Personal Care at Home Bill

My Lords, we come now to one of the most important legal issues presented by the Bill, and that is its compatibility with the European Convention on Human Rights. One of the most striking features of the Explanatory Notes is the length and complexity of the Government’s defence of the legality of the Bill in relation to the convention. Of course it is very helpful to see that defence set out in clear terms, but I cannot remember another Bill where it has been necessary to do this to quite the same extent. The obvious conclusion from this is that, even though the Government’s human rights justification may be correct in its bald terms, we are, nevertheless, on quite tricky legal ground. We have already considered the issue of discrimination against deafblind people arising from the Bill and its regulations, so I shall not dwell upon those arguments a second time. The other type of discrimination to which the Bill potentially gives rise relates to residents of care homes. It would be perfectly possible for those people to argue that their personal care needs are every bit as critical as those of someone who happens to be living at home and that this discrimination against them amounts to a breach of Article 14 of the convention, taken with Article 1 of Protocol 1, which covers the right to peaceful enjoyment of possessions. Indeed, the department accepts that it is a prima facie breach of Article 14 to discriminate between one person and another on the basis of where each of them lives. Nevertheless, the Government maintain that the different treatment of people living at home is not discriminatory because the policy underlying the different treatment pursues, ""a legitimate aim in a proportionate way"." As this is a framework Bill, an enabling Bill, it would be hard to argue that the Bill itself was incompatible with the convention. The issue, rather, is whether the policy to which the future regulations will give substance does indeed pursue a legitimate aim in a proportionate way. As regards the aim of the Bill, and the aim of the regulations, it would be difficult to show that these were in any way illegitimate. So I shall not spend time arguing that case. However, on the issue of proportionality, there is quite a lot that we can say. The Explanatory Notes say: ""The key aim of the policy behind the Bill is to enable, support and encourage more people to avoid or delay entering residential accommodation … It is considered that the proposals are proportionate as they are aimed at those people in highest need—the group of people who are most at risk of having to enter residential accommodation"." The message that I take away from that is that, as long as the Government’s assumptions prove to be correct as regards the number of people who are likely to benefit from the legislation, the policy is unlikely to breach the convention. The problem, it seems to me, arises if the Government’s assumptions are not correct. As we have said a number of times, the figures quoted in the impact assessment come with a giant health warning. At best, they are an approximation; at worst, they bear little or no relation to reality. So we need to ask: what would happen if the numbers of those eligible for free care in the home turned out to be much larger than the numbers postulated in the impact assessment? What would happen if local authorities are unable to make efficiency savings sufficient to cover their share of the cost of delivering free care? What would happen if, as a number of councils are arguing, it proves impossible to deliver free care to a satisfactory standard within the assumed cash limits? The Government’s assumption is that the time taken to deliver help with four activities of daily living is roughly one hour per service user per day, but some councils are saying that it would be double that. What if they are right? The money would have to be found from somewhere. It could be found from an increase in council tax. It could be found from cuts in other local authority budgets. It could be found from increased charges for personal care to those who are not receiving their care free. Or it could be found by reducing the amount of personal care being delivered to those same people. If it is the last of these, we are in dangerous territory as far as the European convention is concerned. If local authorities were to withhold personal care from people who are in critical need but who require help with fewer than four activities of daily living, or if they were to withhold it from people with substantial care needs or from people with care needs in a lower banding, it could well make those people decide to move into residential care rather than to be enabled to stay at home. In that situation we could indeed see more people receiving free care in their homes, but possibly fewer people receiving care in their homes overall. Should that occur, then a breach of Article 14 is a real possibility, because the Bill would have failed to achieve its stated objective of enabling more people to avoid or delay entering residential accommodation. We would have spent a lot of money favouring one group of people at the expense of a larger group of people. It could be argued that the result would be a disproportionate way of pursuing the policy objective. In other words, ECHR compliance will be a matter of fact rather than theory. With all the uncertainties over the costing of the policy and all the worries being expressed by local authorities about its affordability, we cannot know how things will pan out in practice. We therefore have to plan ahead on the basis that human rights compliance will need to be regularly monitored. This amendment is designed simply to ensure that that is done, and done in a way that is visible to Parliament. I beg to move.