Care Bill [HL]

Lord Beecham Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Dubs]

My Lords, it is very clear that this Bill puts upon local authorities enormously complex duties as regards assessing the care needs of disabled people. The way in which local authorities exercise those decisions will have a major impact upon the lives of elderly and disabled people and may well occasionally be unjust or factually inaccurate. This will not be deliberate, but it sometimes happens in the nature of decisions that are so difficult and sensitive. The purpose of my amendment is to give the Government a duty to set up a tribunal system for issues such as individual eligibility, care plans, the level of personal budgets, and cases where individuals believe local authorities have made errors of fact or law in their decisions. Issues such as these can be challenged and put to the test. It is a complex area and I say at the outset that this is a probing amendment. Although it is quite detailed, I appreciate that the issues are difficult and will need further thought. I am anxious to see what the Government’s response is at this stage.

It hardly needs to be said how crucial these decisions are for elderly and disabled people. The system is hard for individuals to navigate. People often feel that they are powerless in the face of such a complex system. Where people lose out, in terms of the assessment made of them, they can in the worst cases feel trapped in their own homes, unable to get to work, unable to get out, depressed, and perhaps even suicidal. The consequences can be very serious indeed. They may be left in a vulnerable position without any ability to achieve redress.

The Government, in response to the Joint Committee, said,

“it is vital that people have an effective way to complain and seek redress that provides real challenge, particularly to the decision-making process.”

That is fair enough, but I cannot see anywhere in the Bill where the Government have actually done that. Perhaps I have missed it. The point of my amendment is to give people precisely that safeguard.

The Government may say there are other ways of doing this, such as going back to the local authority and persuading it that it has made a mistake. That is not very easy to do. One might be able to require the local authorities to have a route by which individuals can formally request reconsideration of care decisions where they believe an error of law or fact has been made. Again, this is not an easy thing to do. One might even go one step further and require local authorities to convene an independent panel to consider social care decisions where there is a dispute between an individual and the local authority. In theory, such options might work; but in practice one would have to be absolutely convinced that every local authority would do it, and do it properly. I am bound to say that although some local authorities might be willing to move in this direction, I am not convinced they all would.

The difficulty is that there are alternatives. One alternative is judicial review. However, we do not want to be standing here and telling elderly and disabled people to go through the costly business of a judicial review in order to get redress for what ought to be a simple procedure. Although my amendment is fairly lengthy, what I have in mind is a process that should be simple. Not all tribunals need to be complicated. Indeed, we know in the scheme of things that some tribunals can work quickly, efficiently and in not too costly a manner. I hope the Government will not say that people can take the option of judicial review and that is okay, because I do not believe it would be. In any case, going for judicial review would be a costly additional burden for local authorities, and I do not think anybody wants that.

Let me repeat—it is inevitable that, on a national scale, some mistakes would be made. You cannot devise a system, with the best will in the world, where mistakes are not made with regard to individual assessments. So let us not have judicial review at one end of the scale and mistakes at the other, for which there is no remedy.

I appreciate that any system of tribunals has some costs attached to it. I do not want to say to the Government, or to my friends in the Labour Party, that we should rush into this blithely, never mind the costs. I am aware that the costs must be of concern, and I do not want to stand here urging that something costly should be set up. But having some proper tribunal system of redress would be a much better way in which to resolve issues than to ask people to approach the local authority, and I do not believe that we would be left with all that many cases, anyway. I am hopeful, and I hope not excessively optimistic, that the tribunal system would be there in place for a few cases that could not be resolved in any other way. An appeal option must be a feature of any decision-making; it is so for many public authorities and should be in this particular instance.

Lastly, I have thought about the question of the Local Government Ombudsman, and I hope that that the answer given by the Minister is not his only answer. After all, the ombudsman is there to deal with maladministration and, although one or two instances might be susceptible to local authority ombudsmen looking at maladministration, I do not believe that that is the answer. It is for different sorts of instances, not for the sort that I am talking about.

What I am putting forward is a simple proposition. I want the Minister to respond in terms of the detail. I have said that I am concerned about the cost, so I hope that the Minister will not simply say that it is too expensive. I hope that he will not say that judicial review is the answer and will appreciate that I am putting something forward quite seriously. I am indebted to Leonard Cheshire Disability for the help that it has given me in some of the details that I have put forward in my remarks.

[Lord Beecham]

My Lords, I have a lot of sympathy with the case that my noble friend has put in establishing the structure that would permit appeals. However, there is one potential problem. I endorse what he says about the undesirability of requiring people ultimately to have recourse to judicial review, which is a lengthy and very expensive process. However, it is likely that people wishing to make an appeal to such a tribunal would need at least legal advice and, possibly, legal aid. I would imagine, as matters stand, that such a procedure would be out of scope of the legal aid system as it has been “reformed”—I put that word between inverted commas. Perhaps the Minister and my noble friend could indicate whether they think that it would be a sensible addition to the terms of the amendment, which would command a good deal of support across your Lordships’ House.

[Lord Warner]

My Lords, I briefly intervene from the perspective of a member of the Joint Select Committee, which proposed that there should be some kind of body. Much of our thinking was focused on the early days of these new arrangements. We thought it highly unlikely that there would not be a lot of disputes in the first few years of what would be a pretty major change to the arrangements. There are two sources of potential dispute—those by people who do not like the results of an assessment made about them, in some form or another, and some of the stuff that comes out of making markets. There is the issue of the rate for the job between local authorities and providers. We could see some of those areas also leading to disputes.

We had it in mind that some mechanism should at least be ready to go into action should this happen. It may be that, in the longer term, things will settle down and there will not be a great problem. However, even if the Minister is not prepared to accept my noble friend’s amendment and make statutory provision, the world would be reassured if the Government at least had a plan B so that we do not end up with judicial review if things do not go well. Rather, we end up with some kind of arbitration system which is low cost, speedy and can deal with some of the inevitable teething problems of a fairly major change to these systems.