11 Summary of Conclusions and Recommendations |
1. We draw
to the attention of both Houses the importance, when planning
pre-legislative scrutiny of draft Bills, of agreeing a timetable
which will give the Joint Committee an adequate opportunity to
carry out its task, and the Department concerned sufficient time
to consider and act on the Committee's recommendations before
the relevant Bill is introduced.
overall level of funding available for the care and support system
will impact on how far the reforms envisaged in the draft Bill
and the Government's White Paper can be realised, particularly
the stated goal of shifting the emphasis from crisis intervention
to prevention and early intervention.
Implications of the Dilnot Report and the Government's
CAPPING CARE COSTS FOR WORKING AGE ADULTS
determining the level of the cap for working age adults should
be subject to affirmative resolution.
NATIONAL ELIGIBILITY RULES
4. We endorse
the recommendation made by the Dilnot Commission that the Government
should act quickly to devise a new assessment scale in conjunction
with service users, carers and other interested parties. This
work needs to proceed at pace. Draft regulations should be published
before Second Reading to support Parliamentary scrutiny of the
Bill during its passage through both Houses.
introduction of a capped cost scheme, which will result in many
more people being assessed and entitled to a personal budget,
is likely to lead to an increase in disputes and legal challenges.
We are not confident that Ministers have yet fully thought through
the implications for local authorities of these changes.
and openness are essential to successful implementation of these
reforms. The Government should place resource allocation systems
for determining the notional costs recorded in a care account
on a statutory footing, making it clear that they are subject
to the well-being provisions in clause 1 of the draft Bill, and
requiring local authorities to publicise their schemes and to
include full details of how the amount included in the personal
budget is calculated.
7. We also
urge the Government to put beyond doubt that a resource allocation
system cannot include a blanket policy of reducing a person's
personal budget or notional cost on the basis of the presence
of a carer, without the carer's knowledge or consent.
MEASURING PROGRESS TOWARDS THE CAP: THE CARE ACCOUNT
Bill must provide that regulations governing
- the level and indexation of the cap,
- any subsequent changes to the cap that fall outside
the defined measure, and
- arrangements for indexing the care account
are subject to affirmative resolution.
INDEXATION OF THE MEANS TESTS
Bill must provide for automatic uprating of the lower and upper
means test thresholds using a defined measure specified in regulations.
The Bill must also provide that regulations that make
- amendments to the defined measure,
- changes to the lower and upper thresholds outside
the defined measure, and
- changes to the assumed tariff income
are subject to affirmative resolution.
ORDINARY RESIDENCE RULES
the case of people for whom there is no duty to meet needs (i.e.
those who opt out before the financial assessment, or who do not
meet the financial requirements and do not request the local authority
to meet their needs) the Government should ensure that the ordinary
residence rules and portability (continuity of care) provisions
protect their care accounts and personal budgets.
of the Care and Support Bill will constitute the biggest change
in the law governing the operation of care and support in England
since the National Assistance Act 1948. The Bill, when enacted,
will not just consolidate and streamline into a single statute
60 years of piecemeal law making; it will also place on a statutory
footing for the first time both the principles and the practice
of self-directed personalised care. When taken together with the
introduction of a capped cost system and a national eligibility
threshold the Bill presents a significant implementation challenge
for everyone with a stake in the care and support system.
volume and complexity of assessments, of carers, of people with
care needs, the application of mean-testing, and the determination
of notional costs all raise questions about the level of initial
and ongoing training and support needed for local authority staff
and social workers. These are matters we would expect to be fully
analysed in the revised impact assessment that accompanies the
should be set in place either in statute, in regulations or in
guidance to ensure that, where either the NHS or local authorities
assess a person and determine that they are not eligible to have
their needs met by them, they ensure that assessments are coordinated
and information shared to minimise any delay in putting in place
suitable arrangements to meet their needs, for example by provision
of information and advice or by exercising the prevention duty
in clause 7 of the draft Bill.
Government must devise a campaign that raises awareness of what
the national care and support offer is. This should make clear
how people can plan and prepare, what their rights are and how
to access the information, advice and assistance they need both
to prevent and postpone the development of care needs and to support
people to maintain their independence when they do have care needs.
Part 1 of the draft Bill overall
CLAUSE 21: THE BOUNDARY WITH NHS CONTINUING CARE
are glad to know that the Department intends to look again at
the drafting of clause 21. Whatever reassurance they may seek
to give us, a court is likely to take the view that any change
in wording which goes beyond bringing the drafting into the 21st
century implies a change in the intended meaning of the provision.
We therefore expect the Department to redraft the clause to put
the question beyond doubt.
14(3) must be amended to make clear that, where a local authority
provides services on behalf of a Clinical Commissioning Group,
the authority may not recover the cost from the individual whose
needs are being met.
question whether subsections (3) and (4) of clause 21 are desirable.
If they are retained, we are of the view that regulations made
under clause 21(2)(a) should not be able to override the provisions
of subsections (3) and (4), and consider that this should be made
clear in the drafting.
THE STATUTORY FRAMEWORK AND THE HIERARCHY OF RULES
recommend that the status of the third tier of the hierarchy of
rules should be clarified. Clause 50 should be replaced by provisions
modelled on sections 42 and 43 of the Mental Capacity Act 2005,
allowing the Secretary of State to issue guidance contained in
a statutory Code of Practice.
clause must make clear that the Code of Practice is subject not
just to the Act and other primary legislation, but also to the
regulations made under the Act and any other applicable law.
General responsibilities of local authorities
THE WELL-BEING PRINCIPLE: CLAUSE 1
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.
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.
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
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.
following matters should be added to the list in clause 2(2) of
matters on which the local authority's service must provide information
- 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.
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:
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.
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.
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 and to report publicly on the sufficiency
of care and support services.
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.
Government should examine the scope for introducing an independent
adjudicator to settle disputes between local authorities and providers
over the cost of care.
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.
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
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 ETC: CLAUSE 6
clause 6(1) a reference to "housing provision" should
be added to the reference to "health provision and health-related
recommend that the words "it considers that" should
be deleted from clause 6(1).
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.
Government should take the opportunity to review section 75 of
the National Health Service Act 2006 to make the requirements
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
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.
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.
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
PREVENTING NEEDS FOR CARE AND SUPPORT: CLAUSE 7
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
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
draft Bill should be amended to make clear that both clause 2
and clause 3 are linked to the duty of prevention.
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
safeguarding provisions of the draft Bill should be moved to the
General Responsibilities section.
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.
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).
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.
A POWER OF ENTRY
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
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).
Government should consider amending paragraph 1(1) of Schedule
1 to include appropriate housing representation in the membership
of Safeguarding Adults Boards.
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.
draft Bill should include an explicit power to obtain information
relevant to the conduct of safeguarding adults reviews.
Assessing and meeting needs, and payments
HOW TO MEET NEEDS: CLAUSE 8
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
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.
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
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.
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.
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
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
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
ELIGIBILITY: CLAUSE 13
have already recommended 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.
THE NATIONAL MINIMUM ELIGIBILITY THRESHOLD
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
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
recommendation 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.
recommend that clause 16(4)(c) should be deleted.
PERSONAL BUDGETS AND RESOURCE ALLOCATION SYSTEMS
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
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.
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
DIRECT PAYMENTS: CLAUSES 28-30
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.
Department of Health should lift the ban on direct payments being
used to pay for local authority direct services if the individual
payments are another area where independent financial advice will
be essential both when the payments are first arranged, and subsequently.
Other responsibilities of local authorities
PORTABILITY: CLAUSES 31-32
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.
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
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.
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
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).
TRANSITION OF CHILDREN TO ADULT SOCIAL CARE: CLAUSES
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
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
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.
Other care and support matters
YOUNG CARERS AND PARENT CARERS
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.
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.
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.
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
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.
Government should consider giving a care and support tribunal
the responsibility for resolving disputes over NHS Continuing
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.
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
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
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.
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.
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.
Health Education England
HEALTH CARE AND SOCIAL CARE
recommend that the persons for whom HEE has education and training
responsibilities should not be described in this Part of the draft
Bill as "care workers", but that some other generic
description should be found, such as "health and care sector
Medical training of managers
should be a statutory requirement for HEE to work in partnership
with the NHS Leadership Academy to ensure that managers in their
training learn alongside their clinical colleagues, with a specific
objective of ensuring that a greater proportion of the managers
of the future have clinical experience.
59 lists seven matters to which HEE must have regard in setting
priorities and outcomes for education and training. We recommend
adding to that list (a) the promotion of integration (including
between health and care and support) to align HEE with the duties
placed on the NHS Commissioning Board and Clinical Commissioning
Groups, and (b) the desirability of enabling people to switch
between and work across a range of different health and care and
58(3) should be amended to make clear that, in setting out its
forward plans, HEE should include one plan looking at least five
years ahead, and preferably longer, and that it should be updated
annually. LETBs should have a similar requirement.
AN OVER-SUPPLY OF STAFF
56 must be amended to make clear that the duty of HEE is not merely
to ensure a sufficiency of skilled workers, but to ensure that
supply and demand are as far as possible matched, not just overall,
but within each group of "persons of a specified description".
CLAUSE 57: THE DUTY TO PROMOTE RESEARCH
57(2) should be amended so that HEE has, like the Secretary of
State, the NHS Commissioning Board, and Clinical Commissioning
Groups, a duty to promote research on matters relevant to the
health service. In the case of HEE this duty should extend to
the other matters listed in paragraph (a), which include social
recommend that clause 60 should be broadened to allow HEE's obligation
to obtain advice to include the commissioning of research on the
exercise of its functions.
Government should consider amending the draft Bill to give both
HEE and LETBs a duty to ensure that the principles and practice
of safeguarding are integral to education and training.
Health Research Authority
PROMOTION AND COORDINATION OF RESEARCH
67(2) should be amended to make the facilitation and promotion
of health and social care research the first of the main objectives
of the HRA.
Government should consider giving the HRA primary responsibility
for coordinating and standardising the regulatory practice of
all health and social care research carried out by the persons
and bodies listed in clause 68(1) and by any others with similar
RESEARCH RELATING TO SOCIAL CARE
list of persons and bodies in clause 68(1) should specifically
include the Social Care Research Ethics Committee.
67(2) of the draft Bill must be amended so that promoting transparency
in research and ensuring full publication of the results of research,
consistently with preservation of patient confidentiality, becomes
a statutory objective of the HRA.
its guidance to Research Ethics Committees, the HRA must place
on them an obligation to include provisions on the publication
of research when granting approval for the conduct of research,
and an obligation to ensure that such provisions are complied
Human Fertilisation and Embryology Authority and
Human Tissue Authority
believe that ministers should not have the power to abolish the
HFEA or the HTA, and we recommend that clause 75 should be deleted.