Care Bill [HL]

Lord Wigley Excerpts

Monday 22nd July 2013 Lords Chamber

I would welcome clarification from the Minister about the Government's intentions and that not only settings regulated by the CQC will be included. The regulations need to be clear. It is essential that councils are left in no doubt about which types of accommodation have a care element and which do not, otherwise this will become a new area for dispute. Some types of accommodation, such as a residential home, clearly have a care element but with others the picture is far less clear. For example, there is considerable diversity of definition about what constitutes domiciliary care as compared with supported living and what the differences are. This just indicates the sort of issues that need to be addressed if continuing disputes are to be avoided. These regulations provide an opportunity to end the needless consignment of vulnerable people and their families to limbo, avoiding the waste of time and resources caused by disputes and thereby give those who rely on social care and support more choice, control and independence in their lives.

[Lord Wigley]

I would like to put on record my support for the points made by the noble Baroness, Lady Campbell, and those just made by the noble Lord, Lord Low. I wish to speak to the two amendments in my name in this group; Amendments 92ZZAG and 107. These are probing amendments to try to get something on the record with regard to the way in which care issues covered by the Bill and which have cross-border implications between Wales and England will be handled in the future.

Although Clause 112 says that the Bill extends to England and Wales, the Bill is ostensibly to do with care provision in England only, which is why I have exercised a self-denying ordinance and not imposed my opinions on the House or the Committee in recent weeks—other than at Second Reading when I flagged up these matters, which I wish to pursue today.

There are two distinct issues although they can in some circumstances be linked. The first relates to the people who move between Wales and England and England and Wales and how differing care regimes in the respective countries will affect their entitlements. I am talking about people who move voluntarily and not those who may be placed by local authorities or a health authority. The second relates to the funds associated with this Bill and how they impact on the two respective countries, and to that extent the Bill certainly has implications for Wales, Scotland and Northern Ireland.

I first remind the Committee that the social care dimension is a wholly devolved subject, and the policy in Wales may be totally different from that in England. The National Assembly is now considering draft legislation which no doubt will lead in coming months to the evolution of a new statute in Wales. The Welsh Government have a commitment to a new system that is fair, affordable and sustainable within a Welsh context. The legislation being considered in Wales is likely to increase the number of services where people can claim a direct payment from local councils; introduce national eligibility criteria that may be different from those in England; create portable assessments within Wales that do not extend to England as I understand it, and establish a national adoption service and allow council officers greater powers in helping those suspected of being at risk.

In Wales there is a substantially greater proportion of older people—greater than any other country or region in the UK. I also maintain in that context that the GVA levels in Wales are in some areas 40% below the average levels of the UK. The financial profile against which any new policy is set will inevitably be different between Wales and England. They will also have to allow for the fact that disability levels are significantly higher in Wales. Wales has already set a cap of £50 a week on charges for home care. The Welsh Government have, wisely to my mind, waited to see the sums involved in England before deciding on the best policy for paying for care in Wales.

There has been pressure on the Welsh Government from Age Cymru and others pressing for a lower cap in Wales than in England and there has been talk of caps of £23,000 and £35,000, which is the figure recommended by Dilnot. There are serious questions about how the Care Bill in England may affect Wales and vice versa, both in terms of whether there is any full Barnett consequential accruing to Wales from the £1 billion cost of the package in England, and with regard to the entitlement of people who have moved informally—not by placement but informally—between the two countries. For example, what is the portability of assessments of need made in Wales for people who move to England and vice versa—not cross-border placements but those who move voluntarily?

To put it simply, what is the position of Mrs Jones who lives in Prestatyn and goes into residential care in Prestatyn? At the behest of her daughter who lives in Chester she moves to a residential home over the border to be closer to her grandchildren. Will the cap operational in Wales or in England be applicable? Likewise, what if Mrs Smith experiences exactly the same problem in the converse direction? Who will explain the situation and the implications of the situation to both Mrs Jones and Mrs Smith before they decide to move?

Incidentally, the definition of “ordinarily resident” in Clause 38(1) seems to be inadequate to deal with the situation of someone who may move from supported accommodation in one country to another as the location at which she or he lived prior to coming into supported accommodation might be totally irrelevant—for example, if they lived for a period with their daughter in, say, Dublin, Brussels or the Isle of Man.

There is then a question about the duty of the health research authorities covered by Clause 98 of co-operation between England and Wales. Clearly the duty of co-operation needs to be considered, not only in the context of the health authorities but in the general context of these amendments, but who will enforce that duty? What will be the fundamental long stop to ensure that Mrs Jones and Mrs Smith are not caught in the crossfire between the policies of two Governments?

I do not know whether any of the government amendments in this group have an implication for the question I am raising but I would be grateful if the Minister can address these issues so that between now and Report I can discuss them with colleagues in Cardiff to ensure that when the final legislation goes on to the statute book everyone will know exactly where they stand.

[Baroness Wilkins]

My Lords, I strongly support the amendments of the noble Baroness, Lady Campbell, and the noble Lord, Lord Low. The noble Baroness has been very keen in pursuing these issues for the past five years and her tenacity has been outstanding. I am sure we all recognise that. She has argued comprehensively and excellently for these amendments. We all know that there is huge stress in moving home and, if you are a person in need of care, that stress is beyond words. As the noble Baroness said, it is a monumental risk. I hope that the Committee will wholeheartedly support these amendments.

--- Later in debate ---

[Baroness Northover]

My Lords, adults with care and support needs may want to move home, just like anyone else, but co-ordination between local authorities can sometimes be variable and, as a result, we often hear that people are worried that they will face gaps in the care that they need. The Bill sets out to change that. Clauses 36 and 37 set out a new process to support people moving between areas in England with a guarantee that their needs will not go unmet during the transition.

I turn, first, to the amendments tabled by the noble Baroness, Lady Campbell, who has a long-standing interest in this issue. As the noble Baroness, Lady Wilkins, and the noble Lord, Lord Hunt, emphasised, the noble Baroness has fought on this issue for years and I thank her for her gratitude to the Government for taking action in this area, even if she has some residual concerns. I hope that I can reassure her and, should she wish to move, that she will be able to contemplate a move as feasible in a way that she never felt it was before.

Amendment 92ZZAB seeks to ensure that the adult remains informed during the process. It is important, as the noble Baroness, Lady Campbell, has made clear, that this is the case so that the adult can plan for their move. Clause 36(6) requires the second authority to carry out an assessment as soon as it has established the adult’s intention to move. This requires interaction with the adult from an early stage and thus provides the opportunity to inform them of progress. We intend to clarify this area in statutory guidance and I am sure that the noble Baroness will wish to feed into this.

Amendment 92ZZAC would require the second authority to have due regard to the care and support plan provided by the previous area and Amendments 92ZZAD and 92ZZAE seek to ensure that the focus is on securing equivalent outcomes as in that plan. I fully understand that the noble Baroness is not seeking equivalent services and that this is different from outcomes, a point emphasised also by the noble Lord, Lord Hunt. Of course, when a person moves it is possible that their needs for care and support may change; for example, if they move closer to their family. The noble Baroness is right to focus on outcomes and we recognise that in the Bill. For example, Clause 25(1)(d) would include all the matters identified by the person, including the outcomes they want to achieve. We very much sympathise with these points and indeed have already revised the provisions following consultation on the draft Bill. Clause 36(7) requires the second authority to have regard to the plan or plans provided.

A further change following consultation is the introduction of Clause 25(5), which requires that when preparing to meet an adult’s needs,

“the local authority must take all reasonable steps”,

to agree with the adult how it will do so. Together, these provisions allow adequate scope for the existing plan to be reflected, so far as is agreed and appropriate, in the way in which the second authority meets the person’s needs to achieve the outcomes that the noble Baroness speaks of. I hope that the noble Baroness, Lady Campbell, agrees that the changes we have introduced will ensure that the person will be fully involved in the development of their care and support plan, and as such, can ensure that this continues to meet the outcomes they want to achieve.

Amendment 92ZZADA, in the name of the noble Lord, Lord Hunt, proposes that we replicate Clause 36(10) for carers. I will explain why this is not required. Clause 36(10) has been inserted as a result of our proposals for funding reform, which we discussed earlier in Committee. It requires the second local authority to inform the person receiving care and support if the cost of their eligible needs is different from that provided by the first authority. This relates to the individual’s care account and it is right that the authority informs the person if the amount that counts towards their cap on care costs has changed. However, carers will not have a care account as they are not eligible for a cap on costs and there is therefore no need to require the second authority to inform them of any change in the cost of meeting their eligible needs.

Where a service user is moving to a new local authority in England and the carer is also intending to move with them, the continuity of care provisions will apply to the carer in the same way as they do to the service user. I hope that this reassures the noble Lord. Where the service user is not moving but the carer is moving home to another authority, these provisions will not apply. The carer is still providing care in the original authority and it will continue to be responsible for meeting their care needs.

Amendment 92ZZAF, in the name of the noble Baroness, Lady Campbell, would require the first authority to continue to meet any needs until it has satisfied itself that the second authority has met its duty in Clause 37(1). The noble Baroness explained why she felt this was important. The continuity duty in Clause 37(1) applies from the day of arrival in the new area. From that point, it is the new authority’s responsibility to meet the adult’s needs, and the first authority’s previous duties are discharged. There should not be a gap in these arrangements. In particular, the requirement on the second authority to assess the adult before they move is intended to ensure that the necessary preparation has been undertaken so that there is no delay. Therefore, this amendment should not be necessary. Moreover, there is a risk that such a provision could act as a disincentive on the second authority to meet its obligations in a timely manner, although I heard what the noble Baroness said in regard to that. We will develop statutory guidance to support local authorities in exercising these new duties. That guidance offers a further opportunity to clarify expectations and ensure that no gap occurs.

Amendments 92ZZAG and 107, in the name of the noble Lord, Lord Wigley, concern Schedule 1, which makes provision for cross-border residential placements. I thank the noble Lord for giving us the benefit of his knowledge of Wales and note his praiseworthy restraint with regard to English provisions, although I note that the noble Lord, Lord Hunt, did not share my view. Clearly, the noble Lord, Lord Wigley, has resolved the West Lothian question but I appreciate his offer to liaise with Welsh colleagues to ensure the greatest clarity. I will give him some further information that may be of assistance to him.

The Care Bill will make provision for cross-border residential care placements so that people can be placed in care homes in other parts of the United Kingdom. This will mean that if a local authority in England places someone in residential care in Northern Ireland, Scotland or Wales, that person will remain the responsibility of the English local authority. They will not acquire ordinary residence in their new location and will continue to benefit from the protection provided by the cap. For example, if people receiving domiciliary care move from England to Wales, or people in a care home move without being placed by their local authority, they will usually become ordinarily resident in the new area and the appropriate contribution they should make to the costs of their care will be determined by the arrangements in Wales. A person moving to another Administration and requiring domiciliary care will be reassessed under the system into which they are moving. The processes being proposed in England and Wales are different and we will work with colleagues in Wales to produce guidance to look at how continuity of care can work across borders.

Schedule 1 will end the untenable situation local authorities currently find themselves in when a person in their area who wishes to receive residential care in Wales, Scotland or Northern Ireland is unable to do so. The noble Lord’s amendments seek to delay commencement of Schedule 1 until a report is laid before Parliament outlining the issues connected with cross-border placements arising with the devolved Administrations. We believe that this would cause an unnecessary delay to enacting provisions that are long overdue.

However, we recognise the concerns about the practical challenges of cross-border working. I hope the noble Lord will be reassured that we are working with the devolved Administrations to create bespoke regulations to meet the diverse legislative and operational requirements of each Administration. The regulations will be subject to consultation and laid before Parliament. I expect the noble Lord to participate in those debates.

[Lord Wigley]

I do not want to delay proceedings. This is just a way of bringing focus on the issue. Can the Minister give any indication to the Committee as to whether the discussions and deliberations that have already taken place between her department and the National Assembly in Cardiff have gone well and that there is so far a meeting of minds, or are there issues over which there will be some clash? If there is a clash, how will it be resolved?

[Baroness Northover]

If need be, I will come back to the noble Lord with all the details because it is indeed a very complex area. There are a number of government amendments, as the noble Lord, Lord Hunt, pointed out, and these seek to address some of the issues that have arisen in trying to make sure that everything works as smoothly as possible. It would probably be most appropriate to write in detail to the noble Lord and for him to see and stress-test what is happening. I remind the noble Lord that these regulations will be subject to consultation and laid before Parliament.

I now move on to the government amendments that the noble Lord, Lord Hunt, referred to. Obviously, this is a complex area. Amendment 92ZZAFB is required to clarify the ordinary residence situation of a person who has an independent personal budget. The local authority where the person is ordinarily resident is responsible for preparing the person’s independent personal budget and keeping the care account. This amendment makes clear that if such a person is in residential care and moves to the area of a different local authority, they will be able to become ordinarily resident in that new area.