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

6 Other responsibilities of local authorities

Portability: Clauses 31-32

213. Portability or, as the draft Bill describes it, continuity of care when an adult moves, refers to the ability of service users to ensure continuity of support when they move from one local authority area to another.

LANGUAGE

214. The first matter to address is the language used in the Bill. The local authority from which the adult is moving is referred to as the "sending authority", and the authority to which the adult moves as the "receiving authority". We share the view of some of our witnesses[162] that this language reinforces a paternalistic culture in which some local authorities behave as if they have some sort of control over where people in need of support should live. In principle, people have a right to live where they choose - or, if they lack capacity, where those with their best interests decide. It is not for the local authority to "send" them anywhere. The language of the Bill should make clear that decisions about where to live are separate from decisions about which body funds a care package. We would prefer neutral language; the authority from which the adult is moving could be referred to as the "first" or "original" authority, the authority to which he or she is moving as the "second" or "new" authority.[163] This language should be used in the Regulations, Code of Practice and Guidance as well as in the draft Bill.

215. We agree with those of our witnesses who object to the language of "sending" and "receiving" individuals. We prefer neutral language which emphasises that people control their own decisions, and recommend that clause 31 should refer to the "first" and "second" authority, or to the "original" and "new" authority—the wording we use in this report.

ORDINARY RESIDENCE

216. Where an adult is ordinarily resident generally influences, and often determines, which authority has a duty to provide for the adult's needs. Clause 32 defines where an adult is to be treated as ordinarily resident, and clause 33 sets out the machinery for resolving disputes about ordinary residence, which are all too frequent. We have no problems with these provisions.

217. It was suggested to us that not only should people be in control of where they reside—which, as we have said, we fully support—but that individuals should have "the option of deciding their own ordinary residence status and therefore which authority continues to fund their care package."[164] This, we were told would prevent local authorities from "manipulating the system". We do not accept this suggestion. The choice of where to reside is not the same as the choice of where to be treated as residing for particular purposes. A person residing in an area where treatment of those with particular needs is ungenerous should not be entitled to more generous treatment solely on the ground that in the past—perhaps a long way in the past—he or she resided in a different area where treatment was more generous.

218. We do not accept the suggestion that individuals should have the option of deciding their own ordinary residence status and therefore which authority continues to fund their care package. Funding must be for the local authority where the person is ordinarily resident or is treated as being ordinarily resident.

CONTINUITY OF CARE

219. The principle of portability is that an adult who moves to a different local authority area should continue to receive from the local authority the same level of care and support that was being provided by the authority where he or she was ordinarily resident, or treated as being ordinarily resident, before the move. This is easy to state and, like our witnesses, we wholly support this.

220. The more difficult question is for how long the first authority should continue to be under a duty to provide that level of care and support. The draft Bill provides that the responsibility to do so continues until the new authority has carried out its own assessment of the need for care and support. Some of our witnesses thought this responsibility should continue indefinitely. VODG recommended "that the original (sending) local authority should remain responsible for funding a person's care and support for as long as they are eligible for it."[165] Other of our witnesses voiced their concerns. The Alzheimers Society were "concerned that there is no guarantee that the individual will receive the same level of care once the receiving authority carries out an assessment of need. It is quite common for individuals with dementia to move closer to family members as their illness develops. Concerns that a person may no longer receive the same level of social care may deter people from making moves that would otherwise improve their wellbeing and support the family to care for the individual. We believe it is unreasonable for the level of support a person receives to depend on where they live."[166] Disability Rights UK told us: "Many disabled and older people can't consider moving to another area because they can't be sure that they will get equivalent levels of care and support in the new area. Disability Rights UK considers this to be a significant breach of basic human rights, depriving people of choice and control over their lives, denying them job and education opportunities or the chance to live closer to family or friends."[167]

221. We believe such views fail to distinguish between the assessment of a need and the local response to the need. The point was well put by Sarah Pickup: "Say you had acquired a disability and lived in a twostorey house or block of flats and moved to another area, to more suitable accommodation, then some of your needs will have been met, by definition, by moving. Of course we do not dispute the fundamental disability, need, frailty or diagnosis of dementia; those things do not change. However, the fullness of a needs assessment, even just to the point of assessment—before agreeing with your line about the support plan being a different thing—is that needs incorporate circumstantial issues. You may have a bigger need if you move from a rural area to a town, or vice versa. That is part of the needs assessments. Fundamental needs absolutely do not change, but circumstantial impact on needs does change."[168]

222. Councillor David Rogers told us: "… communities are very different and very diverse around the country. … the range of providers is very different in different parts of the country, as are the local circumstances: whether they are urban, rural or any other factor you might choose to bring into account. That balance between portable assessment but local decisions on how those needs are met is something we have always said is extremely important. We strongly believe that the decisionmaking about how those needs are met for those who are receiving taxpayerfunded services should be a local decision."[169]

223. We accept this view. As Richard Humphries said: "As long as you have got 152 different funding settlements and levels of resources, there will always be variation in the sorts of packages that people can expect…"[170]

224. We are glad that after a move to a new local authority area there will be continuity of care until a re-assessment. We think it inevitable that the level of care may change after a move; indeed, that may have been the purpose of the move.

225. We do not accept the suggestion that the original authority should continue to fund the care so long as the person is eligible for it. Funding must be for the local authority where the person is ordinarily resident. However the Government may wish to consider whether there should be guidance on the minimum period during which an original assessment should be protected.

A POSSIBLE FAILURE OF CARE

226. We were concerned that clause 31 does not address the possibility of what might happen if a new authority fails to act in the way it is required to—for example, if it fails to comply with its duty under clause 31(6) to meet the newly arrived adult's needs. For such an adult there would be no safety net—unless the original authority retained residual responsibility in such cases (as, for example, provided for in clause 4 of the Social Care Portability Bill, now before the House of Lords).[171]

227. We put this point to the Department of Health. In a note of 30 January the Department stated: "The Department does not envisage local authorities refusing to comply with their legal obligations". Nor do we. But a failure to comply with their obligations is all too possible. We put this to the Local Government Ombudsman, Dr Jane Martin, and in her letter to the Committee of 31 January 2013 she told us that the provision had the potential to cause difficulties. In her opinion: "Maladministration may occur by failure of the sending authority to notify the receiving authority of a user's intention to move, failure of the receiving authority to [assess] a user's needs or if a receiving authority fails to implement or deliver programmes as outlined in section 31(6). All these areas could have a major impact on the provision of care and impact on service users' experience. Local authority delay in providing the services mentioned above, may further dramatically affect users experience."

228. We share this view. We believe that clause 31(8) should be amended so that the original authority is absolved from meeting the adult's or carer's needs only once the new authority has itself begun to meet their needs, as it is required to do by clause 31(6).

229. The Social Care Portability Bill, noted above, in clauses 4(2) and 6(2) provides for the new authority to be reimbursed its costs when an original authority fails to comply with its obligation to support a person who has moved. It appears to us that this provision is sensible and addresses the potential problem of a perverse incentive in such cases—namely that a new authority might benefit financially from its delay (something that is happening under the existing regime).

Transition of children to adult social care: Clauses 39-44

230. The draft Bill relates to adult social care, but provides a power for local authorities to assess the needs of children, young carers and the parent or carer of a child if requested to, for the purposes of planning transition to adult social care when the child turns 18. The assessment covers both the child's and young carer's or child's carer's care and support needs, and what those needs are likely to be when the child or young carer reaches the age of 18. The local authority is not required to undertake the assessment, and this has been criticised.[172] The clauses also provide that, where a child is in receipt of services under the Children Act 1989, those services will be continued after their 18^th birthday until the assessments and care planning required by the draft Bill have been completed and any care and support required is in place.

231. In parallel to the draft Care and Support Bill, the Government have put forward the Children and Families Bill. Certain clauses of this, relating to special educational needs (SEN) provision, have been examined by the House of Commons Education Committee.[173] That Committee has recommended that the application of these clauses, which create a right to an Education, Health and Care Plan for children with SEN, should be extended to cover disabled children without SEN.[174]

232. We have heard a range of evidence on the application of the draft Bill to children and young people. Much of the evidence welcomes the transition clauses. The National Autistic Society cited evidence that that only 53% of young people with autism who have statements of SEN were issued with transition plans during the course of their education, falling to just 34% of students in mainstream schools. Adult social services were only involved in planning in 17% of cases.[175]

233. We agree that the transition clauses are a welcome development and meet a real need for improved transition planning. We also welcome the requirements that a local authority must continue to provide services under section 17 of the Children Act 1989 until it has met its duties under the draft Care and Support Bill for that person.

234. However, we have heard much evidence on how the clauses could be improved. The Papworth Trust expressed disappointment that the draft Bill did not extend to all ages,[176] while Lorraine Butcher, the Strategic Director for Children, Families & Adults, Cheshire East, who spoke for the Association of Directors of Children's Services (ADCS), highlighted the complexity of support for learning disabled people and told us that she would prefer to see a support service through all the age range.[177] Most witnesses, however, appeared to accept the current scope of application, but made a convincing case for improvements. These relate to three main areas: the children and carers to which the transition provisions apply; the relationship with Education, Health and Care Plans under the Children and Families Bill; and the situation of young carers.

THE CHILDREN AND CARERS TO WHOM THE TRANSITION PROVISIONS APPLY

235. We do not agree with the requirement in clauses 39-44 that not only must there be a "child in need", as provided for in section 17 of the Children Act 1989, but also that the child (or the child's family) must be receiving services under that section. This is a higher threshold than is set for adults in need of care and adult carers, where it only needs to appear to a local authority that the adult may have needs for care and support (or support in the case of a carer). This seems incongruous, and will undermine the goal of smoothing transition into adult social care, in that it leaves out of the scope of these provisions a potentially significant number of children who are likely to need care and support under adult services. As to where these gaps are, Mencap highlighted that "young people with a learning disability may also receive services under the Chronically Sick and Disabled Persons Act 1970, or through other means, including educational settings, and as a result they would not be eligible for the transitional arrangements under this Bill."[178] Evidence from local authorities highlighted similar gaps relating to those whose care and support needs do not emerge, or are not identified, until adulthood: "One of the biggest challenges of transition is that people who get children's services, for a range of reasons, are not always entitled to adult services, and vice versa. So people who have made it through the education system without any social care support sometimes become vulnerable adults and need support. So they are not identified for transition because they were just in the education system."[179]

236. The same is true for young carers. Barnardos cited the example of their Indigo service in Essex, which works with young carers. They reported that only 20% were in receipt of Children in Need Plans or more intensive statutory support. This suggests that 80% are outside the scope of the transition clauses.[180] This concern is echoed by the Standing Commission on Carers, who highlight that "Many young carers will not be receiving services under section 17 of the Children Act but will be supporting parents whose care and support, if any, will be provided under current adult social care legislation, eg the Chronically Sick and Disabled Persons Act."[181] The Children's Society,[182] the Care and Support Alliance[183] and the Carers Trust[184] made similar points.

237. We accept that there is a strong case for extending the application of the transition clauses beyond "children in need" as defined by clause 39(3), and beyond a "young carer" as defined by clause 41(3). If the purpose of the transition clauses is to enable a smooth transition to adult social care, then it is essential that local authorities have the power to assess all those who, on turning 18, will come within the remit of adult social care regardless of whether they or a family member are currently receiving services under the Children Act.

238. We recommend that the transition clauses (39-44) be amended, in line with the threshold set in clauses 9(1) and 10(1), to apply where it appears to a local authority that a child or young carer may have needs for care and support at the time of the request for the assessment or on reaching 18 years. This should apply regardless of whether or not support is currently being provided, but there should be a presumption that any child in receipt of an Education, Health and Care Plan under the Children and Families Bill, and any child receiving care and support, or who has family members receiving care and support, under other legislation, comes within this definition.

239. A further consequence of reliance on section 17 of the Children Act 1989 is that the provision on continuity of services, which only relates to services provided under section 17, is likely to leave important gaps. The Carers Trust argue that it appears to omit continuity of services provided to young carers under the Carers and Disabled Children Act 2000.[185] The same issue arises for continuity of services under the Chronically Sick and Disabled Persons Act 1970 and for continuity of services in the Education, Health and Care Plans under the Children and Families Bill.

240. We recommend that clause 43 be extended to include services provided under the Carers and Disabled Children Act 2000, the Chronically Sick and Disabled Persons Act 1970 and in Education, Health and Care Plans under the Children and Families Bill.

RELATIONSHIP WITH EDUCATION, HEALTH AND CARE PLANS UNDER THE CHILDREN AND FAMILIES BILL

241. There is potential cross-over with the provisions on SEN currently being put forward through the Children and Families Bill. A local authority could be assessing the care and support needs of a child with SEN for the purposes of transition or the needs of an 18-24 year old with SEN, while at the same time it or another authority is assessing them for an Education, Health and Care Plan. Clause 12(4) of the draft Care and Support Bill deals with contemporaneous assessments for those over 18. It is not however clear whether "another assessment" in that subsection refers only to another needs or carer's assessment, or whether it is wide enough to include assessment for an EHCP. Similarly, clause 42(4) and (5) make provision for contemporaneous assessments for a child or child's carer and a young carer respectively. These are worded in the same way as clause 12(4) and present the same difficulties.

242. The relationship between the draft Care and Support Bill, and Care and Support Plans in particular, is not yet clear. This lack of clarity undermines the aim of the legislation to smooth the transition to adult care services. If further adds a layer of complexity to provision for 18-24 year olds that, if allowed to continue unaddressed, will undermine the aim of simplifying the legislation on social care.

243. The Every Disabled Child Matters Campaign argue that "If a young person is eligible for both an EHC plan and a Care and Support Plan, these plans should be brought together to create a consistent approach from 18 to 25. Social care needs identified in an EHC plan should be met through a Care and Support Plan post-18. Outcomes identified in a young person's EHC plan should also feed directly into adult assessments for Care and Support Plans."[186] We agree with this assessment. Our recommendation that the application of the transition clauses should not be restricted to "children in need" will be needed to meet this aim, as will amendment of the clauses on contemporaneous assessments.

244. Clauses 12(4), 42(4) and 42(5) should be amended to make clear that "another assessment" includes assessments carried out under other legislation, and specifically Education, Health and Care Plans.

162 Self Direct and Shared Lives Plus Back

163 As in the Social Care Portability Bill, currently before the House of Lords. Back

164 Shared Lives Plus. Back

165 Supplementary written evidence, paragraph 6.1. Back

166 Written evidence, part 1. Back

167 Written evidence, paragraph 35. Back

168 Q 111. Back

169 Q 109. Back

170 Q 57. Back

171 HL Bill 78. Back

172 For example by National Autistic Society, written evidence, paragraphs 26-29. Back

173 Education Committee, 6th Report (2012 - 13): Pre-legislative scrutiny: Special Educational Needs (HC 631-I). Back