Health and Social Care

[back to previous text]

Mr. Burstow: I am disappointed by that response. Health authorities play an important role as commissioners and scrutineers of the NHS economy in their area. The Minister says that the relationship between patients forums and the other statutory bodies to be established by the Bill will be at arm's length, and through a non-statutory body. That seems unsatisfactory for the accountability framework that the Government are establishing. We will want to return to that issue on Report.

I recently tabled a question to ascertain some information about the costs of the new arrangements, and was told that it was too early in the parliamentary process for me to receive information about how much the new system will cost. I shall keep that in mind in future when Ministers ask us when we move amendments for detailed costings and the detail of the proposals behind them. Clearly, Ministers accept that they can introduce legislation without detailed costings or, indeed, details to back up the proposals. However, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 18

Liability for residential care charges

    `.—(1) Where a person—

    (i) has previously made their own arrangements for care and attention in a residential care or nursing home, and

    (ii) has requested an assessment under section 47 of the National Health Service and Community Care Act 1990 inter alia to obtaining community care services, including accommodation provided under section 21(1), and

    (iii) the authority has assessed that person as being in need of such care and attention under section 21(1)

    any liability of that person to make any payments under existing arrangements, or alternative arrangements which may be made, shall cease either at the date that the request for the assessment is notified to the local authority or at the date at which the person becomes financially eligible for assistance (under regulations made for the purposes of section 22 of this Act) if later, and liability shall pass to the local authority to fund that care and attention at that date. Regulations may provide for criteria as to whether the existing arrangements continue.

    (2) However the responsible authority may in respect of any payment made by them in pursuance of subsection (3) recover from that person such an amount in accordance with regulations made for the purposes of section 22 of this Act.

    (3) A person will be entitled to recover any monies paid in excess of that for which he is liable in accordance with the regulations made for the purposes of section 22 of this Act, from the point the local authority became liable under section 21(3).'.--[Mr. Burstow.]

Brought up, and read the First time.

Mr. Burstow: I beg to move, That the clause be read a Second time.

The new clause aims to address an anomaly and unfairness that sometimes occurs if people who are already in residential nursing homes are currently above the limit for the application of a means test and are self-funding. If they foresee that they will fall below the limit, they apply to the local social services department for an assessment of their needs with a view to becoming state-supported when they fall below the capital limit.

Age Concern has referred evidence to me—and hon. Members have referred to the practice in representations to the Committee—that some local authorities operate waiting lists and delay the time between the initial application for an assessment and when they carry it out. As a result, some people—but not all—are already below the capital limit when the assessment kicks in and state funding becomes available. They have thus lost the money that the state should not have taken from them in payments that they have had to make for their fees.

New clause 18 would ensure that people received their full entitlement under the Government's means-testing arrangements, and did not lose money so that they fell below the capital limits. Under the new clause, if they were driven below the limit, they would be entitled to a refund.

Mr. Hammond: Perhaps the hon. Gentleman can save the Committee time by responding to an intervention. I am baffled by new clause 18. I have read it and can make no sense of it. Subsections (1) and (2) refer to clause 22, which deals with unsuitability for inclusion in medical lists. Can the hon. Gentleman explain what it is about?

Mr. Burstow: I can explain that there is a drafting error. The hon. Gentleman is good at spotting drafting errors in Government Bills and amendments, so it is right for me to point this out. We intended the issue to be dealt with on Tuesday, when we were discussing clauses relating to residential care. Unfortunately, at that point it did not fit into the order of business and, as a result we tabled it as a new clause. I suspect that something occurred in the drafting that led to the error.

I hope that I have made clear the policy intention behind the new clause, even if the text on the order paper is not as clear as it should be.

Mr. Michael Jabez Foster (Hastings and Rye): I support the need to take action, not in the way proposed in the new clause, but through direction or some other medium to enable folk who are in that position to be compensated. In East Sussex, as many as one in four applicants are eligible. They are already placed in nursing homes, and that creates enormous challenges for local authorities and individuals. Local authorities are treating the £16,000 limit merely as guidance: they seldom treat it as an obligation to take early action. That is a problem in East Sussex because of resources, but it is also happening elsewhere. People face the double whammy of a delayed assessment and a further delay before an allocation of funds is made.

Mr. Simon Burns (West Chelmsford): Is the hon. Gentleman aware that it is not only a double whammy, but that up until a court case a few years ago, it was a treble whammy? There was the obscenity of Labour-controlled Sefton council refusing to accept the will of Parliament. It would not implement the £16,000 limit until the Government took it to court to enforce the law.

Mr. Foster: I am not aware of that case. East Sussex has a Liberal Democrat council that is in difficulty. I am not suggesting that this is a matter of ill will for many local authorities. Problems arise and need to be resolved. If the limit is £16,000, that is it.

I suspect that in theory the law already enables an individual to seek recompense. In practice, however, I do not believe that that often happens, because of the difficulties involved in litigation, and local authorities often respond quickly if efforts are made by the Member of Parliament or others to bring the matter to their attention.

I do not believe that the new clause would solve the problem, because it is offers an open cheque book. It suggests that there should be a total indemnity or that the contract should be assigned. That is a messy way of dealing with assignment of contract. In any event, the charging rates that the individual may have agreed could not be imposed on the local authority. However, it would be helpful if the Minister could tell us whether local authorities could be directed to accept the obligation by way of an indemnity from the moment the person becomes eligible to the moment that the assessment is agreed and allowed, so that the person would at least have the assurance that his limited means were not being further reduced while awaiting the outcome of the process.

4 pm

Mr. Hutton: I am grateful to the hon. Member for Sutton and Cheam and my hon. Friend the Member for Hastings and Rye (Mr. Foster) for their comments. There is no question but that the issue is serious and needs to be addressed. The hon. Member for Sutton and Cheam has proposed a solution, but he will not be surprised to hear that I shall not endorse it, for two reasons. First, it is not well drafted and contains references to statutes that do not exist, which is a problem, as I am sure he will understand. Secondly, it is unnecessary, as I shall explain.

As I understand the new clause, notwithstanding difficulties in understanding it because of how it has been drafted, it is designed to ensure that when a person who has previously funded his own care, but whose resources have been reduced to the level at which he might be eligible for council support, has been assessed as being eligible for council support, the council will take financial responsibility for his care, either from the date that the request for assessment was made to the council or the date that the person becomes eligible for assistance, if that is later.

Opposition Members and my hon. Friend the Member for Hastings and Rye expressed anxieties about older people in care homes who are in the difficult circumstances of having spent down to the capital limit while local authority financial support is either delayed or has not been delivered as and when it should have been. My hon. Friend the Member for Hastings and Rye asked what the Government planned to do about that. I remind him and the hon. Member for Sutton and Cheam that the Government have already taken action.

In 1998 we issued statutory guidance to local authorities clarifying and confirming the legal responsibilities of local authorities. When the capital of a person in residential care or a nursing home has been reduced to the upper capital limit, the local authority should, as soon as is reasonably practical, undertake an assessment, and when necessary step in to take over arrangements to ensure that the resident is not forced to use up capital below the appropriate limit. The hon. Member for Sutton and Cheam and my hon. Friend the Member for Hastings and Rye asked what would happen if a resident were forced to spend additional capital. I understand that if someone has been asked to contribute to the cost of his residential care outwith the means test, there is a clear liability and responsibility on the local authority to put that right. The hon. Member for West Chelmsford (Mr. Burns) is well aware of that, having had ministerial responsibility for these matters. There is no doubt about the legal effect of the upper and lower capital limits.

The framework for means-tested charging for residential care is set by Parliament. It is the law of the land. No one can opt in or out, and no one should be asked to contribute unfairly, outwith the terms of the means test. If a resident is asked to contribute in that way, it raises the issue of compensating him for the charges that he has been asked to pay.

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