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 reformsthe Education Act 1944, the National Health
Act 1946, the National Insurance Act 1946 and the Children Act
1948have long since been repealed,[1]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 Billclauses 54-77 and Schedules
5-8includes 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 portabilitythe continuity of care when an adult movesand
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
13
'The Other Care Crisis', is a report published on 17 January
2013. It contains research by the Personal Social Services Research
Unit (PSSRU) at the London School of Economics, which shows that
up to 105,000 disabled people are at risk of not receiving any
social care if the Government were to set the national minimum
eligibility threshold at the level of substantial or above (or
its equivalent). The research also indicates a £1.2billion
funding gap regarding social care support for disabled people
under the age of 65. Back
14
Q104. Back
15
Q89. Back
16
Sally Warren, Director of Social Care Policy, Q 21. Back
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