Care Bill [Lords]

Written evidence submitted by Age UK (CB 01)

1. Age UK

1.1. Age UK is the national charity and social enterprise working to transform later life in the UK. Our vision is of a world in which older people flourish. We aim to improve later life for everyone through our information and advice, services, products, training, research and campaigning.

1.2. Age UK is a member of the Care and Support Alliance and will be working closely with Alliance members seeking to improve the Bill on behalf of older and disabled people, those with long term conditions and their families. Over 70 organisations make up the Care and Support Alliance. We campaign together to keep adult care funding and reform on the political agenda.

2. Introduction

2.1. Age UK welcomes the Care Bill as an important step to reforming the social care system so it works well for older people. It modernises and consolidates the law and offers an ambitious and positive vision for the future of social care for current and future generations. If combined with sufficient funding - at present a very big ‘if’ - it guarantees an individual’s wellbeing and protects them from unreasonable costs.

2.2. Significant steps have already been taken in the House of Lords to improve the Bill but it could be strengthened further. We would particularly like to see the Bill further amended to:

i. Ensure that people who would currently be defined as having ‘moderate’ care needs are eligible to receive support. It is vital that the national eligibility criteria are set low enough to make a difference to people’s lives before they reach a ‘critical’ level of need.

ii. Improve safeguarding for people at risk of abuse and neglect, and improve access to redress mechanisms if their human rights are infringed, for example as a result of abuse.

iii. Ensure the cap on individual spending on social care is implemented fairly, based on a proper consideration of individual care needs and on eligibility criteria that are not unreasonably restrictive.

iv. Ensure the proposed national deferred payments scheme covers the full costs of living in residential care, making the scheme work as intended so that people do not have to sell their homes within their lifetime.

v. Make certain the assessment process is fair for everyone by ensuring local authorities do not unreasonably cut corners through the use of unqualified assessors or over reliance on digital, remote, assessment tools.

vi. Strengthen access to advocacy. The Bill has already been amended to give an individual the right to an advocate if they are ‘unbefriended’ but we believe that where there is family disagreement on the best type of care or a low level of understanding of the assessment process, there should be a right to request an advocate.

3. Understanding the Social Care Funding Gap

3.1. The current and future funding of adult social care is likely to be ‘the elephant in the room’ throughout the remaining stages of this Bill. Social care funding has declined by £1.2 billion in real terms since May 2010 [1] . At the same time the population of over 85s, the cohort most likely to need social care, continues to rise and councils are facing a demographic pressure of around 3 per cent of adult social care budgets per year. In the Spending Review earlier this year the Government announced the creation of an ‘Integration Transformation Fund’ of £3.8bn which, in time, should certainly benefit social care to some degree. However, LGA modelling (July 2013) shows that a combination of funding cuts and spending pressure is creating a social care funding gap in local government that is growing at around £2.1 billion a year. On current trends, by the end of the decade the gap will total around £14.4 billion they say.

3.2. The combination of these factors mean the vision of the Bill cannot possibly be realised unless the funding shortfall is addressed.

4. Amendments

4.1. Ensure people with ‘moderate’ care needs are eligible to receive support

4.1.1 What is the problem?

Today, access to publicly funded social care is more restricted than ever. In 85% local authority areas, it is only available if your needs are assessed as being ‘substantial’ or ‘critical’. [2] Many older people who need help getting up in the morning, bathing, preparing meals or doing the shopping are assessed as only having ‘low’ or ‘moderate’ needs. If the new national eligibility threshold for care is set at the equivalent of ‘substantial’, as has been suggested, this will mean anyone assessed as having moderate or low needs will not qualify for help, shutting all these people out of the system – until their needs become much worse.

4.1.2 Why does it matter for older people and their families?

Because of rationing there were 250,000 fewer people aged 65 and over in receipt of care and support in 2012/13 compared to 2007/08. [3] This reduction is definitely not due to lower demand, indeed, as has been explained, demand is rising. When accounting for demographic changes during the same period almost half a million older and disabled people who would have been eligible for care and support five years ago are no longer able to access these services. [4]

Community based services like lunch clubs and fitness classes - a lifeline especially for those living on their own – or services providing respite for carers have also been cut back, with the numbers of older people they help declining from 958,000 in 2009/10 to 802,000 in 2011/12. [5] Unless they can afford to pay privately for services, or have family and friends able to help, it is likely that the older people affected will go without support altogether. This year we estimate that the number of people with unmet care and support needs stands at more than 800,000.

4.1.3 How could it be resolved?

The new eligibility threshold needs to be set by regulations at a fair minimum level. For Age UK that must mean ‘moderate’ or its equivalent in the new system.

The Bill could also be strengthened by requiring that regulations link eligibility for social care to the achievement of outcomes based on the individual’s wellbeing, as defined in the Bill. Amending the legislation in this way would ensure that commissioners would be required to consider how to help someone achieve all aspects of wellbeing set out in the Bill.

Making sure that local authorities plan sufficiently to meet the diverse needs of their population and promote quality and choice in services already forms part of the Care Bill. These provisions could be strengthened by requiring service commissioners to monitor the sufficiency of social care provision in their area, and to take action if this is inadequate when compared to local demand, including demand from self-funders. Similarly Clause 8 of the Bill - which describes the kinds of support which local authorities must offer - should be extended to make clear that support does not just mean ‘traditional’ social care services, but should also include crucial components like transport.

4.2. Improving safeguarding

4.2.1 What is the problem?

For the first time in England the Care Bill will include legislative measures to protect adults from abuse. (Scotland already has legislation to protect adults from abuse and Wales is in the process of developing some.) This is an important step forward in better protecting older people from risk in England but we need to ensure that the legislative framework protects them in all social care settings.

Despite the new safeguarding provisions we are not all equally protected regardless of where we receive social care services. This is because the Human Rights Act may or may not apply to an individual, depending on how their care is funded. Those who self-fund or receive home care services from a private organisation under contract from a local authority are not currently covered by the Human Rights Act 1998, while those receiving local authority funded care are. Age UK believes this is iniquitous and the amendment made in the House of Lords to the Bill should be supported in the Commons.

4.2.2 Why does it matter for older people and their families?

People who use social care services may receive intimate care, be moved from place to place or have diminished mental capacity. In all these situations and in many more they are potentially vulnerable to neglect and abuse. Regardless of how their care is funded the law should protect them against the risk of harm. For two people in the same social care setting to be entitled to different levels of legal protection, depending on how their care is funded, makes no practical sense. Moreover, the only realistic way of creating a culture of adult safeguarding is to ensure the same rights apply to everyone in receipt of care, across all settings.

4.2.3 How could it be resolved?

We believe the scope of the Care Bill should be extended by broadening the definition of adults at risk of abuse to those who ‘may have’ needs for care and support, rather than only those who ‘have needs for care and support’. The current Bill includes people who have needs which are not being met by the local authority, but not people who are isolated from care services and who as a result may never have been assessed as having care and support needs.

The Bill’s scrutiny committee recommended that corporate responsibility for abuse should be borne by the care provider as well as by an individual who commits acts of abuse. Age UK agrees and believes this recommendation should be accepted by the Government.

The Government should use the Care Bill to accept Lords’ amendments and close the existing loopholes, meaning people who are vulnerable to having their rights infringed are all within the scope of the Human Rights Act, with an equal right to redress.

The Bill also includes powers for local authorities to delegate the carrying out of statutory functions such as assessment to independent sector agencies. It must be made clear that in this situation such agencies are also subject to the Human Rights Act.

In responding to the Department’s separate consultation about whether additional powers of entry are needed where abuse or neglect of an adult is suspected, Age UK has argued that these powers are required where a third party is denying access to the person. While we do not expect new powers to be in the Bill itself we would like the Bill to make provisions to enable and require the Secretary of State to issue regulations.

4.3. Ensure that the cap on individual spending on social care is implemented fairly

4.3.1 What is the problem?

About three quarters of us will need some care as we get older, but while about half of us can expect to pay out about £20,000, 1 in 10 people will spend over £100,000. The cost can even run to hundreds of thousands of pounds for an unlucky few. [6]

It is widely recognised that we need to protect people from the risk of catastrophically high costs and ensure everyone can plan to meet the cost of care in a fair and sustainable way.

Age UK was therefore very pleased when the Government announced that it had decided to implement the Dilnot proposals, but disappointed that they opted for a £72,000 limit on costs – considerably higher than the level recommended in Andrew Dilnot’s report. When considering these figures it is important to recognise that they do not apply to all the costs of living in residential care; an individual would still have to pay up to £12,000 a year on bed and board to meet these expenses for example, even once their care costs had reached the £72,000 limit. We would like the Government to reduce the limit over time.

4.3.2 Why does it matter for older people and their families?

The Government estimates that once it has implemented its version of the Dilnot proposals about 1 in 6 of all the older people who need care, or about 100,000 individuals, will benefit to at least some extent from them by 2025. [7] However, most older people will still have to pay something towards their care, and many will have to pay a lot. Only those people with less than £14,250 in savings and really serious care needs will get their care free.

A few months ago the Government published a consultation paper explaining how it intends to implement the Dilnot proposals. Unfortunately, Age UK’s view is that there is considerable ‘devil in the detail’, and that many older people and their families will be surprised and disappointed that the small print restricts both the amount of help given, and the numbers of older people who are able to take advantage of it.

4.3.3 How could it be resolved?

The Care Bill contains paving clauses allowing the Government to introduce regulations setting out the level of the cap on social care costs and the higher means test threshold which is another element of its version of the Dilnot reforms. During the passage of the Bill we would like to see the Government being open about the timetable.

We also believe that a commitment to implement a national deferred payments scheme should be included on the face of the Bill and that this scheme should be available to anyone who reasonably wants to take advantage of it. This would mean that someone would not need to sell their home to pay for care within their lifetime and could instead defer the payment of care costs until their estate was being settled following their death.

The Bill must also be clear on what is included in the deferred payment system. The amount people are be entitled to defer must be sufficient to cover the full costs of living in residential care. This should include fees, which may substantially exceed the local authority’s ‘usual rate’; living expenses, which are likely to be substantially higher than the level of the currently inadequate Personal Expenses Allowance; interest on the deferred payment; and the costs of maintaining the property.

4.4. Top-ups and charges

4.4.1 What is the problem?

At present older people who found to be eligible for care by local authorities and who go into a care home are charged under national rules. However, it is often a source of surprise to them and their families when they find that additional payments over and above these charges in the form of ‘top ups’ are often demanded from a third party, usually a relative. The legislation that enables local authorities to request such top ups, the ‘Choice of Accommodation Directive’, is intended to enable the person to choose a care home that is more expensive than the local authority would normally pay for, given the person’s needs. However this system is widely abused with local authorities citing ‘usual rates’ that bear little relation to the market price of care or being reluctant to increase their ‘usual rate’ where the person has particular needs which increase the cost of their care. As a result, over a quarter of care home residents pay top up fees.

4.4.2 Why does it matter for older people and their families?

In the future the problem of top-ups will affect people who expect their expenditure to count towards the spending cap that the Bill introduces. Spending towards the cap is assessed at the rate that the local authority says it would pay to meet those needs. If this rate is unrealistically low the person will have to spend more than this. Even if the local authority is realistic about its ‘usual rate’ individuals might not be able to obtain care at the same cost as they cannot negotiate bulk rates in the way that the local authority does. We are therefore concerned that individuals will have to spend a great deal more than £72,000 before they reach the £72,000 cap.

Older people who are carers may be particularly affected as charges may wipe out a substantial part of a household’s income and assets, with the result that a carer may face long term impoverishment.

4.4.3 How could it be resolved?

As the Bill stands Clause 30 does nothing to deal with this unacceptable situation. It should require that the local authority takes account of actual market conditions in setting its ‘usual rate’; make clear that the amount the local authority agrees to pay must be varied if it is necessary to meet the individual’s assessed needs; and say that a third party top up cannot be required unless these two conditions have been met. Charges should also be limited to what is ‘reasonably practical’ for the person to pay.

Furthermore, Clause 28 currently states that an ‘independent personal budget’ sets out what the cost would be to the local authority to meet a person’s eligible needs. This should take into account the fact that the economies of scale councils enjoy from ‘bulk buying’ care means this will be less than an individual may pay. As well as preventing abuse in the use of top-ups, it would also present a fair representation of what an individual has spent towards reaching their care cost cap. Expenditure towards the cap should therefore be calculated on the basis of what the person spends, not what it would cost the local authority.

4.5. Ensure the assessment process is fair for everyone

4.5.1 What is the problem?

The assessment process is the gateway that everyone who wishes to access care and support must pass through in order to have their needs met. However the Bill is intended to ensure that following assessment, even people who do not qualify for local authority support will receive some help to meet their own care needs, including advice and information. The spending cap assessment will also determine whether a person’s spending on care will count towards the cap.

The assessment process is therefore more important than ever and without a clearer legislative framework governing how this process will operate there are fears that councils could use unqualified assessors or make inappropriate use of digital, remote, assessment tools in order to cut costs.

4.5.2 Why does it matter for older people and their families?

Getting a fair assessment of needs is vital to ensuring that those needs are adequately met. We know that older people often under-report their problems and it can take a skilled professional to uncover the true picture. Only then will the right care package be put in place. Conversely, an inappropriate assessment process could wrongly filter people out of the care system when they should be receiving support.

The Bill has been amended in the House of Lords to improve this process. Compared to the initial draft Bill there is a clear separation between assessment of need and subsequent consideration of how needs should be met, as recommended by the Law Commission. This is particularly important in ensuring that needs which are being met by a carer - and therefore the carers’ contributions - are recognised and valued. The Bill has been strengthened, with requirements to involve appropriately skilled professionals where necessary but there is still room for improvement.

4.5.3 How could it be resolved?

It is important that the Bill ensures that the initial assessment is sufficiently skilled to ensure that no one falls through the net. Some people might prefer to assess their own needs. This should be possible but the local authority should still have to ensure that they have enough information to properly consider the person’s needs, which might mean asking some more detailed questions.

Regulations issued under the Bill must set out a clear assessment process that ensures that the needs of individuals are properly considered. The Bill requires that the Secretary of State should issue regulations but we would like to see clearer commitments about what they will contain.

4.6. Strengthen access to advocacy

4.6.1 What is the problem?

Some people need support to communicate their views and experiences clearly and if they do not receive this from an independent advocate they may not be able to articulate what they want or need from the social care system. Advocacy helps voices to be heard and enables people to stay in control of their lives. But currently the provision of advocacy remains patchy so whether you are properly involved in important decisions about your life can depend on where you live.

4.6.2 Why does it matter for older people and their families?

Independent advocates provide intensive support, especially to people who find it hard to express their views and needs, or to make decisions about their care. They ensure that people won’t have to face the intimidating and complex process of assessment alone. This helps to makes sure they get the care they need when they need it.

Age UK and the Care and Support Alliance have welcomed a Government decision to guarantee that tens of thousands of people each year who would struggle to navigate the social care system alone can turn to an independent advocate. We have been campaigning for a right to advocacy since the Bill was introduced to Parliament in draft form last year.

However, the right to an advocate will only apply to those who are ‘unbefriended’ – which means that people who have family or friends but who still need this specialist support won’t be able to access it. Sometimes families disagree about the right care. In these circumstances ensuring an individual can access advocacy is really important.

4.6.3 How could it be resolved?

We would like to see a right to advocacy or other appropriate support if someone needs this to be able to participate in the assessment process. This might not only apply to people who have no friends or relatives to assist them. The Bill should be amended to secure this right in law.