Care Bill [HL]

Baroness Wheeler Excerpts

Tuesday 16th July 2013 Lords Chamber

[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.