Clause 14 - Power of local authority to charge

Care Bill [Lords] – in a Public Bill Committee am 4:30 pm ar 14 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 4:30, 14 Ionawr 2014

I beg to move amendment 38, in clause 14, page 14, line 9, at end insert

‘and in assessing the cost a local authority incurs, it must (unless either Condition 2 in section 18, or either Condition 2 or Condition 4 in section 20, is met) ignore the cost it incurs (directly or indirectly) in assessing that need under sections 9 or 10.’.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation, NATO Parliamentary Assembly (President)

With this it will be convenient to discuss the following:

Amendment 39, in clause 14, page 14, line 9, at end insert—

‘(4A) Where a local authority that meets an individual’s needs under sections 18 to 20 is satisfied that the individual’s means are insufficient for it to be reasonably practicable for the individual to pay the amount which would otherwise be charged, the authority shall not require the individual to pay more for it than it appears to them that is it reasonably practicable to be paid.’.

Amendment 98, in clause 14, page 14, line 29, at end add—

‘(9) A local authority should publish on its website the current cost that the local authority incurs for particular services for which it may make a charge.’.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

Clause 14 covers charging for services where they have been provided to a person with eligible needs. Amendment 38 seeks to clarify what I believe is an unintended consequence of the current drafting. As drafted, the clause would allow local authorities to charge for social work assessments. That is not something that local authorities can do at present. Because the clause permits assessments to be delegated—clause 78 provides for delegation of functions in a number of ways—it sets up the possibility that the assessment process can be subject to reimbursement to those undertaking the assessment for their costs. It will be possible for that to be passed on as a charge to the individual. My amendment would simply put beyond doubt that the local authority or someone delegated to do the task should ignore the costs incurred directly or indirectly in assessing the person’s needs.

Amendment 39 returns to an issue raised during the joint scrutiny of the Bill—the legal limits to charges. At present, the primary statute that governs this is section 17(3) of the Health and Social Services and Social Security Adjudications Act 1983. They really knew how to name Acts in those days. That contains a provision that prohibits domiciliary care charges that are not “reasonably practicable” for a person to pay. That protection—or long stop—is not found in the Bill. Although it may be replicated in regulations—indeed we have had similar assurances to that effect—the Department of Health has not so far addressed the concern raised in Committee. I hope it is an area on which the Minister can give us further comfort.

My point is that this is a matter for primary legislation. It is an essential principle that would underpin regulations and guidance. When we took evidence on this, we were told that the courts and the local government ombudsman found that this test of “reasonably practicable” in primary legislation was of value to them when they came to make their determinations. While the regulations may set out a process by which charges are calculated and may, as Ministers have said so far, have a goal of a fair charging system, that leaves open the possibility that that could be changed in regulations in future.

There will be cases that are out of the ordinary. This is about testing legislation to ensure that it is flexible enough and has principles that enable the out of the ordinary circumstance to be taken properly into account. In those circumstances, there might be someone who does not have sufficient resources to pay a charge, even when they have been financially assessed as able to do so.

There are court cases that have determined on the matter and have used the test of “reasonably practicable”. There are ombudsman cases. Indeed the ombudsman has considered several cases over the years and found the current long-stop test an important aspect when coming to a judgment in favour of one party or another. It is that safeguard of “reasonably practicable” that my amendment would maintain in law to allow for the possibility that no matter how good the regulations are, or indeed the guidance, life can throw up something that is not anticipated, and we ought to try to make sure the primary legislation deals with that.

Photo of Grahame Morris Grahame Morris Llafur, Easington

I fully understand the right hon. Gentleman’s sentiments and support his efforts. It was one of the 10 points of contention in the Joint Committee. If I may ask a stupid question, what does “reasonably practicable” mean—in practical terms?

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

That is a very good question, although an obvious one. In considering this in the Joint Committee, we had the benefit of the advice of Professor Luke Clements as our adviser on the care aspects of the legislation. He drew our attention to existing case law using this phraseology from the Act—I will not repeat the full title—as being an important way to ensure that attempts to capture various different scenarios in regulations did not leave out individual circumstances.

For me, this is about making sure the individual circumstances can be properly factored in when a decision is being made. Drawing up a set of criteria can never capture all individual circumstances, so the amendment would give that additional comfort—that back-stop—that enables people to challenge local authority decisions about charges. So what I want to hear from the Minister is why he thinks moving that from primary legislation to regulations is satisfactory and why putting similar language in regulations would not itself suggest that it would be better to maintain the status quo in this particular area.

When I was drafting the legislation—I am surprised no one has asked me this question so far—such a consideration was not put to me in the advice I received. I regret the fact that I did not ask the question. I took the opportunity as Chair of the scrutiny Committee to revisit such questions. On the advice that we received, I think the Government should pause, reflect and consider making this small and modest change.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

Amendment 98 would require local authorities to publish on their websites and in other places the costs that the local authority incurs for the services that it charges for. We tabled the amendment because it is important now and will be increasingly important in future that local councils are clear about their care costs. The two things I most have in mind are their costs for home care and for residential care.

Imagine someone does not live near their family—their mum or dad. Many of us have been in such a situation. Perhaps our mum or dad are reaching the point at which they need care and support. In such cases, we think about moving closer to mum and dad, or we think about mum and dad moving closer to us so that we can be there to help them if they need care. It is often the case that someone needs home care, but also residential care. If someone’s mum or dad—someone they love—is going into a care home, that can be a really distressing experience. People might want their parents closer to them so that they can go and see them. People might also think their parents will need help getting up, washed, dressed and fed, and the son or daughter might want to help out. That can be done more easily if the parents are closer rather than miles away. Some families may want to do that whatever the costs are, but it is important that we think about this issue. Charges for home care, particularly for those in private residential care homes, are increasing.

We recently did a freedom of information survey about home care charges that showed that they have increased by quite a bit since the election. If someone gets 10 hours of home care a week and five meals on wheels, which is the average profile of a care user, it now costs on average £7,900 a year, which is up almost £740 since the general election, or £15 a month. Charges for meals on wheels have increased by a fifth and community transport charges have almost doubled.

The key issue, however, is the huge variations in what councils charge. While home care remains free in Tower Hamlets, it costs more than £20 an hour in Cheshire East. The hon. Member for Harrogate and Knaresborough might like to know that home care costs £17.30 an hour in his area and it costs £16.80 an hour in the constituency of the hon. Member for Weston-super-Mare.

Therefore, someone with a family member who lives in Tower Hamlets—and therefore got free home care—might think, “Actually, my mum or dad should move closer to where I live,” but they could be charged quite a lot if they moved to another area. It is important that families know about the costs of care so that they can use that information when making their decisions.

That is also really important in residential care, as the rate that the local authority pays for that will determine the cap on care costs. Often, in the slightly better-off areas of the country, such as those represented by the Secretary of State for Health or, indeed, the Prime Minister, the amount councils pay for residential care might be less than £400 a week, but the private care homes charge much more: £800 a week or even more. The gap between the council rate and what people are charged can be really big and people will have to pay that themselves. Families therefore need to know what the real charges are for care in their area, not because that would stop them from making decisions on where their loved ones get care and support, but because it would allow them to think through the financial implications of the care and support.

The information is hard to get. We had to issue freedom of information requests to get the data. When we rang up the councils and asked them, they often said, “No, we’re not going to tell you—you have to do an FOI.” That is not right. Councils should be open about what they charge so that people can properly plan for the future. That is why we tabled amendment 98.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

Amendment 38 intends to prevent a local authority from charging an adult or a carer for carrying out an assessment of their care and support needs, unless the adult is paying for their own care but exercising the right to require the local authority to meet their eligible needs. However, as is the current situation, the Bill does not give a power to local authorities to charge for carrying out a needs or carer’s assessment in any circumstances.

We believe that a needs assessment should be provided free of charge to ensure that people are not discouraged from approaching their local authority to get their needs assessed. Clause 14 gives local authorities powers to charge for meeting an adult or carer’s care and support needs under clauses 18 to 20.

Photo of Grahame Morris Grahame Morris Llafur, Easington

I fully appreciate that local authorities should not be able to make a charge for an assessment. My understanding is that the current law includes a power to charge for meeting the needs of carers—not the assessment, but meeting their needs. Does the Minister think that it would be simpler and beneficial simply to scrap charges for carers altogether?

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health 4:45, 14 Ionawr 2014

That is not what we are talking about now. To deal with the hon. Gentleman’s specific point, in most circumstances, I think councils take the view that it is not appropriate to charge, and I share his view. There may be circumstances, for example organising a trip on a minibus and covering the cost, in which everyone takes the view that a charge is reasonable. However, in most circumstances, I share his view. Here, we are talking about whether there should be a charge for the assessment, and I am making it clear that that is not to be the case.

Clause 14, as I have said, gives authorities powers to charge for meeting an adult’s care and support needs under clauses 18 to 20. In addition, it ensures that such charges may only cover costs incurred by the local authority in meeting those needs.

Under clause 14(1)(b), a local authority may also charge an arrangement fee in the case of a person who is paying for their own care, but that relates only to a charge for putting in place the arrangements for meeting those needs. It does not enable a local authority to charge for assessing those needs; assessment will always be free. I trust, therefore, that my right hon. Friend the Member for Sutton and Cheam will feel able to withdraw the amendment.

Amendment 39 seeks to ensure that, where a local authority arranges a person’s care and charges them for it, the local authority will not charge the individual more than it appears to the local authority would be reasonably practicable for the person to pay. I agree that the person should not be charged more than they can afford to contribute. For residential care, it has long  been the case that that is determined through regulations and guidance, with which the shadow Minister will be familiar.

Under the Bill, local authorities will be required to assess how much people can afford to contribute towards their care costs according to regulations, in all care settings. In particular, regulations under clause 14 will set out the minimum income that people must be left with after charges. That is potentially an important protection for people, which ensures that people are not charged more than is affordable.

Local authorities will carry out a financial assessment in accordance with the regulations, subject to their other duties and responsibilities, including their duty to promote individual well-being and to act reasonably. The duty to promote the individual’s well-being, as we have made clear and which my right hon. Friend the Member for Sutton and Cheam has often talked about, is at the heart of every decision in this legislation.

The aim is to promote greater transparency and fairness by setting rules that prescribe a consistent approach to charging in similar circumstances where appropriate. However, in other circumstances, it may be necessary to prescribe flexibility to respond to different local circumstances to ensure fairness and promote innovation.

To reiterate, regulations will set a specific amount of money that people must always be left with after charging to ensure that they can afford those charges. That is, in my view, a stronger and clearer protection than a provision based on what the local authority considers to be “reasonably practicable”. The risk—I speak as an ex-lawyer—is that what is interpreted as reasonably practicable by one official and one local authority may be different from what is interpreted by another official or authority. Having a sum of money that the individual must be left with after all charges seems to be a stronger protection. Given that, I hope that my right hon. Friend will feel able to withdraw the amendment.

Regarding amendment 98, we believe that it is vital that people are provided with the information that they need to make informed choices about their care. I agree with the shadow Minister when she talks about having to pursue freedom of information requests. I instinctively favour transparency and openness, and if such an approach is taken, better decision making results. As part of making information available, local authorities should be transparent about the costs of care that they face, which is important in ensuring that the system works in a clear and transparent way. Currently, local authorities often provide guide prices on how much it costs them to purchase care. We would expect that to continue as it provides important information to help people make informed decisions.

The costs of meeting an individual’s needs for care and support, however, will depend upon their specific circumstances. That is why, under the reforms, everyone with eligible needs will be entitled to a personal budget or an independent personal budget. That will provide people with clear and up-to-date information on what it would cost the local authority to meet their individual needs. Even if it were practicable, it would not be appropriate to require local authorities to publish all their costs in all circumstances. If only one individual is  using a service, for example, publishing its cost would ultimately be an unwarranted intrusion into their private life. There could be that unintended consequence.

Local authorities may also be constrained by commercial confidentiality, at least initially, with regard to historical agreements, for example. When it comes to the deployment of public money, contracts should whenever possible include clauses that provide for openness. None the less, commercial confidentiality is always a consideration. Guidance will make it clear that local authorities should give people the information that they need to make an informed decision about the best way to meet their needs. I therefore urge the shadow Minister not to press amendment 98.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

I am grateful to the Minister for his reassurances, in particular on amendment 38. He has made it clear that charges may only cover the cost of meeting need, which is helpful and will be important for future interpretation.

On amendment 39, the Minister said that the intended regulations will stipulate in all cases a specific figure that a person would be left with. It would be useful to be sighted on those regulations and how that would work in practice at the earliest opportunity. There is, however, still the possibility of difficult individual cases that do not fit the normal rules. If the rules are so constrained, it could still leave someone with sufficient means to have an existence after charges on paper, but not in practice.

In conclusion, we need within the legislation some form of mechanism—it may be light touch—that allows for redress and for decisions to be challenged. I hope that the Minister will continue to think long and hard about that. I will read what he said today about amendment 39, because I still do not feel entirely at ease with it.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I will also reflect on what my right hon. Friend has said as I want ultimately to ensure that we get the legislation right. The overall duty of well-being, combined with a specific sum that is protected income, is a stronger protection than exists at present.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam

With that additional undertaking, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

I just want clarify for the record that our amendment would not require local authorities to provide the details of everything that an individual was charged, and I do not see any commercial confidentiality issues. Having said that, as the Minister said that the guidance will make it clear that local authorities should freely provide information about what they charge, I shall not press my amendment to a Division.

Clause 14 ordered to stand part of the Bill.