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

5 Assessing and meeting needs, and payments

How to meet needs: Clause 8

166. The nearest the draft Bill gets to an explanation of what is meant by care and support is clause 8(1), which gives five examples of what may be provided by a local authority to meet the needs of an adult needing care and support, or a carer needing support:

a) accommodation in a care home or in premises of some other type;

b) care and support at home or in the community;

c) counselling, advocacy and other types of social work;

d) goods and facilities;

e) information and advice.

167. This list is a radical departure from existing social care legislation since it is illustrative rather than exhaustive; the care and support can be provided to either the carer or the adult needing care; and support provided under this clause is subject to charging (a point we consider further below).

168. We put to the Department of Health that holidays, travel, assistance to take advantage of educational facilities, and home adaptations, are all specifically mentioned in the current legislation.[130] The Department's note of 30 January 2013 makes clear that the list is illustrative only, and that all of these are intended to be covered by clause 8. We have been urged to recommend additions to the list, in particular transport,[131] employment support services[132] and equipment.[133]We do not think this approach is likely to succeed. So long as the list is short, it is clear that it is illustrative only. The longer it is, the more likely it is to be interpreted as not including matters unconnected to those in the list, as indeed are many of those mentioned by the Law Commission.

169. The explanatory notes to the draft Bill on the one hand state that the list is intended to give some general examples, but then go on to say: "The examples provided are intended to be wide enough to cover all specific services which may be provided". This is confusing.

170. The Department of Health should take the opportunity to review and revise the explanatory note for clause 8 and subsequent guidance to make clear that the list is not intended to limit the ways in which a local authority might meet any eligible needs or agreed outcomes, removing any possible ambiguity on that point.

Assessing needs: Clauses 9-12

171. The Law Commission took the approach of putting assessments at the centre of the legal framework for adult social care,[134] suggesting that the focus of assessments should "not be on rating a person's needs but rather how to assist the individual to achieve well-being within their own resources".[135]This approach has not been followed in the drafting of the clauses that cover a person's journey through the formal care and support system.

172. Some of our witnesses felt that the draft Bill had not fully captured the Law Commission's intention that well-being should become the organising principle around which adult social care is built. In their written evidence to the Committee Shared Lives Plus described people's first contact with the care and support system as "often stigmatising, confusing and requires people to prove their vulnerability and dependence." They echo the Law Commission's ambition that the process of assessment should explore "resilience, coping skills and potential informal support networks". This leads them to recommend reframing the entitlement to a needs assessment as an entitlement to access to planning support. The Government in their White Paper talk about adopting "asset based approaches" that consider the strengths that people and communities have to meet and manage their needs.

173. In their written evidence to us the Joseph Rowntree Foundation applaud the Government for adopting well-being but go on to say: "At some points, old-fashioned and narrow language creeps back in". We agree that the Bill fails fully to follow the logic of adopting well-being as the overarching principle, and defaults to a more traditional model of needs assessment. The Department should amend the draft Bill to support people planning to achieve well-being within their own resources. The aim should be to frame assessment as a discussion about the additional support people may need to maintain or achieve well-being.

174. Clause 9 consolidates, in large measure, the assessment duty currently found in section 47 of the National Health Service and Community Care Act 1990. Section 47(3) provides that if it appears to a local authority when undertaking an assessment that the person being assessed has a health or housing need, then it is obliged to bring this need to the attention of the relevant health or housing authority, invite them to assist in the assessment, and take into account any services likely to be made available by that authority. However it appears that the obligations in section 47(3) have not been transposed into the draft Bill.

175. We put this point to the Department of Health, who replied: "It is our intention that the duty on local authorities to co-operate generally and in specific cases will ensure that they work with partners such as the NHS and housing authorities. The draft Bill also promotes integration between local authorities and the NHS. These provisions will underpin existing practice where local authorities already contact the NHS or housing authority if they believe a person has health or housing needs. We would welcome the Committee's views on this approach." While we welcome the intention, we believe that a specific provision on the lines of section 47(3) of the 1990 Act would be more appropriate.

176. The draft Bill should be amended to provide that if it appears to a local authority, when undertaking a needs assessment under clause 9 or a carer's assessment under clause 10, that the person being assessed has a health or housing need or other relevant need, it should be obliged to bring this need to the attention of the relevant authority.

177. Clause 10 for the first time imposes on local authorities a requirement to assess, not just the adult's needs for care and support, but also the carer's needs for support. This development was described by Dr Moira Fraser, Director of Policy and Research, Carers Trust, as "a huge step forward".[136]We agree. We welcome the fact that for the first time local authorities will be required to assess whether a carer has, or is likely to have in the future, needs for support.

178. A consortium of organisations with an interest in mental health[137] suggested that where the person having a care and support needs assessment lacks capacity, the draft Bill currently contains no requirement to consider the involvement of "those concerned for the person's care and well-being", as would be expected under the Mental Capacity Act 2005. They said: "The Bill should explicitly state that these interested parties should be involved in the needs assessment process where it relates to an individual who lacks capacity." We agree.

179. Clause 9(5) lists those who must if possible be consulted by a local authority carrying out a needs assessment. In the case of a person lacking capacity, this should include those concerned for the person's care and well-being in accordance with section 4(7)(b) of the Mental Capacity Act 2005.

180. A number of our witnesses had concerns about assessments for those who were terminally ill. Marie Curie Cancer Care sent us a short submission confined to the issue of whether a statutory duty on local authorities to fast-track people with a terminal illness through assessment of care needs and financial resources could be included in the draft Bill. They quoted the Palliative Care Funding Review: "At this time [the end of life], the last thing individuals and families should be facing are arguments over funding of the care they need and delays in the provision of care due to complex systems and procedures". At present, people who are terminally ill with less than six months to live can receive instant access to the highest level of welfare benefit through a DS1500 form, which is issued by the patient's diagnosing physician, and Marie Curie Cancer Care suggested that "a completed DS1500 could also be used to trigger a fast-track through assessment of care needs and financial resources for terminally ill people." Help the Hospices also made this point.

181. While a system based on form DS1500 was thus favoured by a number of our witnesses, we were told by the Motor Neurone Disease (MND) Association that this proposal "might not work for people with MND". The Association suggest that end of life care locality registers or the Electronic Palliative Care Coordination System (EPaCCS) would be better. However they acknowledge that EPaCCS is not used universally.[138] On balance we believe that there is a benefit to be gained from fast-tracking people through the care and support system. We think that there should be a statutory duty on local authorities to fast-track assessments for terminally ill people, other than those for whom the NHS has continuing healthcare responsibilities. Clause 12(1), which lists the matters relating to needs or carer's assessments for which regulations must make further provision, should include provision for fast-tracking needs assessments for terminally ill people.

182. It is not clear to us whether the reference in subsection (1)(a) to the "needs of the family" gives sufficient prominence to the need to prevent any children from undertaking inappropriate caring responsibilities. We must ensure that, when carrying out needs assessments under clause 9, local authorities have regard to the needs of any children who may provide or be about to provide care for an adult. Clause 12(1) should be amended to make clear that local authorities, when carrying out a needs or carer's assessment, must have regard to the need to prevent any children from undertaking inappropriate caring responsibilities.

183. Some witnesses did not believe that local authorities should have the power to combine the needs assessments of an adult needing care with their carer's needs assessment. Self Direct thought "this would have the potential in some instances for the person who needs support to lose their individual identity and to lose control of the support they need". But other witnesses, particularly carers' organisations, welcomed the power to combine the assessments. Dame Philippa Russell, the Chair of the Standing Commission on Carers, said: "I warmly welcome the wholefamily assessment. It will help us resolve some of the issues that have arisen around young carers, parent carers and, also, the quite natural disagreements or differences of opinion that can arise between the person needing care and support and the carer."[139]

184. We support the possibility of combining a needs and carer's assessment under clause 12(3), particularly to underpin whole-family assessment, and we believe that the requirement for agreement of the adult needing care and of the carer provide sufficient protection for the adult.

Eligibility: Clause 13

185. In their written evidence Scope told us that eligibility is "the most critical aspect to the whole Bill since it determines who will and will not get vital support, both to carry out essential day-to-day tasks like washing, dressing and eating, and to work, study and contribute to the local community." Quite simply, the eligibility threshold determines whether a person is able to seek state-funded support or have a care account to meter their care costs up to the cap.

186. Marc Bush, the Head of Research and Public Policy at Scope, told us that "the recent modelling that the PSSRU[140] has done has shown that, if we take moderate level needs, there are 36,000 people within the system of working age who, if the reforms go through as they are currently set, would fall out of the care system. There are 69,000 workingage disabled adults in England who have already fallen out of the care system because of the changes to eligibility …"[141] He thought that "if you do not meet need early, people's needs escalate and the costs escalate. We know that there is a direct correlation between councils having to ration their resources and therefore heighten the eligibility so that it is further towards substantial and critical, and that having a direct effect on the escalation of need."[142]

187. Sue Brown, the Head of Public Policy at Sense, said: "The Care and Support Alliance, and pretty much the entire sector, would like to see a threshold that is probably roughly equivalent to the current moderate band. The important thing to remember is "moderate" means moderate; "moderate" does not mean low. If you have a need that is moderate and is not being met, that is having a significant impact on your life."[143] Alex Fox saw the draft Bill as "an opportunity to describe more clearly what an acceptable level of well-being is, and to base eligibility on whether or not the impact of a longterm condition or impairment takes somebody below that level of well-being…"[144]

188. Clause 13(1) of the draft Bill reads: "(1) Where a local authority is satisfied on the basis of a needs or carer's assessment that an adult has needs for care and support or a carer has needs for support, it must (a) determine whether any of the needs meet the eligibility criteria, and (b) if any of them do, consider what could be done to meet those that do." This does not of course say anything about what the eligibility criteria should be. The clause is currently drafted to require the Secretary of State to make regulations about the local authorities' exercise of that duty, but gives him a very broad exercise of his discretion. We have already recommended[145] that, in making regulations, the Secretary of State should have regard to the duty of local authorities to promote individual well-being. We recommend that clause 13(2) should be amended to make it a specific requirement for the Secretary of State, when making regulations concerning eligibility, to have regard to this duty. We are glad to note that these regulations will be subject to affirmative resolution.[146]

THE NATIONAL MINIMUM ELIGIBILITY THRESHOLD

189. There is nothing in clause 13, or in the notes to it, to suggest that the regulations will be used to introduce a new national minimum threshold; on the contrary, the regulations can provide that the levels of need are to be set either by individual local authorities for their areas, or by reference to levels of need specified in the regulations. However in the White Paper the Government made the following commitment: "From 2015 we will introduce a national minimum eligibility threshold. Once implemented, local authorities will be free to set their eligibility threshold at a more generous level, but will not be able to tighten beyond the new national minimum threshold".[147]Such a threshold is desirable in any event; without it, implementation of the Dilnot recommendations would not be possible.

190. In reply to a question whether it was the Government's intention, having regard to resources, to have a national threshold as the minimum people could expect across the country, the Secretary of State replied unequivocally "Yes"; though he was, understandably, not prepared to commit himself to what that threshold would be.[148] The Dilnot Commission recommended that, as a minimum, it should be "substantial" under the FACS system,[149] but the evidence we have quoted above shows that many of those most closely involved believe this would be too high a threshold.

191. We are glad that the Secretary of State confirmed the Government's intention to set a national minimum eligibility threshold. The Government should put this beyond doubt by redrafting clause 13 to make this policy explicit. We also suggest that the Government should consider whether the regulation-making power in clause 13 provides an opportunity to establish criteria that would clarify the boundary between eligibility for local authority funded care and support and NHS funded continuing care.

Charging: Clause 14

192. When meeting an adult's needs for care and support under clauses 17-18, or a carer's needs for support under clause 19, local authorities are given by clause 14 a power to impose charges. Sue Bott expressed her concern: "We have seen charges go up enormously over the last few years. Inflation does not enter into it. We have seen a situation of hyper-inflation with regard to the setting of charges".[150]

193. At present primary legislation stipulates (in relation to non-residential services) that a local authority cannot charge for a service more than it appears to them to be "reasonably practicable" for the person to pay.[151] This statutory protection is not present in clause 14. We put this to the Department of Health. They replied that what it was "reasonable" to charge was never defined, but said that in future, to ensure that charges for care and support are reasonable, regulations must specify an amount below which an adult's income must not fall after charges have been deducted.[152]We note however that the courts and the Local Government Ombudsman have found the requirement in primary legislation of "reasonableness" to be of value in cases concerning the level of such charges.[153]

194. As we have explained in paragraph 166, support under clause 8 can include not just care and support as this is usually understood, but information, advice, advocacy, and other matters. The Department told us that they did not intend to require local authorities to charge for types of support which had previously been provided free. Local authorities would retain a discretion to charge or not to charge for a wide range of types of care support, but would not be able to impose charges for any types specified in regulations under clause 14(4). These regulations would require that types of support which are currently provided free—for example, equipment and minor adaptations—should continue to be provided without charge. It was not clear to us whether local authorities would be able to charge for needs assessments. They are currently not able to, and the Department of Health assured us that the draft Bill would not change this.[154] They undertook to consider whether more could be done to make this clear on the face of the draft Bill.

195. Our final concern was that there was now the potential for carers to be charged for a wide range of local authority interventions. At present most local authorities do not charge carers for carers' services. We wondered whether it was the intention that carers should now be charged for support that gave them respite from their unpaid caring roles. The Department explained that although local authorities do at present have a power to charge carers for the support they receive, most do not charge for most types of support, reflecting the critical contribution which carers make to the well-being of those they care for. The draft Bill did not set out to change this position. It consolidated the existing discretion to charge, but did not presume or intend that charging for carers' support would become usual practice. The Department added: "In particular, the draft Bill makes clear that meeting a carer's needs may involve providing a service direct to the person they care for, rather than direct to the carer (for instance, replacement care, in order to allow the carer to have a break). In these cases, the local authority must assess the resources of the person cared for, on the principle that the person directly receiving the service would pay any charge—even if provided in order to meet the carer's needs. The person to whom the service is provided must agree—and where this is not the case, the draft Bill requires the local authority to consider alternative arrangements."

196. We remain concerned that the combination of a general discretionary power and an open ended regulation making power could have unintended consequences and lead to charging creeping into more areas. The Department of Health's reassurances are welcome, but we believe that for the avoidance of doubt it should be made clear in clause 14 that where charges are imposed they should be limited to what it is "reasonably practicable" for the person to pay. Clause 14 should also be amended to make clear that local authorities cannot simply charge the carer for services provided to the person cared for.

Deferred payments: Clause 16

197. A deferred payment agreement between an adult needing care and the local authority providing the care allows the adult to defer payment, the payment being secured on the adult's home. It is thus potentially a complex agreement, and is likely to be seen as such by adults in a vulnerable position. They should not enter into such an agreement without financial advice. Just Retirement, a specialist provider of financial services for people in retirement, argued in their written evidence: "For the same authority which has a duty of care to a vulnerable adult to be providing financial advice and information about a financial product which it is offering (in the form of an interest-bearing loan secured against the individual's home) to pay for care services represents a potential conflict of interest. This conflict is exacerbated if the care for which the loan is made is directly provided by the LA and the level of charges are also determined by the LA." A similar argument was put forward by the Society of Later Life Advisers (SOLLA).

198. Our recommendation[155] that clause 2(2) should be amended to ensure that the adult is informed of the importance of independent financial advice from an adviser regulated by the Financial Services Authority, and is advised how to obtain it, is of particular importance in the case of deferred payment agreements.

CHARGING INTEREST

199. Care and Repair England highlighted a general concern about proposals to add to the deferred payment interest, plus administrative charges, plus interest on those charges, thereby resulting in what they called a 'snowballing' level of debt accruing on the value of the home owned by the adult needing care. We think it reasonable that interest at a rate governed by regulations under clause 16(4) should be charged on the amount of the adult's payment which is deferred, since this otherwise becomes an interest-free loan. We also think it right that a charge should be imposed to cover the local authority's administrative costs (limited to what is allowed by regulations under clause 16(6)(a)). But we think it excessive that the adult should pay interest on administrative costs, some of which may have been incurred many years previously. We recommend that clause 16(4)(c) should be deleted.

Self-funders: Clause 17

200. Clause 17(3) entitles self-funding adults who have the requisite mental capacity to require their local authority to meet their needs (subject to paying for this). Given that a substantial proportion of adults with care and support needs are currently self-funding, the extension of local authority responsibility to such persons is likely to have significant resource implications. The likelihood of such persons seeking local authority involvement will be increased as a result to the Government's plans to implement the Dilnot proposals—for the reasons we outline in Chapter 2.

201. In contrast to clause 17(3) (which concerns the rights of self-funding adults who have the requisite mental capacity), clause 17(4) creates a substantial additional hurdle for a self-funder who lacks the requisite mental capacity. Such a person would not in general have the right to require their local authority to meet their needs (subject to paying for this) if they had (for example) a Lasting Power of Attorney (LPA)—even if the attorney is unwilling or unable to make the care arrangements. Even if there is no attorney or equivalent, the clause 17(4) duty would not arise if the local authority decided that someone (for example a family "carer") was "in a position" to provide support on the person's behalf. We consider that it is wrong in principle to place a person with impaired mental capacity in such a disadvantaged position, and we put our concern to the Department of Health. In a note of 30 January the Department responded, stating that it "takes on board these comments, and will consider whether any changes are necessary. It is not the Government's intention to create a disparity." We welcome this undertaking to look again at the drafting of this clause.

Personal budgets and resource allocation systems

202. Beyond the question of reasonable cost we did not receive much evidence during our inquiry on the introduction of a statutory footing for personal budgets. In Chapter 2 we discussed the implications of introducing a capped cost scheme and the use of notional costs to meter a person's progress towards the cap. We anticipate that resource allocation systems (RAS) will be used to determine what the notional cost should be, and recommend that these arrangements should be governed by regulations made under the new statute. However, this still leaves the question of those in receipt of local authority support and what role, if any, RAS should play.

203. In response to our web forum a number of people raised concerns about how eligible needs are met. One said: "After an assessment is done [it is] referred to a panel who have no knowledge of the persons involved and report back on their findings. This is where finance rules supreme and goal posts are moved to make it easier for the panel to refuse to give more care help. There should be national standards to adhere to as the duty of care is the thing that is lost in the decision making."

204. The draft Bill confirms the pre-eminence of the duty to meet eligible needs, and clause 25(1)(a) requires the local authority to record in the personal budget the amount it assesses as the cost of meeting those needs. It is how those costs might be calculated that is left unclear. That is where RAS comes in. We note that some of the proponents of RAS have begun to question the secretive way in which they are developed and applied and expressed concern about their growing complexity[156]. As we say in Chapter 2, some of these issues were raised during the Law Commission's work; however the Department in its summary of the responses to the draft Bill[157] report only welcome for personal budgets and make no reference to how the costs are calculated. We therefore recommend that the Government should review the efficacy of RAS and ensure that the code of practice or guidance makes clear that the development and application of any methodology for calculating the cost of meeting eligible needs is transparent, has regard for the well-being principle, and is subject to the duty to meet eligible needs.

Additional cost under Clause 27

205. Clause 27 deals with the additional charge—the "top-up"—which a local authority may levy for providing an adult's preferred accommodation where the cost exceeds the amount of the person's personal budget. The cost may be paid by a third party, usually the family—"third party top-ups". As with deferred payment agreements, some of our witnesses had concerns about the need for and availability of independent financial advice. Independent Age said: "[We] received over 200 calls to our Advice Service in the past year on this subject. It is vital that the new legislation ensures that families only agree to pay a third party top-up when they have made a genuine choice to pay for more expensive accommodation. We believe that the draft Bill must ensure that the rights of these individuals and their families are protected more effectively than at present."[158]

206. Independent financial advice from an adviser regulated by the Financial Services Authority is as important in the case of additional cost under clause 27 as it is in the case of deferred payments.

207. We are not satisfied that clause 27, as currently drafted, provides sufficient protection from improper practices of the type highlighted by Independent Age (among others). The amount of a person's personal budget is specified by clause 25(1)(a) as "the amount that the local authority assesses as the cost of meeting those of the adult's needs which it is required or decides to meet …". We were concerned that the wording of clause 25(1)(a) might enable a local authority to come up with a relatively arbitrary figure (produced, for example by a computerised resource allocation system) and then require a top-up for all care costs above this figure. Such a figure, being an amount assessed by the local authority, would appear to satisfy the requirements of the clause. We were in particular concerned that this clause differs from the current requirement (in relation to direct payments) that the amount be that which the "the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned",[159] the difference being the absence of the word "reasonable" which has been considered of importance by the courts when considering amounts generated by resource allocation systems.[160] We put our concerns to the Department of Health. In response they advised us that the "personal budget represents the amount which the local authority assesses as the cost of meeting the adult's needs. It is therefore an amount which is sufficient to meet those needs." We do not find this response reassuring. Clause 25 contains neither the word "reasonable" (which appears in the current legislation) nor the word "sufficient". We believe that this omission creates an opportunity for the current malpractice in relation to top-ups to continue under the new legal regime.

208. Clause 25(1)(a) should be amended to make clear that the amount of a personal budget should be equivalent to the reasonable cost of securing the provision of the service concerned in that local area.

Direct payments: Clauses 28-30

209. Direct payments to persons in need, allowing them to have more control over the services they buy and the priorities they accord to them, are likely to become a much bigger feature of social care in the future. We welcome the opportunity taken in the draft Bill to clarify important aspects of the policy, and to ensure that the expansion is in the right direction.

210. The Standing Commission on Carers was one of several witnesses who sought clarification on whether the person receiving a direct payment will be able to use it as the equivalent of a personal budget either for "whole family" purposes or to compensate another family member for loss of earnings. They told us that this was commonplace in some European countries. Shared Lives Plus[161] argued that there should be a presumption that individuals can spend their direct payments how they like to achieve the desired outcomes. We agree that the purposes for which direct payments can be used should be clarified, and the presumption should be that individuals can spend their direct payments as they like to achieve the agreed outcomes. We would prefer to see this in the draft Bill itself. If it has to be included in regulations under clause 30, they should be subject to affirmative resolution.

211. Since the introduction of direct payments there has been a requirement that they are spent on services provided in the independent sector. Whatever the reasons for this policy we question whether it is consistent with the well-being principle established in the draft Bill. People in receipt of a direct payment should be in control and able to exercise choice. With the draft Bill introducing a duty on local authorities to promote diversity and quality in the provision of services there is no longer a need to restrict how direct payments may be used. The Department of Health should lift the ban on direct payments being used to pay for local authority direct services if the individual so chooses.

212. Direct payments are another area where independent financial advice will be essential both when the payments are first arranged, and subsequently.

130 Chronically Sick and Disabled Persons Act 1970, section 2. Back

131 Society of Later Life Advisers (SOLLA), written evidence. Back

132 National Autistic Society, written evidence, paragraph 35. Back

133 College of Occupational Therapists, written evidence, paragraphs 13-15. Back

134 Report, paragraph 5.3. Back

135 Report, paragraph 5.6. Back

136 Q 153. Back

137 Mind, Rethink Mental Illness, the Mental Health Foundation, the Centre for Mental Health and the Royal College of Psychiatrists. Back

138 Letter from the Motor Neurone Disease Association to the Chairman of 6 March 2013. Back

139 Q 152. Back

140 The London School of Economics Personal Social Services Research Unit. Back

141 Q 185. Back