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House of Lords

Wednesday, 7 May 2014.

3 pm

Prayers—read by the Lord Bishop of Leicester.

Care: Older People

Question

3.06 pm

Asked by Baroness Wheeler

To ask Her Majesty’s Government what response they intend to make to the findings of the Age UK report Care in Crisis on the impact of cuts to care for older people.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, social care is a priority for this Government, which is why we have allocated an extra £1.1 billion to councils this year to protect services. We are building on this by creating a £3.8 billion fund next year to join up NHS and social care services. Both health and social care need to work differently to respond to the needs of our ageing population, focusing on keeping people well and living independently for as long as possible.

Baroness Wheeler (Lab): I thank the Minister for his response. Age UK’s report found that social care cuts between 2010 and 2013 have resulted in 168,000 older people no longer receiving help with essential tasks such as eating, washing and getting dressed. The Nuffield Trust recently put the figure over four years at 250,000 people who have lost state funding support. In the light of today’s developments, can the Minister please comment on what is now happening to the Better Care Fund and when does he expect to update the House fully on why the launch of the fund has been delayed? The Minister knows that the fund basically uses resources already committed to shoring up the existing reduced level of services and that there is no new money in it. We now learn that the Cabinet Office says that the fund lacks financial credibility, in particular as to how on earth local hospitals are to save money to move care into the community in the current climate of substantial cuts. How does the Minister think progress can be made on the transfer to community care amidst the chaos and confusion into which this policy has now fallen?

Earl Howe: My Lords, I can assure the noble Baroness that there is no chaos and confusion. As regards reduced numbers, which was where the noble Baroness started, the transformation in the service model that we are promoting focuses above all on prevention and is designed to enable people to live independently for longer, as I said earlier, so as to reduce the number of people who are dependent on formal care. Councils have told us that lower social care user numbers are partly due to the success of their core prevention

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work, but also due to increased use of re-ablement services for people who leave hospital to help them get back on their feet. As regards the Better Care Fund, there has been no delay there. We wanted to set aside enough time to make sure that all areas of the country have developed comprehensive plans for joined-up care. The better care plans start from April next year, as the noble Baroness is aware, and we have asked for early versions to be completed a year in advance so that we can review them, check their level of ambition and test how they will be delivered. That is what is happening now and we are broadly on track with the programme.

Baroness Uddin (Non-Afl): My Lords, people with autism spectrum disorder often spend much of their lives dependent on their parents, who are likely to die before them. In the light of the evident local authority distinction between critical and substantial eligibility thresholds, how will the Government ensure that people with autism are supported into old age by a social care system that helps those with moderate needs to live independently for as long as possible?

Earl Howe: My Lords, the national eligibility threshold has been set at a level to reflect the most common current practice of local authorities. That will allow current practice in 98% of local authorities to continue as it does at present. The national minimum threshold will mean that people with autism, others who need care and carers will know what level of need is eligible for local authority care, no matter where they live in the country. I think most people welcome the element of the Care Bill that gave that certainty.

Baroness Barker (LD): My Lords, one of the objectives of the Better Care Fund is to reduce demand on the NHS by improving preventive social care. Local authorities have sought to put more money into the Better Care Fund than the Government originally asked them to. Can the Minister say what the NHS’s response to the Better Care Fund proposals has been?

Earl Howe: The short answer to my noble friend is that it is too soon to say as the plans are currently in formation. However, the whole idea of the Better Care Fund is to enable joint working. It is an opportunity to make the best use of available resources and improve value for money through the collaborative redesign of existing services. The pay for performance element of the fund should incentivise local areas to make efficiencies and will provide initial evidence of the impact of the Better Care Fund on savings and outcomes.

Lord Patel of Bradford (Lab): My Lords, the Minister will be aware that the Royal College of Psychiatrists carried out a recent survey which found that 11% of NHS trusts had cut specialist psychiatric teams that specialise in working with older people. A similar number of trusts are planning to disband their specialist psychiatric teams across the country. That is having a huge impact on older people who have to go all

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around the country for a specialist service. What assessment have the Government made in respect of those cuts?

Earl Howe: My Lords, as the noble Lord is aware, specialised services are the responsibility of NHS England. We have charged it in the mandate and through regulations to make sure that there is comprehensive specialised cover for mental health services and other services throughout the country. For less specialised services, we expect the parity of esteem principle to apply, and CCGs are being held to account by NHS England to achieve that.

Baroness Wilkins (Lab): My Lords, what is the Minister’s response to the recent Nuffield Trust report, which warns that the Government are now “flying blind” in planning services for vulnerable older people because there is no way of assessing the true impact that social care cuts are having on their lives? Does he agree that the recent abolition of the Independent Living Fund, with no ring-fencing of the transferred resources, will only exacerbate the social care crisis?

Earl Howe: My Lords, the Government are not flying blind on this issue. Social care has remained a priority for us, which is why in every year since 2011 we have invested significantly from the NHS into social care, and with a health benefit, as I mentioned earlier. That has enabled councils to give relative protection to social care in implementing their savings. The noble Baroness shakes her head, but the figures are very clear. Spending on adult social care services has been protected to a much greater degree than other service areas. One cannot expect them to be wholly protected. Local authorities have reduced spending on other services by a good deal more than they have on adult social care services.

Baroness Wall of New Barnet (Lab): My Lords, does the noble Earl accept that the real crisis in care for older people is the closure of many beds within local communities, which forces hospitals such as my own, Barnet and Chase Farm, to hold on to those people when they should not be in a hospital? They do not need medical treatment and are very vulnerable to hospital diseases. That is where the real crisis is. Barnet and Enfield is closing beds inside care homes, which affects not only the length of stay but the impact we have on older people, which bothers us greatly.

Earl Howe: My Lords, that kind of issue should be absolutely central to the planning that the health and well-being boards undertake, with both the NHS and social services working together to ensure that there are enough beds from year to year. It is difficult to make generalisations about this. The noble Baroness mentioned her own area, which she knows very well. I am concerned to hear that Barnet and Enfield is straining in that sense, but, if she would like to speak to me about this, I am of course ready to see her.

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Commonhold and Leasehold Reform Act 2002

Question

3.15 pm

Asked by Baroness Gardner of Parkes

To ask Her Majesty’s Government whether they intend to honour the commitment made to review the Commonhold and Leasehold Reform Act 2002 10 years after its implementation.

Baroness Gardner of Parkes (Con): My Lords, I beg leave to ask the Question standing in my name and declare that my interest is on the register.

The Minister of State, Ministry of Justice (Lord Faulks) (Con): My Lords, the Commonhold and Leasehold Reform Act 2002 introduced commonhold ownership and made numerous reforms to long leasehold law. Although the Government monitor the take-up of commonhold and continue to respond to concerns about the working of leasehold legislation, they have no current plans to carry out a formal review of the Act.

Baroness Gardner of Parkes: I thank the noble Lord, but it is 12 years since this law was passed and 11 sections are still listed as not in force, which seems rather a lot. Tenants and leaseholders, on the whole, are most interested in Sections 152 and 154, which provide for transparency and the protection of their deposits. However, we have had answers to Oral Questions in both Houses saying that the DCLG has a “watching brief” on this matter. Will he tell me how you move from a watching brief to a review, and which department would do that?

Lord Faulks: My noble friend is right that Sections 152 and, I think, 156 of the Commonhold and Leasehold Reform Act have not been brought into force. These deal with service charge information and the right to hold service charges in designated accounts. The Government consider actively whatever form of words is used, regardless of whether it is necessary to intervene by legislation. However, they are concerned with not overburdening either freeholders or leaseholders with unnecessarily elaborate provisions. They are also satisfied that, for the most part, the rights of leaseholders are protected by a number of provisions, some of which were brought in by the 2002 Act, particularly in relation to service charges, enfranchisement and protecting leaseholders from landlords in certain circumstances.

Lord Elystan-Morgan (CB): My Lords, does the Minister agree that—despite the attractiveness of the provisions that have been brought into force in the 2002 Act for many joint users of amenity premises, and indeed the popularity of such a system in many other common-law jurisdictions—it seems to have been almost totally ignored, both by practitioners and the general public? Is it possible that the rather ponderous procedures of registration at the Land Registry may be responsible? Have the Government held consultations with the

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Law Society and other appropriate bodies with a view to simplifying these systems and possibly making them cheaper?

Lord Faulks: I hope I understand the noble Lord to be referring to commonhold as one of the options that was made available by the 2002 Act. It is true that it was thought by all those involved with the legislation that there would be much greater take-up than there has in fact been in commonhold, which is popular in other parts of the world. However, the Government do not feel that it is appropriate to force people to go into commonhold arrangements. We welcome any attempt to bring it to people’s attention as an option. It is interesting that it is not taken up by any of those who write about the subject or by practitioners who should be advising their clients on whether it is appropriate. The Government stand ready to encourage it, in so far as it is appropriate for the Government to intervene in private arrangements.

Baroness Hayter of Kentish Town (Lab): The noble Lord the Minister must surely know that there are delays occurring between an application for a hearing relating to a right to manage and the First-tier Tribunal hearing the case. There is then another delay in getting an outcome. However, when I asked a Written Question on that, the noble Lord, Lord Newby, replied that such information on timings was not available. Surely the Government need to know things like that, to know how this Act is working. Will the Minister put the research in hand so that we can have such information?

Lord Faulks: As the noble Baroness will know, the question goes across departments—that for housing and the Ministry of Justice. I do not have the details available but I will certainly ask for inquiries to be made along the lines of the question.

Lord Swinfen (Con): My Lords, do the Government have any plans to control residential rents?

Lord Faulks: My Lords, the Government have no plans whatever to control rents. It appears that the party opposite is unsure as to whether this is a good idea. In fact, rental increases are below the rate of inflation. Last time, a rent freeze, which is partially proposed by the party opposite, caused the sector to shrink from over half to just 8%. Our intention is to improve the rental housing market, not to destroy it.

Lord Best (CB): My Lords, I return to commonhold and leasehold and pay tribute to the noble Baroness, Lady Gardner of Parkes, for her tenacity in raising this issue on many occasions. Would the Minister be willing to meet some of the Members of your Lordships’ House who recently got together to look at these issues? We discovered that there are quite a number of relatively modest reforms which would make a difference to leaseholders’ lives but which at the moment are not receiving attention. Would he and perhaps some of his officials be willing to meet a group of us to discuss that?

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Lord Faulks: I join the noble Lord in paying tribute to my noble friend for her tenacity, and indeed I pay tribute to the noble Lord himself for his consistent interest in this subject. I would be happy to arrange a meeting, probably involving the housing department as well as the Ministry of Justice. I will try to organise that in the nearish future.

Baroness Maddock (LD): My Lords—

Lord Foulkes of Cumnock (Lab): My Lords—

Noble Lords: This side!

The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con): My Lords, I think that we ought to hear from the Liberal Democrats. I always try to be very fair. On the first Question, there were five Labour questions, so I think that we should hear from the Liberal Democrats.

Baroness Maddock: My Lords, as a member of the group that has met to consider these issues, I thank the Minister for saying that he will meet us. I will return to commonhold. It is quite incredible that many of us spent hours scrutinising the Bill well over 10 years ago. Since that 2002 Bill, there have been only 15 commonhold new developments and 152 units within blocks. That is not necessarily due to a lack of interest: there are significant obstacles for both old and new properties. Given the time that has been spent on this matter, I really think it is time that we as a Government looked at post-legislative scrutiny much more seriously, particularly in cases such as this.

Lord Faulks: My noble friend knows about post-legislative scrutiny. This Government and, I am sure, the Opposition are anxious to have such scrutiny in appropriate circumstances. The Act will take its place along with other legislation where scrutiny is appropriate.

NHS England: Health and Social Care Act 2012

Question

3.22 pm

Asked by Lord Hunt of Kings Heath

To ask Her Majesty’s Government whether they plan to amend the Health and Social Care Act 2012 to permit the Secretary of State to give day-to-day directions to NHS England.

Lord Hunt of Kings Heath (Lab): My Lords, I beg leave to ask the Question standing in my name on the Order Paper and draw Members’ attention to my interests.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, the Government have no such plans to amend the Health and Social Care Act 2012. We believe that the power and

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responsibility for commissioning services should be exercised by the healthcare professionals closest to patients. That is why we legislated through the Act to establish autonomous local clinical commissioning groups supported by NHS England, an independent and accountable national body.

Lord Hunt of Kings Heath: My Lords, that is a pity because the 2012 Act must be the most flawed piece of health legislation there has ever been. On the question of autonomy, first, can the noble Earl tell me why CCGs are not allowed to be autonomous and why they are subject to very overbearing, day-to-day control by NHS England? Secondly, because NHS England is discriminating against the funding of mental health services and against the precept of parity of esteem, why are the Government not intervening and telling NHS England to reverse its policy?

Earl Howe: My Lords, I do not accept that CCGs are subject to unreasonable controls from NHS England. It is the task of NHS England to support CCGs and hold them to account, and that is what I believe it is properly doing, not least through the outcomes framework. Ministers are not intervening on the question of mental health funding because funding is just one part of the story when it comes to parity of esteem. We have set NHS England a strategic objective to make measurable progress towards achieving true parity of esteem for mental health. NHS England is responsible for allocating funds to clinical commissioning groups, which are best placed to invest in services that meet the needs of their local communities. However, we will of course hold NHS England to account for that. What we must not do is to single out certain elements of the equation at this stage.

Lord Patel (CB): Can the Minister say whether the Ministers in the Department of Health are happy that NHS England has recommended a 20% deflater to tariffs for mental health that destroys any possibility of achieving any kind of parity of esteem?

Earl Howe: My Lords, we are not happy with that and, as I have said in the House before, Ministers have made it very clear to NHS England that this decision is both surprising and unwelcome in view of the need to maintain parity of esteem. NHS England, the NHS Trust Development Authority and Monitor are addressing this issue vigorously and we have regular discussions with those bodies to ensure that mental health services do not suffer.

Baroness Armstrong of Hill Top (Lab): My Lords, I wonder whether the Secretary of State now regrets supporting those aspects of the Bill—now an Act— that put him at a distance from interfering in the National Health Service and its agencies. Will the Minister nudge his colleague the Secretary of State to show that the level of micromanaging he is indulging in disempowers and disables the very people and organisations that his legislation put in charge?

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Earl Howe: My Lords, it is important for me to point out that the Secretary of State is acting entirely and properly within his powers. He is under a legal obligation to keep the performance of NHS England under review. That is in the Act. He would not be doing his job if he was not keeping in touch with NHS colleagues and talking and listening regularly to feedback about how things are going. He is accountable to patients and to Parliament and I do not think the public would expect anything less.

Baroness Brinton (LD): My Lords, given that many Ministers have spoken very clearly about the priority for parity of esteem for mental health and the answers that my noble friend the Minister has given to the noble Lord, Lord Hunt, and others, what more can the Government do if NHS England continues to refuse to allocate funding fairly for mental health?

Earl Howe: My Lords, as I have indicated already, we view funding as just one part of the story in achieving parity of esteem. However, we will hold NHS England rigorously to account for this and we have regular meetings to talk about that. We have set NHS England that strategic objective and we have singled out in particular action on crisis intervention, extending access to IAPT therapies and developing options around access and waiting time standards. Therefore there are a number of detailed issues that we expect NHS England to address.

Baroness Howarth of Breckland (CB): My Lords, can I ask the Minister to draw attention to one other area? I was alarmed to read in a recent POSTnote —the very last paragraph of a document that is often very factually based and helpful to the House—that HIV/AIDS is likely to suffer from being commissioned by one group, delivered by another and overseen by yet another. I am quite sure that that is an area where we would want good co-ordination, and I hope that the Minister will ensure that it is properly monitored.

Earl Howe: The noble Baroness is right to draw attention to sexual health services as an area that needs to be joined up. We are very aware of that. The commissioning arrangements are as she has stated but we are as confident as we can be that in most areas of the country the services are joined up, even if commissioned separately. It is an area that we keep under review very closely.

Eurotunnel: Structure and Charges

Question

3.29 pm

Asked by Lord Berkeley

To ask Her Majesty’s Government what action they plan to take to conclude the European Commission’s infraction proceedings in respect of Eurotunnel’s structure and charges.

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Lord Berkeley (Lab): My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as chairman of the Rail Freight Group.

The Minister of State, Department for Transport (Baroness Kramer) (LD): My Lords, I should like to take this opportunity to mark the recent 20th anniversary of services through the Channel Tunnel. The British and French Governments will move economic regulation of the tunnel from the Channel Tunnel Intergovernmental Commission to the Office of Rail Regulation and its French equivalent, and put in place a charging framework by March 2015. We are working with the French Government and anticipate that those commitments will be resolved by March next year.

Lord Berkeley: I thank the Minister for that Answer. First, I thank so many noble Lords who have campaigned for many years to get the charges for the Channel Tunnel down. It looks as though the figure for freight will come down by between 25% and 40% which is a great achievement. I congratulate the Commission, the two Governments and, of course, Eurotunnel for reaching this agreement. Will the Minister now turn her attention to France, where there is a big problem? We can get through the Channel Tunnel more quickly and cheaply, but reliability and the general obstruction from the French railways are putting a serious stop on further traffic. Will the Minister encourage the Commission to go for the liberalisation package that is currently before Parliament and the Council to try to ensure that France is not the blockage to more traffic that Eurotunnel used to be?

Baroness Kramer: My Lords, the Government are very committed to the single market. We have been strong supporters of the freight corridor strategies that will now extend from the Channel Tunnel through to London, as well as extending the reach across the continent. I take very much to heart the words expressed by the noble Lord, Lord Berkeley, and I will follow up on his proposal.

Lord Bradshaw (LD): I am pleased to hear what the noble Lord opposite said about freight charges. Charges for passengers using the Channel Tunnel are so high that I ask my noble friend to consider whether Eurotunnel is abusing its monopoly position so that the market might be open to more providers and better services.

Baroness Kramer: As my noble friend Lord Bradshaw knows, part of the agreement that predated the infraction, which is the subject of this Question, is that the Channel Tunnel Intergovernmental Commission will be replaced by the Office of Rail Regulation for the UK side of the tunnel and by its equivalent, ARAF on the French side. Their powers will be enhanced and they will put in place a charging strategy. My noble friend will be aware, however, that when the tunnel was built, to achieve that financing, certain concessions and rights were given, which obviously predate the relevant European directives. We recognise that we must honour those contractual commitments, although

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they have changed somewhat over time, as has the EU. I do not want to give too strong a commitment to my noble friend Lord Bradshaw, but I can say that the issues he raises are being looked at seriously.

Lord Davies of Oldham (Lab): My Lords, the Minister can bask in the congratulations to the Government and all those involved on the progress that has been made recently on the operation of the tunnel. Will she concede that progress has been due partially to the threat from the European Commission to take infraction proceedings against the British and French Governments unless there was improvement? In the areas of improvement that are scheduled, is she able to include the possibility in the near future of train services to Frankfurt operated by Deutsche Bahn?

Baroness Kramer: My Lords, I am aware that a number of train companies are now looking at potential services through the Channel Tunnel. We would obviously welcome that as it expands the range of choice for people in the UK who wish to use the train. It would obviously create another avenue for tourism into the UK. As we build HS2, which will extend high-speed lines in the UK, it will enhance the use of high-speed and rail travel to the continent as well. I understand that there are no significant barriers; it is a matter of finding appropriate commercial arrangements, which I would leave to the commercial parties involved.

Lord Dobbs (Con): Is my noble friend aware that some 300,000 French citizens live in this country? Some estimates put it even higher, and the number is growing. Indeed, the Mayor of London, Boris Johnson, reckons that he is in charge of the sixth largest French city on the planet. Does my noble friend put the great and growing attractions of this country in French eyes down to cheap fares, or might it have more to do with the cautious but creative economic strategy being pursued so successfully by her right honourable friend the Chancellor of the Exchequer?

Baroness Kramer: I can see that this is a wide-ranging question. Perhaps I may just say that, as a Londoner and as a true Brit, I find living in this country to be exceedingly attractive. I am not at all surprised that it is highly attractive to the French, especially those with an entrepreneurial turn of mind.

Lord Lea of Crondall (Lab): Is the Minister aware that the real moral of this story is that strong EU rules are needed to make the single market work in the interests of the customer?

Baroness Kramer: I very much agree that a single market can exist only when there is effective regulation. The UK would have said that the prior arrangements had the necessary stamina, but we are very welcoming of the new shape of economic regulation that will have an impact on the Channel Tunnel as we go forward.

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Buckinghamshire County Council (Filming on Highways) Bill [HL]

Motion to Resolve

3.36 pm

Moved by The Chairman of Committees

That this House resolves that the promoters of the Buckinghamshire County Council (Filming on Highways) Bill [HL] which was originally introduced in this House on 22 January 2014 should have leave to suspend any further proceedings on the bill in order to proceed with it, if they think fit, in the next Session of Parliament according to the provisions of Private Business Standing Order 150A (Suspension of bills).

Motion agreed.

Care Bill [HL]

Care Bill [HL]

Commons Amendments

3.37 pm

Relevant document: 27th Report from the Delegated Powers Committee.

Motion on Amendments 1 to 10

Moved by Earl Howe

That this House do agree with the Commons in their amendments 1 to 10.

1: Clause 7, page 8, line 23, leave out subsection (6)

2: Clause 17, page 16, line 34, leave out “will not” and insert “is not permitted to, or may (but need not),”

3: Clause 17, page 16, line 43, leave out “will not” and insert “is not permitted to, or may (but need not),”

4: Clause 25, page 24, line 21, at end insert—

“(14) The regulations may in particular specify that the paragraphs in question do not apply as regards specified needs or matters.”

5: Clause 26, Page 24, line 40, at end insert—

“(4) Regulations may make provision for excluding costs to a local authority from a personal budget if the costs are incurred in meeting needs for which the authority—

(a) does not make a charge, or

(b) is not permitted to make a charge.”

6: Clause 33, Page 29, line 22, at end insert—

“(da) cases or circumstances in which an adult who lacks capacity to request the making of direct payments must or may nonetheless be regarded for the purposes of this Part or the regulations as having capacity to do so;”

7: Clause 33, page 29, line 24, leave out “request the making of direct payments” and insert “make such a request”

8: Clause 33, page 29, line 25, leave out “the purposes of this Part or the regulations” and insert “any of those purposes”

9: Clause 34, Page 30, line 36, after “amount” insert “or loan”

10: Clause 34, page 30, line 38, after “amount” insert “or loan”

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I would like to place on record my thanks to all noble Lords for the spirit of collaboration and constructive criticism that has characterised our formal and informal discussions leading up to this moment. Your Lordships examined

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the Bill thoroughly when it started in this House, and made many excellent proposals as to how it could be improved. Many of these were taken up in the other place, and I believe that we now have a better Bill before us. Noble Lords’ suggestions have influenced not only the Government’s amendments but also the surrounding policy and our proposals for forthcoming secondary legislation and guidance.

In moving the Motion on the first amendments made in the other place, I hope noble Lords will think it convenient to consider a number of others, to which no amendments have been proposed. Many are small technical changes to clarify the provisions further and correct previous oversights. Amendments 1, 12 to 31 and 34 to 36 are minor and technical, and do three things. First, they ensure that cross-references to the Children and Families Act 2014 and consequential changes to it are accurately reflected in the Care Bill. Secondly, they include further definitions in the glossary at Clause 79(1) to ensure maximum clarity. Thirdly, they make further changes to fully reflect amendments in this House to remove the requirement for a transition assessment to be requested.

Amendments 2 and 3 relate to the issue of charging by local authorities and simply clarify the scope of the regulation-making powers, as I set out when we considered this on Report. They ensure that regulations can specify where local authorities do have the power to be more generous and contribute to the costs of an adult above the financial limit, as well as where they do not.

Amendment 4 clarifies that the regulation-making power at Clause 25(13) allows the regulations to specify cases where aspects of the care and support plan, including the personal budget, are not required. We have always been clear that there may be cases where aspects of care planning are not appropriate. An example is the inclusion in a personal budget of costs relating to the provision of reablement. This also reflects current practice and we intend to continue this arrangement through regulations.

Amendment 5 allows regulations to specify where certain costs do not have to form part of the personal budget, and thus do not count towards the cap on care costs. Again, it has always been the intention that some care and support provision, such as reablement, should be provided as a universal, free service and therefore should not be incorporated in the personal budget. This regulation-making power is limited to services that the local authority cannot make a charge for, or chooses not to. There is no way that this can apply to general care and support that the local authority can charge for.

Amendments 6 to 8 allow regulations to make provision for cases where a person with a direct payment has a period of fluctuating capacity, so that the local authority could or should, depending on the circumstances, continue with the original direct payment arrangements. This will provide continuity and prevent the direct payment having to be terminated.

Amendments 9 and 10 are technical amendments that address an uncertainty caused by a drafting omission. They make it clear that deferred payments, whether they are deferred charges or a deferred repayment of a loan, can either be paid back in whole or part.

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I turn now to Amendment 32, which provides for a broad regulation-making power specific to appeals of decisions made under Part 1 of the Care Bill. This power gives us the flexibility to provide for a range of options depending on further work to ensure that we achieve the outcomes that people have told us are important to them. We will specify the details of the policy in regulations.

Given the changes introduced by the Care Bill, it is vital that individuals have confidence in the care and support system, and that they are able to challenge decisions without having to resort to judicial review. We held a consultation during the second half of last year on how best we could ensure this. Following this consultation, we have recognised the need for change. Amendment 32 will give us the scope to develop with stakeholders detailed proposals for an appeals system, keeping to the spirit of co-production that has characterised our work on other areas of the Bill.

This is an important and complicated issue and we need to make sure that we take time to get the detail right, drawing on experience from other sectors and ensuring that the changes are aligned with the broader changes to NHS and social care redress following the Francis report and the Clwyd review. We are working actively with our various partners and stakeholders to develop our policy on this, and we will consult further as part of wider consultations on regulations and guidance later this year.

As noble Lords may know, the Delegated Powers and Regulatory Reform Committee today reported on the amendments made in the other place to the Care Bill. It made two recommendations in relation to Amendments 32 and 46, which I am pleased to say the Government accept. Accordingly, I have today tabled Amendments 32A to D and Amendments 46A to E to give effect to those recommendations.

Addressing the first recommendation, Amendment 46B ensures that regulations made on the first exercise of the power in Amendment 32 establishing the care and support appeals process would be subject to the affirmative procedure. The remaining amendments respond to the concern of the committee as to the meaning of the reference to “modifying” an enactment. Our amendments spell out that the power is to provide that a provision of an enactment may apply with modifications. Similar amendments are made to similarly worded provisions elsewhere in the Bill to ensure consistency.

The amendments also ensure that where any regulations relating to the appeals process make provision that provides for a provision of an Act of Parliament—that is, primary legislation to apply with modifications—then such regulations must be made using the affirmative procedure. Again, in the interests of consistency, similar amendments provide that certain other regulations under the Bill—which might also provide for the modification of the application of an Act of Parliament —should be made using the affirmative process.

I turn to Amendment 33. Feedback from local authorities is that it would make sense for them to have the flexibility to be able to delegate functions relating to direct payments if they so wish. We agree, and have accordingly tabled an amendment to remove the prohibition around this.

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3.45 pm

I now turn to amendments made in the other place to Part 2. Amendment 37 relates to the fit and proper person test. The department has recently consulted on a new requirement for registration with the CQC which will specify that directors of registered providers will need to be fit and proper persons to fulfil their role. This will fill a gap in the current arrangements for accountability to the CQC. It is our intention that the regulation will come into force in October. The key responsibility for the fitness of directors will continue to lie with providers themselves, but the new requirement will enable the CQC to form its own judgement about the fitness of directors. In cases where the CQC cannot be assured that a director is fit, it will be able to either refuse registration or place a condition on the provider which would require the removal of that director. It is only right that in such cases the individual director, as well as the registered service provider, has a right of appeal against the CQC’s actions. This new clause introduces a right of appeal to the First-tier Tribunal for individuals who are removed from their post as a result of action taken by the CQC.

The Government made changes in this House on Report to clarify that the CQC will only undertake routine performance assessments of the provision of regulated activities. Amendment 38 is consequential to this, removing a remaining reference to local authorities that could be confusing.

Moving on to Part 3, government Amendment 39 relates to the remit of the Health Research Authority. It makes explicit that the HRA’s functions do not generally extend to research which relates to children’s social care alone. It has always been our intention that this body’s functions relate to health research and adult social care research. The amendment clarifies that remit, ensuring that it is clearly and accurately defined.

These changes reflect our determination to get the detail of the Bill absolutely right, rather than a change in policy. I hope these amendments will receive the approval of the House without the need to detain ourselves long.

Amendment 44 establishes the Better Care Fund to promote joint working between the NHS and social care. Amendments 47 and 51 ensure the title and commencement reflects the Better Care Fund provisions.

The Better Care Fund combines £3.8 billion of NHS and local authority funding, which will be jointly invested in integrated care. Successive Governments and leading health professionals have talked about joining up health and social care for decades. The Better Care Fund is a major step to making this a reality and transforming the way people are cared for closer to home. Despite recent news coverage suggesting the contrary, the Better Care Fund has not been suspended, and in every part of the country the NHS and local government are sitting down together and agreeing plans for integrated health and social care.

We have set aside time to make sure that all areas have developed comprehensive plans for joined-up care. The better care plans start from April 2015, and as I mentioned at Oral Questions, we asked for early versions to be completed a year in advance so that we could review and check their level of ambition and test

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how they would be delivered. That is what is happening now. Although plans remain under development, we can all be encouraged by early indications that many areas are choosing to pool additional funding, meaning they will join up the funding and commissioning of an even wider range of services. The

Local Government Chronicle

reports, for example, that seven authorities—Hertfordshire, Lincolnshire, Dorset, Sheffield, Sunderland, Bournemouth and Poole, and Salford—plan pooled budgets in excess of £100 million.

Amendment 44 creates the legal framework for NHS involvement in the Better Care Fund by ensuring that CCGs pool budgets with local government for use on integrated care. It is primarily enabling legislation because the mandate will include objectives and requirements for how the fund will operate. The amendment enables the mandate to specify what funding the NHS should contribute and the need to work with local government.

NHS England will ensure that the pooling happens between CCGs and local authorities. It will have powers to tell CCGs what amount to include in the pooled budget and will release the funding only once it is satisfied that there is a robust, locally agreed integration plan. It could also attach other conditions to the funding, including performance objectives such as improved patient and user experience and reduced emergency admissions. A new duty requires NHS England to use these powers in the combined interest of health and social care.

The Better Care Fund is a crucial part of the wider change needed in the way in which the health and care systems work together to secure better care for people. Work is well under way with the development of local plans and this legislation will support those plans to become a reality. With that lengthy explanation, for which I apologise, I beg to move.

Baroness Wheeler (Lab): My Lords, I thank the Minister for his full and thorough explanation of the Government’s changes to the Bill since it left this House. We will deal with each issue as it comes up. I will deal with Amendments 1 to 10, 44 and 46 to 51 on the Better Care Fund, and Amendments 12 to 39 on the care and support appeals process.

In light of today’s revelations about the Government’s problems with the aims and operations of the Better Care Fund, perhaps I might ask a couple more questions that follow on from the earlier exchange with the Minister on this matter. The Government’s technical amendments—Amendments 1 to 10, 44 and 46 to 51 —on the fund and achieving integration of care and support between the NHS and local authorities are straightforward. Of course, whether the fund can ever achieve what it set out to achieve looks like a very different matter.

The Cabinet Office review has found that the £3.8 billion fund lacks financial credibility. The Nuffield Trust says that it is based on “flawed logic”. The King’s Fund says that the aim stressed by the Minister earlier to get spending plans in place for the fund in time for the 2015-16 Budget is “completely unrealistic”. Its chief executive, Chris Ham, points out in today’s Guardian what many of us have been stressing all

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along, despite supporting the principle of and need for the fund; namely, that hospital budgets can be reduced only if much more care is already being provided in the community by GPs, community nurses and staff who are supporting patients in their homes. He says that just cutting NHS hospital budgets now would place,

“additional stress on an NHS already struggling to balance the books and maintain acceptable standards of patient care”.

Surely that is the point. Taken with the huge underfunding of local authority social care highlighted by the Age UK report Care in Crisis that was referred to earlier, this is the underlying problem that has still to be addressed. The fund does nothing to address the huge social care funding gap that has led to the cuts in social care support that Age UK’s report has highlighted, particularly the ending of help with essential tasks for older people, such as eating, washing and getting dressed. Those are the very services that help them remain independent and living in their own homes with a good quality of life.

The Minister says the fund has not been suspended, but there are clearly problems. Can the Minister give us any further details about the Cabinet Office review findings, and in particular the concern about the lack of detail about how the savings will be achieved? What is the timescale for the further review referred to by several newspapers and the specialist press today? Can the Minister explain how progress is to be made in enabling older people to remain active and independent at home or in the community when there is just not the funding or support available to help them?

Finally, on the technical amendments to the care and support appeals process, we welcome the Government’s announcement accepting the two recommendations from the Delegated Powers Committee and fully support these government amendments.

Baroness Brinton (LD): My Lords, I have just one issue to raise, on Amendment 32 and the Government’s amendments in light of the Delegated Powers Committee report. I speak on behalf of a number of people who are grateful that the Government have been able to respond very quickly to this. It is much more sensible for this to be an affirmative instrument rather than a negative one.

Baroness Barker (LD): My Lords, in view of the press coverage today, perhaps I could ask the Minister to confirm a point. When the Better Care Fund was announced, the intention was that projects would start in April 2015. Is that still the Government’s intention or has the timescale been put back? What seems to me constructive is the move to have more engagement from the NHS in setting up the projects under the Better Care Fund. One key aspect of the Better Care Fund on which it rests is ensuring that there are enough strong and appropriate providers of community services to ensure that older people get the care in the community that they need.

The noble Baroness, Lady Wall, put a question during our earlier exchanges that went straight to this matter. You cannot simply close spaces in the NHS and expect that somehow people will be provided—magically, at a stroke—with services in the community. I quite see why people have leapt on this as a story, but

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I struggle to see the substantive issue. I go back to a point that was made earlier: how many times have we stood in your Lordships’ House and talked about integration of health and social care as being a desirable end that will deliver better services? It seems to me that the NHS may be questioning some matters to do with budgets. That is not a case for undermining the Government’s whole policy.

Earl Howe: My Lords, I am grateful for the contributions of noble Lords. I will begin by clarifying that the Better Care Fund has not been suspended or delayed. My noble friend was absolutely right to say how important and long-awaited this initiative is. Successive Governments and leading health professionals have talked about joining up health and social care for a very long time. The Better Care Fund is a major step to making this a reality. It will be in operation from April 2015, which was always the intention. For the press to suggest that the scheme has been suspended is completely wrong.

The Cabinet Office implementation unit conducted a deep-dive review of the Better Care Fund in six local areas following the submission of draft plans. This was a small sample of the 151 plans across England and was based on initial drafts that have since been redrafted. The review found that the Better Care Fund is generating pace around service integration, but there are areas where improvement is needed. These include insufficient engagement with primary care and acute providers in the development of Better Care Fund plans and a lack of practical detail and clarity about how cashable savings will be released.

Since receipt of the Cabinet Office report, officials have worked with NHS England and the Local Government Association to improve the offer of support for local areas to address the issues that have been raised. To give councils the resources to start making progress immediately, the NHS will transfer an additional £200 million to councils in 2014-15 on top of the £900 million already committed. This funding will be used for social care with a health benefit and to prepare for the introduction of the Better Care Fund.

We are only half way through the planning and preparation process for the Better Care Fund and it is very premature to imply or state that the fund is in trouble—far from it. One would expect different areas of the country to progress at different rates; that has always been the case. Many areas of the country have been integrating services very successfully for a number of years, so it should not be surprising to anybody that some areas need to catch up. We are on the case, and so are NHS England and the Local Government Association. I am confident that, as I said earlier, we are broadly on track in this area.

Motion agreed.

4 pm

Amendment 11A

Moved by Earl Howe

That this House do agree with the Commons in their Amendment 11 and do propose Amendment 11B and 11C in lieu of the words so left out of the Bill—

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11: Clause 48, leave out Clause 48

11B: Before clause 73, Insert the following new Clause—

“Human Rights Act 1998: provision of regulated care or support etc to be publicfunction

(1) This section applies where—

(a) in England, a registered care provider provides care and support to an adult or support to a carer, in the course of providing—

(i) personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii) residential accommodation together with nursing or personal care;

(b) in Wales, a person registered under Part 2 of the Care Standards Act 2000 provides care and support to an adult, or support to a carer, in the course of providing—

(i) personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii) residential accommodation together with nursing or personal care;

(c) in Scotland, a person provides advice, guidance or assistance to an adult or support to a carer, in the course of a care service which is registered under section 59 of the Public Services Reform (Scotland) Act 2010 and which consists of the provision of—

(i) personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii) residential accommodation together with nursing or personal care;

(d) in Northern Ireland, a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 provides advice, guidance or assistance to an adult or services to a carer, in the course of providing—

(i) personal care in a place where the adult receiving the personal care is living when the personal care is provided, or

(ii) residential accommodation together with nursing or personal care.

In this section “the care or support” means the care and support, support, advice, guidance, assistance or services provided as mentioned above, and “the provider” means the person who provides the care or support.

(2) The provider is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in providing the care or support, if the requirements of subsection (3) are met.

(3) The requirements are that—

(a) the care or support is arranged by an authority listed in column 1 of the Table below, or paid for (directly or indirectly, and in whole or in part) by such an authority, and

(b) the authority arranges or pays for the care or support under a provision listed in the corresponding entry in column 2 of the Table.

TABLE

AuthorityProvisions imposing duty or conferring power to meet needs

Local authority in England

Sections 2, 18, 19, 20, 38 and 49 of this Act.

Local authority in Wales

Part 4 and section 189 of the Social Services and Well-being (Wales) Act 2014.

Section 51 of this Act.

Local authority in Scotland

Sections 12, 13A, 13B and 14 of the Social Work (Scotland) Act 1968.

Section 3 of the Social Care (Self-directed Support) (Scotland) Act 2013.

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Health and Social Care trust

Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972.

Section 52 of this Act.

Authority (within the meaning of section 10 of the Carers and Direct Payments Act (Northern Ireland) 2002)

Section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.

(4) In this section—

“local authority in England” means a local authority for the purposes of this Part;

“local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2014;

“local authority in Scotland” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

“nursing care”, for England, Wales and Northern Ireland, has the same meaning as in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, as amended from time to time;

“personal care”—

(a) for England, Wales and Northern Ireland, has the same meaning as in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, as amended from time to time;

(b) for Scotland, has the same meaning as in Part 5 of the Public Services Reform (Scotland) Act 2010, as amended from time.”

11C: Clause 124, page 106, line 37, at end insert—

“(ba) section (Human Rights Act 1998: provision of regulated care or supportetc to be public function) (Human Rights Act 1998: provision of regulated care or support etc to be public function);”

Earl Howe: My Lords, I shall speak also to the other amendments in my name in this group. They respond to the excellent report from the Joint Committee on Human Rights and follow discussions that I have had with the noble Lord, Lord Low, and others. I am grateful to the Joint Committee and particularly to the noble Lord, Lord Low, who unfortunately is not able to be here today. I extend my thanks to my noble and learned friend Lord Mackay, my noble friend Lord Lester, the noble and learned Lord, Lord Hope of Craighead, and the noble Lords, Lord Pannick and Lord Warner, with whom I have had constructive meetings.

As has been said here and in the other place throughout the passage of the Bill, this Government need to send out a strong message to the sector not to allow abuse, neglect or harm. Our priority must be preventing harm, abuse and neglect happening in the first place.

However, Clause 48 as inserted by this House went too far. It applied the Human Rights Act to all provision of CQC-regulated social care. As the Joint Committee on Human Rights acknowledged, the Human Rights Act is not intended to cover entirely private arrangements. If Clause 48 became law, it would have been the first time that the Act applied directly to purely private arrangements where there is no state involvement. It could have led to other interest groups arguing that they should also be able to challenge private providers on human rights grounds in other spheres.

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We still believe that much stronger deterrents are available. Many of the Care Quality Commission’s fundamental standards will include human rights dimensions. These standards will apply to all registered providers of health and social care, and failure to comply with them could be a criminal offence.

However, as I have just said, I am aware of the strength of feeling on this matter and that is why I am today prepared to offer a government amendment which I hope this House can support. The amendment would make it explicit that care providers who are regulated by the Care Quality Commission in England or by equivalent bodies in the rest of the United Kingdom, when providing care and support arranged or funded in whole or in part by local authorities, are exercising a public function for the purposes of the Human Rights Act. I hope that noble Lords will agree that this amendment meets the objectives of the Joint Committee on Human Rights. It makes it clear that providers of publicly arranged or funded care and support, both residential and non-residential, provided on behalf of a local authority to an individual, are bound by the Human Rights Act.

The Government were unable to accept the JCHR amendment as it was drafted for technical reasons. The Human Rights Act is an entrenched enactment which the devolved legislatures cannot modify, but its application should be the same across the UK. Government Amendment 11B therefore applies the legislative clarification to Wales, Scotland and Northern Ireland.

It is important to bear in mind that the scope of application of the Human Rights Act matters to lots of other people beyond the care sector. The Government believe that it is not appropriate to pick and choose which people or bodies are expressly made subject to the Human Rights Act. That is why I want to make it clear that this amendment would not set a precedent for any future occasions where there are perceived to be gaps in the coverage of the Human Rights Act. I hope that this amendment will be welcomed. I beg to move.

Lord Lester of Herne Hill (LD): My Lords, I apologise to my noble friend for having missed the first few sentences of his speech. However, I heard the substantive part of it.

First, may I say on behalf of the Joint Committee on Human Rights, which met this morning, that the committee is absolutely delighted by how the Government have reacted to the problem that was raised in this House by the noble Lord, Lord Low, and many others, and which led to an amendment that—on reflection—was too strong? The amendment now tabled meets the problem admirably. The problem was created by an unfortunate decision of the Law Lords—by three to two—in the case of YL. As the Minister will know, the previous Government, like the present one, had been looking for an opportunity for that unfortunate judgment to be reconsidered in a suitable test case. However, no such case has arisen. The pity of it is that the whole point of the Human Rights Act was not to have a list of bodies that would be subject to the Act but to have a good, flexible test that would be fact-sensitive and would apply without the need for amendments of this

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kind. Unfortunately, no such test case has arisen where the matter could be properly decided, and therefore one has in a sense to use Elastoplast—sticking plaster—to deal with particular problems.

We quite understand the Government’s reservations about this being regarded as a precedent. As the Minister knows, ideologically there are some for whom the words Human Rights Act are almost anathema; that is why it required a certain amount of discussion to get to the present situation.

The Joint Committee sought clarification on just one matter. I do not think there is a problem; it is rather a matter of seeking confirmation that the Government intend the amendment to cover social care provided by a regulated provider and paid for by direct payments. It is not absolutely clear from the amendment that that is so. We think that it is so but is that correct? Do the Government intend the amendment to cover social care paid for by direct payments, provided that the care is purchased from a regulated provider? I am speaking extremely slowly, in order that others may be able to answer. No doubt others will want to say something about this amendment as well, but if that point could be confirmed in the Minister’s reply it would be very helpful. Nothing that I have said, however, should mask the delight we feel that this problem has been solved in this manner.

Lord Hope of Craighead (CB): My Lords, I would like to say a few words about this group of amendments.

First, I thank the Minister for his helpful explanation. I particularly want to say some things on behalf of the noble Lord, Lord Low, who very much regrets that he is not able to be here this afternoon. His amendment sought to make it clear that the provision of regulated care was a public function for the purposes of the Human Rights Act, within the umbrella of Section 6(2)(b) of that Act. As noble Lords know, it was not accepted in the other place and we now have a Government amendment which deals with that issue in rather different terms. It is a happy state of affairs to have that amendment in place.

The noble Lord, Lord Low, has authorised me to say two things. First, he very much welcomes the amendment and, secondly, he has asked me to express his appreciation for the way the Minister, and his colleague in another place—Norman Lamb—have listened to the views in both Houses and have worked very hard to secure an agreement on the current amendment across government. The noble Lord, Lord Low, appreciates all the work necessary to achieve that, and he wishes me to stress his grateful thanks. I associate myself with these remarks.

Perhaps I may say one or two things in the light of what the noble Lord, Lord Lester, said about the case of YL. That was a decision by the United Kingdom Supreme Court, not by the Law Lords in this House. It was a decision by the justices by majority, and there it is. That decision stands as good authority for the point that it made, which was that while the regulation of privately provided care by a local authority was a public function, the private provision of care itself was not. The interesting point about the case arises at the very end where the noble and learned Lord,

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Lord Neuberger, said that if the legislature was unhappy with the decision and thought it appropriate, it would be right to spell out in terms that Section 6(2)(b) of the Act applied to private bodies whose provision of care and accommodation was funded by a local authority. That was what he was thinking at the time. The point he was making was that there would be a mechanism for dealing with particular problems in a particular way. That solution has now been worked out by the Government in the way that we see before us.

I respectfully suggest that by doing this, the Government are not setting a precedent. So far as the judges are concerned, they would not regard it as such at all; the precedent is in the Act itself and is doing precisely what the noble and learned Lord, Lord Neuberger, had in mind. I do not regard it as any disadvantage to do it in this way; it is very satisfactory that it has been achieved as it has. It is a precisely targeted measure which, as I have been trying to explain, is exactly what the noble and learned Lord had in mind.

I hope that I might be permitted to ask three short questions. I apologise to the Minister for not having given notice of them, due to the short time available since the amendment was circulated. The first relates to the list we see in the table at the end of subsection (3) of the new clause, which seeks to set out the list of the authorities to which the measure applies and a list of the functions intended to be covered by the measure. The question is, simply: can we take it that the intention is that this list should catch all the circumstances where care or support is arranged or paid for by the authorities listed there? We have not been able to check this for ourselves but I assume that that is the intention. It would be helpful if the Minister could simply confirm that that was what was being intended.

The second question relates to situations where a personal contribution, of whatever kind, is made to the cost of the care or support arranged by the authority. The arrangement is the authority’s but the individual makes some contribution of his or her own. Again, it is a short question: can we take it that the requirements to which that subsection refers will be met in that situation, the critical point being that it is the public authority that has made the arrangement? I would have regarded that as the touchstone as to whether or not this provision applies.

The third question is rather related to that, and to the content of the care package that is being provided. There may be cases, for example, where people with learning disabilities or mental health problems may need some assistance to enable them to participate in the activities that are being provided or get access to them. This question is similar to the second one. Can we take it that here, too, although these people are somewhat outside the scope of the other statute, the position nevertheless is that because it is the authority making and regulating the provision, the provision will apply to it?

These points aside, on behalf of the others on these Benches who have participated in these debates, I express my great thanks to the Minister and all those who have been working very hard to achieve the happy result that we have this afternoon.

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4.15 pm

Baroness Barker (LD): My Lords, if it helps the Minister as he waits for some assistance in his response, I speak as one who has taken part in many of the discussions over the years. The Minister was right to acknowledge the work of a large number of people. One person who should be added to his list is the noble Baroness, Lady Greengross, who has worked tirelessly on this matter for some time. It is a measure of how long this debate has been running that when we first began to discuss it in this House, there were no direct payments for social care to anybody. Therefore, the matter did not arise. It is therefore extremely helpful that the Joint Committee on Human Rights has posed the question that it has. When we started, the scope to argue over what was a private arrangement and what was a public function was considerably less than it is now. Now, someone who has been assessed as needing and being entitled to social care may make an arrangement with a family member using a direct payment, but the question of whether it is a public function that is being discharged is still the one that goes to the heart of whether the Human Rights Act applies. It is extremely helpful that the Joint Committee has raised that question. Having got this far to overcome what has long been acknowledged as a tremendously unfair anomaly—whereby one older person in a residential home has rights and the person in the next room does not, simply because of who arranged, rather than funded, their care—let us get it right, at last.

Lord Mackay of Clashfern (Con): My Lords, as I took part in the debate in this House that secured the original amendment to the Bill, I should very much like to associate myself with the remarks of thanks to my noble friend Lord Howe and to Norman Lamb and others in the other place. I think the root of this difficulty was the decision of this House from which Lord Bingham dissented. That was an indication that the decision might require revision in due course.

Lord Rix (CB): My Lords, on behalf of learning disabled people and other vulnerable people I should like to thank the Government for making this amendment, which certainly ensures that their care will be greatly attended to in the future.

Baroness Wheeler: My Lords, briefly, I also support the Government’s amendment on this long-running but vital issue. As the House knows, we strongly supported the need for the amendment. We, too, warmly congratulate the noble Lord, Lord Low, on his dogged determination and efforts to achieve this outcome. We also thank noble Lords from across the House who have helped to bring this about. On these Benches, we recognise that this was very much unfinished business from the Labour Government. We congratulate the Minister on the hard work he has put into finding a way forward and to getting cross-government departmental agreement, which has been important. We recognise that the amendment is a very significant step. I was going to ask for clarification on a couple of issues, but they have been raised in the debate so I shall leave it there.

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Earl Howe: My Lords, I am naturally very pleased by the welcome that these amendments have received from around the House. I should like to thank those noble Lords who have spoken for their extremely helpful remarks, not least the noble and learned Lord, Lord Hope of Craighead, and my noble friends Lord Lester and Lady Barker.

My noble friend Lord Lester asked me whether the amendment covers social care provided by regulated providers paid for by direct payments. The answer is yes, it does. The words used are: if the local authority pays “directly or indirectly”. “Indirectly” is to cover direct payments when the local authority provides the money to the individual who then goes to the regulated provider him or herself. I hope that clarifies the point.

The noble and learned Lord, Lord Hope of Craighead, asked me three questions. First, he asked whether the intention is that the list in subsection (3) of the new clause should cover all care paid for by all local authorities around the country. Yes, that is the intention: all relevant regulated care and support across England and the devolved Administrations is included in the list. It is our intention that the effect of this clause should be the same across the UK. We have worked very closely with the devolved Administrations to ensure that this is the case as far as possible. There is a potential source of confusion in the wording because in Scottish legislation social care is referred to in different terminology, but the net effect of what we are doing should mean that this applies in an even-handed way across the country.

The noble and learned Lord’s second question was: where a personal contribution is made towards the cost of care, will those situations be covered—that is, a situation where the public authority has arranged the care? Yes, the wording in new subsection (3)(a) in the new clause includes the words,

“paid for (directly or indirectly, and in whole or in part) by such an authority”.

In other words, even if the local authority funds only part of the care, it will be covered.

The noble and learned Lord also asked about the content of the care package and whether the fact that the local authority is providing the care means that those with learning disabilities and mental health issues are covered. All those who are receiving regulated care and support arranged by the local authority will be covered. That includes situations where the local authority itself is providing the care or support. That is the existing situation, the amendment does not change it and these people remain fully covered.

My noble friend Lady Barker asked whether the effect of what we are doing means that the provider is performing a public function. Yes, any provider covered by this amendment would be carrying out a function of a public nature in that instance. I hope that I have covered the questions as fully and clearly as noble Lords would wish, and I beg to move.

Motion agreed.

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Motion on Amendments 12 to 31

Moved by Earl Howe

That this House do agree with the Commons in their Amendments 12 to 31.

12: Clause 60, page 51, line 37, leave out ““Parent” and “carer” each have” and insert ““Carer” has”

13: Clause 61, page 52, line 20, leave out “with “parent” having the meaning given in section 59”

14: Clause 62, page 53, line 19, at end insert—

“(5A) Where, in the case of a carer to whom a child’s carer’s assessment relates, the child becomes 18, the local authority must decide whether to treat the assessment as a carer’s assessment; and if the authority decides to do so, this Part applies to the child’s carer’s assessment as if it were a carer’s assessment that had been carried out after the child had become 18.

(5B) In considering what to decide under subsection (5A), a local authority must have regard to—

(a) when the child’s carer’s assessment was carried out, and (b) whether it appears to the authority that the circumstances of the carer to whom the child’s carer’s assessment relates have changed in a way that might affect the assessment.”

15: Clause 63, page 53, line 30, at end insert—

“(4) “Carer” has the same meaning as in section 61.”

16: Clause 64, page 54, line 20, leave out subsection (7)

17: Clause 65, page 55, line 40, leave out subsection (9)

18: Clause 67, page 56, leave out lines 43 to 46 and insert—

“(1) Subsections (2) to (4) apply where a local authority in England providing services for a child in need in the exercise of functions conferred by section 17—

(a) are required by section 59(1) or 64(1) of the Care Act 2014 to carry out a child’s needs assessment or young carer’s assessment in relation to the child, or

(b) are required by section 61(1) of that Act to carry out a child’s carer’s assessment in relation to a carer of the child.”

19: Clause 67, page 57, line 1, leave out “requested”

20: Clause 67, page 57, line 3, after “60(6)” insert “, 62(5A)”

21: Clause 67, page 57, line 7, leave out “requested”

22: Clause 67, page 57, line 9, after “60(6)” insert “, 62(5A)”

23: Clause 67, page 57, line 15, leave out “decide to comply with the request but”

24: Clause 67, page 57, line 21, at end insert—

“(4A) Subsection (5) applies where a local authority in England providing services for a child in need in the exercise of functions conferred by section 17—

(a) receive a request for a child’s needs assessment or young carer’s assessment to be carried out in relation to the child or for a child’s carer’s assessment to be carried out in relation to a carer of the child, but

(b) have yet to be required by section 59(1), 61(1) or 64(1) of the Care Act 2014 to carry out the assessment.”

25: Clause 67, page 57, line 38, after first “assessment”,” insert ““child’s carer’s assessment”,”

26: Clause 67, page 58, leave out lines 11 to 13 and insert—

“(1) Subsections (2) to (4) apply where a local authority in England making arrangements for a disabled child under section 2 are required by section 59(1) of the Care Act 2014 to carry out a child’s needs assessment in relation to the child.”

27: Clause 67, page 58, line 14, leave out “requested”

28: Clause 67, page 58, line 20, leave out “requested”

29: Clause 67, page 58, line 27, leave out “decide to comply with the request but”

7 May 2014 : Column 1492

30: Clause 67, page 58, line 33, at end insert—

“(4A) Subsection (5) applies where a local authority in England making arrangements for a disabled child under section 2—

(a) receive a request for a child’s needs assessment to be carried out in relation to the child, but

(b) have yet to be required by section 59(1) of the Care Act 2014 to carry out the assessment.”

31: Clause 67, page 59, line 6, leave out subsection (4)

Motion agreed.

Motion on Amendment 32

Moved by Earl Howe

That this House do agree with the Commons in their Amendment 32.

32: After Clause 72, insert the following new Clause—

“Part 1 appeals

(1) Regulations may make provision for appeals against decisions taken by a local authority in the exercise of functions under this Part in respect of an individual (including decisions taken before the coming into force of the first regulations made under this subsection).

(2) The regulations may in particular make provision about—

(a) who may (and may not) bring an appeal;

(b) grounds on which an appeal may be brought;

(c) pre-conditions for bringing an appeal;

(d) how an appeal is to be brought and dealt with (including time limits);

(e) who is to consider an appeal;

(f) matters to be taken into account (and disregarded) by the person or body considering an appeal;

(g) powers of the person or body deciding an appeal;

(h) what action is to be taken by a local authority as a result of an appeal decision;

(i) providing information about the right to bring an appeal, appeal procedures and other sources of information and advice;

(j) representation and support for an individual bringing or otherwise involved in an appeal;

(k) investigations into things done or not done by a person or body with power to consider an appeal.

(3) Provision about pre-conditions for bringing an appeal may require specified steps to have been taken before an appeal is brought.

(4) Provision about how an appeal is to be dealt with may include provision for—

(a) the appeal to be treated as, or as part of, an appeal brought or complaint made under another procedure;

(b) the appeal to be considered with any such appeal or complaint.

(5) Provision about who is to consider an appeal may include provision—

(a) establishing, or requiring or permitting the establishment of, a panel or other body to consider an appeal;

(b) requiring an appeal to be considered by, or by persons who include, persons with a specified description of expertise or experience.

(6) Provision about representation and support for an individual may include provision applying any provision of or made under section 68, with or without modifications.

(7) The regulations may make provision for—

(a) an appeal brought or complaint made under another procedure to be treated as, or as part of, an appeal brought under the regulations;

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(b) an appeal brought or complaint made under another procedure to be considered with an appeal brought under the regulations;

(c) matters raised in an appeal brought under the regulations to be taken into account by the person or body considering an appeal brought or complaint made under another procedure.

(8) The regulations may include provision conferring functions on a person or body established by or under an Act (including an Act passed after the passing of this Act); for that purpose, the regulations may amend, repeal, revoke or otherwise modify an enactment.

(9) Regulations may make provision, in relation to a case where an appeal is brought under regulations under subsection (1)—

(a) for any provision of this Part to apply, for a specified period, as if a decision (“the interim decision”) differing from the decision appealed against had been made;

(b) as to what the terms of the interim decision are, or as to how and by whom they are to be determined;

(c) for financial adjustments to be made following a decision on the appeal.

(10) The period specified under subsection (9)(a) may not begin earlier than the date on which the decision appealed against was made, or end later than the date on which the decision on the appeal takes effect.”

Amendment 32A (as an amendment to Commons Amendment 32)

Moved by Earl Howe

32A: Line 51, leave out “revoke or otherwise modify an enactment” and insert “or revoke an enactment, or provide for an enactment to apply with specified modifications”

Amendment agreed.

Amendment to the Motion

Moved by Earl Howe

As an amendment to the Motion that this House do agree with the Commons in their Amendment 32, as amended, at end insert “and do propose Amendments 32C and 32D as consequential amendments”.

32C: Clause 35, page 32, line 5, “revoke or otherwise modify an enactment” and insert “or revoke an enactment, or provide for an enactment to apply with specified modifications”

32D: Clause 119, page 103, line 42, “revoke or otherwise modify an enactment” and insert “or revoke an enactment, or provide for an enactment to apply with specified modifications.”

Amendment to the Motion agreed.

Motion on Amendments 33 to 39

Moved by Earl Howe

That this House do agree with the Commons in their Amendments 33 to 39.

33: Clause 78, page 69, line 39, leave out paragraph (d)

34: Clause 79, page 71, line 18, at end insert—

“Child’s carer’s assessment

Section 61(2)

Child’s needs assessment

Section 59(2)”

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35: Clause 79, page 71, line 29, at end insert—

“Parent

Section 59(6)”

36: Clause 79, page 72, line 3, at end insert—

“Young carer

Section 64(6)

Young carer’s assessment

Section 64(2)”

37: After Clause 85, insert the following new Clause—

“Rights of appeal

(1) In section 26 of the Health and Social Care Act 2008 (registration procedure: notice of proposals), after subsection (4) insert—

“(4A) Where a proposal under subsection (4) names an individual and specifies action that the Commission would require the registered person to take in relation to that individual, the Commission must give that individual notice in writing of the proposal.”

(2) In section 28 of that Act (notice of decisions), in subsection (6), for “subsection (7)” substitute “subsections (7) to (9)”.

(3) In that section, after subsection (7) insert—

“(8) But in a case where notice of the proposal has been given to an individual under section 26(4A) subsection (7) does not apply unless, by the time the Commission receives the applicant’s notification, it has received notification from the individual that he or she does not intend to appeal.

(9) And if the Commission receives notification from the individual after it receives the applicant’s notification and before the end of the period mentioned in subsection (6)(a), the decision is to take effect when the Commission receives the individual’s notification.””

38: Clause 89, page 80, line 29, leave out “or local authority”

39: Clause 108, page 95, line 2, after “individuals” insert “aged 18 or over who are”

Motion agreed.

Amendment 40A (Motion on Amendment 40)

Moved by Earl Howe

That this House do disagree with the Commons in their Amendment 40 but do propose Amendments 40B to 40E in lieu—

40: Clause 118, page 102, line 19, at end insert—

“(3A) After subsection (7) of that section insert—

“(8) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (5) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.”.”

40B: Clause 118, page 102, line 19, at end insert—

“(3A) In subsection (5)(a) of that section, for “would achieve the objective set out in section 65DA(1)(a)” substitute “—

(i) would achieve the objective set out in section 65DA(1)(a), and

(ii) would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner,”.”

(3B) After subsection (7) of that section insert—

7 May 2014 : Column 1495

“(8) Where the administrator recommends taking action in relation to another NHS foundation trust or an NHS trust, the references in subsection (5) to a commissioner also include a reference to a person to which the other NHS foundation trust or the NHS trust provides services under this Act that would be affected by the action.

(9) A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (5) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.

(10) Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.”

40C: Clause 118, page 102, line 21, at end insert—

“(4A) In subsection (4)(a) of that section, for “would achieve the objective set out in section 65DA(1)(a)” substitute “—

(i) would achieve the objective set out in section 65DA(1)(a), and (ii) would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust or NHS trust that provides services under this Act to the commissioner,”.”

40D: Clause 118, page 102, line 27, at end insert—

“(8) A service provided by an NHS foundation trust or an NHS trust is an essential service for the purposes of subsection (4) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.

(9) Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.””

40E: Clause 118, page 103, line 25, leave out from beginning to end of line 26 and insert—

““(2) In subsection (4)(a)(ii) of that section, omit “or NHS trust”.

(3) In subsection (7) of that section, omit “or an NHS trust” and “or the NHS trust”.

(4) In subsection (8) of that section, omit “or an NHS trust”.”

Earl Howe: My Lords, I shall also speak to the other amendments in my name in this group. The trust special administrator regime is of course not revolutionary or new, but was set up by the previous Government in 2009 as a way of dealing with exceptional and intractable failure at NHS provider trusts. Your Lordships will also know that, since the addition of provisions for a single failure regime, which we have discussed previously, a foundation trust could be placed into special administration both for quality as well as financial failures, in the same way that an NHS trust could be. We are strengthening the regime through changes made in the Bill but this does not change the fact that it is only to be used in cases of significant failure.

There are various actions that could happen before the regime is even considered. For minor concerns at an NHS trust or foundation trust, the CQC will use its inspection reports and ratings to highlight concerns and to call for improvement. Breaches of fundamental standards could lead to a trust being prosecuted, or a penalty notice in lieu of prosecution. Where there are serious failings, the CQC will issue a new warning notice, requiring the trust to make significant improvement within a specified time. Monitor and the TDA also have a range of intervention powers; for example, Monitor is able to remove, suspend or replace foundation trust governors or directors. Monitor and the TDA can also place trusts into special measures, which includes partnering with a high-performing hospital, regular publication of improvement plans and a full leadership review.

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Also, providers and their commissioners are expected to review the way that local clinical services are configured in the best interests of patients and in the context of quality and financial challenges. While a locally led service reconfiguration is not a panacea for all the challenges facing a provider, we would none the less expect options for reconfiguration to have been rigorously assessed. Ultimately, however, if it is impossible for a trust to turn itself around, it will be necessary to place it into the special administration regime, in order to safeguard taxpayer funding and the interests of patients. Trust special administrators would be appointed—and I make this point emphatically—only when all other suitable processes to develop sustainable, good healthcare have been exhausted.

That is the background to these amendments. I turn now to the amendments made in the other place. Amendment 41 would require any trust special administrator to consult formally other trusts, their staff and commissioners, who may be affected by his or her draft recommendations. This would match the extended remit of the administrator under Clause 118 with an express wider consultation requirement, ensuring that the final recommendations are informed by a proper understanding of the issues facing the entire local health system. Amendment 41 would also strengthen public and patient representation in the regime by requiring the administrator to consult local authorities in whose areas affected trusts provide services and local Healthwatch organisations in those areas. Amendment 43 is a minor and technical amendment. I hope that noble Lords will agree that the changes made in the other place further strengthen the regime and will offer the amendments their support.

I turn now to Amendment 41A tabled by the noble Lord, Lord Hunt, and Amendment 43A tabled by the noble Baroness, Lady Finlay. I hope that they will forgive me for addressing these amendments before they have been spoken to. The key underlying aim of these amendments is one with which I have complete sympathy, and I am grateful for the opportunity to make that clear in your Lordships’ House. It is absolutely the Government’s intention that essential services at other affected trusts should be respected during the process of trust administration just as much as the essential services at the failing trust. However, both amendments seek to achieve that aim by adding additional statutory objectives for the trust special administrator. I hope it will be helpful if I explain briefly why that is unnecessary and unworkable in practice.

4.30 pm

The trust special administrator’s regime must necessarily be focused on finding a solution for the trust in administration. That is its central purpose, and is why the statutory objective of trust special administration is for the administrator to secure the continued provision of the essential services of the failing trust. There is an important practical point here. When an administrator is appointed to a trust, he or she cannot anticipate at the outset which other trusts, and therefore which other commissioners, may be affected by the draft recommendations. It would therefore be impractical to divert the administrator at the outset to new objectives beyond the trust for which he or she is appointed.

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Nevertheless, he or she is expected to engage from the outset with other commissioners and providers in the wider area and if—I emphasise that word—the administrator decides that action in respect of other trusts is,

“necessary for and consequential on”,

action in relation to the failing trust, the administrator would have to take active steps to determine what their commissioners reasonably identify as being essential services. Our clear aim here is that such wider recommendations from the administrator must not harm those essential services.

I am therefore today moving Amendments 40A to 40E and 42A to 42C, which would put beyond doubt the Government’s position in this area. Those amendments would ensure that recommendations by an administrator at a foundation trust that affect other trusts must not harm their essential NHS services. Legislation already requires commissioners of a foundation trust in administration to agree the trust special administrator’s reports on the basis that the recommendations achieve the statutory objective of the special administration. Clause 118 already extends that agreement to affected commissioners of other trusts.

The amendments I am moving today would ensure that agreement was obtained from any commissioner of affected services provided by another trust that the TSA’s recommendations meet the objective of the trust in special administration, and do so without harming essential NHS services at the other affected trust. Therefore, essential NHS services would be equally protected under the regime, irrespective of where they are provided. Essential services at other affected trusts would be defined by reference to the same legal criterion that applies to commissioners of the trust in administration, thereby ensuring parity between all relevant commissioners. For the NHS trust regime, Clause 118 already requires the Secretary of State to produce guidance on seeking commissioner support and involving NHS England, and we will ensure that the key principles of parity between affected commissioners and the essential services they commission are captured in the guidance.

I am grateful to the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, for tabling these amendments, which have enabled me to set out our intentions. I hope that I have been able to reassure them and the House that we are committed to ensuring that commissioners are treated equally under the trust special administration regime. I beg to move.

Lord Hunt of Kings Heath (Lab): My Lords, my amendment is Amendment 41A. As this is a new stage of the Bill, I declare my interests as a consultant and trainer with Cumberlege Connections, president of GS1 and chair of a foundation trust.

I am grateful to the noble Earl, Lord Howe, because we have clearly come quite some way since he introduced at Third Reading in your Lordships’ House the amendment relating to the rules on hospital closures. I hope, however, that he might see his way to moving a little further this afternoon. Closing hospitals is never

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an easy thing to do and I see a number of former Ministers in your Lordships’ House who bear the scars of hospital closure decisions. In my view, there is no doubt an urgent need to reorder and reconfigure services to allow for the centralisation of many specialist services to improve patient outcomes. Where the clinical evidence is persuasive, I would always support those service changes. We need to be more wary where service changes take place purely on the grounds of financial problems in a particular trust, especially if those changes have a negative impact on well run neighbouring services, where consultation is truncated and if there is an uneven playing field between the different commissioners—which is the subject of the amendment of the noble Baroness, Lady Finlay.

This all arose because of the problems in the use of the special administrator mechanism in the case of Lewisham. The South London Healthcare Trust was in huge financial difficulty; a special administrator was appointed and recommended that Lewisham hospital should have its A&E department downgraded and lose some other services as well. This caused outrage locally because Lewisham was not part of the South London Healthcare Trust, but was a well run and popular hospital, pitchforked into helping to solve a problem that was not of its own making. This ended up in the courts, which found against the special administrator and the Secretary of State. The judge concluded that the Lewisham GP commissioners had not given support to the proposal, which consequently constituted an additional reason why the decision of the Secretary of State could not stand.

The noble Earl, Lord Howe, always reminds the House that the legislative power that was used in the case of Lewisham was enacted under a previous Government. Indeed it was, but I stress that the original power was designed for something entirely different. It put in place measures to dissolve and rescue a trust through administrative reconfiguration. We never saw it as a vehicle for back-door reconfiguration across the health economy. The concern about Clause 118 is that it could allow hospitals to be downgraded or closed simply because they happen to be near a failing one.

I have listened carefully to what the noble Earl has said about the uses of this power. In both Lewisham and Staffordshire, where the power has been used in relation to the previous legislation that the noble Earl has amended, it has run into considerable trouble. In Staffordshire, where the process has also been used, an announcement was made in the last week or so that it has been put on hold. Essentially, the proposals of the special administrator have been roundly rejected by the local community, which shows the issues and problems when this mechanism is used to reconfigure services rather than simply deal with an immediate financial problem of a trust in great difficulty.

In the debate in the House of Commons, there was obviously much concern about this. The Government agreed that a committee should be established, under the chairmanship of Mr Paul Burstow MP, to produce guidelines on the trust special administration process. My amendment is simply designed to give those guidelines some statutory force. The decision of the Government to agree to this was very important and I am sure that,

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when the guidelines are produced, they will be sensible and set the context in which this mechanism can be used in the future.

However, my argument to your Lordships this afternoon is that it would give even more assurance if those guidelines had to come before your Lordships’ House and the other place for scrutiny and presumably for a decision to allow them to go through if they were found to be acceptable. I follow the precedent set by the Mental Health Act 1983, which gives Parliament a veto over the code of practice that provides guidance to those who undertake duties under that Act. The noble Earl has clearly moved a great deal on this issue over the past few days but it would be nice if he moved a little further.

As he responded to my amendment and that of the noble Baroness, Lady Finlay, perhaps I may save time for the House by asking him a question about the amendment that he has tabled in response to the noble Baroness. In his letter to us of yesterday’s date, he said:

“Our amendment would ensure that agreement is obtained from each commissioner on the basis that the administrator’s recommendations meet the objectives of the trust special administration and that they do so without harming essential NHS services they commission from any other affected trusts”.

He went on to say:

“Essential services at other affected trusts would be defined according to the same legal criterion that applies to commissioners of the trust in administration, thereby ensuring parity between all relevant commissioners”.

The wording that I want to ask the noble Earl about is:

“Our amendment would ensure that agreement is obtained from each commissioner”.

Does that mean that any one commissioner therefore has a veto over an eventual decision? That is how I read his letter. If so, does he agree that if that were used in the case of Lewisham, because the Lewisham CCG objected to the proposals, the proposals would not have gone ahead? If he does agree with my interpretation of his letter, how does he square that with what Dr Dan Poulter said in the Commons on 11 March, reported at col. 267? He said that while all local commissioners have an equal say, NHS England will arbitrate in the event of a disagreement. If, in the end, NHS England will arbitrate, that does not fill me with great confidence. NHS England will simply agree in the main with the original recommendations, because I am afraid that that is the track record of NHS England. In order to get absolute clarity here, I wonder whether the noble Earl could clear up any confusion around that.

Baroness Finlay of Llandaff (CB): My Lords, I wish to speak to my Amendments 43A and 43B. I start by thanking the Minister and the Secretary of State for the amount of time they have afforded to me in discussing the concerns that lie behind my amendments. It is indeed correct that I was concerned that one clinical commissioning group commissioning from a failing trust could have a disproportionate say over the future. The government amendment, as tabled, addresses those concerns and I am most grateful to the Government for it. It establishes parity of commissioners by ensuring that there is no harm to essential services. I am also

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relieved that the Government are stating that the same legal criterion will be applied. Therefore, standard-setting across the services will establish that parity.

One of my concerns relates to the guidance. I would be grateful if the Minister could confirm that the committee of which Paul Burstow is the proposed chair will continue to exist. I think that there has been a lack of confidence among the public as a result of the publicity surrounding what happened at Lewisham. It will be very important that the guidance is seen to be drawn up and reported on separately. I must admit that I am uncertain about the mechanism for that. However, I certainly would be concerned if the detail of how the process is laid out is not openly and independently reviewed. The current guidance has to be rewritten anyway and that process could restore public confidence.

4.45 pm

I am also grateful to the Minister for having laid out clearly all the mechanisms that should be in place prior to the trust special administration being brought in, because that clarifies that the process cannot be used as a mechanism for reconfiguration. Reconfiguration should be through the commissioning processes but may be necessary when there is a failing trust—and indeed, there will be a need for changes in services. Service provision is dynamic: there is no fixed footprint for any service, and as advances happen in medicine and clinical care the place and the way that services are delivered will inevitably alter. However, good commissioning should adapt and allow those changes to happen without ever ending up with the trust special administration process having to be invoked.

I am grateful to the Government for having accepted my amendment. I understand why the last part of it was not taken up by them and actually agree with them because a consultation process has to have some time limits around it. The danger with the amendment as I had tabled it was that the consultation process could run and run and could stifle decision-making and end up effectively putting a planning blight on services and causing a deterioration in standards rather than a rectification of low standards and a raising of standards again. With that, I would like to say that I will not press my amendments.

Lord Turnbull (CB): My Lords, I welcome Amendment 40A and I am grateful to the Minister for listening to representations and responding to them. I always thought it was wrong that a special administrator investigating trust A could try to find a solution by plundering the resources of trust B, which was not in trouble, without giving it or its commissioning group the opportunity to make full representations. I also thought it was wrong that the Secretary of State could slip through what was in effect a restructuring of services in an area under the cloak of sorting out the problems in a particular trust.

However, there is a caveat and an unresolved issue that was hinted at by the noble Lord, Lord Hunt. The provision to put the troubled trust and its neighbours on an equal footing in terms of making representations should not be interpreted as giving other trusts a veto

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on all restructuring proposals. The present set-up of the NHS already provides more than enough pockets of resistance to change that may be necessary to achieve greater efficiency and higher clinical standards.

Such proposals for reconfiguration should be looked at on their own merits, regardless of whether the hospital concerned is a foundation hospital or has been developed using PFI. There should be no presumption that an error by one trust in the amount of debt it takes on should be visited on those who are unlucky enough to be adjacent to it. There could then be a stalemate at the conclusion of this process whereby the commissioners of the adjacent trust do not agree to surrender resources and services. The question then is how these issues are to be resolved, not simply in the context of the failing trust but in the context of the local health geography.

Lord Horam (Con): My Lords, we owe a debt of gratitude to the noble Baroness, Lady Finlay, for tabling an amendment to this Motion. I was present at the meeting yesterday, along with the noble Lord, Lord Hunt of Kings Heath, when we had a fruitful discussion on these issues. When I was the Member of Parliament for Orpington these matters were the bane of my life. The South London Hospitals Trust was a huge problem, as many noble Lords will be aware, with debts of around £150 million at one stage. Although at another period of my life I was a Minister for Health, I was specifically excluded from dealing with the problems of London hospitals because I was a London MP. It is ironic to get to a position of power where you might actually be able to do something for your constituency but then to be disempowered from dealing with it at all. None the less, that is the proper way to proceed.

It is worth bearing in mind that we have now got to a sensible position whereby there is parity in consultation, understanding and agreement between a commissioning group affected by the hospital trust’s special administrator and one which may be outside the trust and, therefore, nominally unaffected by it. Parity of esteem is the effect of the amendment tabled by the noble Baroness, Lady Finlay. I am grateful to the Minister for responding so positively on these matters: we have now reached a very sensible position. However, we should not believe that that is enough. It is a necessary condition for resolving some of these problems but it is not sufficient. Ironically, in the case of Lewisham and the South London Hospitals Trust, there was a very good consultation, called A Picture of Health, which lasted for two years and encompassed all the hospital trusts in south-east London. It was very extensive—and expensive, if I may say so—but it came to the wrong conclusion. The conclusion was that Lewisham should continue as a hospital trust on its own and that the other three principal hospitals—Queen Elizabeth, Woolwich, Princess Royal University Hospital, Bromley and St Mary’s, Sidcup—should all be put into one huge trust. That never worked and that particular trust has had to have special measures to deal with its financial problems.

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That excellent consultation ultimately reached the wrong conclusions. Ironically, the rather more short-circuited consultations conducted by the special administrator led to rather better conclusions. We now have a solution on the Bromley side of things, as it is now a part of King’s College Hospital NHS Trust. It has effectively been taken over by it, which is a very sensible arrangement. St Mary’s, Sidcup is now doing other things—quite rightly because it is an old hospital and did not really have the facilities to run an accident and emergency department in the way that a modern hospital needs to do. Woolwich has been put in with Lewisham. We therefore have the makings of a better solution despite inadequate consultation. It shows that we do not merely need good consultation with everyone understanding what is happening; we need somebody to reach the right conclusions at the end of the day. I am referring here to the remarks made by the noble Lord, Lord Turnbull. He is absolutely right that there needs to be a way that the public interest—as well as the understandable more local interests—can be reflected, otherwise we will never make real progress.

The noble Lord, Lord Hunt, made the important point that there are really big problems. We all have scars resulting from the closure of hospitals that sometimes have to be closed. He will be aware of the report last year by the NHS Confederation, the royal colleges and the organisation representing the patients’ voice, which said that up to 20 general district hospitals in this country need to be closed if we are to have a sustainable hospital service and a sustainable NHS. If we do not close those hospitals over a period, after consultation and so on, we will be taking money away from other parts of the NHS, such as mental health and GP services, which are badly needed. We cannot afford to keep hospitals going when they are in need of change.

The way in which change needs to happen is becoming apparent—there is a general consensus. First, there should be more specialist hospitals. I note that the King’s Fund says that A&E departments, maternity care, neonatal services, heart services and stroke care are all areas where specialist hospitals can give better care than general district hospitals do at the moment. That is already happening in London, certainly in the case of stroke care. The number of hospitals has been reduced and stroke care has immeasurably improved, I think to the tune of 50% over the previous two or three years. Equally, of course, the other aspect of this improvement is bringing care back to the community and taking it away from hospitals. People do not want to go to hospital; they think they will get an infection or a disease, apart from anything else. People die as a consequence of being in hospital. We therefore need to bring care back to the community. However, all of that takes time.

I therefore agree with the noble Lord, Lord Turnbull, that we cannot allow ourselves to get into a situation where everybody defends every brick of every local hospital. We all know what happens. As soon as there is a threat to a local hospital the local MPs and the local newspapers get on their high horse, the campaigners come out and there are parades down the street, and no one can move an inch. I hope that noble Lords can see this legislation in the round. It provides for the

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proper, equal consultation of all interested parties, but we should not put road blocks in the way of necessary change in the NHS. If we do, we will have done the NHS a very bad service.

Baroness Brinton: My Lords, I add the thanks of the Liberal Democrats to those that have already been offered for the help from the Minister and his officials since this matter was last discussed in your Lordships’ House. There have been a number of meetings and an enormous amount of correspondence during that time. A key part of that has been the definition of “consultation”, and how to ensure that services in another trust area rather than only an adjacent area are considered. I am particularly grateful because the amendment tabled by my honourable friend Paul Burstow in the House of Commons is broadly the same as today’s government amendment. I thank him too for his tireless work in expanding this. I very much appreciate the comments made by the noble Lord, Lord Hunt, in his amendment, which try to strengthen that.

However, I am not convinced that there is a need for further strengthening. The committee is there, and I hope that the Minister will be able to confirm that, following the request made by the noble Baroness, Lady Finlay. The committee is there to help set things up and ensure that the progress made as the special administrators start their work takes place in an appropriate fashion, and that every aspect of the consultation—which clearly has worried your Lordships—is addressed.

I want particularly to come back to the point about not considering only adjacent services. Much of the discussion this afternoon has been very focused on London, for fairly obvious reasons. However, there are issues around reconfigurations in rural areas, which do not mimic the pattern of a large number of hospitals in a fairly narrow space. Services may be much more scattered. That is why the word “adjacent”, to which others have referred, is not particularly appropriate. Quite often people will find themselves going not only to one area but beyond that area for a very particular service. It is important that the amendment laid down by the Government today makes it absolutely clear about the extension of consultation with those affected trusts.

Baroness Murphy: My Lords, the disease with the greatest economic impact on the NHS is the disease of inertia. As the Secretary of State, Jeremy Hunt, pointed out in the other place during the debates on this issue, we are now four years on from the very public exposure of the problems of Mid Staffs and we have not yet made a decision. The trust administration procedures are indeed invoked only as a very last resort, but they are a very necessary one. I am very worried because, although the noble Lord, Lord Hunt, thinks that this government amendment does not go far enough, I am afraid that I think that the government amendment as it is goes quite a long way. I was much happier with it before we all started meddling with it.

The real issue is that we must start to make decisions, and we are not making decisions. We are allowing services to carry on producing bad care. We are allowing them to get into debt, which means transferring money from good services. It is almost never possible to

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reconfigure a bad service out of one hospital, or indeed to shut one hospital or service, without a substantial reconfiguration of services in another hospital. Unfortunately, it will always impose on the wishes of commissioning groups in another adjacent location or a little further down the line in a rural area.

I will, with reluctance, accept the Government’s amendments, although they add a little more consultation to the process. Please, however, let us go no further than that, and please let us not support the amendment of the noble Lord, Lord Hunt, which in my view would take us even further away from where we want to be.

5 pm

Lord Mackay of Clashfern: I support the view that we ought not to have too many impediments to effective action. When this matter was first raised in this House, when the Bill was being considered, the amendment dealing with a special administrator came in very late and there was a certain degree of feeling that it should have been dismissed. But I am glad to say that the House decided to continue with it, and of course the matter has been carefully and fully considered in the other place.

The procedure for special administration may be needed quite urgently in some places in the not-too-distant future. I hope not, but there is a risk of that. Therefore, it is extremely important that we have an acceptable, effective service and provision in position to deal with the special administrator and his powers as soon as possible. I thank my noble friend and his colleagues for advancing to this extent.

Earl Howe: My Lords, this has been an extremely helpful debate. I first pick up a point emphasised by the noble Baroness, Lady Murphy. Trust special administration is indeed a last resort, which was why I took care to spell out the other steps that we might expect to have taken place before administration is even considered. But the previous Government realised, rightly, that we have to have a mechanism in statute designed to deal with long-standing and apparently intractable situations in provider trusts—and not just to have a mechanism of that sort, but one that provides a reasonably swift resolution to the problem of significant failure.

The previous Government provided for a defined statutory timetable for the TSA process and they were absolutely right to do that. Indeed, as the noble Baroness, Lady Finlay, generously acknowledged, her own amendment, had it been accepted, would allow other affected commissioners to consult the public further about the administrator’s final recommendations. Consultation would be through the usual NHS process, taking about 12 weeks. It would fall completely outside the timetable of the trust special administrator and the net effect of such a change would be to reverse the effect of Clause 118. The administration regime would not be creating a complete and timely solution to the problem. It would render the strict legal timetable for the regime ineffective and delay what would be an uncertain resolution very significantly. I hope that noble Lords will not wish to follow that part of the noble Baroness’s amendment. I was glad to hear her say that she would not be moving it.

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The noble Baroness asked me whether the committee to be chaired by Paul Burstow on the guidance will continue. Yes, it will. The Government’s commitment in relation to a committee chaired by my honourable friend to review the guidance still stands. The guidance is still important for setting out in detail how the statute should operate. The Government believe that there is significant value in advice from the committee about the guidance. She was right to say that that process should give the public and patients confidence that this is not a set of guidelines dreamt up by Ministers and civil servants on their own.

The amendment of the noble Lord, Lord Hunt of Kings Heath, suggests that the guidance should be laid before Parliament. I need hardly say that that idea falls considerably outside what is usual practice. It is not usual practice to lay statutory guidance before Parliament in the way that the amendment envisages. However, in recognition of the keen interest of parliamentarians in both Houses, we invited my honourable friend Mr Burstow MP to chair a committee of MPs and Peers to consider the guidance. I hope that that mechanism will be sufficient for the kind of buy-in from patients and the public that I have referred to, and will command confidence.

The noble Lords, Lord Turnbull and Lord Hunt of Kings Heath, referred to the situation where commissioners or providers declined to accept the administrator’s recommendation. The noble Lord, Lord Hunt of Kings Heath, asked whether a clinical commissioning group has a veto. Each commissioner of services provided by the trust under administration and affected trusts has to give agreement for the draft and final TSA reports to go forward, but NHS England has a role—which is already in statute—in deciding whether to agree the TSA reports if not all the CCGs agree. I believe that that is right. We cannot expect or oblige every CCG to agree to the TSA proposals in every single case. There has to be a way of resolving any lack of unanimity and this is the mechanism that we believe is right.

Lord Hunt of Kings Heath: My Lords, perhaps the noble Earl will clarify that. If we take the case of south-east London referred to earlier, the trust special administrator would have produced its report, which the Lewisham CCG would not have agreed to, and so the TSA would not have had an agreed report. I suppose the risk is that NHS England or its regional office or a combination of local area teams would none the less have said that they would process the report, even without that agreement. As the noble Lord, Lord Horam, said, the eventual outcome was actually much better than the original recommendation by the trust special administrator.

Earl Howe: My Lords, that last statement is a matter of opinion. We will have to see how the situation pans out. I do not want to make any judgments here and now, but I think there is a difference of view about that.

However, if one or more commissioners does not support the administrator’s recommendations, under existing legislation NHS England can still agree them,

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if, in its view, the recommendations achieve the objective of the trust special administration. Under our amendments, NHS England has that same role, but its decision would also be in respect of whether the recommendations harm essential NHS services at other affected trusts, and would look at both the definition of essential service and the existence of any harm. NHS England can therefore take into account the views of the commissioner which did not provide support on the basis that it felt the recommendations damaged the essential services that it commissions, and it would then decide whether the argument is convincing.

The noble Lord, Lord Turnbull, took that situation to the extreme and asked what happens if complete stalemate ensues between CCGs. In what we believe would be the unlikely event that a CCG made a decision which amounted to a failure to discharge its duties to act consistently with wider NHS imperatives, there are powers of direction by NHS England to ensure that those duties are discharged properly—but I emphasise that that would be a drastic and unexpected situation.

This regime is about ensuring that the TSA works closely with and consults formally all affected commissioners and providers so that they can input into, agree, plan for and adapt to any recommended pattern of services. CCGs must act consistently with the duty of the Secretary of State and NHS England to promote a comprehensive health service. Given that duty, we would expect CCGs to work closely and constructively with a TSA to avoid what one might call parochial decision-making and to take into account broader considerations for the delivery of publicly funded services in the interests of patients and the taxpayer.

In the end, the NHS must do the greatest good for the greatest number of people. On occasion and in exceptional circumstances, where a TSA is appointed, commissioners and providers may need to see local service change as a means of improving NHS services in the local health economy. I hope that those remarks are helpful by way of explanation and background to these amendments.

Motion agreed.

Motion on Amendment 41

Moved by Earl Howe

That this House do agree with the Commons in their Amendment 41.

41: Clause 118, page 102, line 27, at end insert—

“(5A) In section 65H of that Act (consultation requirements), in subsection (4)—

(a) after “trust special administrator must” insert “—

(a) ”, and

(b) at the end insert “, and

(b) in the case of each affected trust, hold at least one meeting to seek responses from staff of the trust and from such persons as the trust special administrator may recognise as representing staff of the trust.”

(5B) In subsection (7) of that section, after paragraph (b) (but before paragraph (ba) inserted by section 84(10)(a)) insert—

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“(bza) any affected trust;

(bzb) any person to which an affected trust provides goods or services under this Act that would be affected by the action recommended in the draft report;

(bzc) any local authority in whose area the trust provides goods or services under this Act;

(bzd) any local authority in whose area an affected trust provides goods or services under this Act;

(bze) any Local Healthwatch organisation for the area of a local authority mentioned in paragraph (bzc) or (bzd);”.

(5C) In subsection (8) of that section, omit paragraph (e).

(5D) In subsection (9) of that section—

(a) after “trust special administrator must” insert “—

(a) ”,

(b) after “subsection (7)(b),” (but before the insertion made by section 84(10)(b)) insert “(bzb),”, and

(c) at the end insert—

“(b) hold at least one meeting to seek responses from representatives of each of the trusts from which the administrator must request a written response under subsection (7)(bza), and

(c) hold at least one meeting to seek responses from representatives of each of the local authorities and Local Healthwatch organisations from which the administrator must request a written response under subsection (7)(bzc), (bzd) and (bze).”

(5E) After subsection (11) of that section, insert—

“(11A) In this section, “affected trust” means—

(a) where the trust in question is an NHS trust, another NHS trust, or an NHS foundation trust, which provides goods or services under this Act that would be affected by the action recommended in the draft report;

(b) where the trust in question is an NHS foundation trust, another NHS foundation trust, or an NHS trust, which provides services under this Act that would be affected by the action recommended in the draft report.

(11B) In this section, a reference to a local authority includes a reference to the council of a district only where the district is comprised in an area for which there is no county council.”

(5F) In subsection (12)(a) of that section, after “subsection (7)(b)”, insert “, (bzb), (bzc) and (bzd).”

Amendment 41A not moved.

Motion agreed.

Amendment 42A (Motion on Amendment 42)

Moved by Earl Howe

That this House do disagree with the Commons in their Amendment 42 but do propose Amendments 42B and 42C in lieu—

42: Clause 118, page 103, line 22, at end insert—

“(ba) in that paragraph, after sub-paragraph (7) insert—

“(8) Omit subsection (8).”.”

42B: Clause 118, page 102, line 14, leave out subsection (3)

42C: Clause 118, page 103, line 20, leave out paragraph (b) and insert—

“(b) in paragraph 15(4), in the new subsection (2A) to be inserted into section 65F of the National Health Service Act 2006, in paragraph (a), for “would achieve the objective set out in section 65DA(1)(a)” substitute “—

(i) would achieve the objective set out in section 65DA(1)(a), and

(ii) would do so without harming essential services provided for the purposes of the NHS by any other NHS foundation trust that provides services under this Act to the commissioner,”,

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(ba) in paragraph 15(4), after the new subsection (2C) to be inserted into that section, insert—

“(2D) Where the administrator recommends taking action in relation to another NHS foundation trust, the references in subsection (2A) to a commissioner also include a reference to a person to which the other NHS foundation trust provides services under this Act that would be affected by the action.

(2E) A service provided by an NHS foundation trust is an essential service for the purposes of subsection (2A) if the person making the statement in question is satisfied that the criterion in section 65DA(3) is met.

(2F) Section 65DA(4) applies to the person making the statement when that person is determining whether that criterion is met.”,

(bb) in paragraph 15, after sub-paragraph (7) insert—

“(8) Omit subsections (8) to (10).”.”

Motion agreed.

Motion on Amendment 43

Moved by Earl Howe

That this House do agree with the Commons in their Amendment 43.

43: Clause 118, page 103, line 26, at end insert—

“(ca) in paragraph 17, in sub-paragraph (2)(a), for “paragraph (b)” substitute “paragraphs (b), (bzb), (bzc) and (bzd)”, (cb) in that paragraph, after sub-paragraph (4) insert—

“(4A) In subsection (11A)—

(a) omit paragraph (a), and

(b) in paragraph (b), omit “where the trust in question is an NHS foundation trust,” and “, or an NHS trust,”.”.”

Amendment 43A not moved.

Motion agreed.

Motion on Amendment 44

Moved by Earl Howe

That this House do agree with the Commons in their Amendment 44.

44: After Clause 118, insert the following new Clause—

“Integration of care and support with health services etc: integration fund

(1) At the end of section 223B of the National Health Service Act 2006 (funding of the National Health Service Commissioning Board) insert—

“(6) Where the mandate specifies objectives relating to service integration, the requirements that may be specified under section 13A(2)(b) include such requirements relating to the use by the Board of an amount of the sums paid to it under this section as the Secretary of State considers it necessary or expedient to impose.

(7) The amount referred to in subsection (6)—

(a) is to be determined in such manner as the Secretary of State considers appropriate, and

(b) must be specified in the mandate.

(8) The reference in subsection (6) to service integration is a reference to the integration of the provision of health services with the provision of health-related services or social care services, as referred to in sections 13N and 14Z1.”

(2) After section 223G of that Act (meeting expenditure of clinical commissioning groups out of public funds) insert—

“223GA Expenditure on integration

(1) Where the mandate includes a requirement in reliance on section 223B(6) (requirements relating to use by the Board of an amount paid to the Board where mandate specifies service integration objectives), the Board may direct a clinical commissioning group

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that an amount (a “designated amount”) of the sums paid to the group under section 223G is to be used for purposes relating to service integration.

(2) The designated amount is to be determined—

(a) where the mandate includes a requirement (in reliance on section 223B(6)) that designated amounts are to be determined by the Board in a manner specified in the mandate, in that manner;

(b) in any other case, in such manner as the Board considers appropriate.

(3) The conditions under section 223G(7) subject to which the payment of a designated amount is made must include a condition that the group transfers the amount into one or more funds (“pooled funds”) established under arrangements under section 75(2)(a) (“pooling arrangements”).

(4) The conditions may also include—

(a) conditions relating to the preparation and agreement by the group and each local authority and other clinical commissioning group that is party to the pooling arrangements of a plan for how to use the designated amount (a “spending plan”);

(b) conditions relating to the approval of a spending plan by the Board;

(c) conditions relating to the inclusion of performance objectives in a spending plan;

(d) conditions relating to the meeting of any performance objectives included in a spending plan or specified by the Board.

(5) Where a condition subject to which the payment of a designated amount is made is not met, the Board may—

(a) withhold the payment (in so far as it has not been made);

(b) recover the payment (in so far as it has been made);

(c) direct the clinical commissioning group as to the use of the designated amount for purposes relating to service integration or for making payments under section 256.

(6) Where the Board withholds or recovers a payment under subsection (5)(a) or (b)—

(a) it may use the amount for purposes consistent with such objectives and requirements relating to service integration as are specified in the mandate, and

(b) in so far as the exercise of the power under paragraph (a) involves making a payment to a different clinical commissioning group or some other person, the making of the payment is subject to such conditions as the Board may determine.

(7) The requirements that may be specified in the mandate in reliance on section 223B(6) include requirements to consult the Secretary of State or other specified persons before exercising a power under subsection (5) or (6).

(8) The power under subsection (5)(b) to recover a payment may be exercised in a financial year after the one in respect of which the payment was made.

(9) The payments that may be made out of a pooled fund into which a designated amount is transferred include payments to a local authority which is not party to the pooling arrangements in question in connection with the exercise of its functions under Part 1 of the Housing Grants, Construction and Regeneration Act 1996 (disabilities facilities grants).

(10) In exercising a power under this section, the Board must have regard to the extent to which there is a need for the provision of each of the following—

(a) health services (see subsection (12)),

(b) health-related services (within the meaning given in section 14Z1), and

(c) social care services (within the meaning given in that section).

(11) A reference in this section to service integration is a reference to the integration of the provision of health services with the provision of health-related services or social care services, as referred to in sections 13N and 14Z1.

(12) “Health services” means services provided as part of the health service in England.”.”

Motion agreed.