Care Bill [HL]

Baroness Campbell of Surbiton Excerpts

Monday 14th October 2013 Lords Chamber

Moved by

[Baroness Campbell of Surbiton (CB)]

63ZA: Clause 37, page 31, line 39, at end insert “with a view to securing, so far as reasonably practicable, the outcomes referred to in section 9(4)(b) or 10(5)(d)”

[Baroness Campbell of Surbiton (CB)]

My Lords, I shall speak also to government Amendment 63A and my Amendment 63B. Before I begin, please forgive me for my speech going in stops and starts. This is the result of being an astronaut: we speak like this.

Noble Lords will know from my Private Member’s Bill, the Social Care Portability Bill, as well as my contributions to debates on this Bill, the depth of my concern about continuity of care when an older or disabled person moves to another local authority. It is a basic human right to move freely within one’s country, whether to pursue education or employment opportunities, to improve one’s family life or to seek personal support. The Government have said on several occasions that my Private Member’s Bill has informed the provisions of this Bill. It is true and I am grateful to have helped; I must say that I am also a bit flattered. We have collaborated well and I firmly believe that workable continuity of care is in sight.

The Minister for Social Care said to me in a letter last week:

“I believe that we are both of one mind and that neither of us wants a situation where there are no services in place on the day of the move, which could result in the person falling into crisis”.

I believe that too. Throughout the passage of this Bill, my two main areas of concern have been the need for a reference to outcomes in the continuity provisions and the risk of a gap in provision of care and support. We have made good progress on the second of these concerns since Committee. I am heartened by this.

Amendment 63ZA is about equivalence of outcomes. This goes to the heart of what continuity of care is about. The underlying purpose is to enable the person who moves to do the same kinds of things in their day-to-day life as they currently do. It may not always be possible and it may be through different means, but that is the aim. Certainly there are references linking plans to outcomes elsewhere in the Bill, and that is very welcome. However, signalling the intention in Clause 37 would send a clear and powerful message which could not be misconstrued by those providers who have an “I-know-what’s best-for-the-client” attitude. That is why I have tabled this amendment.

My second amendment addresses safe and seamless transition from one authority to another. The Bill says that if the second authority fails to deliver a new care package by the day of the move, it has to meet the needs that the first authority has been meeting until it has put the new arrangements in place. This is a temporary measure to ensure there is no gap in the provision of care.

I have been concerned that, just as the new care package may not be ready in time, as Clause 38(1) acknowledges, there may also be a delay in the temporary measures, which would mean a risky gap in care and support. My amendment proposes that, in those circumstances, the first authority would have to continue to provide care until the new arrangements were in place. I remain of the view that this would provide the strongest guarantee of continuity.

The Government, however, have proposed instead a new amendment, Amendment 63A, to improve co-ordination between the person moving and the two local authorities—in effect acknowledging the importance of a dialogue between all three parties. Certainly, both local authorities working together to prepare for the person’s move is a good template for success. The amendment will require the first authority to contact the second authority and maintain this relationship until the person moves. It will also require the first authority to keep the person involved so that they are fully aware of the arrangements in advance of their move. While this is not the solution I favour, I recognise that it will help to strengthen the process by bolstering the degree of collaboration and coordination between the authorities. That would go a long way towards reducing the risk of an interruption in care and support. It would also reassure and empower the person moving.

Throughout my campaigning life, “Nothing about us without us” has driven everything. This duty is a commendable endorsement of that approach. I believe that it would be enhanced by a further small change: that the first authority remain in contact with the second authority until the new care package is in place. This would ensure a smooth transition during any temporary arrangements, when the individual would be at their most vulnerable. Moreover, it would help the second authority, which has to meet the needs that the first authority has been meeting. I believe this fine-tuning of the Government’s helpful amendment would speed up the transition and support the way that Clause 38 is intended to operate.

After some negotiation last week, I believe I reached an understanding with the Minister and his officials that there will be a review of the continuity-of-care provisions after three years. These are new responsibilities for local authorities, and it is right that we should know whether they are working and take action if they are not. I look forward to the Minister’s confirmation of this in his response.

Moving house is one of the most stressful days of your life. Let us give disabled people the confidence to move and, hopefully, improve their circumstances. To do that, they require three things: first, knowing that support is there; secondly, the knowledge about the process to reassure them during a time of potential anxiety; and, thirdly, the certainty that they can live their lives in the same way with the same outcomes in their new environment.

I am pleased that the Government have travelled a fair way in tabling their amendment and have made significant progress in strengthening the transition process. I very much look forward to being involved in the next stage of the portability journey. I believe that we are about to have the portability celebrations but the cake has not yet been finished. If we get this right, I will feel free to chase my dream of moving to the Cornish coast when I eventually retire, which will not be yet. I beg to move.

[Baroness O'Loan (CB)]

My Lords, I support my noble friend’s amendments, particularly because of their implication for human rights. Care and support for many older people and for disabled people underpin and enable the enjoyment of those rights. They make possible a decent life of dignity; they make possible the ability to enjoy family life, for example. Ensuring that people can continue to pursue the life that they have and that they want, with no lessening of support when they move, is crucial. I therefore warmly support my noble friend’s amendment on equivalence of outcomes. When considering the process for people moving from one local authority to another, we must consider particularly the right to freedom of movement for older and disabled people. I believe that my noble friend’s amendment on the process for ensuring no gap in services during a move guarantees such freedom on an equal basis with others.

--- Later in debate ---

[Earl Howe]

My Lords, the Care Bill will for the first time introduce a duty on local authorities to ensure that where a person is receiving care and support they can move home to another local authority area, confident that they will have services in place on the day of the move. The noble Baroness, Lady Campbell, has been a leading advocate in this area for some time, and I acknowledge that her Private Member’s Bill was a template for the provisions in this Bill.

The noble Baroness’s Amendment 63ZA looks to ensure that when the second authority is carrying out the assessment of the adult moving and, where appropriate, their carer, it meets the outcomes that they want to achieve. I reassure her that the provisions on assessment for the person needing care and their carer apply to when a person is being assessed for continuity of care. Assessments must look at achieving the outcomes that the person or carer want to achieve, and Clause 37(8) confirms that. I also give an assurance that we will emphasise this in the statutory guidance.

Amendment 63B proposes that the first authority is responsible for arranging services on the day of the move. I say immediately that I sympathise with the sentiment of the noble Baroness’s argument; neither of us wants a gap during which a person is left without services. However, our view is that the second authority is best placed to maintain continuity of care. Our reasoning is that the person will now be living in the area of the second authority and, as for anyone who has eligible care and support needs, the second authority has a duty to meet those needs. The second authority will also know its local market and will be far better placed to put in place arrangements that support the person and maintain their level of independence from day one.

My concern is that it would be difficult for the first authority to make such arrangements, particularly where the person moves a long distance away. In practice, if the first authority is responsible for making arrangements it would have to contact the second authority to discuss the local market, which raises the question of why the second authority is not responsible for putting in place services in the first instance.

For the reasons that I have explained, I believe that the second authority must be the one responsible for delivering services on the day of the move. However, in light of the concerns raised by the noble Baroness during Committee, I have looked again at the provisions in the Bill. My Amendment 63A will require the first authority to contact the second authority and maintain this relationship so that it is aware of where the second authority is with putting services in place. It will also require the first authority to keep the person involved with discussions about their services and informed of progress for putting these in place. In other words, the amendment will put the person at the centre of the process. Both ADASS and the Local Government Association have indicated that this amendment will strengthen the process.

The noble Baroness questions whether placing the responsibility on the second authority is the right approach. I believe that it is. However, I fully understand her concerns, and I commit now to my department reviewing how the continuity of care arrangements are operating three years following implementation. This will provide us with more information, which will help us to understand if the process can be improved.

We are already considering how we might implement the provisions in the Bill. The first step will be to develop the regulations and statutory guidance. Given the noble Baroness’s knowledge in this area, I hope that we can draw on her experience and that she will be able to advise us on the preparation of the regulations and guidance. I sincerely hope that in strengthening these provisions and in the commitments that I have given, I have been able to convince her not to press her amendments.

The amendments relating to ordinary residence will provide clarity in respect of three areas: the overall principle of ordinary residence; the principle of ordinary residence so that it applies to after-care under the auspices of the Mental Health Act; and finally, the cross-border placement of individuals so that service users can move between the four countries of the UK where this is deemed to be in their best interests.

The noble Baroness, Lady Wheeler, asked whether reciprocal agreements are now in place or whether there would be more changes in this area. The answer is that the basic structure is in place in terms of reciprocal arrangements on cross-border care. However, some small details remain to be finalised through regulations and statutory guidance. We will work closely with the devolved Administrations on this.

First, government Amendments 66 and 67 address a potential lacuna in respect of people who may live in England—and therefore be ordinarily resident in an English local authority—but who are treated entirely within the NHS of a devolved Administration. The amendments ensure that they would remain ordinarily resident in England. Secondly, Amendments 64, 65, 126 to128 and 132 to 136 apply consistent ordinary residence rules in England and Wales in respect of after-care under the Mental Health Act 1983, and reflect our agreement with Wales that Welsh Ministers or the Secretary of State will determine cross-border disputes according to agreed arrangements.

Thirdly, Amendments 68 to 75 relate to cross-border placements. The cross-border provisions in the Bill reflect the outcome of solid collaborative work with Scottish, Welsh and Northern Irish colleagues to remove legal barriers restricting the placement of an individual from one territory of the United Kingdom to another. These amendments make technical adjustments to those provisions, following further discussion with the devolved Administrations about the detail of the arrangements.

The purpose of the amendments on cross-border placements is threefold. First, they ensure that the established principle that the placing authority retains responsibility for the care of those individuals placed cross-border is not interrupted should the individual receiving care require a period in hospital or other healthcare accommodation. Secondly, they enable regulations to provide for the cross-border placements provisions to apply to individuals who receive direct payments. Thirdly, they provide a regulation-making power that would allow our cross-border provisions to apply to individuals placed in a setting other than a traditional care home—for example, supported living arrangements.

The noble Baroness, Lady Wheeler, also asked about the impact of cross-border placement provisions on cost pressures. It is our understanding that the number of placements between countries of the UK is likely to be minimal, certainly in terms of the overall budget. However, we will work closely with colleagues in the devolved Administrations to further understand and bottom out the financial implications.

This group of amendments provides further necessary clarity to enable people to receive care and support in locations that suit their needs and I commend them to the House.

[Baroness Campbell of Surbiton]

My Lords, I thank noble Lords and the noble Baronesses, Lady Wheeler and Lady O’Loan, for speaking in support of my amendment. I warmly thank the Minister for his thoughtful reflections on my amendments and for tabling his amendments to meet some of my concerns—followed up at the last minute by a very good, timely review. Although I had hoped to see both my amendments on the statute book tonight, I am happy to acknowledge that the Government’s proposal is a ginormous step in the right direction to full portability. If it reduces the prospect of a cliff-edge scenario, it will achieve its purpose. I know that disabled people will feel encouraged to move instead of staying put.

Finally, I am grateful to the Minister and especially his officials for their positive approach to this issue, which I have raised in Committee and, quite frankly, over the past three years. We have burned a lot of midnight oil together and I have been very impressed by their efforts to find practical solutions. It bodes well for our continued collaboration on this landmark reform—and it is a landmark. Do not forget, we were tied to our local authorities since time began and this is the first time that disabled people will have the right to freedom of movement if they require support. I will be pleased to be involved in the regulations and of course I will be there. Frankly, you could not stop me. I beg leave to withdraw my Amendment 63ZA.

Amendment 63ZA withdrawn.