Mr Paul Burstow (Sutton & Cheam, Liberal Democrat)

I beg to move amendment No. 293, in page 45, line 34, after `person', insert—

( ) a local authority shall not consider care and attention to be otherwise available if the person is not willing or not able to make their own arrangements and there is no one else both willing and able to do so on their behalf; and

( )'.

The amendment aims to ensure that everyone who needs residential or nursing care in a residential setting has access to an assessment of his or her needs and can, if desired, avail himself or herself of the services of the local authority in negotiating a contract with the care home provider. The evidence that has been gathered in studies such as the Nuffield Foundation's report on capital offences and the Office of Fair Trading's 1998 report, ``Older People as Consumers in Care Homes'', shows that those with assets of more than £16,000, or in future probably £18,000 are being denied an assessment of their care needs, an appropriate package and an appropriate placement with the support of the local authority.

That has nothing to do with who pays, but everything to do with ensuring that the appropriate standard of care is provided and that everyone has access to a social services assessment of their needs. The amendment is reasonable, and I hope that if the Minister cannot accept its precise words, he can accept its spirit. I hope that he can give us some assurances that everyone is entitled to an assessment, regardless means, and that everyone is entitled to ask for support from a local authority to secure a contract for a placement in an appropriate care setting to meet those needs.

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

As the hon. Gentleman will be aware, councils are under a legal duty under the National Health Service and Community Care Act 1990 to assess the care needs of anyone who, in their view, may be in need of community care services. The law currently provides that where a person needs residential accommodation and care and attention are not otherwise available the local authority shall provide it. A person's ability to provide for himself is a relevant factor in determining whether to provide residential accommodation. Moreover, everyone should be advised about the type of care that he or she requires and informed about what services are available.

I hope the hon. Gentleman will be reassured by the fact that councils may not refuse to undertake an assessment of care needs on the grounds that people have financial resources sufficient to meet the costs of their care or have care and attention otherwise available to them. The hon. Gentleman has raised an important point. The Department is seized of the issue. I do not know whether he was or still is a member of his local authority.

Mr. Burstow indicated assent.

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

He is still a member of his authority. He may recall that in 1998 the Department issued circular 98/19 to all local authorities reminding them of their existing legal duty to make arrangements for residential accommodation for people who cannot make care arrangements themselves and who have no one to make them on their behalf. The law is quite clear on that and provides that where a person needs residential accommodation, and care and attention is not otherwise available, the local authority shall provide it. The ability of a person to provide for himself is a relevant factor to take into account in determining whether to provide residential accommodation.

The Department has also reiterated that councils may not refuse to undertake an assessment of care needs for anyone on the grounds of the person's own financial resources. That is the position under section 47 of the National Health Service and Community Care Act 1990, which imposes an obligation to assess needs for services that a local authority is empowered to provide, where people should be advised about the type of care they require and informed about what services are available. With the greatest respect, I sympathise with the point the hon. Gentleman is making but ask him to withdraw his amendment.

Mr Paul Burstow (Sutton & Cheam, Liberal Democrat)

I am grateful to the Minister for setting out the legal basis on which local authorities are meant to operate and to refresh the Committee's memory about recent guidelines and guidance . I am sure that it is all very helpful.

The concern I have drawn to the Committee's attention through the amendment is that with all that good will and guidance, and even the statutory underpinning that the Minister has described, evidence has been provided—as recently as last year by the Nuffield Foundation—that breaches are occurring.

The question that I hope the Minister can address is, with all the guidance, what measures are being taken to ensure compliance? What steps are being taken in respect of SSI inspections, for example, to ensure that compliance is actually being achieved? We have beginnings of the new performance regime in terms of SSI inspectors going to see departments every year to talk about services. Is this issue being explored? It would have been useful for the Minister to have addressed that concern. Nevertheless, it is useful to have on the record the statutory position. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr John Maxton (Glasgow, Cathcart, Labour)

With this it will be convenient to take the following:

New clause 13—Mandatory disregard of property in certain circumstances—

`(1) The Secretary of State shall by regulations make provision to require local authorities to disregard the value of an individual's property in prescribed circumstances when that property is occupied in whole or in part, as his home, by a person or persons with whom that individual is associated. Associated persons shall have the same meaning as in section 62(3) of the Family Law Act 1996.

(2) Regulations under this section, may, in particular, make provision to specify the conditions which must be satisfied by the associated person before such a disregard is mandatory.'.

New clause 14— Spouses not to be requested to pay for the care of their partner in residential or nursing home care —

`Sections 42 and 43 of the National Assistance Act 1948 shall cease to have effect.'.

Mr Paul Burstow (Sutton & Cheam, Liberal Democrat)

The two new clauses form a useful way of dealing with issues concerning the rights of relatives and others who are currently residing in a property that is owned to someone who is about to go into care, who will then be subject to the rules for that property to be sold or to have a charge placed against it. It is about clarifying and widening the categories of person who would benefit from being able to retain an interest in the property through their residence while the owner is in care. That is essentially the purpose of the amendments.

My reason for tabling them is based on work that has been undertaken by Age Concern which published a report last year entitled, ``All My Worldly Goods: A study of the operation of `liable relative rules' when a spouse goes into residential or nursing home care''. The research disturbingly revealed a wide variation in practice in interpreting and applying those rules and the apparent degree of uncertainty among financial assessors within local authorities in respect of applying those rules.

Although it might be appropriate to have a degree of difference in respect of discretionary charges for domiciliary and non-residential services, we feel that there should be greater clarity in respect of the rules on charging for a nationally arranged service, albeit one that is administered locally.

Mr Simon Burns (West Chelmsford, Conservative)

In relation to new clause 13, will the hon. Gentleman kindly explain exactly how section 62(3) of the Family Law Act 1996 defines associated people?

Mr Paul Burstow (Sutton & Cheam, Liberal Democrat)

I am happy to read into the record the relevant extract from 62(3) if the hon. Gentleman would find that helpful. It says:

``for the purpose of this part a person is associated with another person if—

(a) they are or have been married to each other;

(b) they are cohabitants or former cohabitants;

(c) they live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder;

(d) they are relatives;

(e) they have agreed to marry one another (whether or not that agreement has been terminated)

(f) in relation to any child that they are both persons falling within sub section 4; or

(g) they are parties to the same family proceedings (other than proceedings under this part).''

That is the definition in the 1996 Act. We believe that it is appropriate to widen the provision to include someone's interest in a property.

Mr Simon Burns (West Chelmsford, Conservative)

On a point of clarification, does that also include carers who may be living in the same house?

Mr Paul Burstow (Sutton & Cheam, Liberal Democrat)

It does include carers. I am pleased to have offered that clarification. The amendments seek to elicit greater clarity from the Government on how the liable relative rule works, to ensure greater consistency in their application, and to widen the scope of mandatory disregards of residents' properties. I hope that the Minister will offer some encouraging words, so I wait with baited breath to hear him.

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

I may have some good news for the hon. Gentleman on new clause 14. New clause 13, however, would require the Secretary of State or the National Assembly for Wales to make regulations for local authorities to disregard property occupied by a person or persons with whom the resident is associated within the terms of section 62(3) of the Family Law Act 1996. The hon. Gentleman read out a long and interesting list of people so defined under that section.

Most of the hon. Gentleman's categories are already covered by the mandatory disregards. I agree that one or two are not, but current regulations already require councils to disregard the value of a resident's property where it continues to be occupied by the resident spouse or partner, a relative who is 60 or over, another relative who is incapacitated or a child who is dependent on the resident who continues to live in the property. Through statutory guidance, councils also have the discretion to disregard property where it continues to be occupied by a third party not covered by the mandatory disregards. A procedure already exists to issue regulations about who should be disregarded for these purposes, and regulations offer the most appropriate means of dealing with the problem.

Mr Simon Burns (West Chelmsford, Conservative)

Does not the list of mandatory disregards exclude children under 16 living in the house and looking after their elderly parents as carers? I hope that I have misunderstood the position, but would it not be better to treat them as a mandatory category rather than as cases covered by discretionary powers and regulations?

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

With respect to the hon. Gentleman, his memory is almost right. We must remember that there is a category of mandatory disregards, so there is no discretion to disregard relatives and associated persons. If a child is dependent on the resident who continues to live in the property, the mandatory disregard applies.

Mr Paul Burstow (Sutton & Cheam, Liberal Democrat)

Does it apply to children under 16?

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

Yes, I believe so, but I shall check whether it is 16 or 18 and let the hon. Gentleman and the Committee know. The hon. Gentleman is right about carers, however, who are not covered by the mandatory disregards. A genuine issue is at stake here and we are reflecting further on it.

Mr Philip Hammond (Runnymede & Weybridge, Conservative)

The Minister mentioned disregard with respect to a property occupied by more than one person, but is the whole value or a proportionate value of the property disregarded? Would it not be possible for another person to continue to live in the property while the local authority takes a charge on it under the procedure in clause 54?

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

My understanding is that the whole value of the property is disregarded, but I shall confirm that in a few moments: urgent advice is winging its way as I speak. If I am wrong, I shall correct the record as soon as possible.

New clause 14 raises the important issue of the so-called liable relatives rule. The new clause would stop councils seeking further contributions to care costs from spouses beyond the costs that residents are fairly assessed to pay under the means test. The new clause has merit: I am aware of the difficulties created by the operation of the liable relatives rule. Additional distress can be caused to residents and their husbands or wives during an extremely difficult time.

I agree with the hon. Gentleman that many couples feel bewildered or angry when, despite the fact that their income and assets—including those that are jointly held—have been fairly and fully assessed by care managers, they are asked to contribute further to the costs of care. Correspondence to my Department and the excellent report published last year by Age Concern England highlighted the fact that not all care managers are as clued up about the liable relatives rule as they should be. Some bring considerable pressure to bear on spouses to make a contribution, while others go on fishing expeditions into spouses' financial affairs, causing considerable distress. The liable relatives rule is applied patchily across the country, and that is not acceptable either. Some councils do not seem eager to apply it, while a minority are very enthusiastic about it.

Despite those arguments, the amendments would require consequential amendments which the hon. Gentleman has not identified to other legislation—particularly the National Assistance Act 1948—and to other clauses of the Bill. It is important to look at the potential repercussions and the policy of other Government Departments, before taking further steps to change the liable relatives rule.

Although we cannot accept the amendment as it stands, the Government will consider its implications carefully, and if we consider it appropriate we will table an appropriate amendment on Report. In the light of my comments, I hope that the hon. Gentleman will withdraw his amendments.

Mr Paul Burstow (Sutton & Cheam, Liberal Democrat)

I thank the Minister, and I shall beg leave of the Committee to withdraw the amendment.

Mr John Maxton (Glasgow, Cathcart, Labour)

Order. The new clauses have not been moved, although they would have been at the appropriate point, if there were to be a Division on them.

Question put and agreed to.

Clause 52 ordered to stand part of the Bill.