HL Deb 10 March 2003 vol 645 cc1104-6

2.43 p.m.

Baroness Hanham

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare my interests as a member of a local authority and chairman of an NHS trust.

The Question was as follows:

To ask the Government what action they will take to resolve bed blocking in hospitals arising from Section 54 of and Schedule 3 to the Nationality, Immigration and Asylum Act 2002.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

My Lords, we have acted immediately to review the cases that have been presented to us. The issues raised have highlighted queries in relation to the treatment of EEA nationals. People who have exercised their Community treaty rights are entitled to enjoy the same social advantages as national workers. The same rights apply to members of their families, ex-workers, those who are self-employed or were self-employed and students with a right of residence. We accept that the definition of social advantages under Community treaties should include the provision of community care and other social services. The Department of Health has today issued guidance to local authorities to put it beyond doubt that in such cases community care and related support should be provided. Further work is ongoing to assess the position of those who might fall into the categories that I have described. If further action is required in relation to those individuals, we will act immediately. If required, the legislation could be amended by the order-making provisions set out in paragraph 15(a) of Schedule 3.

Baroness Hanham

My Lords, I thank the Minister for his reply. If I understand it, he has probably snatched my question. The point that I wanted to make clear is that under the regulations—Schedule 3 to and Section 54 of the Nationality, Immigration and Asylum Act—local authorities were precluded from providing community care for EEA nationals as well as for other categories that are outlined in the definition. The bed blocking that could consequently result in National Health Service hospitals if local authorities were not able to provide that ongoing community care could have been very serious. Is it clear now that all EEA nationals and anyone else in the categories contained in Schedule 3 or Section 54 will be entitled to care in the community, or will those who have resided here for less than 10 years, which is the guidance at the moment, be precluded?

Lord Filkin

My Lords, for the benefit of the rest of the House who may be interested in what this Question is about, it is essentially about the intersect between Section 54 of the Nationality, Immigration and Asylum Act on benefit shopping and whether that precluded local authorities from action—providing care to people leaving hospital. It is an important Question.

We have today put out clear guidance from the Social Services Inspectorate that is in line with what I said, making it clear that anyone who has Community treaty rights as a result of working here, being a dependant of someone working here or who is a student is entitled to receive social care under Community treaty rights as distinct from the prohibition in the Nationality, Immigration and Asylum Act.

We also know from discussions with Westminster City Council, which raised the matter, that of the 13 cases to which it referred, 12 are clear to be discharged from hospital and will receive benefit. The one remaining area of uncertainty involves people from another EEA nation who may be in hospital but who have never had treaty rights because they never worked in this country. We are exploring that issue actively with the Department of Health and local authority associations.

Earl Howe

My Lords, I welcome the Minister's assurance that the guidance that is being issued will be clear. Does he share my view that the existing regulations about what local authority support may be provided to which asylum seekers is extremely complex and confusing and that it is essential that National Health Service hospitals are able to take a clear view on this extremely important matter, which we will debate this afternoon when we reach the Report stage of the Community Care (Delayed Discharges etc.) Bill?

Lord Filkin

My Lords, I do not agree with the noble Earl that the guidance is unclear. The area of uncertainty was not about hospitals but about whether a local authority could legitimately provide care. In practice, the position under treaty rights was clear. Having said that—I am glad that this issue has been raised because it allowed us to put out a national clarification—a local authority is perfectly entitled in this regard and the Community treaty rights were clear in the circumstances that I have described. We therefore believe that there is not a significant problem, with the exception of the one small issue that I raised, which we are considering further.

Lord Clement-Jones

My Lords, I welcome the Minister's statement and the guidance. What recommendation does the guidance offer to the NHS and social services about how nationality is trapped in those circumstances?

Lord Filkin

My Lords, rather than boring the House to tedium, I should be happy to place a copy of the guidance issued by the Social Services Inspectorate in the Library. I hope to do so very shortly. In essence, anyone who is an EEA national, who has worked here or is a student, or is the dependant of anyone who has worked here—work includes self-employment for these purposes—is entitled to social care because they attain that right through Community treaty rights.

Baroness Hanham

My Lords, I am concerned by the words "work here" or "have worked here". What about those people under EEA treaties who do not and have not worked here? Will they be entitled to such benefits? They may have come here for a number of reasons; they may never have worked a day since arriving in this country and consequently they fall into the trap that is being laid within the Nationality, Immigration and Asylum Act. Would the Minister be kind enough to respond to that?

Lord Filkin

My Lords, I have responded as far as I am able on that point. I signalled that, as far as we could see, there was not a significant number of cases. I instanced the 12 out of the 13; we were clear within a matter of hours that they fell into the beneficial category about which I spoke.

The area of complexity is a more general area about whether I or anyone else can go to another EEA country and be entitled to receive full and total social security support. People who come to this country to retire sign a declaration that they will be able to support themselves. In that area we are considering further issues carefully and we shall continue to do that over the next week or so.