3 The draft Bill in context
Part 1 of the draft Bill overall
45. Frances
Patterson QC, the Law Commissioner who led the adult social care
project, began her evidence to us by explaining:[34]
"It is right to record that we are pleased with the Bill,
which in fact adopts and takes forward the vast majority of our
recommendations. The objective of our project was to simplify
the very confused social care legal landscape to make it effective,
accessible and fit for purpose for the 21st century. That was
what we strove to do in our report, with its recommendations.
We made 76 recommendations. When we counted up, 66 of those have
been taken forward in the Bill… The differences are really
of emphasis and detail, so far as we can see, and we think it
does a good job."
46. Almost
without exception our witnesses, even though they had criticisms
to make of the draft Bill, welcomed it just as enthusiastically.
We share this view. We trust that our recommendations will be
accepted to improve it further.
Adult social care: meaning
47. The
words "care" and "support" are nowhere defined
in the draft Bill—rightly in our view. However "care"
is used in different ways. It is frequently used in legislation
to mean "health care"; we point out in Chapter 8 how,
in connection with Health Education England, the expression "care
worker" is used to mean, in effect, "health worker".
In this Part of the draft Bill "care" means "social
care", and specifically excludes health care, as appears
from clause 21, which we consider below. Some legislation—the
Health and Social Care Act 2012 is an example—uses the expression
"social care" when referring to that specifically. We
agree that this would be clumsy in a Bill of this type, but we
draw attention to this anomaly.
48. Although
"care" is not defined, there is in clause 10(3) a definition
of "carer": an adult who provides or intends to provide
care for another adult. Clause 52, the interpretation provision,
points to this. It would help the reader if this definition could
appear in clause 1, with a saving for clause 10(7) and (8).
49. There
are arguments that care for children should have been included
in the same draft Bill. Since it was not, there is an overlap
between care for children and care for adults. We consider in
Chapter 6 the relationship between this draft Bill and the Children
and Families Bill, in particular in connection with young carers,
and the care of children with special educational needs.
50. The
Law Commission explained in its report[35]
what it understood by the expression "adult social care".
Box: Meaning of "adult social care"
Adult social care means the care and support provided
by local social services authorities pursuant to their responsibilities
towards adults who need extra support. This includes older people,
people with learning disabilities, physically disabled people,
people with mental health problems, drug and alcohol misusers
and carers. Adult social care services include the provision by
local authorities and others of traditional services such as care
homes, day centres, equipment and adaptations, meals and home
care. It can also extend to a range of so-called non-traditional
services - such as gym membership, art therapy, life coaching,
personal assistants, emotional support, and classes or courses.
Adult social care also includes services that are provided to
carers - such as help with travel expenses, respite care, and
career advice. Finally, adult social care also includes the mechanisms
for delivering services, such as assessment, personal budgets
and direct payments.
Clause 21: the boundary with
NHS continuing care
51. As
we have said, clause 21 sets out the boundary in law between the
responsibilities of local authorities for care and support, and
those of the NHS for health care. The current provisions are in
sections 21(8) and 29(6) of the National Assistance Act 1948 and
section 49 of the Health and Social Care Act 2001.[36]
Section 21(8) of the 1948 Act provides, in essence, that social
services cannot provide care home accommodation if a power or
a duty to provide the accommodation exists under the NHS Acts.[37]
In relation to services in the community, section 29(6)(b) of
the 1948 Act limits the prohibition to situations where there
is a duty (but not a power) to provide them under the NHS Acts;[38]
it prohibits a local authority from meeting care and support needs
by providing services which are required to be provided under
the National Health Service Act 2006. In the case of the provision
of accommodation under section 21 of the 1948 Act, local authorities
are prohibited from providing anything "authorised or required"
to be provided under the NHS Acts; in other words, things which
the NHS has the power to provide and things which it is under
a duty to provide.
52. Since
the earliest days the boundary between health care, which is free
at point of use, and social care, which is not, has been highly
problematic. Clarity over the boundary is of fundamental importance,
and was described by Simon Medcalf, the Deputy Director for Social
Care Policy and Legislation at the Department of Health, as "absolutely
critical".[39] If
the boundary is moved, it could result in either (a) a dilution
of the NHS's responsibilities, and as a consequence more people
having to pay for their care (since it would no longer be deemed
NHS care); or (b) more people becoming entitled to free NHS care
(since it would no longer be deemed a social services responsibility),
which would have substantial financial implications for the taxpayer.
Parkinson's UK believes that the move towards integration of health
and social care could lead to a blurring of boundaries, and that
it is crucial that this does not extend to the legal boundary
between a means tested system and one which is free at the point
of delivery.
53. In
the Coughlan case[40]
the Court of Appeal interpreted section 21(8) of the 1948 Act.
It explained that the prohibition would not stop social services
providing a care package if a person's nursing care needs were
qualitatively and quantitatively low. In terms of quantity,
it said that social services could be responsible if the nursing
services were "… merely incidental or ancillary to the
provision of the accommodation which a local authority is under
a duty to provide to the category of persons to whom section 21
refers …". In terms of quality, it said that
social services could be responsible if the nursing services were
"… of a nature which it can be expected that an authority
whose primary responsibility is to provide social services can
be expected to provide."[41]
54. The
Law Commission advised that the new statute should retain the
existing boundary. However the Law Commission also recommended
that "the wording of the prohibitions should be reviewed
and where appropriate simplified".[42]
This is what the Government have attempted to do. However, clause
21, though it purports not to change the boundary, makes significant
changes to the wording. It reads: "A local authority may
not meet needs under sections 17 to 19 by providing or arranging
for the provision of a service or facility that is required to
be provided under the National Health Service Act 2006 …
unless doing so would be incidental or ancillary to doing something
else to meet needs under those sections."
55. There
is a significant difference between "anything authorised
or required to be provided"—the current legislation—and
"the provision of a service or facility that is required
to be provided"—the wording of clause 21. It incorporates
the "quantity" test—i.e. "incidental or ancillary",
but not the "quality" test. It only restricts social
services provision to situations where there is a duty, rather
than a power, under the NHS Acts. This would make no difference
for community based services, but would constitute a material
change for residential accommodation (which is generally the most
expensive social care service). On the evidence we have received
it is our view that this change would have the unintended effect
of shifting the boundary so that fewer people would qualify for
NHS continuing healthcare funding.
56. Nothing
in the White Paper or the impact assessment suggests there is
an intention to move this boundary. Simon Medcalf told us that
there was "no overarching change in the policy here".[43]
We put our concerns to the Department. In a note of 30 January
2013 they repeated that "it is not the intention to make
any changes to what is the current boundary of what a local authority
may do", and they added: "We are satisfied the clause,
which includes a regulation making power to enable provision to
be made to clarify the limits of the local authority's powers
where necessary, enables us to ensure that the current policy
on continuing healthcare can be maintained. … Regarding the
"quality" prohibition, the Department does not consider
it is necessary to incorporate the exact wording of the second
limb of the case-law derived "quantity and quality"
test. We consider that the formulation of the clause, combined
with the regulation making power in the case of areas of uncertainty,
incorporate the necessary elements of the "quantity and quality"
test. However, as this point has also been raised in the consultation
exercise, the Department will be giving further consideration
to whether the existing drafting is sufficiently clear."
57. We
are glad to know that the Department intends to look again at
the drafting of clause 21. Whatever reassurance they may seek
to give us, a court is likely to take the view that any change
in wording which goes beyond bringing the drafting into the 21st
century implies a change in the intended meaning of the provision.
We therefore expect the Department to redraft the clause to put
the question beyond doubt.
58. Despite
the apparently strict boundary between health services and social
care, clause 21(2)(a) allows local authorities to provide, and
by implication to charge for, types of services prescribed by
regulations which would otherwise be provided under the National
Health Service Acts, and hence free at point of use. The notes
to the draft Bill explain that the regulations would clarify the
boundary between local authority care and support and the NHS.
If they are used only for this we have no concerns; but we would
not wish to see them used to allow services to be charged for
which should be free.
59. Regulations
made under clause 21(2)(a) which allow local authorities to provide
health services will not remove the obligation on the NHS to provide
those services. We put this point to the Ministers. On their behalf
Sally Warren replied: "This kind of proposal is about things
like NHS continuing healthcare, where the local authority may
well arrange for the provision of that because it might well be
provided by a residential care provider. The local authority and
the local CCG would need an arrangement to crosscharge each
other for it, but it would not be that you would be charging the
actual individual for that continuing healthcare, because it would
be free."[44] Clause
14(3) must be amended to make clear that, where a local authority
provides services on behalf of a Clinical Commissioning Group,
the authority may not recover the cost from the individual whose
needs are being met.
60. It
seems to us that there is a potential conflict between what may
be done by regulations under clause 21(2)(a), and the qualified
prohibition in subsections (3) and (4) on provision by a local
authority of nursing care by a registered nurse. We question
whether subsections (3) and (4) of clause 21 are desirable. If
they are retained, we are of the view that regulations
made under clause 21(2)(a) should not be able to override the
provisions of subsections (3) and (4), and consider that this
should be made clear in the drafting.
The statutory framework and the
hierarchy of rules
61. In
an area as large and complex as this, the primary legislation
setting out the duties and powers of local authorities is only
the first step. Most of the law is in secondary legislation, where
regulations set out these duties and powers in greater detail,
and in guidance and directions whose statutory status is often
unclear. The Law Commission recommended that the third tier of
guidance should be a consolidated statutory code of practice subject
to Parliamentary control, following the model of the Mental Health
Act 1983 and the Mental Capacity Act 2005. The Government have
not followed this recommendation. Clause 50 of the draft Bill
instead follows the pattern of section 7 of the Local Authority
Social Services Act 1970, requiring local authorities to "act
under the general guidance of the Secretary of State in the exercise
of functions" given to them by Part 1 of the Bill or by regulations
made under it.
62. In
its response to the Law Commission[45]
the Department agreed that there was a "plethora of documents,
whose status can be unclear, and which can cause confusion on
the ground" but went on to reject the Commission's recommendation
of a code of practice. It justified this view stating: "A
code of practice, as distinct from other forms of statutory guidance,
is particularly inflexible. Codes of practice require a sizeable
lead-in time for amendment (being subject to Parliamentary timetabling),
and so can quickly become out of date. They are unable to respond
to more urgent situations for the same reason." The Department
argue that the goal can be achieved through a suite or bank of
guidance that would "look and feel the same" as a code
of practice and point to this practice in children's services.
In oral evidence Norman Lamb MP, the Minister of State for Care
Services, reiterated this point: "There is a risk that, if
you have a statutory code, it makes it more difficult to effect
changes that everybody agrees might be sensible". But he
undertook to look at the point again.[46]
63. While
we understand the attraction the Department has to flexibility
and its commitment to producing guidance that would "look
and feel" the same as a code of practice, we do not accept
their approach. The guidance plays a crucial role. It is the means
by which the Secretary of State can guide the exercise of local
authority functions under the Bill, and it will carry substantial
legal force. In our view, it is important that any changes are
given an appropriate degree of Parliamentary scrutiny. We think
the approach of the Law Commission is preferable. It is not the
title of the document which matters—section 42 of the Mental
Capacity Act 2005 makes clear that the codes of practice issued
by the Lord Chancellor are "for the guidance" of those
involved—but their statutory status, their Parliamentary
control, and the fact that courts may specifically take them into
account.
64. The
regulations will be made under powers in the Act, and will be
subject to the Act and other primary legislation. The draft Bill
must make clear that the Code of Practice, though also made under
powers in the Act, is subject not only to the Act and other primary
legislation but also to the regulations and to any other law that
may be applicable.
65. We
recommend that the status of the third tier of the hierarchy of
rules should be clarified. Clause 50 should be replaced by provisions
modelled on sections 42 and 43 of the Mental Capacity Act 2005,
allowing the Secretary of State to issue guidance contained in
a statutory Code of Practice.
66. The
clause must make clear that the Code of Practice is subject not
just to the Act and other primary legislation, but also to the
regulations made under the Act and any other applicable law.
34 Q 83. Back
35
Paragraph 1.5. Back
36
Notes to the draft Bill, page 120, paragraph 43. Back
37
Section 21(8) provides 'Nothing in this section shall authorise
or require a local authority to make any provision authorised
or required to be made (whether by that or by any other authority)
by or under any enactment not contained in this Part of this Act
or authorised or required to be provided under the National Health
Service Act 2006 or the National Health Service (Wales) Act 2006.' Back
38
Section 29(6)(b) provides that 'Nothing in the foregoing provisions
of this section shall authorise or require … the provision
of any accommodation or services required to be provided under
the National Health Service Act 2006 or the National Health Service
(Wales) Act 2006 or the National Health Service (Scotland) Act
1947. Back
39
Q 5. Back
40
R v North and East Devon Health Authority ex p Coughlan
[2001] QB 213, 232. Back
41
This does not do justice to the complexity of the legislation
and its interpretation by the courts: see pages 147-152 of the
Law Commission report. Back
42
Report, recommendation 51 at pages 151-152. Back
43
Q 9. Back
44
Q 330. Back
45
Reforming the law for adult care and support:: response
to Law Commission report 326 on adult social care, July 2012. Back
46
Q 340. Back
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