Care Bill [HL]

Lord Low of Dalston Excerpts

Tuesday 9th July 2013 Lords Chamber

[Lord Lipsey]

My Lords, I rise to support the amendments of my noble friend Lord Hunt and the remarks just made by the noble Baroness, Lady Greengross.

There have been a number of scandals, both about care at home and care in care homes, over the past year. I am astonished that the situation is not much worse than it is. When you see the pay and conditions imposed, and the people working under absurd and exploitative conditions in this sector—I use that old-fashioned word, exploitative, because it is the only one that applies—it is quite remarkable how many of them still care and still work their heads off for the people for whom they care We should pay due tribute to all those people.

Approaching this objectively, and it has been this way for some time, we have a situation that would be solved readily in a free market. The supply of people providing care is going down, and it will continue to go down, largely because of the Government’s crackdown on immigration; many of the workers in this sector are immigrants, as can be seen when visiting nearly any care home. The demand is going up year after year, if only for demographic reasons. What you would expect to happen would be for pay to go up, attracting more and better workers to the sector, thus resolving the situation. However, that is not happening.

Why? Because, in effect, there is a monopoly purchaser: the local authority. However, the local authority can only buy with the money it is allowed by the Government. As we know, the amount available for care, which should have been going up, has been going down. You can call on the CQC or local authorities to pay more but they are in an impossible position. If they do not connive in the appalling conditions inflicted on these workers, they will not be able to provide the services at all. So they try to get through another year and accept a lower tender or another company, even though they know that their standards are appalling. This is not the fault of the local authority. It is the fault of our national failing to put money into care while we have continued to ring-fence money for health and education.

I was once asked by a Care Minister, if I had money to spend in the care sector—having studied it quite a bit on the royal commission—how I would spend it. I said that I would give them all £1 an hour more and improve the standards of their training. I would say exactly the same thing today. I am supportive of the Dilnot proposals; I think that it is wonderful that we are spending more than £1 billion to help richer people not to be wiped out by their care costs. It is a great thing. However, it is not as great a thing as it would be if, at the same time, we were providing the money to allow local authorities properly to look after and provide basic services to people who need them, and to provide the money that would enable those providing those services to live decently and with pride in the wonderful job that they have been given to do.

[Lord Low of Dalston]

My Lords, I support Amendments 86N and 86Q tabled by my noble friend Lady Greengross, to which I have added my name.

This is a very important debate. As has been said, these amendments are all about quality and speak to many of the concerns to which the noble Lord, Lord Hunt, has just given powerful expression. The Care Bill introduces a number of important new duties and responsibilities to help place the right values at the heart of our care system. The well-being clause, for example, provides a foundation stone for the principles that should inform the whole of social care. However, our social care system is only as strong as the services that are actually commissioned. With budgets getting tighter and tighter, and demand getting ever greater, local authorities all too often commission care and support services based solely on finding the cheapest possible option. Unless we can ensure that the way in which services are commissioned drives the quality outcomes that we all want to see, important changes such as the well-being principle will remain simply a pious aspiration.

Amendment 86N would oblige local authorities to adhere to minimum standards in the way that they commission services and would give the Government power to make regulations for appropriate minimum standards. Amendment 86Q would provide for regulations to ensure that care visits lasted long enough to deliver the support needed. This would exert an important influence on the quality of services for disabled and older people. Focusing too much on cost creates an unacceptably high risk that care will be of the poor quality that we have heard too much about of late, which does not meet the basic needs of vulnerable people for support to enable them to live with dignity.

There are some fantastic examples of high-quality services across the country, despite severe budgetary constraints, and much can be learnt from how some local authorities have been able to build quality into what they do. However, there are also too many examples of people suffering as a result of poor-quality commissioning and receiving totally insufficient support, which consists simply of fleeting visits from carers who barely have time to say hello, let alone get to know and understand the needs of the person they are supporting.

I have heard of many cases of care workers rushing in to deliver care in visits of 15 minutes or even less. Fifteen minutes is not long enough to help people wash, get dressed, prepare a meal and use the bathroom. It is hardly long enough to take your coat off. It certainly is not long enough to promote people’s well-being. Care visits can be the only contact that socially excluded and vulnerable people have in a day. It is sobering that Leonard Cheshire Disability has recently announced that it will not accept contracts that provide for visits of 15 minutes or less.

A recent survey of local authorities found that 90% still pay providers according to the time they spend with the service user rather than the outcomes they achieve. This simply encourages a race to the bottom. The Bill needs to contain provisions that will help to ensure that quality of service is a key consideration in commissioning decisions. There must be checks and balances in the commissioning process and quality must be part of the equation. If we want a society that provides care based on need and not merely that which can be provided at the lowest cost, we need to support these amendments.

Ministers in the Department of Health have made a number of positive statements about improving quality in care. I hope that the Minister might be willing to accept these or similar amendments, but I ask him at the very least to clarify what the Government intend to do to make the positive rhetoric on quality a reality when it comes to commissioning services.

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Moved by

[Lord Low of Dalston]

87H: Clause 9, page 8, line 21, after “outcomes,” insert—
“( ) whether, and if so to what extent, the provision of a structured programme of care provided for a limited period to help a person maintain or regain the ability to live at home could contribute to the achievement of those outcomes,”

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[Lord Low of Dalston]

My Lords, I shall also speak as briefly as I can to Amendments 88PA, 88PB and 88PC, on which my name also appears.

The purpose of Amendment 87H is to ensure that intermediate care and reablement needs are considered as part of the assessment process so that a holistic approach to meeting care and support needs is taken. In the White Paper of July last year, the Government promised that the new system would,

“promote wellbeing and independence at all stages to reduce the risk of people reaching a crisis point, and so improve their lives”.

As part of their vision for care and support, the Government accepted that they needed to move away from an approach that saw people as having to wait for a crisis before they could access care and support. The White Paper included a number of references to reablement, which the Government saw as helping people regain their independence at home.

The Bill, however, needs to be strengthened to take this perspective more fully on board and so that local authorities are clear about the steps they need to take to adopt a genuinely preventive approach to meeting needs for care and support, particularly as regards providing or arranging for reablement. At present reablement, for all the many promising words in the Caring for Our Future White Paper, remains conspicuously absent from the Bill. Whether it is enabling someone who has recently had a stroke to regain through their rehabilitation the skills they need for independent living, easing a person’s discharge from hospital, helping people when difficulties start to arise following a bereavement or after a fall, or providing aids and adaptations following the onset of sensory loss, reablement can be crucial in determining whether someone experiencing acute health problems goes on to develop long-term care needs or, on the contrary, feels confident enough to go on living independently.

There are a number of definitions of reablement, but broadly it refers to the relearning of self-care skills following a stay in hospital or the onset of an illness or disability. The aim is always to reduce the need for longer-term support. The social policy research unit and the personal social services research unit at the University of Kent and the LSE have analysed home care reablement services and found that reablement is associated with a significant decrease in subsequent use of social care services. The cost of the services they examined, used by a reablement group over 12 months, excluding the cost of reablement itself, was 60% less than the cost of the services used by those in a conventional home care group who did not receive reablement. To ensure that needs assessments properly factor in the potential health and well-being gains associated with a structured programme of reablement, Clause 9 needs amending to ensure that authorities assess the extent to which reablement or intermediate care would help people achieve the outcomes specified as a consequence of Clause 9(4)(d).

Amendment 88PB is the parallel amendment in relation to Clause 13, on eligibility. Its purpose is to avoid people who are judged ineligible for care packages also being denied intermediate care and reablement services or enduring unnecessary delays, by ensuring that the benefits of providing this help are considered when a local authority makes a determination on a person’s eligibility for care. Too many people do not get offered this preventive support, with the result that many of them are left to struggle on their own. This merely delays the moment when their needs worsen and they require more expensive support.

A lot has been written about reablement over the past five years or so in Green Papers and White Papers, but not yet in statute. What intermediate care and reablement have in common is that they are time-limited interventions that can be provided to a person independently of their eligibility for longer-term care and support. Crucially, as we have seen, they are also cost-effective. Curiously, the Bill does not mention reablement by name, although Clause 2(4)(d) paves the way for it when it speaks of regulations making provision for,

“services, facilities or resources which … are provided for a specified period only”.

Reablement or intermediate care can make all the difference between a person going under and remaining independent. A report produced by Deloitte for Sense and four other charities estimated a net return of 52% to a local authority that invested in a communicator guide and a rehabilitation service for deafblind adults who need help gaining news communication skills. It is essential that local authorities consider whether, and if so to what extent, a person would benefit from the provision of these time-limited but effective services. This does not place them under a duty to provide intermediate care and reablement services but, at a minimum, it ensures that they consider the value of putting in place those services where this would help maximise independence and also save the council money in the long run.

Such a battery of heavyweights have their names on Amendment 88PA that I hardly need to say anything about it—they will make the case better than I ever could. The amendment slightly expands the duty on local authorities to consider preventive support following a determination on eligibility. It provides that local authorities must consider not only whether service users would definitely benefit from the provision of preventive services under Clause 2, or information and advice under Clause 4, but whether they “would be likely to” benefit from such services. We have to be wary of placing burdens on local authorities that they cannot meet but this amendment is careful not to do that. It just opens the gateway to preventive services a little wider and makes it more difficult for local authorities to use unreasonable justifications for refusing to provide preventive support.

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[Earl Howe]

My Lords, I thank all those who have contributed to an informed and very interesting debate. The amendments mostly focus on the assessment process, but some also refer to Clause 13 on the eligibility criteria which we will consider later.

The noble Baroness, Lady Wheeler, is quite right that assessments will remain an integral part of the reformed care and support system. However, rather than acting primarily as a gateway to the adult receiving care and support, the future system will place more emphasis on supporting people to identify their needs; understand the options available to them; plan for meeting care and support needs, and reduce or delay needs where that is possible.

The amendments tabled by the noble Lord, Lord Low, Amendments 87H and 88PB, rightly point out that intermediate care services, such as reablement, can play a vital role in helping people regain their independence and in preventing avoidable re-admissions. Under this Bill, local authorities would be expected to consider how the provision of reablement and other types of care and support could contribute to the achievement of an individual’s desired outcomes as part of the assessment process. Clause 13(2)(b) makes it clear that, in determining eligibility, local authorities must consider if the person would benefit from preventive services—whether or not they have eligible needs. This would include reablement services.

Amendments 88PA and 88PC, tabled by the noble Lord, Lord Low, look to build on the measures in Clause 13(2) about prevention. Amendment 88PC raises the issue of individual entitlements to preventive services, facilities and resources. I hope he would agree that Clause 2 is an important step forward in itself, capturing prevention in primary legislation for the first time. It will require local authorities to provide or arrange prevention services and actively to consider the steps that they should take. The Bill makes clear that prevention is a core part of care and support provision, not an optional extra. This duty is only one part of a broader approach throughout the Bill to preventing, delaying and reducing needs.

One of the aims of the pooled budget, to which the noble Lord, Lord Low, referred, is that local authorities and CCGs should spend it on preventive services. However, individual entitlements should be built around people with ongoing needs for care and support—as they are now. We do not think it is necessary, or would make sense, for there also to be individually enforceable rights to preventive services which would be too broad, and therefore carry a very significant cost burden for local authorities. I took note of the comments of the noble Lord, Lord Low, on that point but, despite these, our view is that any enforceable right in this area would almost unavoidably lead to very high budgetary pressures.

I turn now to Amendments 87J, 88D, 92ZZF and 92ZZL tabled by the noble Baroness, Lady Wheeler. We heard during consultation that assessment processes should look at what an individual wants to achieve and what they can do, not just at their “deficits” or what they cannot do. Assessments should help the person to identify their needs, strengths, goals and aspirations, and consider what type of proportionate intervention might support them. The purpose of Clause 9(4)(d) is not to suggest that such matters should replace more formal types of care and support. The clear purpose of the duty is to assess an adult’s need for care and support. However, it recognises that in order to make the connections to the variety of support available in the community, the local authority should consider how these matters, along with more formal care and support provision, could be of benefit in achieving the adult’s outcomes.

Amendment 88A, to which the noble Baroness, Lady Wilkins, spoke so powerfully, raises the question of employment, education and training, and in doing so repeats Clause 10(6). This re-enacts specific existing provision for carers in relation to such issues, which the Law Commission recommended should remain. We recognise that these areas are of equal importance to adults receiving care and support. However, it is not necessary to recreate this provision as local authorities must already consider during the assessment process the adult’s aspirations in relation to work, education, training or recreation when considering the outcomes they wish to achieve.

On Amendment 88B, I agree with the principle of joining up assessments when it is sensible to do so. The provisions in the Care Bill are compatible with those in the Children and Families Bill, and both Bills allow for joint assessment. I am satisfied that the Care Bill includes the legal framework to enable a co-ordinated approach. My noble friend Lady Browning asked how the Children and Families Bill will fit with this Bill in relation to care planning, and particularly in relation to those with autism. The Children and Families Bill will improve co-operation between all the services that support children with special educational needs and their families. This will require local authorities to involve children, young people and parents in reviewing and developing care for those with special educational needs. Local authorities will also need to publish information about what relevant support can be offered locally. The Care Bill and the special educational needs provisions in the Children and Families Bill require that there is co-operation within and between local authorities to ensure that the necessary people co-operate, that the right information and advice are available, and that assessments can be carried out jointly. We are in discussion with the Department for Education about the links between both Bills.

The noble Baroness, Lady Emerton, proposes in her two amendments that assessments must involve health professionals. In our view, this would not be proportionate because not everyone would have health needs or need to involve a health practitioner. The Bill already allows the individual to decide if they wish to involve a health professional, and Clause 12 includes a power to allow authorities to carry out a joint assessment with other bodies such as the NHS.

My noble friend Lady Browning and the noble Baroness, Lady Wheeler, made important points about the appropriate training and skills of assessors. Stakeholders have told us of the importance of having appropriately trained assessors. We have therefore extended the powers in Clause 12 and I can reassure both noble Lords that we will make regulations to require local authorities to ensure that assessors are properly trained.

My noble friend Lady Browning asked why we have not specified that a qualified social worker should carry out assessments on people with complex needs. The social care workforce, as she well knows, is a mixture of qualified social workers and care managers who have been trained to carry out tasks such as assessments. It is, we believe, for local authorities to determine the mix of their workforces. Local authorities should also make a professional judgment on who has the appropriate skills and training to carry out assessments, and I really do not think it would be appropriate to do this from the centre.

The noble Baroness, Lady Meacher, raises an important point through Amendments 88SA and 88SB about the eligibility criteria for adults with care and support needs helping to prevent young carers from taking on inappropriate or excessive caring responsibilities that can impact adversely on their lives. The draft regulations make clear that an adult’s needs for care and support will be eligible if, because of mental or physical impairment or illness, they are unable to carry out fully any caring responsibilities for a child, or need support to maintain family relationships. Our policy intention is to encourage local authorities to take a whole-family approach, both in assessing and supporting an adult needing care and support, meaning that an individual adult is not seen in isolation from their family circumstances. That would include having to identify the child.

The noble Baroness made the point that better support for young carers will save money for the taxpayer. We agree that better supporting young carers will improve both their well-being and that of the person they care for and that it is also likely to benefit the public purse. That is why we are working with the Department for Education to ensure that a whole-family approach is taken.

Amendment 92ZZCZA follows the same principle, but seeks to add to the duty to meet eligible needs. As I have set out, we see the appropriate way of dealing with the issue of avoiding inappropriate young caring roles to be through the eligibility criteria. We would not wish to create a new stand-alone duty in this regard, which may have a distorting effect on the duty in Clause 18, but rather to ensure that such matters are reflected in the determination of eligible needs. However, as I indicated in debate last week, we need to ensure that the developmental and educational needs of young people are appropriately considered in the context of children’s legislation and services. We will work with stakeholders, including the National Young Carers Coalition, to ensure that, for their part, adult care and support services make appropriate provision in supporting an adult’s needs for care and support to prevent inappropriate or excessive caring by a child. However, we also need to keep in view what should be provided through children’s services and that is what the Minister for Children and Families has committed to do.

The noble Baroness, Lady Wheeler, raised an important point about the impact of the funding reforms. We recognise that people will want to have their care costs counting towards the cap as soon as possible. If this Bill is enacted, people cannot begin accruing costs towards the cap until 1 April 2016. That does not mean that preparation cannot be made locally before that time. We believe that it is appropriate for local authorities to begin assessing people ahead of 1 April 2016. To ensure that local authorities can take advantage of this opportunity, we have provided £335 million to fund the implementation of our reforms. This should enable local authorities to begin assessing people’s needs for care and support around six months before April 2016, if they choose to do so.

I hope that I have reassured the Committee that we are putting in place the support to allow local authorities to manage the implementation of our reforms. We have had a very good debate on assessment and eligibility. I hope that I have reassured all noble Lords who have spoken that the Bill already addresses the concerns that have been raised and that the noble Baroness, Lady Meacher, will feel able to withdraw the amendment. I am sorry—it was the noble Lord, Lord Low.

[Lord Low of Dalston]

Yes, I was going to say that I think it probably falls to me to consider whether I withdraw the amendment. Before I do so I just want to thank the noble Earl for his full and careful response, and also all those who have spoken in a debate that has ranged quite widely. I have found the noble Earl’s response to the points that I raised very helpful and will consider whether I continue to feel that the Bill needs strengthening in the area of assessment and eligibility in the light of his comments. I listened carefully to what he had to say and feel it will be very helpful in considering how to deal with these issues during later stages of the Bill.