Care Bill [HL]

Baroness Meacher Excerpts

Monday 14th October 2013 Lords Chamber

However, research undertaken by the British Red Cross last month found that 60% of councillors think that services offered through the duty set out in Clause 2 are more likely to be charged for than to be free at the point of need. Therefore, can the Minister give an assurance that, as per the Community Care (Delayed Discharges etc.) Act (Qualifying Services) (England) Regulations 2003, intermediate care will continue to be required to be provided free of charge to any person to whom it is provided, for any period, up to and including six weeks, and without the need for a financial assessment?

[Baroness Meacher (CB)]

My Lords, Amendment 41 is a probing amendment, so I will speak briefly. Before I say anything else, I applaud the Minister for the raft of amendments in this group. I was particularly pleased to see the amendments in relation to young carers, although this is not relevant to Amendment 41. However, government Amendments 32, 33, 36 to 38 and—perhaps in particular—39 and 40 are, of course, relevant to this amendment. My Amendment 41 requires that regulations that make further provision for carrying out a needs or carers’ assessment will specify the circumstances in which a person’s social care needs are to be regarded as complex—the amendments do not refer to that term, so I would like a further clarification of that—and that having defined “complex needs”, social workers should always be involved in the assessment of cases meeting that criterion. That is the proposal of the College of Social Work. I should say that the involvement of a professional social worker does not mean the exclusion of all others. Clearly, if a professional social worker is dealing with a deafblind person, he would need to involve a specialist in that particular group of disabilities.

The college makes the first point that a good assessor sets out to create a complete picture of a person’s situation, strengths, capabilities and aspirations. Social workers are trained and recruited on the basis that they have the necessary cognitive and emotional depth to undertake those assessments. The second point is that people with complex needs generally have an awful lot of different services to which they need to relate if all their complex needs are to be met. The role of the care co-ordinator therefore becomes vital in those situations; care co-ordinators tend to be professional social workers.

As the noble Earl knows, the Law Commission argued that where a person has complex or multiple needs, a proportionate assessment would require an in-depth and comprehensive exploration of those needs. It is difficult to imagine that somebody other than a professional social worker would be equipped to do that. The types of situation which would be treated as complex cases include: where a person is subject to legislation or national guidance; where a person is or may be subject to abuse; where there is conflict between a person and a member of their family or their carer; and where there is a need to support the applications of individuals or their families for continuing healthcare funding.

Government Amendments 32, 33, 39 and 40 could pave the way for regulations which would meet the concerns addressed in Amendment 41. The noble Earl will know that our particular concern is for clients with learning difficulties, mental health problems and, in particular, dementia—people whose needs will be quite complex and difficult to assess. You need people who have been trained in that sort of work. Can the Minister say, with respect to these vulnerable groups, whether regulations will clarify their need for a professional social work assessment, albeit involving others as well? If regulations will not deal directly with the assessment of people with complex needs, and in particular with those who have all those mental health problems, can the Minister explain what provision he plans to make in order to ensure that the needs of these particularly vulnerable people will be properly assessed and addressed?

[Lord Dubs (Lab)]

My Lords, I welcome how far the Minister has moved from Committee to today. I hope that noble Lords will not think it churlish of me to say that perhaps he might be persuaded to move a little further. I will speak first to Amendment 60, which seeks to oblige a local authority to provide advice and information about what can be done in the event of an emergency, or if needs change. I am specifically talking about what I think we have referred to before as people with fluctuating conditions and needs. We know that there are many millions of people in the country who have fluctuating conditions such as multiple sclerosis, rheumatoid arthritis, HIV, Crohn’s, colitis, epilepsy and Parkinson’s disease, and there may be many others. Therefore, we are talking about a significant number of people who will be affected by the provisions of this Bill.

Not long ago I was talking to a woman in a wheelchair who had MS. She was very lively, bubbly and sparky, and she said to me: “You know, I’m not always like this. Some days I go down and I can’t even get out of bed, so don’t judge my condition by the way you see me today”. I took that very much to heart, and it is clearly the sort of situation that this amendment is about. As the Bill is currently drafted under Clause 25, it would not really make provision for such situations.

This amendment is actually operationally simple. It would help to ease the pressure placed on formal and informal carers, and would give them more certainty. Not only will it ensure that individuals get the timely care that they need when they need it but, equally importantly, it has the potential to prevent costly and unnecessary hospital admissions. If this amendment is not in place, there is always the possibility that with a downward fluctuation in condition, the person without the support will then have to be hospitalised. That in itself is costly and is utterly undesirable from the point of view of the person who could be helped in the home if this amendment were to be passed.

Local authorities are surely in a position to provide better tailored care, to promote confidence and control and allow people to prepare for such rises and falls in their care needs. The current drafting does not allow for it. A snapshot was taken by the NRAS—the National Rheumatoid Arthritis Society—which indicated that currently more than 30% of respondents with rheumatoid arthritis have been admitted to emergency care as a result of a flare-up in the disease in the past year. This is something which I trust could be prevented if we changed the way in which this clause was to operate. A survey of 1,000 people with MS revealed that 95% of respondents felt that better services during a relapse or a sudden deterioration of their condition would help them to maintain their independence. More than 80% said that they want to be able to plan their care and support in advance of that care being required. This amendment would help people whose conditions might suddenly worsen and, as I said earlier, would potentially prevent unnecessary and costly hospital admissions.

I turn to Amendment 61. As the wording of the Bill in Clause 27 states, local authorities have the power to generally review care plans. However, they are not required to specify when they anticipate that these reviews will take place. This amendment seeks to put some certainty into the process. There should be an agreed date between the adult and the local authority upon which a review of the care and support plan would be offered. I envisage a discussion between the local authority and the person concerned about the best way in which their care needs can be met.

An anticipated review date, agreed between the local authority and the adults, would provide stability and certainty to those being cared for. It is not a large change but it would be beneficial for the people concerned. I do not want to spell out with examples where people have said what a difference it would make if they had this element of certainty. I would like this amendment to be passed, which will give the adult the confidence that their care would continue as agreed until the specified date or until the adult themselves chooses to request a review in line with Clause 27(1)(b).

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The Joint Committee of which I was privileged to be a member felt that the Care Bill provides an opportunity to explore the Government’s intentions towards a much more effective system of complaint, appeal and redress for social care and NHS continuing care. This amendment is to probe the Government further on how they will address the lack of a truly independent arbiter early in the NHS continuing care process. I remain convinced that an initial refusal to award NHS continuing care at assessment should lead directly to an independent review body or procedure, rather than another tier of the NHS, so that people do not have to wait years until an independent body can review their case.

[Baroness Meacher (CB)]

My Lords, I rise to speak to Amendment 123. In doing so, I add my support to Amendments 76 and 124, which were tabled by my noble friend Lady Greengross. Indeed, a few of my comments slightly overlap hers.

As the Bill stands, local authorities will be given many complex duties and will be required to make many decisions which will have a substantial—you could say devastating—impact on the lives of elderly and disabled people, but there is no statutory provision for any appeal or independent review process, even if decisions are made on the basis of factual or legal errors. That is the point of the comments I want to make.

I understand that the Government have committed themselves to consider a process of redress or appeal and that they recognised in their response to the Joint Committee that it is,

“vital that people have an effective way to complain and seek redress”,

but there is no assurance in the Bill that such a system will be put in place and, if one is, what its characteristics will be. As my noble friend Lady Greengross said, regulations under other legislation do not appear to do the job. I hope the Minister will comment on that situation.

For example, local authorities decide whether an elderly or disabled person should continue to receive care support. Many will lose that support as a result of cuts to local authority budgets. The impact of losing care support—an entire care package in some cases—can be catastrophic, according to Leonard Cheshire Disability and others directly in touch with disabled or elderly people. Many years ago, I worked with these people, and I find the very idea that a care package could simply be removed very frightening, even as an onlooker, let alone as somebody experiencing such a thing. People become trapped in their homes, unable to work and unable to get out. They become depressed and, in some cases, suicidal—and not surprisingly in my view. There can also be risks to people’s health. As they try to undertake tasks for which they are not well suited or which they are unable to perform on their own, they fall. Has anyone estimated the likely cost to the health service of increased falls, accidents and problems of this kind? What is the Government’s view of the economic costs to the country if family carers have to give up work in order to step into the breach when the state withdraws? The problem is that the local authority may save money but the DWP and the Treasury are likely to pick up the tab. I am not quite sure what the Minister in the other place would think about that.

It is easy for the state machinery to underestimate the incredible vulnerability of many elderly and disabled people. Applicants for care support will inevitably feel nervous and fearful of the consequences of upsetting the very people on whom they depend so heavily. It is terribly important that an appeal or review process is not only user-friendly and accessible but really is independent of the people making decisions about the person’s care. Can the Minister honestly say that care decisions will in future not vary across the country? Can he say that decisions will be made without error and always be based on the law? I do not think so. In preparing this amendment we have been mindful of the cost constraints and the need to allow Ministers flexibility to create a system that will be proportionate and sustainable. I hope the Minister will recognise this in his closing comments.

Having said that, I draw your Lordships’ attention to the fact that Leonard Cheshire Disability has specifically asked me to ensure that a full tribunal service be considered, although we did have a discussion about the financial implications of that. It argues that if such a system exists to deal with conflicts about school places, a decision to deny social care is equally as devastating. The Law Commission recognised the importance of a fair, independent and accessible system of redress.

I know that the noble Earl has discussed this issue with key stakeholders and perfectly well understands the points I am making. I hope he can give the House an assurance today that, if he is unable to accept the precise wording of the amendment, the Government will table an amendment at Third Reading that will guarantee that a suitable appeal or review process will be in place when the Care Bill comes into effect.

[Lord Warner]

My Lords, I support these amendments—not necessarily the specific wording but the principles behind them. I remind the House of a real difference between many of the appeals under the new framework for adult care and support and what has gone before. We are now talking about a set of arrangements with considerable financial implications for people and their families. In the social security system we set up a tribunal system to arbitrate, which has worked pretty well for a long time. Many of these issues are more akin to the social security system than to complaints about process. There will be complaints about process but many of the things covered in these amendments are about a failure to get a resource from the public purse to which people think they are entitled and have evidence that they are. This is much more akin to the arrangements in the social security system for people who have their claims rejected. It is much nearer to that than complaints about poor processes of work by a public body. The Government should think long and hard about this issue because they are in grave danger of ending up with the whole system being overwhelmed by the number of complaints. Without a convincing system for resolving appeals in the framework of the Care Bill we are heading down a path where judicial review will start to feature quite strongly.

I remind the noble Earl of some of the other issues where there could be appeals. The Joint Committee looked at some of the friction points where there was scope for dispute. There is a raft of areas for dispute over assessment of carers and service users and a whole range of areas for dispute about ability and whether you are going to be charged or not. After the previous debate on deferred payment I can think of another fruitful area for complaints—an inability to get on to some kind of deferred payment scheme. Another area, important to patients and service users, is setting the price for contracts to providers. Clearly, the price-setting mechanism may be disputed between the providers of services who may claim that the price offered by the commissioning agent will be bad for service users and patients. I am not suggesting that these could all come together under one process, but we want more convincing architecture in this Bill to give confidence that there is a sensible way of resolving and arbitrating areas for dispute and for the service user and their carers to secure redress without going through an excessively complicated process.

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[Lord Rix (CB)]

My Lords, I lend my support to Amendment 77, tabled by my noble friend Lady Greengross. I would also like to express astonishment that we seem to have reached the target for tonight before the dinner hour.

My interest, of course, is with people with a learning disability and what is increasingly referred to as mate crime. This is where someone has befriended a person with a learning disability and is exploiting or abusing them in some way. In some cases this person may be living with them and, for example, concerns may have been raised by neighbours that the person may be being abused. Currently, the local authority would be unable to speak to the adult with a learning disability to establish if they are all right as the other person, the third party, always answers the door and will not let them in. This power would change that. I understand that the power on the statute book in Scotland is being used sparingly, and I believe that it is used appropriately.

I now turn to Amendments 79A and 81A, which are tabled in my name, on strengthening the safeguarding clause. Currently only financial abuse is defined in the Bill. However, there are of course many other types of abuse, such as physical, psychological and sexual abuse, as well as neglect. The amendment seeks to rebalance the definition. I understand that there has to be a definition of financial abuse in the Bill as there is not a legal definition elsewhere. However, limiting the definition to financial abuse, suggests that there are no other forms of abuse or that professionals and agencies should focus on financial abuse alone.

Although I do not doubt that people with a learning disability suffer financial abuse, other forms of abuse are far more common. Indeed, statistics on the number of safeguarding referrals detailed in the Abuse of Vulnerable Adults in England report for 2012-13 show that physical abuse and neglect were the most common. We would not wish inadvertently to elevate financial abuse above and beyond other forms of abuse. Of course, I understand that there is a reluctance to list types of abuse in case the list appears to be exhaustive and never-ending. The amendment adds the option to specify other forms as detailed in guidance, which I hope will allay such fears.

Amendment 81A, the second amendment tabled in my name, places a duty on safeguarding adults boards to send a copy of their annual report to the Secretary of State. These reports are important in that they detail the findings from safeguarding adult reviews that have been carried out. In addition, a welcome government amendment has added that these reports must now show the actions that boards have taken to implement the findings.

At the moment Schedule 2 says that a copy of the annual report must be sent to the CEO and leader of the local authority, the local policing body, the local Healthwatch and the chair of the health and well-being board. It is important that lessons are learnt nationally and sending these annual reports to the Secretary of State will allow us to understand the national picture and issue guidance as appropriate. People with a learning disability are some of the most vulnerable people in our country and not to monitor and respond to abuse at a national level is quite unacceptable.

[Baroness Meacher]

My Lords, I support Amendments 77, 80 and 82, to which I have added my name. I will also comment on Amendment 79.

I strongly support the need for adult safeguarding access orders and applaud the noble Baroness, Lady Greengross, for tabling the relevant amendments. As we discussed last week, as local authority resources shrink further—the Minister referred to a 5% reduction so far—the reality is that care will be left more and more in the hands of relatives, many of whom may themselves be elderly and frail; or indeed they may be younger, with childcare responsibilities and have great difficulty in providing support in all directions. Inevitably, many family carers will find it extremely hard to cope, and there will undoubtedly be situations when elderly or disabled people are neglected or in some way abused. I fear that the only way in which family carers will get the help they need will be if adult safeguarding access orders are available, so that following an alert the local authority can become involved, assess the situation and, where appropriate, prioritise further support.

As public services shrink, the neglect of elderly and disabled people—even gross negligence in some cases—will become a growing problem that could very easily become a national scandal. Having said all that, I part company with my noble friend Lady Greengross when it comes to Amendment 79. We have the criminal law. It may not cover absolutely everything but I would not want to see any increase in the likelihood that an overburdened family carer could face criminal charges if they reach the point where they cannot continue to care appropriately for a relative. For me, the purpose of adult safeguarding access orders is to ensure that problems are identified—they certainly need to be—and support is made available in order to enable a carer to cope in the style they would wish to provide.

[Baroness Hollins]

My Lords, I support the amendment in the name of my noble friend Lady Greengross on the duty to report adults at risk, which replicates a duty within the Welsh Bill. I spoke to a similar amendment in Committee.

Providers, together with other partners, will often be best placed to identify abuse and neglect, and it makes sense for them to report to the local authority. At Winterbourne View there were 40 safeguarding alerts, 29 incidents where the police were involved and 78 attendances at A&E but agencies did not take any action. They believed it was someone else’s duty to report and take action. Putting this duty in the Bill would emphasise its importance and would be a vital step in ensuring that the local authority is notified so that it can then take the appropriate action. Leaving this to guidance and local protocols is not a satisfactory solution.

I also support my noble friend Lord Rix’s Amendments 79A and 81A on safeguarding. My noble friend has highlighted how abuse comes in many different forms. The breakdown of the nature of referrals is set out clearly in the Abuse of Vulnerable Adults in England 2012-13 report. The most common was physical abuse at 38,500. There were 24,500 referrals for financial abuse, the third highest. It seems an eminently sensible amendment to add some balance to this clause.

My noble friend’s amendment on safeguarding adults boards sending copies of their annual report to the Secretary of State also seems eminently sensible. Looking at safeguarding annual reports across the country would allow the Secretary of State to see the national picture as well as to monitor what works and what does not. Guidance can be issued where worrying trends are observed and good practice shared. This is about leadership at a national and strategic level, which could help to tackle the abuse and neglect of the most vulnerable members of our society. I do not think it is about extra bureaucracy.