Care Bill [Lords]


The Committee consisted of the following Members:

Chairs: Hugh Bayley  , † Andrew Rosindell 

Abrahams, Debbie (Oldham East and Saddleworth) (Lab) 

Burstow, Paul (Sutton and Cheam) (LD) 

Doyle-Price, Jackie (Thurrock) (Con) 

Esterson, Bill (Sefton Central) (Lab) 

Griffiths, Andrew (Burton) (Con) 

Jones, Andrew (Harrogate and Knaresborough) (Con) 

Kendall, Liz (Leicester West) (Lab) 

Lamb, Norman (Minister of State, Department of Health)  

Lewell-Buck, Mrs Emma (South Shields) (Lab) 

Malhotra, Seema (Feltham and Heston) (Lab/Co-op) 

Morris, Anne Marie (Newton Abbot) (Con) 

Morris, David (Morecambe and Lunesdale) (Con) 

Morris, Grahame M. (Easington) (Lab) 

Munn, Meg (Sheffield, Heeley) (Lab/Co-op) 

Newton, Sarah (Truro and Falmouth) (Con) 

Penrose, John (Weston-super-Mare) (Con) 

Poulter, Dr Daniel (Parliamentary Under-Secretary of State for Health)  

Reed, Mr Jamie (Copeland) (Lab) 

Shannon, Jim (Strangford) (DUP) 

Smith, Nick (Blaenau Gwent) (Lab) 

Stephenson, Andrew (Pendle) (Con) 

Wheeler, Heather (South Derbyshire) (Con) 

Wollaston, Dr Sarah (Totnes) (Con) 

Fergus Reid, Committee Clerk

† attended the Committee

Column number: 85 

Public Bill Committee 

Tuesday 14 January 2014  

(Morning)  

[Andrew Rosindell in the Chair] 

Care Bill [Lords]

Clause 5 

Promoting diversity and quality in provision of services 

8.55 am 

Liz Kendall (Leicester West) (Lab):  I beg to move amendment 80, in clause 5, page 5, line 40, at end insert— 

‘(g) the importance of ensuring independent and effective advocacy services from those with the relevant skills.’.

I am sure that we are all delighted to be back here today, Mr Rosindell. We hope to make swift progress this morning so that we can get to the heart of the Bill, which is eligibility criteria and the longer-term reforms to social care funding. The amendment aims to ensure that when councils look to provide high quality, diverse services, they also bear in mind the importance of high quality independent advocacy and support. In the other place, the Government recognised the need for advocacy support and put it in the Bill. That is really welcome. As the Minister will know, the care system is incredibly complicated and having a good, independent advocate helps people make sense of it. 

One of the issues raised with us by organisations that work with older and disabled people is that, although the requirement for that independent advocacy and support is now in the Bill, they are concerned about how it will be available on the ground. Will care organisations get the support and, dare I say it, funding from local councils to make sure that those advisers are available? At the moment, the clause talks about the framework for good quality services and support but it does not include independent advocates. The amendment would make it clear that good quality service cannot be delivered without that independent advocacy. 

The Minister of State, Department of Health (Norman Lamb):  I join the shadow Minister, Mr Rosindell, in saying how thrilled I am to be back here with this group of friends, if I can put it that way, for another delightful session. The shadow Minister should not look so mean spirited. 

I should like to digress briefly to say something more broadly about advocacy, which is strictly related to the amendment, I hasten to add. We will discuss the issue in more detail later but I wanted to mention the point that the hon. Lady made about the Government amendment in the Lords. Clause 68 places a duty on local authorities in certain specified circumstances to arrange an independent advocate to be available during processes such as

Column number: 86 
assessments to facilitate the involvement of an adult or carer. This represents a significant step forward in supporting people who have particular difficulties in being fully involved in the process of meeting their care and support needs. It has been particularly well received both in discussion in the House of Lords but also more widely in the voluntary sector. I am grateful to the shadow Minister for acknowledging that in a very generous way this morning. 

When the case was made, I took the view that it was overwhelming and that we should be willing to amend the Bill accordingly. In tabling the amendment, the shadow Ministers reflect the importance of ensuring that people have access to effective and independent advocacy services when considering how their care needs can best be met. The amendment would mean that local authorities should consider advocacy services when fulfilling their duty to shape local care markets. It is important that local authorities shape a market in which a wide range of services can come together to provide a truly holistic approach to health care and support needs that puts people’s needs and experience at the centre of how services are organised and delivered. I strongly believe that access to effective advocacy services is critical for many people as they consider how their care needs can best be met.

Clause 8 already explicitly includes information, advice and advocacy services as examples of types of service that may be provided to meet people’s needs. It is therefore clear that, when providing a duty to shape local care markets of services to meet care and support needs under clause 5, local authorities will have to consider advocacy services alongside all other types of service. 

Liz Kendall:  I understand the case that the Minister makes. If a council wants to shape an effective and diverse market, it would want to ask users and families what they think about existing services. However an independent advocate might have a very good idea of whether the right kind of market in services is out there. That is partly why we tabled an amendment to this clause: not just so that councils should have advocates to help users and families, but to make sure that they are involved and give their views about whether the market is delivering for the people to whom they are providing advocacy. That is my key point. 

Norman Lamb:  I absolutely agree. Councils should ask advocates and others for their opinions as they seek to shape their view of the local market and produce their statement of the market and so forth. That is not actually what the amendment seeks to do. I make that point gently to the shadow Minister, but I absolutely agree that it makes sense that their views should be taken on board and they should be properly consulted. 

I can assure the Committee that we will make clear in guidance the importance of making sure that people can access effective advocacy services to ensure their continuing well-being, and that advocacy services form part of the wider set of services that local authorities should consider when shaping local markets. I think that the guidance will reinforce the point that the shadow Minister seeks to make in the amendment. I therefore reassure shadow Ministers that the Government understand

Column number: 87 
the purpose of the amendment, but I hope that I have demonstrated that the Bill already achieves those intentions. I hope that they will agree to withdraw the amendment. 

Liz Kendall:  I am grateful for that response. If the Minister can make sure that the guidance to authorities on shaping the market includes asking independent advocates, as well as users and families, what they think about it and involve them in shaping those services, I would be happy to withdraw the amendment. 

Norman Lamb:  I will seek to ensure that the guidance achieves exactly that. 

Liz Kendall:  I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Paul Burstow (Sutton and Cheam) (LD):  I beg to move amendment 34, in clause 5, page 5, line 48, at end insert— 

‘(4A) Regulations may make provision for arrangements for the independent arbitration of disputes between local authorities and providers concerning the fees paid by local authorities, the regulations shall prescribe the matters that are material to making a determination and the circumstances in which the arbitrator’s determination is binding on relevant parties.’

The amendment intends to address another aspect of the market-shaping duty, which is what clause 5 is all about. It recognises that local authorities have a role and responsibility not just for those they pay for, but for everyone with care needs. When the Joint Committee took evidence on this clause on market shaping, we were struck by the trenchant way in which witnesses gave evidence on issues around the market-shaping duty, particularly its interaction with the commissioning responsibilities of local authorities. There were a particularly striking couple of evidence sessions where we had witnesses from the care sector provider organisations. 

There was a real sense of alienation and anger about what many in the room on that occasion saw as long-standing problems and a long-standing dysfunction in the commissioning relationship. This was not just a concern of private providers; it was echoed by the charitable sector. Strong representations came from the UK Home Care Association, the Voluntary Organisations Disability Group, the National Care Forum and the new body, Care England.

The concern is long standing. Commissioning has in practice turned out to be crude procurement. It is not a genuine process of determining the level of need and the range of options to meet that need, and having proper conversations in advance of procurement with potential providers. 

Anne Marie Morris (Newton Abbot) (Con):  Does my right hon. Friend agree that there was also concern that this was very much a decision made on financial lines? Therefore, for many of the organisations selected to undertake the provision, it was a question of the biggest and the cheapest rather than the services that individuals needed. 

Paul Burstow:  My hon. Friend anticipates the point that I was about to make. It was also made in the Joint Committee consideration. It is about price driven below cost. During our second sitting last Thursday, we discussed

Column number: 88 
in this Committee one of the consequences of that. It is about contracting by the minute: time and task-oriented commissioning, which results in the 10-minute or 15-minute chunking of contracts, so that there is barely any time for interaction beyond performing the basic tasks before getting the documents signed and rushing off to the next job. 

My hon. Friend just made the point that, all too often, the conversation is about price. That is a real source of tension. The National Audit Office study, “Oversight of user choice and provider competition in care markets”, refers to a report by the Office of Fair Trading that found 

“that providers felt there was a lack of clear strategic direction from local authorities, and a lack of commissioning and procurement skills—which was leading to market inefficiencies and difficulties in planning.” 

That, of course, does not apply to every local authority; there are examples of good practice and we need those to be leading the others to improve quality. Care England argues that local authorities are using their monopsony power to force prices down regardless of quality considerations or prevailing economic conditions. The absence of agreement about how objectively to set a fair rate for care can and does end up with local authorities being challenged by judicial review. It cannot be right—it makes no sense—that litigation effectively becomes the only route by which meaningful dialogue and negotiation takes place. That is not a measure of a healthy market; it is a measure of a dysfunctional one. 

That is why clause 5 is so important. It is about trying to get local authorities to look beyond their own purchasing responsibilities to the whole of the care market in their locality. Amendment 34 seeks to provide a back-stop power—an arbitration mechanism. In the Joint Committee report, we recommended that local authorities should be required properly to take account of actual costs of care when setting the rates they are prepared to pay providers. The Government gave many positive responses to our recommendations. They said that they would make a change to the personal budget provisions. I will come back to that when we discuss a later group of amendments. 

The Joint Committee also recommended that an independent adjudicator was necessary to settle disputes between local authorities and providers over the cost of care. The Government said that they would investigate that as part of last summer’s consultation. It would be helpful if the Minister gave us some information about the Government’s thinking post their response to the Joint Committee’s report. Quite simply, the amendment would give the Government a regulation-making power to establish an independent adjudicator. That is only part of the changes needed to address the concerns to which we will come back, particularly when we consider the quality of commissioning in a later group of amendments. For now, I look forward to the Minister’s response to this amendment. 

Norman Lamb:  I find myself agreeing with a lot of what my right hon. Friend said. He used the expression “crude procurement”, which is too often the experience of many care providers. I have been clear that we need substantially to change practice and move away from procuring on the basis of time for care at home, and also from just procuring a place in a care home, rather

Column number: 89 
than commissioning for great outcomes for improving someone’s well-being. Of course, that is central to the clause and the Bill. The Association of Directors of Adult Social Services is working with the Government to look to design best practice commissioning. 

Those local authorities who get it right give clear incentives to care home providers to improve quality and outcomes for people, and focus on the well-being of their residents. My right hon. Friend is, however, right to say that practice is variable and that far too much commissioning and procurement is going on around the country. 

Dr Sarah Wollaston (Totnes) (Con):  Will the Minister also accept that one of the unintended consequences of the existing arrangements is cross-subsidy by self-funders of those being funded? Does he see arbitration as a way to address that? 

Norman Lamb:  I understand the risk of cross-subsidy; there are many claims that that happens. One of the good things that will emerge from the Bill is far greater transparency about the local authority’s negotiated fee and what the self-funder pays through what is declared in the personal budget, or independent personal budget, which will make any practice of that sort much more difficult. It is hard to predict the exact consequences, but that transparency will ultimately help everyone and make unacceptable practice much more difficult to mask. 

The amendment raises an important issue about the relationship between local authorities and care and support providers and how to resolve disputes, should they arise. The Bill recognises the importance of ensuring a variety of high quality services to meet the needs and preferences of all local people, not just those whose care is arranged by the local authority. As part of local authorities’ day-to-day functions, they will agree contracts with providers from whom they intend to commission care and support. Sometimes, those will be block contracts or framework agreements agreed in advance to allow for flexibility over time, but, increasingly, they will be more specific contracts tailored to individual cases and preferences. Where the local authority has put in place a framework agreement or agreed prices on an individual basis, we are clear that prices agreed with providers as part of a contractual discussion are for the agreement of the parties involved. 

Sometimes, there will be a dispute between the local authority and provider about the prices proposed or other matters and, occasionally, disputes may become intractable. The amendment would, in effect, require the appointment of a new independent arbitrator to adjudicate in any unresolved disputes. 

I understand why that has been suggested and the model from the groceries code adjudicator provides an example of how that could operate. Of course, the problem is that that legislation requires the supermarkets to pay for the adjudication system, but I do not think the suggestion here is for the providers to pay for that and my fear is that the cost of any system would have to come out of the money available for care. Any disputes that arise as part of a contractual negotiation would have to be resolved through that process. 

Column number: 90 

Local authority commissioners and providers should agree prices for care and support that reflect the particular circumstances in their local market. However, such negotiations do not take place in isolation. Local authorities must have regard to the importance of ensuring sustainability in the market as part of their market-shaping function under the Bill. That new duty is made clear in clause 5(2)(d). It means, for instance, that local authorities should not set prices that risk undercutting the stability of the market as a whole. Providers also have a clear responsibility, as they participate in negotiations over local fees. 

I completely understand and am realistic about the pressures that providers are under and the respective bargaining power of the parties. We are clear that they should not sign up to contracts that tie them to fee rates that will risk the quality of services or the working conditions of those providing them. In that way, the incentives already exist—both in the Bill and as a matter of business practice—to militate against unreasonably low fee rates. I make the point again about transparency, which the Bill will offer. 

9.15 am 

Paul Burstow:  Will the Minister consider and comment on the role that the Care Quality Commission can play through its thematic inspections? There is clearly an issue about how prices are set, how contracts are arrived at and the quality of the commission. The old system of routine inspections was meant to address that, but the evidence is that it did not. Will the Minister say how he expects the CQC to use its thematic powers so that that issue is addressed? 

Norman Lamb:  I am grateful to my right hon. Friend for giving me the opportunity to deal with that. There have been suggestions that, through this legislation, the CQC will disappear from the picture. It will not—it will have the power to conduct the thematic inspections. I very much expect those powers to be used, and they should be used where commissioning practices put the quality of care at risk. That might apply in a whole range of different circumstances. 

It is important that commissioners are held to account if they are behaving in a way that undermines the quality of care. If we have a commissioner/provider split, we have to get both sides of that equation right to achieve great care. I think we all have to recognise that, so I am grateful for my right hon. Friend’s intervention.  

Appointing or establishing a new independent arbitrator would add cost and bureaucracy to the commissioning process. It would be most likely to increase the risk of disputes, and might lead to participants in a dispute feeling absolved of a responsibility to negotiate and compromise. It could also mean issues becoming protracted by requiring more time for resolution, inevitably risking the continuity of care and support. 

For those reasons, I cannot support the amendment. I urge my right hon. Friend to consider withdrawing it in light of my response. 

Paul Burstow:  I have listened closely. I am not entirely persuaded, but I want to go away and think about what the Minister has said. The Government have been minded to propose legislation governing adjudication in the

Column number: 91 
groceries market and have recognised that there is an imbalance of power between different parts of that supply chain. I think there is a similar issue in the care sector. 

Norman Lamb:  In making his case, how does my right hon. Friend argue that such a system, if there is to be one, should be paid for? As I said earlier, the supermarkets pay for the adjudicator system. Is he suggesting that providers should pay? If not, does he concede that the money spent on running such a system would not be available for providing care and support from a local authority? 

Paul Burstow:  The Minister makes a fair challenge. Of course, any money that comes out of the system is potentially care forgone; I appreciate that entirely. 

In response to my Committee’s recommendation, the Minister and the Department said that they would consider the issue actively over the summer. The Minister’s response today has not reflected how that consideration took place. Will he say more, between now and Report, or in correspondence, about what actively happened? It would not have been unreasonable for the Department to have engaged with the provider sector to determine whether there was an appetite for such a measure. I have picked up on generalised support in my discussions with providers. 

I have heard what the Minister has said, but I am not entirely persuaded. Today, however, is not the day for dividing the Committee on the amendment, not least because I am sure the Minister will point out its technical deficiencies. However, I want to leave him under no illusions that the issue is one of serious concern. There is a dysfunction here. Simply hoping that things will be better in future because of practice changes is not borne out by similar hopes over the past decade. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 5 ordered to stand part of the Bill.  

Clause 6 

Co-operating generally 

Liz Kendall:  I beg to move amendment 82, in clause 6, page 7, line 23, at end insert— 

‘(f) sharing information and data so as to ensure high quality care and support.’.

Clause 6 seeks to ensure that all the different bodies co-operate with one another to improve care and support. Amendment 82 would ensure that, even when they are co-operating, all such bodies shared information and data to make sure people got the best possible care and support. All hon. Members will know from constituency cases that the different bodies that are supposed to work together often do not share information about the people who are using and receiving services. The amendment would ensure that local bodies worked together to share information where appropriate. 

The clause refers to a range of different bodies: councils, NHS bodies, chiefs of police, the probation service and Ministers of the Crown responsible for issues such as employment, training and social security. I want to give a specific example to illustrate my point. Last year, I spoke at an event organised by the Strategic

Column number: 92 
Society Centre, an excellent think-tank that examines policy in relation to social care. The event was also supported by Independent Age. 

The event considered brilliant research on attendance allowance claimants. The Minister knows that 1.3 million elderly people in England currently claim attendance allowance—a non-means-tested means of support to give extra money directly to people who have a high level of need. Some 80% of attendance allowance claimants have a long-term illness associated with heart disease, diabetes, stroke and arthritis. More than half have nine or more mobility problems or difficulties, which is a really high level of need. Despite that, more than a million claimants currently get no help whatever from local council social care services, and fewer than one in 20 get help from NHS community nurses. We know that specialist nurses working in the community can help people with heart disease and diabetes to manage their conditions better so that they can stay at home, their problems do not escalate and they do not end up in hospital. 

The Strategic Society Centre and Independent Age rightly highlighted the “missing million” people who have high levels of need, but do not get social care or NHS support when they might really benefit from it. Not only would they benefit, but taxpayers would too if people could be helped to stay living at home rather than ending up ringing 999 and going in an ambulance to accident and emergency. 

The research also showed that about a third of attendance allowance claimants are cared for by a son or daughter; 30% by a partner; and 15% by another family member—perhaps a brother or a sister. All that information is held by the Department for Work and Pensions. In other words, the DWP has amazing information about people and family carers who might benefit from up-front help and support. 

We have already talked about the fact that carers often do not come forward because they do not think of themselves as carers but as people trying to look after the person they love. We need to do more to identify them, and the DWP has that amazing information. Ensuring that the DWP shares information with local councils and social care would be a brilliantly effective way of getting the shift to prevention that all hon. Members want. I think I might have raised the issue with the Minister before; I am passionate about it. The Government need to get better at sharing information and data. 

Has the Minister ever had a conversation with his DWP colleagues about this matter? Does he agree that if the amendment were added to the Bill, Ministers of the Crown would be required to talk to one another and get the issue sorted out? I tabled the amendment to get better care and better value for taxpayers’ money, but it would also require every Minister to do what we all say we want them to do—to work together. 

I hope the Minister will accept the amendment. Will he at least tell me whether he has ever had a conversation with his DWP colleagues about joining up the work to get the best outcomes for people and taxpayers? 

Norman Lamb:  I totally agree with everything the hon. Lady said. Attendance allowance is a powerful concept, because it is a direct payment that gives the

Column number: 93 
individual total power to determine how they spend it in their best interest. The concept should therefore be strongly supported. It was interesting to hear what the hon. Lady said about the session she attended, but there has been a paucity of analysis of the impact of attendance allowance, how effective it can be, and who does and does not get it—some people who are entitled to it do not claim it. Her point about better collaboration was well made, and the Bill seeks to address that issue. Subsection (7)(d) states: 

“the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England”. 

Co-operation is therefore very much at the heart of the Bill. 

The hon. Lady asked about the conversations I have had. I have had lots of discussions with DWP about better collaboration, particularly on mental health and unemployment, but there is great potential for more effective joined-up work. I have not had a specific discussion about that issue, and I will do. That is a very good point, and I am grateful to the hon. Lady for suggesting it. There is a lot we can gain by doing what the Bill tells us we should be doing and collaborating more effectively. 

The Government agree that it is paramount for information and data to be shared effectively across organisations, including between commissioners and providers, to aid effective integration, for the purpose of achieving good care. However, we must understand and address the root cause of the current issues with effective information sharing. The Government do not believe that the amendment would help to achieve such a complex and technical goal. There are enormous frustrations about the failure to share information, whether between the Department for Work and Pensions and other parts of the health and care system; providers of health and care services locally, which do not share information with each other; or the commissioner and the provider locally. There are failures of good information sharing all over the place; they need to be addressed and we need to understand why such failures occur and how to unlock them. 

9.30 am 

This will require detailed work in order to understand how such information sharing can happen effectively, overcoming both technical and cultural barriers. Organisations often work in silos, without thinking about the bigger picture of the care that they are jointly providing to an individual. Officials at the Department of Health are undertaking that work, which I have made clear must be an absolute priority. Integrated care, about which I am passionate, is held back by the barrier of the failure to share information properly between organisations. Often, local organisations put up barriers that do not need to be there; they think that they have to have them to meet privacy requirements, but they end up preventing good care by operating in silos. So I regard this as a high priority. 

We have been clear that good data and information sharing is important—indeed, vital—to integrated care, which is why better data sharing between health and social care is included as one of the national conditions

Column number: 94 
attached to the better care fund. “The power of information” strategy also set out a number of ambitions, including the use of information to drive integrated care throughout the entire health and social care sector, both within and between organisations. 

Data sharing is governed by laws on data protection and confidentiality, and we would expect relevant partners to share information where relevant in accordance with the law when exercising their care and support functions to ensure high-quality care and support. 

Debbie Abrahams (Oldham East and Saddleworth) (Lab):  I totally support my hon. Friend the Member for Leicester West in her amendment. Is there a particular reason, in terms of the organisations that the Government want to have sharing, why education institutions were not specifically mentioned? That seems to be an omission, again, to consider the needs of young carers in the clause. 

Norman Lamb:  The Bill allows for the sharing of information between departments of an authority—a social care authority would also be the education or children’s services authority, so there should be that co-operation between departments in the authority and, indeed, with the education institutions beyond the authority in the public sector. The hon. Lady makes a good point; I absolutely agree with the spirit in which she is focusing on it. If I can provide her with any further helpful guidance and response I will seek to do so. 

Clause 7 provides a specific duty to co-operate in individual cases. Where a local authority or one of its relevant partners requires the co-operation of the other to obtain information relevant to care and support functions, it could request such information and the local authority or relevant partner must co-operate in providing the information, unless doing so would be unlawful or have an adverse effect on its functions. 

I hope that I have reassured the shadow Minister that information and data sharing will fall within the scope of the co-operation duties. The amendment is therefore unnecessary, but I completely share her absolute clarity of view that information sharing is essential in order to achieve not only good care, but the most efficient use of resources. 

Liz Kendall:  I thank the Minister for his response. He understands that information sharing is absolutely essential. I am happy to withdraw the amendment on the basis that, first, the Minister has accepted the general principle and that, secondly, he will go and talk to his colleagues in the DWP about the specific issue of attendance allowance. If he makes any progress on this, will he keep Members updated and will he acknowledge that the issue was raised by the Opposition, and that if he makes any progress, we have, in part, been responsible for that? 

Norman Lamb:  I try not to be tribal in my politics. I have already acknowledged that the point the shadow Minister made is a good one. I am very happy to keep Members informed about any progress that is made, but I commit to entering that discussion with DWP because I think it is worth while doing. 

Column number: 95 

Liz Kendall:  I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 6 ordered to stand part of the Bill.  

Clause 7 

Co-operating in specific cases 

Norman Lamb:  I beg to move amendment 1, in page 8, line 23, leave out subsection (6). 

The Chair:  With this it will be convenient to discuss Government amendments 2, 3, 5 to 7, 15 and 22 to 24. 

Norman Lamb:  This is a highly contentious set of new clauses which, I suspect, will detain the Committee for hours. In fact, it is a set of small amendments of a minor and technical nature. The purpose of the amendments is to ensure that the Bill is drafted as clearly as possible. To this end, I have tabled a set of amendments to include further definitions of terms, including “young carer”, “parent” and “child’s carer” in the glossary at clause 79(1) to ensure maximum clarity. These changes reflect our determination to get the detail of the Bill absolutely right, rather than any change in policy. I hope they will receive the Committee’s approval without the need to detain ourselves any longer. 

Government amendment 1 agreed to.  

Clause 7, as amended, ordered to stand part of the Bill.  

Clause 8 

How to meet needs 

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

Norman Lamb:  People’s needs for care and support cover a wide spectrum. Care and support can be provided in a number of different ways. The purpose of the clause is to illustrate some of the ways in which care and support needs might be met. It is critical that the new approach to care and support set out in the Bill focuses on people, their needs and their outcomes. As such, we do not want to set out a detailed or prescriptive menu of types of services into which adults’ needs have to be slotted. Rather, we want local authorities to have flexibility in how they meet people’s needs so that they can innovate in care and support to achieve better outcomes. 

The clause ensures that there are no legal barriers on the types of care and support that can be provided. Instead, the clause sets out a list of examples of how care and support needs can be met. This approach and the use of illustrations is intended to act as a signal that in a modern care and support system, we should be thinking about more than just the traditional ways of meeting care and support needs, such as placing someone in a residential home or making domiciliary care visits. These may, of course, be the best way of meeting someone’s needs. However, their needs may also be met through counselling services, information and advice and other kinds of good services or facilities. This could cover a wide range of services, so although the list

Column number: 96 
contained in the clause gives some examples, it is not exhaustive. The most important thing is that people get the care and support they require. 

The clause enables this to happen. It sets out the flexibilities that local authorities have in arranging for care and support. The local authority may meet people’s needs in care and support by arranging for another organisation to provide a service or by providing the service itself. It also enables the local authority to make a direct payment to the person who needs care and support so that they can manage and buy their own services, increasing the control that people have over their lives and the services that they receive. I hope that the clause meets with the Committee’s approval. 

Question put and agreed to.  

Clause 8 accordingly ordered to stand part of the Bill.  

Clause 9 ordered to stand part of the Bill.  

Clause 10 

Assessment of a carer’s needs for support 

Liz Kendall:  I beg to move amendment 84, in clause 10, page 9, line 41, after ‘adult’, insert 

‘or an individual under the age of 18 with caring responsibilities’.

Members of the Committee will know that clause 10 relates to family carers’ needs for support. The amendment would extend the right to have a carer’s assessment to young carers to ensure consistency with the changes that the Government propose to the Children and Families Bill. We welcome the fact that the Government have finally agreed to amend that Bill to extend the right to an assessment to young carers aged under 18. Young carers will no longer have to request an assessment or be undertaking a regular and substantial amount of care. We also welcome the fact that the Government have agreed to develop what they call a whole-family approach to assessments and support in both the Children and Families Bill and this Bill so that young carers’ needs are included when assessing an adult’s needs for care and support. 

As the Minister will be aware, Opposition Members and some Government Members have consistently pressed the Government to make these changes. I want to pay a huge tribute to the work of the National Young Carers Coalition, the Carers Trust and Carers UK for their tireless efforts on this issue. Amendment 84 would ensure that changes in the Children and Families Bill to ensure that young carers’ needs are assessed are mirrored in this Bill to make it crystal clear what local authorities’ responsibilities are in this area and to ensure absolute consistency. 

There are an estimated 700,000 young carers in Britain with an average age of 12; some are as young as eight or nine. Caring can put a huge strain on these young people. It can rob them of a normal childhood. It can disrupt their education and have a serious effect on their health and later life chances. This issue has been raised many times before on the Floor of the House and it is important that we also reflect it in Committee today. Nearly one third of young carers in secondary school have educational difficulties or miss school because they have to look after or help to look after a parent. Many feel isolated when they are growing up. 

Column number: 97 

School staff are often unaware that students are carers so it can be a hidden cause of underachievement. Many young carers leave school with no qualifications. They are less likely to be aware of their rights and to understand or be aware of the information, advice and support that is available. Later in the Committee, we will return to our amendments that seek to put a clear duty on local authority children’s services to identify and support young carers, by working with schools and higher and further education institutions—colleges and universities—in particular, to ensure that they have a specific duty to identify student carers. The Government have made progress on the issue, but a clear duty on schools, colleges and universities to identify young carers would make a big difference. 

9.45 am 

I pay tribute to my hon. Friend the Member for Worsley and Eccles South (Barbara Keeley), who has been campaigning on the issue and has produced a private Member’s Bill. The amendment reflects what she has done in working with young carers’ organisations. 

Debbie Abrahams:  I absolutely support what my hon. Friend says. I did some research with young carers. Their caring responsibilities impact hugely on long-term issues, particularly the development of relationships and long-term health needs, including their future as a whole. Making a change is absolutely vital. 

Liz Kendall:  A big challenge in many areas of public service is to shift the focus to prevention. Ensuring that young carers get the support they need early on will have a big impact on them and their later life chances across a whole range of areas. The amendment would ensure that there is absolute clarity and consistency in both Bills. 

I want to ask the Minister for further clarification on the whole-family approach that the Government say will be put in place by the combined changes under the Children and Families Bill and the Care Bill. I understand that more details of the whole-family approach to supporting young carers and the people they look after will be set out in forthcoming regulations. 

I want to raise an issue that has been brought to our attention by the Carers Trust. It says that the regulations must make it clear that when there is a risk that a child or young person’s well-being would be negatively affected by their caring role, care and support should be delivered to the whole family in a properly co-ordinated way, genuinely looking at both needs together and having a package of support that meets the needs for care and support of both the adult and the young carer. 

Who is working on the regulations in the Department of Health and the Department for Education? Will the Minister commit to ensuring that both Ministers work together and that, crucially, they work with the National Young Carers Coalition, the Carers Trust and Carers UK to ensure that the regulations and the guidance to councils are genuinely joined up? When will the regulations be published? 

Column number: 98 

Norman Lamb:  I am grateful to the shadow Minister for allowing me to intervene. I absolutely commit to close collaboration with the groups that she referred to and I join her in paying tribute to the campaigning work that they have done. There has so far been a fruitful collaboration in achieving the advances. In getting the regulations right, it is critical that that collaboration should continue, which of course has been the whole spirit of the legislation throughout. 

To pick up on another of the hon. Lady’s points, there needs to be close collaboration between my Department and the Department for Education, so that officials can ensure that the two pieces of legislation marry up effectively and lead to the whole-family approach to which she refers. 

Liz Kendall:  I am grateful to the Minister. When he rises to respond to the amendment, it would be useful to get a sense of the time scale. We really need to make sure that when guidance goes out to councils about everything in this Bill, the guidance on young carers is part of it. Otherwise, people will not start as they mean to go on; the Minister will know that the first bit of bumf they get about their new roles is what they will end up developing their work programme with. I am concerned that there might be a delay and want him to make sure that there is not. I will sit down now; the Minister can respond during his other comments if he likes. 

Meg Munn (Sheffield, Heeley) (Lab/Co-op):  I want briefly to support the amendment. I have the honour of being the patron of Sheffield Young Carers, so I have had the opportunity to speak to quite a few carers about their situation. They tell me that too often they are met by disbelief; teachers and other people do not believe them—“How can this young person take on this role? It is just an excuse for why their homework has not been done or they are late to school”. That disbelief does not stop with teachers, but spreads to people in social care. It is one of the effects of the separation of caring services for children and adults. 

It is so long ago since I trained. I was a generic social worker so we did the whole lot, as it were. Even when we worked in separate teams—I was in children’s services—we worked very closely with our colleagues in adult services. However, as time has gone on, and for good reasons because there is greater specialisation, that split often means that those who work in social care with adults just do not have the children in their heads. They do not consider what is happening—the effect on the children of being in a household where somebody has significant needs or what they are doing. The approach of putting young carers into the Bill is important. 

My hon. Friend the Member for Leicester West has said that the issue is important in relation to the information that goes out early on and the training to support the process, but it is also important in making a fundamental statement that young carers are important and that they also have needs as children that need to be met. They should not be seen as something separate. 

I know it takes far more than words in legislation to achieve cultural change, but it is enormously important that there should be such change. There is much greater identification of young carers now than ever there was,

Column number: 99 
and we should take heart from the projects that have been run. In Sheffield, projects have been run about young carers in particular schools and those schools identify a far greater number of young carers than others. We can do a lot to improve the situation, but it is important that the issue appears in the Bill. 

Paul Burstow:  I want to underscore the point about the significant difference that the Bill will make for young carers. I thank the Government for listening to the lobbying and the recommendations of the Joint Committee. 

I want to raise one issue that the Minister might be able to comment on: the interaction of the new duties around assessments of young carers and eligibility. We will come back to the issue later, but it is relevant here too. When it comes to eligibility, in some cases the assessment of a carer’s needs—in this case, a young carer’s needs—may well give rise to the identification of support needs for the person for whom they are providing care. However, that person may not themselves meet the eligibility criteria and may fall below the threshold. 

As a consequence, the young carer continues to shoulder a disproportionate and unfair burden in what they have to do as a carer. Eligibility needs to be framed more subtly than it has been historically to take that into account, so that the threshold is personal and reflects the circumstances of the whole family. That issue is central to the design of eligibility. I hope the Minister will say something about that now or when we come to clause 13. 

Bill Esterson (Sefton Central) (Lab):  I echo the comments of my hon. Friends and the right hon. Member for Sutton and Cheam. It is important that we put children at the heart of all we do. In our lengthy debate in the Children and Families Bill Committee, we repeatedly returned to the importance of putting children first and ensuring that their needs are considered. I am glad that other Members have spoken about that. 

In previous debates, the Minister has said that he does not like to legislate unnecessarily, and I hear that. However, we have been talking about the need to give guidance to councils. We can have the best intentions in tabling amendments, but the issue is the reality on the ground. Will the Minister spell out what the Bill will mean in practice and how it will improve not only the assessment of needs but their identification in the first place? 

On Thursday, my hon. Friend the Member for Sheffield, Heeley talked about the reluctance of young carers to come forward to be identified and the fact that they are often not believed. Those are all important points. It would be helpful to know how the Minister thinks young carers can be identified and supported, what that will look like on the ground and what the practicalities are of what he intends. 

Norman Lamb:  First, I confirm to the shadow Minister that we expect the draft regulations to be published for consultation in May. I repeat that we will collaborate with the Carers Trust and the National Young Carers Coalition in that ongoing work. 

My right hon. Friend the Member for Sutton and Cheam said that the assessment of a young carer’s circumstances might identify the needs of the adult—perhaps a parent—for whom they are caring, and that

Column number: 100 
there needs to be sensitivity about their individual circumstances. I share that view. One of the longer-term pieces of work that we are doing, which he knows about because it was referred to in the White Paper, is to try to be more subtle and creative in how eligibility works in the long term. Of course, local authorities can choose to recognise the whole-family circumstance and the need for support for a parent, even if they do not meet the formal eligibility criteria. 

I do not want the hon. Member for Sefton Central to get the impression that I am anti-legislation. I made the point last Thursday that passing something in this place does not always change the world; there has to be a combination of legislation and effective implementation. Sometimes legislation can do enormously good things and lead the way for changing cultures. The potential power of the Bill is that it will much more effectively recognise the vital need of young carers to be properly supported. The hon. Member for Oldham East and Saddleworth said that their needs are absolutely central. She or the shadow Minister made the point about teachers responding with disbelief—sometimes it can be even worse than that. 

10 am 

I met a young carer in my office, when Radio 1’s “Newsbeat” brought her in. She talked about how one teacher had been dismissive of her caring responsibilities; they were not really so important and homework came first. The teacher did not recognise the pressures that this 15-year-old girl was under, so there is an enormous need for a change of culture and for proper recognition of the need to support young carers. The changes that have been made are enormously important in advancing that cause. 

The amendment extends the duty to assess carers to include a duty to assess young carers under 18. Furthermore, as the provision being amended provides the definition of carer for the purposes of the Bill—this is critical—it would, in effect, extend all the provisions in the Care Bill relating to carers, and adults caring for adults, to include young carers under 18. The Government have already amended the Children and Families Bill, putting a young carer’s entitlement to an assessment on a similar footing to the provisions in the Care Bill for an adult carer’s assessment so that the two pieces of legislation marry up properly. 

The amendment to the Children and Families Bill consolidates and simplifies legislation relating to young carers’ assessments. The right to an assessment of needs is extended to all young carers under the age of 18 regardless of whom they care for, what type of care they provide or how often they provide it. I appreciated the shadow Minister’s welcoming the amendment, although she was a touch churlish in suggesting that we had finally accepted the case for amendment. There was, as I said, a good collaboration that resulted in a change and agreement to amend over last summer. It was widely welcomed by the groups campaigning on behalf of young carers, and I welcome her support for that and for the whole-family approach, which she also referred to in her contribution. 

Meg Munn:  I understand the Minister’s concern about inadvertently widening the definition for the whole of the Bill, but can he say a little more about that? There is

Column number: 101 
genuine concern borne out of experience as well as talking to young carers. How will the Government ensure that the whole-family approach is adopted if it is not in the Bill? Will it be in the guidance that it refers across to the Children and Families Bill? How will it happen? Leaving it to good will and a general sense that this is what ought to happen is not enough. 

Norman Lamb:  I hope that I can reassure the hon. Lady. The approach will absolutely be in the regulations that will be published in draft form in May. She and anyone else can respond to the consultation. I accept the points that she made in her earlier speech that too often these days within local authorities there is not good enough collaboration between social workers working on behalf of adults and those working on behalf of children. It is one of the perhaps unforeseen consequences of greater specialisation and of the creation of children’s services that bring education and children’s social work together; we have ended up with a bit of a divide between adults and children. That needs to be addressed. 

The Government need to recognise the situation, and we are, through trying to marry up the two bits of legislation, but local authorities absolutely need to recognise it. Indeed, those who educate social workers need to recognise it, because if we are to make a whole-family approach a reality, all parts of the system need to work to achieve it. 

Bill Esterson:  The Minister mentioned education. Of course, local authorities do not have direct responsibility for what goes on in many schools. There is often difficulty in the relationship between different parts of local authorities and schools. Children spend large parts of their time in schools, and that is where these issues can best be identified. Can I push the Minister a bit further on how he sees that identification working in practice? He mentioned changing the culture, so that teachers and others believe children when they say they have caring responsibilities, so they can be assessed. 

Norman Lamb:  I am grateful for that intervention. It is not always possible for Government to force things to happen but I agree that schools play a vital role in this. I have already referred to the duties of co-operation in the Bill. Schools need to work to identify where youngsters have caring responsibilities and be prepared to work with local authorities to achieve support for those youngsters, and to ensure that their caring responsibilities do not adversely affect their opportunities in education and later life. 

I ought to press on. The amendment to the Children and Families Bill makes it clear to local authorities that they must carry out an assessment of a young carer’s needs for support on request or on the appearance of need, and provides the appropriate links between children’s and adults’ legislation to enable local authorities to align the assessment of a young carer with an assessment of an adult they care for. 

In addition to that amendment to the Children and Families Bill, clause 12 of the Care Bill makes it clear that a local authority may combine an adult assessment with an assessment relating to a child, including a

Column number: 102 
young carer’s assessment, provided all parties agree. That, of course, helps to facilitate the whole-family approach. 

The Government’s amendment to the Children and Families Bill about young carer’s assessments, together with the Care Bill provisions on combining assessments and the forthcoming regulations on a whole-family approach to assessing and supporting adults, provide a clear legislative framework to support local authorities to consider the needs of young carers and protect children and young people from excessive or inappropriate caring roles. 

This amendment to the Care Bill would duplicate provision within the Children and Families Bill. It is one thing to have the two bits of legislation gelling well together, but there is no need for duplication when something is clearly provided for in one piece of legislation. I believe, therefore, it is unnecessary. Because of the extended role of the definition that I have referred to throughout the Bill it would be confusing to have similar provisions in both Bills. I hope, therefore, that the shadow Minister will agree to withdraw the amendment. 

Liz Kendall:  I am grateful to the Minister for his response. I want to try to put this in its basic terms. If a social worker goes to assess a person who needs care and support and sees that they have children, those children are probably caring quite a bit for their parent. Does that social worker also conduct an assessment of the young carer, perhaps at a separate time? 

We want to get the best results for the young carer, but we also want to avoid duplication. A social worker with generic skills can see the two people, do separate assessments and then bring them together. Unless we have something in the Bill that makes it clear to local authorities that, when they are assessing the adult they should also assess the young person—rather than doing it in a totally separate Bill focusing on children’s social workers—I am concerned that we will end up with duplication. 

The Minister says that he does not want duplication in the Bill. I am more concerned about waste and duplication on the ground in reality and practice. It would make sense for a social worker with generic skills who could do both, to do that, but I am not yet clear that that would not be done by separate departments. I seek assurance from the Minister that that practical example will be addressed, rather than two separate work programmes and work streams going on in separate Government Departments and separate council departments. That is a practical issue to which I hope the Minister will respond.

Norman Lamb:  It is absolutely the intention for the two Bills to gel; for the regulations to develop the concept of the whole-family approach; and for the whole emphasis coming from Government, in terms of guidance and instructions to local authorities, to work on a whole-family basis. 

Mrs Emma Lewell-Buck (South Shields) (Lab):  May I press the Minister on his thinking about who would carry out the assessment? Would it be an adult social care worker, or a children’s social care worker? My worry is that a caring child could be lost in a battle of different departments saying, “Not my responsibility”. 

Column number: 103 

Norman Lamb:  I completely agree with the hon. Lady that there is a risk of, “This is not my responsibility. It’s your responsibility”, and passing on to another department. It could be either, depending on the identified or apparent needs of a particular family. 

The absolute need for those departments to work closely together and to make a reality of the whole-family approach is completely shared by both sides of the Committee. A clear and strong message goes out from both sides that that has to happen. The policy has to challenge some of the silos that have developed in social work and bring back the concept of looking at the whole family. As I said earlier, that has to be addressed in education as well as in provision of service. 

Liz Kendall:  The issue is complicated. We do not want to make things more complicated than necessary, but we need to ensure that it is clear to people in practice who does what, and that we do not have two separate systems developing. I know that the Minister is committed to ensuring that that will not happen. I am grateful that he told us when the draft regulations are due to be published, and that he will continue to work with carers and young carers’ organisations. On that basis, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Liz Kendall:  I beg to move amendment 92, in clause 10, page 10, line 38, at end insert— 

‘(10A) Where an adult is being assessed for NHS Continuing Care and this is to be provided in whole or in part in the community, and that person has a carer who is providing or about to provide care, the local authority must ensure that a carer’s assessment under this section and section 12 is carried out of the carer’s ability to provide or continue to provide care.’.

The Chair:  With this it will be convenient to discuss amendment 97, in clause 14, page 14, line 7, at end insert— 

‘(3A) Services of an intimate nature can only be provided to the disabled person.

(3B) Regulations may make provision about what is, or is not, of an intimate nature for the purposes of subsection (3).’.

Liz Kendall:  As hon. Members know, clause 10 is about assessing carers’ needs for support. Amendments 92 and 97 are about assessing carers’ needs in two important areas. The first is in relation to NHS continuing care. The other is a separate issue, about ensuring that there is clarity in the Bill on the needs of families who are looking after someone, who often has a disability, and on ensuring that carers are not charged for the replacement service if they themselves need a break, and the person for whom they are caring needs to have care and support while the carer is having a break. I will go over the amendments and try to be as clear as I can, if that was not my most clear opening statement. 

Amendment 92 seeks to ensure that carers of people who receive NHS-funded continuing care, rather than council-funded social care, do not fall through the gaps, and definitely get an assessment to ensure that their needs are met. Any hon. Member who has dealt with issues with constituents on NHS continuing care knows that it can be a nightmare. 

Column number: 104 

10.15 am 

There are often difficulties and rows between the NHS and councils about who should pay for someone’s needs, and family carers often fall through the gaps. If they are caring for someone who receives NHS continuing care, their own needs must be assessed by the council, but because the NHS is paying for the continuing care, that carer is often ignored. Our amendment seeks to ensure that even if care is NHS funded, a family carer will have the right to have their needs assessed and to receive support. 

Carers UK raised the matter with us and it was discussed in the other place on amendments tabled by Baroness Pitkeathley, who has championed carers’ issues. It is important to clarity the matter, which is yet another area where two parts of the system do not work together. I hope the Minister will agree that the measure must be clarified to ensure that carers of people who receive NHS continuing care get the necessary assessments and support. 

Amendment 97 relates to the wider issue of when family carers are charged for services and support. The Bill is trying to clarify charging, including if and when carers are charged for services and support. Carers UK is worried that it does not go far enough in defining when a service is for a user and when it is for a carer. For example, if a carer is struggling to look after someone and needs a break, they need that service as a family carer, but the person being looked after also needs a replacement service while the carer is on a break. Carers UK is worried that there is not enough clarity about that in the Bill. We do not want a carer to be charged not only for their own support but for the replacement service for the person being cared after. Carers UK is worried that the lack of clarity, particularly in relation to families looking after disabled relatives, could cause confusion among the people doing the assessments, the social workers and the councils in terms of their charging policies, and that there is a risk that carers could be increasingly and wrongly charged for services. 

A related issue is my fundamental belief that disabled people must retain choice and control over the services they receive. There is a concern. If the carer needs a break and a replacement service needs to be put in place, we must ensure that the disabled person who receives that replacement service retains choice and control of what is happening to them. Our amendment seeks to ensure that disabled people retain that choice and control and are not simply given a service while their loved one is away. I am explaining this as clearly as I can. 

Under the Carers and Disabled Children’s Act 2000, services provided to a disabled person to meet their carer’s needs, such as having a break, cannot include intimate services for the disabled person. That is what our amendment seeks to replicate. During the debate on clause 1, the Minister said that he was not sure whether the word “choice” added anything to the concept of individual control over day-to-day life. I am convinced that it does, and the amendment would entrench that in the Bill to ensure that disabled people continue to have choice in the services they receive. 

I want to take this opportunity briefly to make a wider point about charging carers. There is provision in current legislation for councils to charge carers for services and support. However, in practice, many councils

Column number: 105 
do not use that power because they rightly understand that carers do a phenomenal job. They do so, as my hon. Friend the Member for Sheffield, Heeley said, because they are looking after someone they love, and that delivers a big saving to the taxpayer. Councils understand that, and many councils may not want to charge carers for such services. 

I want to put it on the record that I was pleased to hear the debate in the other place, when Baroness Pitkeathley spoke about how Hertfordshire county council recently reversed its decision to charge carers: first, because it decided that if carers thought that they could not afford to pay the charge and gave up work, they would end up having to claim benefits, which would cost the local authority more; and, secondly, because it understood that many carers tend to be on lower incomes than other people of the same age, because they have had to give up work to take on their caring responsibilities, and so they would be unable to meet the charges levied on them. The concern, however, is that as local authority budgets are squeezed, councils will come under increasing pressure to charge carers for their services and support. According to the Health and Social Care Information Centre, 400,000 carer assessments were carried out in 2010-11. The Government’s own impact assessment for the Bill stated that the number of carers receiving an assessment after the Bill has been enacted is likely to go up by between 230,000 and 250,000. 

The Joint Committee on the draft Bill—hon. Members will correct me if I am wrong—recommended that the Government protect carers from being wrongly charged. I understand that the Government have already attempted to meet that recommendation by amending clause 14. I hope that they will take a step further and provide complete clarity on ensuring not only that carers looking after someone who receives NHS continuing care are properly assessed by the council, but that they are not charged for the replacement services, as well as their own services in support. 

I have attempted to explain that as clearly as I can. If I have not, I beg the Committee’s forgiveness. 

Norman Lamb:  Amendment 92 would impose a specific requirement on the local authority to assess the ability of a carer to provide, or to continue to provide, care of an individual who is being assessed for NHS continuing health care in the community. I am not convinced, however, that such a requirement is necessary. 

I sympathise with the sentiment of the amendment, and I completely understand the concerns expressed by the shadow Minister. When someone is being considered for NHS continuing care, the risk is that the carer gets forgotten. That risk of course applies across the board, and we debated it last Thursday. There is a need for the whole system to be much more focused on the carer, as well as on the person being cared for. 

It is important that no assumptions are made about a family member’s ability to care, or about an existing carer’s ability to continue to care, either by the NHS or by local authorities. If a carer is identified in the course of an NHS continuing health care assessment, the national framework for NHS continuing health care and NHS-funded nursing care makes it clear that the clinical commissioning group should: inform such carers about their entitlement to have their needs as carer

Column number: 106 
assessed; and, where appropriate, advise the carers either to contact the local authority or, with their permission, refer them to the local authority for an assessment. That directly addresses the concern expressed in the amendment. 

Provisions in the Care Bill provide a lower threshold for a carer’s assessment than exist now. We propose to remove the existing requirement that a carer should be providing, or intend to provide, substantial care on a regular basis. Instead, the local authority will be required to offer a carer’s assessment where there may be a need for support. That is the only bar that needs to be cleared—a very low one. 

Where the person whom the carer supports is being assessed for NHS continuing care and wishes their care to be delivered in the community, the local authority is likely to regard the carer as needing to be supported. A carer’s assessment would then be triggered. Clause 10(5) already requires a carer’s assessment to include an assessment of whether the carer is able, and likely to continue to be able, to provide care for the person needing care. Importantly, it also requires an assessment of whether the carer is willing, and likely to continue to be willing, to provide that care. 

Nothing prevents a local authority from carrying out its assessments jointly with those being carried out by other bodies. Indeed, I encourage that approach and hope that the better care fund will shift things in that direction. We expect that to happen, and that approach would be entirely in accord with the co-operation requirement in clause 6. It will be helpful to consider that circumstance further as we work with stakeholders over the coming months on drawing up the regulations that will set out further provisions on assessments. 

Grahame M. Morris (Easington) (Lab):  Before the Minister moves to the next amendment, will he clarify whether he intends to use part of the better care fund to set up the infrastructure for assessment? 

Norman Lamb:  The better care fund sets out criteria on national conditions. There is a separate strand of funding in it for the preparation that local authorities will have to do to implement the provisions in the Bill. 

Amendment 97 would introduce an unnecessary layer of regulation and potentially reduce flexibility in deciding how best to provide support. This is a complex area, and I do not entirely understand what the amendment seeks to achieve. That has nothing to do with the shadow Minister’s explanation, but it is not entirely clear, simply from looking at the amendment’s wording and its place in the clause, how it would work. 

Meeting a carer’s needs will usually require providing some support direct to the carer, as one might expect. That may be in the form of a direct payment to allow the carer to purchase gym membership, or a laptop to keep in touch with others. However, depending on the circumstances and individual preferences, that may also include some type of care directly to the adult needing care, even though it is aimed primarily at the carer’s needs. I hope that the Committee is reassured that neither of the amendments is necessary and that hon. Members will feel able not to press them. 

Column number: 107 

Liz Kendall:  I am grateful for the clarification on NHS continuing care, to which amendment 92 relates. I shall therefore be happy to withdraw the amendment. However, perhaps the Minister can clarify, first, whether a carer would be charged not just for their break, but for the service that replaces them when they are on their break. Secondly, when a council supplies that replacement service, will that adult—and especially disabled adults—still have the choice and control over that service? We do not want councils to supply replacement services that are not what that disabled person wants. Those are the two issues on which I wanted a bit more clarification from the Minister, either now or in a letter. 

10.30 am 

Norman Lamb:  I am happy to write to the shadow the Minister to try to clarify all this further, but the carer would not be charged for care provided to the person they are caring for, to enable them to take a break or whatever it might be. In answer to the hon. Lady’s second question, I would want to ensure that the same degree of attention was paid to the individual’s needs and wishes, rather than any determination or assumption being made by others about what they need. That is at the heart of the Bill. I will happily write to her to expand and develop that point further. 

Liz Kendall:  I am grateful to the Minister for that helpful clarification on those two points. I can imagine constituents coming into my surgeries worried about this if it is not absolutely explicit. It would be great if the Minister could write to me. On that basis, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 10 ordered to stand part of the Bill.  

Clause 11 

Refusal of assessment 

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

Norman Lamb:  Clause 11 states what must happen where an adult or a carer refuses to have a needs or carer’s assessment. It is important to make the point that as long as a person has the capacity to do so, they should be free to choose whether their needs are assessed and whether to have their needs met after an assessment. We should respect the individual’s right to choose, and this clause retains that right. 

There are some exceptions, which I will cover a little later. In the majority of situations, we do not expect this clause to apply. However, there may be some circumstances, such as where people who have been referred to the local authority from elsewhere do not agree that they need care and support. These people should have the right to refuse that assessment, which acts as the gateway to the care and support system, and the system should respect this right. 

The clause also protects the interests of the local authority. Owing to the nature of care and support services, it would be extremely difficult and completely inappropriate to force care and support upon someone who did not wish to receive it. However, an adult who

Column number: 108 
has previously refused a needs assessment retains the right to approach the local authority at a later date and to request an assessment, even if they refused one earlier. Under these circumstances, the local authority is required to provide an assessment in the same way as it must for any other person. 

As I mentioned earlier, there are some exclusions from this right of refusal, which I shall turn to next— 

Jim Shannon (Strangford) (DUP)  rose—  

Grahame M. Morris  rose—  

Norman Lamb:  I give way first to the right hon. Member for Strangford. 

Jim Shannon:  Just “honourable” will do. Is there a procedure in place for members of a family who are concerned for a relative to the extent that they fear that the person’s health would be detrimentally affected by not having an assessment and getting the help they need, even though the individual can make up their own mind? 

Norman Lamb:  I apologise for inappropriately promoting the hon. Gentleman. Where a family has concerns, it would be entirely appropriate for them to raise them with the local authority. Indeed, the Bill will create in statute adult safeguarding boards, so such concerns could be raised through that mechanism. I hope that addresses the issue the hon. Gentleman raises. 

Grahame M. Morris:  This was a major discussion point in the Joint Committee led by the right hon. Member for Sutton and Cheam. For illustrative purposes, could the Minister share with the Committee an example of the sort of situation where an individual might refuse such an assessment? 

Norman Lamb:  It is simply that some people regard themselves as very self-sufficient. They do not want to interact with the local authority. They have capacity and are steadfastly determined to do their own thing. In our society, they have the right to make that decision. 

As I mentioned earlier, there are some exclusions to the right of refusal, which also helps to address the hon. Gentleman’s intervention. First, if the adult lacks capacity, the local authority must carry out the assessment if it believes that that would be in the adult’s best interests. Secondly, the local authority must carry out the assessment if the adult is experiencing, or is at risk of, abuse or neglect. These exclusions provide an important safety net to ensure that vulnerable members of society are fully assessed and, if necessary, provided with the appropriate care and support. 

Clause 11 ordered to stand part of the Bill.  

Clause 12 

Assessment under sections 9 and 10: further provision 

Liz Kendall:  I beg to move amendment 86, in clause 12, page 11, line 47, at end insert— 

Column number: 109 

‘() specify when an assessment must be carried out face to face.’.

Clause 12 sets out some further issues in relation to the assessment of adults for services and support. The amendment would ensure that the regulations that the Government will be bringing forward on how assessments are carried would specify the kinds of cases where assessments must be conducted face to face. Amendment 87 would ensure that local councils work closely with organisations like the Alzheimer’s Society and others that have a track record in knowing how to get the best possible assessments of people for care and support. This might seem like a minor issue, but getting the assessment right is vital. If the assessment is right, everything can then flow from that. 

Mrs Lewell-Buck:  Does my hon. Friend agree that without a face-to-face assessment, serious safeguarding issues may be missed? How can assessments be done over the phone? Unless a person is seen in their environment or their home, it is not possible to know what is going on with them. 

Liz Kendall:  My hon. Friend hits the nail on the head. In some cases it might be possible to do an assessment over the phone, but I know from my family’s experience that even issues that should be relatively straightforward are not. Often older people do not want to admit that they are struggling or have any issues or problems. They do not want to say that they might need a few home adaptations, and that might be in a relatively straightforward situation. However, I know from my family experience that when one goes to the house and sees the conditions, one realises straightway that this person is struggling—they are looking a bit stressed, worried and concerned. They do not want to ask for that help, but it would really benefit them, as the family carer, and the person they are caring for. 

I am all for using technology for assessments—not that we would necessarily think a telephone was technology these days, although we might call our smartphones technology. However, although I am all for using IT, phones and the like, I am concerned that unless we specify that there are many cases in which face-to-face assessments are essential, we will end up with a tick-box approach that does not meet people’s needs. I know that the Government hate that kind of approach. 

Let me turn to advice lines. They are a separate matter, but offer an illustration of an issue relating to amendment 87. We need advice lines to offer help from people with specific experience and expertise. 

Bill Esterson:  To reiterate the point about using evidence from previous campaigns, does my hon. Friend agree that the evidence of encouraging older people, over many years, to take up the benefits to which they are entitled shows exactly the same point? Unless people are prepared to go and see people, and particularly older people, they are reluctant to sign up for benefits, because there is a reluctance, a pride and a misguided desire not to impose on others. We have had evidence of that already for many years in a number of areas, including benefits. This assessment could have the same impact. 

Column number: 110 

The Chair:  Order. I will clarify for the shadow Minister that we are dealing with amendment 86, not amendment 87, which we will come to next. 

Liz Kendall:  I thank our wonderful Chair. I was trying to deal with both amendments to move on swiftly, because the two are related, and I forgot the specific procedures of the Committee for a split second. I shall stick to face-to-face assessments. 

My hon. Friend has raised an important issue. We have seen the impact of not having that kind of face-to-face advice in a number of areas, not just social care. This is not simply a matter of making sure that people get the right help and support, absolutely central though that is; it is also about value for money. If the assessment is not good and does not identify a person’s needs, and if that person does not get the right help and support, we will not help people to continue living in their own homes, which is exactly what they want and what taxpayers need to make sure that we get the best value for taxpayers’ money. 

Most importantly, we need to make sure that face-to-face assessments take place for people suffering with dementia. Dementia is still a frightening condition for many families and there is still too much stigma associated with it: people are worried and embarrassed if a loved one is struggling with dementia. Our concern is that if light-touch assessments are too generic and are not carried out face to face, people will not receive the best possible help and support. Amendment 86 seeks to ensure that when the Government come forward with regulations, they contain a substantial chunk about when face-to-face assessments are appropriate. 

The Alzheimer’s Society and other organisations have pressed us on this issue; I hope the Minister either accepts the amendment or gives a clear response about what will be included in the regulations. 

Grahame M. Morris:  As well as supporting the points made by my hon. Friend the Member for Leicester West on dementia and Alzheimer’s disease, and the importance of a face-to-face interview as specified in amendment 86, I want to say a few words about autism and the importance of ensuring that assessments are complete. The amendment would require the Government to come forward with further regulations about assessments. I have met local representatives of the National Autistic Society in my constituency. They raised particular concerns with me about the operation of guidance in the Autism Act 2009: that when assessments are made the assessors are trained in understanding autism. 

10.45 am 

The term “autism” is fairly broad and when I talk about it I refer to all conditions on the spectrum, including high-functioning autism, Asperger’s syndrome and classic autism. Like others, I welcome the Government’s amendment to the Care Bill that was brought forward in another place, enabling the development of regulations that specify where community care assessments should be carried out by assessors with specific expertise. We touched on this a little earlier. However, although this was debated in the other place, it is still unclear whether autism will be included in the regulations. Perhaps the Minister can help. 

Column number: 111 

Proper assessments are needed so that people with autism receive the right support that will meet their needs and, as we just heard from my hon. Friend the Member for Leicester West about people with dementia and Alzheimer’s disease, these needs are often hidden and difficult to identify. I understand that autism is a complex condition. Some people are able to live relatively independent lives, but others suffering from a more acute form of the condition may need ongoing specialist support or more low level support. As well as a knowledge of the difficulties that a person with autism can face, I would argue that an assessor needs specific skills to carry out the assessment successfully. 

In the statutory guidance published after the passage of the Autism Act in 2009, the Department of Health provided clear direction that autism training is essential for community care assessors to ensure the needs of adults with disabilities are fairly assessed. What we seek in this amendment is an assurance that the regulations for this Bill will look at the specific needs of adults with autism in line with that guidance. The statutory guidance states that an assessment should be carried out by “trained practitioners” who have a “good knowledge of autism” and should take account 

“of the communication needs of adults with autism”. 

The guidance also states that local areas should develop or provide specialist training for those in key roles that have a direct impact on access to services for adults with autism. These could be GPs or community care assessors, so that 

“within each area, there are some staff who have clear expertise in autism”. 

I am not saying that everybody has to be trained, but otherwise—I hate the expression “pin the tail on the donkey”—but we could end up with a postcode lottery. 

In order to meet these duties, assessments need to be carried out by specialist assessors, so there is a need to reinforce the recommendations of the statutory guidance. National Autistic Society research found that just over half of English local authorities had specialist training available for their staff. There is clearly a deficiency that needs to be addressed. 

I recognise that the Government’s proposed new regulations present a opportunity to stop poor community care assessments for people with autism, or at least address that deficiency. Too often those needs are not identified and, as my hon. Friend the Member for Leicester West pointed out, it is not purely for altruistic reasons, or because of complaints, that we need to do this. If we do not pick up these needs and provide an appropriate level of support, the consequence for the public purse is often very much more when these people default either to hospital or other institutions for more expensive in-patient care. There are complex and variable ways in which autism can affect a person’s ability to function in everyday life and engage effectively with an assessment process. As is the case with those who suffer from dementia, it is often difficult to interact with someone who has autism and to find out what their needs are. Those of us with local authority backgrounds know that it has proven difficult for non-specialist assessors to understand and respond to those challenges. 

I am grateful to have the opportunity to raise this issue. I ask the Minister respectfully whether he agrees that regulations requiring specialist arrangements for

Column number: 112 
those with autism would reinforce the existing requirements in the Autism Act 2009. To that end, will he confirm that autism will be included in the regulations and guidance that he issues? 

Debbie Abrahams:  I rise to make a couple of points in support of the amendment. I support what my hon. Friend has said about the importance of face-to-face assessments for families caring for those with dementia. I have personal experience of the issue because my mother died of Alzheimer’s disease last year, and I got a very different perspective on the problems that my stepfather faced over the phone than I did when I was actually there. A telephone conversation does not give any sense of how someone is dealing with the circumstances that they face. A face-to-face assessment is absolutely vital. 

I had a visit from a constituent who is Hungarian, for whom English is a second language. Her son came to the surgery to represent his mum’s views. She was caring for her husband who was in the late stages of Parkinson’s disease and she had chronic back problems, but she was not able to communicate the issues that she faced on a day-to-day basis, so she was managing stoically. I was able to make representations on her behalf, but that should not be necessary. I emphasise the importance of a face-to-face assessment and someone who can speak the appropriate language in such circumstances. 

Norman Lamb:  I will pick up quickly the points made by other hon. Members before I move on to the shadow Minister’s speech. I am grateful to the hon. Member for Easington for raising autism, and he made a good point. To return to the discussion with the hon. Member for Sefton Central about the power of legislation, we are in quite a good position with the Autism Act and the autism strategy that underpins it, but we know that implementation is patchy. We have a long way to go before people with autism are treated properly by the health and care system. 

I was pleased to hear from my hon. Friend the Under-Secretary that he hopes the refresh to the mandate for Health Education England, on which he is working, will contain something specifically focusing on autism and the need to improve the understanding and awareness of health professionals and others about such issues. The hon. Member for Easington will be aware that we are currently undertaking a review of the autism strategy, and he should feel able to contribute to that if he wants to. He may already have done so. 

We must do more to implement the Autism Act and the underpinning strategy locally. In clause 12 we have the power to ensure that the assessment is “appropriate and proportionate”, which includes ensuring that the assessor has the appropriate experience of carrying out specific assessments, such as on autism. They can also consult people who have experience in that area. I refer in particular to clause 12(1)(f), which refers to the ability to consult a person with expertise, so that issue is specifically addressed. 

We have also been consulting on specific groups, in terms of the regulations. We have identified and been clear about deaf-blind people, but we have asked about other groups that it may be appropriate to consider in that regard. The hon. Gentleman made the point about autism and that has been noted. 

Column number: 113 

The amendment would provide for a power that specifies when an assessment must be carried out face to face. We believe that local authorities should be given the flexibility to determine how assessments are carried out on a case-by-case basis. The clause as drafted provides power for regulations to make provision to ensure that assessments are carried out in 

“an appropriate and proportionate manner”, 

which is the phrase that is used. The regulations that we intend to make will require local authorities to consider the adult or the carer—whomever the assessment is done on behalf of, or with—their preferences and the extent of their needs to ensure that the assessment is both appropriate and proportionate. 

Bill Esterson:  The Minister has not come on to the point put to him by several hon. Members about the need for a face-to-face assessment. He made the point that the decision should be taken by the person being assessed, or presumably, their carer. Will he say a bit more about that? Does he accept that sometimes—my hon. Friend the Member for Oldham East and Saddleworth made this point from personal experience—the individual is not best placed to judge their situation? Does he feel that there is a time when there is perhaps a need for intervention of some kind that insists on a face-to-face assessment? 

Norman Lamb:  I completely accept that. The point was made by the hon. Member for Oldham East and Saddleworth and by the shadow Minister about the risk sometimes in not getting the full picture by telephone, and I understand that completely. The point I am making is that I think that it needs to be done on an individual basis, and not mandated for specific categories of cases, because I think we could end up with unintended consequences. There will be cases in which an appropriate and proportionate approach can be delivered only by a face-to-face assessment. I completely accept that. Was the shadow Minister waving her hand in agreement, or did she want me to give way? 

Liz Kendall:  I wanted to intervene. I really want to press that issue, because of my personal experience of somebody in my extended family, who is in their 70s, who has had multiple different problems with cancer, and who is looking after somebody else in their late 70s who has had multiple heart failures and heart operations, and who now has Alzheimer’s. An assessment was given over the phone. The person who I am referring to was so worried about coming forward anyway, because they thought that it was embarrassing for the family member to have dementia. She did not question the phone assessment and I said, “Why on earth are you having a phone assessment? Why is that person not round there?” It was done on the phone, so this is already happening. We do not want to specify individual groups of people, laying down in detail every single person, but this is happening and it is a problem already. Council budgets are being squeezed and as ever more carers are going to be assessed under the Bill, the problem will get worse. That is not good for anyone and I do not feel that I have enough crunch from the Minister about what he will do about it. 

Column number: 114 

Norman Lamb:  I am grateful for that intervention. I would say that the circumstance that she describes does not meet the test in the clause, in that the assessment must be appropriate and proportionate. She describes a complex set of circumstances in which a proper and thorough assessment would absolutely be needed. 

11 am 

Other hon. Members have made points about the type of assessment. The assessment that we are legislating for here is not just a question of “Do you pass or fail a eligibility test?”. It has a much richer purpose than that, which is to identify what can be done to reduce the deterioration of a condition and what can be done to help an individual and their family to support themselves—a point made by the hon. Member for Sheffield, Heeley last Thursday. That is what we should seek to do; not just offer replacements, but help people to manage and build on their assets and their abilities, to help them be more resilient. With a thorough assessment, we possibly end up achieving a saving further down the line. A rushed box-ticking exercise is a false economy. As the shadow Minister says, the Government are focused on getting rid of tick-box exercises that achieve nothing, other than satisfying the Government inspector. 

I am with the shadow Minister completely on the importance of proper assessments taking place, but I do not think it makes sense to mandate specific circumstances. I am clear that face-to-face assessments are appropriate in many complex circumstances. 

Grahame M. Morris:  I am grateful to the Minister for giving way. I do not doubt his sincerity or integrity. I listened carefully to the assurances he gave. I understand the reluctance to place a firm commitment to face-to-face assessments in the Bill. Is it possible to achieve the same ends through fuller guidance? What is running through my mind are the debates we had on the 15-minute care visits. They should not be standard practice. There is an argument over whether they are reasonable or not, but rather than outlaw them, because there might be circumstances in a small minority of cases where there is some merit in them, we— 

The Chair:  Order. May I remind the hon. Gentleman that he is making an intervention, not a speech? 

Grahame M. Morris:  I am trying to ask whether the Minister could confirm the matter in guidance. 

Norman Lamb:  To respond to that neat and concise intervention, I am sure that we can develop the guidance further. 

Liz Kendall:  That is what amendment 86 says. Clause 12 says: 

“Regulations must make further provision about carrying out a…assessment” 

It then lists things that those regulations should do, to which the amendment adds, 

“specify when an assessment must be carried out face to face.” 

We are not saying, “Put it on the face of the Bill.” We are saying that the regulations must include it. I do not mean to be pedantic, just accurate. 

Column number: 115 

Norman Lamb:  I give way to the hon. Member for Sheffield, Heeley. 

Meg Munn:  May I draw the Minister’s attention to an issue that also affects the whole process of assessment? Too often, the people who are in need of care, as the shadow Minister has said, have no idea what is out there. An assessment should be a proper assessment of need, rather than, “Do you need shopping?” or “Do you need personal care?” Getting to a point where there is a proper understanding that the assessment is about need, and therefore asking someone one or two questions over the phone will not suffice, is fundamental to doing it properly. 

Norman Lamb:  I absolutely agree. It must be a proper and thorough assessment of need, as the hon. Lady says. If I may, I will respond to the shadow Minister’s intervention, which came before that of the hon. Member for Sheffield, Heeley. Whether the circumstances in which assessments should be face to face are mandated in the Bill or in regulations, the amendment still mandates such assessments. There will still be a regulatory requirement. That is the point that we are making and indeed resisting. I will give way to my right hon. Friend. 

Paul Burstow:  I am grateful to the Minister; he is being very generous. 

Norman Lamb:  Too generous. 

Paul Burstow:  I am sure that others assessing the Minister’s performance might conclude that. I want to say that guidance is good, but it is not sufficient. It is not sufficient even to have it in regulations or in statute; it is essential to have it in heads and hearts. Practice has to change to reflect the difference that the legislation will bring about: an asset-based rather than a deficit-based approach; a focus on outcomes; and a future focus rather than a focus on needs in the here and now. Such things require a significant shift in training. Can the Minister tell us what discussions he has had and what discussions he intends to have with the College of Social Work and others responsible for setting curricula in this area, because this is about the training of the future generation of social workers and the retraining and reskilling of the existing ones who will be doing assessments under this legislation? 

Norman Lamb:  I am grateful to my right hon. Friend for elevating us to a higher plane for our aspirations. I am not being rude to the shadow Minister, but my right hon. Friend talks about the need for the culture shift, and I completely agree with him on that. It is a hearts and minds thing, and the training of social workers is central to that. I can assure him that we will have

Column number: 116 
discussions with the College of Social Work and others to ensure that training is consistent with what we are trying to achieve. 

We have heard that people’s needs are often complex and should be considered locally on an individual basis. Face-to-face assessments are likely to be suitable in many cases, but they should be determined according to presenting needs and the details of the cases. They should be decided by the local authority, which will be best placed to do so. What is suitable in one case may not be so in another, so the amendment provides for over-prescriptive regulation-making powers. That is always a temptation, I know, for the Labour party—sorry. We believe that local authorities should retain the flexibility to consider each case individually when determining how the assessment is to be carried out. As I have stated, what is most important is that assessments are “appropriate and proportionate”—the wording in the clause—to the person’s needs and outcomes. We believe that that will allow for more effective assessment. 

I hope that Opposition Members will agree and feel reassured that the clause as drafted ensures consistent practice in the assessment process, and will withdraw the amendment. 

Liz Kendall:  The reason why I have spoken about this issue is that I saw a phone assessment done and was very angry about it, because it was not fair or right. We need to change that, and of course we need to change the practice on the ground. No one wants to be over-specific in the legislation. If the Minister will not accept this amendment, which is about what the regulations will cover, but will at least confirm that the issue of face-to-face assessment will be mentioned in the guidance that is put out, or anywhere in the regulations, so that councils will consider it, I will be happy to withdraw the amendment. 

Norman Lamb:  I am happy to reassure the shadow Minister that that will be more than mentioned. It is important. One point that we should remember is that there are plenty of face-to-face experiences that people have that are also deeply disappointing and that do not achieve their aim. If someone is not listening and understanding and is going through a tick-box exercise, a face-to-face assessment can be just as bad. As my right hon. Friend the Member for Sutton and Cheam says, this is more about elevating the whole culture and having it much more person-focused to ensure that people’s needs are understood and then addressed. 

Liz Kendall:  I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Ordered, That further consideration be now adjourned. —(John Penrose.)  

11.9 am 

Adjourned till this day at Two o’clock.  

Prepared 15th January 2014