HL Deb 17 February 1992 vol 535 cc1052-7

7.5 p.m.

Baroness Brigstocke

My Lords, I beg to move that this Bill be now read a second time. Government policy on community care is to be found in the White Paper Caring for People, which clarifies the responsibilities of agencies with respect to the new funding arrangements for social care. This policy has been broadly welcomed by all parties.

From April 1993 local authorities will be responsible for funding and making arrangements for domiciliary, residential and nursing home care with a range of providers in the statutory and independent sectors. My Bill will facilitate implementation of that policy by replacing Section 42(2) of the National Health Service and Community Care Act 1990, which amends Section 26 of the National Assistance Act 1948, to provide for inadvertently curtailed local authority powers to make arrangements with the independent sector for residential accommodation.

A key objective of Caring for People is to enable the people rendered vulnerable by age or disability to live as independently as possible either in their own homes or in a homely setting in the community. Sometimes what people need is full residential or nursing home care. When that is so the local authority uses residential care homes or nursing homes which are registered under the Registered Homes Act 1984 to safeguard standards and quality, except where they are specifically exempt; for example, homes established by Royal Charter such as those of the Royal National Institute for the Blind. But, so often, what people initially require is some form of supported housing other than full residential and nursing home care. It may be that, while the individual can no longer be supported in his or her own home, he or she does not require the type of personal care provided in residential care homes and nursing homes. From April 1993, when the National Health Service and Community Care Act 1990 comes into force, local authorities will have a duty to assess the needs of vulnerable people for social support and to design a package of care which is flexible and responsive both to the individual concerned and to his or her carers.

People do not come in neatly defined shapes and sizes; nor are their needs always the same. It is because of the diversity of the human spirit and the diversity of human need that the local authority should have the flexibility to meet users' care needs, taking account of their preferences, and have the flexibility also to contract with a range of organisations managing residential accommodation of different types and styles.

In that way, local authorities can offer individuals the maximum practical choice. In order to do that, local authorities need the maximum flexibility to make arrangements within both the independent sector and the public sector.

Noble Lords will be aware that it is often in the independent sector—that is, both voluntary and commercial —that good innovative imaginative schemes tailored to the unique needs of particular people can be found. I have in mind, for example, the excellent homes managed by the Leonard Cheshire Foundation, the Abbeyfield Society and autistic societies among many others.

At present local authorities provide residential care either directly or through the independent sector under the National Assistance Act 1948 or the National Health Service Act 1977. The general power for local authorities to make arrangements for the independent sector is in paragraph 2(1)(a) of Schedule 8 to the National Health Service Act 1977. From April 1993 when the community care parts of the National Health Service and Community Care Act 1990 are fully implementated, that provision will be repealed. Section 26 of the National Assistance Act 1948 will be amended by Section 42(2) of the National Health Service and Community Care Act 1990. However, a problem arises with Section 42(2) in its amendment of the National Assistance Act 1948 in that the local authorities' powers to make financial arrangements with hostels and organisations, like Abbeyfield, have been curtailed. Those hostels and organisations do not provide in most of their homes the personal care envisaged under the Registered Homes Act 1984, nor are they exempt from registration.

In short, Section 42(2) does not allow local authorities to make those arrangements with the whole range of organisations within the independent sector which they are currently able to do. That will affect organisations like the Abbeyfield Society, a voluntary body which has over 1,000 homes which provide residential accommodation for up to 10 elderly people in each home. They are in a homely setting where food and domestic help are provided, but where personal care is not required. Residents furnish their own rooms with their own treasured possessions, they lead their own lives and come together for the main meals of the day which are provided by a resident housekeeper.

The Community Care (Residential Accommodation) Bill remedies the problem by replacing Section 42(2) of the 1990 Act thus restoring to local authorities the powers which they now have to make full use of the independent sector—powers which they would lose in 1993 when the National Health Service and Community Care Act comes into force. As noble Lords will gather, the Bill is intended to make only that minor but vital technical change to the legislation and in no way heralds a policy change.

The substance of Clause 1 restores to local authorities the ability to make arrangements for residential accommodation with the independent sector in premises neither registrable under the Registered Homes Act 1984 nor exempt from registration. It restores the flexibility to make arrangements with a range of independent sector organisations for residential accommodation, as well as maintaining the rest of the arrangements found in Section 42(2) of the National Health Service and Community Care Act 1990. Clause 2 provides for the short Title, commencement and extent. I hope that your Lordships will agree that the Bill will deal with a technical problem which arises from Section 42(2) of the National Health Service and Community Care Act 1990, and that it will remedy the position so that hostels and societies like Abbeyfield are not put at risk.

Moved, That the Bill be now read a second time. —(Baroness Brigstocke.)

7.13 p.m.

Lord Carter

My Lords, the House will be grateful to the noble Baroness for introducing the Bill. As is the convention in respect of a Bill of this nature, I should make it clear that I speak from this Dispatch Box on my own account. I express a personal view rather than the view of my party. I have only two or three points to make. I shall start with the lacuna in the 1990 Act. I use the word "lacuna" because it is actually mentioned in the Explanatory Memorandum to the Bill. After the many days we spent examining the community care provisions in the 1990 Act, it seems extraordinary that such a lacuna could have been overlooked. Perhaps the Minister can confirm that what happened is that someone forgot the 1977 Act when drafting the 1990 Act. I suspect that that is what happened.

As I said, I have just a few points to make. First, if the lacuna is a drafting error in a government Bill, why are the Government not bringing forward the Bill to put right their own error rather than putting it through the Private Members' route? I ask the question as a matter of interest. I am surprised that the Government have not found the time to put it right by way of the Bill.

My other point is an obvious one. When the noble Baroness moved the Second Reading, she referred to the many estimable organisations which provide residential care in the private sector. However, there is some worry that homes will be used which are not required to be registered. The Minister will no doubt remember the many debates that we had on the 1990 Act, and indeed on other Acts, about the powers of registration or not of homes in the private sector. In her response, can the Minister say whether they are entirely satisfied, if the Bill is enacted, with the status of the homes which people will then be able to use but which in fact will not be registrable under the 1984 Act?

I make just two points. First, I am interested to know why the matter is not being dealt with as a government Bill. My second point is one of substance: are the Government satisfied that the homes which will be used will be up to standard? Having said that, I welcome the Bill.

7.15 p.m.

The Viscount of Falkland

My Lords, we on these Benches unreservedly support the noble Baroness and thank her for her explanation of what she described as a small technical Bill. Judging by the complications set out in the Explanatory Memorandum, one might think that it is not quite as simple a Bill as she described. I should thank the noble Baroness for the letter that she wrote to my noble friend Lord Winstanley; it clearly outlined the problem. He would have been speaking in my place this evening had he been able to do so.

We are not too much concerned as to whether it is a government Bill or a Private Bill that puts the matter right. As the noble Baroness so rightly said, the important thing is that the flexibility should remain with the local authority. Indeed, over the coming years, with the demographic trend, we shall be moving into areas where more and more people will need the kind of flexible treatment which the noble Baroness described. They will not necessarily need nursing or care which is provided for by the 1990 Act, but local authorities will need to consider very special cases which are not, probably by oversight, taken care of by the Act. Perhaps the Minister will be able to tell us why we need to consider a Bill which has been so thoughtfully provided by her noble friend Lady Brigstocke.

We are very happy that the lacuna has been spotted. I must admit that none of us on these Benches noticed it. I dare say that the Bill will perform a great service. Having said that, we are extremely grateful to the noble Baroness and look forward to hearing the Minister's response.

7.18 p.m.

Baroness Carnegy of Lour

My Lords, I should like to say just a few words. I apologise for the fact that I did not put down my name to speak. I listened with great care to my noble friend's most careful explanation of the Bill. She did it extremely well. I had not studied the Bill, as I should have done, before I heard her speech. I see from Clause 2(4) that the legislation extends to England and Wales only. Can my noble friend the Minister in her response tell me whether the unfortunate error in the National Health Service and Community Care Act 1990 which will be amended by the Community Care (Residential Accommodation) Bill also exists in the Scottish legislation? The Bill would not put that right. I wonder whether we need another Private Member's Bill or whether the Government should introduce provisions to correct that. I should be interested if the Minister could answer that point.

7.20 p.m.

Baroness Hooper

My Lords, I, too, am grateful to my noble friend Lady Brigstocke for introducing the Bill and explaining it so clearly. As has been said, the Bill provides a technical amendment to remedy a defect before that defect is implemented. The Government therefore welcome the Bill and give it their full support. It was certainly the Government's intention that the local authorities' current powers under the National Health Service Act 1977 and the National Assistance Act 1948 should be retained in the National Health Service and Community Care Act 1990. However, as my noble friend Lady Brigstocke has pointed out, Section 42(2) of that Act inadvertently curtails those powers, especially the local authorities' powers, to make financial arrangements with the independent sector.

My noble friend Lady Carnegy of Lour referred to Scotland. As she knows, the 1990 Act applied to England and Wales and we have discovered this lacuna in that Act. As far as I am aware, there is no similar problem in Scotland. I shall, however, ensure that I double check that point and shall return to my noble friend if that is an issue.

The fact that the powers were inadvertently curtailed puts at risk a range of independent sector providers, whether voluntary or commercial, such as the Abbeyfield Society, to which my noble friend Lady Brigstocke referred. Other organisations of a similar kind may also be put at risk. The anomaly will also inhibit Government policy which, as my noble friend said, was expressed in the White Paper, Caring for People, which seeks to provide high quality packages of care, tailored to meet the needs of individual citizens.

The noble Lord, Lord Carter, and the noble Viscount, Lord Falkland, asked, "Why a Private Member's Bill?" We believe that this is a non-controversial subject, and entirely suitable for a Private Member's Bill. Such legislation presents the best prospect of a change being made quickly so that we can put at rest the minds of those who run the homes. I hope that the noble Viscount, Lord Falkland, will accept that—I see that he is nodding.

It is government policy that the promotion and development of a flourishing independent sector, alongside good quality public provision, will encourage innovative, flexible, cost-effective and high quality services, responsive to individuals and their needs. Many independent sector providers, such as the Abbeyfield Society, have provided that type of care for many years. The legislative framework that is provided by the National Health Service Act 1977 and the National Assistance Act 1948 enables local authorities to make arrangements with them, as appropriate.

The omission from Section 42(2) of the National Health Service and Community Care Act 1990 puts that flexibility at risk. I am grateful to my noble friend Lady Brigstocke for remedying that situation in the Bill without changing policy or introducing any new policy.

I advise the noble Lord, Lord Carter, that safeguards exist to protect residents. In the first place, the assessment procedures are important, as are the conditions of the contracts and the monitoring of the contracts. As a fallback, there is a full complaints procedure. We believe that the safeguards are adequate.

As I have said, the Government fully support the Bill. I trust that it will have a speedy passage through your Lordships' House.

7.24 p.m.

Baroness Brigstocke

My Lords, I am most grateful to all those who have taken part in the debate. I hope that your Lordships do not feel that the fact that I have introduced the Bill is too controversial. Perhaps it is suitable that I have done so because I was the head of a school for some time and was used to the expression "a gap year" for pupils. As your Lordships know, "lacuna" means "gap", so perhaps that is why I was considered suitable for introducing a "gap" Bill.

Although my noble friend the Minister has already done so adequately, I, too, should like to reassure the noble Lord, Lord Carter, that the Bill does not allow local authorities to use homes that should be registered but which are not. It is illegal to run a non-registered home.

As I have said, I am grateful to those who have taken part in this debate and who have supported the Bill. Homes, such as those provided by the Abbeyfield Society, play an important role in the provision of supportive care for frail, elderly people. It is essential that local authorities can continue to make arrangements for such care, where appropriate. I ask your Lordships to give the Bill a Second Reading.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Baroness Denton of Wakefield

My Lords, I beg to move that the House do now adjourn during pleasure until five minutes past eight.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 7.26 to 8.5 p.m.]