Care Bill [Lords]

Written evidence submitted by Hampshire Law Society (CB 08)

Care Bill 2013 Submission

This submission is sent on behalf of Hampshire Law Society, which represents 600 solicitors in Hampshire. We invite the committee of the House of Commons to consider these comments when it is reviewing the Care Bill 2013.

Our submission relates to the amendment which was proposed, but then withdrawn, by Lord Dubs while the bill was before the Lords (Ref 104ZE) The proposed amendment would have been placed after clause 66.

There have been a number of proposals that the bill should include measures to establish a tribunal which would ensure that the care regime was enforceable. Both the Law Commission and the Parliamentary Select Committee which provided pre-legislative scrutiny advocated such a tribunal. Lord Dubs, the architect of the Chronically Sick and Disabled Persons’ Act 1970, tabled an appropriate amendment. The Government response (as set out in Hansard of 29th July) was that it is reviewing the local authority complaints system, notably through its consultation on implementing Funding Reform, and that it might introduce an appropriate amendment to the Care Bill once the findings of the consultation were known.

The consultation referred to above closed in October 2013. The government has failed to indicate when the analysis of the consultation results would be completed. It appears that the government misled Lord Dubs when it indicated that it was open-minded as to a possible amendment of the bill, because it has subsequently failed to ensure that the consultation was analysed in time for its conclusions to be considered and if appropriate an amendment be tabled.

The Underlying Problem which an appropriate amendment might resolve

1. The Care Bill as presented to the House does not include any measures by which its provisions might be enforced by an aggrieved individual.

2. Community Care Law is extremely complex. It is very hard for legal professionals, let alone service users, to understand the rights and obligations of the many agencies involved. Even when the Care Bill is enacted this area of law will remain baffling to many practitioners,

3. The high cost of legal services has meant that the only source of independent advice for many service users are not-for-profit advice agencies.

4. Many disputes involve disputes of fact.

5. The present means of resolving disputes are:

· Local Authority and NHS Complaints procedures. These are slow and generally paper based, so that often the complainant never feels that his complaint has been properly addressed. If the complainant is not sufficiently articulate on paper he will be placed at a disadvantage.

· Ombudsmen. The same criticisms apply, and in addition the complainant is at the mercy of the case worker, who may not necessarily appreciate the complex issues involved.

· Judicial Review. In practice this remedy is only open to those complainants who have such limited means that they are entitled to public funding. Only a few solicitors have the necessary Legal Services Commission contracts. And the process does not resolve disputes of fact. With LSC funding to be reduced from April 2013, Judicial Review, which is a very expensive activity, is likely to become less frequently available.

6. The result is a massive pool of people who feel that their grievance has not been resolved, and that bad practice will not be checked.

Our submission

We submit that the committee should call for evidence from the Government as to the consultation referred to above regarding the local authority complaints procedure and ensure that an appropriate amendment is tabled and considered.

January 2014

Prepared 10th January 2014