Care Bill [HL]

Lord Sharkey Excerpts

Tuesday 21st May 2013 Lords Chamber

[Lord Sharkey]

My Lords, it is a pleasure to follow the noble Baroness, Lady Donaghy. Like her, I very much welcome this Bill. It is a very good Bill and the Government are to be congratulated on bringing it forward, on responding constructively to the recommendations and observations in the Joint Committee’s excellent report on the draft Bill, and on incorporating the essence of the Dilnot report into the Bill. When it becomes law, the Bill will have the effect, among other things, of introducing certainty, stability and consistency into the provision of care. It will also create the conditions in which financial institutions can begin to write policies that will directly help in the pooling of risk, which is not the case at the moment.

The Bill deals with a very complicated subject and seeks to make fundamental changes to the current arrangements. Many of the critical components of this reform of the care system are to be left to secondary legislation and guidance. Although it is clear that many details will need to be and should be left to secondary legislation and guidance, I think that the Bill would benefit by addressing some of the key issues more directly in primary legislation.

The recent toing and froing over Section 75 of the NHS Act illustrates the point. There are some things to which the answer is not yes or no. There are things that the House may very well want to debate in a way that produces amendment. I suggest that the size of the various caps critical to this Bill are such things and would be better debated amendably than on a yes or no basis.

Dilnot noted in his report that setting the cap above £50,000,

“would not meet our criteria of fairness or sustainability”.

The proposed cap of £72,000 is greater than Dilnot’s £50,000, even allowing for inflation. I suspect that many Members will want a vigorous debate in Committee on where the trade-off between reach and affordability should lie. The same goes for the definition of eligibility in Clause 13, and for Clause 34(1), which will by regulation set out when an authority may agree to defer payment. All these things may be better discussed in the more flexible environment of primary legislation.

I will now comment on four more specific areas of the Bill. The first is communications, which is dealt with in Clause 4. The Dilnot report, which for me is a model of absolute clarity, has 10 recommendations. Two of these are about communications because Dilnot clearly views that issue as central to the success of the entire scheme. Recommendation 7 says:

“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”.

This is proactive and prospective information. Recommendation 8 says:

“The Government should develop a major new information and advice strategy to help when care needs arise”.

This is reactive and responsive information. The Bill addresses the second recommendation and not, I think, the first.

Clause 4 specifies in some detail what information must be provided by local authorities but it seems to be aimed, as Dilnot puts it, at situations “when care needs arise”. It does not seem to deal with Dilnot’s Recommendation 7, which asks for more general, wider and very much earlier awareness campaigns. Dilnot seems to be asking for a heavyweight, national publicity campaign aimed at the general population before need arises.

Furthermore, the Bill contains no provisions for defining the test for sufficiency in “sufficient” information as stipulated in Clause 4(3). It does not seem to include the requirement to provide information, for example, about how to appeal against a judgment of ineligibility. I assume that there is such a right of appeal, and a simple and quick mechanism for handling such appeals in the first instance, even though I could not spot it in the Bill.

There also appears to be no requirement in the Bill for local authorities to have a mechanism for measuring and reporting their success in providing information or the success of that information in achieving its objectives. I should be very interested in the Minister’s comments on general early-awareness campaigns; on the need to measure success in providing what the Bill calls sufficient information; and on the existence of an appeal mechanism at first instance.

The second area I wanted to speak about is eligibility. I have already said that I think that the criteria for eligibility should have been available before this debate. I also worry about a Section 75 problem in dealing with the criteria and secondary legislation. In particular, I wonder how local authorities are to be able to take a properly comprehensive view of who might be eligible. The Bill states in Clause 9:

“Where it appears to a local authority that an adult may have needs for care and support”,

and so on. That strikes me as a very passive and rather weak obligation. It does not specify any duty to be properly aware of such adults, merely to act if it appears to the authority that an adult may have such needs. We may need firmer language here. The Bill would surely benefit from obliging local authorities to take appropriate and proportionate steps to make sure that they are reasonably likely to know when an adult is in need of care and support.

The Bill is also silent on the time that a local authority may take between becoming aware that an adult may be in need, making an assessment, determining eligibility and providing the service. It is clear that we need national standards of service here. I assume that requirements will be written into guidance, but I would welcome the Minister’s assurance on that.

The third area that I want to address is the question of direct payments. The Joint Committee was quite right to propose that we should not be too restrictive about the use of direct payments, and I was glad that the Government agreed to that in their response and to see no unreasonable restrictions in the Bill. However, the problem is likely not to be abuse but accidental mismanagement and complications arising from it. It seems highly likely that some who ask for and are allowed direct payment may find the subsequent commissioning and managing of the services that they need stressful, complex and burdensome. It may be a very good idea if the local authorities have an obligation to provide friendly oversight of and help with the management of direct payment services, at least in the first months of their existence. It would be a great pity if the valuable ability of people to specify and obtain what they need was allowed to suffer from bureaucratic, management or legal difficulties due to inexperience, misunderstanding or contractual unsuitability.

The fourth and final area on which I should like to touch briefly is funding. As many other noble Lords have said, to make all that work, the funding needs to be sufficient. In particular, the Dilnot cap needs to be set at the optimum level to balance reach and affordability. We will want to examine the assertions made in the impact assessment carefully in Committee. I hope that the impact assessment’s calculations turn out to be accurate on examination and when we are in possession of all the details to be contained in secondary legislation.

I note, for example, that the Joint Committee states in Recommendation 5:

“The introduction of a capped cost scheme, which will result in many more people being assessed and entitled to a personal budget, is likely to lead to an increase in disputes and legal challenges. We are not confident that Ministers have yet fully thought through the implications for local authorities of these changes”.

Rather worryingly, there does not seem to be any financial provision for that in the impact assessment.

I end by repeating what I said at the beginning. Notwithstanding my four areas of concern and my feeling that the balance here between primary and secondary legislation is not quite right, I believe that this is a very good Bill. I believe that, with proper funding, it will lead to a clear and genuine improvement in the provision of care, and I congratulate the Government on introducing it.