Clause 26 - Personal budget

Care Bill [Lords] – in a Public Bill Committee am 3:30 pm ar 16 Ionawr 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Paul Burstow Paul Burstow Democratiaid Rhyddfrydol, Sutton and Cheam 3:30, 16 Ionawr 2014

I beg to move amendment 88, in clause 26, page 24, line 40, at end insert—

‘(4) Where the needs are to be met through a direct payment, the costs to the local authority must mean the costs to the adult of meeting those needs.’.

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 103, in clause 26, page 24, line 40, at end insert—

‘(4) A personal budget for an adult must be set at a level that would be sufficient to meet all of that adult’s eligible needs as assessed by regulations referred to in section 13(6).’.

Amendment 89, in clause 28, page 25, line 37, at end insert—

‘(1A) The specified costs to the local authority must mean the costs to the adult of the meeting their eligible needs.’.

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

This amendment is to clause 26, which will importantly provide a statutory basis for personal budgets for the first time. In other words, the law is finally catching up with where public policy has been for a considerable time. In its report, the Law Commission described the current situation as having

“a confusing structure, whereby social care practice is not founded in the legal framework.”

With these amendments I want to explore whether the legal framework has fully caught up with public policy and practice, not least in terms of calculating the amount that is made available through a personal budget or direct payment. It is clear that unless personal budgets are transparent and it is possible to challenge them, some local authorities may potentially operate mechanisms for determining how much is available in a way that leaves people unable to access services that would meet their eligible needs. The personal budget is a critical part of the architecture of the Bill. It is a critical tool for delivering individualised, person-centred care, which Members on both sides of the Committee want to see, and which is at the heart of the well-being principle in clause 1.

This proposal is about where power sits in the system. We should be clear that we are trying to transfer power to the individual by giving people control over their budgets. To achieve that and to help them meet their eligible needs we need further clarity, and that is what the amendments seek to do. However, that will only happen if the budget is sufficient to enable the person to buy appropriate support. The Bill as drafted implies that the budget will always be set at a level equivalent to the cost to the local authority of meeting the need. That sounds like a perfectly reasonable way of constructing an obligation to the individual and making resources available to them. However, it does not make clear—and it will be useful if the Minister can indicate how this is to be done—the fact that, as I have said before, local authorities enjoy monopsony powers in the care market. They are purchasers, and can use their market power to get lower prices than an individual going into the market and buying services for themselves. The individual could, therefore, face higher costs.

Let me be clear about the intention behind the amendment. It is not to allow people to use public money to buy a level of service higher than what the local authority provides directly to meet their eligible needs. It is not to enable them to buy a more luxurious set of services. It is to ensure that direct payments do not inadvertently disadvantage their users, relative to others who have services provided directly.

One of the charities that is particularly concerned about this issue drew my attention to a hard case that illustrates that possibility. A carer for an disabled child said:

“We were told when direct payments started that it would help his choice and independence and be able to give him what he needed. But things have changed. We’re now told that travel to some place, paying for social activities and things he likes to do cannot be covered by direct payments. That’s the whole care plan gone. The cost of care services have also gone up and the direct payment no longer even covers enough in care for him. We have to pay to cover the gap to make sure he gets enough support.”

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

Does not that case study address a different point? There is the question in that case study of the authority deciding to withdraw certain elements of the personal budget. None of us knows the circumstances of the individual case and whether that is in any way legitimate, but it is an argument about whether particular elements should be in the personal budget. It is not an argument about the value that the local authority attaches to meeting that need.

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

I entirely accept that I could well rely upon the same case study to make points about that. But I do not accept that it is not relevant to a debate about the adequacy of the resource available to purchase against an agreed care and support plan to meet eligible needs. I accept that after a reassessment it might be determined legitimately that the eligible needs have changed and therefore the package changes and certain things are no longer provided. I agree. That is a different matter. The matter I seek to draw attention to through this example is the one about the adequacy of the resource to provide appropriate care to meet the currently agreed eligible needs.

This is particularly acute when one looks at the care home sector, which we have already debated. One sees the differential in the price a local authority pays compared  with the price that might be more publicly available. Given that we as a Government are exploring the possibility of direct payments in the residential care market as well, it becomes a more live issue. The clause is still not clear on how these matters are to be calculated. One of the things that we looked at in the Joint Scrutiny Committee was the evolution of resource allocation systems at a local level. We expressed concern in the report about how opaque these resource allocation systems are in practice.

This has evolved as a bit of public policy since 2008. It was in a circular and then subsequently reinforced in guidance. To be fair, the previous Government were clear that these things should be done in an open and transparent way. As we conducted our inquiry and looked at the evidence, it was clear that many local authorities treat these as something to be kept out of the public’s gaze and so they are not easily obtainable for people who want to understand how that figure in their personal budget has been calculated. That must be wrong, not least because it means that local authorities are flying in the face of existing statutory guidance.

The Bill quite rightly confirms the pre-eminence of the duty to meet eligible needs. It is how those costs are calculated that remains unclear. It is hard to obtain this information from a number of local authorities. Some guard it incredibly jealously. We recommended that the Government should review the efficacy of resource allocation systems to ensure that guidance is clear in the development of resource allocation systems or indeed other methodologies for determining how much the local authority will put into a personal budget or a direct payment. We suggested that this should be linked to clause 1 of the Bill.

My amendments seek to tease out the Government’s thinking on this. RAS is murky. It is an area that is not very well documented in public policy in terms of guidance and so on. The Bill gives the Government an opportunity to make these things much clearer and, from the point of view of the person who is receiving the personal budget, much more acceptable when it comes to understanding how the local authority arrived at its figure. I look forward to the Minister’s response.

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

Our amendment 103 is along the same lines as the amendment tabled by the right hon. Member for Sutton and Cheam, which he spoke to extremely well. As hon. Members know, personal budgets and direct payments were brought in under the previous Government in 2007. They came out of people working on the ground to empower people with disabilities, including learning disabilities, who felt strongly that too often their choices, chances and needs were being ignored. They were told what institutional care they should have rather being given the power and control over their own lives. We may have introduced it as a national policy, but it came from people working on the ground, and I pay tribute to those early champions.

I am a long-standing and passionate supporter of personal budgets. If they are done properly and well, they can transform people’s lives by giving them more choice, say, power and control. I have always believed that the purpose of getting power is to give it away. The purpose is to give people more control and power over their own lives. That is what I have always believed, and personal budgets are at the heart of that.

However, I have had cases in my constituency, as I am sure many other hon. Members have, of people who are becoming critical of personal budgets because they are not being implemented properly. People feel that they could be becoming a cover for cuts. People say: “I’m not getting as much as I used to, even though my needs have not changed at all. They certainly haven’t gone down, in some cases, they’ve increased.” We must not allow personal budgets to get a bad name because they are vital and can and should be developed. They are not the sole way of delivering more personalised care and support, but they are an absolutely vital way of doing that.

I echo the comments of the right hon. Member for Sutton and Cheam. The Care and Support Alliance raised the point that people are very worried that, while councils can make block purchases and contracts, when the money is given to individuals they cannot buy as much for their care as they might want. The Bill must be clear that local authorities have a duty to meet people’s eligible needs and that a personal budget must be sufficient for an individual to get the level of care and support they are assessed as needing.

Care provision is changing in response to personal budgets. This is an important policy area that could be developed in future. For example, when people say, “I’ve got my personal budget but still the kind of care and support I want isn’t out there,” some councils, such as Lambeth, bring groups of those people together and ask, “Okay, what is the support you would like to buy?” If they say, “We want x, y and z and it’s not out there” the council can act as a kind of negotiator, go back to the providers and tell them they need to change, or bring new entrants in, if the existing providers refuse to change. Some things will be done individually, while others will involve personal budgets, still with individual choice, but on a more collective, market-shaping basis. However, we will do that only if personal budgets really work for people.

Even if the Minister does not—as I predict he will not—accept the amendments, having greater clarity about how the level of the budget is set and making sure it covers eligibility is vital. As the right hon. Member for Sutton and Cheam said, this is an area where legislation has not kept up with policy. Some of the practice in local councils and in Government policy has not kept pace with how we intend personal budgets to work on the ground. We need more clarity on this somehow, even if it is not on the face of the Bill, because we cannot let personal budgets have a bad name.

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

I thank my right hon. Friend the Member for Sutton and Cheam and the shadow Minister for their points. I agree with both of them. I am a very strong advocate of personal budgets and direct payment. The new area of development is the concept of the personal health budget in the NHS. As I mentioned earlier, we introduced the right to have personal health budgets for NHS continuing care. I want to extend that. I am impatient to extend it to mental health. If any group of patients ought to be given power over the resources that are available to them, surely it is people with mental health problems.

I agree with the shadow Minister that, if applied wrongly, personal health budgets can be given a bad name. We must guard against that. There is frustration that practice among local authorities is quite variable. Many local authorities have embraced the concept and absolutely get the need genuinely to empower the people they are there to serve, but others either have not extended personal budgets nearly far enough, or —[Interruption]—as the shadow Minister is indicating from a sedentary position, simply go through a tick-box exercise. We must avoid that. The measures in the Bill are incredibly helpful in developing the concept of personal budgets, entrenching it in law and giving people clear legal rights, but we must also ensure that things work properly in practice.

My right hon. Friend the Member for Sutton and Cheam made a point about the importance of transparency so that the individual can understand how their personal budget has been calculated. We completely agree. It is critical that people understand how it has been calculated, both to help them understand their needs and the options available to them and for the credibility of the system as a whole. We intend to use statutory guidance to set out the expectations on local authorities regarding transparency in calculating personal budgets. Such guidance will allow for more detail on different circumstances and the means of publishing information to reflect people’s needs.

Photo of Grahame Morris Grahame Morris Llafur, Easington 3:45, 16 Ionawr 2014

Can the Minister clarify how personal care budgets will be applied and what they could be used for? During the Joint Committee inquiry, a Conservative authority highlighted the fact that one reason why local authority day care facilities were being run down was that people with personalised budgets could not purchase day care from the local authority. Was that anomaly ever addressed?

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

I would need to get back to the hon. Gentleman on that point. As much as possible, I want the personal budget genuinely to empower the person to use the money as they wish. Of course, it may well be the case that the individual does not want to use an old-style day centre. They might choose to, but they might not, and we must always respect their particular wishes.

I have spoken before about our commitment to rebuilding the law around the person, and in few places is that more evident than the provisions that deal with the new entitlements to a care and support plan and a personal budget. They have been warmly welcomed through consultation. Set against that, the amendments are not necessary because either they serve only to restate matters that are already clear, or they run the risk of undermining the gains made in the Bill.

Let me explain. Amendments 88 and 89 propose similar changes to the personal budget and the independent personal budget, to state that they should reflect the actual cost of care to the individual. The personal budget must be the amount that it costs the local authority to meet the adult’s needs—needs that it is required or decides to meet. If the local authority meets the adult’s needs by making a direct payment, that  payment must always be of an amount that is sufficient to enable the adult to meet their needs in a reasonable way.

The personal budget will be derived during the development of the care and support plan. That will take into account the needs of the particular individual and how they wish to meet their needs. The new focus on meeting needs provides for a more personalised approach and should lead to personal budgets and direct payments reflecting individual circumstances and preferences, rather than being a more simplistic service-based calculation.

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

That is a helpful description of how the Government intend things to work. Several organisations representing people who use services have made representations that led me to table the amendment—indeed, they also made representations to the Joint Committee. I think that they would find it incredibly helpful if, rather in the spirit of the round table discussions that were offered on end-of-life care, there could be, once the Bill is enacted, a conversation about how the regulations are drafted. Getting user input could ensure that the regulations deliver what the Minister says they will.

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

I am completely open to such an approach. I have tried to stress throughout that the collaborative co-production approach does not end with the passage of this primary legislation, but must continue. We must continue to involve those user groups to ensure that their voice is heard and that we get the best possible result.

Everyone’s personal budget must be based on the same principle: that it relates to the cost to the local authority. That ensures fairness and consistency. If a direct payment were the cost to the person, it might have the unintended consequence of incentivising people to source more expensive care and support to meet needs, and thus progress quicker to the cap on care costs. If a person is unable to use their direct payment to purchase care to meet their eligible needs, they can ask the local authority to review their care plan, and consider whether there are other ways to meet their needs, such as through the provision of care and support arranged by the local authority or a combination of such provision and direct payments.

Similar to amendment 88, amendment 89 seeks to change the way the independent personal budget is calculated. To provide consistency with the personal budget, the Bill defines the independent personal budget as what the cost would be to the local authority of meeting a person’s eligible needs for care and support. It is important that people progress towards the cap at the same rate, whether the person’s needs are met by the local authority or the individual. The amendment would mean that people funding their own care would progress towards the cap at the actual cost they pay for their care.

Although in some cases there will be little difference between what the individual pays and what the authority would pay, in other cases self-funders may choose care more expensive than that that the local authority would usually provide. That would therefore increase the rate at which those individuals progress towards the cap. Although it is right that individuals are free to choose  to purchase care of their choice, including at a price of their choice, the amendment would unfairly advantage well-off people who spend much more on their care. It would be inequitable, because wealthier people who are able to purchase more expensive care would reach the cap more quickly.

The reforms offer the first ever opportunity to protect all people from catastrophic costs and provide more transparency about the costs of care and support. The amendment would undermine those gains—I suspect that my right hon. Friend the Member for Sutton and Cheam sees the point I am making—and make the system less fair, directing public money to those who need it least, but I absolutely understand that that is not the intention.

Amendment 103 intends to link the personal budget to the needs to be met as identified in the eligibility criteria, which will be set out in regulations underpinning the Bill. The amendment is not required because clause 26 already ensures that the personal budget specifies the cost to the local authority of meeting the person’s eligible needs. That is because the personal budget must include a statement of the cost to the local authority of meeting those of the adult’s needs that it is required to meet or decides to meet as mentioned in clause 24(1). Clause 24(1) refers to the duties and powers in the Bill to meet eligible needs, so the link back to the needs identified in the eligibility criteria already exists. Those provisions ensure that the amount at which the personal budget is set is sufficient to meet the eligible needs of the person. There is no ability for the local authority to reduce the personal budget to an amount less than it would cost to meet the person’s needs. I therefore urge my right hon. Friend and the hon. Member for Leicester West not to press their amendments.

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

It might help members of the Committee if, before calling Mr Burstow, I make a brief procedural announcement: if the Minister or any other Member plans to table an amendment for debate on Tuesday—the next sitting—they need to do so before the rise of the House today. The procedural point I want to put to the Committee is that I have had a message that the debate in the main Chamber is likely to end before 5 o’clock. If someone is working on amendments, they should come and talk to the Clerk quickly to ensure they do not miss the deadline.

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

That is very helpful information, and I will rush to the Clerk after I sit down.

I welcome the spirit in which this debate on personal budgets has been held. There is unanimity on the importance of personalisation. The distinction I would draw is that the personal budget is merely the means, and sometimes in some quarters the personal budget gets elevated to being more important than the goal, which is individualised, personalised care. I welcome what the Minister said about extending the personal budget to mental health, which is a great step that is long overdue.

The shadow Minister is right that personal budgets came about because grass-roots activists pushed the case for them. Some of those grass-roots activists have subsequently begun to question some of the ways in which local authorities have gone about translating  personal budgets into practice, hence my raising the question of resource allocation systems. I welcome what the Minister said about the intention to use statutory guidance to set out in more detail how those calculations will be made in future. I merely point out that there is already extant guidance on them and the evidence is that many local authorities ignore the guidance and treat such things in a “Hitchhiker’s Guide to the Galaxy”-type way: the guidance is locked in a filing cabinet in a basement of the town hall so that it is not accessible to anyone who might choose to seek it out. That cannot be right and it has to change. I hope the Minister will address that.

The Minister talks about notional costs and their relevance to the cap, which is important. It is one of the reasons why, in his continuing reflections on the arguments about appeals mechanisms, I hope he will bear it in mind that many more people will be contesting the calculation of that notional amount to reach their cap. Those people will have the financial means to contest, so avoiding costly legal cases is why we need some mechanism of the sort for which I argued earlier in our consideration of the Bill.

The Minister has been very persuasive, and as ever he has been helpful. With his commitment to meeting charities, and hopefully me, to discuss guidance after the Committee has concluded and the Bill is enacted, I will not press the amendments.

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

I absolutely agree with my right hon. Friend on the importance of a clear mechanism to enable challenge, which reinforces his point on people with money being willing to challenge. We need to end up with a mechanism that is straightforwardly clear and has an independent element but is not overly costly, burdensome and bureaucratic, which would cause delays and take enormous costs out of the system to everyone’s disadvantage.

I want to address further the points raised by the hon. Member for Easington on the use of direct payments. Direct payments cannot be used to purchase care directly from the home local authority, but there is no such restriction on local authority care provided via a personal budget, which continues to be the case under the Bill. If people choose to have a personal budget and not to take on direct payment cash, they may continue to opt to use local authority day facilities and so forth.

Photo of Grahame Morris Grahame Morris Llafur, Easington

Does the Minister not think that that is an anomaly that should be corrected if he believes in choice? Part of the consequences that all Members are foreseeing is a run-down in day care facilities. The amendment would be an easy way to address that.

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

I will reflect on what the hon. Gentleman says.

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

I know this might sound like a dry and technical issue, but it is important that people get the right personal budget to pay for care that meets their eligible needs and that that is done in an open and honest way. That is the bedrock of what will make the  personal budgets work. I do not think that Government policy and regulations are up to scratch, so I look forward to hearing what the Minister says. The detail may not go into the Bill, but this is a serious issue and we need to figure out how councils can provide these budgets in the best possible transparent way; otherwise, the budgets will get a bad name and we do not want that. I will look to the details in the regulations and make my judgment according to those.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.