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

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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Prepared 19 March 2013