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3.15 pm

Baroness Wilkins: I strongly support the amendment, which would place an explicit duty on service providers to involve service users in arrangements made under the Bill. This is very much in line with the Government's policy of devolving power to disabled people and realigning care and support systems so that they promote real choice, control and personalisation. These are goals that current legislation actively thwarts. Unless you live in an area-and such areas remain the exception-where the local authority is at an advanced stage of implementing self-directed support and individual budgets, you will find that your care package remains something handed down to you, rather than something you actively participate in, design or own. Many people continue to receive services they would not choose for themselves and much provision is arranged for the convenience of the provider, rather than being tailored to what the individual needs.

The amendment would provide a valuable corrective to this lingering culture of paternalism. It could also provide an invaluable guarantor of the cost-effectiveness of the new free care offer. There is copious evidence that self-directed support achieves better outcomes for people with the same resources. I strongly urge the Minister to give a firm commitment today to embedding the principles of choice and control in the arrangements made under the Bill.

Baroness Gardner of Parkes: My Lords, in theory the amendment is good but I have some questions about it. I am interested in the comment of the noble Baroness, Lady Wilkins, about so many care packages being designed to suit the carer. At Second Reading I mentioned how people are being put to bed at 6 pm when they would rather stay up for the ten o'clock news. It is important to ensure that these users of services have a say and are involved. However, it is clearly impossible to accommodate everyone because not everyone can be put to bed at 10 pm. That is why it must be spread over a period. Although in theory I absolutely agree with the amendment, in practice it is not as easy to implement as we imagine. My other question is about those users of such services who are not capable of making decisions. Exactly what provision will there be for such people where they rely on someone else to make decisions?

Lord Sutherland of Houndwood: My Lords, I support the amendment for the reasons already given. One of the great dangers in providing care services is that we move inevitably towards a "one size fits all" approach to suit the institutional providers of care. This is a welcome corrective and I support the principle of the amendment.

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The Lord Bishop of Norwich: My Lords, I add my support for the amendment. One of the most distressing features of increasing incapacity is a sense that you can be disempowered from making decisions about your life. If we are talking about personal care at home, care cannot be imposed on people, because it then treats the human person as an object to be done to. The value of the amendment is that it recognises that real care includes a degree of reciprocity, while recognising all the practical problems that have already been mentioned. The sort of consultations that are suggested here would make it feel like real care. I hope the Minister will feel able to accept the amendment.

Baroness Thornton: My Lords, I am replying to Amendments 2 and 4, tabled by the noble Lord, Lord Low, and the noble Earl, Lord Howe. It is appropriate that we should be discussing now, right at the beginning of the Bill, the importance of the involvement of users and carers in determining care needs. These are entirely appropriate amendments, each addressing slightly different aspects of this area. However, I think that we all agree how important it is that an individual should be involved in determining how their own care needs can best be met, by being involved in the assessment and decision-making processes.

That is the whole ethos of the transformation agenda in Putting People First. The excellent work going on in councils such as Manchester, Trafford, Oldham, Essex and others demonstrates the value of life-changing projects which ensure that people who need care are involved in shaping it. I am not claiming that this happens everywhere, but we know that there is very good practice that needs to be spread throughout the country.

Our aim is to put people in the driving seat to enable them to be in control of their own lives, as explained by my noble friend Lady Wilkins. It is important to say that there may be situations where a person has the onset of a degenerative or other neurological condition, as pointed out by the noble Baroness, Lady Gardner, and it is no longer possible for them to determine what is best for them. In these situations, others must be entrusted to make the right decisions. In doing so, they have to be mindful of the provisions of the Mental Capacity Act and seek to do this in a way that is not only in the person's best interest but follows as much as is possible what the person would have wished for themselves. This House has discussed that Act on many occasions.

We will continue to encourage councils and to champion those which do good work with their user organisations. We do not believe that we need to insert new provisions into the Bill to do so, because we already have directions made under the National Health Service and Community Care Act 1990 that support user involvement in care planning. These directions already place a statutory requirement on local authorities to ensure that people receiving care services have appropriate input into determining their care.

The noble Lord, Lord Low, rightly said that his amendments refer to the users of services being involved in those decisions. The problem is that they conflate the functions with which the regulations will be concerned, which concern the eligibility for free personal care,

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and the functions relating to the delivery of free personal care themselves, which is not something with which the regulation power of Section 15 is concerned. However, it is right that people receiving care are involved in the development of their care plans, which is a key element of the principle of personalisation that we have already begun to develop over the past two years. We have been working to transform adult social care.

I therefore say to the noble Earl that it is entirely consistent with the approach of personalisation. The Bill will be setting through the regulations, when they are made, an entitlement to free personal care. People will then receive a personal budget that can be spent flexibly with their carer to meet their needs, and guidance will make that clear.

Several noble Lords have said that they agree with the principle of this-as do the Government. We think that the regulatory framework is there. However, we believe that what the noble Lord, Lord Low, is proposing would be covered in guidance. We would be very happy to re-emphasise this in guidance and to discuss it with the noble Lord and others as the guidance is developed.

Finally, I understand from the noble Lord's remarks that he was concerned that user involvement in this way might result in some people being pushed above the threshold of certain benefits if they receive a small payment for their involvement. I can assure him that that would not be the case. This is not a scheme that will involve payments for user involvement. I therefore ask the noble Lord, with those assurances, to withdraw the amendment.

Lord Low of Dalston: My Lords, I am grateful to the Minister for her reply and to all noble Lords who have spoken and given the amendment a warm welcome.

The noble Baroness, Lady Gardner of Parkes, made a couple of points. I think that the Minister probably responded to the point about users who are unable to represent their own needs or have difficulty in doing so. On the point that it is not possible to meet everyone's needs simultaneously, thoroughgoing implementation of the personalisation agenda should help in that regard. However, I am largely reassured by what the Minister said, in that a statutory requirement for service users to be involved does in fact exist under the community care Act. That being the case, there is probably no need for the amendment to be put on the face of the Bill. I was glad to hear the Minister say that it is her intention to emphasise that requirement in guidance, and possibly to give further guidance as to how to discharge the obligation.

I shall read carefully what the Minister said and see whether there is anything that we need to return to on Report. I was a bit concerned when she said at the end of her response that people would not be paid. Arrangements differ from one body to another, and sometimes payments are made for this kind of user involvement. I would want to be sure that, where there was a practice of payment, this could be maintained without, as she said, pushing people above the benefit thresholds. For the time being, I am happy to beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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Amendment 3

Moved by Baroness Masham of Ilton

3: Clause 1, page 1, line 4, leave out "(5)" and insert "(5A)"

Baroness Masham of Ilton: The Bill before your Lordships has no right of appeal for those people who desperately need personal care and may have been rejected by their local authority. It is very important that people who have been denied the right to personal care and feel that they have been wrongly assessed should have the right of appeal.

Staff working in many different fields have the right of appeal for many different reasons. Why should service users be denied this right? Why has the right of appeal been left out of this Bill? In order to establish this, it is necessary first to amend the Community Care (Delayed Discharges etc.) Act 2003. This is covered by Amendment 39, which creates the right of appeal. Amendment 3 simply amends Clause 1(1) of the Bill to make it clear that the community care Act is being amended.

There is a growing army of elderly people, some of whom have serious and complex neurological conditions. When money is scarce, it will be very easy for local authorities to refuse much-needed help. Some local authorities have a very dogmatic approach to the people who need help. It is the wish of most people to stay in their own homes and, if possible, to die there. However, that is not for everyone. I will give your Lordships an example, having received an e-mail last week from the daughter of an elderly lady. It states:

"These are my views and those of my mother. The Government seems set on providing care for elderly people in their own homes, stating that this is their preference. However, the sad fact is that many elderly people, like my mother, live alone and long for company. Although she has carers coming in three times a day, they stay a very short time to deal with household and personal care tasks, and she then spends many hours alone with no-one to talk to. For this reason, there should be choice so that those with families nearby or close friends can have the opportunity to stay in their home with the help they need. But for those without this resource and who express a preference, a move into a care home will mean constant companionship, planned activities during the day and the stimulation of conversation with others. Research shows that constant stimulation is beneficial to the elderly and aids good health. Leaving an elderly person to cope in their own home can lead to isolation, depression and vulnerability to poor health".

3.30 pm

I brought up the need for a right of appeal at Second Reading but had no response from the Government. I hope that this time there will be a positive reply. As people's needs vary so much, choice and flexibility should be the policy of all local authorities. Unfortunately, that so often is not the case. Therefore, an amendment to the appeals system should be in place. Would it not be possible for the Care Standards Tribunal, which deals with many appeals from members of staff, also to deal with appeals from service users who have been turned down by their local authorities? I hope that the Government and your Lordships will accept this amendment. I beg to move.

Earl Howe: My Lords, I have added my name to these amendments, which follow on very neatly from those in the name of the noble Lord, Lord Low. When

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the provisions of the Bill are brought into force, there will be many decisions that will go the wrong way from the point of view of the service user. I am afraid that we are going to see a lot of disappointed people out there. There needs to be a formal process by which service users can make representations and be sure that their concerns will be considered objectively. I therefore strongly support the noble Baroness's amendment.

Baroness Gardner of Parkes: My Lords, I also support the noble Baroness but I am concerned about a number of things. One is the point she has just made about the person who would prefer to be in a care home rather than live in their own home. As I understand it, there will be a perverse incentive there in that if, under the Bill, you are one of the people who will be eligible to receive free care, you will not receive it unless you are already in the very limited category of those who have their residential home paid for. Therefore, we are probably eliminating the element of choice for those people who would prefer to go into a home but not to have to pay for their care, whether it was in a home or wherever. I think we are almost discriminating in this way, in that the Bill proposes to help those in their own homes but not to help them if they make a choice as in the case described by the noble Baroness, Lady Masham.

There are two different issues here. I support completely the right of appeal because I think that, under normal justice, we all expect to have the right of appeal on any and all issues. However, I am concerned about the bureaucracy that will be required to cope with the appeals, because I imagine that there will be a huge number of them. Once people get the feeling that, no matter what your income is, you can have your care at home for free, everyone will want to appeal on that. The proposal, according to the noble Baroness, Lady Masham, was to have a separate external body hearing the appeals. I think that is essential because local authorities will not possibly be able to cope. They will be hard-pushed enough coping with the assessments proposed under the Bill, never mind the appeals against them. Therefore, I support the principle of the right of appeal but I am concerned about how the process would work in reality.

Lord Lipsey: My Lords, I support the amendment moved by the noble Baroness, Lady Masham. I emphasise the point borne out by her moving quotation-the fact is that most people living at home get very small amounts of care of, typically, six hours a week, typically confined to week days. The Government may say that that will all change but they have spent all the money on making the care free, so they are not going to have any left over to provide much more care. In those circumstances, unless the Government's costings are hugely increased so that far more care is made available at home, as well as it being free-that would explode the Government's costings-the reality is that for many people staying on at home is not a bearable option. I shall refer to that later in the debate. It is therefore all the more essential that something is done to prevent the bias in the Bill-it can be put no less highly than that-against people who need a lot of care, will not get it at home and who, if they go into residential care, will unfairly have to pay for it whereas people who receive it at home will not.

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Baroness Murphy: I add my two penny worth to this amendment. I rather naively thought that there was a right of appeal; perhaps I have misunderstood. For example, there is a rather arbitrary cut-off point as regards whether a person receives half the attendance allowance or the full attendance allowance depending on the level of disability. The majority of appeals against the half-day rating are found for the appellant. Those decisions are often very arbitrary and are not founded on a proper understanding of the impact of a person's disability. Therefore, it is clear to me that there must be a right of appeal. If it is not there automatically in the Bill, I add my support for the amendment, but I hope very much that the Minister will tell us that it is already in there.

Lord Tebbit: My Lords, I always hate to disagree with the noble Baroness, Lady Masham, on these kinds of issues because she understands so much about them. However, like my noble friend Lady Gardner, I am worried about the costs and the work which we are imposing on local authorities. I should make plain that if someone would like to pay the costs which my wife and I incur for her care, I would be extraordinarily grateful. However, I wonder whether anybody has a realistic idea of what those costs are. That is one of my worries about the Bill. If we then added to all these costs the perverse incentive that my noble friend Lady Gardner mentioned of allowing those who qualify for free care at home to take that free care with them into a care home, that would be quite extraordinary because it would mean that they would be better off than people who had been in the care home originally. Although Her Majesty's Government were no doubt inspired by all sorts of good and decent feelings in this matter, they have not quite thought through-nor have some of my noble friends thought through-the complications, possible perverse incentives and sheer scale of the cost involved.

I think that my wife qualifies for about £60 a week for her care. We sometimes have a good laugh about just how much care can be provided for £60 a week. It is pretty darned little. I would be very happy to tell the Minister in private exactly what it does cost to care for someone like my wife at home.

Lord Sutherland of Houndwood: I understand and accept the validity of the points that have just been made. One of the lacunae in the Bill is the uncertainty about the relationship between care in residential contexts and care at home. For example, what happens if someone comes from a care-at-home situation and needs care in a residence, which could well happen part-way down the system? So there are lacunae in the Bill, but I would like to detach those from the question of whether there ought to be and sensibly should be an appeals system of some kind. I can think of two practical grounds for having an appeals system. One is that evidence has shown in the past that appeals will come in anyway. Indeed, two or three years ago they came in in their thousands to the health ombudsman's office. That office was not set up specifically to deal with this need, but appeals will go somewhere and, in that sense, it would be far better to have an appeals system that was understood within the context of the Bill.

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The other point is that it would be a considerable discipline, for those who agree what criteria should be applied, to have those criteria plain and understood and applied with as much objectivity as possible in such a difficult situation. That being the case, there would be fairly straightforward grounds, I would hope, for settling whether a particular appeal should be upheld. There are cases to be made for supporting an appeals system, despite the continuing problems of the Bill.

Baroness Barker: I want to make a point that I hope will endure for the whole of our debate: it is a plea for clarity about terms. A couple of weeks ago, I listened to a senior member of a local authority social services department make a complete hash of explaining care brokerage to a roomful of people. She managed, in the course of five minutes and two sentences, to confuse care assessment, care brokerage, negotiation of services and funding.

It is important that, in talking about an appeal, we recognise that there are three different appeal processes in social care. One is an appeal against an assessment of needs, the second may be an appeal against the basis on which that assessment was made-that is, the criteria-and the third is an appeal against the decision about what funds or, indeed, services to allocate to somebody. I assume that the noble Baroness, Lady Masham, wishes to do all three of those, but I want us to be very clear all the way through these discussions about precisely what we are talking about, because those three assessments need to be done entirely separately.

The noble Lord, Lord Tebbit, will understand that, although it is interesting to follow where the money comes from, it is absolutely essential that the analysis of need be independent. Not only might the individual user wish to appeal against that, but crucially their carers might wish to do so, because of the way in which those assessments are commonly done. I reiterate: please could we have some clarity about terms throughout this debate? The 47 amendments that have been put down show that this afternoon is all about clarity and definition, which may be the only thing that we achieve at the end of our debate. Therefore, we should be very careful about the terms that we use.

3.45 pm

Baroness Thornton: My Lords, in replying to Amendments 3 and 39 in the names of the noble Baroness, Lady Masham, and the noble Earl, Lord Howe, I start by thanking the noble Baroness, Lady Barker, for her helpful explanation of the issues on which one might appeal. We recognise that clarity and transparency are important here. That is why we are putting a great deal of emphasis on developing what the department calls a national tool-I know that the noble Lord, Lord Tebbit, will cringe when I use that expression, but he knows what I mean-that all councils should use to assess people with the highest personal care needs to ensure a consistent approach. Therefore, people who are unhappy about their assessment, about the package of reablement or about the package of care should have the right to make a complaint to the council in the usual fashion.

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It is right that people should be able to pursue a challenge if they feel that the wrong decision has been taken. The noble Lord, Lord Tebbit, and the noble Baroness, Lady Gardner, highlighted why we will be asking the noble Baroness, Lady Masham, to withdraw her amendment. We do not wish to create a separate and potentially bureaucratic layer to deal with this on top of the existing complaints system. People already have an opportunity to pursue their case, if necessary as far as the Local Government Ombudsman. This House has discussed the work of the Local Government Ombudsman on previous occasions and noble Lords have remarked how effective and accessible the ombudsman has been and is. We are reluctant to create another mechanism over and above that, as that would add to the costs and the administrative burden placed on councils and it might create confusion for users.

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