Draft Care and Support Bill - Joint Committee on the Draft Care and Support Bill Contents

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.

2.  The 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 proposals


3.  Regulations determining the level of the cap for working age adults should be subject to affirmative resolution.


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.

5.  The 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.

6.  Clarity 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.


8.  The 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.


9.  The 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.


10.  In 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.


11.  Enactment 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.

12.  The 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 final Bill.

13.  Arrangements 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.

14.  The 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


15.  We 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.

16.  Clause 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.

17.  We 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.


18.  We 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.

19.  The 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


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

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

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


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

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

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


25.  Clause 2 should be amended to make clear that independent advocacy is to be available before the assessment process has begun, and not only as one of the ways of meeting needs under clauses 17-19.


26.  The Government should ensure that the Department of Health's national support programme and guidance to local authorities address these concerns; in particular they should make certain that Joint Strategic Needs Assessments provide a sufficiently detailed picture of the scale and character of current and future individual needs to support market shaping.

27.  We 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.

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

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

30.  The Government should examine the scope for introducing an independent adjudicator to settle disputes between local authorities and providers over the cost of care.

31.  The Government should amend the market shaping duty in clause 3 by making an explicit link to both the essential standards of quality and safety and to NICE quality standards. This could be achieved by adding to clause 3(2) a requirement to have regard to regulations made under section 20 of the Health and Social Care Act 2008, and to the quality standards prepared by NICE under section 234 of the Health and Social Care Act 2012.

32.  The Government should ensure that they have the necessary statutory authority to make regulations or issue guidance concerning what they call "unacceptable" commissioning practices, and amend the draft Bill if necessary.


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


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

35.  We recommend that the words "it considers that" should be deleted from clause 6(1).

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

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

38.  The Government should review before the introduction of the Bill whether they have the necessary powers to support the implementation of information sharing using a common identifier such as the NHS number across different services.


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

40.  The Government should consider redrafting Schedule 2 to reflect its ambitions for integration and parity of esteem between physical and mental health. Any redrafting should seek to codify best practice in the coordination of the care of a person before, during and after their discharge.

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


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

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

44.  The draft Bill should be amended to make clear that both clause 2 and clause 3 are linked to the duty of prevention.

45.  Realising the "public health" benefit from introducing a capped cost system could result in significant quality of life gains by helping to engage more people in maintaining their health and well-being, with a positive impact on demand for long term care.


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

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

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

49.  The Government should ensure that both the explanatory notes to the Bill and the guidance make clear what obligations the words "cause to be made" place on local authorities and other agencies.


50.  The safeguarding provisions should include a power of entry for local authority representatives where a third party is refusing access to a person who may be at risk of abuse or neglect.


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

52.  The Government should consider amending paragraph 1(1) of Schedule 1 to include appropriate housing representation in the membership of Safeguarding Adults Boards.

53.  Paragraph 1 of Schedule 1 should be amended to specify the circumstances in which a local authority should not take part in the proceedings of the Safeguarding Adults Board.

54.  The draft Bill should include an explicit power to obtain information relevant to the conduct of safeguarding adults reviews.

Assessing and meeting needs, and payments


55.  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.


56.  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.

57.  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.

58.  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.

59.  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.

60.  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.

61.  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.

62.  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.


63.  We 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.


64.  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.


65.  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.


66.  Our 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.


67.  We recommend that clause 16(4)(c) should be deleted.


68.  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.


69.  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.

70.  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.


71.  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.

72.  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.

73.  Direct 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


74.  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.


75.  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.


76.  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.

77.  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.


78.  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).


79.  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.

80.  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.


81.  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.

Other care and support matters


82.  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.

83.  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.

84.  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.

85.  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.


86.  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.

87.  The Government should consider giving a care and support tribunal the responsibility for resolving disputes over NHS Continuing Health Care.


88.  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.

89.  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.


90.  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.


91.  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.

92.  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.

93.  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.

Health Education England


94.  We 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 staff".

Medical training of managers

95.  It 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.


96.  Clause 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 support settings.


97.  Clause 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.


98.  Clause 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".


99.  Clause 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 care services.


100.  We 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.


101.  The 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


102.  Clause 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.

103.  The 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 responsibilities.


104.  The list of persons and bodies in clause 68(1) should specifically include the Social Care Research Ethics Committee.


105.  Clause 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.

106.  In 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 with.

Human Fertilisation and Embryology Authority and Human Tissue Authority

107.  We believe that ministers should not have the power to abolish the HFEA or the HTA, and we recommend that clause 75 should be deleted.

previous page contents next page

© Parliamentary copyright 2013
Prepared 19 March 2013