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

7 Other care and support matters

Young carers and parent carers

245. The draft Bill does not make direct provision for young carers, other than in relation to transition planning. Contact a Family raised concerns about the approach being taken, telling us that "the retention of three amended Carers Acts means that although parent carers' theoretical rights will be protected this is only by virtue of obscure and muddled rump legislation." Similar criticisms apply to the legislation covering young carers. Other evidence argued that the requirement to provide a substantial amount of care on a regular basis, removed for adult carers of adults, should also be removed for young carers and parent carers.[187]

246. Explaining their reasons for this, the Department of Health told us that "Provisions are not the same, and never will be the same, because, when you are talking about young carers, you are talking about a child, so it is not just about identifying a young carer and saying, 'Okay, what does that person need to support them in their caring role?' Actually, there is a question of, 'Is that an appropriate caring role and is this in fact a child in need who needs support in different ways?'"[188]

247. We agree with the Department on the importance of preventing children from undertaking inappropriate caring responsibilities. In paragraph 182 we recommended an amendment to clause 12 which would help to achieve this. However we share the concern of a number of our witnesses that an unintended consequence of the draft Bill applying only to adults will be to leave young carers with lesser rights than adults.

248. Dr Moira Fraser made the point to us that "We have to have two pieces of legislation that talk to each other." While many of our witnesses told us that young carers should be treated differently, echoing the view of the Department, they did not want to see young carers relegated to a lesser status. Dr Fraser summed it up when she said: "What we need to be doing is this: the adult legislation needs to ensure that children who are in a household with a person who is being assessed for care and support are recognised as being part of that household and may have a caring role so that a referral can be made, so they can have an assessment. Hopefully, under adult services, the adult services can look at the needs of the adult and meet those needs so that the child does not need to take on a caring role."[189]

249. Frances Patterson QC made plain the unintended consequence: "When there is an assessment it is still done under the old regime so there is still a requirement to show that a young carer is delivering substantial and regular care. The threshold is different; it is not the low threshold we have recommended in the adult social care statute. That is where we think there is an area for improvement." She also told us that "we made various recommendations in relation to young carers. Those have been taken forward in part but not in whole, and our view is that they are much better taken as a whole."[190]

250. Critically for the Law Commission, "The bit missing is the provision of services. The Bill, as currently drafted, makes provision for assessment in relation to young carers but our recommendation is that there should be assessment and there should be the provision of services in certain circumstances. To enable that to be delivered we were recommending that the Carers (Recognition and Services) Act 1995 and the Carers and Disabled Children Act 2000 were both amended to bring them into line with our recommendations in relation to the adult social care statute as it then was. Either they would then be brought together so there would be a freestanding young carers' statute or they would be transported into what has become the Care and Support Bill."[191]

251. The Department of Health accepted that it is important to ensure that the provisions work together well.[192] However, we believe a confused picture has emerged of the provision available to young carers, and how it relates to adult social care. If young carers are to be properly supported children's services need to have the responsibility to assess the needs of the child and, where it becomes apparent that there are needs the adult has, refer back to adult services so that the adult's needs can be met. It needs to work in both directions. In supplementary evidence[193] the Department assured us that it "is in discussions with the Department for Education about how best to address the concerns that have been expressed, including the implications for existing and planned children's legislation."

252. In response to points raised by Committee members on the need for amendments to the draft Bill the Minister of State, Norman Lamb MP, said: "I would just say we have to be prepared to look at this. We have noted your concerns and we will have further discussions both within the Department but also across the divide between us and Education."[194]

253. We welcome the Minister's commitment to discussions on young carers, and expect the Departments of Health and Education to work together to ensure that young carers do not fall between the cracks or face a higher threshold for receiving any support. The most straightforward solution would be for the draft Bill to be amended in line with the Law Commission preference to bring updated legislation for young carers into the draft Care and Support Bill.

254. Guidance on the application of the assessment and transition clauses should provide local authorities with clear information on the support available to carers and young carers. This guidance should aim to ensure that there is easy access to provision for carers, regardless of which legislation the provision is made under.

255. The Law Commission originally proposed that local authorities should have the power to provide services to 16 and 17 year olds. This would include young carers.[195] The Government rejected this, taking the view that this was better dealt with in legislation specifically dealing with children and young people for the reasons given above. In oral evidence, the Law Commission stood by its view that such provision was appropriate.[196] There is a real need to prevent inappropriate caring by young people. However, the Committee agrees that local authorities should have the flexibility to provide services under the draft Care and Support Bill in appropriate cases.

256. We agree with the Law Commission's view that local authorities should have the power to make provision for children aged 16 and 17, including young carers, where an assessment under clauses 39 to 44 identifies need. We further recommend that this should be done in a way that recognises that the aims of support to young carers will often be different from those for adult carers.

Redress and complaints

257. When the Law Commission embarked on its review in 2008 it argued that it should consider the "efficacy of the legal structures in place for complaining about, and seeking redress for, failures in decision-making and service provision by local authorities."[197] This would have included considering whether a tribunal should be set up to provide "independent merits review" of care and support decisions made by local authorities. However, the Government at the time took the view that this was outside the scope of the review, and the Law Commission did not pursue it.

258. Despite excluding redress and complaints from its consultation paper in February 2010[198] the Law Commission received a number of responses arguing for a tribunal. Amongst those responding was the Henry Spink Foundation. They suggested that there should be a tribunal for the resolution of disputes relating to social services assessments, including eligibility and the detail of support packages. They argued that "operating a tribunal to resolve disputes would save considerable amounts of money in place of each local authority resolving disputes in-house".

259. This view has been echoed in evidence to our inquiry. In written evidence ADASS and the LGA told us: "… we are concerned that a bill so strongly focussed on personal entitlements does not provide for any means of redress other than through judicial review." In their evidence Advice UK expressed concern about this omission from the draft Bill: "Specific complaints and appeals duties are notably missing from the Bill … Duties regarding complaints and appeals about social care assessment and reviews are not adequately represented within the Bill, nor are specific requirements about the length of time any process should take." Leonard Cheshire offered a solution: "We would also like to see an appeal route for people who are challenging decisions within the system, particularly decisions about eligibility. At present it can be incredibly difficult and time-consuming for an individual to challenge decisions that they consider to be unfair or unreasonable. Having the protection of judicial review is important, but, like the Law Commission, we would like to see a specific route of challenge through an independent tribunal for contested decisions within the system." They concluded: "This additional route should help to limit the potential for costly and lengthy court proceedings."

260. In its report the Law Commission said: "Notwithstanding the decision not to take this area forward in the substantive project, the issue of complaints and redress came up at the majority of consultation events we attended, and was raised in several submissions. In particular, many consultees argued that a community care tribunal was needed to provide a merits review of local authority decisions in this area. Although this issue is outside of our remit, in our view both Governments[199] should consider reviewing this area in the future."

261. In their response to the Law Commission, the Government[200] pointed out that changes had been made to complaints handling in 2009, and that its White Paper had set out further actions to improve and increase the opportunities to offer feedback. They concluded: "… we do not believe that any more substantial legal reform in this area is required at this time." However, the response did not directly address disputes over decisions made by local authorities.

262. Since the Government published their response they have announced plans to implement a capped cost system. This will result in a large influx of people into the local authority assessment system for the first time. As we explain in Chapter 2, we believe that the arrangements for determining a person's eligibility and then capping care costs by setting a notional cost to be accumulated in a care account will be highly contested. Although the draft Bill largely replicates the existing legal framework it does extend and clarify entitlements, particularly for carers. It also incorporates into statute for the first time Government policy on personalisation and self-directed care.

263. We believe that the significant extension of local authority responsibility for assessment, and the introduction of the well-being principle into decision making, warrant an urgent review of arrangements for providing redress and complaints resolution. The Government should reconsider establishing a care and support tribunal to provide independent merit reviews of decisions made by local authorities.

264. It also seems likely that the boundary between free NHS and means-tested local authority services will continue to be contested. The draft Bill and the establishment of a capped cost system are likely to make the boundary visible to more people. Clause 21(6) provides a regulation making power to prescribe how to resolve disputes between local authorities and NHS bodies over the boundary. However, it is not just about disputes between public bodies. The Government should consider giving a care and support tribunal the responsibility for resolving disputes over NHS Continuing Health Care.

Corporate responsibility

265. In our Call for Evidence we asked witnesses to address the specific question whether the draft Bill strengthened corporate accountability for neglect and abuse, and what would be the risks and benefits of creating a new offence of corporate neglect. This is not a new issue, but was of course brought to the fore by the events at Winterbourne View.

266. In their written evidence VDOG wrote: "We strongly support the creation of a new offence of corporate neglect within the draft Bill. The chief benefits include: bringing accountability and underlining in law the seriousness of abuse of vulnerable people …"[201] Mencap pointed out that "new offences of ill treatment and wilful neglect were brought in by the Mental Capacity Act 2005 … however it appears there may be a gap in the legislation …".[202] The view of Action on Elder Abuse was that "individual and corporate bodies that take decisions that lead to the abuse of people in vulnerable situations should be accountable in law for their actions …"[203]

267. There was a contrary view from Social Care and Institute for Excellence: "The offence of corporate neglect is covered in section 37 of the Health and Safety at Work etc Act 1974.The risks of creating a new offence in relation to social care is that it may promote a risk averse culture across partner agencies and discourage open and constructive dialogue between organisations, particularly when learning lessons from safeguarding adults reviews." They prefer to rely on SABs. H&S at Work Act 1974 s.37(1) in fact applies only to "relevant statutory provisions", none of which are relevant.

268. Our Chairman has recently introduced a ten-minute rule Bill. His motion was "That leave be given to bring in a Bill to hold corporations criminally accountable for abuse and neglect in care settings; to make provision to compel any person or organisation to supply information to Adult Safeguarding Boards; and to introduce a new offence of corporate neglect whereby a corporate body can be found guilty if the way in which its activities are managed or organised by its board or senior management is a substantial element in the existence or possible occurrence of abuse or neglect." The first reading of the Corporate Responsibility and Safeguarding of Adults from Abuse and Neglect Bill was on 16 January 2013.

269. In supplementary written evidence Leonard Cheshire Disability said: "We believe that a criminal offence along the lines proposed in the Ten Minute Rule Bill will have an important declarative effect. It would affirm publicly the extreme concern of all right-minded people that no-one receiving social care services should be at risk of abuse or neglect and that providers must use all their skills and experience to this end—or face severe consequences."

270. We asked the Department of Health for their views. They replied: "The Department is reviewing how corporate bodies are held to account for the provision of poor and harmful care. The horrific abuses that occurred at Winterbourne View emphasise the importance of corporate entities having robust processes in place for overseeing the quality of the services they provide. We aim to complete this review and to bring forward proposals to improve the arrangements for corporate accountability in the Spring. The review is considering both regulatory sanctions available to CQC and criminal sanctions. We are also assessing whether a fit person test should be introduced for Directors of providers of care services."

271. During our inquiry Robert Francis QC published his report into the Mid Staffordshire NHS Foundation Trust. He made 290 recommendations, including proposals to strengthen arrangements in the NHS for corporate accountability, criminal liability, and proposals to transfer the Health and Safety Executive's powers of criminal prosecution for both individuals and organisations to the Care Quality Commission. The Secretary of State told us that he was "very sympathetic" to this proposal.[204]

272. We welcome this proposal to close the regulatory gap and to review the accountability of corporate bodies, though it is not clear whether proposals brought forward "in the Spring" would be in time for inclusion in the draft Bill. We would be concerned if the Government sought to close the regulatory gap for health but left it unaddressed in care and support. When we put this point to the Minister of State he replied: "I totally agree".[205] We recommend that where abuse or neglect of an adult has resulted in the commission of an offence by an employee of a body corporate acting as such, and this is proved to have been committed with the consent of, or to have been attributable to any neglect on the part of, a director, manager or similar officer of the body corporate acting as such, he as well as the body corporate should be guilty of an offence.

273. We put to the Secretary of State that a statutory duty of candour should not be considered for the NHS alone, but care and support too. In reply he told us that he could not "see why one would want to introduce something like a Duty of Candour—if that is what we decide to do, and I should add we are very sympathetic to the idea of doing it—that did not apply more broadly than just to the acute sector."[206] We share the Secretary of State's view that the application of a statutory duty of candour should not be limited to health but should extend to all regulated care settings. The Care and Support Bill would provide an early opportunity for the Government to legislate on these matters.

Free end of life care

274. We have heard from a number of witnesses who want to see proposals for free end of life care implemented. Macmillan Cancer Support told us that 73% of people with cancer would prefer to die at home, but currently only 27% are able to do so.[207] Marie Curie Cancer Care argue that "for people who are terminally ill, time is one of their most precious resources. It is important that they be able to spend their time with their family and loved ones in the place where they would most like to be."

275. Significant improvements could be seen if our recommendation to fast track assessments for those on the end of life register is adopted. However, this would still leave many people paying for their care. Macmillan Cancer Support have told us that: "...there is anecdotal evidence from social care professionals that people are put off from applying for the care they need, or may even refuse care, as they are worried about the impact it will have on their families' finances after they die."[208]

276. A further danger of charging for end of life care is that it leads to "time-consuming debates [between health and social care providers] about who should pay for and deliver different aspects of a person's end of life care."[209] A joint submission by Help the Hospices, Macmillan Cancer Support, Motor Neurone Disease Association, National Council for Palliative Care and Sue Ryder echoes these concerns and points to research by the Nuffield Trust showing that greater access to social care support has the potential to reduce the need for admissions to hospital at the end of life. They argue that "If we could reduce by just 10% the number of hospital admissions ending in death in England, the potential saving would be £52 million."[210]

277. We agree that "people approaching the end of life and their families should not have to face this financial or emotional burden, nor be forced to go without the care that they desperately require."[211] Witnesses have welcomed the Government view that "there is much merit in providing free health and social care in a fully integrated service at the end of life".[212] A decision on the final policy is not expected until 2014. Nevertheless, those who made submissions on this point argued strongly that it is critical that the draft Bill should allow free social care at the end of life to be delivered without the need for further primary legislation.

278. When questioned on this point the Department of Health confirmed that they "have not undertaken a policy decision that there should be a statutory right to free end-of-life care."[213] However in further written evidence they also clarified that "If a decision to introduce statutory free end of life care is taken, the powers in draft clause 14(4)(b) or (c) would enable regulations to provide for this."[214]

279. Form DS1500, to which we have referred in paragraphs 180-181 in connection with fast-track assessments for the terminally ill, prescribes special rules for those certified by their doctor as suffering from a progressive disease and not expected to live longer than 6 months. In the case of such people we agree with the Government and witnesses that free social care at end of life has "merit", and strongly endorse the case for its introduction at the earliest opportunity. We welcome the clarification by the Government that the draft Care and Support Bill does not need to be amended to enable this.

Human Rights Act 1998

280. A number of witnesses have emphasised the importance of human rights to the provision of care and support.[215] The Human Rights Act 1998 applies to public bodies and "any person certain of whose functions are functions of a public nature"[216] and, therefore, to local authorities implementing the draft Care and Support Bill. This means that local authorities must observe the rights under the Human Rights Act 1998 and the provisions of the draft Bill must be interpreted, as far as possible, so as to be compatible with those rights.

281. Care and support providers are often responsible for the care of some of the most vulnerable people in our society. We do not have to look far for documented evidence of abuse by providers. As one witness put it "Every week we are struck by another headline which reveals the neglect and ill treatment of older people either in their own home, a care home or hospital."[217]. The report by the Care Quality Commission into Winterbourne View[218] provides a stark example of what can happen when things go wrong.

282. As well as the risk of abuse, a not uncommon problem[219] is of a self-funding resident whose family has made a legitimate complaint about their care being given 4 weeks' notice to quit. A resident who has their care commissioned by a local authority has the right to challenge such a notice by reference to the Human Rights Act, but a self-funder who arranges their own care cannot—even if the trauma of moving would shorten their life, cause enormous distress and wrench them from a "home" in which they had lived for many years.

283. However, witnesses have pointed to two areas where there are concerns regarding the application of the Act. First, clause 51 enables a local authority to delegate certain of its functions under the draft Bill. The joint submission by Mind, Rethink Mental Illness, the Mental Health Foundation, the Centre for Mental Health and the Royal College of Psychiatrists argues that there must be a clear chain of accountability where functions are delegated. They go on to say that "It is also essential that the Bill states explicitly that the body with delegated authority to carry out a function on behalf of a local authority must be subject to the same obligations as the local authority itself. This includes obligations under the Equality Act 2010, Human Rights Act 1998 and Freedom of Information Act 2000."[220]

284. We agree with this assessment. Clause 51 should be amended to state that the person with delegated authority to carry out a function on behalf of a local authority is subject to the same legal obligations as the local authority itself.

285. Secondly, the Equality and Human Rights Commission have told us that: "The Commission has received advice from Senior Counsel that, because of the case of YL v City of Birmingham Council,[221] human rights protection does not extend to ... home care services. As a result approximately 500,000 older people may lack the protection of the Human Rights Act. Similarly, disabled adults receiving home care under these arrangements are unlikely to be covered by the Human Rights Act. This means many people may be denied direct legal redress against the care provider for human rights abuses."

286. That such abuses occur is demonstrated by the findings of the Commission in their inquiry into home care.[222] As a result of the YL case, legislation was required to ensure the application of the Human Rights Act 1998 to publicly funded residents of private care homes. This was done through section 145 of the Health and Social Care Act 2008. However, this did not address the gap in protection for those in receipt of publicly funded, but privately provided, home care services, and this gap remains. Nor did the Act extend protection to residential care other than that provided under the sections 21(1)(a) and 26 of the National Assistance Act 1948, such as services provided under section 117 of the Mental Health Act 1983.

287. The notes to the draft Bill state that "The Department's view is that all providers of publicly funded or arranged health and social care services should consider themselves bound by section 6 of the Human Rights Act".[223] In her evidence on 7 February Sally Warren said: "You are absolutely right, we don't want to create either duplication or a gap in the provision of human rights."[224]

288. In a subsequent note the Department of Health told us that the Government considered that there were dangers in any amendment to the Human Rights Act which specified explicitly that third sector and private providers of care were subject to the section 6 duty; this in their view risked casting doubt on the interpretation of the Act in other sectors. But they added that it was the Government's view that "all providers of publicly arranged care and support, including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998".[225]

289. We do not think that, in light of the YL case, this view can be sustained without specific provision in the draft Bill to continue protection under section 145 of the Health and Social Care Act 2008 and to close the remaining gaps in protection. While we agree that all providers of publicly arranged care and support should consider themselves to be bound by the obligations of the Human Rights Act, we are of the view that, as a result of the decision in the YL case, statutory provision is required to ensure this.

290. Clearly, the risk of harm or abuse in care is not determined by who pays for or arranges the care. The Government's view, as set out in the notes to the draft Bill, shows a belief that protection under the Human Rights Act extends to care arranged by a local authority, even if it is self-funded. As we say, we do not agree that this does not require explicit statutory provision. However, regardless of this view, it does not address the situation of self-funders who arrange their own care and support. The Government will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act, solely because there is no public sector involvement in arranging or paying for their care.

291. Many commentators have found it difficult to understand why a provider of care in such cases should not be subject to the law that protects patients whose care is commissioned by a local authority.[226] This is particularly so, since it concerns some of the most vulnerable people in society - and very severe shortcomings have been identified in some care providers, be they public hospitals or private care homes.

292. The draft Bill should be amended to ensure that private and third sector providers of care services regulated by public authorities are deemed to be performing public functions within the meaning of section 6(3)(b) of the Human Rights Act 1998. This would also bring such providers within the scope of the general public sector equality duty,[227] which uses the same definition of "public functions" as the Human Rights Act.

187 For example, the Children's Society. Back

188 Q 20. Back

189 Q 157. Back

190 Q 83. Back

191 Q 84. Back

192 Q 20 Back

193 Supplementary evidence, 30 January 2013. Back

194 Q 339. Back

195 Recommendations 58 and 59 at pages 162 and 164. Back

196 Q 99. Back

197 Law Commission Scoping Report, November 2008, paragraph 4.348. Back

198 Law Commission Consultation Paper, February 2010. Back