(11 years, 5 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Lipsey
“( ) The regulations must provide that where the financial resources of a carer who has needs for support or of the adult needing care (whether in terms of income, capital or a combination of both) as calculated in accordance with the regulations exceed the financial limit, payments by the local authority shall be tapered in such a way that each complete increase of £500 in resources held by the carer or adult over and above the financial limit shall result in a reduction of annual payments of £1.”
Lord Lipsey
My Lords, this has been a great test of my filing system, which fortunately has stood up to it on this occasion. Each of these three amendments in my name is entire of itself and could be passed on its own, but they are designed as a package. Taking them individually to start with, they would do three things: first, to make the tariff for the means test proposed by the Government less draconian; secondly, to increase the allowance given to people helped through the means test to pay for their personal expenses; and thirdly, by abolishing overtime of current nursing care allowance to pay for both the above and leave some money over for better care services.
Let me explain this thinking. I am a supporter of Dilnot—at the margin, I disagree with my noble friend Lord Campbell-Savours on this. I do not regard Dilnot as perfect, but I regard the distribution of ill effect, which I quite agree with him exists, as a small price to pay for the advantages of Dilnot, namely the danger that people quite at random are chosen to be wiped out financially. So I support Dilnot’s scheme. However, I am, as my noble friend is, aware of its defects. The plain fact—Dilnot is perfectly clear about this—is that it helps only one lot of people and not another lot of people. The Minister quoted figures about who benefits from the system as a whole before the dinner break, but the reality is that, under Dilnot, the poorest gain nothing from a cap; they are paid for by means-tested benefits anyway. Nearly all the benefits go to better-off people. That is a serious defect and it is very expensive—not as expensive with the cap at £72,000 as it would have been under Dilnot’s original proposals, but very expensive. This means that it will compete in practice with another set of problems, namely the sheer lack of resources going into long-term care, a short-fall that is getting worse as the number of older people rises and which will go on getting worse as the demographics described in the House’s report on the ageing population continue. So we have a serious problem.
The package is not designed to take apart the fundamental architecture of Dilnot. It does not take from anyone a single penny that they would gain under Dilnot. It is designed to spread the benefits more widely, all without increasing public spending by a single penny. Is that magic? Your Lordships will be the judge of that.
That is the easy bit, I am afraid, and I apologise to the House for any lapses in techno-speak in the words that follow. The first amendment refers to the tariff. I will explain briefly what the tariff is, because it is not altogether familiar. Suppose that you are above the minimum threshold for the tariff, which is around £14,000 at the moment, and you have some assets. For every £250 in assets, you lose £1 a week in benefit, about £50 a year—the equivalent of an assumed 20% return on your capital. That continues under the present system until you reach the £23,250 cap for the means test, but will continue under the Government’s proposals in 2016 until £118,000 is reached, the top level of the cap. You are fined £1 a week for every £250 that you have in assets. If you start applying that to the government system you discover something that has been virtually unremarked upon in the Dilnot proposals. Although the Government are, in theory, raising the upper limit to £118,000, the fact is that someone with £118,000 in assets will gain virtually nothing under the changed means test. That is for two reasons.
First, once you start to claim local authority help with your care, you stop receiving attendance allowance four weeks later. Indeed, according to Philip Spiers of the old persons’ charity, FirstStop, many people with £100,000 or more in assets, if they were properly advised, would be worse off, not better off, if they claimed local authority support, because they would lose £79.15 a week in the higher rate of attendance allowance, or around £87 when inflated to 2016-17 prices. In other words, the apparent cap for means testing under the Dilnot proposals is actually much lower because you do not need much in assets.
The second thing is that the tariff is ripping into your entitlement. Suppose that you are in a home where the fees are £400 a week—if you live up north, and that is what the local authority allows. Say, for example, you have £100,000 in assets above the lower threshold. It is not nothing, but it is not a large amount. On £100,000, the tariff will amount to virtually all the benefits you get under the means test. There you are, getting quite excited because the Government have improved the means test to help you, but you suddenly find that they have not. You will notice that this feature of the Dilnot proposals was not emphasised by either Andrew Dilnot or government proposals. That is a cruel system to confiscate the wealth of people who have only a little bit of it. If the Bill goes through with this feature intact, I predict that we are laying the basis for disappointment and even anger among a generation of older people and their families—people of modest means—who deserve something better.
My amendment makes the tariff less harsh. Instead of losing £1 for every £250 in assets, you lose £1 for every £500. According to estimates by Ruth Hancock of the University of East Anglia and her colleagues at the PSSRU, the substitution of a £500 tariff for the current £250 would cost around £150 million in public expenditure. That is element one of the package.
I am sorry, but this will take a while because I have three amendments wrapped together. The second component of the amendments is the increase in the personal requirements allowance. It deals with a nasty feature of a very nasty means test. I think that Dilnot himself said that it was the nastiest means test in Britain. If you are on the means test for your care home fees, you are left with just £23.90 a week for all your personal needs. Perhaps you want to give your child or grandchild a birthday present, buy cosmetics or some little comforts, a few sweeties, or even pay for taxis to the doctor when you cannot get about. All that comes out of £23.90 a week. That is not a rich reward for the poorest people in our society to be left with at the end, many of whom have worked long and hard. My amendment raises that to £32.75. That figure, I hasten to add, is completely arbitrary. It is because it costs the same—£150 million—as the change in the tariff. It helps the poorest among us. Thus I have one proposal that helps people of modest means, and one proposal that helps the poorest people. All it means is that they get a smallish share of the goodies handed out by Dilnot to the better off.
Lord Warner
My Lords, I support the creative thinking of my noble friend. The truth of the matter is that we certainly did not have enough time to go into the kind of detail that he has done, which he has explained very clearly. I have to confess that we were not aware of the nursing allowance. Perhaps we should have been. If we had been, I think that we would have justified the scrapping of it by saying that that would be used to help to finance our mainstream proposals.
Also, we said in our report that we thought that the Government should look again at the personal expenses allowance. We thought that it was extremely mean. In a way, it has not kept pace with inflation over the years and it now seems a rather derisory amount. Therefore, anything that could be done to improve that without increasing the cost of public expenditure would seem to us a good idea.
I commend my noble friend for his creativity. I hope that the Government will take his amendment away and look at it seriously to see whether something can be done with it, because I think that it is an improvement on our recommendations.
Lord Hunt of Kings Heath
My Lords, I, too, have a great deal of sympathy for the core of my noble friend’s proposal to change the means test to increase personal allowances to support people so that they have enough money for what he described as “small treats”. Like my noble friend Lord Warner, I should be interested in the noble Earl’s response to that point.
I also sympathise with my noble friend’s second proposal to help those with modest assets by making the means test less severe. It is clear to most of us that the benefits of Dilnot will go to the better off. I think that one must be sympathetic to my noble friend’s aim of trying to spread the benefits more widely. Of course, that comes with a cost, and my noble friend’s answer to that is the proposal to abolish the nursing care allowance or to phase it out. Perhaps the term is grandparenting; I am not sure of the phrase but the Lords reform proposals come to mind—the transition.
Whether that is the right approach must of course be subject to some debate, and I would certainly need some convincing about the phasing out of the nursing care allowance. However, I think that my noble friend has done us a service and I hope that we will have further discussions on it between now and Report.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, on one level I sympathise with the intention of the noble Lord, Lord Lipsey, to redistribute funding between health and care and support so as to increase the personal expenses allowance and local authority support for those in residential care. However, we need to face the reality of the current economic climate. One important aspect of our reforms is that the greatest support will go to those with the greatest need, and that is surely the policy aim that we need to keep most closely in mind in this context.
Currently, the NHS funds nursing homes to support the provision of registered nursing care. This reduces the burden on the NHS of having to provide NHS nurses in residential care homes. Removing this funding would risk increasing costs elsewhere in the NHS, but it would also breach a serious point of principle. If we were to stop people in residential care homes from being eligible for NHS-funded nursing care, it would undermine one of the founding principles of the NHS, which is that it should be a service free at the point of delivery. I am sure that noble Lords would agree that we would not like to see that.
I understand why the noble Lord seeks to increase the personal expenses allowance. If someone is contributing to the costs of their residential care from their net income, for example from their pension, the personal expenses allowance is the amount people can retain to spend as they wish. This is currently set, as he rightly said, at £23.90. The amendment would increase it to £32.75. When living at home, people pay for their food and heating from their income. It is right that people should continue to contribute towards these costs in residential care. The personal expenses allowance reflects the fact that for most people these costs represent a large proportion of their income, but it allows people to retain some of their income for other uses. The reality is that spending additional resources on the personal expenses allowance would reduce the resources available to provide support to those with the greatest needs.
I heard what the noble Lord, Lord Lipsey, said about the loss of the attendance allowance meaning that people would be worse off. Local authorities should support people to maximise their income. If a given individual would be better off receiving the attendance allowance, the local authority should support them to achieve this. We will bear this in mind as we draw up the regulations.
I turn now to Amendment 91, which relates to financial assessments. One of the problems the Dilnot recommendations attempt to tackle is the cliff edge between being a self-funder and being supported by the local authority. By extending the means test for people in residential care, we aim to avoid a situation where a small change in a person’s capital results in a large change in what they pay for care.
From 2016, the maximum tariff income for someone with £118,000 in assets will be £404 per week. If we reduced the rate at which people contribute toward their care costs from their assets to £1 per week for every £500 of assets, the contribution for someone with £118,000 in assets would become £202 per week. This means that an individual facing a typical care home fee would be over £200 per week better off if they had assets of £117,000 than if they had assets of £119,000. This would reintroduce the cliff edge that surely none of us wants to see.
I believe that our plans represent a fair balance between the individual and the state. People with care needs will receive additional support with care and support costs through the extended means test, safe in the knowledge that health services will remain free at the point of use and that they are protected by the cap from unlimited care costs. I hope the noble Lord will see that there is method in the Government’s proposals. While I totally understand much of his rationale, I think our proposals have a better balance. I hope that he will feel able to withdraw his amendment.
Lord Lipsey
My Lords, I am usually extremely complimentary about the noble Earl’s replies to debates, but I do not think that he lived up to his normal standards in that one. He seems to be under a number of illusions. He seems to think that this Bill increases the amount of public spending that goes to the worse off, rather than the better off. It does not. The Bill incorporates what is a most extraordinary priority in terms of distribution, for reasons that I believe to be compelling. Concentrating money on those most in need may indeed be the Government’s general philosophy, I do not know, but this certainly is not implicit in this Bill.
The noble Earl seems to say that if you do as I suggested on the nursing care allowance, you would increase spending by the NHS. The exact reverse is the case. The nursing cost allowance is paid for by the NHS. I am subject to correction, but I believe it to be paid for by the NHS, so you would have an immediate reduction in NHS spending of some £500 million-plus a year.
Lord Lipsey
“( ) After section 54(2) of the Health and Social Care Act 2001 (funding by resident etc of more expensive accommodation), insert—
“(2A) The regulations shall only restrict the right of residents to top up their fees to the extent that is reasonable, and in particular they shall not limit top-ups to residents using the 12 week property disregard or the deferred payment scheme.””
Lord Lipsey
This is another piece of arcanery, I am afraid, for the House. It is a genuinely probing amendment.
Not everyone may know what top-ups are, any more than everyone knows what nursing care allowances are. They arise for people who are not paying in full for their own care but want a better standard of care than the local authority is prepared to pay for. There are a quite a lot of these people. There are about 350,000 people in care homes and about 50,000-plus of them get care allowance. If a local authority claims a person’s needs can be met in a home costing £400 a week and the old person or their family prefers one costing £500 a week, they get the means-tested support as if they were in a £400-a-week home and the family finds £100 from their own pockets.
However, there is a strange twist. As long as a third party—usually the old person’s family—is prepared to dip into their pockets for the extra £100, there is no legal problem. They can do so under LAC circular (2004) 20, which derives from the National Assistance Act 1948. But if the old person wants better care, they can top up out of their own pocket only in very limited circumstances. They can do so only if they are subject to the 12-week disregard—which is the period you can be in a care home to see whether you get better and come out—or if they have a deferred payment agreement with the council, when the council may make top-up payments on their behalf. In theory, people cannot top up their own home fees but these can be topped up by other people.
As a historian of the Treasury, I can sort of see how this might come about. The Treasury would not want those whose means-tested contribution is offset by the tariff, as has been discussed, running down their assets to pay for better care, thus throwing more of the burden on the state. However, those in the know say that the restriction is widely ignored, often with the connivance of councils that do not want to get into an argument about whether the accommodation they will provide within their own limits is adequate for the old person. As a result, they allow the old person to chip in for their own care—perhaps he or she puts the money into a son’s bank account, the bank account pays the home and we do not know what goes on.
In parentheses, it is perfectly clear that local authorities know very little about what is going on with top-ups. I refer to the report due to be published by the charity Independent Age tomorrow, which analysed this after doing a freedom of information request on all councils. Out of the councils they asked, only 30 or so can be reckoned to have best practice or a good system for keeping account of top-ups. The rest are either bad or worse.
These mysterious top-ups go on, otherwise the old people would have to move out of the home they are in and into a local authority home. As noble Lords know, if you move old people from the home they are in to another home, what frequently happens, I am afraid, is that they die. This strange top-up mess is more difficult in the post-Dilnot world. Because of the extension of the asset limit for means tests, many more people will be receiving means-tested support, and anyone who is receiving means-tested support cannot do a top-up; that is the law. Many more people will therefore find themselves limited in what they can do if they stick by the law—which, as I say, they often do not.
Secondly, because the deferred payments scheme will be made available to everybody, more people will escape through the loophole in the current regulations that allows those on deferred payments to top up—you can do it if you have a deferred loan from the local authority but you cannot if you do not. The injustice between those who can and do defer and those who do not is made worse—the former can top up but the latter cannot. That will be a growing problem and a huge incentive for people to take out deferred payments, because they can legally top themselves up that way.
Thirdly, and potentially more importantly, let us suppose a person is self-funding and in a home where the fee exceeds what the local authority will pay. They reach the cap, having spent their £72,000. What will happen then? The state will meet that part of the cost of the home that they are in which is equivalent to what they would pay if they were in the home selected and provided by the local authority—their limit. If the home costs more than that—£600 a week not £400—where will the rest of the fees come from? Perhaps their family does not have any money for a top-up or is unwilling to provide it. Who is going to top it up? I am afraid that the crude reality is that some people will persuade the council to pay the higher fee while others will be moved—and, as I have already said, people who are moved will as a result, on average, die considerably younger. That is not a side-effect that Dilnot planned for but it is a side-effect of the way it is going to work out. Nothing much has been said by the Government about what happens if you reach the £72,000 cap and are in a home costing more than the local authority is prepared to pay. Until we get reassurances on that, the reality must be that they will be moved out to another, poorer, home and that this is going to be a tragedy.
The irony is that these are not poor people falling back on the state. They may well have assets and might be very willing to put in a bit extra to ensure that their last years are comfortable, but they are prevented by law—if they obey it—from doing so. Either they decide to opt out of Dilnot and fund their care in full, in which case they will not benefit from the cap and Dilnot, for them, amounts to nothing, or they go through the business of moving to the inferior home and we will have inflicted that disaster on them.
This area has not been much explored but there is a simple way of dealing with it, which is incorporated in this amendment. It is simply to end the ban on residents topping up their own fees. I do not think the cost would be very much but if the Minister has some other way of dealing with it, he should tell the Committee now before we endorse a policy which could lead to the mass eviction of old people from the residential homes in which they have long lived, in sharp contravention of all we are aiming to do in this Bill. I beg to move.
Lord Warner
My Lords, I intervene on this to talk very briefly about what the Dilnot commission said on this issue. I will quote just two sentences from page 22 of our final report, which are worth putting on the record. We said very clearly:
“The state-funded care element will be based on a local authority care package, but people will be free to top up from their own resources, should they wish. If someone moved to a different local authority, they would take with them a record of their contributions to date”.
That is a very clear statement of what our policy was. When we were taking evidence, there was not a lot given to us about the extent of top-ups.
If I fast forward to my time on the Joint Select Committee with other Members of this House, the issue of top-ups seemed to have changed quite significantly between the time when the commission reported, having considered all this, and the time that the Joint Select Committee was working on it. There were not good data, other than that many of us have been increasingly learning that the top-up levels have been quite considerable in some homes. There is clearly a problem with the cross-subsidising of people who are state funded from self-funders. The issue is now complex and I do not know how good the Government’s data are on the use of top-ups. We were clear that you could count towards the cap only what the state-funded element of that payment was, which would be determined by what the local authority would pay in its area for the care being provided. If we depart from that principle, we will end up in chaos—and probably end up with a much higher public expenditure bill.
There is an issue here that the Government need to think about, but in principle we should do nothing to stop people topping up if they and their family are prepared to provide for a higher level of care. The present rules were drawn up for a different time and on top-ups, the world has moved on. We need to get this straight before we finish this Bill.
Lord Hunt of Kings Heath
My Lords, I, too, would welcome a debate about top-ups and the Government’s present position and response to the Dilnot proposals, as enunciated by my noble friend Lord Warner. It would also be helpful if the noble Earl could give us a little thinking about how the Government expect this to work out in practice.
We start with the fact that a local authority has to have an assessment to add to the baseline to set the clock running, so as to get to the £72,000 cap. We have already discussed transparency and the problems arising where self-funders find that they have in fact been subsidising those people funded by the local authority. I would be particularly interested to know from the noble Earl what calculations have been undertaken by his department about the impact on self-funders when responsibility is taken over by the local authority once the cap has been reached. Has any work been done on the extent to which those self-funders will be forced to move home because the local authority will not fund them at the rate that they have been self-funding, while the home itself is requiring those people to move?
My noble friend Lord Lipsey referred to the general experience—we have seen it in the health service—that when very frail elderly people are forced to move from one care setting to another their life outcomes are very poor indeed. Clearly, it would be wholly unsatisfactory if, as a result of bringing in the £72,000 cap, we had the perverse incentive of forcing a lot of movements by frail, vulnerable people that would have a deleterious effect on their health and life outcomes.
That brings us to whether removing the top-up restriction would be an appropriate response. My noble friends have put forward a persuasive case. It is important that the Government should enable the House to come to a view on these matters, having made an assessment of how the introduction of state support for self-funders who have reached the cap is going to work in practice.
Earl Howe
My Lords, having disappointed the noble Lord, Lord Lipsey, on the previous group of amendments, for which I shall try to make amends over the summer holidays, I hope to do a little better with this one but I predict that he will not be completely satisfied with my answer.
People should be supported to receive the care they want and should be able to use their own assets to achieve this when they can afford to do so, but this should never be an excuse for local authorities to underfund the cost of meeting people’s needs. I agree with the noble Lord that people should be able to spend their money on purchasing more expensive care and support for themselves if they wish to do so, provided this is affordable. We are seeking better to understand the impact of such a relaxation and the protections that are appropriate for vulnerable people. It would clearly be undesirable for a person to spend their life savings on residential care and late in life be faced with the prospect of having to move to alternative accommodation purely on affordability grounds. I take that point absolutely. In addition, we want to consider the implications for the ability of local authorities to arrange services for other people. If individuals were to use their resources to purchase more expensive care, this could ultimately reduce local authorities’ income from charges. This in turn would reduce the amount of care the local authorities could arrange for other vulnerable people. There are a number of factors at play here, which we need to think through a bit more.
In principle, people should be able to use their savings to purchase more expensive care if they want to. We are determined to clarify and modernise the care and support arrangements in a way that is fair and reasonable to people who need care, their families and the taxpayer. The revised arrangements for people to use their savings to pay for their own care will be set out in regulations made under Clause 30(2) of the Bill. Through the public consultation on funding reform, we are seeking better to understand how relaxing the existing restrictions on making additional payments, which the noble Lord, Lord Lipsey, outlined, might impact on the wider care and support system. The evidence we hope to gather from the consultation will inform the regulations that will set out the revised arrangements. Those regulations will also be subject to further public consultation. In view of that, which is really a long-winded way of saying that this is work in progress but we are on the noble Lord’s side, I hope he will feel able to withdraw his amendment.
I can clarify one point in relation to when local authorities take over responsibility for funding care. It may be appropriate for the local authority to meet any additional cost, for example, where moving the person receiving care and support would adversely affect their health. However, where paying the higher cost might limit the local authority’s ability to support other individuals with care and support needs, the person may have to move to less expensive accommodation. In making any decisions, the local authority has to consider the exercise of its duty to promote that individual’s well-being.
I hope that those are helpful remarks. I would be happy to discuss this issue with noble Lords between now and Report.
Lord Lipsey
My Lords, I thank the Minister for that reply. Having berated him for his previous speech, I can more than fulfil his expectations on this. He has done all that I could have hoped for and more. It will be extremely well received in the world outside that the Government are finally getting to grips with this long-outstanding anomaly. I do not blame this Government. Various Governments have been exactly the same. We are going to get a solution that is essential if the Dilnot scheme is to work as we meant it to work. It is very good news to hear the Minister state so strongly in principle that if people want to use their own money to top up their fees, they should be able to do so, although I understand his reservations about the impact that might have on the local authority market. I look forward to his further work on the subject and to discussing it with him and his officials, as will, no doubt, other noble Lords who have an interest in this. I beg leave to withdraw the amendment.
Baroness Greengross
where there is a person authorised to do so under the Mental Capacity Act 2005 or otherwise in a position to do so on the adult’s behalf, but that person nonetheless asks the authority to meet the adult’s needs.”
Baroness Greengross
My Lords, I have a number of amendments in this group: Amendment 92ZZCA in Clause 18, Amendment 92ZZLA in Clause 26, Amendment 92ZZQA in Clause 28, Amendments 92ZZR and 92ZZRA in Clause 30 and Amendment 92ZZRB in Clause 31. I will try to be brief.
These amendments follow on from the discussion relating to the amendments tabled by the noble Lord, Lord Lipsey. The first amendment is about the duty to meet needs. We know that carers are often old people themselves. They have often cared for a long time for somebody with dementia or something similar before that adult meets the eligibility threshold for care. In my view and that of the Alzheimer’s Society, those carers should have the right to ask the local authority to arrange that person’s care because it is important that an individual who is in a position to arrange care and support has the right to ask the local authority to do so even when the adult is self-funding. Enabling a carer who would otherwise be required to arrange care to request that the local authority meet that need would help to reduce the strain that that carer is under. Being able to ask the local authority to arrange care would also enable the adult to take advantage of the better rates for care that the local authority can command through block booking and other means. It would be unacceptable if adults who do not have capacity but who have deputies or other representatives were forced to pay higher costs than other people.
Amendments 99ZZLA and 99ZZQA are about the usual rate of independent personal budgets. Clause 26 refers to the calculation of a personal budget that will enable eligible needs identified by the assessment to be met. The budget needs to be sufficient to enable this to happen. Clause 26 treats this as being the cost to the local authority of meeting that person’s needs, whereas a person receiving their direct payment as a cash payment would not necessarily be able to purchase care at the same amount since care homes, as we know, routinely charge self-payers more than they charge local authorities. Legislation has to be clear that local authorities have a duty to meet eligible needs, and personal budgets must therefore be, after application of the local authority’s normal means-testing system, sufficient to purchase that level of care at its local actual cost and not at a tariff rate based on the bulk purchasing power of the local authority.
Clause 28 refers to calculating the independent personal budget, which is, confusingly, different from the personal budget referred to in Clause 26. The independent personal budget is used to calculate the amount that an individual can spend on his or her care that will count towards the expenditure cap. Clause 28, therefore, refers always to expenditure by the individual, so it should be the true cost available to the individual of meeting their assessed needs, rather than the cost to the local authority. Once again, there is a difference.
The amendment to Clause 26 also has an impact on Clause 30. This clause replaces the current choice of accommodation directions which enable a person to choose a different residential care home from that provided by the local authority and to top up the payments if their preferred accommodation is more expensive than the local authority’s usual cost. The Minister has confirmed that this is possible. However, the current system is widely abused with local authorities often requiring top-ups even when there are no places available at the so-called usual cost and the person has chosen the only available accommodation that meets their needs.
Clause 30 does not refer to the usual cost but, instead, defines “more expensive” as being more than the value of the person’s individual budget. If the personal budget is defined in Clause 26 by how much the local authority says it will pay to meet the person’s needs, the system is open to the same abuses as the choice of accommodation directions. However, if Clause 26 requires that the personal budget should be sufficient for the person to purchase services which will meet their needs, this ensures that the rate that the local authority will pay for care is directly related to actual market conditions.
Amendment 92ZZR is about the review of independent personal budgets in Clause 28. People should be able to refuse an assessment as long as they understand the implications of that refusal. However, this clause does not offer adequate protection to people who lack capacity. As it stands, the clause puts people with a deteriorating condition, such as dementia, at risk of falling through the gaps. The proposed new clause stipulates that Clause 28 does not apply when an adult lacks capacity to refuse the assessment. It would stop vulnerable individuals from falling through those gaps as local authorities would be required to carry out a needs assessment and continue to maintain their care account.
Amendments 92ZZRA and 92ZZRB are about the choice of a care home. I declare an interest as chair of the All-Party Group on Dementia and the Alzheimer’s Society shares my concern about this. There is potential that the Bill will not provide the same right to choose a care home as currently exists. Individuals currently have a right to exercise genuine choice over where they live. If an individual has a preference for a particular care home, the local authority should arrange accommodation in that home subject to the following conditions being met: that the home that is chosen is suitable to meet the individual’s needs and as assessed; that it does not cost more than the local authority would usually expect to pay to arrange accommodation for someone with those assessed needs; and that it is available and the provider is willing to enter into a contract on the local authority’s terms.
An individual may wish to move to a home that is more than the local authority’s usual cost, even though there is a home that meets their needs and it is within the local authority’s usual cost. In these circumstances the individual or another person can make arrangements to make a top-up payment, as the Minister has said. The Bill states that regulations “may” provide that the local authority must arrange for the provision of the preferred accommodation. This should be amended to “must” rather than “may” to ensure that the right to choice continues. In addition, the Bill currently says that regulations may provide that where an adult expresses a preference for a particular home, the local authority should act on it. The risk is that this excludes an adult’s representative from choosing a home. Holders of lasting powers of attorney relating to welfare are examples of representatives who should be able to express a preference, and that preference should be acted on by the local authority. I beg to move.
Baroness Browning
My Lords, I will speak to two amendments in this group: first, Amendment 92ZZK in my name and those of the noble Lord, Lord Touhig, and the noble Baroness, Lady Tyler of Enfield. This is very similar to an amendment that I tabled to an earlier part of the Bill, and it focuses in particular on transition:
“In preparing a care and support plan, the local authority must have regard to the young person’s education, health and care plan, where such a plan exists, and integrate the care and support plan with the existing education, health and care plan”.
I will not repeat what I said earlier, but this certainly applies to this clause because the integration is very important. This amendment is supported by the Care and Support Alliance, and particularly affects young people who are coming from adolescence into adulthood, where the seamlessness of their care package is very important. As I mentioned in moving the earlier amendment, this has, of course, a read-across into other legislation. I know that my noble friend gave me a reassurance last time, but it is important that the Bill requires that double-banking, if you like, to make sure that there is joined-up government here between not just two government departments but two plans that affect an individual’s future.
I also briefly raise the question of a probing amendment—Amendment 92ZZGA, in the name of the noble Baroness, Lady Emerton. In Clause 25(1)(e) the amendment seeks to change the words,
“includes the personal budget for the adult concerned”,
to “can include”. What has concerned the noble Baroness, Lady Emerton, here is that, although there may well be sanction for a personal budget for the adult concerned, the impression given by this particular wording is that it could possibly constrain the choice as to how that personal budget was spent. I appreciate that the care plan or the support plan would identify that sanction had been given for a personal budget. However, it is very important that it in no way presumes the choices in a prescriptive way that would take away from the individual concerned what is at the very heart of personal budgets—the right to choose services and items, which might well be something that they have a preference for and on which the local authority should not get too much into the detail, having sanctioned the personal budget in the first place. It would be helpful, when my noble friend responds, if he could give some reassurance on that matter.
Lord Dubs
My Lords, I shall speak to two amendments in this group, both of them amendments to Clause 25 —Amendments 92ZZH and 92ZZJ. I must say that I do struggle with all these initials; they make it hard to spot which amendment is which—but it may be that there is no better way of doing it.
Amendment 92ZZH is about people who have fluctuating needs for support because their condition is not constant. A fluctuating condition is a chronic condition, physical or mental, of which a characteristic feature is a significant variation in the overall pattern of ill health and/or disability. There are many millions of people in the UK with fluctuating conditions. Those could include MS—I am an officer of the All-Party Group for Multiple Sclerosis—rheumatoid arthritis, HIV, Crohn’s disease and colitis, epilepsy and Parkinson’s disease; there may also be others. Those conditions cover a large number of people.
The problem is that when people have fluctuating conditions it will be much harder to plan ahead on the basis of the present drafting of Clause 25. There is not the flexibility to enable account to be taken of the ups and downs associated with fluctuating conditions. If the plan could take account of fluctuating conditions, individuals could be assured that they would get the level of care they needed, consistent with the fluctuations in their condition. By allowing for that, we can also prevent costly hospital admissions. That in itself is an important aim both for the well-being of the person concerned and, in terms of cost, for the health service.
For example, a snapshot survey of individuals showed that 30% of respondents with rheumatoid arthritis had been admitted to emergency care as a result of a flare-up of the disease in the past year—of which, of course, no account is taken by the Bill. The benefit of my suggestion is that it would make it possible to plan ahead for variations in care and support, in advance of those variations being required.
Amendment 92ZZJ is about the period over which care will be made available before the need is reviewed. The current wording of Clause 27 gives local authorities the power to,
“keep under review generally care and support plans”.
“Generally” is an all-purpose word which can mean anything. Local authorities are not required to specify when they expect such reviews to take place. Anyone who is subject to something “generally” lives in uncertainty, and what I would like to achieve with my amendment is some element of certainty.
The key benefit of the care and support planning process would be to allow a discussion between the local authority and the person concerned about the best way their care needs could be met. Then there could be an agreement between the local authority and the adult or carer. It is important for such an adult to be confident that their care will remain consistent until their circumstances change. Under my amendment they would not be subject to an early review if there was no need for it, but when things happened, that could be reflected in their care plan. The amendment would give that adult the confidence that their care would continue as agreed until the specified date, or until the adult himself or herself chose to request a review in line with Clause 27(1)(b). That may seem a small change but it would be important to the individuals affected.
Lord Sharkey
My Lords, I shall speak briefly to my Amendment 92ZZS. Its purpose is to ensure that the direct payment system works well. In particular, it would ensure that all parties to the decision to use direct payments fully understood the implications of that decision.
I raised this matter at Second Reading because I was concerned that some successful applicants for direct payments may underestimate the difficulties involved in administering those payments. I was concerned that there was no clarity about exactly how local authorities would make the decision about who was and was not a suitable recipient for direct payments. For example, it is likely that many in receipt of direct payments will want to employ people directly. Will they understand how very complicated it is to employ even one person? How will they find out? Exactly how will local authorities assess their ability to do this, and will people properly understand any contractual arrangements they may enter into? Who will help them understand? Exactly how will local authorities assess their likely abilities in this area?
I suggested at Second Reading that a way of dealing with this was to give local authorities an obligation for friendly oversight of the administration of direct payments for an initial period of six months or so. In his very thorough and helpful letter of 5 June to those who spoke at Second Reading, the Minister pointed out that Clauses 31 and 32 set out that, before a direct payment is made, the local authority must be satisfied that the adult or someone nominated on their behalf is capable of managing the direct payment. He felt that these and other provisions in Clause 4 should ensure that direct payments are used appropriately.
I am sure that these provisions will be very helpful, but they would be more helpful if the local authority had to explain to applicants on what basis their capability was being assessed and the exact criteria for assessment. It would be more helpful still if the explanation was in written form and followed by discussion with the applicant. That is what my Amendment 92ZZS would put in place. It simply requires the local authority to make known in writing and discuss with the applicant the criteria that it uses to satisfy itself that the adult is capable of managing a direct payment. This would have the effect of bringing about a proper discussion of the implications for the applicant of managing direct payments and provide a proper and informed basis for the local authority to make a judgment. I hope that it would also ensure that the criteria for judgment were clear, understandable, user-friendly and completely transparent. Making this simple change would greatly improve the chances of correctly matching direct payments with those who understand the implications and can effectively manage the system. I very much look forward to hearing the Minister’s thoughts on the matter.
Baroness Wilkins
My Lords, I speak to Amendment 92ZZSA, which stands in the name of the noble Baroness, Lady Campbell of Surbiton. The amendment seeks explicit clarification from the Government that nothing in the Bill lessens the strong duty on local authorities to offer direct payments to those requiring care and support services. A right to request direct payments is a welcome encouragement to those who would like to arrange their care and support with the autonomy that direct payments bring. However, it should not undermine the duty of local authorities to offer direct payments as enshrined in the Health and Social Care Act 2001 and regulations. It would be unhelpful to shift the onus on to individuals to know about and request direct payments and away from local authorities’ duty to offer them.
In general, case studies in this area show that where people already have a care package and then want to convert to direct payments, a battle is often involved. Care services recipients need a clear indication that direct payment is one of the support options available. The Bill requires local authorities to tell an adult which, if any, of the needs can be met by making direct payments. It is vital that local authorities understand that they must always provide information about direct payments. This information must include how to request one, the conditions, and advice and brokerage services.
Local authorities need to provide support to help the adult to manage direct payments. As the Bill stands, they can refuse a request if the adult has no help available to manage the payments. Could the Minister make the Bill’s intentions clear in this regard? It is important that the rights and duties enshrined in the original Act, which have proved so beneficial to many disabled people, are not, as it were, lost in translation, and some reassurance on this matter would be very welcome.
Baroness Wheeler
My Lords, this has been a valuable debate and important issues designed to probe and improve aspects of these crunch stages in the care and support journey have been raised. The amendments relate to the duty of the local authority in respect of the care and support plan for the adult, the support plan for the carer, the personal or independent budget resulting from the assessment of the adult’s and carer’s needs, and care accounts and direct payments. This is a large grouping and we have nine amendments. I will speak to them as they relate to other amendments in the group as briefly as I can.
Amendment 92ZZG seeks to specify in the Bill that the adult or carer needs in the care and support plan or support plan include both social care, to be met by the local authority, and health needs, to be met by NHS bodies in the area. This requirement would reinforce the need for local authorities and primary, secondary and community health services to work closely together for the benefit of the adult and the carer. It would also provide a clear, joined-up picture of the adult and/or carer’s interlinking care and support and health needs and how they are to be met. Amendments 92ZZP and 92ZZQ also provide for this important joining-up mechanism to apply to the care and support plan and support plan reviews by underlining that in the review process, local authorities must have regard to any changes in the health needs of the adult or carer, including any health provision that they are entitled to receive.
Amendment 92ZZK, in the name of the noble Baroness, Lady Browning, extends the intent of our amendment by specifying that in a young person’s care and support plan, both health and education, in addition to care and support, should be included, integrating with any existing plan in these areas. The importance of this amendment to young people with autism—or indeed to their carers, as the amendment is not specific—has been underlined by the noble Baroness.
The noble Baroness, Lady Greengross, has tabled a number of amendments. In the time available I will refer to four of them. Amendments 92ZZCA and 92ZZR address the need for the Bill to be explicit and thorough in relation to the assessment and eligibility entitlements where the adult lacks mental capacity to arrange for the provision of care and support. The amendments are designed to ensure that the local authority provides free care and support in the circumstances where the person authorised to represent the adult under the Mental Capacity Act 2005 asks for the care and support on the adult’s behalf.
Amendment 92ZZR addresses concerns raised by the Alzheimer’s Society and other groups that Clause 28(7) does not offer adequate protection to people who lack capacity and puts people with deteriorating conditions such as dementia at risk of falling through the gaps. Government Amendment 92ZZQC is designed to address this and the Minister’s recognition that the clause is open to misinterpretation is welcome. These are complex issues but we all recognise the importance of ensuring that the Bill is watertight in respect of adults lacking capacity to arrange care and support, and of having clarity in respect of the local authority’s duty to carry out a needs assessment and to continue to maintain their care account. Can the Minister reassure the House that the Government’s amendment addresses the concerns raised by noble Lords in this debate?
The noble Baroness also raises a key issue in her Amendments 92ZZRA and 92ZZRB, which go to the heart of the choice agenda to ensure that the current right for individuals to choose a preferred care home, and the ability of their representatives to choose a home on their behalf when, for example, the individual has dementia, is upheld in the Bill. Currently the Bill does not make this mandatory on local authorities and it is important that it does. I ask the Minister how the Government’s policy on patient choice can be met when the Bill does not reinforce the current right for people to choose their preferred care home.
Our Amendments 92ZZRAA and 92ZZRAB probe this issue further and are intended to explore the Government’s appetite for including the right to express a preference for the nature and location of accommodation. We support the intention of the Government, the Law Commission and the Labour Party that the Care Bill should increase the choice and control of adults using social care and their carers. I am, however, intrigued to determine whether the Minister thinks that this right in Clause 30 might be made more meaningful if it were extended to include the nature and location of this accommodation. It is important to seek to give adults needing care and support both choice and voice, including them in decisions about them. I look forward to the Minister’s response.
I support the intention of my noble friend Lord Dubs in his Amendment 92ZZH to ensure that care and support plans or support plans specify contingency planning for an emergency, ensuring that plans reflect the flexibility needed for fluctuating conditions, such as MS and other conditions referred to by my noble friend, where there can be severe changes and rises and falls in care needs. Having discussions and planning in advance for this, so that the care is there when it is needed, would be a significant step forward.
It is also important to look at contingency plans in case the carer suddenly becomes ill or is unable to provide care. The self-direct assessment model includes discussion on contingency and risk, but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency care cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon emergency help themselves.
My noble friend also underlines the importance of including a review date in the plan. It would be valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is, and what kind of client feedback, or complaints process, there will be, as well as client/carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently address these issues. Our Amendments 92ZZMA and 92ZZQB probe how a reasonable request for a review of a care and support plan is to be interpreted and, most importantly, to be interpreted fairly across the country. We support a national care service and a national entitlement to care.
We also in our Amendment 92ZZEC draw attention to the important issue of the need for the completion of the care and support plan and support plan to be conducted within a reasonable timeframe. The assessment is a worrying and often traumatic time for the cared for and carer, so knowing what the timeframe is from interview to completion, and then for the personal budget decision, is pretty important. Getting an early assessment and getting the clock ticking towards the cap will also be crucial, so there must be targets and timeframes for the local authority to adhere to and meet. Assessments under the self-directed support process in my local experience as a carer involved four meetings with social services, including with the domiciliary care agency provider and with the daycare provider, and a lot of supported work to be undertaken by the adult or the carer on the client’s behalf. Is the Minister confident that local authorities will really have the capacity and resources to cope with the demands of the new system, including the estimated quarter of a million additional assessments for self-funders that will need to be carried out?
Finally, our Amendment 92ZZSB seeks to implement the recommendation of the Joint Committee on lifting the Department of Health’s current ban on direct payments being used to pay for local authority services if the individual chooses to achieve the agreed outcomes. Our amendment would bring this into effect by underlining in the Bill that there should be no restriction in terms of type of provider placed on the services which can be purchased by direct payments. I hope that the Minister agrees, and I look forward to his response.
Earl Howe
My Lords, I thank all those who have contributed to the debate on an issue which is crucial to the Government’s vision for a personalised care and support system—the care planning process.
In relation to Amendment 92ZZCA, I hope I can reassure the noble Baroness, Lady Greengross, that it is already the case in the Bill—the Explanatory Notes make this clear—that where the adult lacks capacity to make a request, it may be made by someone else on their behalf. This is the effect of the Mental Capacity Act 2005. It is not necessary to set this out in legislation each time. We will also make this clear in guidance. Condition 3 in Clause 18(4) imposes a duty on the local authority to meet needs in cases where the adult lacks capacity and has no one to arrange care on their behalf. This is an additional safety net, enacting a provision previously set out in guidance.
On Amendment 92ZZEC from the noble Baroness, Lady Wheeler, it is vital that local authorities retain the ability to be proportionate to the needs to be met. For some people the care planning process may be relatively simple and therefore can occur relatively quickly, but that may not be the case for people with multiple complex needs. As we discussed earlier, there may be a need for experts to be engaged in some cases, and this should not be overlooked in order to meet a centralised target. Introducing a defined timescale may also have the unintended consequence of some plans being rushed in order to meet the deadline, or even introduce gaming into the completion of care plans. I hope that the Committee will agree that this does not fit very well with our vision of a personalised care and support system.
We will work with stakeholders to set out best practice for conducting care and support plans in guidance. This will include indicative but not definitive timescales for care plans. Amendments 92ZZG, 92ZZP and 92ZZQ in the name of the noble Baroness, Lady Wheeler, raise the issue of specifying health needs in the care plan. The Bill creates a clear legal framework to enable such integration to happen in practice. However, it is not for the local authority to specify in the care plan which needs the NHS should meet. Clause 25 requires local authorities to involve the adult and carer, and take all reasonable steps to agree the plan with them, which would include whether to refer to any health needs.
In relation to Amendment 92ZZGA in the name of the noble Baroness, Lady Emerton, we believe that everyone should receive a personal budget as part of their care plan to ensure individuals are made aware of the cost of their care and the contributions both they and the local authority need to make. Giving local authorities discretion on whether to provide a personal budget would undermine our aim of giving people more choice and control over their care and support. Removing this duty will also affect the ability of the local authority and adult to track progress towards the care cap. I realise—at least I hope I realise—that the amendment was a probing one.
Baroness Browning
I think the concern of the noble Baroness, Lady Emerton, was not about the discretion over whether or not to give the budget, but about discretion over how that budget should be spent. I think that she was concerned that the personal budget, if it were put into the plan in a certain format, might start to prescribe how the budget was spent. That, I think, is what she was concerned about and why she suggested the change of wording.
Earl Howe
I am very grateful to my noble friend and I think I had better reflect further in the light of those comments.
I completely agree with the noble Lord, Lord Dubs, in relation to Amendments 92ZZH and 92ZZJ, that a modern, comprehensive care and support system should be able swiftly and effectively to respond to changing patterns of need. But the issue of fluctuating or emergency needs and anticipated review dates should be left to the local authority and the adult to discuss and agree when going through the care and support planning process. Again, we will consider these matters when producing statutory guidance with partners.
I turn to Amendment 92ZZK in the name of my noble friend Lady Browning. As I have indicated previously, the transition of children to adult care and links between this Bill and the Children and Families Bill merit further consideration and will be discussed at a later date. But I share my noble friend’s expectation. Where an adult has an education health and care plan, their care and support needs assessment and plan should be integrated with it. Both the guidance supporting the Care Bill and the SEN code of practice will set out how we expect this to work.
I turn to Amendments 92ZZLA and 92ZZQA in the name of the noble Baroness, Lady Greengross. The Bill is intentionally very clear that the personal budget and independent personal budget must be the cost to the local authority of meeting the adult’s needs, not an arbitrary or hypothetical figure. I can reassure the noble Baroness that the local authority may not set the personal budget to an amount which is less than it would cost the authority to meet the adult’s needs. The personal budget or independent personal budget must reflect the cost to the local authority of meeting the adult’s needs, not the cost to the individual of doing so himself or herself. Otherwise, this would create an unfair advantage for those with more means who are able to pay more for their care and would therefore reach the cap quicker.
I turn now to Amendments 92ZZMA and 92ZZQB, spoken to by the noble Baroness, Lady Wheeler. Enabling adults to request a review of either the care and support plan or the independent personal budget without a determination of reasonableness may leave the process open to abuse and create frivolous reviews costing the local authority time and money. For example, it would not be reasonable to request a review when a review has recently been conducted and needs have not changed. If an adult request is considered unreasonable, then the adult should be informed of the grounds for the local authority’s decision. We will cover this further in guidance.
On Amendment 92ZZR, we wholeheartedly agree with the noble Baroness, Lady Greengross, that if an adult lacks capacity the local authority must carry out the assessment if it believes that this would be in the adult’s best interests. We have addressed this in government Amendment 92ZZQC. This puts beyond doubt that the provisions of Clause 11 should apply to any refusal of a needs assessment by an adult with an independent personal budget. As a result, where an adult lacks capacity or is at risk of abuse or neglect, the local authority must carry out the assessment if it believes it to be in the adult’s best interests.
On Amendment 92ZZRA, I can reassure the noble Baroness that it is the Government’s intention to make regulations on choice of accommodation in residential care.
I turn to Amendments 92ZZRAA and 92ZZRAB, spoken to by the noble Baroness, Lady Wheeler. It is important that people should, as far as reasonably possible, be able to choose the accommodation they live in. People may wish to move into a care home in a new area—for example, to be close to relatives—and they should be able to do this even if this is in another local authority area. I can reassure the Committee that we intend to make regulations that enable people to exercise choice of accommodation both within and outside their current local authority. However, we do not believe that it would be appropriate to require local authorities to find and arrange care in another local authority area. While some might choose to do so, others might lack the local knowledge effectively to undertake this task. The requirement may also potentially have significant costs and could reduce the funds available to support those with the greatest needs.
I turn to Amendment 92ZZRB of the noble Baroness, Lady Greengross. Our approach in the Bill is simple. It allows any “person” nominated by the adult to receive a direct payment on their behalf, provided of course that the conditions specified in the Bill are met. In legal terms, a “person” means anyone with legal personality. Therefore, Clause 31 already allows the local authority to pay the direct payment to a person of a type specified by the adult. This includes user trusts set up as companies and organisations set up as companies.
On Amendment 92ZZS, I understand my noble friend Lord Sharkey’s concerns, and I hope I can reassure him that the local authority cannot fulfil its duties under the Bill unless it tells the adult what he or she needs to know in order to make a decision and reach agreement about whether or not to take a direct payment. Further, the Bill contains a regulation-making power at Clause 33(2)(f) to set out cases or circumstances in which the local authority must review the direct payment to ensure that it is being used and managed appropriately.
I turn now to Amendment 92ZZSA of the noble Baroness, Lady Campbell, to which the noble Baroness, Lady Wilkins, spoke. There may be only a limited set of circumstances in which a direct payment would not be appropriate, such as where needs can be met only through local authority-provided care and support. It is not our intention to for this to be used to limit access to direct payments. However, it is important that this provision remains in order to ensure that the adult’s needs are met via the most appropriate method.
Finally, I turn to Amendment 92ZZSB, spoken to by the noble Baroness, Lady Wheeler. It has always been our policy that, as long as used legally, there should be no restrictions on the type of services purchased with a direct payment, provided it accords with the care and support plan. Indeed, this reflects current guidance. Clause 25 requires the care plan to detail the needs to be met by the direct payment and, under Clause 31, a direct payment must be an appropriate way to meet those needs. There is no need to state in the Bill the type of providers from which people can purchase care and support.
The noble Baroness asked me what kind of client feedback there will be in the planning process. I am sure that she will agree that deciding the way that care needs are to be met is at the heart of a person-centred care and support planning process. These decisions should be agreed between the local authority and the person after considering the range of options and the person’s own wishes and goals.
We have made a number of changes to the draft Bill to address some of the concerns that we heard—that the balance of the care and support planning process was not adequately weighted towards the wishes of the adult. The process must also include involvement with the carer or any other nominated person, so that all people who can contribute have the opportunity to do so. It will in some circumstances not be possible to reach agreement between the local authority and the service user on the care and support plan, much as that is the aim. In those cases, the local authority will have to act to ensure that the person’s needs are met and that any risks to their safety are prevented. I hope that I have reassured the Committee that the care and support planning process is robust, and that the noble Baroness will feel able to withdraw her amendment.
Baroness Greengross
My Lords, I thank all noble Lords who have raised issues and amendments in this discussion, which has been extremely interesting. I also thank the Minister for his response, which was very positive in all but one or two areas, where I am still not absolutely certain that we are clear on the different levels of payments in care homes. However, I shall come back to the House on Report or speak to the noble Earl later. Again, I thank everybody, and particularly the Minister for his very positive responses. I beg leave to withdraw the amendment.