Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Wednesday 9th October 2013 Lords Chamber

[Lord Warner (Lab)]

My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.

I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.

[Lord Mackay of Clashfern (Con)]

I warmly support that. I am happy with the parliamentary counsel’s draft, which is what the Government are going to move, and we have to understand that some lawyers are better than others at making drafts.

So far as the amendment of the noble Baroness, Lady Barker, is concerned, I hope that the Government will pay considerable attention to what has been said about it.

[Baroness Tyler of Enfield (LD)]

My Lords, I rise briefly to speak to government Amendment 2 on dignity and respect. I know that it was implicit in the well-being clause in the earlier versions of the Bill that we looked at, but I am very pleased that the need to ensure that all people are treated with dignity and respect has been brought out so explicitly. These are words that the man and woman in the street really understand; they get to the heart of some of the concerns about the type of social care that has sometimes been provided, which has fallen well below those standards, and caused some of the scare stories that we have heard so much about recently.

The noble Lord, Lord Bichard, and I raised this issue in Committee, but as he is unavoidably unable to be in his place today, I thank the noble Earl, Lord Howe, on behalf of both of us, for listening and for bringing this amendment forward.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, I particularly support the amendment of the noble Baroness, Lady Pitkeathley. It is obviously important that the situation regarding children who are carers is properly focused. As your Lordships know, I am a vice-president of the Carers Trust and have an interest from that point of view. I have difficulty understanding exactly the scope of the clauses here, because the clause dealing with well-being talks about the “individual”. I assume that this includes the disabled child as well as the carer, and that the same is true even when the child is not disabled. If one has a carer, the child will be an “individual”, I assume. The adult definition comes in the next clause, Clause 2. Clause 1 refers to an “individual”, so I assume that children are included in that clause and therefore that the local authority, in performing its functions, has an obligation to have regard to the well-being of children.

[Earl Howe]

My Lords, as my noble friend Lady Tyler said, Amendments 7, 10 and 34 in this group about young carers provide an opportunity within our debates to welcome the Written Ministerial Statement yesterday from my right honourable friend the Secretary of State for Education about the Government’s proposed amendments to the Children and Families Bill on the assessment of young carers. They give effect to the Government’s stated intentions to consolidate and simplify legislation relating to young carers’ assessments, making rights and duties clearer to both young people and practitioners. In the Government’s view, these provisions sit most appropriately within children’s legislation.

The right to an assessment of needs would be extended to all young carers under the age of 18, regardless of who they care for, what type of care they provide or how often they provide it. Local authorities would have to carry out an assessment of a young carer’s needs for support on request or on the appearance of need. The amendments also enable local authorities to align the assessment of a young carer with an assessment of an adult that they care for.

I believe that the government amendment will achieve the desired effect of my noble friend Lady Tyler’s amendment to Clause 10 by putting a young carer’s entitlement to an assessment on a similar footing to the provisions in the Care Bill for an adult carer’s assessment. I have also tabled an amendment to Clause 12 of the Care Bill, which we will debate shortly, that makes it clear that a local authority may combine an adult assessment with a child’s assessment, including a young carer’s assessment, provided all parties agree. The government amendment to the Children and Families Bill will also achieve the desired effect of Amendment 10 by requiring local authorities to take steps to identify the extent to which there are young carers within their area who have needs for support.

Amendment 7 would extend to young carers provisions in Clause 2 that require a local authority to provide services, facilities and resources to prevent or reduce needs for support among adult carers. Prevention is an important matter to highlight, but the Bill already makes sufficient provision on this issue, as it requires local authorities to have regard to overall family circumstances when fulfilling their duties under the Bill.

Clause 1 requires local authorities to promote an individual’s well-being in exercising all their Part 1 functions, including those in Clause 2. Domestic, family and personal relationships are specifically included, and such relationships could encompass parenting responsibilities, the adequate functioning of the family and the household and the impact of providing care and support on other members of the family. We do not think that it would be appropriate to refer to preventing the needs of young carers specifically. One means of preventing their needs will be, of course, to meet or delay the needs of those whom they care for, and this is clearly covered by the existing provision. There may be other means, which could include the provision of services directly to the young carer. However, such routes would not be appropriate for adult care and support to take, and we do not believe that a duty should sit within adult legislation.

We will make it clear in statutory guidance that all these provisions should take into consideration family relationships and circumstances, and I am happy to make a commitment that such guidance will refer specifically to the importance of preventing children undertaking inappropriate or excessive caring responsibilities. In addition, in drafting regulations about an adult’s assessment under the regulation-making powers in Clause 12, we will make it clear that a whole-family approach should be adopted, where appropriate. An adult’s assessment should then take into account the functioning of the family and the household, and the impact of providing care and support on other members of the family, including children.

I turn to the position of those with parental responsibilities for disabled children, which is an important issue. However, we do not consider it appropriate to include provisions within the Care Bill about the assessment of parent carers of disabled children, as proposed in Amendments 6, 8, 9 and 35 from the noble Baroness, Lady Pitkeathley. In the Government’s view, the main provision for assessing and supporting those caring for disabled children should be in children’s legislation, so that the family’s need for support can be looked at holistically. In most cases, the best way of supporting a parent carer of a disabled child and other members of the family is by the provision of support directly to the child concerned. It would not be appropriate for adult care and support to be undertaking an assessment of those needs, when adult support is not best placed to meet them. The view of the Minister for Children and Families is that there is already sufficient provision under Section 17 of the Children Act 1989 to provide for the assessment and support of children in need, including disabled children and their parents.

I turn to Amendments 46 and 58 from the noble Baroness, Lady Pitkeathley, about charging carers for support. We remain of the view that local authorities should retain the power that they have now to charge carers for support provided directly to them. Many local authorities do not impose charges on carers because they, of course, recognise the valuable contribution that carers make to society. However, some may choose to impose a nominal fee to cover a proportion of the costs of providing a particular form of support for carers—for example, a relaxation class or gym membership—and we do not think it appropriate to remove that discretion and flexibility. Indeed, removing the ability to charge even a small amount could result in the withdrawal of such services altogether.

The noble Baroness argued that the cost of caring should not count towards the care account within the cap arrangement. Local authority assessments take the support provided by carers into account in determining the care package. We are clear that the care package should count towards the cap, because that should ensure that all people receive the support that they need. We have heard from the care and support sector that the cap will provide carers, as well as care users, with the financial support to help them decide on the right care for them to help provide, and to reassure them that their families will not face catastrophic care costs.

I have some concern about the noble Baroness’s Amendment 48, which proposes that the provision of intimate services to a person needing care cannot be provided to meet a carer’s need for support. This would create a legal barrier that could significantly hinder the provision of a much-needed type of support to carers. Let me provide one example. It may be appropriate to meet a carer’s needs by providing a service direct to the person cared for. If some type of replacement care is provided to allow the carer to take a break from caring, it may look like home care delivered to the adult needing care, even though it is provided to meet a carer’s needs. The amendment would seriously limit the ability of local authorities to make such arrangements because it would provide that the care workers could carry out some activities, but not others of an “intimate nature”. That could leave a situation where the care worker was able to sit with an adult needing care but not take them to the toilet. That is likely to lead only to confusion, I suggest. We accept that clarity is needed about when a type of support should be considered to be provided directly to the carer, and when to the adult needing care. We will produce guidance on this matter, but we cannot support an amendment that sets such an inflexible rule in primary legislation.

I also reassure noble Lords that the Bill is already very clear that carers should not be charged for any form of support that is provided directly to the person needing care. Clause 14(3) makes it absolutely clear that local authorities cannot charge carers for services provided to the person being cared for. This would include services of an intimate nature.

I hope that I have reassured noble Lords that, together, the Care Bill and the Children and Families Bill provide a clear legislative framework to support local authorities to consider the needs of young carers and protect them from excessive or inappropriate caring roles. On the important issue of assessing those with parental responsibility for disabled children, we remain of the view that they are best supported through the provisions of the Children Act 1989. However, I have noted the concerns raised about those who care for disabled children having the same entitlement to a carer’s assessment as young carers and adults caring for adults will have through the respective provisions of the Children and Families Bill and the Care Bill. Department of Health officials will explore further, with officials at the Department for Education, the issues raised by the noble Baroness. I know that my noble friend Lord Nash is always willing to listen to the concerns of noble Lords on these and other matters.

I hope that I have also reassured noble Lords that the Bill is already very clear that carers should not be charged for support provided directly to the person needing care. However, I am conscious that I have not directly answered an issue raised by the noble Baroness, Lady Wheeler, about the need for identification of carers to ensure that there is no unmet need. It is important to support people to identify themselves as carers so that they can access information, advice and support in their caring role. My department is funding the Royal College of General Practitioners to raise awareness among health professionals. Health and well-being boards should also be identifying the numbers of carers in their local population through joint strategic needs assessments.

My noble and learned friend Lord Mackay asked whether children were already covered in the scope of Clause 1. They are covered in terms of the functions set out in Part 1 of the Care Bill. The local authority must have regard to the well-being principle in discharging any function under Part 1 that relates to children. They would be “individuals” in the case of the exercise of that function—for example, in the provisions relating to the assessment of children in anticipation of their transition to adulthood. I hope that that is helpful.

I have taken a little while to reply to these amendments, but I hope that I have been sufficiently illuminating to encourage noble Lords not to press them.