Social Care

Baroness Browning Excerpts

Thursday 1st December 2016 Lords Chamber

[Baroness Browning (Con)]

My Lords, I congratulate the noble Baroness on bringing this subject to the Floor of the House. I expect I am one of the old faces she mentioned who will be termed one of the usual suspects on this subject. I refer to my interests relating to this debate as set out in the register. Like the noble Baroness, I feel there is a touch of déjà vu about this. We know about demographic trends, the demands of an increasingly elderly population and the whole range of things which cover the gamut of the need for social care, and we have talked about them in this House for decades. Yet somehow, every time we have a debate about this, it is almost as though this is something new that has suddenly come from behind and we are rather astonished to find it is such a problem.

It is now a real problem. There are concerns about care services moving out of the sector. The Local Government Association has raised its concern about people closing down businesses and withdrawing their services altogether at the very time that demand is increasing and we know that it is going to go on increasing. I have a lot of sympathy with what the noble Baroness, Lady Pitkeathley, said about the way in which we look at the funding of this. Funding is at the core of a lot of the challenges we face. Local authorities purchase in bulk. They have the advantage of that negotiation. Self-funders are usually individual people, families who, when mum has a stroke, suddenly find almost overnight that they have to provide nursing or residential care. These are the challenges individual families face almost on a daily basis across the country.

I say to the Minister that I still find it bizarre that we have this subsidy in residential care in the care sector whereby self-funders subsidise those for whom the local authority purchases care. There is never any discussion around this. We do not talk about how fair it is. There is no discussion about the fact that individuals who find they have to self-fund are not paying just their weekly fees, but are also subsidising the person in the next room, or possibly even more than one person. I really think it is time that we exposed how the funding system for care works. It is like having a secret tax that nobody knows about. I find that quite abhorrent.

I agree with the noble Baroness about the need to examine what is expected when people have assets. As a Member of Parliament, I will never forget a couple who were quite elderly themselves—in their sixties—sitting in my surgery virtually in tears at the fact that they were going to have to sell mum’s home because she now needed nursing care unexpectedly, when they had understood that that was likely to come to them. In the context of understanding the responsibility of providing for care, I say to my noble friend that there needs to be joined-up thinking across government. I was quite shocked that when the pension rules were changed so that people with private pension pots could draw down huge amounts of capital from what they had saved over the years, although provisos and bars were set in place to make sure that they had enough to live on, there did not seem to be much discussion about how much of their capital assets they would dispose of, and the whole subject of the amount of capital they would need in order to pay for their long-term care did not really seem to be part of any discussion.

I have one other thing I would just ask my noble friend. Joined-up government is so important, and the weakness has always been between health and social services in terms of agreeing who pays for what. Can my noble friend give the House an update on the sustainability and transformation plans, which should be well under way? It seems to me, if I have understood them correctly, that there is potential here, not just in terms of planning but in terms of finding the resources to implement the plans. We hear a lot about these plans, but I am not sure that everybody really understands what contribution they will make to joining up health and social services, and I hope my noble friend will refer to them when he replies.

NHS: Mental Health Services

Baroness Browning Excerpts

Monday 14th March 2016 Lords Chamber

[Lord Prior of Brampton]

My Lords, the noble Lord is right: we have committed to support the request of the task force to spend an extra £1 billion by 2021. Perhaps I may write to him about the phasing of that money over the next five years; I have seen it but I cannot recall the exact figures at the moment.

[Baroness Browning (Con)]

My Lords, can my noble friend outline the Government’s position on future in-patient services for children with mental health issues? Given that these are the most severe cases and that a lack of facilities in geographic proximity to where the children live has an effect on the immediate family, particularly parents, how will the Government resolve the problem of children as in-patients miles from home?

[Lord Prior of Brampton]

My noble friend raises a problem which is most acute for children and a serious issue for anyone who requires in-patient facilities. We are committed to reducing the number of children and older people who have to go a long way from home to receive in-patient treatment. We have committed to support the task force’s recommendation to spend a great deal more money on providing crisis resolution closer to home. This should obviate the need for people to go into in-patient facilities.

National Health Service: In-Patients with Learning Disabilities

Baroness Browning Excerpts

Monday 18th January 2016 Lords Chamber

[Lord Prior of Brampton]

My Lords, the noble Baroness is right. The national learning disability mortality review programme, which is being hosted by Bristol University, does not have the mandatory basis that other reviews have had. I am not sure why it was not set up on the same basis. It is being funded by NHS England, although it has the support of a wide range of different organisations. I will look into that aspect of the review and write to the noble Baroness.

[Baroness Browning (Con)]

Does my noble friend agree that the failure in hospitals to assess the capacity of people with learning disabilities and those on the autistic spectrum is one of the great weaknesses in providing accurate and timely intervention for people who are in hospital and who have a learning disability? Will he make a particular case for assessing the ability of staff to accurately define capacity? Will he also take another look to see that hospital passports for people with learning disabilities and autism are a mandatory requirement, not just an option, for all inpatients?

[Lord Prior of Brampton]

My noble friend makes a number of very good points. I will draw them to the attention of Mike Richards, the chief inspector for acute care in England, who is about to embark on a thematic review of avoidable deaths. He will look in particular at those with learning difficulties and I am sure that he will take into account the words of my noble friend.

Health: Parity of Esteem

Baroness Browning Excerpts

Tuesday 20th October 2015 Lords Chamber

[Lord Prior of Brampton]

I am not sure that legislation is necessarily the right way forward, but perhaps we can pick up that issue with NHS England to ensure that it is written into the NHS mandate for next year. It is certainly something I will explore with them. It is worth noting that we are spending £94 million a year on IAPT for children, and we have increased spending on tackling eating disorders in young people by £150 million over the course of this Parliament. We are beginning to rectify what has historically been an area of huge underfunding of mental health for young people.

[Baroness Browning (Con)]

My Lords, I support the plea from the noble Lord, Lord Stone, to my noble friend on mindfulness. We have a very active mindfulness group in this Parliament and I hope that my noble friend will encourage all colleagues to sample it for themselves.

When people present at a GP surgery with mental health problems, there are still far too many GPs who reach for the prescription pad. If we really are to get parity of esteem, GPs need more training in mental health and need to be able to access referrals close to their surgery for talking therapies and other such solutions, rather than just reaching for the prescription pad.

[Lord Prior of Brampton]

My noble friend makes a very good point: reaching for medication is often not the right way forward. I am not sure how much time in the undergraduate syllabus is reserved for mental health training. However, I know that a considerable amount of time is set aside for it, so that people who decide to become GPs will have had some training in mental health before they qualify. Only last week, I was talking to Clare Gerada, who was the president of the Royal College of General Practitioners. She said that she thought the best combination of all was for a GP to have studied psychiatry as well.

NHS: Reform

Baroness Browning Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Prior of Brampton]

The noble Baroness raises a number of points. Of course, she is right that it is no good just having senior doctors in a hospital without the right back-up, particularly diagnostic specialist nursing. She has just mentioned OTs and physios, and I agree with her completely there.

The noble Baroness mentioned the NHS pay review. There is not an opt-out clause in the Agenda for Change contract. Discussions will be taking place with the RCN and other trade unions later this year. I will have to write to her about the timing of the response on the end-of-life care point that she raised; I do not know it offhand. Digital information will be rolling out progressively over the next five years. I certainly hope that we will have electronic patient record in place for the vast majority of patients over the lifetime of this Government.

[Baroness Browning (Con)]

I welcome my noble friend’s announcement—I hope that he will take some cheer from that. I have too often been an emergency admission at a weekend and know only too well that if you have to wait to see the consultant on Monday you simply end up bed-and-breakfasting for two or three nights in hospitals. I hope that my noble friend will take into account how having a consultant available for those sorts of patient would save a lot of money, free up a lot of beds and achieve what he is describing.

I know that Ministers do not like to micromanage what goes on in hospitals, but with the transition to new contracts for new consultants, I hope that my noble friend will find a way to identify those particular disciplines in hospitals where there are more deaths—he mentioned this—so that attention can be given to consultants with new contracts in those disciplines. An aortic aneurysm needs a consultant standing by the patient, but with other easily identifiable conditions it would be good if the Government could make sure that hospitals proactively recruit consultants on new contracts to ensure that the 6,000 deaths that he mentioned come down as rapidly as possible.

[Lord Prior of Brampton]

I was interested by my noble friend’s comments about waiting until the following Monday when she has been in hospital. That is a good illustration of why we want to bring in seven-day services. My noble friend might be interested to read the report in Future Hospital, written by the Royal College of Physicians, that came out a year ago. I think that we will see over the next few years a significant change in the way that our hospital consultants are trained and deployed, and more generally what is called in America hospitalists, who can have a broader range of disciplines.

When it comes in, the new contract will enable us to differentiate payment for those consultants who are working more anti-social hours, such as A&E consultants who will have to work much more regularly out of hours than others. It will enable us to identify those consultants who may be on call but are more likely to be summoned in, like those that my noble friend just mentioned, at short notice. Depending on the surgical specialty, the on-call requirements can be much more demanding than others. For example, this is more the case if you are a vascular surgeon than if you are a dermatologist, who do most of their work in normal time. I take on board what my noble friend says.

Learning Disabilities: Premature Deaths

Baroness Browning Excerpts

Wednesday 30th July 2014 Lords Chamber

[Earl Howe]

My Lords, the noble Lord makes a good point. Following the recommendations of the UK review of learning disabilities nursing, we have set up an independent collaborative to address that workforce’s needs. We are also working with Health Education England’s 13 local education training boards to develop greater links with the independent and voluntary sector which will help with workforce planning. This year Health Education England increased its national commissions for student learning disability nurses by 4.5%. We are working on a number of initiatives to raise the profile of learning disabilities nursing and promote the profession as an attractive career choice.

[Baroness Browning (Con)]

The report identifies 37% of deaths that could have been prevented. People with learning disabilities and those on the autistic spectrum, some of whom are included in the report, experience communication problems at hospital level. Will my noble friend please put government force behind the issuing of hospital passports for people with learning disabilities and those with autism? The autism hospital passport was launched two weeks ago and is on the NAS website. However, these very important documents can help to prevent death only if clinicians and hospital staff read them, take note of them and act on them.

[Earl Howe]

I take my noble friend’s point. The specific needs of people with learning disabilities are being considered as part of the overall work programme to provide people with online access to their GP practice and GP-held e-record. That is being done in the wider context of the development of a fully comprehensive patient-held record. NHS England plans to hold a meeting later this year to look at developing a national standard for a hospital passport. This will be a patient-held document that will detail key information to be shared with any contact in the NHS.

Care Bill [HL]

Baroness Browning Excerpts

Monday 29th July 2013 Lords Chamber

[Baroness Browning]

My Lords, this is something of a miscellaneous group of amendments. I wish to speak to Amendment 105Q standing in my name and that of the noble Lord, Lord Touhig. I also refer the Committee to my interests in the register as far as autism charities are concerned.

This Bill must ensure that the duties set out in the statutory guidance under the Autism Act 2009 continue to apply to local authorities and local NHS bodies in order to ensure the ongoing implementation of the Act, which remains England’s only disability-specific legislation. The Act led to the publication of the adult autism strategy and the accompanying statutory guidance. When the Bill went through the House—I was on the committee when it went through another place—great play was made by the Minister of the importance of statutory guidance rather than having certain things on the face of the Bill. Ministers therefore have a responsibility to ensure that it is complied with. The guidance commits the Government, local authorities, local NHS bodies and other stakeholders to take action to improve the lives of adults with autism across England. This year, the Department of Health will undertake a statutory review of the strategy. This amendment seeks to ensure that the statutory guidance resulting from the Autism Act is embedded in the new legislation and that nothing that currently gives protection to people with autistic spectrum disorders slips through the net.

[Lord Low of Dalston]

My Lords, I shall speak more briefly, your Lordships will be pleased to learn, than I have in any of the debates we have held so far in Committee. I wish to speak to Amendment 105R. This is a probing amendment designed to seek clarification as to the meaning of Clause 72. The clause gives local authorities power to delegate some of their functions to other care providers. This raises the question of whether care provided under such delegated authority should be regarded as arranged by a public authority and therefore subject to the Human Rights Act. Clause 72(6) states that:

“Anything done or omitted to be done by a person authorised under this section … is to be treated … as done or omitted … by … the local authority.”.

This means that the local authority remains bound notwithstanding any delegation of its functions. But the Joint Committee on the draft Care and Support Bill recommended that the clause should be amended to state that the person with delegated authority is also subject to the same legal obligations as the local authority itself. It is argued that this should include obligations under the Equality Act 2010, the Human Rights Act 1998 and the Freedom of Information Act 2000. However, subsection (7)(a) puts the whole matter in doubt by providing that this does not apply,

“for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function”.

The amendment seeks clarification as to what this means and an assurance that not only local authorities but also those who provide care under these arrangements will be treated as public authorities for the purposes of the Human Rights Act and other legislation.

People with Learning Disabilities: Health Inequalities

Baroness Browning Excerpts

Thursday 18th July 2013 Lords Chamber

[Baroness Browning]

My Lords, I refer the House to my registered interests regarding disability and health and I congratulate the noble Baroness, Lady Hollins, for bringing this very important debate to the Floor of the House.

I begin with the part of the report that deals with annual health checks. Such checks for people with learning disabilities are an excellent way for doctors to pick up early even more serious problems than the patients themselves realise they have or are able to articulate. In some cases, if a person is not medicated, it could be the only time in a year when a GP sits face to face with them.

Linking the health check with health action plans is extremely important. The regular screenings that the rest of the population almost take for granted—because we are reminded that we are due a certain screening and we welcome this preventive and early opportunity to check whether there is a problem—is something that people with learning disabilities may lose out on because, when a letter arrives telling them it is time to phone for an appointment for a particular screening, they may simply throw away the letter and never have the screening. The annual health check therefore provides that opportunity.

The confidential inquiry found that the weakest link in the chain of the care pathway for people with learning disabilities was problems with diagnosis. It is very easy to misinterpret or ignore something from someone who is unable to articulate their symptoms or pain. I believe that it is key that the annual health check is expanded beyond its current very useful functions to ensure that it is used to provide a much more comprehensive look at, and a holistic approach to, that person’s health. The Government have accepted that there is inequality in healthcare investigations. They have detailed how NHS England will address this through working with clinical commissioning groups, and I understand that they will set out the details later in the year. That will be a crucial piece of work, which I hope will include tangible and measurable objectives on improving investigations that lead to diagnosis.

For people with learning disabilities in particular, and—the House will not be surprised to hear me say—for those on the autistic spectrum, many of whom also have learning disabilities, communication is a major issue. It is important for primary care services to understand the patient; if that person needs to attend a GP or nurse appointment accompanied by someone who can interpret their mood, behaviour and articulation, the primary care services must take into account that this can be quite painstaking and time-consuming. If people with a learning disability are to be treated equally, it is very important that the primary care service, and the services in hospitals when investigations often take place, allow for the fact that there may need to be a person in support who will help the clinicians to interpret how the other person is feeling.

I turn now to the part of the report that deals with the Mental Capacity Act. A number of reports, including the Confidential Inquiry into Premature Deaths of People with Learning Disabilities and the Francis report, have identified problems with how the Mental Capacity Act is understood and applied. They identified the lack of compliant practice with the Act as a barrier to effective NHS care. The inquiry found evidence of disagreement about what professionals understood by “serious medical treatment” and thus a lack of consistency about appointing independent mental capacity advocates to support those without family members to represent their views. There has also been evidence of unlawful NHS practice.

Declaring an interest as a mother, I add at this point that it is not just people without relatives to speak up for them who are not always listened to. In that shocking report from Mencap, Death by Indifference, which the noble Baroness mentioned, and reports that have followed on from the original report, we have seen the deaths of young people whose mothers have stood by their bedside and tried to explain the symptoms of their adult children to clinical staff, only to be told, “He’s over 18 and he hasn’t expressed his wishes in that way”. There is no other word for it but wicked.

So what are the Government pledging to do? The Department of Health has apparently agreed that mental capacity advice should be available 24 hours a day. It said:

“There should be staff trained in the MCA available 24 hours a day, and there should be specialist advice available in all care settings”.

It also says:

“Service providers have the primary responsibility for ensuring existing staff have the required knowledge and awareness of the MCA … The responsibility for the content of education and training curricula … lies with”,

Health Education England and,

“the professional regulators and the appropriate Royal Colleges”.

As a member of the Select Committee in this House that is currently looking at the post-legislative scrutiny on the Mental Capacity Act, I was somewhat concerned, when we took evidence at our first session on 18 June, that we were told by Department of Health officials when asked about the ability to assess for mental capacity,

“the assessment revealed an inconsistency in assessing capacity in some trusts to ensure that the Act was fully embedded”.

Claire Crawley, who spoke on behalf of the Department of Health, said:

“In terms of hard evidence, could I sit here and say, ‘I absolutely know that every local authority has appropriate plans and training processes in place’? I could not say that because I have no way of getting that evidence. The regulator of the industry, as it were, the Care Quality Commission, does not monitor local authorities or inspect them any more, so I would not know”.

Very often the local authority appoints the person who has the day-to-day care for the patient, so local authorities are as much involved in this as the NHS. When pressed by the noble Baroness, Lady Andrews, about the position of NHS trusts with regard to assessment of capacity was concerned, Claire Crawley told us:

“That would probably have been the CQC’s process … rather than the department’s process”.

I say to my noble friend that when a department, particularly the Department of Health, puts a piece of legislation such as the Mental Capacity Act on the statute book, it has a duty and responsibility to ensure that it is complied with, particularly for this vulnerable group of people. It is simply not good enough to say, “Not me, guv, it’s somebody else’s responsibility”.

Care Bill [HL]

Baroness Browning Excerpts

Tuesday 16th July 2013 Lords Chamber

[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.

--- Later in debate ---

[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.

Care Bill [HL]

Baroness Browning Excerpts

Tuesday 16th July 2013 Lords Chamber

[Earl Howe]

My Lords, this has been an excellent and very important debate and I thank all noble Lords who have contributed. I will, if I may, begin by picking up the remarks of the noble Lord, Lord Warner. He put his finger on a number of very important points. The system of locally determined eligibility for care and support has been confusing to people for too long. It has been seen as an unfair system under which different levels of needs are met on the basis of where somebody lives. The changes we are bringing forward will mean that people’s entitlements to care and support will be much clearer and fairer and will reduce variation in access between local authorities.

That is our starting point and, once this legislation comes into effect, local authorities will not be able to reduce eligibility below the level set out in regulations. They will be able to meet other needs which do not meet the national eligibility criteria through the power in Clause 19, but they will be required to follow a consistent approach to determining eligible needs. That is a big step forward. We must not view these national criteria in isolation. The Bill does a great deal for people with lower levels of need, including through provisions on prevention, information and advice. One of the key aims in relation to assessment is to ensure that this is effective in identifying needs and support options for all people, in particular to help those who do not have eligible needs and to prevent deterioration.

Clause 13 provides for regulations which will set out the eligibility criteria according to which local authorities must meet an adult’s needs for care and support or a carer’s needs for support. Amendment 88Q seeks to add this detail to the Bill. I understand why the noble Baroness would like to see the eligibility criteria set out in this way. Some noble Lords have questioned the number of important provisions being introduced through secondary legislation. However, in this case I believe that it is necessary. It is important that we get the eligibility criteria right, otherwise there is a danger that we will put in place a system that is more confusing than the one that we are replacing.

There is advantage in having the flexibility of setting the criteria in regulations; once again the noble Lord, Lord Warner, gave a helpful pointer to this in his remarks. We are not proposing to amend the national eligibility criteria on a regular basis. However, we need the ability to amend the regulations if it is shown that the criteria need to change at some point in the future. Of course, we would consult fully before making any such change.

To help inform debate on this area, and as noble Lords have mentioned, on 28 June we published draft regulations for discussion which set out the proposed national eligibility criteria. I emphasise that these are intended to set a national minimum equivalent to the level operated by the vast majority of local authorities in the current system. As part of the spending round announced recently we have committed to provide funding that will maintain the same level of services when authorities move to the new system in April 2015. This is the beginning of engagement with stakeholders before we formally consult on draft regulations next spring.

Amendment 88T is concerned with parliamentary scrutiny of the eligibility regulations. The power to set the eligibility criteria in regulations is one of the most important in the Bill and is central to the new care and support system. For this reason the Bill requires the regulations to be made under the affirmative procedure. That will ensure that Parliament will consider the regulations before they are introduced and that it will also consider any future changes. As a matter of course the regulations will also be considered by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments. Therefore we do not believe that the regulations need further scrutiny by a Joint Committee of both Houses.

Amendments 88R and 88S in the name of the noble Lord, Lord Hunt, refer to matters that the Secretary of State should have regard to when making the regulations. Amendment 88R clarifies that the regulations may describe a person’s care and support needs by reference to the effect of needs arising from a physical or mental condition. The well-being principle at Clause 1(2)(a) includes physical and mental health, and this is reflected in the draft regulations. Regulation 2, which sets out the eligibility criteria, explains that needs are eligible needs if they have a significant impact on a person’s well-being and are as a result of a physical or mental impairment or illness. Amendment 88S proposes that a person should be eligible for care and support if they are in receipt of health services. As we debated earlier, a person can expect to receive an integrated service, but the determination of eligibility for care and support must be based on care needs only, rather than what health services a person is receiving.

A number of noble Lords suggested that the eligibility criteria should be set at moderate. As I have already said, this threshold is about establishing a minimum standard, not about taking away councils’ discretion to go further. Local authorities will remain able to meet lower needs locally if they choose to do so. Once again I was grateful to the noble Lord, Lord Warner, for his realistic assessment, and to the noble Lord, Lord Lipsey, for his comments. The eligibility criteria are intended to be equivalent to the level operated by the vast majority of local authorities in the current system. Independent research suggests that it would cost an additional £1.2 billion to set the threshold at moderate for younger disabled people and those with mental health needs, and a further £1.5 billion for older people. The combined total is £2.7 billion, which is a large amount to find in the current financial climate.

The pooled funding that we are proposing is important to factor in here. The noble Baroness, Lady Grey-Thompson, suggested that setting the criteria at moderate would save money. It is important to understand what the pooled funding is designed to do. Once again, the eligibility criteria should be seen as part of the overall system that we are putting in place. The pooled funding that we have announced will support better integration between local authorities in the NHS to improve outcomes for the local population. Part of this funding will be used to support local authorities and the NHS if they need to intervene earlier to prevent people’s health or care needs worsening. That will include many of the people with low or moderate needs.

The noble Lord, Lord Low, suggested that universal services do not have the capacity or resources to meet the aspirations that the Government have set out. As we have debated, the Bill sets out new duties on local authorities to provide universal services such as preventive services. These will also be supported by statutory guidance to make clear the expectations that we are placing on local authorities. Moreover, as I have mentioned, the pooled funding is relevant here. Among other things, that will enable preventive and integrated services, which also benefit the NHS.

The noble Baroness, Lady Grey-Thompson, said that it was not fair that the cap applies only to eligible needs. We will debate the Government’s proposals for the capped cost system in due course. However, access to the cap needs to be consistent in order for the system to be fair. Using national eligibility criteria will ensure that the cap applies on an equivalent basis in every area. The noble Lord, Lord Lipsey, commented that the eligibility criteria will not solve the huge variation within local authority areas due to variable assessments. First, the eligibility assessments will set a minimum threshold, which is important. Some differentiation in local implementation will remain, but as referred to previously, we will require that local authorities appropriately train assessors to ensure that assessments are carried out properly, and we will publish guidance that will help to reduce variation.

My noble friend Lady Jolly asked whether we can ensure that the regulations become more asset-based and that that work involves experts. I can reassure her that the Bill already allows for the individual’s strengths to be taken into account in the assessment. In relation to the draft eligibility regulations I can assure her that we will engage widely with stakeholders to make sure that they deliver our policy.

[Baroness Browning]

As far as the eligibility criteria are concerned there is another indicator, which I have not heard mentioned in this debate, and that is the number of people who challenge their local authority through the courts. Currently—from my own experience of case work, particularly with those on the autistic spectrum and with learning disabilities—many local authorities, when challenged legally on this, will settle before it goes to court. It is difficult to quantify what that number is, and I do not know whether what I am asking my noble friend is practical. However, in monitoring whether the eligibility threshold is correct, particularly for those with low to medium needs, would the Government be prepared to use the number of applications for legal challenge and, if possible, of those who settle out of court before it goes to court? That is a very clear indication of where local authorities refuse because the current eligibility criteria have not been properly constructed. When challenged, they usually pay up pretty quickly.

--- Later in debate ---

[Baroness Browning]

In the case that the noble Lord has just mentioned, would there be any question of the lady concerned being assessed as not having capacity?