Clause 18 - Duty to meet needs for care and support

Care Bill [Lords] – in a Public Bill Committee am 12:00 pm ar 16 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 12:00, 16 Ionawr 2014

I beg to move amendment 40, in clause 18, page 17, line 32, after the first ‘adult’, insert

‘(or someone acting on the adult’s behalf if the adult lacks capacity to arrange for the provision of care)’.

Clause 18 provides a duty to meet eligible needs for care and support, and my amendment seeks to address an issue that was first raised during the Joint Committee’s consideration of the Bill. The issue that it addresses comes out of clause 18(4), which appears to put self-funders who lack the capacity to make decisions for themselves in a more disadvantaged position, relative to those who are also funding their own care, but still have a capacity to make decisions for themselves. The clause effectively allows for circumstances in which a person has the means to pay for their care and asks the local authority to arrange that care. If they have the capacity, they can ask the authority, but it is not clear that the situation is as straightforward when a person, under the mental capacity legislation, does not have that capacity.

The clause appears to work in this way: first, local authorities have a duty to meet eligible needs for people with assets below the financial limit under clause 18(2). Secondly, local authorities have a duty to meet eligible needs of people above the financial limit under clause 18(3), if they ask the local authority to provide or arrange the service. However, the problem is about people who have assets above the financial limit—in other words, they have the means to pay for it—but cannot ask for it to be arranged, because they lack the capacity. I believe, as did the Joint Committee, that the Bill should provide for a third party to make a request, which is what my amendment would insert into the legislation. We considered that issue in Committee—let me quote from the Committee’s report:

“We consider that it is wrong in principle to place a person with impaired mental capacity in such a disadvantaged position, and we put our concern to the Department of Health. In a note of 30 January the Department responded, stating that it ‘takes on board these comments, and will consider whether any changes are necessary. It is not the Government’s intention to create a disparity.’ We welcome this undertaking to look again at the drafting of this clause.”

We did not put that into bold, so it did not become a recommendation and therefore, there was no response in the published Government response to the Joint Committee’s recommendations. It was never made clear how the Government intended to address that disparity. My amendment is an opportunity for the Minister to indicate how the Government intend to do that and, I hope, to set out a course of action that will address the concerns that I and the Joint Committee have.

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

I thank my hon. Friend for the opportunity to try to clarify this important point. It is absolutely our intention not to have any disparity, as he rightly pointed out.

Clause 18 allows people, even those with enough means to fund their own care and support, none the less to ask the local authority to arrange care and support on their behalf. This is an important and groundbreaking new right. This amendment seeks to clarify that where an adult lacks capacity to arrange their own care and support, someone is authorised to act on their behalf. That person is able to ask the local authority to arrange the adult’s care and support on behalf of the adult.

This is an important point. Where an adult lacks capacity, a friend or relation might act on their behalf, but the existing general law on mental capacity already allows for that situation. So we do not refer to an adult’s mental capacity in this part of the Bill, where it is merely to provide for a person authorised under the Mental Capacity Act 2005 to do something on that adult’s behalf. For a provision which hangs on an adult asking a local authority to do something, such as the provision in question, this applies equally where a person authorised under the Mental Capacity Act asks the local authority on that adult’s behalf. This is in line with general law on capacity, as provided for by the Mental Capacity Act.

We considered the exact issue that my right hon. Friend the Member for Sutton and Cheam raises through this amendment as we were drafting the Bill. We have been assured that the Bill, as drafted, achieves this, but to clarify our intention we stated in paragraph 123 of the explanatory notes that:

“Where the adult lacks capacity to make the request, it may be made by someone else acting on their behalf”.

As my right hon. Friend will be aware, explanatory notes can be taken into account for clarification if necessary. I hope that this reassures him and he feels able to withdraw his amendment.

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

I am grateful to the Minister. It is helpful to have that clarification on the record. I will take away his words and reflect further on the words in the explanatory notes as well. My concern is how this translates into practice and how we ensure that there is a clarity of understanding about the interaction between obligations on a local authority with regard to the Mental Capacity Act and the Care Act, as it will become. An inquiry is currently going on into the application and effective implementation of the Mental Capacity Act, which certainly calls into question whether or not that legislation is widely understood and applied. Will the Minister give us some reassurance about how we ensure that the guidance here properly reads across and translates into good training and practice?

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

I gave evidence to the inquiry in the House of Lords on this point. In response to the concerns that my right hon. Friend raises, I want to stress that a lot more work needs to be done to embed the Mental Capacity Act in practice. I have a particular concern that there appear to be examples of people who lack capacity, who may be in an assessment and treatment centre, for whom there is no deprivation of liberty safeguard in place. The consequence is that that person is being held unlawfully, which has to be treated extremely seriously.

I am absolutely determined to ensure that that important Act, passed by the previous Government but widely welcomed, is enforced properly, so that for those deprived of their liberty, there are proper safeguards in place. We are not there yet, but it is an absolute priority for the CQC, when conducting inspections, to ensure that the legislation is properly enforced.

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 12:15, 16 Ionawr 2014

As someone who agitated for that legislation and who served on its scrutiny Committee, I am anxious that lessons are learned, not least because that legislation set in law, for the first time, a set of principles governing best interests, which the inquiry has revealed have not always been faithfully understood and followed in practice. There are certain principles in this Bill regarding well-being, and it is important that we learn the lessons of how we embed them into practice.

I welcome what the Minister has had to say, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed,That the clause stand part of the Bill.

Photo of Meg Munn Meg Munn Llafur, Sheffield, Heeley

I wish to discuss how clause 18 interacts with clause 13 on the eligibility criteria, which we discussed earlier in the week.

The Minister did not respond to my concern about how the eligibility criteria section is written and how we interact with people’s needs. I fundamentally believe that it is important to take a holistic approach. The question I was asking was: would care needs at the lower level, which would not normally come into the eligibility criteria as written here, be met, where the care provided by informal carers—friends, family and so on—was dealing with eligible care needs?

It is not only me who has concerns. The Minister has talked about a much more preventative approach, which the measure would be. However, evidence from the College of Social Work—written evidence CB 09—raises that issue as well. The college says that proposals in the Bill

“offer more of the same in terms of focusing on care activities that are centred on essential tasks. Past evidence would suggest that this approach will never be able to fully address the full circumstances of a person’s life…the reality is that need is usually interpreted in the light of available resources.”

The Bill, which should take us well into the 21st century, is drafted as if we were still in the 20th. It does not recognise the growth of personalisation, which has led to a much more varied approach to meeting need. There is no straightforward correlation between the given level of need and the cost of meeting it, except that that is now being put into legislation in terms of what people might get by way of personal budgets, which we will discuss in the next few sittings.

Resources that may be appropriate to respond to an individual’s needs in one area may be insufficient in another. We need to consider how assessment and resource allocation can properly be separated. Not doing so will lead to care and support planning that does not meet needs as necessary to deliver independence and well-being.

I am grateful that the Minister confirmed that the explanatory notes are important. They say about subsection (7):

“When conducting the needs assessment and the eligibility determination, the local authority will assess the totality of the adult’s needs, regardless of whether a carer is currently meeting any of them…If a carer were to cease providing care and to stop meeting any eligible needs, this would trigger a review of the adult’s care and support plan, and may mean that the local authority is required to meet the needs. If the carer has needs for support, they should be entitled to an assessment in their own right, under clause 10, and may receive support to meet their eligible needs.”

Will subsection (7) still apply if the carer can no longer provide care for the mild to moderate needs, in order to continue providing care for the substantial needs? Excluding support of that kind does not sit with the idea of a preventive care system. There are two risks if we do not support carers by relieving them of the need to provide some more moderate care. First, the carer might be unable to continue caring, so that the person with needs might have to go into residential care or might have a much greater level of need for care to be purchased; secondly, the carer might need care in their own right.

We know from examples already given that many carers are elderly; often they are the spouse of the person being cared for. The effort of providing substantial care can put their health at risk. Unless we move towards a more holistic approach—one in which those with overall substantial needs have their lower-level needs, such as cleaning or sitting services, recognised as eligible for support, although standing alone they would not be—there is a risk that we shall double the burden.

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

I thank the hon. Lady for those remarks, and apologise for not responding. I think I was trying to respond to so many points during that debate that I missed out the response to hers.

Assessment deals with all eligible needs. The care plan that is then developed deals with which of them will be met by the local authority. Prevention duties that can apply to everyone are relevant in this context. That means that if someone is found to have eligible needs the local authority can include lower-level support in the care plan. That is the key point that the hon. Lady was concerned about.

I now have a note that I have not seen before, but I shall read it and we shall see where we get to. It states that where a carer is meeting an adult’s needs the local authority will not be under a duty to meet those same needs; but it will have to identify those needs in the assessment and determine whether they would be eligible. That is to create an incentive to ensure that the local authority supports the carer to maintain their caring role.

I hope that that helps, but I think that it would also be helpful if I were to write a letter amplifying the points that the hon. Lady raised. They are important, and if I can assist all hon. Members by replying in substance to her concerns that will be of value.

It is essential for the care and support system that it should be clear when a local authority is required to meet people’s needs. The Government have therefore set out in the clause the conditions and circumstances that would entitle an adult to have their needs for care and support met.

Current legislation sets out numerous duties on local authorities to provide particular services in certain circumstances. That overlap and duplication is precisely what the Law Commission sought to abolish when recommending a single duty to meet eligible needs. Clause 18, however, does more than merely consolidate the law. It provides a general duty to meet needs, rather than specifying services to meet specific needs. That supports local authorities to provide flexible, personalised care and support.

I thought that the hon. Member for Sheffield, Heeley said that the Bill does not recognise the growth of personalisation. If she did say that, perhaps she would like to clarify that. I think it does. That is the heart of the legislation: the enshrining in legislation of the personal budget and the direct payment as well as the whole principle of well-being. I do not know whether she wants to clarify.

Photo of Meg Munn Meg Munn Llafur, Sheffield, Heeley

The point I was making was that a rigid interpretation of clause 13 suggests that certain care needs are eligible and others are not. Someone can be given a budget to support their care needs and the personalisation in those budgets has been used often to help with shopping and other services, but those would not by themselves meet the substantial or moderate test—or whatever the Government end up with. My point is not that the Bill does not talk about personalisation overall, but, if that clause is interpreted in the way I describe, that would run counter to the thrust of the personalisation agenda.

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

I totally take the point and I will write to the hon. Lady to amplify what I just said. The clause makes it as easy as possible for people to understand the circumstances in which they will be entitled to care and support.

First, a person’s needs must meet the eligibility criteria set out in regulations under clause 13. Secondly, the person must be ordinarily resident in the local authority’s area or, alternatively, be living in that area at the time but have no settled residence. That is to ensure that a single local authority can be identified as responsible for meeting that person’s needs.

Thirdly, the clause provides for the interaction of those two factors with charging and financial assessment. If the local authority does not charge for a type of care and support, or regulations provide that that is to be provided for free, there is a duty to meet needs regardless of the person’s finances. If the local authority does charge, the adult’s financial circumstances are taken into account. If the adult’s financial resources are below a financial limit—that will be set in regulations—the duty to meet their needs will be triggered. If the person’s finances are above that level, however, they will still be able to access local authority support.

The clause introduces a new duty whereby local authorities must arrange the care and support for people whose resources are above the financial limit but who ask for that. The new duty will ensure that all people  with eligible needs, regardless of their finances, will have a right to the help of a local authority, which will ensure that no one goes without the care that they need. Furthermore, the clause stipulates that a local authority must meet the needs of a person who lacks capacity to arrange care for themselves and who also does not have someone authorised to do so on their behalf.

Finally, the clause makes provision for the impact of funding performance. It specifies that the local authority must meet an adult’s eligible care and support needs if that person’s care costs have reached the cap to be set out in regulations for the capped care costs system.

The clause is integral to the reformed system of care and support. It creates a clear framework for entitlement for people who need care and support. It was widely supported in the consultation on the draft Bill.

Clause 18 ordered to stand part of the Bill.