Care Bill [HL]

Baroness Browning Excerpts

Tuesday 9th July 2013 Lords Chamber

As we know and Amendment 83A makes clear, when very small amounts are involved, people can often be better helped by going to a Citizens Advice or Age UK locally and getting the advice that they need. However, I am very worried about the local authority not always being independent and perhaps having an interest in putting people into a care home when it might be possible for them to stay in their home. I want to make sure that people are directed to the type of advice that they really ought to get in these situations where they are particularly vulnerable.

[Baroness Browning]

My Lords, I will speak to two amendments standing in my name in this grouping. The first is Amendment 86H, to which the noble Baroness, Lady Pitkeathley, has put her name. This deals specifically with proportionality and early identification in providing information and advice.

In its report on adult social care, the Law Commission argued that it was essential that the issue of proportionality be addressed in the regulations setting out the assessment process. The Law Commission stated that where a person has complex or multiple needs, a proportionate assessment would require an in-depth and comprehensive exploration of those needs—something which we have already heard about this afternoon. Defining complex needs can be difficult, with the full extent of needs not always immediately identifiable. For instance, older people in particular do not always present their needs accurately on first or subsequent contacts.

Deploying qualified social work staff across all areas of service provision, including the information and advice stage, would help—as this amendment seeks to do—to ensure that the potential for complexity is recognised early on and the individual receives signposting to non-statutory services and/or initial statutory sector support proportionate to their needs.

Looking round the Chamber, I see several people who I meet on a weekly basis as we are currently carrying out post-legislative scrutiny of the Mental Capacity Act. The assessments of capacity across a range of people—not just the elderly, who are very important, but even much younger people—are extremely important. It is extremely important that there are qualified social workers who are involved in this exercise.

To have the social worker available at the pre-assessment stage, as part of an information and advice team, would allow unqualified staff the benefit of accessible professional support. I am aware that the College of Social Work supports this measure and the duty on local authorities to ensure that in providing advice and information, qualified staff are deployed in sufficient numbers to ensure that all aspects of need are taken into account. This would ensure that people are put in touch with the most appropriate services for them from the earliest opportunity.

I am aware of the letter that my noble friend sent to the noble Lord, Lord Hunt, dated 27 June, in which he covered in the first paragraph the query by the noble Lord, Lord Warner, about ensuring that there are sufficient skilled workers. When he responds, would he cover this question of sufficient qualified social workers? His reply to the noble Lord dealt mainly with staff employed in the health service as opposed to social services. We have heard a lot in these debates about the need for multidisciplinary teams in decision-making, so I would be grateful if he would address the question of the number of skilled social workers who might be deployed, particularly at the initial information and advice stage when early assessments are carried out.

My second amendment in this group is also in the name of my noble friend Lady Barker. It addresses the question of independent advocacy and proposes a new clause. Of course, I am aware of the role of, and the statutory requirement for, IMCAs in the Mental Capacity Act. I will not pre-empt the findings of the post-legislative scrutiny committee on the Act, but I will explain why I felt it necessary to propose a new clause in the area of independent advocacy. I refer the Committee to my interest in the register, and in particular my ongoing interest in autism, mental illness and people with learning disabilities.

The right to advocacy is essential to enable the people who find it hardest to communicate to exercise their rights, represent their interests and obtain the services they need. Clearly, if somebody is deemed not to have capacity, there is already statutory provision for an IMCA to assist them with decision-making. However, it is also vital that those who experience substantial difficulty in understanding, retaining, using or weighing information relevant to an assessment, and then expressing and communicating their views, should also have access to an advocate. I referred just now to autism. People on the autistic spectrum might be deemed to have capacity but their disability might mean that they would have difficulty on their own, without the help of an advocate to explain and help them work through the decision-making process. That group is not adequately covered by the provisions of the Mental Capacity Act.

Advocacy is separate from information and advice. It provides support to some of those who are most vulnerable and most in need of services, including those with autism. There was a recent commission on autism and ageing chaired by the noble Baroness, Lady Greengross. Both she and I have had to forfeit the presentation of that report to be here in the Chamber. The report found that the families of people with autism frequently act as their advocates. Ninety-six per cent of parents with a son or daughter with autism recently told a National Autistic Society survey that they were concerned about what would happen when they passed away or were unable to support their children. This fear is common to parents of people with many different lifelong disabilities, not just autism. Families frequently say how worried they are about what will happen when they can no longer perform an advocacy role, and that independent advocates must therefore be available.

If the Bill is to help ensure people access the support they need—including people who are currently missing out—advocacy will play a vital role. I ask my noble friend to consider this large group of people who are not covered by existing statutory provision, for whom the new clause would provide a safety net to enable their services and package of care to go forward, thereby ensuring that they have equal opportunity to access the services that we are discussing in relation to the Bill.

[Lord Lipsey]

My Lords, perhaps I may remind the Committee that I am the honorary president of the Society of Later Life Advisers. SOLLA accredits the gold-standard financial advisers who will be so important to the working of the Bill.

My six amendments in this group are Amendments 83B, 83C, 86B, 86D, 86F and 86G. Before I turn to them, I will say a few words more generally about advice and the Bill. If the Bill is to do the job we all hope and expect it will do, information and advice should be not just an add-on but a central requirement, without which the Government’s plans, however well meaning, will collapse, and old people and their families will end up frustrated and angry. This is for several reasons. First, there is a widespread reluctance among old people and their families to face up to the problems of care in old age: how to get it, whether to be cared for at home or in a home, and how to pay for it. It is marvellous that people are living ever longer, but that does not mean that the very last years of their life are easy. Not surprisingly, people do not like to contemplate the years before their demise until they feel they absolutely have to.

Secondly, there is an extraordinary ignorance among older people and their families about social care. More than one person in two still thinks that the state will pay in full for the care that they will require. Thirdly—it is early days, I know—there is even less understanding of Andrew Dilnot’s solution. For example, many people—I have even come across a few in this House—think that once you have spent £72,000 on care, you will be looked after for free. This is not so. You will have to fund hotel costs of £12,000 a year. More importantly, you will have to fund the excess care costs over what a local authority would pay to look after you. That could cost a further £25,000 a year. If my arithmetic still works, that means many people will have to pay £37,000 a year after the cap has been reached, so they should plan for that.

Different people in different situations need different advice. Somebody whose care costs are paid in full needs different advice from somebody on the means test. Whatever their circumstances, very few people are capable of navigating these waters without a trusted pilot or pilots. Local authorities are experienced in conducting assessments of people and in helping them. The noble Baroness, Lady Greengross, made this point well. They have interests that may be different from, or even conflict with, those of the people they are advising. For example, under the existing deferred payment scheme you do not have to sell your house but can take out an interest-free loan. It is evident from the figures that many local authorities try like mad to persuade people not to go down that road because it costs the authority a lot of money if they do. Even if it would be beneficial to the individual, they steer them away. It is human nature. That is why it is vital that when advice is needed on this kind of subject, it should be independent of the local authority.

[Baroness Browning]

I agree with what the noble Lord said. Something that is rarely mentioned but is often a solution for many elderly people when they go into care is not that their house is sold but that it is rented out. That can be a very viable, practical and suitable solution. Local authorities never mention that, and nor do they have the means to provide such a service.

[Lord Lipsey]

I quite agree with the noble Baroness. That is exactly why independent financial advisers can be so helpful. Often, the rent on the house will pay for the whole of care, and still leave the home to be handed on to the children if that is what the old person wishes.

All this underlines the fact that it is crucial that the advice comes from people who are qualified to give it—not necessarily local authority social workers, CAB advisers, regulated independent financial advisers and so on. Nor is it any good the local authority just handing out a list of people and saying, “You can go and see them and ask their advice”. For one thing, frequently there are issues of mental capacity, and the stress on an old person at this time is likely to be severe, particularly if they are thinking of going into a care home. For another, there is the general reluctance problem, and people are also often frightened by the cost of the independent financial advice that they may be seeking.

Some local authorities in these circumstances are performing heroically. I recently opened a centre in West Sussex which combines the resources of voluntary organisations, the local authority and independent financial advisers to offer a comprehensive service. It has recently relaunched its service and a local radio station, Spirit FM 96.6, has featured it in its drive time programme every weekday, which is tremendous. Incidentally, in doing this, the local authority is not acting wholly selflessly. Many people in West Sussex who have moved out of London to retire have quite a bit of resources but do not have infinite resources. If they are not well advised on how to use their resources they will run out of money and fall back on the council and its means-tested benefits to pay for their care. However, if they are properly supported, learn to use their money well and are advised of the products that are available to help them, they will not fall back on the local authority. So this, again, is a case where appropriate advice, properly structured, can save public money, not cost it.

--- Later in debate ---

[Lord Beecham]

My Lords, this Bill has the potential to do for social care what Beveridge did for the welfare state and Bevan did for the health service. It is potentially the most significant development in, for example, residential care since the workhouses were replaced by a more civilised form of residential accommodation.

The noble Baroness, Lady Barker, anticipated precisely the point I was going to make, which is that this is not just a matter for local authorities. My principal reservation about these amendments, if I have one, is that it looks as though the entire burden of information and advice is to be placed on local authorities whereas of course, as the noble Baroness rightly said, there are other potential partners who clearly need to be involved. I scribbled on the grid that is helpfully provided by those who support the Front Bench on this side the words “in collaboration with”, and then I thought of a number of potential partners. Of course the health service is one of them, but in addition I would suggest that the Court of Protection needs to be involved. It has a supervisory and supportive responsibility for a particular group of people and, with the development of lasting powers of attorney and so on, their deputies as well. I have to say—I have said it before and I will say it again—that I am not convinced that the Court of Protection is doing a terrific job in this area, but that is another reason why it should be looked at as a potential partner.

There may be other partners. For example, in the case of younger people perhaps with a learning or other disability, there are roles for those involved in further education, the Department for Work and Pensions and the Department for Business, Innovation and Skills. Those bodies might look at their role in terms of what is available by way of education, training and so on. It seems to me that a range of organisations should be involved, certainly as a whole, but more particularly in the provision of information and advice.

On these Benches we support most of the amendments that have been moved and spoken to this afternoon, with the qualification that, where relevant and necessary, a reference to collaboration should be included. For example, in Amendment 82B, the first amendment moved by the noble Baroness, Lady Greengross, one would want to see “in collaboration with” appropriate partners.

We support the amendments, notably moved by my noble friend Lord Lipsey, around the provision of independent financial advice. That seems very important. I have a slight reservation about Amendment 86D, which is about payment of,

“the reasonable costs of a first consultation with an independent financial adviser”,

to be paid for “by the local authority”. If I am ever in need of this kind of advice, I would be able to afford that relatively easily. Given the pressure on budgets, is a universal application of that principle necessary or desirable? That, however, is a detail, that might be looked at later. Given the scale of the potential involvement and the potential conflict of interest referred to by several noble Lords, the independence and proper status of such financial advice are important considerations.

With regard to the amendment in the name of the noble Lord, Lord Sharkey, I will perhaps anticipate the Minister by quibbling over the word “demonstrably”. Frankly, I am not sure that that takes us very far. As the noble Lord admitted, what is demonstrable to some is not necessarily demonstrable to others. I do not think that that part of his amendment is particularly cogent, although I agree with the rest of it.

I have more serious doubt about the amendment of the noble Baroness, Lady Browning. Amendment 86H requires that the information and advice be provided by “social work-qualified staff”. It could be, but I am not sure that it should be a requirement that it should be, given the pressure on the service in dealing with casework as it is. I do not think that the skills of social workers are always consistent with the role of giving information and advice in the sense that is intended by the amendment.

[Baroness Browning]

It is important that qualified social workers are present for the initial assessment. One of the things that might come out of our scrutiny of the existing Mental Capacity Act is the fact that the assessment of capacity requires professionals. Social workers clearly have a part to play in that. Whether the person has capacity, partial capacity or no capacity at all, at that point some advice is given and direction is needed. It seems to me that that is not the role of an amateur.