Care Bill [HL]
Lord Low of Dalston Excerpts(10 years, 8 months ago)
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Lord Low of Dalston (CB)
My Lords, I shall speak briefly against Amendments 145, 146 and 149. As the noble Baroness, Lady Greengross, has just pointed out, these will take away the requirement that the CQC conduct periodic reviews of adult social care commissioning. These amendments seem perverse, coming hard on the heels of the latest care home scandal, revealed by the coroner’s finding that neglect contributed to the deaths of five residents at Orchid View care home in West Sussex.
Last week, the Close to Home report on human rights and home care by the Equality and Human Rights Commission concluded that some commissioning practices were likely to put at risk the human rights of older people receiving care. The Leonard Cheshire report, Ending 15-Minute Care, also points to problems with commissioning. It would therefore seem to make sense to leave Clause 83 unamended so that the CQC is empowered to oversee the practices of those commissioning adult social care and not just of those providing it.
Lord Deben (Con)
My Lords, in general terms, I support the government amendments. I am sure that my noble friend will want to answer the specific issue which the noble Baroness, Lady Greengross, raised. However, I support the Government with a slight caveat. Similar parts of the localism agenda of the Government have likewise seemed to have devolved in order to encourage people to take responsibility. I agree that there is a problem of prescription—if I may use that word in the context of the health service—because we all want to add in to any freedom the particular issues about which we have a special concern. I have real sympathy with those for whom dementia is one of those issues; it certainly is for me. However, we have to guard against that because, in the end, it may produce an artificial series of priorities. In this case, it is much better for the Care Quality Commission to make its own mind up, because it is going to be responsible. I take a rather different view about the recent scandals, in that the commission has to take responsibility for the claims that have been made. If it has to take responsibility, it must have as much control over its agenda as it possibly can.
My concern is simply that the Localism Act claimed to give localities all kinds of new controls over their futures. Yet, this week, we again find the Secretary of State for DCLG calling in a locally agreed solar decision, one supported by the local authority and by the inspector, but turned down—for reasons which are extremely difficult to see—by the centre. I want an assurance from my noble friend that this is real devolution; that the powers which have been given will not be circumvented by some other mechanism within this Bill or other Bills. The purpose of such devolution is to enhance responsibility. My concern is that, often, people who are given and who claim to have responsibility find that the structures are so prescriptive that they cannot take that responsibility seriously. If the amendments are an attempt to ensure that they can carry through their responsibilities in a way which enables the country to look to them to do the job they ought to be doing, that is fine and dandy. However, I hope that we can have reassurance that this is a real change, and not something that is going to be circumvented for the convenience of some Secretary of State by other bits of this or other Bills.
Care Bill [HL]
Lord Low of Dalston Excerpts(10 years, 8 months ago)
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Lord Low of Dalston
“( ) In exercising any function to which an authorisation under this section relates, the person authorised is subject to the same legal obligations as the local authority.”
Care Bill [HL]
Lord Low of Dalston Excerpts(10 years, 8 months ago)
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Lord Low of Dalston
“Human Rights Act 1998: provision of “care and support services” to be public function
(1) A person (“P”) who provides regulated “social care” is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in doing so.
(2) This section applies to persons providing services regulated by the Care Quality Commission.
(3) In this section “social care” has the same meaning as in the Health and Social Care Act 2008.”
Lord Low of Dalston (CB)
My Lords, I shall speak also to Amendments 138A and 138B, which are in my name in this group. I shall get those amendments out of the way first, as the debate is likely to focus principally on Amendment 83. Clause 75(6) says that anything done or not done by a third party authorised to carry out a particular function is treated as done or not done by the local authority. In effect, the local authority is solely responsible for the third party’s acts or omissions, subject to a couple of exceptions in subsection (7).
The Joint Committee on the draft Care and Support Bill recommended an amendment to make clear that a person with delegated authority is subject to the same legal obligations as the local authority itself. This reflected concerns that there should be a clear chain of accountability by which the individual could hold the third party, not just the local authority, responsible if their rights were infringed. The Government have contended that the clause already provides for continued accountability. They said that the local authority,
“will remain liable for the proper discharge of that function”.
This misconstrues what the Joint Committee was recommending. The Government are viewing accountability solely in terms of the relationship between the third party and the local authority. Subsection (6) precludes the possibility of the individual seeking redress from the third party, so it does not accord with the Joint Committee’s recommendation. The Minister in Committee said that care providers with delegated functions must carry them out in a way that complies with the Human Rights Act 1998 and that any failure to do so will be a failure by the local authority. That is not the same as the third party being subject to the Human Rights Act; the third party would be failing in its obligations to the local authority, but to no one else. The Minister effectively conceded as much when she said:
“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”.—[Official Report, 29/7/13; col. 1587.]
The noble Earl, in his letter to Peers following Committee stage, confirmed that individuals will have recourse only to third-party dispute resolution procedures or the local authority’s complaints process.
Without these amendments the individual will have no remedy against, for example, a private care home delivering poor service, or a private company failing to carry out proper assessments. We therefore need these amendments to give effect to the Joint Committee’s recommendation that a person with delegated authority should be subject to the same legal obligations as the local authority.
On Amendment 83, I set out the arguments in detail in Committee and shall not repeat them at length here. The matter is really quite simple and straightforward and can be stated briefly. The Human Rights Act 1998 applies to all public authorities and to other bodies when they are performing functions of a public nature. That means that it should apply to all providers of care, given that the provision of care is a public function. However, the matter was thrown into doubt in 2007 by the case of YL v Birmingham City Council, which held that care home services provided by private and third-sector organisations under a contract with the local authority did not come under the definition of “public function” for the purposes of the Human Rights Act. This meant that thousands of service users had no direct remedy against their care provider for abuse, neglect or undignified treatment. Though the public body commissioning the care remained bound by the Human Rights Act, that was of little practical value to the individual on the receiving end of poor or abusive treatment, or the person given four weeks’ notice to leave because they had antagonised their provider, about whom the noble Lord, Lord Warner, told us in Committee.
Accordingly, Section 145 was introduced into the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. There has been concern that this Bill would undo Section 145 by repealing Sections 21A and 26 of the National Assistance Act 1948, under which persons were placed in residential care and through which Section 145 has operated. However, the noble Baroness, Lady Northover, responding to the debate in Committee, set minds at rest on that when she provided the assurance that,
“there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation”.—[Official Report, 22/7/13; col. 1118.]
However, there remains concern that Section 145 does not cover all care service users, or even all residential care service users. It only protects those placed in residential care under the National Assistance Act. That being so, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.
The noble Baroness, Lady Northover, reflecting the position put to the Joint Committee on the draft Care and Support Bill, further stated that the Government’s position is that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors,
“should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not act in a way that is incompatible with a Convention right”.
However, there are two things wrong with this. First,
“should consider themselves to be bound”,
is not the same as “covered in law”. Secondly, the Joint Committee was not convinced. It concluded that, as a result of the decision in the YL case, statutory provision is required to ensure this. As I said in Committee, I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just “consider themselves to be bound”. However, the House of Lords in YL said that they were not and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation and Amendment 83 would achieve this by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act.
The amendment would also include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—so-called “self funders”—and therefore currently lack the full protection of the Human Rights Act. To date, it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. However, the changes to the system of arranging care to be introduced by the Bill weaken this protection. My amendment follows the approach of the Joint Committee and, if accepted, would provide equal protection to all users of regulated social care regardless of where that care is provided and who is paying for it.
The Government believe, as the Explanatory Notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority, even if it is self-funded, but the Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, it makes the point that it does not address the situation of self-funders, who arrange their own care and support. The Government, they say, will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act.
Given the manifold ambiguities and uncertainties surrounding this question, surely it is right to take this opportunity of putting the matter beyond doubt, as my amendment would do. What reason can the Government possibly have for resisting it, when all it does is to spell out in words of one syllable in the Bill that to which the Government have no objection—indeed, already believe to be the case—but which is subject to so much doubt in everybody else’s mind? I beg to move.
Lord Willis of Knaresborough (LD)
My Lords, I support Amendments 138A and 138B, but will not add to the excellent comments of the noble Lord, Lord Low. I speak in particular to Amendment 83.
I apologise to your Lordships for not having made any comments in Committee but, as I have pointed out, I was away from the House on the orders of my wife. In supporting Amendment 83, I acknowledge the excellent supporting brief from the Equality and Human Rights Commission. In particular, I thank my noble friend Lord Lester of Herne Hill, who sadly cannot be here today, for his considerable guidance.
The amendment stems from a failure by successive Governments to heed the recommendations of the Joint Committee on Human Rights and the Joint Committee on the draft Care and Support Bill to legislate to tackle the problem created by the majority decision of the Law Lords in 2007 in the case of YL v Birmingham City Council.
In YL, the issue was whether a care home, such as that run by Southern Cross Healthcare Ltd, was performing functions of a public nature for the purposes of the Human Rights Act when providing accommodation and care to a resident such as Mrs YL under arrangements made by Southern Cross with Birmingham City Council under Sections 21 and 26 of the National Assistance Act 1948.
The Law Lords decided by three votes to two—the noble and learned Lord, Lord Bingham, and the noble and learned Baroness, Lady Hale, dissenting—that they were not performing a function of a public nature. However, anyone reading the dissenting judgments of the noble and learned Lord and the noble and learned Baroness would understand why the majority ruling appeared contrary to the objective and purpose of the Human Rights Act. The previous Government thought that YL was wrongly decided and I assume that the present Government share that view. It would be useful if the Minister could confirm that that is the Government’s position.
The previous Government then sought to resolve the problem by intervening in test litigation to clarify or overturn YL, but that did not prove possible. The JCHR twice recommended remedial action, but the previous Government refused to take such action or to support the efforts of Andrew Dismore MP, as the chair of the JCHR, to do so by means of a Private Member’s Bill.
Earl Howe
I think that I covered that point when I said that the courts have ruled that there is no single test to determine whether a function is of a public or a private nature. They have also pointed out that there are serious dangers in trying to formulate such a test, which is what the amendment is trying to do, in its own way. If we go back to the noble Lord’s example of the 90 year-old lady in the care home and even if the Human Rights Act were to apply, it is impossible to predict the outcome of an application to a court for—let us say—an injunction to prevent her removal, because each case is fact-specific. It may be found that the lady’s human rights were not violated, but it is not possible to predict that in advance. I hope that clarifies the position and answers the noble Lord’s question.
Lord Low of Dalston
My Lords, I thank the Minister for his response, although it obviously leaves me a little disappointed. I do not propose to respond on Amendments 138A and 138B, because I do not propose to press them to a Division when we finally reach them. However, I should like to say something in response to what has been said about Amendment 83.
First, I thank all noble Lords who have spoken, especially those who have spoken in support from all quarters of the House. It has been a high-calibre debate which does credit to a House noted for characteristically engaging in debate of a high calibre. This one was, I think, particularly authoritative. Without wishing to be invidious in any way, I particularly give thanks for the exceptionally thoughtful, careful and authoritative analysis to which we were treated by the noble and learned Lord, Lord Hope of Craighead.
I also observe that we were deprived of the analysis of two of my other supporters who attached their names to the amendment, the noble Lords, Lord Pannick and Lord Lester, who were unable to be here. In those who added their names to the amendment, those who have spoken and those who would have spoken had they been here, we could not have had a more authoritative and heavyweight line-up in support of the amendment in this House.
There has been general agreement that the matter should be put beyond doubt. Indeed, as the noble and learned Lord, Lord Hope, pointed out, it would actually be dangerous if we were not to do so. If I understood the noble Earl correctly, he said that we should stick with the position that was arrived at as a result of Section 145 of the Health and Social Care Act. As the noble Lord, Lord Wills, made clear, when he said that noble Lords should not pray in aid the position arrived at by the previous Government, this is unfinished business. No one can pretend that we have reached a final resolution of these matters with Section 145 of the Health and Social Care Act. That is why it is so important that we should take the opportunity presented by the Bill to take the further steps necessary to put the matter beyond doubt.
We have heard what the noble Earl had to say in response to the debate, but I confess that I am baffled. Between Committee and Report, the Government seem to have executed a complete volte face and completely changed their position. The position explained to us in Committee was that the Government did not believe that the amendment was necessary because the matters that it sought to put beyond doubt were already provided for. Today, the noble Earl tells us that he must urge the House to reject the amendment because the matters should not be provided for. The Government need to make up their mind what their position is.
The Minister also made the point that we should not take this step because it would deliver to service users rights over and above those available under the ECHR. I am sorry, but I simply do not understand that point. The amendment simply delivers to service users rights which are available under the Human Rights Act, which is predicated upon the ECHR. Even the noble Lord, Lord Faulks, agrees, I think, that we should put the matter beyond doubt; he just does not think that we should put it beyond doubt in this way or that the Human Rights Act should be extended this far. Having listened to all the debate, I submit that the noble Lord, Lord Faulks, and of course the Minister in adopting his remarks, are on their own in this matter in the House. There is general agreement not only that we should put the matter beyond doubt, but that we should put it beyond doubt in the manner which this amendment secures. Indeed, until today this agreement used to include the Government.
I think we should put the matter to rest, as the Minister has said, decisively and emphatically in the terms this amendment provides for and which the Government, until very recently, supported in substance, so I wish to test the opinion of the House.
Care Bill [HL]
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Baroness Pitkeathley (Lab)
My Lords, the changes that the Government have made concerning assessments are very welcome. I particularly thank the Minister for the careful and considered way in which he listened to the issues around young carers, and particularly the way in which these now mesh with the Children and Families Bill, which was a concern to many of us. That is very welcome.
Amendment 32, which removes the reference to support available from families and friends, is particularly welcome. Disability and carers’ organisations have very serious concerns that the original wording would lead to local authorities making assumptions about what families could provide without conducting a thorough assessment of a person’s needs and then carefully considering how those needs could best be met, particularly taking into consideration the family’s willingness to provide that care.
Amendment 33 also includes a requirement that when an assessment is carried out it is also considered whether the person would benefit from prevention services or from information and advice. That greater emphasis is also very welcome. However, I would like the Minister’s comments on one concern about Amendment 33. It refers to,
“which might be available in the community”.
If this wording is included in the Bill, it is vital that strong guidance is given to local authorities not to run the risk of negative, unintended consequences. There will be guidance, regulations and assessments, as we know. What assurances can the Minister give that community services will not be seen as an automatic alternative to statutory services and will not therefore create a further barrier for those in need of statutory support?
Can the Minister assure me that guidance will make it clear that local authorities cannot make assumptions about the availability and appropriateness of other support from community services and whether it is wanted by the disabled or older person? The Government have made it clear that they do not intend local authorities to look to families and friends to provide care and support, potentially taking on a greater caring role. Can the Minister give assurances that local authorities should also not be looking to families and carers to provide more care as a get-out clause, if you like, from providing statutory services? This is particularly important given the great variability in so-called community services from area to area and, of course, the huge stress on local authority budgets, which is a fact of life for all local authorities at present.
Lord Low of Dalston (CB)
My Lords, I very much welcome the Government’s Amendments 33, 39 and 40. So far as Amendments 39 and 40 are concerned, in Committee, as the Minister has remarked, I sought a strengthening of Clause 12(1)(f) to ensure that regulations would specify the circumstances in which a specially trained person must carry out an assessment or a reassessment of persons who need one. The Minister was kind enough to thank me for raising the point, and I thank him very much for bringing forward these amendments. I am delighted that the Government have come forward with amendments that effectively meet my wishes, recognising that the Bill, as initially presented to the House, did not precisely reflect the Government’s intention.
Talking of specialist provision, I kick myself that I forgot to refer to this in connection with Amendment 26 from the noble Baroness, Lady Meacher, about the need for local authorities to commission a full range of services to meet the diversity of their residents’ needs. I meant to illustrate this by reference to the situation of deafblind people who are all too often offered mainstream services or services designed for those with a single sensory loss instead of the specialist provision appropriate to their particular needs. Perhaps, in welcoming the Government’s amendment on specialist assessments, I can slip in the thought that if local authorities are required to ensure that sufficient services are available for meeting the needs for care and support of adults in their area, they would rightly be under some pressure to identify the full range of deafblind people’s needs, and those with other specialised needs as well, and plan accordingly.
Care Bill [HL]
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Lord Warner (Lab)
My Lords, I want to speak to all the amendments in this group—and, in doing so, I have tried to take myself back in time and then, like the Doctor in “Doctor Who”, come forward again quickly. How would I deal with this set of circumstances if I was a director of social services today, as distinct from the late 1980s and early 1990s? I do not envy them because I think that they have a very difficult job to do in balancing the resources available with the expectations of the public, which this Bill will increase. I am not sure that we crack the problem with any of these amendments, on their own. I remind the Minister that in Committee I tabled an amendment, so that we could debate this, which gave the Secretary of State powers to make regulations when there were unsatisfactory employment practices. I deliberately drew that amendment widely, because I do not think that we should just concentrate on the 15-minute visits. That is today’s problem—but we have a series of problems, and there could be another lot of problems with employment practices coming along a few months or years down the track.
At the moment, we have four areas in which there are concerns about employment practices. We have zero-hour contracts with exclusivity and no guarantees of working, 15-minute visits and unpaid travelling time, which I would suggest are all incompatible for the most part with the ambitions of this Bill. I am not saying that my previous amendment was perfect or right—and I am pleased that the Minister has come back with some attempts to grapple with these problems. I do not dismiss his attempts, because these are intrinsically difficult problems, but we need to future-proof this Bill against new practices that may creep up.
What I like about Amendment 151, in the name of my noble friend, is that it puts things very clearly in the court of the regulator, and enables the regulator to look at both providers and commissioners. On some of this, providers are doing only what they are asked to do; they are responding to what the commissioners are expecting of them. So we cannot just blame the providers, although I would like to blame some of them, when local authorities are engaging and encouraging them, in some parts of the country, to engage in practices that are totally incompatible with the aspirations of this Bill.
Where do we go from here? I still think that the Minister might be wise to consider the idea of taking a regulation-making power for the Secretary of State, but I equally accept that that may not produce change fast enough. I found Amendment 27 noble in spirit but a little unclear about what its effect would be. Therefore I come back to Amendment 151. Of all the amendments, I think that is the one that gives me more confidence that there is a capacity to respond to concerns about commissioning practices and provider practices. I do not like the idea of a time limit for visits being set in this Bill because I would not want to be running a social services department with that kind of limitation on my ability to deploy my staff in a sensible way and in the best interests of the service users.
I do not think that we have cracked this problem fully. I think my noble friend has come forward with a better way of getting a grip on these issues, where the regulator picks up noise in the system about these unsuitable employment practices and can take some action both on the commissioning side and on the provider side. My only concern is that there is a later amendment that slightly moves the CQC away from intervening in local authority commissioning, which I think would be incompatible with what we need to do to tackle some of the problems covered by this group of amendments. I hope the Minister can tell me that I have got that bit wrong, but my reading of a later amendment is that it removes the CQC from actually monitoring the commissioning of adult social care.
Lord Low of Dalston (CB)
My Lords, perhaps I might be permitted a word before the end of the debate. I supported these amendments in Committee and am happy to do so again this evening, though I take the points that have been made about being too prescriptive about time limits in Amendment 25. I think the essential point is that the Bill introduces a number of important new duties and responsibilities designed to enshrine the right values at the heart of our care system—for example, the primacy of the well-being of the individual. However, these values are only as good as the services that are put in place to give effect to them. It is not enough simply to put empty principles into legislation. The Bill needs to contain concrete requirements that will help to guarantee quality in the services that are delivered.
The Government’s amendment requiring local authorities to have regard to the well-being principle when commissioning services is welcome, but I do not feel that it is clear or specific enough to underwrite even the very modest guarantee of quality sought by the amendments of the noble Baroness, Lady Meacher. It provides no assurance that the practice of commissioning very short personal care visits will stop. It also fails to commit the Government to producing regulations that set out in greater detail what should count as quality commissioning. From those points of view, I still feel that the amendments of the noble Baroness are in every way to be preferred.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by thanking noble Lords for the excellent debates that we have had on these topics in Committee and again this evening. As the report by Leonard Cheshire Disability highlighted earlier this week, we need to move away from overly prescriptive commissioning, which focuses on price and time slots, to consider how local authorities can deliver better outcomes and quality care. I therefore fully agree with the principles behind the amendments that noble Lords have tabled with regard to poor local authority commissioning practices. Of course, noble Lords will be aware that Clause 5 requires local authorities to promote a market in high-quality services and specifically requires authorities to consider this duty when arranging services to meet people’s needs. This would make it very difficult for local authorities to commission services in 15-minute slots where doing so undermines the quality of those services.
Clause 5 also requires local authorities, in fulfilling this duty, to have regard to the need to ensure there are sufficient services available to meet people’s needs. With regard to Amendment 26, it is important to recognise that local authorities can achieve this only through working with providers in their area. We therefore do not believe that it would be appropriate to require local authorities to ensure sufficiency of services independently. This could lead to local authorities finding themselves forced into providing services where a market had not developed otherwise. Therefore, I cannot support the amendment tabled by the noble Baroness. She asked me to clarify what “having regard to something” means. Where that duty is present, it is not something that local authorities are able to ignore. In other words, if they have to have regard to a particular thing, that is not something they can disregard. Rather, the clause as drafted is intended to recognise, as I have said, that sufficiency of services can be achieved by local authorities only when working with providers and not by local authorities alone.
It was clear in Committee that, in the view of many in this House, the Bill as it stands does not go far enough in relation to poor local authority commissioning practices. We have reconsidered our position and developed our own amendment, Amendment 27, in the light of the concerns raised. This amendment would require local authorities, when commissioning services, to consider the effect of their commissioning decisions on the well-being of the people using those services. Our approach has some significant differences from and, I would argue, three clear advantages over, the approach suggested in Amendments 22 and 25, which seek to prohibit specific commissioning practices and in particular to require homecare visits to last at least 30 minutes. The first advantage is that our approach sends a clear message on the face of the Bill that commissioning services without properly considering the impact on individuals’ well-being is unacceptable. We believe, in the light of the arguments expressed in Committee, that it is important that we are able to send this message on the face of the Bill.
Secondly, our approach also explicitly prevents local authorities making decisions about how they commission services without giving due regard to the impact on individuals’ well-being. This goes a long way towards achieving the objective we all share of tackling poor commissioning practices while maintaining local authorities’ ability to decide the most appropriate approach to commissioning services for the people in their area, and acknowledging that the underlying issues here are cultural and cannot be tackled by legislation alone.
Thirdly, our approach has a singular focus on the outcome that we all want to achieve of promoting individuals’ well-being. Consequently, our approach is holistic of all poor commissioning practices and future-proofed against new practices that could emerge without risking the creation of perverse incentives through taking an overly prescriptive approach. Moreover, our approach is also holistic of commissioning for all types of care and support, not merely focused on one area: that is, not just on personal care.
In contrast, there are three reasons why I cannot support the approach set out in the amendments of the noble Baroness, Lady Meacher. First, it is important to recognise that local authority commissioners do not act in ways that undermine well-being because they want to, but rather because they do not recognise the effects of their decisions or feel unable to commission in other ways. As the president of the Association of Directors of Adult Social Services has argued, we should be careful of assuming that,
“simply by abolishing 15-minute slots a magic wand will have been waved, and improvements automatically achieved”.
It is important to recognise the limitations of legislation in tackling this issue. We have heard during this debate some appalling examples of people having to choose between being fed and being cleaned as a result of homecare visits being commissioned for too short a time. Local authorities that commission such services are palpably failing in their duty to meet people’s needs. That they still commission such services demonstrates the fact that the underlying problems here are cultural and cannot simply be legislated away. Banning specific poor practices will only lead to other poor practices emerging. Instead, I strongly believe that we need to work with authorities to enhance commissioners’ understanding of the effects of their commissioning decisions on individuals’ well-being and of how they can commission more effectively.
Care Bill [HL]
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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.
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.
Lord Low of Dalston
“( ) 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.
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.
Care Bill [HL]
Lord Low of Dalston Excerpts(10 years, 11 months ago)
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Lord Low of Dalston
My Lords, I am glad to add my voice in support of the amendments in the name of the noble Baroness, Lady Campbell. Unfortunately I was too late to get my name on the Marshalled List but that should in no way be taken to indicate any lack of enthusiasm for them. I do not think that I can usefully add anything to the advocacy of the noble Baroness. She is the expert in this area, and as she has told us, she has been living and breathing this for several years. She has spoken to the amendments comprehensively and with great eloquence.
Instead, I shall speak to Amendment 92ZZAFA in this group, which is a more narrowly targeted amendment. It is not unrelated to the amendments tabled by the noble Baroness, Lady Campbell, but it is more targeted. It would amend Clause 38, which deals with where a person’s ordinary residence is. Ordinary residence rules under the National Assistance Act 1948 established which local authority has a duty to fund a person’s care and support, particularly when they are living in a residential care setting outside their original local authority area and in another local authority. These rules are often disputed by local authorities, and every year hundreds of disabled people are caught in the middle of these disputes, which are mainly about financial responsibility, of course.
This is a probing amendment designed to seek clarification from the Minister about the policy which will inform the regulations accompanying Clause 38, which have yet to be published. Ordinary residence disputes are not merely academic; they affect the liability of local authorities, as I have said, but more particularly, they profoundly affect people’s lives. People who rely on significant care and support in their daily lives can change where they live only when all the arrangements are in place. As the noble Baroness, Lady Campbell, has powerfully demonstrated, they cannot afford to take the risk of a local authority refusing or delaying payment for their care, so people’s independence is put at risk and sometimes severely compromised. For example, there are people like Peter who, after three happy and productive years at a specialist college, wants to stay in the area to look for a job. He plans to live with two fellow students in supported accommodation, but he is under pressure from his home local authority to go back home. There is Lucy who has profound and multiple physical and learning difficulties. She requires 24-hour care and has been living out of area in residential care in London. She is ready to live more independently and a voluntary sector care provider is supporting her to move nearer her family on the south coast. However, her plans are in limbo because of disputes about funding her care package.
The Voluntary Organisations Disability Group—an umbrella body of more than 70 voluntary sector providers—estimates that 500 people, such as Lucy and Peter, are affected by ordinary residence disputes at any one time. A small number of disputes are referred to the Secretary of State for determination—64 in the past three years, of which 40 were dealt with. But these are just the tip of the iceberg. Not only disabled people are affected: providers too are caught up in these disputes. The Voluntary Organisations Disability Group estimates that in the past three years, voluntary organisations had to cover a gap in fees of more than £1.5 million while disputes have been resolved. That is not counting the amount of staff time involved.
Lord Low of Dalston
My Lords, I shall speak to Amendment 92AA, which is at the end of this group. It concerns what is potentially one of the most powerful instruments for protecting people against neglect and abuse: the Human Rights Act. Amendment 92AA would insert a new clause after Clause 46 to make all providers of social care services regulated by the CQC subject to Section 6 of the Human Rights Act 1998. The Act applies to all public authorities and to other bodies when they are performing functions of a public nature. Under Section 6 such bodies are under a duty to act in a way which is compatible with the human rights protected by the Act. This duty does not simply arise as a result of litigation in the courts or dispute resolution, but means that human rights are part and parcel of the development and delivery of public services.
However, as a result of the case of YL v Birmingham City Council in 2007, a loophole opened up which meant that care home services provided by private and third sector organisations under a contract with the local authority were not considered to fall within the definition of public function under the Human Rights Act. This decision, that private and third sector care home providers were not directly bound by the Human Rights Act, meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect or undignified treatment. Though the public body commissioning services remained bound by the Human Rights Act, this was of little practical value to the individual on the receiving end of poor or abusive treatment.
Following a sustained campaign the then-Labour Government, with cross-party support, accepted that the loophole created by the YL decision needed to be closed. Section 145 was included in the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. The operative words are “provided or arranged”. If the noble Earl is responding to this debate, he will no doubt remember giving his support to the amendment from the opposition Front Bench.
Age UK and other organisations are concerned, however, that the Bill risks returning the situation in England and Wales to that at the time of the YL decision. Section 145 of the Health and Social Care Act refers specifically to those placed in residential care under Sections 21(1)(a) and 26 of the National Assistance Act 1948. However, it is expected that these sections will now be repealed under Clause 107, meaning that Section 145 will no longer have anything to bite on. This amendment seeks clarification from the Government as to how they propose to deal with this and an assurance that there will be no regression in human rights protection.
However, this is not the only point. The organisations supporting this amendment have long been concerned that Section 145 of the Health and Social Care Act does not cover all care service users or even all residential care service users. Rather, as I have said, it protects only people placed in residential care under the National Assistance Act 1948. Having accepted the argument that primary legislation was required to clarify that Parliament intended the Human Rights Act to extend to residential care services provided by private and third sector organisations under a contract with a local authority, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.
The Government’s view, as stated in a note submitted to the Joint Committee on the draft Care and Support Bill, is that all providers of publicly arranged care and support services,
“including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not to act in a way that is incompatible with a Convention right”.
The Joint Committee acknowledged that this is the Government's position but concluded that,
“as a result of the decision in the YL case, statutory provision is required to ensure this”.
This must surely be right. The words,
“should consider themselves to be bound”,
are not enough. It needs to be a matter of law, not just of honour. I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just consider themselves bound. However, the House of Lords said in YL that they were not covered and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation.
The Government consider that there are dangers in doing this as it is felt that it would risk creating doubt about the interpretation of the Human Rights Act in other sectors. They stated in their note to the Joint Committee:
“Each time specific provision is made with respect to a particular type of body, we weaken the applicability of”,
the existing provision,
“and raise doubts about all those bodies that have not been specified explicitly in the legislation”.
Against this, it needs to be said that the legal situation following YL is already one of significant legal ambiguity, which is unsatisfactory for both service providers and the users of public services. It forces service users to litigate on a case-by-case basis to seek clarification.
The proposed amendment would bring the necessary legal clarity by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act. Without the direct, positive obligation to protect an individual’s human rights conferred by Section 6, human rights abuses of care service users are a frequent occurrence in private and voluntary sector provision. That is something which other noble Lords have highlighted and which is also highlighted by a succession of inquiries and reports such as the EHRC’s inquiry into home care, which uncovered serious and systemic threats to the basic human rights of those receiving care services.
This amendment also seeks to include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—the so-called self-funders—and who therefore currently lack the full protection of the Human Rights Act. To date it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. The local authority’s duties to arrange care are subject to that Act, even though the provider might not be.
However, the changes to the system for arranging care to be introduced by the Bill weaken the protection. The Bill introduces a single system for arranging care, whether it takes place in a residential setting or the recipient’s own home. Under these proposals, where people are deemed eligible for care but are found after means testing to be responsible for paying part or all of the cost of that care, they will be able to request that the local authority arranges their care but may have to pay it to do so. This new system is likely to reduce the coverage of the Human Rights Act because people who are entitled to local authority care in their own home but have to pay for it will no longer be automatically protected by the Act unless they request that the local authority arranges their care. Many will not make such a request, either because they will not be able to afford to pay for having the local authority arrange their care on top of the cost of the care itself, or because they will simply not be able to cope with the bureaucratic hassle.
The Joint Committee on the draft Care and Support Bill recommended:
“The draft Bill should be amended to ensure that private and third sector providers of care services regulated by public authorities are deemed to be performing public functions within the meaning of section 6(3)(b) of the Human Rights Act 1998”.
The amendment that I bring to the Committee today follows this approach and, if accepted, would provide equal protection to all users of regulated social care, regardless of where that care is provided and who pays for it. The Government believe, as the notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority even if it is self-funded. The Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, the committee made the point that this does not address the situation of self-funders who arrange their own care and support. It said:
“The Government will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act, solely because there is no public sector involvement in arranging or paying for their care”.
There are those who argue, as their Lordships did in YL, that the right approach for protecting human rights is not an extension of the Human Rights Act. An alternative, often suggested, is that regulation can be better used to target specific issues. The CQC is under a duty to have due regard to the need to protect the human rights of those using care services in performing its functions, which include inspecting all care homes and registered home care providers. It is argued that this gives self-funders human rights protection, but without a credible prospect of litigation against the care provider itself, there is reduced pressure on it to respect and safeguard the human rights of service users.
I fully accept that bringing all regulated social care services within the scope of Section 6 of the Human Rights Act will not alone solve the problems of undignified care and human rights abuses in care settings. Improved regulation, additional safeguarding legislation and better training must also play their part. However, the evidence continues to mount that without direct application of the Human Rights Act and the proactive approach to promoting and protecting rights that it demands, abuse, neglect and undignified treatment are commonplace occurrences. The status quo is not acceptable. The proposed amendment offers a simple, effective and lasting solution to this long-standing problem. The Human Rights Act can provide an essential safety net for social care recipients who find themselves in highly vulnerable situations. The Government must not deny them this protection.
Care Bill [HL]
Lord Low of Dalston Excerpts(10 years, 11 months ago)
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Lord Low of Dalston
Lord Low of Dalston
My Lords, in moving Amendment 88M, I will speak also to Amendment 92ZZN, both of which are in my name. These amendments would ensure that regulations specify in what circumstances a specially trained person must carry out an assessment or reassessment. A number of groups of disabled people may need a specialist assessment. For a deafblind person, for example, the ability to access a specialist assessment carried out by someone who understands the impact of deafblindness is a critical first step in the process of getting adequate and appropriate care and support. Assessors who do not have these specialist skills—for example, a generic assessor who assesses older people or a single sensory assessor who knows about visual impairment but not about deafness and blindness and how they interact—often offer deafblind people inappropriate mainstream or single-sensory services which are inaccessible and do not meet their needs.
Similarly, community care assessors can easily misunderstand the needs of someone on the autistic spectrum if they do not have experience and knowledge of how to communicate with someone with autism, or of the impact of the condition of autism on someone’s day-to-day life. People with autism can lack insight into their own condition and may struggle to define their needs. For example, if a person with autism is asked, “Are you able to wash yourself on your own?” they may reply, “Yes”, but omit to mention that this is with verbal prompting at every stage. I hesitate to venture on to this ground with the noble Baroness, Lady Browning, in the Chamber. Perhaps she will intervene in the debate later to supplement or, indeed, possibly correct what I am saying. However, what I have said so far is a fair reflection of the situation as it has been explained to me.
In addition, some people with autism may be non-verbal or have limited capacity to communicate or take part in the process unless substantial adjustments are made. People with profound and multiple learning difficulties and people who display challenging behaviour are two further groups where it is vital that they have a specialist assessment undertaken by an expert. People with PMLD do not use formal communication such as words, signs or symbols and may rely on others to speak up for their needs. Staff carrying out the assessments will need to have skills to ensure that people with PMLD can be meaningfully involved in the assessment process and have the opportunity to influence decisions made about their lives. It is also important that people with PMLD have advocates who are trained in non-instructed advocacy techniques.
Councils in England and Wales have to follow statutory guidance on how to provide care services for deafblind people. This guidance, Social Care for Deafblind Children and Adults, requires local authorities, when assessing the needs of a deafblind person, to ensure that an assessment is,
“carried out by a specifically trained person or team, equipped to assess the needs of a deafblind person—in particular to assess their need for one-to-one human contact, assistive technology and rehabilitation”.
In the five years following the introduction of the Social Care for Deafblind Children and Adults guidance in 2001, we saw the number of deafblind people provided with appropriate specialist support increase by 60%, which says a lot about the importance and value of specialist assessments of the kind I am talking about. The RNIB has obtained figures from the National Adult Social Care Intelligence Service showing that the numbers of blind and partially sighted people in receipt of local authority-funded care and support dropped by 35% between 2005-06 and 2011-12. This compared with a drop of only 16% for all adults with care needs. This is worrying and could indicate that generic needs assessments inadequately capture the needs of blind and partially sighted people and reduce their chances of being judged eligible for social care.
Earl Howe
I shall do my best to answer my noble friend in a moment or two, but I am aware that I did not answer a specific question raised by the noble Lord, Lord Low, as to why we changed the wording in Clause 12(1)(c) of the draft Bill. We widened the scope of the powers following consultation—for example, to add a power to specify when an expert must be consulted —and in widening the powers the wording was slightly amended. We are happy to look at this again in order to make sure that it continues to meet the policy intention. In answer to my noble friend Lady Barker, I would refer her to Clause 27(1)(b), which refers to the right of an individual to request a review.
Lord Low of Dalston
My Lords, I am grateful to all those who have spoken in support of these amendments. I am also grateful to the noble Earl for his response. I thought we were going to be in the position where we had to say that we welcomed his support for our principle but we were disappointed that he was not willing to review the legislation to make sure that it put the principle into effect on the same basis as our amendment seeks to achieve. However, lo and behold, the noble Earl, not uncharacteristically, has come more than half way to meet us by saying that he is willing to look at the Bill again just to make sure that the policy intent, which he shares with us, is carried into effect. I welcome that very much. If it would assist the achievement of a consensus on this for us to meet, I would welcome that. I am very conscious of the calls on the Minister’s time as a Bill such as this goes through the House, so it may be that a meeting with officials would suffice. If further dialogue with the department would help to establish that we were fully on the same page on all this, I would welcome that very much. However, for now, with the very full assurances that the Minister has given us, I beg leave to withdraw the amendment.
Baroness Grey-Thompson
My Lords, Amendment 88Q relates to the eligibility for social care. This is a probing amendment in order for the Committee to debate the most critical area of social care reform for working-age disabled people—that is, whether they are eligible to receive the care and support that they need to lead independent lives.
The Government’s regulations have now confirmed that the Care Bill will be nothing more than an unachievable aspiration for more than 100,000 working-age disabled people and more than 150,000 older people who have significant care needs but will not be eligible for support. It is not my intention to debate the nuances of the regulations that have been published in draft, and the Minister would, rightly, tell me that this is not the time or the place to do so. However, it is my intention to focus on the policy principle concerning who should be eligible for social care and support. I also thank the Minister in another place for taking the time to meet me yesterday to discuss my amendment.
The difference that good-quality social care can make cannot be underestimated. It is the difference between being isolated, living locked up and staring at the same four walls or being set on the path to living a full and independent life. The recent Time to Invest in Care publication described the situation faced by David, a 23 year-old man with autism and schizophrenia who currently lives with his parents. David needs support to engage in activities and look for suitable jobs. He needs guidance to gain a better understanding of social rules and to develop his awareness of dangers in the community. He also has difficulty in understanding boundaries in regard to friendships. As a result of receiving the right social care and support, David has a volunteering job and is now working towards moving into supported living and leading an independent life. This is the difference that the right social care support can make.
However, under the current eligibility system David has been assessed as having only moderate care needs. This means that, under the eligibility regulations set out alongside the Care Bill, David would not be entitled to support and his future would therefore be far less positive. Essentially, the Government’s regulations mean that David should not receive this formal social care support.
That brings me to the policy intention of the regulations. I very much welcome the pause in the proceedings of the Care Bill in this House so that time has been allowed for us to look over the regulations that have now been published in draft. I have read them with interest and there is much in the direction of them that is to be welcomed. They represent a real improvement on the current system. Particularly positive is the focus on well-being and, specifically, the inclusion of shopping and managing household finances in the definition of basic household activities. This appears to be a very progressive step which joins up the regulations with the very first clause of the Bill, which has been widely praised, and I congratulate the Government on that. It is also a very brave and positive step to end the postcode lottery in care provision.
However, I have very real concerns about the Government’s intention—as stated by the Minister in another place in his foreword to the draft regulations—that in terms of practical outcome the regulations will be equivalent to “substantial” under the current system. This will be devastating news to the hundreds of thousands of disabled and older people with significant care needs who will be excluded from receiving formal social care.
The Minister is aware that historic underfunding of the social care system, the pressures of an ageing population and a 33% reduction in local council budgets by 2014-15 have led to many local authorities raising the threshold at which disabled and older people become eligible. In 2005, 50% of local authorities set their eligibility criteria at “moderate”. By 2012, 84% had set the eligibility criteria at the higher level of “substantial” needs. The result is that since 2008 90,000 people have fallen out of the care system.
The excellent report, The Other Care Crisis, illustrates the impact that this has had. Four in 10 disabled people who receive social care support say that it does not meet their basic needs, such as washing, dressing and getting out of the house—all things that we take for granted. The Care Bill will not resolve this crisis in care if the regulations are set at the level currently proposed. In fact, by setting a national minimum threshold at a level which maintains this crisis, the Government appear to be reducing their ambition for their social care reforms.
One point which has not been picked up is that the Government also appear to be reducing their ambition for the cap on care costs. While it is a welcome and important measure to attempt to cap the catastrophic costs of care that some people face, particularly in their old age, the Government have made it clear that the cap will only be triggered once an individual has been deemed eligible for care. Setting the bar for eligibility too high effectively means that there will be hundreds of thousands of people who think that they will not have to sell their homes to pay for care in their old age, yet will not be eligible for the cap itself. They will still have to pay for the cost of their care, even well above the £72,000 threshold, unless they are deemed eligible by their local authority.
For working-age disabled people the cap on care costs is irrelevant. The recent joint parliamentary inquiry, co-chaired by my noble friend Lady Campbell of Surbiton, highlighted the fact that the introduction of the cap was never designed to answer the care crisis for disabled people under 65. The inquiry was clear that the most crucial aspect of reform for working-age disabled people is where the eligibility for care is set. For them, this is the difference between living an independent life and spiralling into crisis.
I also have very real concerns that those disabled people who are set to lose out as a result of the Government’s welfare reforms will be the same people who will lose out on social care. It is highly likely that an individual who has significant care needs, but who falls just short of the current threshold, will be one of the half a million disabled people who will not get the personal independence payment under the new system. This means that not only will the social care that enables them to live independent lives be beyond their reach, but their financial independence will also be threatened further.
It appears to me that there is a clear group of disabled people whom the Government deem not quite disabled enough to receive support. Providing them with just enough support to remain independent will prevent them spiralling into crisis, costing local authorities much more money in crisis emergency care. I also believe that there is a clear economic argument to be made here. Economic modelling, carried out by Deloitte and published in the Ending the Other Care Crisis report, found that an investment of £1.2 billion in a lower eligibility threshold, equivalent to the current “moderate” level, would lead to substantial returns across government. This would include a £70 million saving to central government through increased taxes and reduced welfare spending. There would also be a £570 million saving to the NHS and local government through the avoidance of expensive crisis care.
The Government made a very welcome investment of an additional £2 billion at the recent spending review. I urge the Minister to use this money to invest in a lower national eligibility threshold, not just to ensure that his ambition for a care-based system on well-being becomes a reality, but for the savings it could generate as well.
In conclusion, as Members from across the House have repeatedly made clear, the Care Bill is a very good piece of legislation, and is welcome. However, we must make sure that disabled and older people who have significant care needs do not fall out of the social care system. If the eligibility threshold continues to be set at the level the Government have proposed, hundreds of thousands of disabled and older people will be shut out of the care system. There will be real concerns that the Government’s admirable focus on well-being will be far from reality for these people. I beg to move.
Lord Low of Dalston
My Lords, I am glad to support Amendment 88Q, put forward by the noble Baroness, Lady Grey-Thompson. As she has explained, the amendment seeks to ensure that the national eligibility threshold, a welcome feature of the Bill, is set at a level which will not exclude this group of more than 100,000 disabled people with significant needs from the social care system.
I would like to focus particularly on the role of the eligibility threshold in creating a truly preventive care system. While I welcome the explicit duty on local authorities actively to take steps to prevent delay or reduce the need for care and support, I fear that the regulations published last week on the national eligibility threshold will impede the realisation of this vision. In confirming their intention to set the threshold at a level equivalent to “substantial” under the current criteria for fair access to services, the Government would exclude more than 100,000 disabled people with moderate care needs from the care system. These are people who need support to get out of bed in the morning, wash, eat, get out of the house and participate in the community—the most basic of tasks that you need to be able to do in order to live a fulfilling life.
Moreover, denying disabled people with moderate needs the care and support they need is a false economy. If their needs are not met in the care system there is a real risk that they will escalate to a point where they have to be dealt with further down the line once they reach crisis point. This does not come cheap. It could lead to longer hospital stays, frequent readmissions, even the need for residential support, not to mention the lost tax revenue resulting from disabled people having to give up work as a result of losing social care support. This happens in one in three cases of working-age disabled people who need care.
Take, for example, the case of Elizabeth, of which I have been made aware. She used to have seven hours of key worker support a week to help with managing her bills and shopping. Following a letter from her council she was told, with no consideration of the impact it would have on her independence, that her hours would be reduced to three per week. As a consequence of losing this support she fell into a crisis. As she said, “I did have a job—I was working with disabled people—but I left because I couldn’t cope. I thought it wasn’t fair on the clients. I was going through a bad time, overdosing a lot”.
This case illustrates how only a small amount of timely support can pay real dividends. Support with shopping and managing her bills helped Elizabeth maintain an independent life. However, as a consequence of losing her support she was left in crisis, resulting in her making several suicide attempts and becoming reliant on more expensive medical services.
Under the current draft regulations Elizabeth would be shut out of the care system. I have real fears that cases such as hers will be replicated up and down the country. Indeed, despite the Government’s supportive words about prevention I am concerned that they are effectively regulating for prevention to be taken out of the care system. The consultation document published last week on the draft minimum eligibility threshold states that for those people who are not eligible for care— namely, the 100,000 disabled people with moderate care needs—local authorities will make available universal support, including information, advice and preventive services.
However, this implies that coverage of such services is comprehensive, consistent and of adequate quality when we know that this is not the case. The reality is that many such services have already been axed or are at risk of closure. Indeed, research by the Red Cross has found that nearly two-thirds—64%—of councillors said that their local authority had cut or frozen funding for prevention and lower level social care since the last local elections. This means that universal services will simply not have the capacity to provide the adequate preventive support that the Government intend. People who are not eligible for care will continue to face a postcode lottery of support and will be allowed to fall through the gap between the care system and universal services.
I end by emphasising that setting eligibility at a lower level is the essence of prevention. We cannot have a system where you have to reach crisis point before you can get the support you need. Early intervention and preventive support can also have significant financial benefits. Research undertaken by Deloitte on behalf of disability charities found that investing in people with lower levels of need provides a net positive return of at least 30% to the Government. I therefore hope that the Government will be prepared to take these points on board and ensure that the regulations on eligibility underpin rather than undermine the vision of a truly preventive care system, glimpsed in Clause 2 but, sadly, not yet fully followed through in later clauses.
Lord Lipsey
That could arise, I suppose, but it has not arisen in this case. I am not even sure—it is very difficult with these cases, and I do not know if it is even known—whether the man I am referring to has attempted to find that way around it. This lady gets distressed at the mere mention of financial affairs, so it is not surprising that he is ducking away from that. As the noble Baroness says, there could be capacity issues. In certain circumstances, clearly, there could be a court decision that she no longer has capacity to exercise discretion, but that is a long and difficult route to go down in the situation of this poor old man and his poor wife. That is the sort of situation that I am trying to avoid. I am not trying to open the door so that everybody can get away with claiming everything. I am simply saying that if people have inadvertently misled the local authority, the authority should not go after them in the courts to get its money back. It seems a moderate proposal, and I hope that the Minister will be able to respond positively to it.
Lord Low of Dalston
I shall speak to Amendments 89BA and 92ZZM. I very much welcomed the comments of the Minister at Second Reading, when he stated that the Government,
“intend to use regulations to ensure that services ... currently … provided free, including … minor aids or adaptations, remain provided free of charge”.—[Official Report, 21/5/13; col. 826.]
That seems only right, since minor aids and adaptations are qualifying services under the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003.
The Government do not want to see local authorities charging for services that they are not permitted to charge for today. Clauses 2(3)(b) and 14(6) hint at this, explaining that regulations may prohibit local authorities from charging for particular types of support. However, the Bill should be explicit about what local authorities are prohibited from charging for.
I shall take the amendments in reverse order. Amendment 92ZZM relates specifically to personal budgets and would ensure that anyone needing care and support and requiring equipment or adaptations costing under £1,000 would not be financially assessed as part of a personal budget, which would effectively impose a charge for those items. In considering the amendment, will the Minister clarify how equipment and adaptations will be provided for in personal budgets? Will he ensure that regulations are unambiguously clear on the need for equipment and adaptations to remain free and for there to be no variations at a local level? The College of Occupational Therapists has some concerns about this.
I know that the Minister understands how important these provisions are to ensure effective preventive services that reduce both the demands on care services and the cost to local councils. In many instances, occupational therapists assist those requiring care and support by recommending the provision of equipment, minor adaptations and assistive technology, often resulting in recommendations, disabled facilities grants for safe management of progressive conditions and the moving and handling of people.
Equipment and adaptations are critically important, as they reduce the need for escalating care, protecting the individual and saving the resources of cash-strapped local authorities. Any reference to the provision of equipment and adaptations is notably absent from the legislation. However, these aids are critical for many people, and it is important that the Government are clear about how equipment and adaptations will be treated under the Bill. I hope that the Minister will agree not only that they should remain freely available but that they should not attract a charge by the back door when made the subject of a personal budget.
Amendment 89BA is a probing amendment to seek an assurance from the Minister that the provision in the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003, preventing local authorities charging for minor aids and adaptations under £1,000, will be maintained and to ask whether the £1,000 threshold, set 10 years ago, will be kept up to date.
Baroness Barker
My Lords, I support all the amendments in this group. On these Benches one of our great hopes for a national system of criteria is that it will lessen the frequency with which people in different parts of the country are wrongly charged for services that should be free. It has always been the case that older people, and carers in particular, can find themselves being charged by a local authority for things that are in fact free under various different pieces of legislation, notably the Community Care (Delayed Discharges etc) Act.
All of these amendments have things to commend them. I will start in reverse order, with the amendment of the noble Lord, Lord Lipsey. He has hit on something that is a bigger issue than perhaps has been realised yet. When we were debating the pension credit legislation in this House, the noble Baroness, Lady Hollis, talked about the fact that she had taken over the affairs of an elderly relative. She was probably the one person in the whole of Britain who at that time knew exactly what the regulations were. Yet it was only after the person died that she discovered that they had a little account about which she had known absolutely nothing. Why? Because many older people put money aside to cover their funeral. That is the truth. It is something that is very important to them. They probably do not tell people about it. I am sure that they also have other reasons, but that is a very common one. It is not uncommon for relatives to discover such accounts, although they are not vast amounts of money. The noble Lord, Lord Lipsey, is absolutely right that if, in a circumstance like that, somebody was deemed to have transgressed the law, it would be unfair and unjust.
I also add support to Amendment 89BA, an amendment of the noble Lord, Lord Low of Dalston. I was lucky to serve with the noble Lord, Lord Best, last year on an inquiry into the availability of aids and adaptations for older people who need help to remain in their own homes. We discovered extraordinary variations across the country and heartrending stories of elderly ladies having to carry their very elderly husbands up and down flights of stairs on their back, in a way that was simply unsustainable.
I commend to noble Lords the policy that was adopted by the local authority in Hull. It occurred to officials one day that, truth be known, nobody really wants a ramp outside their door. So they abandoned their assessment procedure; they stopped sending social workers out to discover whether or not this was necessary. They saved a lot of money that went instead into direct services. That is a commendable approach, and one that probably saved the city of Hull a lot of money in immediate and direct costs. Would that that spirit could go into the implementation of this Bill.
Care Bill [HL]
Lord Low of Dalston Excerpts(10 years, 11 months ago)
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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.
Lord Low of Dalston
“( ) 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,”
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.
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.
Care Bill [HL]
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Lord Rix
My Lords, I wish to speak to Amendment 79D, which focuses on preventing adults at risk suffering abuse or neglect. I welcome the focus in Clause 1 on promoting well-being and the breadth of that definition, which includes protecting people from abuse and neglect. In addition, Clause 2 sets out an important duty whereby a local authority must take steps and provide services which contribute to preventing needs for care and support. However, this crucial clause on prevention makes no reference to abuse and neglect, and my amendment seeks to make this explicit.
Later in the Bill, in the safeguarding section, there is a focus on protecting people once that abuse or neglect is suspected. However, it would be hugely beneficial if local authorities and agencies were obliged and guided to prevent abuse and neglect taking place in the first instance.
Let me give you an example. Decisions were taken to send people with a learning disability and challenging behaviour far away from their homes to Winterbourne View, where they suffered the most horrific abuse. This could clearly have been prevented by local authorities and other agencies if they had taken the right decisions at the outset.
Prevention is recognised also in terms of disability-related harassment, and indeed the Equality and Human Rights Commission highlighted this in its report, Hidden in Plain Sight. It recommended that local authorities and housing providers work from the outset to reduce disability-related harassment by including safety and security measures in the design of social housing estates and facilities. In addition to good decision- making at the top, it is also important to consider how we can empower individuals to understand what abuse is and how they can protect themselves from it. This might be through providing information, advice and advocacy. Safeguarding procedures are vital in order to protect people suspected of abuse and I have tabled a number of amendments on this area under Clause 41. However, before safeguarding comes a strong commitment to preventing abuse occurring in the first place. I look forward to the Minister’s view on this matter.
Lord Low of Dalston
My Lords, I was waiting to see whether the noble Lord, Lord Hunt, was going to speak to his amendments in this group—
Lord Hunt of Kings Heath
Would the noble Lord find it helpful if I went next?
Lord Hunt of Kings Heath
Thank you very much. My Lords, I think this is a very interesting group of amendments and the noble Baroness, Lady Greengross, in her Amendments 78C and 79K—to which I have added my name—and her other amendments makes some very important points about the need for a preventive approach, including its health dimension. My noble friend Lord Touhig has added his powerful voice to it.
In Amendments 79K and 80A there is a real issue here about the national minimum eligibility threshold. It would provide some certainty for some adults about whether their care needs will be met, but we know there will be many people whose needs remain just below the level at which local authorities will at a minimum need to meet through the national eligibility criteria. We know the Ending the Other Care Crisis report produced by Scope with four other charities estimates that 105,000 working-aged disabled adults will in fact continue to rely on universal services. This places greater responsibility on local authorities to put in place the necessary services to help prevent, delay or reduce care needs.
There is an argument for framing Clause 2 more positively to encompass the many diverse forms of preventive support that local authorities could put in place to prevent deterioration in the well-being of adults in their area. We want local authorities to be more ambitious and to think about prevention more positively. While understanding the pressures that undoubtedly local authorities will be under, these amendments would give a very powerful voice to the need to go down the preventive route.
My Amendment 79A, to which the noble Lord, Lord Low, has added his name, continues the same theme on placing a general duty on local authorities to prevent, delay or reduce the need for care and support. We know that in Clause 2 there is a requirement on local authorities to look at how they can make the best use of community facilities to prevent, delay and reduce needs for care and support. That is very welcome indeed but the question is: to what extent are local authorities geared to put that into practice? Hence I have tabled this amendment. I think we need give a push to local authorities to take this seriously. I hope the noble Earl will be sympathetic to agreeing to some form of amendment which would reflect this in Clause 2.
The noble Lord, Lord Low, has a number of other amendments in this area which I would very much wish to support, although I have not lent my name to them. They are very well framed and important. Coming back to the issue we discussed in the debate just before the dinner break, this legislation may well stay on the statute book for many years to come, so it is really important to get it right. The emphasis that the noble Lords, Lord Low and Lord Rix, have given to these points bears careful consideration, so I am very happy to support them.
Lord Low of Dalston
I thank the noble Lord for his anticipatory support of my amendments, and perhaps I may return the compliment by saying that my name is on five amendments in this group and I have the most copious set of notes I have ever had in any debate. I hope that noble Lords will bear with me at this time of night, but with five amendments, there is quite a bit to go through.
As the noble Lord, Lord Hunt, said, I have put my name to his Amendment 79A and to that tabled by the noble Baroness, Lady Greengross, and in the names of the noble Lords, Lord Hunt and Lord Touhig, Amendment 79K. There are the same group of Peers on Amendment 80A, but Amendments 80C and 87F are in my name only, so I shall obviously spend a bit more time on them.
Before that, I shall say a few words on Amendments 79A, 79K and 80A. Clause 2 would be stronger if local authorities were also placed under a general duty to take prevention into account in exercising any of their functions under Part 1, not just those relating to direct provision of care. Amendment 79A would ensure that local authorities act to “prevent, delay or reduce” individual care needs across every one of their functions. Amendment 79K would ensure that the prevention duty focuses on what a local authority must do to prevent a deterioration in well-being, in addition to preventing, delaying or reducing the need for care and support. Amendment 80A would oblige authorities to have regard not just to the importance of identifying adults and carers with needs for care and support and the services available to meet those needs, but,
“the steps it could take to improve and enhance the provision of services, facilities or resources in its area”.
The idea would be to ensure that local authorities actively consider what more they could do to prevent needs for care and support above and beyond identifying existing services, facilities and resources in the authority’s area.
The Bill currently stops short of that, which is bad news for the hundreds of thousands of older and disabled people who are not deemed eligible for adult care and support. It is also bad news for the Government’s aspiration to rebalance the system away from crisis interventions in a more preventive direction. The amendments suggest a more strategic approach which, by putting in place services at the community level, not just directed at individual care, could ensure that those who did not reach the eligibility threshold were, nevertheless, not bereft of support entirely. In other words, they provide a means of enabling available resources to go further by deploying them strategically in aid of prevention.
The kind of preventive services I am thinking of might be of six types. First, there are enabling services, preventing harm before it occurs—as you might say, working well away from the cliff edge. Secondly, there are services that prevent care needs from developing: for example, reablement or specialist rehabilitation to help an adult with sensory loss or a falls prevention service for older people discharged from hospital. Thirdly, there are prompt interventions, detecting and responding to early signs of difficulty, forestalling problems which could lead to more serious consequences —as you might say, working just over the edge of the cliff. Fourthly, there are services that help to delay care needs once they have started to emerge, for example, home adaptations for those no longer independently mobile or befriending services for the recently bereaved, perhaps funded by the local authority but delivered by a local Age UK. Fifthly, there are services that reduce care needs once they have started to intensify, for example, a stroke rehabilitation service provided alongside the NHS to help adults to regain control over key activities of daily living.
Sixthly and finally, there are acute interventions reducing the impact of a situation spiralling down—working well down the cliff, you might say. Wales furnishes an example in the Social Services and Well-being (Wales) Bill, which is currently before the Welsh Assembly. I hope the Minister might be willing to take a look at that. The corresponding section of that Bill, Section 6(4), explicitly states that a local authority must, in the exercise of its other functions, have regard to this preventive services clause in the Bill.
Baroness Anelay of St Johns
My Lords, I would be most grateful if the noble Lord, Lord Low, would be very kind and resume his seat for one moment. I excuse myself for being out of breath. I have been listening very carefully to the noble Lord, Lord Low, outside the Chamber, and it is my duty, as Government Chief Whip, to remind the Committee of the rules of debate in this place, rules which I know the noble Lord would never wish to transgress. Our Companion makes it clear that the House has resolved that speeches in this House should be shorter. Long speeches can create boredom and tend to kill debate. I am sure that is not the case with the noble Lord, Lord Low, but he has been speaking for more than15 minutes and is now in the 16th minute. The Companion makes it clear that speakers are expected to keep within 15 minutes. Might I therefore suggest that the noble Lord winds up his remarks at this stage? Representations have been made from all sides of the House, particularly from the Front Benches, the Chief Whips and the Convenor, to say that they wish that the Whips would intervene more often to give guidance on this matter. It has also been discussed at the Procedure Committee and I have therefore done so at the earliest opportunity. I am sure that the noble Lord, Lord Low, will be able to resume his argument but conclude fairly swiftly. Over to the noble Lord.
Lord Low of Dalston
I apologise to the Members of the Committee, who will understand my difficulty in that a considerable number of amendments to which I put my name have been grouped together. Five amendments in this group had my name and I had a little bit to say about all of them which I hope the Committee will have found useful. It is not my wish to try the patience of the Committee in any way so I will wind up my remarks immediately.
I echo the point made by the noble Lord, Lord Touhig, that greater concentration on prevention could actually save resources. In summary, prevention—or early intervention—matters: it works. The Bill needs to bring the Government’s White Paper vision of a genuinely preventive care system to life, but doing so relies on local authorities assessing how needs can be reduced or prevented from getting worse.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, it is always good when there is an outbreak of consensus across—