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.’.
Greg
Mulholland:
I warmly welcome clause 134 as a whole, as it
extends direct payments to include people who lack capacity. We
strongly agree with the choice and flexibility that it will give the
system. It is an important and possibly overlooked part of the Bill.
The Minister will also be aware that the provision has been welcomed by
many of the relevant organisations, including Age Concern, Carers UK,
the Parkinson’s Disease Society, the Local Government
Association and the Commission for Social Care Inspection. However,
some organisations have expressed the concern that although it is
excellent in principle, and that it is right in practice, they want to
be reassured that adequate support is offered for the service user and
the carer—and the nominated representative or agent.
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.
Anne
Milton:
I want to raise the question of what direct
payments buy, and I have some figures from an article that appeared in
one of the papers. We have
already talked about our welcome for direct
payments, and there is no doubt that empowering people and having them
feel in control of the services that they receive is useful for not
only the individual concerned, but service providers. However, the
effect of individuals’ purchasing power can be quite profound,
and the help that people will be buying will be in the form of a
personal assistant or a home carer. It is very important that these
changes do not have unintended consequences. The job of being a
personal assistant or home carer must be kept viably
attractive.
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.
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