Draft Care and Support Bill - Joint Committee on the Draft Care and Support Bill

Draft Care and Support Bill - Joint Committee on the Draft Care and Support Bill Contents

1 Introduction

Background

1. The current law relating to adult social care stretches back to the Beveridge reforms of the 1940s. The other major statutes implementing those reforms—the Education Act 1944, the National Health Act 1946, the National Insurance Act 1946 and the Children Act 1948—have long since been repealed,[1] but many of the provisions of the National Assistance Act 1948 are still in force, including Part III relating to local authority services. In its time this Act was seen as ground-breaking: it swept away the Poor Law, abolished the Work House, the liable family rule, and the parish poor box in a system that dated back to 1531. It is now itself seen as out-dated and in need of repeal.

2. The provisions of Part III of the Act have of course been much amended over the last 60 years, and the law relating to adult social care was described by the Law Commission as "a confusing patchwork of conflicting statutes".[2] The Law Commission undertook between 2008 and 2011 a major project to reform the law on adult social care in England and Wales. This culminated in its report, published in May 2011.[3] The Government accepted the majority of the recommendations, and a Bill to implement them was drafted, and was published in July 2012.[4] It was decided that the draft Bill should receive pre-legislative scrutiny. This Committee was constituted on 22 November 2012 with the remit to consider the draft Care and Support Bill and to report on it by 7 March 2013. The membership of the Committee is set out in Appendix 1.

3. The draft Bill is divided into two parts. The reform of the care and support system is dealt with in Part 1 (clauses 1-53) and Schedules 1-4. Part 2 of the draft Bill—clauses 54-77 and Schedules 5-8—includes provisions on health education, health research, the Human Fertilisation and Embryology Authority (HFEA) and the Human Tissue Authority (HTA). The reason for this was that during the passage of the Health and Social Care Bill through the House of Lords a commitment had been given by the minister that draft legislation on establishing Health Education England and the Health Research Authority would be subject to pre-legislative scrutiny.[5]

The Committee's procedure

4. We held our first meeting on 29 November 2012, and have held a total of 16 meetings. On 14 December 2012 we issued a call for written evidence which is set out in Appendix 3, and received in response 143 items of written evidence from the persons and bodies listed in Appendix 2. After a meeting for informal discussion with officials from the Department of Health we took formal oral evidence from them on 13 December 2012. This was the first of 17 evidence sessions during which we took oral evidence from 61 persons, culminating in evidence from the three ministers responsible for the different provisions of the draft Bill on 7 February 2013. To all our witnesses we are most grateful.

5. Between the appointment of the Committee on 22 November 2012 and the date by which we have had to agree our report, Parliament has been sitting for barely 11 weeks. The Government have previously made a commitment to allow "as much time as possible for pre-legislative scrutiny, with a minimum of twelve weeks as an objective."[6] In November 2009, in response to a complaint from the Joint Committee on the draft Bribery Bill that they had been given only ten weeks for their scrutiny, the Government replied: "The Government is grateful to the Committee for carrying out scrutiny of the draft Bill to a challenging ten week timetable. The Government agrees that 12 weeks should be regarded as the norm for pre-legislative scrutiny and will try to provide a minimum of 12 weeks wherever possible."[7]

6. In 11 weeks it has been difficult to scrutinise and report on a draft Bill of this importance and complexity as thoroughly as we would have liked. Many persons and bodies asked to give oral evidence to us; we know that a number of them would have had interesting views to share with us; and we regret not having had time to hear more of them. We draw to the attention of both Houses the importance, when planning pre-legislative scrutiny of draft Bills, of agreeing a timetable which will give the Joint Committee an adequate opportunity to carry out its task, and the Department concerned sufficient time to consider and act on the Committee's recommendations before the relevant Bill is introduced.

7. Some members of the Committee visited Torquay on 24 January to see for themselves how an attempt to integrate the working of the health and social care systems can work in practice. A note of that meeting is at Appendix 4. We also sought the views of carers through a web forum, and a note on this is at Appendix 5.

8. The great majority of the written evidence we received, and the oral evidence we took, related to the care and support provisions of the draft Bill. This is far from having been the first opportunity for those interested in these topics to give their views. The Law Commission conducted an extensive consultation between February and July 2010, and the views they received did much to influence the recommendations in their final report. Following the publication of the draft Bill, the Department of Health issued in July 2012 a consultation paper seeking views on the draft Bill.[8] These were summarised in a paper published in December 2012.[9] We have had the benefit of the views given in response to that consultation in addition to those replying to the specific questions in our call for evidence.

9. For our consideration of Part 1 of the draft Bill we have had the benefit of the advice of Professor Luke Clements, whose expertise in the law and practice of care and support has been invaluable. We also had the assistance of Professor Bernard Crump for the provisions on Health Education England. We are most grateful to them both.

The structure of our report

10. This report considers first Part 1 of the draft Bill. Chapter 2 looks at the implications of the report of the Dilnot Commission,[10] and of the Government's announcement of their plans for its implementation. Chapter 3 considers Part 1 of the draft Bill overall and in its statutory context. In Chapter 4 we look at the general responsibilities of local authorities: the well-being principle, providing information and advice, promoting diversity and quality, promoting integration with health and other services, prevention and safeguarding. Chapter 5 deals with assessing and meeting needs, and paying for them. In Chapter 6 we consider the specific local authority responsibilities of portability—the continuity of care when an adult moves—and the transition of children to adult care. Chapter 7 suggests matters which might be dealt with in Part 1 of the draft Bill but currently are not.

11. We then turn to Part 2 of the draft Bill, and devote a chapter to each of its separate topics: health education, health research, and the future of the HFEA and the HTA. In the final chapter we summarise our recommendations for the changes which, in our view, should be made to the draft Bill before the Government introduce any legislation on these subjects.

The funding of adult social care

12. We have received a considerable volume of evidence, both written and oral, expressing concern about the overall level of funding of social care, and suggesting that the Bill should be amended in ways which would involve expenditure, some of it very considerable. In our sessions with provider organisations from both the private and voluntary sectors it was clear that funding questions were having a corrosive effect on working relationships with local authorities. Marc Bush from Scope told us "We have found that the under-funding has been going on for at least a couple of decades. The reason for that is that money has been going very much into the NHS, very much into crisis care, but not much into care and support. It is because social care is the poor sister of everything else."[11] We also received evidence from a coalition of charities[12] representing working age disabled people concerning the impact on access to services of setting the eligibility threshold for care and support at "substantial" or higher.[13] Councillor David Rogers for the LGA told us "There is an ongoing gap; it is growing year-on-year and it is increasingly making the system unsustainable."[14]

13. However, we were also told that the legislative framework proposed by the Government had been designed to be resource independent. Frances Patterson QC for the Law Commission summed this up when she told us: "In answer to the question about the cap at whatever level, our remit was to produce a legal framework. To do that, we produced recommendations, which we said in the report were resource neutral. What that means is that they are resource independent. So it does not matter whether there is a cap, or, if there is a cap, at what level it is. They provide a framework for the system to work effectively on a legal basis, independent of whatever the cap is."[15]

14. We have been sent the impact assessments on the draft Bill which make clear that not even the Government believe that the draft Bill is cost neutral. As an official from the Department of Health explained:

"It is not the case that we have said that no additional resources will be required from the draft Bill. The Law Commission when it did its work did an impact assessment and its view was that the legal framework was flexible and could be delivered in any resource envelope. There would be some transitional costs, but no ongoing costs. Our view when we have looked at the Bill and White Paper package as a whole is that there are measures which will increase costs. In the impact assessment for the White Paper, we set out a number of those and we have committed through the normal new burdens process on local authorities to fund those. Let me give you a sense of what some of those costs are and what they cover. The first is obviously if the Bill is for the first time giving carers an equal footing. We have assumed that that will lead to increased costs in terms of supporting carers. In the impact assessment, we have talked about figures getting up to £175 million a year in terms of additional support for carers. Improvements in information at a local level we have assumed will cost local authorities more. There, we have looked at both capital and revenue costs to support them in developing that. If your question is whether we think that it is realistic that it will not cost anything, our answer is that we do not, which is why have assumed that it will cost money and set those costs out in the White Paper. As we have mentioned before, eligibility would be one of the major things which would drive significant changes in the cost of a legal framework as a whole as opposed to the specific cost of the Bill. The primary legislation itself, as the Law Commission set out, is a flexible framework; it is designed to set out a framework that can work over multiple generations. It is the regulations partly that will help drive the costs."[16]

As we discuss in subsequent chapters, we are not convinced that the Government have fully assessed the implications of the reforms set out in the White Paper and the draft Bill. While some of the additional costs of implementing the Bill are accounted for in the impact assessment, for example the £175 million for carers, the impact assessment will need to be revised to reflect the full cost of, among other things, an increased number of assessments arising from the introduction of a capped cost system in 2017. Furthermore, the overall level of funding available for the care and support system will impact on how far the reforms envisaged in the draft Bill and the Government's White Paper can be realised, particularly the stated goal of shifting the emphasis from crisis intervention to prevention and early intervention.

1 Respectively by the Education Act 1996, the National Health Service Act 1977, the National Insurance Act 1965 and the Child Care Act 1980. Back

2 Scoping report, paragraph 2.1. Back

3 Law Com 236. Back

4 Cm 8386 Back

5 Evidence of Shaun Gallagher, Q 9. Back

6 Government response to a report of the House of Lords Select Committee on the Constitution on Pre-legislative Scrutiny (21st Report, Session 2008-09, HL Paper 160). Back

7 Government response to the conclusions and recommendation of the Joint Committee Report on the Draft Bribery Bill, Cm 7748. Back

8 Caring for our future: reforming care and support, Cm 8378 Back

9 The draft Care and Support Bill: A summary of consultation responses. Back

10 Fairer Care Funding, July 2011. Back

11 Q 174. Back

12 Scope, Mencap, The National Autistic Society, Sense and Leonard Cheshire Disability. Back