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

4 General responsibilities of local authorities

The well-being principle: Clause 1

67. In its consultation paper the Law Commission proposed that there should be tightly defined processes for determining the scope of adult social care. Replies to the consultation persuaded them instead to define the purpose of adult social care as promoting or contributing to the well-being of the individual. That recommendation was accepted by the Government and is central to the new policy on adult social care; clause 1(1) of the draft Bill provides that "the general duty of a local authority, in exercising a function under [Part 1 of the draft Bill] in the case of an adult, is to promote that adult's well-being."

68. The whole of the policy structure, and hence of the draft Bill, is shaped by this provision. All the evidence we have received which refers to this has done so in terms of approval; the general sense is that all those concerned regard this as a highly desirable development and one which leads to improved legislation.[47] We agree. We also believe that when this legislation comes before the courts for interpretation, as inevitably it will, it will be easier for them to determine whether action taken, or not taken, complies with this principle, rather than to attempt to decide whether or not it falls within a definition of what constitutes adult social care.

69. The principle does not define the policy of a local authority, but applies to individual decisions taken within the context of that policy. "The well-being structure fits into the policy, rather than determines the policy. … if one local authority only met "critical" needs but another met "moderate" needs then the well-being principle would not determine that you could not have that policy, in terms of something equivalent to the FACS[48] banding system. It would mean that within that FACS type structure, the well-being principle would apply to each individual decision that is made."[49]

70. Clause 1(2) defines "well-being" as meaning, in relation to an adult, that adult's well-being, so far as relating to any one of a list of seven factors. It was put to us that other factors should be included in the list. One of these, supported by Caroline Abrahams, the Director of External Affairs of Age UK,[50] was "the dignity of the adult". The Law Commission considered but rejected this: "We remain concerned that concepts such as dignity and independent living are too imprecise to be expressed as statutory principles. The notion of dignity has been used by the courts in judgments which are addressing texts which do not use the word dignity. This suggests that while a legal structure can be constructed in a way that is conducive to dignity—or even in a way which undermines it—it is difficult to build a legal structure on the imprecise notion of dignity.[51] We respect that view, but believe that "dignity" is no less precise than some of the other factors listed, and we support its inclusion.

71. The list does not currently include any reference to housing, and a number of witnesses thought this was an omission that should be remedied. In their written evidence Midland Heart, one of the largest housing, care and regeneration groups in the country with over 33,000 homes, said: "We believe that the definition of well-being should include having access to safe and settled accommodation so that individuals are able to live independently in an accessible home which can be adapted to fit their needs."[52] We agree that the quality of housing is of such importance that a local authority should always have it in mind when considering the well-being of the individual, and that it merits a specific reference in the list.

72. There were other suggestions. One was a reference to parenting,[53] but we believe this is already adequately covered by paragraph (f) which refers to "domestic, family and personal relationships". Another was the insertion of a reference to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). On behalf of Disability Rights UK Sue Bott, the Director of Development, told us that the Convention "very much sees the disabled person as the whole person, not just a person who might be in need of particular support."[54] She was supported by Paul Farmer, the Chief Executive of Mind. The Law Society made the same point in their written evidence.[55] The Law Commission, in considering a suggestion for the inclusion of "independent living" as a factor, rejected it on the ground that it was already adequately covered by Articles 8 and 19 of the Convention.[56] It does not however seem to have been suggested to them that the Convention should itself be listed, and we do not think that it should be. It imposes numerous obligations on the States party, many of which have nothing to do with social care, and some of which are cast in very general terms. We are not convinced that it is realistic to suggest that local authorities, in exercising their duties under the draft Bill, should be obliged to have regard to such a document. The specific matters already listed in clause 1(2) will provide enough guidance.

73. Some of our witnesses also suggested that there should be an explicit reference to human rights legislation. When the Law Commission considered this question it concluded that statutory principles were not necessary to promote non-discrimination and human rights.[57] In the Law Commission's view it would simply repeat unnecessarily the provisions of the Equality Act 2010 and the European Convention on Human Rights. We share this view.

74. We recommend that the list in clause 1(2) of matters to which well-being relates should be enlarged to include the dignity of the adult, and the availability of safe and settled accommodation.

TO WHOM DOES THE PRINCIPLE APPLY?

75. As we have said, the well-being principle applies "in relation to an adult". Clause 1(5) defines an adult as "a person aged 18 or over", without further restriction. On this basis, the duty might be interpreted as including any adult in relation to whom a local authority exercises a function under Part 1 of the draft Bill. However there are provisions of the draft Bill where "adult" plainly does have a more restricted meaning, and in particular where it is contrasted with "carer". Clauses 3(3), 3(5), 6(2) all contrast "an adult's need for care and support" with "a carer's need for support". Clause 9(5) refers to "the adult" and "any carer that the adult has". It is clear that in these and other provisions "adult", without more, means "a person aged 18 or over who is or may be in need of care and support". If "adult" was given this meaning in clause 1(1) to (3), it would follow that the well-being principle did not in terms apply to carers.[58] On the other hand, clause 10(3) defines "carer" as "an adult who provides or intends to provide care for another adult (an 'adult needing care')".

76. That this is easily misunderstood is clear from the evidence of Emily Holzhausen, the Director of Policy of Carers UK, who said: "[Clause 1] just refers to adults and does not refer to carers, whereas in the rest of the Bill we refer to adults when they are adults who need care and carers separately. Just for completeness' sake, starting with clause 1, we need to include carers. I honestly do not think for a minute that people would want to disentitle carers, but for the removal of doubt we would need to do that."[59]

77. The intention of the Law Commission is not entirely clear to us. Paragraph 4.29 of their report begins: "As a general rule the well-being principle relates to the subject of the decision. If there are competing interests, such as those of the carer, these would only be relevant insofar as they related to the well-being of the subject of the decision." This suggests that the carer is not "the subject of the decision" to whom they intend the well-being principle to apply. But later they refer to " …. where two people are being assessed and their well-being is incompatible (such as a carer and a service user)", and to "the carer's well-being".

78. Whatever their intention, the conclusion we draw is that it is at best not clear on the current wording of the draft Bill whether the principle will apply to carers. We believe that it should. We asked the Department of Health what the Government's intention was, and they informed us that it is their intention that the principle should apply to carers as well as to adults needing care.[60] We believe the draft Bill should be clarified to put beyond doubt that the well-being principle applies as much to adult carers as to adults who are or may be in need of care and support—adults needing care, as they are described in clause 10(3). It would further clarify matters if our recommendation to place the definition of "carer" in clause 1 is adopted.

79. Clause 1(5) should be amended to make clear that the well-being principle applies as much to an adult carer as to the adult needing care.

80. The clause would still not apply in terms to a local authority's functions in relation to children, even though the transition provisions in clauses 39-44 deal with assessment of a child's needs for care and support, and a young carer's needs for support. Such assessment are however made on the basis of the child's or young carer's needs when they reach the age of 18, and we believe that it is clear that the well-being principle must apply in such cases.

81. As drafted the Bill applies the well-being duty to decision-makers within the assessment and care planning framework set out in the Bill. However, many of the details that will shape the way in which local authorities discharge their functions under the Bill are subject to regulations and guidance issued by the Secretary of State. For example, clause 13 gives the Secretary of State very broad powers to set out in regulations the rules governing eligibility.

82. Section 1B(1) of the National Health Service Act 2006[61] provides that "in exercising functions in relation to the health service the Secretary of State must have regard to the NHS Constitution." We suggested to the Secretary of State that he should be obliged to have regard to the requirements of clause 1 on well-being when exercising his functions under the draft Bill. He replied: "We absolutely want the well-being principle to apply comprehensively."[62]

83. We welcome the importance that Ministers attach to the well-being principle. We recommend that the draft Bill should include a provision requiring the Secretary of State, when making regulations or issuing guidance, to have regard to the general duty of local authorities under clause 1.

Information and advice: Clause 2

INFORMATION AND ADVICE

84. Clause 2 has often, in evidence to us, been described as the local authority's duty to provide information and advice to adults and carers on care and support. The obligation is in fact to "establish and maintain a service for providing people with information and advice…". Sarah Pickup, the President of the Association of Directors of Adult Social Services (ADASS), explained the difference: "It does not have to be us that provides the advice. We need to make sure advice is available. In my signposting system in Hertfordshire, the HertsHelp system will get you to the place that can give you the best advice. The CAB is part of that network, for example, if you need advice in that territory. Our Money Advice Unit is part of that advice. We do a lot of welfare benefits advice."[63]

85. A number of witnesses reminded us that information is not the same as advice, and some thought local authorities were not always well placed to offer impartial advice, a point made by Mears Group, one of the largest UK providers of domiciliary care, support services and social housing repair: "The key risks with the duty to provide advice are around impartiality, balance and quality. Our experience has shown that local authorities tend to be more reluctant to promote and even engage with private companies than third sector providers, even if it can be demonstrated that the private provider is delivering a higher quality service at better value for money. … Mears would like to see the Bill ensure that advice is given on the basis of the best quality of service and not whether the provider is a third sector or private business."[64] Mears of course have a particular interest in this, but we agree that this is another reason why advice services should be provided at arm's length, and not by the local authority itself.

86. Clause 2(2) lists four particular matters on which the local authority's service must provide information and advice: the system and how it operates; the choice of types of care and support, and of providers; how to access the care and support that is available; and how to raise concerns about the safety of an adult. These are illustrative only, but we received suggestions that other matters should specifically be added to the list. The National Housing Federation told us in their written evidence that a new paragraph should be added to clause 2(2) to make clear that information and advice should be provided on local housing options, including specialist housing, accessible housing and adaptations. They pointed out that local authorities already have a duty under the Housing Act 1996 to offer advice on housing options to those in housing need.[65] Jake Eliot, the policy leader of the National Housing Federation, made the same point in oral evidence, as did other witnesses.[66] For the same reasons that persuaded us to agree to the inclusion of housing in clause 1(2), we agree that it should receive a specific mention in clause 2(2). Another suggestion with which we sympathise was that a new paragraph should be added to make clear that information and advice should be provided on the ways in which people can contribute to the design of new services, where none are available to meet their needs.[67]

87. Some of our witnesses were concerned that the Government had given the impression that digital was their preferred channel for information services. Given that there are over 5 million households without internet access,[68] we would be concerned if digital or on-line sources were to be the sole means of obtaining information about the care and support system, a point echoed in the responses we received in our web forum. We were reassured to be told by the Secretary of State: "…we will make sure there is provision for people who are not IT literate, because they are some of the most vulnerable people whom we need to help."[69]

FINANCIAL ADVICE

88. The need for advice to be impartial is particularly acute in the case of financial advice. This does not currently appear in the list in clause 2(2), and several of our witnesses thought it should. Independent Age said: "We suggest that clause 2(2) … should include: "(e) any relevant charging arrangements for care and support in the local authority's area;" and "(f) signposting to independent financial advice on the options for paying for care and support".[70]

89. The care and support framework extends to those who self-fund their care and support, giving rights to an assessment of care and support needs and the information and advice services the local authorities will be under a duty to provide. Clause 23(2)(c) gives those with care and support needs, but who are not entitled to local authority provided care and support, a right to information and advice. Partnership, the largest provider of long term care insurance in the United Kingdom, explained that advice would be particularly important for self-funders, who constitute 41% of those in the care system.[71]

90. Frances Patterson QC told us: "I suppose it might be argued—I am not saying that I am going to—that under clause 2(2)(a), which is so general about the system provided for by this Part and how the system operates in the authority's area, it might include financial advice. That would then be taken up in guidance. For the avoidance of any doubt, if one wanted to go there, it could be included. You put the question rather more precisely by saying: does it have to be? I would say that it does not have to be but it could be."[72] We believe that it could be and should be.

91. The draft Bill should make clear that "information" and "advice" include financial information and advice, and that local authority services should recommend financial advisers only if they are regulated by the Financial Services Authority.

92. The following matters should be added to the list in clause 2(2) of matters on which the local authority's service must provide information and advice:

ways in which people can contribute to the design of services, where none are available to meet their needs;
local housing options, including specialist housing, accessible housing and adaptations;
any relevant charging arrangements for care and support in the local authority's area;
obtaining independent financial advice on the options for paying for care and support; and
where such advice can be found.

93. We consider in Chapter 5 the particular need for financial advice when a person in need of care and support enters into a deferred payment agreement with a local authority, and in the case of third party top-ups.

ADVOCACY

94. "Advocacy" is listed in clause 8(1) as an example of what a local authority may provide to meet an adult's or carer's needs, but it is not mentioned in clause 2 which, as we have said, deals only with a service providing information and advice. A number of our witnesses thought this a curious omission, and one which should be remedied. Action for Advocacy told us in their written evidence that it was important to provide independent advocacy at the right time: "This [clause 8] seems to be the wrong place to put advocacy. If it remains in this place, advocacy may only be provided following an assessment of needs for care and support. That would require the assessor to identify a person's need for advocacy in order to have their voice heard and ensure choice and control ... the general duty to provide information and advice should be extended to include independent advocacy." In his oral evidence Martin Coyle, the CEO, reiterated this point: "… that duty is implied through so much of the Bill so far that we may as well at least spell it out."[73]

95. Action for Advocacy is a charity whose purpose is to promote advocacy services for vulnerable people and to support advocates, including paid advocates. But others were of the same view. Sarah Pickup thought it was "important that people have access to advocacy if they need it."[74] Andrea Sutcliffe, the Chief Executive of the Social Care Institute for Excellence, said: "… what we do not actually highlight in the Bill or make happen is the provision of what you might call either brokerage or advocacy to, as you suggest, fight the corner for an individual who might not be able to do that for themselves." Richard Humphries agreed.[75]

96. The Law Commission pointed out that "There is already a general right to advocacy in adult social care legislation, in the unimplemented provision of the Disabled Persons (Services, Consultation and Representation) Act 1986." They recommended that this right should be recreated in the new statute, but thought they would be straying beyond their powers to recommend its immediate implementation.[76] We are under no such constraints; we believe that the general right to advocacy should be included in clause 2.

97. "Information", "advice" and "advocacy" are nowhere defined in the draft Bill. Action for Advocacy thought they should be defined in regulations, but did not offer suggestions for a definition.[77] If "advocacy" is to be included in clause 2, we see no reason to attempt to define the boundaries between information, advice and advocacy.

98. When the Ministers gave evidence to us, Sally Warren told us she thought advocacy would be provided at two main stages: the point of assessment and care and support planning, to help the person articulate the outcomes they were trying to achieve, and the point of planning for their care and support needs, to help them to be clear about how they wanted to meet those needs. When asked whether the draft Bill should make clear that advocacy could be provided at the first stage, she replied that the Bill already did this through the universal requirement for information and advice.[78]

99. We are glad that the Government intend that advocacy should be covered by clause 2, but we do not believe this is clear on the face of the draft Bill. Clause 2 should be amended to make clear that independent advocacy is to be available before the assessment process has begun, and not only as one of the ways of meeting needs under clauses 17-19.

Promoting diversity and quality in provision of services: Clause 3

100. Clause 3(1) imposes on local authorities the duty to promote the efficient and effective operation in their area of a market in services for meeting care and support needs. In our call for evidence we asked how local authorities could satisfy that duty, and how they could encourage a diverse range of high quality providers. The Care and Support Alliance, while welcoming the duty placed on local authorities to promote diversity and quality in the provision of services, pointed out that local authorities have never had this market function before, so that regulations and guidance needed to be detailed and provide clarity as to how this function should be performed.[79]

101. Many of our witnesses stressed the variety of services available in different local authority areas, and emphasised the importance of a range of care services and accommodation being available.[80] Mears Group, while supporting the need to strengthen diversity, were concerned that many local authorities interpreted this as simply increasing the number of providers: more providers did not in their view equate to more choice.[81]

102. To carry out this duty, a local authority needs detailed data on the availability of different services, and on the pricing and charging structures. There were suggestions that some local authorities do not have adequate data to support their strategic plans. Mencap told us that at a consultation event, service providers and Mencap local groups shared experiences of poor planning by local authorities which led to inadequate management of funding and a lack of choice of services for individuals. There was particularly a poor knowledge of people with a learning disability in local demographics. Mencap suggested that the duty to produce strategic plans should be supported by a duty on local authorities to keep accurate records of the number of people with a learning disability in their area.[82]

103. This concern was summed up by Colin Angel of the National Home Care Association who told us that "What many councils have is a partial understanding of their local market based on the section that they transact with. Traditionally, authorities have had lists of approved providers; those are the organisations they will know. They will largely be providers delivering services to a council's specification. There is much less intelligence, however, about what occurs outside of those arrangements. The risk is that people will continue to be directed into the services that councils would traditionally have purchased and to miss out on knowledge, understanding and direction to more creative and flexible services that offer different options to people."[83]

104. A number of our witnesses expressed concern about the way in which local authorities exercised their existing commissioning responsibilities. For example, while welcoming the market shaping duty Des Kelly of the National Care Forum told us that "In a way, local authorities already had this responsibility. The market we have is a result of the way that local authorities have operated. We talk about commissioning, but actually, mostly, we mean contracting or procurement. It is not about commissioning. Too few of the discussions between local authorities as commissioners and providers are about commissioning rather than what price they are willing to pay. It is not really about what services they want in the future and how those services are best provided. That is part of the difficulty."[84]

105. This led some of our witnesses to call for the market shaping duty to be more explicit about the obligations on local authorities to gather intelligence and "talk to all of the players—be they not-for-profit or for-profit."[85] Others wanted to make sure that there was a clear link with the production of Joint Strategic Needs Assessments (JSNAs) to drive a full understanding of current and future population level needs for care and support. The Charity Sue Ryder in its written evidence said "In order to develop a diverse marketplace local authorities must complete an assessment of the local population's needs." However, they expressed concern that the current generation of JSNAs do not provide the data necessary to support the market shaping duty. In its report The Forgotten Millions it reports that only 5% of local authorities were able to provide detailed data on the number of people with any neurological condition that they provided care and support for.

106. Shaun Gallagher, the Department of Health's Director for Social Care, Local Government and Care Partnerships, was clear that the market shaping duty is a broad one. He told us "First, you are missing a trick if you see this only as something that the social care bit of the authority is going to worry about. A really good market-shaping responsibility works with the local NHS and with housing authorities and other functions, because one of the best bits of innovation is where you can define new types of service that span those different areas. You actually achieve more by bringing those things together. Secondly, you need to work with the existing providers to say, 'Okay, we think that our community needs a different type of service over the next five or 10 years. What are you going to do to try to develop that and where we might need to see some new developments, whether that is social enterprises or other sorts of innovative providers?'."[86]

107. Many of these concerns are not directed at the market shaping duty itself. They reflect existing procurement practices, behaviours and relationships. The Department advised us that it is running a national support programme offering tailored assistance to local authorities to develop their capability to discharge this new duty. The Government should ensure that the Department of Health's national support programme and guidance to local authorities address these concerns; in particular they should make certain that Joint Strategic Needs Assessments provide a sufficiently detailed picture of the scale and character of current and future individual needs to support market shaping.

108. We also believe clause 3 should be amended to put beyond doubt that local authorities must involve service providers, service users and carers in market shaping activity.

109. Clause 3(2) sets out four matters to which local authorities must have regard in promoting efficient and effective operation of the market in services. The Standing Commission on Carers suggested adding to this list a duty to monitor the match between local supply and demand, and thereby to seek continuous improvement in quality and availability.[87]They drew to our attention the relevant provisions of the Childcare Act 2006; they said these provisions appeared to have worked well and could be a model for provisions in the draft Bill. We agree.

110. Clause 3(2) should be amended by the addition of a paragraph to provide for a duty analogous to that set out in section 6 of the Childcare Act 2006, which would require local authorities not only to develop a local market but also to monitor the match between supply and demand in their areas to and report publicly on the sufficiency of care and support services.

111. The draft Bill does not directly refer to how the commissioning function of local authorities is to be discharged, except to state in clause 3(3) that in meeting an adult's needs for care and support or a carer's needs for support, a local authority must have regard to its duty to promote diversity and quality in the provision of services. However, in promoting a diverse market of services both to meet the needs of those local authorities support and those who make their own arrangements there is no obligation on local authorities to have regard for the actual costs of providing a service when setting the price they will pay. As we acknowledged in Chapter 1 this is ultimately a question of funding; nonetheless, the market shaping duty could be rendered worthless if local authorities undermine the diversity of the market through their pricing decisions. As John Adams from the Voluntary Organisations Disability Group told us, "We have seen a series of judicial reviews recently which have pretty much said that you have to take into account the provider's real costs of providing that care."[88]

112. In evidence on 7 February Sally Warren, in response to a question concerning the need for the actual cost / usual cost requirement to be transposed into the new legislation, pointed out that there might be a number of reasons why the local authorities might pay a different price from what self-funders might pay, including the bulk buying power of local authorities and the fact that self-funders often choose a higher quality home or a better room. She said: "Our current intention is that we would not be replicating [provisions about the price of care] in guidance, but I am very happy to look at the evidence that has been provided to the Committee over the course of your hearings and reconsider that."[89]

113. The draft Bill should include a requirement that local authorities properly take into account the actual cost of care when setting the rates they are prepared to pay providers.

114. We note that the Government have recently legislated to provide a mechanism for resolving disputes in the groceries market, establishing a Groceries Code Adjudicator. We have not had the opportunity to take detailed evidence on how such a model could be applied to the care and support sector. However, from the evidence we have received it is clear to us that a mechanism that enabled disputes over costs of care to be resolved would support the objectives of the draft Bill. The Government should examine the scope for introducing an independent adjudicator to settle disputes between local authorities and providers over the cost of care.

115. The announcement by the Government that they will be introducing a capped cost system raises further questions about disputes, redress and complaints which we discuss in Chapter 7.

116. Clause 3 provides that in exercising the market shaping duty local authorities must have regard to the "importance of fostering continuous improvement in the quality" of services. This reflects similar duties on the NHS. However, in the Health and Social Care Act there are clear references to quality standards. Gary Fitzgerald, the Chief Executive of Action on Elder Abuse told us: "I was quite surprised that the Bill does not link in with the essential standards that CQC measures against or the proposed NICE standards. There does need to be a link in commissioning between understanding what is taking place."[90] If local authorities are to be accountable for discharging their market shaping duty there need to be standards against which the public can judge them, a point Lord Adebowale made to us in his evidence.[91] We agree. The Government should amend the market shaping duty in clause 3 by making an explicit link to both the essential standards of quality and safety and to NICE quality standards. This could be achieved by adding to clause 3(2) a requirement to have regard to regulations made under section 20 of the Health and Social Care Act 2008, and to the quality standards prepared by NICE under section 234 of the Health and Social Care Act 2012.

117. In the White Paper the Government refer to "particular tasks that are unrealistic to be carried out in a 10- to 15-minute home care appointment" and say that they "risk stripping people of their dignity and jeopardising their human rights." This concern was highlighted by the Equality and Human Rights Commission's inquiry into home care.[92] These concerns were repeated in evidence to our inquiry; in particular, Leonard Cheshire was concerned by what it said was an increasing tendency to commission ever-shorter home care visits. "This can mean care workers are asked to provide person-centred personal care to an individual in a timeframe that does not allow for them to be supported with dignity or for any meaningful personal contact. We do not believe that such short visits are suitable for personal care, except in very limited circumstances." The Government should ensure that they have the necessary statutory authority to make regulations or issue guidance concerning what they call "unacceptable" commissioning practices, and amend the draft Bill if necessary.

Cooperation: Clauses 4-5

118. Clauses 4 and 5 deal with cooperation between local authorities and their partners generally and in specific cases. Clause 4(5) contains a list of relevant partners: other local authorities, NHS bodies in the authority's area, the local police, prison and probation services, and other persons prescribed by regulations. Nothing is said there about housing providers, and we think they should be specifically mentioned, as one of our witnesses suggested.[93]

119. The list of relevant partners in clause 4(5) should be extended to cover registered housing providers, including housing associations and registered social landlords.

Promoting integration of care and support with health services: Clause 6

120. All adults in need of care and support, and probably all carers, will need health services. Clause 6 requires local authorities in exercising their social care functions to ensure the integration of care and support provision with health and health-related provision. This is the mirror-image of the duty under the Health and Social Care Act 2012 which confers similar duties on the NHS Commissioning Board and clinical commissioning groups. The benefits that such integration can bring are demonstrated in Torbay, which has taken the lead in integrating services. Members of the Committee visited Torquay on 24 January to see this in action, and to talk to those providing the services and to those receiving them. Although participants from both the NHS and local authorities stressed the importance of culture and relationships in creating the right conditions for successful coordinated care, they did point out the value of the use of section 256 of the National Health Service Act 2006 to transfer resources and as a catalyst for integration. A note of that visit is at Appendix 4.

121. Integration can mean many things, as Sarah Pickup told us: "You could integrate commissioning and you could do that for one service, all, or many. When people talk about integration they often mean integrated delivery, so there is one person going in to see people and you have generic teams. … Then in between that you have things like integrated access, where you want to have one front door where people can access therapeutic services, nursing or social care. Or you can have integrated assessment, where you look once at what people's needs are and then you holistically get a care plan to meet them. The problem with having a firmer legislative requirement to integrate is that, in fact, you cannot really do that until you get to the regulation and the guidance."[94]

122. The importance of integrated care, and in particular the financial context in which it operates, was emphasised to us by the Department of Health: "… if we want to see the overall shift in the pattern of services that we all talk about all the time, which is that we need to move health and care services to a more community focus, to support earlier intervention and preventive services, which will in its totality involve a better use of resources across the entire system, if we are to achieve that big picture, which unquestionably will be a better use of resources and more efficient, the integrated working between health and social care and indeed other partners is an absolutely essential component."[95]

123. There have been a number of proposals for adding to the face of the Bill a general requirement for local authorities to ensure the integration with particular services which have an impact on care and support. Many witnesses sought to include a requirement to integrate housing services with care and support. The BMA wrote: "Clause 6 on integration deals with integration between care and support provision and health provision but does not refer specifically to housing arrangement. Without explicit reference to integration of these elements of wellbeing, it is not specifically promoted within the draft Bill.^"[96] Mark Goldring, the Chief Executive of Mencap, made the same point.[97] Leonard Cheshire Disability asked that the integration duty should apply equally to employment and housing.[98]

124. In clause 6(1) a reference to "housing provision" should be added to the reference to "health provision and health-related provision".

125. The wording of clause 6(1) requires a local authority to exercise its duty to ensure integration "where it considers that this would" promote well-being, contribute to prevention or delay of the need for care and support, or improve the quality of care. We agree with Leonard Cheshire Disability that this subjective requirement leaves too much latitude to local authorities, and could be strengthened. We recommend that the words "it considers that" should be deleted from clause 6(1).

126. We asked why there could not be a provision in the Bill giving a power to direct the proportion of budgets being used for joint commissioning of health and social care. The reply we received from the Department was that "… all the evidence of where integrated care makes a difference tells you that it is locally led and locally owned and that there is a real resistance to something that is prescribed from the centre."[99] We are not persuaded by this answer.

127. There is moreover a good argument that joint commissioning and joint budgets will minimise funding disputes which are damaging to those who receive care and support, and which have been seen as part of the problems that led to the scandal at Winterbourne View. The Government have accepted this for children with special educational needs in the Children and Families Bill. That Bill states that local authorities and partner clinical commissioning groups must make joint commissioning arrangements in respect of children with special educational needs.[100] Currently, the powers to pool budgets and undertake joint or lead commissioning are set out in section 75 of the National Health Service Act 2006. This should provide NHS and local authority commissioners with a toolkit to support the discharge of the integration duties that the Health and Social Care Act 2012 and the draft Care and Support Bill impose. However, section 75 is not designed to enable such arrangements; it stipulates a complex set of requirements that amount to a "pre-nuptial agreement" that is cumbersome to put in place.

128. Clause 6 should be amended to reflect the approach taken in the Children and Families Bill by giving the Secretary of State a power to prescribe groups of people or services that should be subject to joint commissioning and joint budgets.

129. The Government should take the opportunity to review section 75 of the National Health Service Act 2006 to make the requirements less onerous.

130. We add a word of caution. It is clear from the Torbay experience that there is much that can be done without legislation, and the converse is also true: there is a limit to what can be done by legislation. Sally Warren told us: "…. what is going to drive integration is leadership, culture and a shifting at a local level."[101] And Richard Humphries took the same view: "… thinking back on my career and the various initiatives I have been involved with in trying to draw these different services together, I cannot think of a single one where it was made possible by new legislation. … The best that legislation can do is create the right framework that makes it easier for people to do it locally."[102]

131. A number of our witnesses expressed concern that the draft Bill did nothing to support information sharing between agencies. The Department acknowledged the problem in the information strategy it published in May 2012 when it said: "Concerns over security and privacy issues—and a lack of clarity for professionals in understanding what level of information sharing is permitted—can lead to a culture that is overly risk adverse and reluctant to share information at all, even where it would improve care." The strategy goes on to set out a number of actions including the aspiration that the NHS number be used to provide a common identifier across health and social care.[103] We suggested that the NHS number could form the basis of a shared record across different healthrelated services, and the Minister of State replied: "The idea of the NHS number applying across the system is enormously attractive. Having two different identities is crazy…"[104] The Government should review before the introduction of the Bill whether they have the necessary powers to support the implementation of information sharing using a common identifier such as the NHS number across different services.

Discharge from hospital

132. Caroline Abrahams told us that 6% of hospital beds are occupied by people readmitted within a week of discharge, often because their care arrangements have not worked out properly.[105] This must be hugely distressing for those involved, and also a considerable waste of resources. Proper management of hospital discharge was seen as one of the most important areas for enhanced integration between services, and we received evidence, some of it anecdotal, on the problems that can be caused by inadequate preparation for and coordination of discharge.[106] Hospitals owe it to their patients to consider their needs on discharge, and how they will be met, as part of the admission process. This point was further reinforced in the recommendations of the Francis Inquiry Report which said that "it should never be acceptable for patients to be discharged in the middle of the night, still less so at any time without absolute assurance that a patient in need of care will receive it on arrival at the planned destination."[107] We agree.

133. Jake Eliot said that the Bill needed tightening by requiring, where patients had needs for care and support, that an assessment of the need for home adaptations and housing related support should be undertaken before discharge.[108] The same point was made by Domini Gunn for the Chartered Institute of Housing,[109] and by Midland Heart in their written evidence. This concern was not restricted to patients with acute physical care needs. A number of respondents[110] in their evidence expressed concern that patients from psychiatric hospitals are frequently being discharged without adequate support in place or facing delayed discharges in high-cost secure units because of inadequate arrangements for step-down and community support.

134. Clause 6(1) should be amended to require local authorities to ensure the integration of care and support provision with health provision on discharge from hospital, with particular emphasis on the adequacy of housing provision on discharge.

135. A number of respondents[111] made the point that Schedule 2 applies only to those in acute care. This excludes people receiving psychiatric treatment or re-ablement services, an omission which in their view undermines the Government's efforts to create parity of esteem between physical and mental health. They are concerned that patients from psychiatric hospitals are frequently discharged without adequate support in place or facing delayed discharges in high-cost secure units because of inadequate arrangements for step-down and community support. We agree with these witnesses that the Bill should not only introduce a clear duty on local authorities to carry out assessments for everyone leaving hospital with care and support needs, but should be extended to cover people using mental health services. We recognise however that the delayed discharge provisions in Schedule 2 simply replicate earlier provisions that put in place a system of reimbursement or fines and seek to apportion responsibility for delays in discharge.

136. We would be concerned that any extension of Schedule 2, as presently drafted, to other groups or settings could have unintended consequences. The Government should consider redrafting Schedule 2 to reflect its ambitions for integration and parity of esteem between physical and mental health. Any redrafting should seek to codify best practice in the coordination of the care of a person before, during and after their discharge.

137. We are aware of past controversy over the scope of section 117 of the Mental Health Act 1983. The Law Commission made a number of proposals concerning this provision. Paul Farmer told us: "We see concern around the way that this Bill is drafted and we certainly would encourage you to remove sub-section (5)(a) of clause 48 in that regard, because we think that would have a very detrimental effect on the application of [section] 117 care."[112] Paul Farmer expanded on his concern in written evidence: "Under the draft Bill as it stands, the definition is extended to state that these services must also meet a need 'arising from the mental disorder of the person concerned'. In practice, it can be very difficult to establish which needs arise directly from an individual's mental health problem and which don't. We are concerned that narrowing the criteria for aftercare in this way will lead to disputes over what constitutes section 117 care, causing delays in the provision of services, distress for the people concerned and leaving them eligible to be charged for care that is essential to prevent their readmission to hospital. For example, under this new definition it seems likely that many local authorities will begin to charge for accommodation or residential care needed to prevent readmission to hospital, as it could be argued that the need for accommodation does not arise directly from a person's mental health problem. People would have to go through difficult financial assessments while being discharged from hospital, with some likely to refuse crucial elements of their care that they worry they will be charged for."

138. The Law Commission came to its recommendation in part to reflect the judgment in R (Mwanza) v London Borough of Greenwich.[113] The court held that a local authority's responsibility to provide after-care services under section 117 is restricted to those services necessary to meet a need arising from the former patient's mental disorder and aimed at reducing that person's chance of being readmitted to hospital for treatment for that disorder. The Law Commission concluded, "Consequently, the section 117 duty does not extend to providing normal accommodation simply on the basis that there is an increased risk to the person if accommodation is not provided, rather than because of their mental disorder. If the person is in need of care and attention then section 21 of the National Assistance Act 1948 is the more appropriate provision for seeking assistance."

139. The Government have sought to translate the Law Commission's recommendation on section 117 of the Mental Health Act 1983 into the draft Bill. Insofar as this simply reflects the court's interpretation of the current legal framework for after care, we do not recommend any change. However, ministers should ensure that in the guidance to local authorities the risks are recognised and the well-being principle upheld.

Preventing needs for care and support: Clause 7

140. Anything that can prevent or delay the development of needs for care and support is obviously good for the adult concerned, good for any potential carer, and incidentally also good for the finances of local authorities and others who would have to pay for that care and support. The duty imposed on local authorities by clause 7 to take steps to prevent, delay or reduce needs for care and support is very welcome, and was welcomed by a number of our witnesses.[114]

141. The term "prevention" is not well understood. Alex Fox, the Chief Executive of Shared Lives Plus, told us that "things labelled preventative often had no clear idea of what they were preventing, for whom and how they knew whether they prevented it ... Actually, all social-care interventions should be future-focussed as well as reactive. Things that are genuinely preventative leave people better informed, better connected and more able to live with dignity themselves. .. The more that we can help people connect and embed into a community, the more empowered and resilient, and the less dependent, they are. That to me is a much more helpful idea of what prevention is that applies at an early stage and is relevant at end-of-life care. There is no stage of life at which we want to be dependent and isolated."[115] We share Mr Fox's desire for clarity.

142. Ministers should ensure that the explanatory notes to the Bill and the guidance both provide clarity about the prevention duty and how it should be seen as an integral part of the care and support system at every stage.

143. The financial benefits of prevention can appear relatively quickly. Sally Warren explained: "People always assume that prevention takes a long time to get returns. Actually, some prevention and early intervention can [produce] returns very quickly. What we need to get better and smarter at is sharing the evidence of where that works. Re-ablement, which is more on the early intervention than on the prevention side, has been proven to pay back very quickly within the financial year for local authorities, so that is definitely worth investing in."[116]

144. Clause 7(2)(b) requires local authorities to have regard to "the importance of identifying adults … with needs for care and support which are not being met". This reference to those who already have unmet needs does not include those who do not yet have needs, but may be at risk of developing such needs; nor does it include those who already have needs, but for whom prevention of deterioration might delay an increase in their needs. This is particularly true of people with a learning disability. Mark Goldring explained that "for people with a learning disability prevention has a rather different meaning … a modest level of support to people to live an everyday life can prevent not learning disability but a massive deterioration in their well-being".[117]

145. Clause 7(2) should be amended to state that, additionally, local authorities must have regard to the importance of identifying adults at risk of developing care and support needs, or increasing such needs, who may benefit from support to prevent deterioration in their well-being.

146. Clause 7(1) requires local authorities to provide or arrange for the provision of services, facilities or resources to prevent or delay the development of needs. When asked if the market shaping duty in clause 3 included preventative services officials from the Department told us it did not.[118] A similar point was made about the contribution that information and advice can make to preventing and postponing the onset of need by Laura Robinson, the Policy and Communications Adviser of National Voices,[119] and also by Sarah Pickup who told us "Our line in ADASS, and indeed in my own authority, is that our priority must be to prevent, inform and advise."[120] The draft Bill should be amended to make clear that both clause 2 and clause 3 are linked to the duty of prevention.

147. During our oral evidence session with Ministers, Norman Lamb MP told us that the Government were looking at how implementing a capped cost system would impact on existing clauses in the draft Bill. He expressed the hope that a cap, "encourages people to come forward early to have the assessment as to whether their care needs meet the threshold for the clock to start. The more the local authority can do to have the early conversation with people to help them build their own resilience and to give advice and support about what the family can do—and the more the community can do to maintain independence and slow down any deterioration of condition—the better. I think that proactive conversation as early as possible is really important. Dilnot would help facilitate that earlier conversation, so we are looking both at the new clauses and any impact that they would have on existing clauses." We agree with the Minister. Realising the "public health" benefit from introducing a capped cost system could result in significant quality of life gains by helping to engage more people in maintaining their health and well-being, with a positive impact on demand for long term care.

Safeguarding: Clauses 34-38

148. The fact that the draft Bill places adult safeguarding on a statutory footing for the first time was widely welcomed by our witnesses. However, we were told by a number of witnesses that "We are concerned that the first reference to safeguarding in the draft Bill is in relation to an enquiry … this does not recognise the need for local authorities to take steps to prevent abuse occurring in the first place."[121] The need clearly to link the safeguarding duties in the Bill to the other general responsibilities of local authorities set out in clauses 1 to 7 was suggested as an improvement to the drafting of the Bill. We agree that prevention should be an explicit part of the safeguarding responsibilities of local authorities.

149. The safeguarding provisions of the draft Bill should be moved to the General Responsibilities section.

150. Local authorities should be placed under a statutory duty to take steps to empower individuals to understand what abuse is, and how to protect themselves from it, whether by seeking help or otherwise.

151. What the draft Bill describes as "safeguarding" is in fact two different matters. Clause 34(1)(b) gives the local authority the duty to make enquiries where it has reasonable cause to suspect that the adult needing care "is at risk of abuse or neglect"—what the Law Commission describes in Part 9 of its report[122] as safeguarding. But that paragraph also deals with the similar duty of local authorities where it suspects that the adult needing care "is experiencing" abuse or neglect—what the Law Commission describes as adult protection, which is in fact the heading of that part of its report. The first is a duty of prevention, the second a duty of investigation. In neither case is there currently a statutory framework giving local authorities the powers they require. It seems to us that by putting the two together the draft Bill may have caused some confusion about the separate powers.

152. We put this to the Law Commission who told us: "We are concerned that this duty may not extend to adult protection cases where abuse or neglect has or may have occurred in the past. This is because the duty appears to require that the abuse is occurring at the present time or is likely to occur in the future. However, there may be cases where the local authority is aware that abuse or neglect has occurred in the past but still needs to investigate. For example, enquiries may be necessary in a situation similar to that which occurred at Winterbourne View where procedures had been put in place to address the past episode of abuse but the local authority still needed to investigate to ensure that the residents were not at risk." .. The Law Commission concluded: "we remain concerned that the duty will not cover a small but significant number of cases where the local authority has no reason to suspect that abuse is ongoing but still needs to investigate to ensure that the arrangements put in place are sufficient. We therefore think that the Bill should be amended to ensure that the duty to investigate covers such cases."[123] We agree.

153. Clause 34(1) should be amended to put beyond doubt that the duty of local authorities to make enquiries extends to cases where abuse or neglect has occurred in the past but still needs to be investigated. A similar amendment should be made to clause 4(4)(c).

154. In its written evidence ADASS expressed concern that the clause as drafted does not make clear what "cause to be made" means in practice, a point also made by the Practitioners Alliance for Safeguarding Adults. They suggest that the guidance on this point needs to be robust to ensure that action occurs and accountability is clear. We agree. The Government should ensure that both the explanatory notes to the Bill and the guidance make clear what obligations the words "cause to be made" place on local authorities and other agencies.

155. Clause 34(2) does not define "abuse", but states that it includes having money or property stolen or misused, being defrauded, and being put under pressure in relation to money or property - what might be termed financial abuse. The lack of a definition was criticised by some witnesses.[124] The Independent Living Association wrote: "… while we appreciate that clause 34(2) is not an exhaustive list, it erroneously suggests that financial abuse is the only type of abuse individuals are subjected to."[125] We do not agree with this criticism. Abuse is an ordinary English word, capable of being understood without being defined. It might not however normally be thought of as including financial abuse, and it is right that clause 34(2) should put this beyond doubt. But to attempt an exhaustive definition always has the danger of omitting something which, as subsequent events make clear, should have been included.

A POWER OF ENTRY

156. The Equality and Human Rights Commission (EHRC) suggested that "there should be an additional power of entry for local authority representatives, where a third party is refusing access to a person who may be at risk of abuse and neglect."[126] Several other witnesses took the same view.[127] In subsequent evidence the EHRC suggested that the local authority representatives should be experienced in adult safeguarding and should where appropriate use independent advocates to establish effective contact with the person about whom they have concerns, to advise whether that person is in fact being subjected to abuse or neglect. They added that the relevant regulatory and inspection organisations should undertake a regular assessment to ensure the powers were used proportionately.

157. A provision on powers of entry already exists in the Adult Support and Protection (Scotland) Act 2007 and is proposed in the Social Services and Well-being (Wales) Bill. Sections 37 to 41 of the Scottish Act set out the necessary procedures for applying to a sheriff or, in urgent cases, to a justice of the peace, for a warrant for entry. It seems to us that these or similar provisions which require court authorisation and application of the Human Rights Act to a power of entry would provide an adequate protection against the powers being abused.

158. The Minister of State told us that the Department of Health had carried out a consultation. The results of the consultation had not yet been published but, not surprisingly, those who wanted to use the power were in favour, while those who believed that they might be subject to it were opposed to it.[128]

159. There are obvious dangers in according such powers to new categories of persons, but on balance we believe that the safeguarding provisions should include a power of entry for local authority representatives where a third party is refusing access to a person who may be at risk of abuse or neglect.

SAFEGUARDING ADULTS BOARDS

160. Clause 35 requires each local authority to establish a Safeguarding Adults Board (SAB), and Schedule 1 sets out detailed provisions about the membership and strategy of SABs. The membership list does not include the relevant Health and Well-being Board; although it could be added by regulation, we think that, in order to identify relevant areas of concern and to ensure that strategies and planning arrangements fully reflect local needs, the local Health and Well-being Board should specifically feature in the list of members of the SAB.

161. The Care and Support Alliance suggested that the CQC should be required to identify a person within the regulator who should act as a link with each of the SABs. That person would be responsible for sharing information, advice and guidance with the board. We can see that this might have advantages, but we believe it would be unduly onerous to ask the CQC to name people to act as a link with 152 local authorities (fewer if two or more authorities established a joint SAB). We do however believe that the CQC should be added to the list in paragraph 3(2) of Schedule 1 of those who receive copies of the annual report of all SABs.

162. The local Health and Well-being Board should be added to the list of members in paragraph 1(1) of Schedule 1 to the draft Bill. The Care Quality Commission should be added to the list of recipients of reports in paragraph 3(2).

163. The contribution of housing providers to safeguarding has been raised by a number of witnesses. In written evidence Imogen Parry told us "that the role of housing in preventing and addressing adult abuse is neglected in legislation, policy, practice and research." Graham Carey pointed out that the current guidance on adult safeguarding, No Secrets, sought to include housing in safeguarding boards but this had not happened in practice. We agree that housing has a place in adult safeguarding arrangements. The Government should consider amending paragraph 1(1) of Schedule 1 to include appropriate housing representation in the membership of Safeguarding Adults Boards.

164. A local authority is, rightly, a member of the SAB which it establishes. However there will be occasions when an SAB will be carrying out case reviews under clause 36 which might well be investigating alleged failures by the local authority in adequately carrying out the enquiries required by clause 34. Participation by a local authority in an investigation of its own shortcomings would be undesirable. Paragraph 1 of Schedule 1 should be amended to specify the circumstances in which a local authority should not take part in the proceedings of the Safeguarding Adults Board.

165. Adult serious case reviews, which become safeguarding adults reviews under the draft Bill, would not have the same statutory authority to obtain information as serious case reviews involving children. The current powers are set out in section 8 of the Children, Schools and Families Act 2010,[129] which amended the Children Act 2004 to give Children's Safeguarding Boards an express power to require a person or body to comply with a request for information from the Board where the information relates to the Board's duties. The absence of any express power in safeguarding adults reviews leaves a gap which could undermine the ability of such reviews to learn the lessons from serious cases of abuse and neglect. The draft Bill should include an explicit power to obtain information relevant to the conduct of safeguarding adults reviews.

47 By way only of example, Sue Bott (Disability Rights UK): "That principle of well-being is absolutely essential."; Paul Farmer, Chief Executive of Mind: "We too would very much welcome this well-being principle."; Sue Brown, Head of Public Policy, Sense: "We very much welcome the well-being principle and the checklist of what is included …" (Q 194). Back

48 Fair Access to Care Services, now located in Department of Health Guidance (2010) Prioritising need in the context of Putting People First: A whole system approach to eligibility for social care. Guidance on Eligibility Criteria for Adult Social Care. Back

49 Richard Percival, Q 92. Back

50 Q 168. Back

51 Report, paragraph 4.35. Back

52 Paragraph 3.2. Back

53 The Children's Society, written evidence, paragraph 3.4. Back

54 Q 194. Back

55 Paragraph 6. Back

56 Report, paragraph 4.36. Back

57 Report, paragraph 326. Back

58 A point raised by Emily Holzhausen, the Director of Policy at Carers UK (Q 152). Back