Care Bill [HL]

Lord Low of Dalston Excerpts

Monday 29th July 2013 Lords Chamber

[Baroness Browning]

My Lords, this is something of a miscellaneous group of amendments. I wish to speak to Amendment 105Q standing in my name and that of the noble Lord, Lord Touhig. I also refer the Committee to my interests in the register as far as autism charities are concerned.

This Bill must ensure that the duties set out in the statutory guidance under the Autism Act 2009 continue to apply to local authorities and local NHS bodies in order to ensure the ongoing implementation of the Act, which remains England’s only disability-specific legislation. The Act led to the publication of the adult autism strategy and the accompanying statutory guidance. When the Bill went through the House—I was on the committee when it went through another place—great play was made by the Minister of the importance of statutory guidance rather than having certain things on the face of the Bill. Ministers therefore have a responsibility to ensure that it is complied with. The guidance commits the Government, local authorities, local NHS bodies and other stakeholders to take action to improve the lives of adults with autism across England. This year, the Department of Health will undertake a statutory review of the strategy. This amendment seeks to ensure that the statutory guidance resulting from the Autism Act is embedded in the new legislation and that nothing that currently gives protection to people with autistic spectrum disorders slips through the net.

[Lord Low of Dalston]

My Lords, I shall speak more briefly, your Lordships will be pleased to learn, than I have in any of the debates we have held so far in Committee. I wish to speak to Amendment 105R. This is a probing amendment designed to seek clarification as to the meaning of Clause 72. The clause gives local authorities power to delegate some of their functions to other care providers. This raises the question of whether care provided under such delegated authority should be regarded as arranged by a public authority and therefore subject to the Human Rights Act. Clause 72(6) states that:

“Anything done or omitted to be done by a person authorised under this section … is to be treated … as done or omitted … by … the local authority.”.

This means that the local authority remains bound notwithstanding any delegation of its functions. But the Joint Committee on the draft Care and Support Bill recommended that the clause should be amended to state that the person with delegated authority is also subject to the same legal obligations as the local authority itself. It is argued that this should include obligations under the Equality Act 2010, the Human Rights Act 1998 and the Freedom of Information Act 2000. However, subsection (7)(a) puts the whole matter in doubt by providing that this does not apply,

“for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function”.

The amendment seeks clarification as to what this means and an assurance that not only local authorities but also those who provide care under these arrangements will be treated as public authorities for the purposes of the Human Rights Act and other legislation.

[Lord Touhig]

My Lords, I shall speak to Amendment 105Q in my name and in the name of someone I am proud to call a noble friend, the noble Baroness, Lady Browning, who spoke to this amendment so well and eloquently. As law makers, we can be proud of the Autism Act 2009. It was a significant piece of legislation and it is well embedded. I look forward to the review of the autism strategy that the Government are now undertaking. This amendment will ensure that the duties set out in the statutory guidance continue to apply to local authorities and NHS bodies to ensure the ongoing implementation of the Act. There is much wisdom and common sense in this and I hope that the Government will support it.

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[Lord Low of Dalston]

Can I just make sure—does that mean that the third party to whom the care function may be delegated is also liable under such legislation as the Human Rights Act?

[Baroness Northover]

What I have written here is that when the local authority delegates a public function to a third party, the function must be carried out in a way that is consistent with the Human Rights Act. It appears—I will clarify for the noble Lord if it is not the case—that the local authority has to abide by the Human Rights Act, but clearly, if it delegates something to a third party, which does not adhere to it, the third party is not adhering to its obligations to the local authority. By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible. However, I will clarify that if I am wrong.

[Lord Low of Dalston]

I am very grateful for that further clarification. It is reassuring to hear that the third party is under an obligation to carry out its functions in a manner that is compliant with the Human Rights Act. However, it would offer further reassurance if we were told that there was a remedy against the third party to which the function was delegated as well as against the local authority. I appreciate what the noble Baroness has said about a remedy against the local authority. However, as appeared when we talked about the application of human rights legislation a week ago, for remedies to have a practical effect so far as third parties carrying out delegated responsibilities are concerned, it is desirable—this was the view of the Joint Committee—that there should be a remedy against the third party to which responsibilities were delegated as well as against the local authority. In this instance that is, if I may put it this way, little more than a backstop. The remedy bites much more effectively if it can be seen to bite on the third party, to whom the responsibilities are delegated, and not just on the local authority. I hope that that further clarification of my point will make it easier for the noble Baroness to come back to me when she has looked into the matter further.

[Baroness Northover]

I will certainly write to the noble Lord and spell it out. Given the local authority’s responsibility for complying with the Human Rights Act, it is very unlikely that it would form a contract with a third party without ensuring that it knows that it will need to carry out whatever responsibility has been passed to that third party in the light of the Human Rights Act, otherwise the local authority will end up in court. I will write to the noble Lord in detail to explain how this operates.

The noble Baroness, Lady Wheeler, asked why the Government have chosen regulations to address the issues relating to provider failures. There is no simple definition of business failure and—we have some very interesting handwriting here; it is worse than a doctor’s. My best bet is to write to the noble Baroness.

To return to summing up on this group of amendments, I hope that I have reassured noble Lords about their amendments in this group, that they will feel able to withdraw their amendments, and that I have persuaded noble Lords that the government amendments I have outlined here should be accepted.

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Moved by

[Lord Low of Dalston]

105NA: Clause 70, page 58, line 20, at end insert—
“( ) A local authority must make contact with adults who have recently been certified sight-impaired or severely sight-impaired and who are ordinarily resident in its area.
( ) Regulations may specify the period after the issue of a Certificate of Vision Impairment within which a local authority must make contact with a sight-impaired or severely sight-impaired adult and the form of such contact.”

[Lord Low of Dalston]

My Lords, perhaps I will not speak quite as briefly as when I spoke to my earlier amendment to Clause 72, but still, I hope, briefly enough. This amendment concerns registers of sight-impaired and disabled adults. I declare my interest as a visually impaired person and vice-president of the RNIB.

Clause 70(1) places local authorities under a duty to establish and maintain registers of adults who are sight-impaired and severely sight-impaired—blind and partially sighted, to you and me—who are ordinarily resident in their area. Certificates of vision impairment are completed by consultant ophthalmologists and passed to local authority social services departments to decide whether to register somebody as blind or partially sighted. This is intended to provide someone with sight loss with a formal and reliable route to accessing social care services and to assist councils in planning such services. Guidance from the Department of Health and the Association of Directors of Adult Social Services states that it should take no more than 28 days from the health service issuing a certificate to the local authority completing registration. However, we know that this does not always happen, or at least not always promptly.

New registrations have declined sharply over the past 10 years. The number of blind and partially sighted people who receive some sort of community-based provision has declined by 36% over the six years from 2005-06 to 2011-12, with a particularly marked decline after 2009. This compares very unfavourably with the figure for all other adults with physical disabilities, for whom the figure is 23%. It has been suggested that the decline may be due to people not registering because they do not see the point or feel that it would be stigmatising. However, it is difficult to see why this should be. The benefits are just the same as they have always been, and the evidence is that the problems surrounding prompt registration are much more systemic than attitudinal.

The purpose of this amendment is to ensure that local authorities have a duty to make contact with adults shortly after they have been issued with a certificate of vision impairment to ensure a consistent approach to registering adults who have been newly certified as sight-impaired or severely sight-impaired. It builds on a suggestion by the Law Commission in its report of May 2011 on adult social care law. On page 189, the report states:

“The guidance for deafblind people suggests a more proactive role for local authorities in that they are not only required to keep a record but also ‘make contact’ with service users”.

It went on to suggest that the Government should consider extending the requirement to make contact, to other service-user groups. Given the evidence on declining registrations, this would seem to make sense for the visually impaired as well. Only intervention makes a critical difference. Prompt registration can be crucial for accessing services, and effective rehabilitation. Nearly two-thirds of blind and partially sighted people say that because of their sight loss, they need help to get out of the house. However, without mobility training, which makes the greatest difference soon after certification, blind and partially sighted people are at risk of isolation and becoming housebound. There is also growing evidence of the link between sight loss and falls. Local authorities should step in before blind and partially sighted adults’ care and support needs intensify. When people have to wait for someone from social services to get in touch, it can lead to loneliness and depression. At present, ADASS guidance suggests that first contact should ideally take place within 48 hours, and certainly within two weeks. As I have said, the assessment of need is meant to take place within 28 days.

When the registration process works well, people with registrable sight loss access the support they need within weeks. However, the RNIB’s Lost and Found report of 2009 revealed a variation in the percentage of people reporting that they received a visit from social services within six weeks of their appointment at the eye hospital—a variation that ranged from 88% in the best local authority, to only 14% in the worst. In more than one area, patients reported waiting at least seven to nine months for an assessment or a home visit. Dr Stan Lopez, the head of a sensory impairment team in London, said that blind and partially sighted people typically slip through the net at the first stage.

This amendment would help ensure that local authorities reached blind and partially sighted people early, before they become depressed and isolated, and there is deterioration in their well-being. Recently published RNIB research studied the process of certifying and registering people as sight impaired, to understand why registration numbers have been falling. What particularly stood out was the extent to which social services departments can make a difference to the well-being of individuals, simply by making prompt contact. By making contact early, the local authority can arrange low-level and less costly support than if it waits for the individual to reach crisis point following many months of struggling on their own.

The duty laid on local authorities by this amendment would be quite proportionate. The rate of certifications of visual impairment issued per 100,000 of the population in 2010-11 was 43.1. The 22,500 adults certified as sight-impaired or severely sight-impaired in 2010-11 would typically translate into a big metropolitan authority, such as Birmingham, making contact with 430 newly certified adults a year; an inner London borough, such as Westminster, contacting 50; and a largely rural county, such as Cumbria, making contact with 320. Clearly, not all these adults would end up receiving the same level of service or even requiring a needs assessment. When you consider that there are 300,000 adults registered blind or partially sighted in England, this duty is clearly proportionate. It would mean that the roughly 20,000 adults whose sight problems are serious enough for an ophthalmologist to certify them in any given year are contacted by their social services department, and at the very least offered registration, which leads to individual benefits and entitlements, but we hope also speedier access to services which will help support independent living.

When the certification and registration process works well, service users are able to access support quickly, and report that it changes their lives. Building on Clause 70(1), which requires local authorities to establish and maintain sight impairment registers, the amendment would help them fulfil that duty by inserting a new subsection which would require local authorities to keep up-to-date registers by making contact with newly certified individuals. In summary, the amendment would ensure newly certified sight-impaired and severely sight-impaired adults are at less risk of losing out and falling through the gaps between health and social care services. I beg to move.

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[Baroness Northover]

My Lords, I thank the noble Lord, Lord Low, for his amendment. It raises some important issues. He emphasises that local authorities need to follow up those who have been newly certified as sight-impaired or severely sight-impaired in a timely manner where they have indicated that they wish to be registered or to have an assessment of their needs for care and support. Indeed, we have great sympathy with his concerns. We accept that people who have acquired a visual impairment should have an early opportunity to have access to information and advice so that they can adapt to their situation as quickly as possible and obtain any aids and support that will help them to manage their lives better.

As we have discussed, Clause 4 requires local authorities to make available universal information and advice on care and support, which will of course be relevant here. But people who lose their sight suddenly can also need more time to come to terms with their loss and engage with the support that might be available to them. If that is the case, it might be more appropriate to have a greater degree of flexibility around the timescales for when that support is offered or re-offered. Individuals differ in the way that they respond. We therefore believe that it would be better if the detail of this was covered in guidance, as it is for deaf-blind people, rather than in the Bill or in the regulations. In response to the noble Lord, Lord Hunt, there may well be a parallel here for deaf people, I am happy to write to him in answer to his questions.

Covering this in guidance would allow greater flexibility to update and adapt the arrangements. I can assure the noble Lord, Lord Low, that officials intend to work closely with the RNIB and other stakeholders to ensure that the guidance is as comprehensive as possible. He is absolutely right that the person needs to be at the heart of that guidance. In the light of what I have said to both noble Lords, I hope that the noble Lord, Lord Low, will be happy to withdraw his amendment.

[Lord Low of Dalston]

I am very grateful to the noble Baroness for her response, and also to the noble Lord, Lord Hunt of Kings Heath, for his support. On what the noble Baroness had to say, I am very glad to hear that the Government propose to work with RNIB on refreshing the guidance. That will be very welcome. On that basis, I shall certainly want to withdraw the amendment. However, I would like to make a couple of points. The noble Baroness drew a parallel between the guidance on visual impairment and that for deaf-blind people. The Law Commission was in favour of upgrading the guidance for deaf-blind people to regulation status. Perhaps when the Government look at that question in respect of deaf-blindness and vision impairment, they may like to revisit it and consider whether guidance or regulations are the best vehicle.

I agree about flexibility, but the fact that somebody may need longer to adapt to sight loss or may need help for longer simply argues, to me, that they need help longer, not that they do not need prompt intervention. Even if you are going to need longer, or take longer to adapt to sight loss, you probably still require prompt intervention and early contact from the local authority to determine as quickly as possible what your needs are to put in place as quickly as possible what is appropriate to be put in place quickly, and to put in place what is needed over a longer time period as and when required.

With those observations, I beg leave to withdraw the amendment.

Amendment 105NA withdrawn.