Previous Section Back to Table of Contents Lords Hansard Home Page

Finally, the answer to the question from the noble Baroness, Lady Barker, is one-one of the criteria of the FACS list which she read out. As for her

22 Feb 2010 : Column 900

Amendment 47, which would require an independent review of the costs of delivering free personal care within six months of the Bill coming into force, we think that our 12 to 18 month review will be more meaningful and that we will be able to reconsider the predicted costs and how the scheme is working at that point. We think that six months is too short a period for a meaningful review to be undertaken and I ask her not to press her amendment.

9.15 pm

Lord Best: My Lords, I am grateful for the support from all round the Committee for the amendments in my name. There was possibly more robust support for some of the amendments in the names of others. The two parts of the group of amendments are really about the same things: they are about delaying the moment of implementation of this and about reviewing the costs. On Report, we will need to be clear about which parts of these amendments are best taken forward. However, at this stage, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendment 18

Moved by Baroness Barker

18: Clause 1, page 1, line 22, at end insert-

"( ) specify that the assessment of the person in need of assistance with personal care should not be prejudiced by whether a carer is willing or able to provide care;

( ) allow for any "qualifying service" to be any service which meets any need of the person who requires assistance with personal care"

Baroness Barker: My Lords, at Second Reading a number of noble Lords talked about the position of carers, the position of carers in relation to assessment of need and the position of carers in relation to their capacity to implement care plans and the way in which those two factors are often confused by local authority staff carrying out assessments of people's eligibility for services. This amendment addresses those two critical issues which determine whether or not many people are deemed eligible for free personal care. The first part of this amendment would ensure that somebody who is in need of personal care is fully and properly assessed and is given a choice over the type of service that they may be given.

There have been frequent references to Scotland. This is one of the areas on which the noble Lord, Lord Lipsey, and I have more profound differences than we do on many others. The evidence from Scotland-from a Joseph Rowntree Foundation-funded study-is not that carers have abandoned the people they care for; they have not given up caring for their relatives. They have, in a number of cases, changed what they do in order to make sure that life is more bearable for them and for the older people, and I think that that is an entirely right thing to do. This part of the amendment, building on that experience, is absolutely clear that the presence of a carer should not be taken as part of an assumption about somebody's eligibility.

22 Feb 2010 : Column 901

The second part is about qualifying services. At the heart of the Bill is something that we all know to be fundamentally out of step with the way in which many older people and their relatives now think. Their lives are very different from the lives of people when personal care at home was originally conceived. Many more people now work full-time or part-time.

The purpose of this part of the amendment is to enable people to be more imaginative in finding services that meet their needs. I was struck by what the noble Baroness, Lady Murphy, said about one particular group of carers: spouses, usually the wives of older men, who do not have any choice about whether they care for their husbands. There is an assumption that they will, even though they might themselves be frail and have a number of health difficulties. Often, those carers can perform personal care tasks but need help with other things to enable them to care for somebody with whom they have spent their lives. Having somebody come and do the washing or the housework once a week enables them to carry on with the task of delivering personal care. Many older people who are cared for do not want personal care to be delivered by a stranger; but in order for that to happen, their carer must be supported.

The amendment probes the extent to which, first, a carer's existence is not taken into account as part of the assessment of eligibility; and, secondly, how imaginative and free local authorities can be, working in partnership with service users and carers, in understanding the context in which personal care happens, and what the service needs may be, even though that service need may not be personal care itself but something that allows personal care to be delivered by somebody else. I beg to move.

Baroness Pitkeathley: My Lords, there is no doubt that most families want to provide care for their elderly and disabled relatives, and there is no sign of that willingness diminishing. As the noble Baroness, Lady Barker, rightly said, there has been no sign in Scotland of carers abandoning their relatives because free personal care is available. However, it is important that we do not wrongly assume that family members are willing and able to provide care; or that the care would be sustainable if it were imposed on family members at a particular time. If you do that, you will often force families to give up work, putting at risk their own health and their financial future. Therefore, you will possibly end up with more people being a charge on the state, or needing residential care or home care, than would otherwise be the case.

Some local authorities' self-assessment forms for disabled people ask whether any of their care is being provided by a family member or friend. So far so good; but they then do not include a provision to check with that person whether they are willing or able to provide the care. I remind noble Lords that that goes against current legislation such as the Carers (Recognition and Services) Act and the Carers and Disabled Children Act. It also raises issues under the Human Rights Act. I seek an assurance from the Minister that she agrees that we should always remember that caring takes place within an existing relationship, and that the

22 Feb 2010 : Column 902

nature, history and quality of that relationship should always be taken into account before any assumptions are made about a family's willingness to care.

Earl Howe: My Lords, Amendments 22 and 41 in my name are grouped here. I echo a great deal of what the noble Baroness, Lady Barker, said. I also take fully on board the points made by the noble Baroness, Lady Pitkeathley. However, the amendment of the noble Baroness, Lady Barker, is not quite right because it is ambiguous. Before a person can be deemed eligible to receive free personal care at home there are three assessments which he or she must undergo. The first is an initial assessment that will usually be the precursor to a course of intensive reablement. The second is a community care assessment designed to identify the range of the person's needs and what level of banding they fall into under the FACS definitions. The outcome of that assessment will in part be influenced by the result of the reablement exercise. Anyone placed in the highest FACS banding, "critical", would be assessed on the number of activities of daily living for which they required personal care to be delivered to them by social services.

In practice, as I understand it, the second and third assessment legs will often be rolled into one. However, for decision-making purposes they are quite separate. The single assessment tool which the Government are bringing forward will be designed to inject national consistency into the assessment of need-in other words, whether a person's needs are critical, substantial, moderate or low. It will not be able to take account of the particular living conditions in which the person finds himself.

To take a simple example, a man whose needs are assessed as critical may need help with four activities of daily living if he is living in a house with stairs. If he then moves to a bungalow his needs will remain critical under the national assessment process but he may only require assistance with three ADLs. This means that complete portability of benefits, which, in the abstract, many of us are keen on, cannot be delivered because it will always be necessary to assess someone by reference to their actual living conditions. So the noble Baroness's amendment is flawed because it fails to draw a distinction between the single assessment to be carried out under national criteria and the assessment of eligibility for personal care which depends on the person's individual circumstances and is a matter for the local authority concerned.

The question is whether the presence or absence of a carer should have any relevance in the various processes of assessment. My own view-and I hope the Minister will confirm this-is that in the assessment of a person's overall level of need, which is what the national assessment tool will be used for, the presence or otherwise of a carer has no relevance or bearing whatever. The level of someone's need is their level of need. However, when it comes to that person's entitlement to personal care, whether free or paid for, it could well be that the presence of an unpaid carer affects the person's eligibility for some elements of personal care.

For instance, if an unpaid carer were able and willing to supervise a person taking their prescribed medicines at certain times of day and the person

22 Feb 2010 : Column 903

himself was happy with that, there is no good reason for social services to assume responsibility for this task. So when deciding on someone's eligibility to receive free personal care it is not unreasonable to take account of any assistance which can readily be provided by an unpaid carer. On the other hand, we do not want to see situations arising in which unpaid carers are unfairly exploited. Local authorities should not be able to impose unreasonable demands on carers as a way of avoiding their legal obligations to provide personal care. After all-and the noble Baroness, Lady Barker, effectively made this point-it is often when carers feel that they can no longer cope with looking after somebody on their own that local authorities are requested to provide help.

To what extent are would-be service-users entitled to insist that their eligibility to receive personal care in the home should take no account of whether a carer is willing and able to provide help with activities of daily living? This seems to be quite a difficult question because, if, as I believe, there is a difference between reasonably relying on a carer and unreasonable exploitation of that same carer, there is at the same time no obvious or easy way of making that distinction clear in regulations or guidance.

9.30 pm

Baroness Thornton:I take this opportunity to recognise the key role played by carers in supporting family networks with health and social care needs. The National Carers Strategy includes a 10-year vision for carers, a commitment to move carers' issues to the "centre of family policy", and to reflect this by promoting the concept of whole family care planning following separate assessment. Undertaking effective carers' assessments is a key part of making this a reality. But while we will continue to rely on carers to contribute to the wider package of care, we do not want to place unreasonable caring burdens on them.

The planned White Paper is addressing longer-term issues, and it may have future implications for the way that social care is delivered. However, given that any fundamental system reform is unlikely to take place for some time, we have recently consulted on revised FACS guidance which will be published shortly in recognition that more immediate action can be taken to improve the current system. Compared with the previous guidance, the new FACS guidance will address the key role that carers can play in meeting people's care needs and how their needs can be addressed at the same time if they are to continue in their caring role. In determining an individual's eligibility for care, account will be taken of the input that the carer is able and willing to make. In that sense, it will not be "carer blind", nor should it be, but this will help to establish whether someone is in the highest band for help with social care-FACS critical. For those with critical needs, the assessment for personal care will be based on activities of daily living and that will be carer blind, focusing only on what the individual themselves can or cannot do. That might be the opposite way around from how it was related by the noble Earl. I think I will check on that, but the Box tells me that that is what this says. A practice guide and online learning tools

22 Feb 2010 : Column 904

for FACS are being developed by the Social Care Institute for Excellence to help frontline staff and their managers apply the criteria in a more consistent way. These will be available in early April.

In relation to Amendment 18, I wish to stress that it is important that we properly reflect the role of carers, as outlined by my noble friend Lady Pitkeathley. At this point, I wish to pay tribute to the work that unpaid carers are doing up and down the country day in and day out. It is also important, as the noble Baroness, Lady Barker, pointed out, that we make sure when undertaking assessments that the role of a carer is not taken into account inappropriately. So, for example, when undertaking assessments, professionals should seek to establish whether a person can carry out a particular task such as washing or bathing, and that they are assessed on their own ability to do that, not the ability of the carer to assist them. Taking into account a carer's role to a greater extent could inadvertently affect the outcome of the assessment for eligibility for free personal care. However, while I recognise the sentiment expressed in this amendment, we are committed to addressing this issue in statutory guidance. I therefore do not consider it necessary to have this on the face of the Bill, although clearly we will need to discuss the issue further as the guidance unfolds.

I turn to the point raised by the noble Baroness about "qualifying services". Section 15 defines qualifying services as a range of services provided under community care legislation. This amendment would seek to extend the range of services provided free to any services needed by a person in receipt of personal care, not just services to meet their personal care needs. This would be uncertain and beyond the policy, which is limited to personal care for those in the highest need.

Amendment 22 aims to ensure that regulations may specify the extent to which a carer's practical assistance can be taken into account when determining an individual's eligibility for free personal care. We will be setting out the assessment process for deciding whether or not an individual is eligible for free personal care in statutory guidance and, as I have said, we will also be providing local authorities with a national assessment tool to help them make this judgment. The revised FACS guidance sets out how local authorities should take into account the practical support of a carer when they are carrying out a community care assessment and judging which FACS band an individual sits within, based on their level of risk. The additional assessment of personal care needs which will determine eligibility based on requiring significant help or prompting to carry out four or more of the activities of daily living will, as I have already said, be carer blind.

Finally, I note that Amendment 41 is consequential on the other amendments tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Morris of Bolton, which use the term "carer", and is only necessary if these amendments are passed. In itself, the proposed definition of "carer"-that which is set out in the Carers and Disabled Children Act 2000-is unobjectionable. However, since those amendments to which Amendment 41 is consequential are being resisted, this amendment should also be resisted; I ask the noble Earl to withdraw it.

22 Feb 2010 : Column 905

Earl Howe: My Lords, before the noble Baroness, Lady Barker, decides what to do with her amendment, may I ask the Minister whether she and her officials can spare me some time between now and Report stage? It is quite clear that I have come at this subject from a completely different angle from the Minister. I may have done so with less than credible logic on my side, but I am slightly surprised by the answer she has given, even though I am very grateful for it. It is clear that the Government have done a great deal of thinking about this, and I probably need to be briefed on that thinking.

Baroness Thornton: I am happy to do that. Having worked opposite the noble Earl for the past two years, I think it is worth us having a discussion about how we have got completely different views on how this works.

Baroness Barker: I thank the noble Baroness for her characteristically comprehensive and thorough response to the amendments tabled by myself and the noble Earl. It would be extremely helpful if there was a briefing for all Peers on this matter. This is a critical element to the whole of this Bill, and the place of carers is critical to the whole of social care. If there is confusion about this here and now, it needs to be clarified. Believe me, by the time it works its way down to the frontline of a social services department for an assessment, there will be major confusion, and people will lose out on entitlements which to them are quite often the difference between managing and not managing, and getting by with dignity. I am very grateful to the noble Baroness, but it would be helpful if she would clarify this matter for everybody concerned. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendment 19

Moved by Earl Howe

19: Clause 1, page 1, line 22, at end insert-

"( ) specify the meaning of "personal care" for the purposes of this section"

Earl Howe: My Lords, Amendment 19 is intended as a means of raising a series of questions to the Minister about the kind of personal care which will and will not be covered by the free care at home policy.

It is often the way in politics that Governments receive no thanks at all for the good things they do. Here, I think we have on our hands the potential for good intentions to bounce back in Ministers' faces. The way the Government are setting up this scheme is, I am afraid, bound to lead to disappointed expectations on quite a large scale. They have led the public to think that people who have been through a reablement process, and whose needs are assessed as critical, will be eligible to receive free personal care at home-we know that is not so. Free care will only be available to those in critical need who require significant assistance with four or more activities of daily living. So then, is it correct that someone whose needs are critical and who requires significant assistance with four or more activities of daily living will be eligible for free personal care in the home? They may but, on the other hand, they may

22 Feb 2010 : Column 906

not, and that is because in the regulations to be laid under the Bill personal care and activities of daily living will be carefully defined in ways which exclude a whole range of important personal care activities. For example, cleaning, laundry and driving someone to the doctor are services for which a charge will continue to be made. To some people that will not come as a welcome piece of news; to others it will simply be confusing.

The issue of potential public disappointment and discontent is wider than this because, whenever lines in the sand are drawn and definitions set in stone, someone will always end up on the wrong side of one or other of them. The difference between someone having care needs that are substantial and care needs that are critical is often quite small. The difference between needing help with an activity of daily living and needing significant help with that activity can be equally tenuous and is often quite subjective. What is meant by "significant"? It could be a significant amount of help or it could be help which achieves a significant result. Neither the regulations nor the current guidance provide clear and simple answers to these key questions of eligibility.

The scope for disputes between local authorities and service users will be much greater than it is at the moment because much more will be at stake. A lawyer who deals in this field of the law said to me that he knew solicitors who were rubbing their hands in anticipation of dealing with the litigation that lies ahead. Let me make clear that I repeat that remark with no relish whatever. Disputes and litigation will be a tremendous distraction for all concerned, other than the lawyers, and a waste of resources. However, it looks like coming about because the Government have rushed at this policy and have not allowed themselves and everyone else to make sure that it is deliverable without unintended adverse consequences.

The Equality and Human Rights Commission and a number of other organisations have questioned the definition of personal care contained in the draft regulations. They have pointed out that the categories of personal care listed do not dovetail with the six categories of activities of daily living. For instance, the definition of personal care makes no reference to helping people with mobility problems, or managing and monitoring medication, or basic food preparation, even though these things feature in the activities of daily living. What is the reason for that mismatch? Should not the draft regulations be clearer about what is intended? I beg to move.

Lord Best: My Lords, I speak to Amendment 32 in this group, which might be called the housing amendment as that is what it covers. Alongside social care and health, housing represents the equally important third leg of the stool; without the housing leg the stool falls over. It is no good assessing an individual's personal care needs and switching funds from health to pay for personal care if the critical problem is the unsuitability of that person's home. You cannot discharge someone from hospital safely if the fall that they are recovering from is likely to recur when they get back to the unsafe premises that they came from: if they cannot get up the front steps; if they cannot get upstairs to the

22 Feb 2010 : Column 907

bathroom; if they need assistance in the home; if it is freezing cold. These are all ways in which the property may make someone a prisoner within it or debar someone from living there and force them into residential care.

9.45 pm

This amendment calls first for an assessment of the individual's eligibility for free care to have alongside it an assessment of the suitability of the home for that individual to receive their personal care. This would do the joining-up which the noble Baroness, Lady Andrews, as Minister, did so helpfully in the government report, Lifetime Homes, Lifetime Neighbourhoods: A National Strategy for Housing in an Ageing Society. It also builds on the new report from the Audit Commission, Under Pressure, which explains that money is extremely well spent on the home in preventing people from requiring more care or a move into a residential establishment.

We may well argue that it is the extra-care housing that the noble Baroness, Lady Gardner, referred to earlier that is the ideal, or retirement villages and retirement communities, but these will serve only a very small minority of people. For the great majority, it will be aids and adaptations to their existing accommodation that will mean that care can be provided safely, sensibly and happily within the home.

Next Section Back to Table of Contents Lords Hansard Home Page