Care and Support Regulations

Earl Howe Excerpts

Thursday 12th February 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I thank both noble Baronesses for their thoughtful questions and comments. I will seek to address as many as possible today and respond to others in writing as need be.

These 17 sets of regulations give full expression to many of the key aspects of the reformed care and support system envisaged by the Care Act. First, there are two sets of regulations that set out important details of people’s rights as they progress through the pathway of care and support envisaged by the Care Act. The assessment regulations specify further matters about carrying out an assessment under Section 9 of the Care Act, while the direct payment regulations largely replicate the existing regulatory framework around this, but with some changes to make the framework more flexible and less bureaucratic.

The noble Baroness, Lady Pitkeathley, asked about charging for carers’ assessments. The joint implementation programme has commissioned the ADASS carers policy network to produce a document on the economic case for investment in carers which will expand on the case set out in the Care Act statutory guidance that charging carers for services needs to be considered carefully. It can often be a false economy to charge carers beyond, of course, the moral case for recognising and supporting the extraordinary contribution that carers make to our society. We are putting in place a robust set of measures to monitor the implementation of the Care Act and I will of course keep this matter under review, as will my department.

There are five sets of regulations that help to ensure that people pay a fair amount for their care and support and have adequate choice in the way their care and support needs are met. The charging and assessment of resources regulations set out how a local authority must conduct a financial assessment when seeking to calculate what a person can afford to contribute towards the cost of their care and support. The choice of accommodation regulations set out conditions regarding the choice of placement in residential care. The deferred payment regulations set out the circumstances in which local authorities may or must enter into deferred payment agreements. They also make provision as to the operation and content of the agreement. As the noble Baroness, Lady Wheeler, mentioned, these regulations were the subject of a specific debate in your Lordships’ House in December, following two Motions tabled by the noble Lord, Lord Lipsey. In addition, there are two smaller sets of regulations that specify whether certain types of services can be charged for and on certain costs to be excluded from personal budgets.

There are a further four sets of regulations that relate to general local authority responsibilities, as opposed to duties regarding individual people set out elsewhere, such as in the assessment regulations. The advocacy regulations set out the considerations for determining whether a person would experience substantial difficulty in doing certain things connected with being involved in the care and support process, which may trigger a local authority’s duty to provide an independent advocate. The instrument also establishes the requirements of an advocate and the manner in which they must carry out their functions.

The market oversight information regulations make provision for the Care Quality Commission to obtain information to help it assess the financial sustainability of providers. The sight-impaired and severely sight-impaired adults regulations specify the persons who are to be treated as such for the purposes of local authorities’ duty to maintain registers of these groups.

There are a further two statutory instruments that set out important details of local authorities’ interaction with NHS bodies. The provision of health services regulations essentially set the boundary between care and support functions on the one hand and healthcare on the other, while the discharge of hospital patients regulations cover the details of the regulatory framework for the discharge of hospital patients with care and support needs.

I come last to the five statutory instruments that relate to ensuring there are clear procedures and responsibilities when people move between areas. The first two primarily concern ordinary residence, which is a mechanism for allocating responsibility between local authorities for meeting needs. The ordinary residence specified accommodation regulations make provision about the types of accommodation to which provisions in the Act deeming ordinary residence apply, while the ordinary residence disputes regulations set out the procedures that must be followed if a dispute concerning ordinary residence, continuity of care or provider failure arises.

There are a further two statutory instruments that make provision about similar issues, but arising from a placement from one UK country into another, rather than within England. The first sets out how disputes will be handled, while the second makes provision around business failure duties for Scotland, broadly to ensure reciprocity of duties across the UK.

Lastly, the continuity of care regulations set out the matters that a local authority must consider in fulfilling its duty to meet the care and support needs when a person moves home to its area, where the authority of previous residence was meeting such needs and a new assessment has not been conducted.

The noble Baroness, Lady Wheeler, asked me about the reference in the ordinary residence regulations to the phrase “needs can only be met”. The guidance makes clear that needs should be judged to be able to be met through a specified type of accommodation only where the local authority has made this decision following an assessment and the care and support planning process involving the person.

I wanted to make noble Lords aware that we propose to introduce a short set of amending regulations to make several small changes to some of the regulations I have described; and, in answer to the noble Baroness, Lady Wheeler, that includes the uprating of certain allowances in the charging regulations in line with existing practice on annual uprating of figures and some minor corrections of cross-references and terminology in two of the regulations. We are also making a change to the deferred payment regulations to make clearer that the provisions concerning disposable income do not apply if the local authority ceases to make deferrals. We will make a change to the list of local authorities that may make a direct payment for accommodation in a care home to reflect developments in the pilot scheme relating to this.

We will make a change to the regulations on specified accommodation so that the ordinary residence deeming principles apply only from the date a person living in the accommodation receives care and support under the Act. The purpose of the amendment is to ensure that the deeming rule does not apply when a person is living in a specified type of accommodation, such as a care home, before they begin to receive care and support from the local authority. In such a situation the normal ordinary residence rules should apply. That is the position under the current legislation and it has always been the intention that the Care Act should not change this.

The noble Baroness, Lady Wheeler, asked me whether guidance will be clear that local authorities should backdate the care account if an assessment is delayed. We will ensure that guidance provides clarity on this point. If I can elaborate on that in a letter I will certainly be happy to do so.

I hope I have been able to address at least some of the main points raised today, but as I said at the beginning, I shall write after this debate to noble Lords with any further points that I have not been able to cover.