nothing in the regulations which covers that circumstance. It is not unusual because Members of the Committee may recall the instance cited by the noble Baroness, Lady Richardson of Calow, at Second Reading. It related to her husband. The PCT area in which he is registered is several hundred miles away from the area in which he lives in a residential home.

I apologise to the Committee if the nature of the drafting is somewhat deficient, but the two amendments seek to deal with those issues. I beg to move.

Lord Lucas: Will the Minister tell us what Amendment No. 109 was about? We rather hurried past it and I intended to ask questions on it.

Lord Hunt of Kings Heath: I apologise for that. The first amendment in the group, Amendment No. 97, was not moved and I am afraid that confused me. Amendment No. 109 tidies up an anomaly created by a previous amendment to Clause 2. Originally it was thought that regulations would be needed to deal with patients where there was uncertainty as to their ordinary residence. However, that uncertainty is now covered in Clause 2 by the fact that the NHS notifies the social services authority where the patient appears to be ordinarily resident.

As regards what is meant by "ordinarily resident", raised by the noble Baroness, Lady Barker, in some cases it is clear where an individual is ordinarily resident and therefore which council should have responsibility for providing the person with community care services upon discharge. However,

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the noble Baroness is right in saying that sometimes it is far from clear. For example, a person may have been living away from home for work, or with a relative for a period of time, before going into hospital. In such cases, it is necessary to consider the particular details of the case in order to decide where the person was ordinarily resident. That includes how permanent the move was.

Local authorities are well used to making decisions on such cases. In other cases, a patient's ordinary residence might change throughout the course of a hospital stay; for example, he and the person with whom he is living move house. In that case, the ordinary residence will change with the change of permanent address. Clause 7(2) therefore allows regulations to be made to provide for what will happen in such circumstances. That confirms that the arrangements for cases where ordinary residences are unclear, which are currently applied in such cases, cover all community care services and are formalised.

Local authorities are currently expected to, and indeed have to, take responsibility in respect of residential accommodation and other services under the National Assistance Act 1948, while any ordinary residence dispute is resolved. If the authority which provided the service is found not to be the responsible authority, it is entitled to be reimbursed for its expenditure. In this clause, we simply seek to follow the system through.

In practice, local authorities are used to dealing with disputes of ordinary residence in this way and we want to ensure that in future, regardless of whether a person's place of ordinary residence is in dispute, one authority will always take responsibility until the dispute is resolved.

The noble Baroness, Lady Barker, raised an interesting question about charging. Charging varies only for domiciliary care services and since they are delivered where the person is resident, it should rarely be a problem. If a person does decide to move, then the advice given is that the person should be informed of a change in charges and given the same level of care as previously.

On the general point, I think the Bill provides sensibly for the circumstances. It ensures that a dispute over ordinary residence is sorted out later, if it has to be, but that there is no hiatus in providing the services which need to be provided under the legislation.

Baroness Barker: I thank the Minister for that response. My amendments seek to address two issues: one is the question of ordinary residence, the other is the responsible authority. I am not sure that they are always the same. Indeed, I think that a distinction is made in the Bill.

I have read the consultation which led to the redrafted guidance covering the responsible authority. Although I do not have the consultation to hand—the Minister will correct me if I am wrong—where there is a dispute, one of the key determining factors is not where the person lives, but is where they are registered

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with a GP, and under which PCT area the general practice is registered. Perhaps the noble Lord will write to me on this point before the Report stage.

The point on which I seek clarity is this. When we discuss putting in place a seamless health and social care package for an individual following hospital discharge, one of the key elements that must be considered, aside from responsibility, is the question of who will provide and pay for those services. That may be clearer within the NHS than it is within local authorities. Thus the question of differences in rates for which services are charged has now become an issue. I am not sure whether the Bill necessarily takes the point fully on board. However, I am prepared to wait for the Minister to write to me on the matter.

Lord Hunt of Kings Heath: I shall be glad to respond to the noble Baroness if she wishes to write to me. However, I am not sure that I have followed the point. Here we are discussing the responsibility placed on the local authority. I do not see how registration with a GP comes into it. Perhaps I have missed a point, but it will be clear where the patient has been treated and thus which NHS trust is concerned.

Baroness Barker: Yes, the Minister is right on that point. However, we are talking about a package of continuing health and social care for a person who may have moved. That is the point I wish to make.


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