Care Bill [HL]

Baroness Pitkeathley Excerpts

Tuesday 16th July 2013 Lords Chamber

Moved by

[Baroness Pitkeathley]

89A: Clause 14, page 12, line 35, at end insert—
“( ) Services of an intimate nature can only be provided to the disabled person and not to meet a carer’s need for support and regulations may make provision about what is, or is not, of an intimate nature for the purposes of subsection (3).”

[Baroness Pitkeathley]

My Lords, I wish to speak to Amendment 89B as well as Amendment 89A, as they are both amendments about the circumstances in which a carer can be charged for services. Carers UK—I declare an interest as its vice-president—has estimated that carers save the UK economy £119 billion per year. That is a statistic that I never tire of giving your Lordships. Local authorities recognise the value and cost-effectiveness of supporting carers. As a result, very few local authorities charge for services provided to carers. The Government’s impact assessment for the Bill sets out current evidence on the cost-effectiveness of supporting carers, and refers to the benefits received from doing so: for example, preventing or delaying hospital or residential care admissions; sustaining the caring role; improving the health and well-being of carers; and, crucially, assisting carers to remain in or return to work.

The Bill includes a power to charge carers for services, and a power to charge for arranging services for carers. Given the benefits of providing support for carers, I shall argue that it would be counterproductive to charge carers and thereby reduce the take-up of support.

The current legislation under which support is provided is the Carers and Disabled Children Act 2000, which started as a Private Member’s Bill. Under the Act, services provided to a disabled person in order to meet the needs of the carer cannot include services for the disabled person that are “of an intimate nature”. It is for that reason that that same wording is used in Amendment 89A.

Interpretation varies concerning to whom, and by whom, services are provided, but the definition legally prevents carers being charged for a respite care service that includes personal care provided to the person whom the carer cares for. As I have said, very few local authorities now charge for carers services. However, given the difficulties with local authority funding, about which we hear constantly, I am concerned that more local authorities may consider charging carers in the future.

Following a recommendation by the Joint Committee scrutinising the draft Care Bill—on which I, together with several other Members of your Lordships’ House, served—the Government have sought to protect carers from being wrongly charged, by introducing the following wording in Clause 14:

“The power to make a charge under subsection (1) for meeting a carer’s needs for support under section 20 by providing care and support to the adult needing care may not be exercised so as to charge the carer”.

Although the intention of this wording is welcome, it does not provide any definition of what is a service for the carer and what is a service for the adult. So it does not prevent local authorities charging carers for services such as replacement care and other things that help them.

It is important that any potential conflict is resolved so that carers and disabled people have clarity about their personal budgets. Independent personal budgets can be useful in relation to managing options and direct payments. Whose budget is this to come out of? It will also be important when the carer count is introduced that we have clarity, so that the disabled person knows whether the cost of care is starting to accrue to their account.

Decision-making on whether services are designed to give carers a break or result in them having a break from caring is very variable at the moment. Some local carers’ services, for example, have experienced variations in approach from their local authority. I cite a particular example in which a local carers’ organisation that provides a sitting service—that is, replacement care, so that carers can take a break—operates with two neighbouring local authorities. One regards replacement care as a service for the cared-for person, including sitting services. The next-door authority allows carers to purchase a sitting service, as long as it does not include intimate care, with their direct payment. Varying interpretations mean that there is a disparity for carers in the same area. Some can access breaks, while some cannot. This creates difficulties for the service provider and for those who want to support carers.

In the current legislation, the Carers and Disabled Children Act 2000, services provided to the disabled person to meet the needs of the carer cannot include services for the disabled person that are of an intimate nature. My Amendment 89A seeks to reproduce that wording in the Bill to probe the distinction made in the Bill between carer services and services for a disabled person and to clarify how the current wording would prevent a carer being charged for respite or replacement care provided to the carer. Without a clearer definition of whose service is whose, negative consequences for the carer will inevitably result. Carers may be prevented from having a break; they may find that they are subject to charges for services that should be allocated to the disabled person; and social workers and others assessors’ time will be taken up in trying to allocate services to people.

I hope that the Minister, who I know to be totally committed to supporting carers, as are the Government, will accept this amendment to clarify the position with regard to charging carers. I beg to move.

[Lord Lipsey]

My Lords, I rise briefly—I fear that that will be the last time that I will use the word “briefly” tonight—to speak to Amendment 104ZB in my name in this group. This is another bits and pieces group; my amendment does not relate to the excellent speech just made by my noble friend Lady Pitkeathley.

Clause 64 enables a local authority to recover money owed to it in connection with the provision of care and support. A person’s failure to disclose any material fact would make them liable to recovery proceedings. However—and this is the nub—it would do so even if they had done so inadvertently. This seems terribly draconian and might well deter people from taking steps, such as asking for a direct payment, which they might perceive as carrying the risk of legal proceedings. This clause should refer only to misrepresentation, and the deliberate failure to disclose information, rather than incorporating, as it does, accidental failure.

These decisions of where to apply for help are taken at time of acute stress in many families. There may have been an incident, such as a fall or a stroke, which has changed the picture for that family entirely. At that stage, the last thing that people want to worry about is whether they have inadvertently failed to disclose some piece of information and will have legal proceedings taken as a result.

I cite an example given to me by Age UK, which was contacted by a husband whose wife has dementia. She has a private bank account that she will not let her family have access to, and discussions of financial arrangements upset her terribly, so he has not yet gained a power of attorney over her affairs. Despite knowing that his wife has assets, her husband is paying for everything relating to her care with his benefits and pensions. He feels that he could not make an accurate disclosure of her assets that would be necessary to get the benefits to which he is entitled. Imagine how that person would feel when faced with this clause and the danger that an inadvertent failure to disclose fully would lead to the local authority taking him to court.

--- Later in debate ---

[Earl Howe]

My advice is that the guidance that we will issue on this topic will be binding on local authorities. It will not be the type of guidance which merely points to best practice, which local authorities are free to ignore. The last thing I wish to do is to mislead the noble Lord and if I have done so, I apologise in advance and I will clarify that point to him and to the entire Committee.

[Baroness Pitkeathley]

My Lords, I thank all noble Lords who have spoken in what my noble friend Lord Lipsey called this “bits and pieces” group, although charging and access was the theme that linked the amendments. I am naturally disappointed that the Minister cannot accept my amendments, but reassured by his restating his intention so far as carers and charges are concerned, and by the statement that he has now given twice about the guidance being binding on local authorities with regard to charging. I am also grateful for his offer to reflect on my concerns, because I am not entirely certain that we have totally removed what my noble friend Lord Warner called “the scintilla of doubt” which might allow local authorities at some point in the future to charge carers. For the time being, I beg leave to withdraw the amendment.

Amendment 89A withdrawn.