Care Bill [HL]

Lord Lipsey Excerpts

Wednesday 9th October 2013 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I support the amendments of the noble Baroness, Lady Greengross. She is so right in saying that people very often have no idea what questions they need to ask and what services they may be entitled to and therefore this aspect of the Bill is far more important than it sounds.

However, I shall speak to Amendment 21 which, in a way, takes us a step further and would ensure that vulnerable people with current or foreseen complex needs receive information and advice in a way that they can understand; also that the information and advice takes full account of their complex personal position. This may sound simple enough, but, in fact, an untrained person with a leaflet on local services, probably including lots of irrelevant information, is quite likely to leave someone more confused than they were before the visit. In fact, if local authorities do not want people to find their way to services that they need, a rather weak and unstructured approach to information and advice is probably the best way to achieve that result, but in the longer run, such a cynical approach will be highly costly.

My few remarks are based on a briefing from the College of Social Work, which has had the benefit of input from front-line social workers, managers, recent directors of adult care and academics, all of whom are very conscious of and concerned about the efficient use of resources. They would not say lightly that one should be developing a service such as this for information and advice unless it were really important. For people without dementia or other disorders which make it particularly difficult to comprehend the world around them, information and advice can probably be provided by less trained people without any great loss.

As was said in Committee, the aims and principles of the Bill are welcome. The College of Social Work is concerned, however, that many of these principles will not be fulfilled in practice. We hope, with the aims and principles in mind, that the Minister will agree to some further clarification in the Bill, or in regulations, on the key role of skilled social workers in supporting and protecting some of the most vulnerable people in society through their involvement at the information and advice stage.

Key stakeholders were grateful that, in Committee, the noble Earl, Lord Howe, recognised the point of this amendment. He said that,

“some authorities have also used qualified social care staff as the first point of contact and have found that this can be effective, efficient and timely, helping people to the care and support that will help them most”.

At that stage he envisaged that,

“guidance will set out the clear expectations of what the local authority’s service should cover or what it should seek to do in order to ensure that the information and advice is sufficient”.—[Official Report, 9/7/13; col. 216.]

The aim here is to ensure, by including the appropriate wording in the Bill or in regulations—I fully accept that having it in regulations would be perfectly satisfactory—that professionally qualified social workers will be deployed in sufficient numbers, including at the information and advice stage, for people who really need that level of expertise. As I have already said, those with complex needs may be a relatively small number of people. This should ensure that these particularly vulnerable people are put in touch with the most appropriate services for them. This could avoid the need for more intrusive and expensive interventions at a later stage.

[Lord Lipsey (Lab)]

I shall make most of my remarks on the subject of advice and information on Amendment 20, which is a more broad-brush amendment, but I shall just comment on the government amendments in this group, on advice—that is Amendments 16, 17 and 19. I remind the House that I speak as the unremunerated president of SOLLA, the Society of Later Life Advisers, which accredits, to a gold standard, advisers who can help old people on financial matters.

It would be churlish not to say that the government amendments mark a small step forward, in that for the first time they represent a recognition that independent financial advice can be necessary. To that extent, I welcome them. However, I have to say right away that it is impossible to read the briefings we have had without realising that they have caused great disappointment, particularly among financial service people who are determined to get this right. The Equity Release Council says that the government amendments do not go far enough.

In trying to put my finger on the point, yes, they recognise independent advice and financial advice, but they do not recognise the need for that advice to come from people who are properly qualified to give it. It is not enough to have Tom, Dick and Harry advise in this field. It is not enough, even, for local authorities to send people to see people who they may think are quite plausible advisers, such as Citizens Advice: they do not know the complications involved in giving financial advice, particularly to people who have got some money and need to make sure that it will provide them with the care in a home that they want. They need proper, regulated financial advice, given by advisers who can be called to task by the Financial Conduct Authority if the advice they give is not sufficient, who have to follow the rules set by it and must have the kind of qualifications required by it. Therefore, in my view the Government are some way short of what is required in these amendments. It is to repair that lack that I shall later move Amendment 20.

[Baroness Barker]

My Lords, I think I am right in saying that in the Inuit language there are more than 300 words for snow. I suspect that if historians were to go back through the annals of the British Civil Service, they would come across thousands of ways in which officials have briefed Ministers to say “no” to requests for advocacy. During the 20 years that I have followed these sorts of issues, during which advocacy has became part of social care, Governments have had to find ways to say, “It’s a very good thing, but we’re not going to fund it”. It was therefore a real joy to see the Government’s Amendments 118 and 119 in this group.

It is fair to say that the Government have taken on board the arguments that have put forward by a wide range of people. We know that the changes to the care system and the complexity of those changes, not least those stemming from the Dilnot recommendations, mean that we are now into a level of complexity which individuals on their own—even those who are fairly well informed—will find extremely difficult to manage. Therefore I very much welcome the Government’s Amendments 118 and 119, in which they recognise that there will have to be advocacy services. I also welcome the Government’s commitment to set aside funding for that.

The Minister will accept that his Amendments 118 and 119 fall somewhat short of my proposal in Amendment 38. I would therefore like to raise a few questions which result from the fact that the government amendments are of a much tighter scope than my proposal. I welcome the amendments, but there are several issues that I wish to ask the Minister about.

Subsection (2) of the new clause proposed in Amendment 118 states that independent advocates will,

“represent and support the individual for the purpose of facilitating the individual’s involvement”.

Advocacy in its truest sense is about much more than involvement—it is about enabling people who need help to achieve the outcomes they want. The word “involvement” is not defined, although it is used a lot in the Bill. Will the Minister say whether advocates will have a full advocacy role or whether this is just about securing the involvement of people?

Secondly, I come to individuals who qualify to have an advocate. Subsection (4) of the proposed new clause is quite clear that that is reduced to people who have substantial difficulty in understanding and retaining information, in making judgments by weighing things or in communicating their views. What is not in the Government’s Amendment 118 is a right of access for the advocate to access those people. Under the Mental Capacity Act and the Mental Health Act, where advocates are appointed they have a statutory right of access to people and a statutory right to interview those people in private. Given that we are talking about some fairly vulnerable people, would it be possible to ensure in regulations that advocates have a statutory right of access?

The third thing that is missing is that although the Government have taken this welcome step, there is absolutely no duty upon the local authority to listen to what the advocate has to say. That is a huge omission in the process; could it be dealt with in regulations? To echo the points made by the noble Lord, Lord Lipsey, it is important that people are properly trained for the roles that they will undertake in this extremely complex set of conditions which they are dealing with. Again, under the Mental Capacity Act and the Mental Health Act advocates have to be properly trained. Can that be dealt with in regulations?

Finally, can the Minister say whether it will be possible to include a general provision that in future, if additional circumstances arose in which it would be to the benefit of a person to have an advocate, they could have access to one? I am sorry to sound less than pleased—I am, in fact, very pleased by what the Government have put forward—but with a few more minor adjustments in regulations we could have something that is a great step forward.

--- Later in debate ---

Moved by

[Lord Lipsey]

20: Clause 4, page 4, line 41, at end insert—
“( ) The Secretary of State—
(a) has a duty to ensure through national public awareness campaigns that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care; and(b) shall publish annually a report on the levels of such awareness and understanding, including the results of a representative poll of adults.( ) Regulations must make provision for when a local authority must refer an adult with care and support needs, or who is making plans for meeting such needs, to a regulated financial adviser; and for when a local authority may refer such an adult for such advice.
( ) The advice and information made available to adults with care and support needs must include—
(a) advice on housing options; and(b) tailored information for individuals with specific medical conditions and complex individual needs.”

[Lord Lipsey]

My Lords, perhaps I may start with a procedural point. We have had these matters under discussion for quite some time, and the first three Peers named on the amendment—myself, the noble Lord, Lord Sharkey, and the noble Baroness, Lady Greengross—had a most useful meeting with the Minister and Norman Lamb from another place on 12 September. There was complete agreement at that meeting that, if it was at all possible, we wanted to go forward on the basis of consensus on the matters of advice and information, and I am sure that that is right. However, I think it fair to say that we are not quite there yet.

The Minister very kindly agreed to share with us his notes for his speech in reply to the debate this evening in advance so that we could consider them, because many things that he might want to say are very relevant to whether we have a picture for advice that really does the job—sorry to mix the analogies. The Minister fulfilled his kind promise, but only at 2.41 pm this afternoon, and I have not had a chance to digest his words, nor to discuss them with my colleagues, whose names are on the amendment. He also suggested that we should have further talks if they would be helpful, particularly, he said, between Report stage days. Clearly we are not considering finished business here. All I am asking is that there should be agreement from him and from the House that if either he or we think that an amendment at Third Reading is appropriate and necessary—it may well not be—he will not resist it on the grounds that we have thoroughly debated it. This is open territory and we are trying to find a way forward. In that way we can avoid any Divisions this evening. I would be grateful if the Minister would agree.

[Earl Howe]

My Lords, I am happy to give that undertaking.

[Lord Lipsey]

That is marvellous. That makes it much easier.

As I said, I think we are making headway, but I do not think we are necessarily there. There are three elements to this amendment: the information campaign, which the noble Lord, Lord Sharkey, will concentrate on in his remarks; special groups and housing, which the noble Baroness, Lady Greengross, will address; and I will concentrate on the issue of advice.

Why do I spend so much time banging on about advice? This is an incredibly complicated area. The financial products are very complicated, and many people do not have a natural understanding of them. We all sort of know what a pension is. How many people, even in this House, know what a point-of-use care plan policy is? Who would be able to evaluate whether it was good value for money or bad? There is a large gap in the degree to which people know and understand the kind of products that can be involved here and the issues that can arise.

There is not a lot of this advice about, by the way. Some 53% of councils did not even refer people in care homes for independent financial advice. Only 7,000 of the 53,000 self-funders in care homes have had appropriate financial advice. A point-of-use policy can ensure that they can go on paying for their care however long they happen to stay in the home. Their whole lives are at stake, yet hardly more than 10% have received the financial advice they need.

This is costly not just to the individual but to the councils. Nearly one-fifth of self-funders end up falling back on the state to pay. It costs councils £435 million a year, which is a substantial sum. Much of this could be avoided if people got appropriate financial advice. I do not think that this is not common ground with the Government, but it is, I think, a reason why the Government need to make absolutely sure that they get it right in what they do.

The need for financial advice has greatly increased as a result of the Dilnot scheme. The scheme has no stronger supporter than me, except possibly the Minister. I think it is a very good outcome to a very long and protracted debate. Nevertheless, it does make a lot of things more complicated. I will give an example that I gave in an earlier debate. You can apply for help under the means test and find that you are worse off if you get it because, although you get a little help under the means test, you lose attendance allowance if you get any means-tested support at all. I was amazed when I found that out, and I study this every day. How many people would know that unless they had the right kind of financial advice? That could come from citizens advice bureaux if their computer systems were up to it, but you really want an independent adviser to help you in the round. I do not think that is very controversial.

--- Later in debate ---

[Earl Howe]

My Lords, I begin by thanking the noble Lord, Lord Lipsey, my noble friend Lord Sharkey, the noble Lord, Lord Hunt, and the noble Baroness, Lady Greengross, for the amendment, which covers a number of distinct issues relating to information, advice and awareness of the reforms to care and support funding. I am grateful to them all for meeting me over the summer to discuss these issues so constructively.

A number of speakers, including the noble Lords, Lord Hunt and Lord Warner, stated that public awareness of these matters, particularly on the potential cost of care, is woefully low and that this needs to be addressed. My noble friend Lord Deben made some telling points in that connection. The Government agree that if we are to realise in the fullest sense the benefits of these reforms, it is critical that people are made aware of them and what the reforms mean for them. There is absolutely no dispute on that point. I explained in Committee that Clause 4 requires local authorities to provide information and advice on care and support, and that this must be accessible to their whole population. This will need to include information on the capped costs system.

However, we accept that local awareness-raising alone might not be sufficient. Furthermore, we accept that the department has an important role to play at the national level. For an awareness campaign to be successful it needs to be delivered in partnership—national and local government working alongside the wider care sector. We do not believe that a specific duty in the Bill would achieve this and we do not think that it is necessary. It is not necessary, for one thing, because we are already building a partnership without legislation. We have embarked upon a joint programme with local government to implement the reforms, and I can assure my noble friend Lord Sharkey, and the noble Lord, Lord Warner, in particular, that awareness-raising will be a part of this. We are engaging with the voluntary sector, care providers and the financial services industry to make sure that we all play our part in communicating these reforms effectively. It is a joint effort and a joint responsibility.

To answer my noble friend Lord Sharkey, the public awareness campaign will be timed to coincide with the coming into force of the key elements—that is, April 2015 for most; April 2016 for the capped costs system. I can assure him, too, that the Government do not intend to shy away from the need to raise public awareness.

Turning to the second limb of the amendment, the Government are not convinced that it is proportionate to require the Secretary of State to conduct a poll and publish a subsequent annual report on awareness of the capped costs system. However, we do agree with the need to monitor the effectiveness of the reforms and the Government have committed to conduct post-legislative scrutiny of all new legislation. Moreover, recognising the need to improve data on public understanding of care and support, we have also taken steps to develop and include new survey questions for the annual Health Survey for England. The new questions will be used to monitor and track public awareness over time. If questions are included, fieldwork will be conducted throughout 2014, and the report will be published at the end of 2015. These data would provide us with a baseline against which we can evaluate changes in public awareness. The survey is conducted annually, so there is scope to include the questions in subsequent years. Additionally, there are already questions in the English Longitudinal Study of Ageing— ELSA—which capture public awareness of care and support and expectations of how it is funded. Some data are already available and the next set will be available at the start of 2016. Together, these steps will inform the ongoing implementation and policy development process that will take place in the years to come. I hope that is helpful to my noble friend and provides him with some reassurance.

We are currently consulting about the design and implementation of the funding reforms. Through this we are seeking views about how best to raise awareness of these reforms nationally and locally. We will consider the responses carefully before deciding on the way forward. I can assure the House that this will include a role for the department nationally.

The next part of Amendment 20 would introduce a regulation-making power to specify circumstances where local authorities must, and where they may, make referrals to financial advisers regulated by the Financial Conduct Authority. Given that quite a bit of the ground covered in this amendment was discussed at length earlier in the debate, and relates to a number of government amendments which have been accepted by the House, I hope that noble Lords will forgive me if I do not rehearse all the arguments they have already heard.

The noble Lord, Lord Lipsey, emphasised the importance of people understanding the various products that are available. We agree that, in some instances where someone is considering a financial product such as a care annuity, financial advice should be regulated through the Financial Conduct Authority. However, there are many sources of valuable financial advice that do not need to be regulated and can be provided free of charge—such as advice on managing money from the citizens advice bureaux or from the Money Advice Service. In addition, the fact that financial advice is regulated does not mean that it is appropriate for care and support purposes. Very few regulated financial advisers currently have a qualification or expert knowledge of care and support, though we hope that this sector will develop over the coming months and years. In this context, the term “independent financial advice” covers both regulated and non-regulated advice.

The noble Lord, Lord Lipsey, also asked about the regulation of advisers in this particular field and what we are doing about this. The regulation of financial advisers comes within the remit of the Financial Conduct Authority. We have opened up discussions with the authority and with the Association of British Insurers on the regulation of financial products and advice.

From the comments of the noble Lord, I took it that he accepted that it would be inappropriate to require local authorities to make direct referrals where, for the most part, they do not possess the necessary expertise to judge between advisers. Requiring them to do so would present a significant burden and could result in a local authority making an unnecessary or inappropriate referral. There is the further risk that a referral leading to poor advice could be seen as the fault of the local authority, a point he acknowledged, bringing yet more of a burden of responsibility in increased disputes, and even legal challenge. We believe that the decision to take up financial advice, of whatever form, and the choice of adviser, should belong to the individual and not to the local authority.

In respect of the third limb of the amendment, about housing, this is very similar to Amendment 15 tabled by the noble Lord, Lord Best, which we have already discussed. If the noble Lord has any further concerns, I should of course be happy to speak to him separately.

With regard to the provision of information and advice to people with specific health conditions, this is primarily the responsibility of the NHS. For example, there is a wealth of tailored health and social care information on the NHS Choices website that is public-focused and available to local authorities to use however they see fit. Health and housing are, of course, vital for people using care and support. Clause 3 puts local authorities under a duty to promote the integration of care and support with health and health-related services. The House has accepted Amendment 12 to clarify that this incorporates housing, which includes joining up the provision of information and advice. We will address this in detail through statutory guidance.

I hope that this persuades at least some noble Lords that these issues are all being considered very seriously by the Government, as we work with local authorities and others to implement the reforms. On that basis, I hope that they feel able to withdraw their amendments.

[Lord Lipsey]

My Lords, I thank the Minister for that reply and for the positive things that he said from which we can draw encouragement. I was particularly pleased to hear him talk about the national role of the department in information provision and confirm that there will be campaigns around landmarks in the Dilnot report to carry that forward. Equally, there are some things on which, if I may say so, he still is not quite there. Nobody advocates direct referrals—nobody. I accept his argument—everybody does—that you cannot just send people to say, “You have to go and see so and so”, or, “So and so is your man”. The other extreme is to say that you do nothing. You provide, for example, a list of suitably qualified advisers within the local authority area; you tell people how to get hold of them. We should not set up straw men, whom nobody is advocating, in order to fend off suggestions that need to be acted upon.

Some things the Minister said would be valuable to follow up in writing. I am sure that the noble Lord, Lord Sharkey, will agree with me that it would be fascinating to see the monitoring suggestions as a substitute for the poll that he suggested, because if they work, that is fine and we will not press it, but if they seem to fall short, that would be different. I think that there will be room to ask the Minister for further discussions with the movers of this amendment so that we can narrow even further the ground before us. I do not pretend to be fully satisfied as I stand here tonight. I gave my reasons earlier why I do not think that the Government’s amendments to the Bill complete the picture, but we are making progress, as we all want to, and we are having a good dialogue. With the Minister’s help, I want to carry that forward before Third Reading, at which stage we will see whether an amendment is needed. With that, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.