Care Bill [Lords]

Written evidence submitted by Jon Clift (CB 21)

I am social care lawyer and wish to raise the following issues with Committee members regarding the Care Bill.

The repeal of section 21 of the National Assistance Act 1948

Section 21 places a strong duty on local authorities to provide residential accommodation for adults "who by reason of age, illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them". The Care Bill proposes to repeal section 21. Instead the provision of residential accommodation will be determined by the new eligibility criteria (set at substantial).

However, the Law Commission concluded that if section 21 were repealed in this way certain groups would lose their entitlement to accommodation. In broad terms these groups would be homeless people and asylum seekers who have relatively low level needs for care and attention but do not have access to accommodation in which these needs can be met. Case law has shown that the level of care and attention is very low in such cases where the person does not have proper accommodation or is an asylum seeker. The Commission therefore concluded that section 21 should be retained in the Bill and operate as a long-stop legal duty for those with a need for care and attention who fall below the local authority eligibility criteria (see recommendation 18 of its final report).

The draft regulations on eligibility issued by the Government make no reference to such cases. It is therefore likely that a significant number of vulnerable homeless people and asylum seekers will lose their entitlement to accommodation unless the Government addresses this either by retaining section 21 or adjusting the eligibility criteria regulations.

Section 117 of the Mental Health Act 1983

Section 117 is a strong legal duty to provide after-care services to certain former psychiatric patients. The Care Bill proposes to introduce a definition of after-care services in order to introduce greater clarity about the range of services that can be provided.

However, the Care Bill fails to clarify the relationship between section 117 and the eligibility criteria. The Law Commission raised concerns about the lack of clarity in this area. The central question is whether or not a local authority can apply the eligibility criteria to the provision of section 117 services. The Commission argued that where there is an individual duty to provide services which gives local authorities some discretion to have regard to resources in exercising the duty (such as section 117) it can apply the eligibility criteria (see pp 55 to 56 of is consultation paper).

However, this conclusion was reached based on the existence of statutory guidance setting out the eligibility criteria. Under the Care Bill the eligibility criteria will be set out in regulations. Neither the regulations not the legislation state whether or not the eligibility criteria should apply to section 117.

The legislation needs to make this relationship clear. It needs to specify whether or not the provision of afterOcare services should be subject to the new national eligibility criteria.

January 2014