Health and Social Care Bill

[back to previous text]

Clause 134

Direct payments in lieu of provision of care services
Greg Mulholland: I beg to move amendment No. 125, in clause 134, page 89, line 32, leave out ‘consider’ and insert ‘have determined’.
The Chairman: With this it will be convenient to discuss amendment No. 126, in clause 134, page 89, line 38, at end insert—
‘(1D) In determining the suitability of a person under subsection (1C) the responsible authority shall undertake such investigations into the making of direct payments as the Secretary of State shall by regulation define.’.
The amendments are about creating safeguards to ensure that there is sufficient protection for recipients of direct payments. Together, they would mean that a designated person must be determined by investigations to be undertaken by the responsible local authority. They would bring in arrangements that would allow direct payments to be made to the agents of someone lacking capacity, interlined with current good practice as established under the Mental Health Act 2007, in order to determine who is or is not suitable to act as agent.
The amendments would place a clear duty on local authorities to make such checks when agreeing to make payments to an agent or nominated person. The suggestion is simply that such checks would be prudent to ensure the safety of vulnerable people who lack capacity. The amendments would also ensure that public funds were appropriately spent and not passed on to anyone with an unsuitable financial background, which would make such payments a matter of concern. It might be that the Minister can assure the Committee that the amendments are not necessary, but I am sure that he agrees that the sentiment is a sensible one. I look forward to his comments.
2.45 pm
Anne Milton: I do not want to add much, except to welcome this move with direct payments. I would just like to caution the Minister again that I might want to say something briefly in the clause stand part debate—he did not raise his eyes, but he looked a bit tense for a second. I will be very brief.
The issue of the proper person can fall two ways. I was involved with a case in which an over-zealous social services department was utterly convinced that the guardian of an elderly lady was abusing his position. It took more than five years to resolve the matter. This issue is very difficult, and it arises in child protection and any case when responsibility has been given to a third party to look after somebody. We need to ensure that there are safeguards in place in both directions: to protect the vulnerable person; and to protect genuine carers from over-zealous social services departments.
Mr. Brian Jenkins (Tamworth) (Lab): I ask the Minister for clarification. If a person is regularly taken into day care on a regular basis, a local authority may provide direct payments. Some local authorities, I understand, will give a direct payment for the individual, but then refuse to allow them to go into public authority day care so that they must buy that provision in the public sector. Is the Minister’s intention to clarify that if a place is provided by a public authority, the people with the direct payments should have the opportunity to purchase that requirement from that authority?
Mr. Bradshaw: I reassure the hon. Member for Leeds, North-West, who tabled the amendment, that we all agree that we should take steps to reduce the likelihood that a suitable person may mismanage a direct payment or abuse their position of trust. Anyone who cares for a person who lacks capacity under the Mental Capacity Act 2005 and wilfully neglects or ill-treats that person can be found guilty of a criminal offence that is punishable by up to five years in prison, a fine, or both.
I do not think that the amendments are necessary because the safeguards that they would introduce are already present under new subsection (1A) and amended subsection (3). Direct payments will be made under the new scheme through a multi-step process. If someone is considered to be a suitable person who could potentially manage a direct payment on behalf of somebody else, that does not automatically mean that the direct payment will be made to them.
We have taken the powers in new subsection (1A) and amended subsection (3) to enable regulations to be made that impose conditions that must be met before the responsible authority decides to make the payments. Only if certain steps have been taken, or conditions have been satisfied, can payments be made to a suitable person. An example of a condition that we envisage being in the regulations is the requirement that the local authority must, when appropriate, consult family members or friends already involved in the care of the person who lacks capacity before deciding to make a direct payment to a suitable person. Furthermore, regulations may specify that if the suitable person is not a family member or a friend of the person lacking capacity, local authorities may be required to carry out vetting and a barring check under the Safeguarding Vulnerable Groups Act 2006 before making the direct payment.
I should perhaps add that the draft regulations on these matters will be subject to full consultation with local authorities, the Office of the Public Guardian and other interested stakeholders. In the light of those comments, I hope that the hon. Gentleman will feel able to withdraw the amendment.
In response to the question from my hon. Friend the Member for Tamworth about whether direct payments can be received even though somebody has been assessed as eligible for continuing care funding, my understanding is that it is not currently possible for somebody in receipt of continuing care funding to receive a direct payment as well.
Greg Mulholland: I appreciate the Minister’s full explanation of the regulations, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The danger is that cost cutting is turning the personal assistant or home carer role into that of a poorly paid dogsbody, and a job that not enough people are willing to do. We have seen this in the tourism industry. For some reason, we have a dislike of unskilled labour in service industries in this country. I do not remember the precise figures, but in central London there is unemployment of about 8 per cent. We are importing labour from eastern Europe and British people will not work in service industries here because it seems demeaning.
These direct payments must be sufficient to employ people of a sufficient calibre to give the care. The danger, particularly in any sort of work that involves going into people’s homes, is that if the status of that work is not high, not enough people are recruited and we get second-class care. While it is important that people are empowered and feel that they have ownership of the care that they receive, we do not want them to feel that they can receive only the very worst possible care that is available.
Question put and agreed to.
Clause 134 ordered to stand part of the Bill.
Clause 135 ordered to stand part of the Bill.
Schedule 13 agreed to.

Clause 136

Ordinary residence for certain purposes of National Assistance Act 1948 etc.
Anne Milton: I beg to move amendment No. 73, in clause 136, page 92, line 30, leave out ‘or by the Welsh Ministers’.
The Chairman: With this it will be convenient to discuss amendment No. 74, in clause 136, page 92, line31, leave out ‘and the Welsh Ministers’.
Anne Milton: We rehearsed the Welsh issue earlier in our proceedings and I will be happy to withdraw this probing amendment. As a Surrey MP, I am not as familiar with the problems of cross-border and devolved issues as many hon. Members, including my hon. Friend the Member for Eddisbury. I do, however, think that we need absolute clarity about who is responsible for what and whom. We have had a heated exchange at times, but I hope that the Minister will take on board the comments that have been made by my Welsh colleague, my hon. Friend the Member for Preseli Pembrokeshire. Sometimes the lack of clarity in legislation and from Government—and the lack of clarity from Ministers and Welsh Ministers—leaves Members of Parliament and, more importantly, their constituents, in an awful vacuum between the two.
Mr. Bradshaw: At present there is no one person with legal responsibility for determining cross-border disputes on ordinary residence between English and Welsh local authorities. Clause 136(2) remedies that defect and allows for a proper mechanism to be put in place for resolving such disputes. The amendment would remove entirely the Welsh Minister’s power to resolve disputes, thus creating a situation in which the Secretary of State for Health would be solely responsible for making ordinary residence determinations between English authorities, Welsh authorities and English-Welsh authorities. I hope that the hon. Lady will accept that that is not a workable option.
Mr. O'Brien: I want to record how welcome that is to someone who contends almost weekly with contentious cross-border disputes in which people do not feel that they are getting a fair entitlement when they cannot get the same provision in England that is available 200 yards across the River Dee in Wales. People often cross the river to try to play the system. We need to avoid effectively gaming with our public services as a result of constitutional arrangements. Therefore, I welcome the amendment, which I think is important.
I make a general plea that perhaps could be transmitted up through the Government into policy making. If the system is to really work, my constituents, just as much as those of my next door neighbour, the hon. Member for Wrexham (Ian Lucas), for example, need to know that their Member has access to a Minister in this place who can be held to account through questioning, rather than simply having a mechanism to go through. Ultimately, my constituents’ power to make something happen lies in them coming to me so that I can rattle the cage and open the door, as we do for all our constituents.
Anne Milton: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to discuss the following new clause 18—Continuity of social care support
‘(1) This section applies where—
(a) an English or Welsh local authority (the original authority) has made a determination of need for care services in respect of a person ordinarily resident in its area under any of the social care enactments and—
(i) has arranged or is providing such services or
(ii) is making payments to such a person in lieu of care services under section 57 of the Health and Social Care Act 2001 (c. 15) or section 17A of the Children Act 1989 (c. 41); and
(b) the person concerned becomes or intends to become ordinarily resident in a different local authority (the new authority).
(2) It shall be the duty of the original authority to—
(a) give notice to the new authority if it becomes aware that a person to whom it provides care services or direct payments intends to become ordinarily resident in the new authority’s area; and
(b) co-operate with the new authority in making appropriate arrangements for such a person.
(3) It shall be the duty of the new authority to provide the person concerned with—
(a) services of an equivalent type and quantity to those provided by the original authority or
(b) direct payments enabling an equivalent type and quantity of support to that provided by the original authority,
for such transitional period as may be prescribed.
(4) All arrangements made under subsections (2) and (3) are to be made with the involvement and consent of the person concerned and must include effective arrangements to meet any new or different needs of the person concerned.
(5) For the purposes of this section “social care enactments” includes—
(i) Section 2 of the Chronically Sick and Disabled Persons Act 1970 (c. 44).
(ii) Section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (c. 33).
(iii) Section 17 of the Children Act 1989 (c. 41).
(iv) Section 47 of the National Health Service and Community Care Act 1990 (c. 19).
Greg Mulholland: I do not want to delay the Committee, particularly for selfish reasons, as I wish to get back to put my two-year-old little girl, Isabel, to bed.
I would like to give a brief explanation of the new clause. It would address concern relating to people moving house or care home between local authority areas, and designate the responsibilities of both the original authority and the new one. The aim is to resolve any problems that might arise from the patient moving so that care may continue uninterrupted. The practical reasons are that local authorities might have different standards and practices of care. People are concerned that they might have to start the assessment process again, which could have cost implications. They are also, crucially, concerned that there could be a delay in receiving care in their new local authority, and, fundamentally, that the level and quality of care may fall. I hope that the Minister can assure the Committee that that is not the case and that the new clause is not necessary, and that he appreciates that this is a sensible, practical point.
Anne Milton: The hon. Gentleman raises an important point.
I will go back to the subject of over-zealous social services departments and problems relating to where people reside. I will give as an example an adult, perhaps with learning difficulties, who has been looked after by his parents, but who moves to another area because it is thought that he is able to manage on his own. For argument’s sake, let us say that he builds up social networks and lives there happily for ten years, but his situation then deteriorates and he needs care. He could find himself wrenched away from the area that he knows, has social contacts in, and has become used to, and having to return to where his parents live, but where he has not lived for ten years. I do not know whether the new clause is necessary, but I would like the Minister to take on board the fact that the problem often arises because people get caught up in the crossfire of no one wanting to pay. That is what this comes down to.
3 pm
Social services departments under pressure spend a huge amount of time and energy avoiding paying for things, but if they directed that attention and energy into just looking after people, they might save more than they are being required to spend on people’s care. It can be trying to watch, and extraordinarily stressful for the people involved.
Mr. Bradshaw: The hon. Lady and the hon. Member for Leeds, North-West make some important points, but I hope to reassure them that the new clause is not necessary. Local authorities already have a duty to work together to make appropriate services available to people who move from one local authority to another and to co-operate with each other in the process. The statutory guidance that we issue also requires co-operation when people are placed by one authority into accommodation in another authority area.
New clause 18 seeks to impose a duty on the new local authority to provide
“services of an equivalent type and quantity to those provided by the original authority”.
Given the example that the hon. Lady just gave, it would remove any flexibility from the relevant authorities and would assume that the needs of the individual have not changed since the original authority’s assessment. In order to allocate funds appropriately, it is essential that local authorities have responsibility to decide their eligibility criteria and to carry out an assessment of individual needs, circumstances and preferences. In the light of those comments, I hope that the hon. Gentleman will not press the new clause, and will get home in time to put his two-year-old to bed.
Question put and agreed to.
Clause 136 ordered to stand part of the Bill.
Clauses 137 to 144 ordered to stand part of the Bill.
The Chairman: To enable me to get my breath, Mrs. Milton will move amendment No. 75.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 25 January 2008