Care Bill [HL]

Baroness Browning Excerpts

Tuesday 16th July 2013 Lords Chamber

[Baroness Browning]

My Lords, I will speak to two amendments in this group: first, Amendment 92ZZK in my name and those of the noble Lord, Lord Touhig, and the noble Baroness, Lady Tyler of Enfield. This is very similar to an amendment that I tabled to an earlier part of the Bill, and it focuses in particular on transition:

“In preparing a care and support plan, the local authority must have regard to the young person’s education, health and care plan, where such a plan exists, and integrate the care and support plan with the existing education, health and care plan”.

I will not repeat what I said earlier, but this certainly applies to this clause because the integration is very important. This amendment is supported by the Care and Support Alliance, and particularly affects young people who are coming from adolescence into adulthood, where the seamlessness of their care package is very important. As I mentioned in moving the earlier amendment, this has, of course, a read-across into other legislation. I know that my noble friend gave me a reassurance last time, but it is important that the Bill requires that double-banking, if you like, to make sure that there is joined-up government here between not just two government departments but two plans that affect an individual’s future.

I also briefly raise the question of a probing amendment—Amendment 92ZZGA, in the name of the noble Baroness, Lady Emerton. In Clause 25(1)(e) the amendment seeks to change the words,

“includes the personal budget for the adult concerned”,

to “can include”. What has concerned the noble Baroness, Lady Emerton, here is that, although there may well be sanction for a personal budget for the adult concerned, the impression given by this particular wording is that it could possibly constrain the choice as to how that personal budget was spent. I appreciate that the care plan or the support plan would identify that sanction had been given for a personal budget. However, it is very important that it in no way presumes the choices in a prescriptive way that would take away from the individual concerned what is at the very heart of personal budgets—the right to choose services and items, which might well be something that they have a preference for and on which the local authority should not get too much into the detail, having sanctioned the personal budget in the first place. It would be helpful, when my noble friend responds, if he could give some reassurance on that matter.

[Lord Dubs]

My Lords, I shall speak to two amendments in this group, both of them amendments to Clause 25 —Amendments 92ZZH and 92ZZJ. I must say that I do struggle with all these initials; they make it hard to spot which amendment is which—but it may be that there is no better way of doing it.

Amendment 92ZZH is about people who have fluctuating needs for support because their condition is not constant. A fluctuating condition is a chronic condition, physical or mental, of which a characteristic feature is a significant variation in the overall pattern of ill health and/or disability. There are many millions of people in the UK with fluctuating conditions. Those could include MS—I am an officer of the All-Party Group for Multiple Sclerosis—rheumatoid arthritis, HIV, Crohn’s disease and colitis, epilepsy and Parkinson’s disease; there may also be others. Those conditions cover a large number of people.

The problem is that when people have fluctuating conditions it will be much harder to plan ahead on the basis of the present drafting of Clause 25. There is not the flexibility to enable account to be taken of the ups and downs associated with fluctuating conditions. If the plan could take account of fluctuating conditions, individuals could be assured that they would get the level of care they needed, consistent with the fluctuations in their condition. By allowing for that, we can also prevent costly hospital admissions. That in itself is an important aim both for the well-being of the person concerned and, in terms of cost, for the health service.

For example, a snapshot survey of individuals showed that 30% of respondents with rheumatoid arthritis had been admitted to emergency care as a result of a flare-up of the disease in the past year—of which, of course, no account is taken by the Bill. The benefit of my suggestion is that it would make it possible to plan ahead for variations in care and support, in advance of those variations being required.

Amendment 92ZZJ is about the period over which care will be made available before the need is reviewed. The current wording of Clause 27 gives local authorities the power to,

“keep under review generally care and support plans”.

“Generally” is an all-purpose word which can mean anything. Local authorities are not required to specify when they expect such reviews to take place. Anyone who is subject to something “generally” lives in uncertainty, and what I would like to achieve with my amendment is some element of certainty.

The key benefit of the care and support planning process would be to allow a discussion between the local authority and the person concerned about the best way their care needs could be met. Then there could be an agreement between the local authority and the adult or carer. It is important for such an adult to be confident that their care will remain consistent until their circumstances change. Under my amendment they would not be subject to an early review if there was no need for it, but when things happened, that could be reflected in their care plan. The amendment would give that adult the confidence that their care would continue as agreed until the specified date, or until the adult himself or herself chose to request a review in line with Clause 27(1)(b). That may seem a small change but it would be important to the individuals affected.

--- Later in debate ---

[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.

[Baroness Browning]

I think the concern of the noble Baroness, Lady Emerton, was not about the discretion over whether or not to give the budget, but about discretion over how that budget should be spent. I think that she was concerned that the personal budget, if it were put into the plan in a certain format, might start to prescribe how the budget was spent. That, I think, is what she was concerned about and why she suggested the change of wording.

[Earl Howe]

I am very grateful to my noble friend and I think I had better reflect further in the light of those comments.

I completely agree with the noble Lord, Lord Dubs, in relation to Amendments 92ZZH and 92ZZJ, that a modern, comprehensive care and support system should be able swiftly and effectively to respond to changing patterns of need. But the issue of fluctuating or emergency needs and anticipated review dates should be left to the local authority and the adult to discuss and agree when going through the care and support planning process. Again, we will consider these matters when producing statutory guidance with partners.

I turn to Amendment 92ZZK in the name of my noble friend Lady Browning. As I have indicated previously, the transition of children to adult care and links between this Bill and the Children and Families Bill merit further consideration and will be discussed at a later date. But I share my noble friend’s expectation. Where an adult has an education health and care plan, their care and support needs assessment and plan should be integrated with it. Both the guidance supporting the Care Bill and the SEN code of practice will set out how we expect this to work.

I turn to Amendments 92ZZLA and 92ZZQA in the name of the noble Baroness, Lady Greengross. The Bill is intentionally very clear that the personal budget and independent personal budget must be the cost to the local authority of meeting the adult’s needs, not an arbitrary or hypothetical figure. I can reassure the noble Baroness that the local authority may not set the personal budget to an amount which is less than it would cost the authority to meet the adult’s needs. The personal budget or independent personal budget must reflect the cost to the local authority of meeting the adult’s needs, not the cost to the individual of doing so himself or herself. Otherwise, this would create an unfair advantage for those with more means who are able to pay more for their care and would therefore reach the cap quicker.

I turn now to Amendments 92ZZMA and 92ZZQB, spoken to by the noble Baroness, Lady Wheeler. Enabling adults to request a review of either the care and support plan or the independent personal budget without a determination of reasonableness may leave the process open to abuse and create frivolous reviews costing the local authority time and money. For example, it would not be reasonable to request a review when a review has recently been conducted and needs have not changed. If an adult request is considered unreasonable, then the adult should be informed of the grounds for the local authority’s decision. We will cover this further in guidance.

On Amendment 92ZZR, we wholeheartedly agree with the noble Baroness, Lady Greengross, that if an adult lacks capacity the local authority must carry out the assessment if it believes that this would be in the adult’s best interests. We have addressed this in government Amendment 92ZZQC. This puts beyond doubt that the provisions of Clause 11 should apply to any refusal of a needs assessment by an adult with an independent personal budget. As a result, where an adult lacks capacity or is at risk of abuse or neglect, the local authority must carry out the assessment if it believes it to be in the adult’s best interests.

On Amendment 92ZZRA, I can reassure the noble Baroness that it is the Government’s intention to make regulations on choice of accommodation in residential care.

I turn to Amendments 92ZZRAA and 92ZZRAB, spoken to by the noble Baroness, Lady Wheeler. It is important that people should, as far as reasonably possible, be able to choose the accommodation they live in. People may wish to move into a care home in a new area—for example, to be close to relatives—and they should be able to do this even if this is in another local authority area. I can reassure the Committee that we intend to make regulations that enable people to exercise choice of accommodation both within and outside their current local authority. However, we do not believe that it would be appropriate to require local authorities to find and arrange care in another local authority area. While some might choose to do so, others might lack the local knowledge effectively to undertake this task. The requirement may also potentially have significant costs and could reduce the funds available to support those with the greatest needs.

I turn to Amendment 92ZZRB of the noble Baroness, Lady Greengross. Our approach in the Bill is simple. It allows any “person” nominated by the adult to receive a direct payment on their behalf, provided of course that the conditions specified in the Bill are met. In legal terms, a “person” means anyone with legal personality. Therefore, Clause 31 already allows the local authority to pay the direct payment to a person of a type specified by the adult. This includes user trusts set up as companies and organisations set up as companies.

On Amendment 92ZZS, I understand my noble friend Lord Sharkey’s concerns, and I hope I can reassure him that the local authority cannot fulfil its duties under the Bill unless it tells the adult what he or she needs to know in order to make a decision and reach agreement about whether or not to take a direct payment. Further, the Bill contains a regulation-making power at Clause 33(2)(f) to set out cases or circumstances in which the local authority must review the direct payment to ensure that it is being used and managed appropriately.

I turn now to Amendment 92ZZSA of the noble Baroness, Lady Campbell, to which the noble Baroness, Lady Wilkins, spoke. There may be only a limited set of circumstances in which a direct payment would not be appropriate, such as where needs can be met only through local authority-provided care and support. It is not our intention to for this to be used to limit access to direct payments. However, it is important that this provision remains in order to ensure that the adult’s needs are met via the most appropriate method.

Finally, I turn to Amendment 92ZZSB, spoken to by the noble Baroness, Lady Wheeler. It has always been our policy that, as long as used legally, there should be no restrictions on the type of services purchased with a direct payment, provided it accords with the care and support plan. Indeed, this reflects current guidance. Clause 25 requires the care plan to detail the needs to be met by the direct payment and, under Clause 31, a direct payment must be an appropriate way to meet those needs. There is no need to state in the Bill the type of providers from which people can purchase care and support.

The noble Baroness asked me what kind of client feedback there will be in the planning process. I am sure that she will agree that deciding the way that care needs are to be met is at the heart of a person-centred care and support planning process. These decisions should be agreed between the local authority and the person after considering the range of options and the person’s own wishes and goals.

We have made a number of changes to the draft Bill to address some of the concerns that we heard—that the balance of the care and support planning process was not adequately weighted towards the wishes of the adult. The process must also include involvement with the carer or any other nominated person, so that all people who can contribute have the opportunity to do so. It will in some circumstances not be possible to reach agreement between the local authority and the service user on the care and support plan, much as that is the aim. In those cases, the local authority will have to act to ensure that the person’s needs are met and that any risks to their safety are prevented. I hope that I have reassured the Committee that the care and support planning process is robust, and that the noble Baroness will feel able to withdraw her amendment.