Care Bill [HL]

Lord Sharkey Excerpts

Tuesday 16th July 2013 Lords Chamber

[Lord Dubs]

My Lords, I shall speak to two amendments in this group, both of them amendments to Clause 25 —Amendments 92ZZH and 92ZZJ. I must say that I do struggle with all these initials; they make it hard to spot which amendment is which—but it may be that there is no better way of doing it.

Amendment 92ZZH is about people who have fluctuating needs for support because their condition is not constant. A fluctuating condition is a chronic condition, physical or mental, of which a characteristic feature is a significant variation in the overall pattern of ill health and/or disability. There are many millions of people in the UK with fluctuating conditions. Those could include MS—I am an officer of the All-Party Group for Multiple Sclerosis—rheumatoid arthritis, HIV, Crohn’s disease and colitis, epilepsy and Parkinson’s disease; there may also be others. Those conditions cover a large number of people.

The problem is that when people have fluctuating conditions it will be much harder to plan ahead on the basis of the present drafting of Clause 25. There is not the flexibility to enable account to be taken of the ups and downs associated with fluctuating conditions. If the plan could take account of fluctuating conditions, individuals could be assured that they would get the level of care they needed, consistent with the fluctuations in their condition. By allowing for that, we can also prevent costly hospital admissions. That in itself is an important aim both for the well-being of the person concerned and, in terms of cost, for the health service.

For example, a snapshot survey of individuals showed that 30% of respondents with rheumatoid arthritis had been admitted to emergency care as a result of a flare-up of the disease in the past year—of which, of course, no account is taken by the Bill. The benefit of my suggestion is that it would make it possible to plan ahead for variations in care and support, in advance of those variations being required.

Amendment 92ZZJ is about the period over which care will be made available before the need is reviewed. The current wording of Clause 27 gives local authorities the power to,

“keep under review generally care and support plans”.

“Generally” is an all-purpose word which can mean anything. Local authorities are not required to specify when they expect such reviews to take place. Anyone who is subject to something “generally” lives in uncertainty, and what I would like to achieve with my amendment is some element of certainty.

The key benefit of the care and support planning process would be to allow a discussion between the local authority and the person concerned about the best way their care needs could be met. Then there could be an agreement between the local authority and the adult or carer. It is important for such an adult to be confident that their care will remain consistent until their circumstances change. Under my amendment they would not be subject to an early review if there was no need for it, but when things happened, that could be reflected in their care plan. The amendment would give that adult the confidence that their care would continue as agreed until the specified date, or until the adult himself or herself chose to request a review in line with Clause 27(1)(b). That may seem a small change but it would be important to the individuals affected.

[Lord Sharkey]

My Lords, I shall speak briefly to my Amendment 92ZZS. Its purpose is to ensure that the direct payment system works well. In particular, it would ensure that all parties to the decision to use direct payments fully understood the implications of that decision.

I raised this matter at Second Reading because I was concerned that some successful applicants for direct payments may underestimate the difficulties involved in administering those payments. I was concerned that there was no clarity about exactly how local authorities would make the decision about who was and was not a suitable recipient for direct payments. For example, it is likely that many in receipt of direct payments will want to employ people directly. Will they understand how very complicated it is to employ even one person? How will they find out? Exactly how will local authorities assess their ability to do this, and will people properly understand any contractual arrangements they may enter into? Who will help them understand? Exactly how will local authorities assess their likely abilities in this area?

I suggested at Second Reading that a way of dealing with this was to give local authorities an obligation for friendly oversight of the administration of direct payments for an initial period of six months or so. In his very thorough and helpful letter of 5 June to those who spoke at Second Reading, the Minister pointed out that Clauses 31 and 32 set out that, before a direct payment is made, the local authority must be satisfied that the adult or someone nominated on their behalf is capable of managing the direct payment. He felt that these and other provisions in Clause 4 should ensure that direct payments are used appropriately.

I am sure that these provisions will be very helpful, but they would be more helpful if the local authority had to explain to applicants on what basis their capability was being assessed and the exact criteria for assessment. It would be more helpful still if the explanation was in written form and followed by discussion with the applicant. That is what my Amendment 92ZZS would put in place. It simply requires the local authority to make known in writing and discuss with the applicant the criteria that it uses to satisfy itself that the adult is capable of managing a direct payment. This would have the effect of bringing about a proper discussion of the implications for the applicant of managing direct payments and provide a proper and informed basis for the local authority to make a judgment. I hope that it would also ensure that the criteria for judgment were clear, understandable, user-friendly and completely transparent. Making this simple change would greatly improve the chances of correctly matching direct payments with those who understand the implications and can effectively manage the system. I very much look forward to hearing the Minister’s thoughts on the matter.

[Baroness Wilkins]

My Lords, I speak to Amendment 92ZZSA, which stands in the name of the noble Baroness, Lady Campbell of Surbiton. The amendment seeks explicit clarification from the Government that nothing in the Bill lessens the strong duty on local authorities to offer direct payments to those requiring care and support services. A right to request direct payments is a welcome encouragement to those who would like to arrange their care and support with the autonomy that direct payments bring. However, it should not undermine the duty of local authorities to offer direct payments as enshrined in the Health and Social Care Act 2001 and regulations. It would be unhelpful to shift the onus on to individuals to know about and request direct payments and away from local authorities’ duty to offer them.

In general, case studies in this area show that where people already have a care package and then want to convert to direct payments, a battle is often involved. Care services recipients need a clear indication that direct payment is one of the support options available. The Bill requires local authorities to tell an adult which, if any, of the needs can be met by making direct payments. It is vital that local authorities understand that they must always provide information about direct payments. This information must include how to request one, the conditions, and advice and brokerage services.

Local authorities need to provide support to help the adult to manage direct payments. As the Bill stands, they can refuse a request if the adult has no help available to manage the payments. Could the Minister make the Bill’s intentions clear in this regard? It is important that the rights and duties enshrined in the original Act, which have proved so beneficial to many disabled people, are not, as it were, lost in translation, and some reassurance on this matter would be very welcome.