Committee (6th Day)

Care Bill [HL] – in the House of Lords at 4:36 pm on 16th July 2013.

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Relevant document: 1st Report from the Delegated Powers Committee.

Clause 12 : Assessments under sections 9 and 10: further provision

Amendment 88M

Moved by Lord Low of Dalston

88M: Clause 12, page 10, line 38, leave out from “which” to end of line 40 and insert “a person with expertise in a specified matter must carry out the assessment on behalf of the authority”

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 4:38 pm, 16th July 2013

My Lords, in moving Amendment 88M, I will speak also to Amendment 92ZZN, both of which are in my name. These amendments would ensure that regulations specify in what circumstances a specially trained person must carry out an assessment or reassessment. A number of groups of disabled people may need a specialist assessment. For a deafblind person, for example, the ability to access a specialist assessment carried out by someone who understands the impact of deafblindness is a critical first step in the process of getting adequate and appropriate care and support. Assessors who do not have these specialist skills—for example, a generic assessor who assesses older people or a single sensory assessor who knows about visual impairment but not about deafness and blindness and how they interact—often offer deafblind people inappropriate mainstream or single-sensory services which are inaccessible and do not meet their needs.

Similarly, community care assessors can easily misunderstand the needs of someone on the autistic spectrum if they do not have experience and knowledge of how to communicate with someone with autism, or of the impact of the condition of autism on someone’s day-to-day life. People with autism can lack insight into their own condition and may struggle to define their needs. For example, if a person with autism is asked, “Are you able to wash yourself on your own?” they may reply, “Yes”, but omit to mention that this is with verbal prompting at every stage. I hesitate to venture on to this ground with the noble Baroness, Lady Browning, in the Chamber. Perhaps she will intervene in the debate later to supplement or, indeed, possibly correct what I am saying. However, what I have said so far is a fair reflection of the situation as it has been explained to me.

In addition, some people with autism may be non-verbal or have limited capacity to communicate or take part in the process unless substantial adjustments are made. People with profound and multiple learning difficulties and people who display challenging behaviour are two further groups where it is vital that they have a specialist assessment undertaken by an expert. People with PMLD do not use formal communication such as words, signs or symbols and may rely on others to speak up for their needs. Staff carrying out the assessments will need to have skills to ensure that people with PMLD can be meaningfully involved in the assessment process and have the opportunity to influence decisions made about their lives. It is also important that people with PMLD have advocates who are trained in non-instructed advocacy techniques.

Councils in England and Wales have to follow statutory guidance on how to provide care services for deafblind people. This guidance, Social Care for DeafblindChildren and Adults, requires local authorities, when assessing the needs of a deafblind person, to ensure that an assessment is,

“carried out by a specifically trained person or team, equipped to assess the needs of a deafblind person—in particular to assess need for one-to-one human contact, assistive technology and rehabilitation”.

In the five years following the introduction of the Social Care for DeafblindChildren and Adults guidance in 2001, we saw the number of deafblind people provided with appropriate specialist support increase by 60%, which says a lot about the importance and value of specialist assessments of the kind I am talking about. The RNIB has obtained figures from the National Adult Social Care Intelligence Service showing that the numbers of blind and partially sighted people in receipt of local authority-funded care and support dropped by 35% between 2005-06 and 2011-12. This compared with a drop of only 16% for all adults with care needs. This is worrying and could indicate that generic needs assessments inadequately capture the needs of blind and partially sighted people and reduce their chances of being judged eligible for social care.

Following the passing of the Autism Act 2009, councils in England have had to follow statutory guidance —known as, Implementing Fulfilling and Rewarding Lives—on improving support for adults with autism. The guidance is clear that councils should develop specialist training for community care assessors. It recommends that,

“as far as possible, assessment of needs be carried out by a professional who has a good knowledge of autism and reasonable adjustments made to the assessment process to enable the adult with autism to take part fully”.

However, research carried out by the National Autistic Society found that only just over half of English local authorities had training available for their staff.

Where assessors are not trained to assess people with PMLD, or people with challenging behaviour, they will not get a full grasp of the complex needs that the individual has and understand what needs to be put in place to meet those needs. This will place the subsequent package of care at higher risk of failing or being inappropriate. This was the case for many of the individuals who ended up in assessment and treatment centres like Winterbourne View. They did not get the right support that they needed to live in the community.

The Law Commission in its report on adult social care recognised the importance of specialist assessments, particularly for deafblind people, stating that,

“in some cases, a specialist assessment should always be required and indeed this is acknowledged in statutory guidance. At a minimum, we suggest that the existing requirement in statutory guidance for a specialist assessment for deafblind people should be elevated to the regulations”.

The Care and Support Alliance was pleased when the draft Care and Support Bill included in Clause 12, which set out matters to be covered in regulations, paragraph (c), which reflected the Law Commission’s recommendation to,

“specify circumstances in which a person with expertise in a specified matter must carry out the assessment on behalf of the authority”.

The draft Care and Support Bill also included a similar paragraph relating to reassessments. Unfortunately, the relevant paragraph—paragraph (f)—in Clause 12 in the current Bill has been changed so that the obligation is to,

“specify circumstances in which the local authority must, before carrying out the assessment or when doing so, consult a person who has expertise in a specified matter”.

Furthermore, the reassessment paragraph has not been included at all. The CSA is very concerned that this will lead to many disabled people being assessed by someone without specific training in their disability. This would be a retrograde step. Consulting someone with the relevant expertise is not enough; the assessment should be carried out by such a person. These amendments would reintroduce the wording from the draft Bill into Clauses 12 and 27 to provide the necessary strengthening. I beg to move.

Photo of Lord Touhig Lord Touhig Labour 4:45 pm, 16th July 2013

My Lords, I support Amendments 88M and 92ZZM in the name of the noble Lord, Lord Low of Dalston, and myself. Assessments must be carried out by assessors with the necessary training and expertise to understand the needs they are assessing. This point has been made time and again in this Chamber. The noble Lord, Lord Low, also referred to the Autism Act. The Department of Health has provided clear direction that autism training is essential for community assessors to ensure that the needs of adults with autism are fairly assessed. Here I declare an interest as a vice-president of the National Autistic Society. The noble Lord, Lord Low, also told us of the too few local authorities that have awareness training in place— 70 out of 152 local authorities have still not got a proper awareness training in place as part of their equality and diversity training.

Crucially, a National Autistic Society survey found that one in three social workers did not have a good understanding of autism. This is, in part, because adults with high-functioning autism or Asperger’s syndrome can have less obvious, hidden needs that can be hard to pick up in any assessment. That is why the assessor must have the necessary training and expertise. Failure to assess needs can mean that autistic people and others with disabilities are denied the support they need to live independently. As we all know, this makes it much more likely that in later life they will have a significantly greater need for support.

We are simply asking in these amendments to ensure that the needs of people with autism and other conditions are expertly and properly assessed. In that way, one can ensure that people will have a good quality of life—the sort that we in this Chamber take for granted. We are not asking for much and I hope that the Minister will agree with that.

Photo of Baroness Wilkins Baroness Wilkins Labour

My Lords, I strongly support this group of amendments. The consolidation of the care and support legislation into one Bill is very welcome but not if it lessens existing essential provision. As both noble Lords have clearly described, the initial assessment of someone’s needs is critical and must be carried out by someone who is appropriately qualified and understands the impact of the impairment and the types of support that are needed. As we have heard, the Bill does not provide the same requirement as the current statutory guidance. I therefore hope that the noble Earl will recognise the critical importance of specialist assessment for people in these groups and allay the concerns of organisations such as Sense and the RNIB.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, I do not have a great deal further to add on this issue, given that we fully supported this approach in the earlier debate on our amendment. The noble Lord, Lord Low, and my noble friend Lord Touhig have made their case powerfully for the need for specialist expertise in assessing people with complex care and support needs—for example, deafblind people, people with autism and those with profound and multiple learning difficulties.

As the noble Lord, Lord Low, pointed out, the draft Bill originally provided for the regulations to specify the circumstances in which a person with expertise in a specialised matter must carry out the assessment on behalf of the authority. However, this was altered in the published Bill, with the only requirement being consultation with a specialist. Noble Lords are right to consider this to be a retrograde step and I look forward to the explanation from the Minister on this and an undertaking to reinstate in Clauses 12 and 27 the current approach, as the amendments propose.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, I thank the noble Lords, Lord Low and Lord Touhig, for bringing forward these amendments. I say straight away that I fully support the intention of Amendment 88M, which is to ensure that local authorities engage a suitable expert when carrying out complex assessments. The assessment will remain an integral part of the process of determining a person’s care and support needs and whether these meet the national eligibility criteria. To ensure that this is done correctly, it is essential that the person carrying out the assessment has the right knowledge, skills and competence. We heard from users of care and support during the engagement on the draft Bill about the importance of the assessor having knowledge of the condition that the person may have, whether they are, for example, a frail older person, a person with mental health problems or a person with autism.

Care managers and social workers are trained to carry out assessments. Their skills and experience will allow them to assess people with various conditions such as physical disability. There are, however, certain complex conditions where these skills are not sufficient to allow assessments to be carried out effectively. I am particularly thinking about a person who is deafblind—the example, given by the noble Lord, Lord Low. In those circumstances, most care managers would find it very difficult, if not impossible, to communicate with the person. It takes someone with expertise to carry out an assessment properly and identify the person’s needs and the outcomes they wish to achieve.

I agree with the noble Lords that, in such circumstances, the local authority must engage a person with the relevant expertise to carry out the assessment. That continues to be our policy. I also accept that if the adult’s condition is so complex at the assessment stage as to require the services of an expert in the field to provide advice, then it makes perfect sense for this to be repeated when the plan is to be reviewed. I should like to reassure the Committee that the Bill already has provisions in place to allow this joined-up approach to occur if an adult’s circumstances have changed in a way that affects the care plan. Clause 27(4) states that the local authority must, to the extent it considers appropriate, carry out a fresh needs assessment. In doing so, it would have to follow the requirements of regulations to consult a person with expertise. I hope I have reassured noble Lords of our agreement to the principles that they raise. In the light of what they have said in support of the amendment, I will look again at Clause 12 to ensure that we are giving ourselves the relevant powers to achieve our aims. I hope that the noble Lord, Lord Low, will find that undertaking welcome.

Photo of Baroness Barker Baroness Barker Liberal Democrat

In Clause 27 it appears that it is only the local authority that has the power to ask for there to be a reassessment, not the individual. Is there a provision somewhere in the Bill that enables an individual to trigger a reassessment, or does that power lie with the local authority alone? If the Minister does not have an answer to hand, perhaps he might write to me.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I shall do my best to answer my noble friend in a moment or two, but I am aware that I did not answer a specific question raised by the noble Lord, Lord Low, as to why we changed the wording in Clause 12(1)(c) of the draft Bill. We widened the scope of the powers following consultation—for example, to add a power to specify when an expert must be consulted —and in widening the powers the wording was slightly amended. We are happy to look at this again in order to make sure that it continues to meet the policy intention. In answer to my noble friend Lady Barker, I would refer her to Clause 27(1)(b), which refers to the right of an individual to request a review.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I am grateful to all those who have spoken in support of these amendments. I am also grateful to the noble Earl for his response. I thought we were going to be in the position where we had to say that we welcomed his support for our principle but we were disappointed that he was not willing to review the legislation to make sure that it put the principle into effect on the same basis as our amendment seeks to achieve. However, lo and behold, the noble Earl, not uncharacteristically, has come more than half way to meet us by saying that he is willing to look at the Bill again just to make sure that the policy intent, which he shares with us, is carried into effect. I welcome that very much. If it would assist the achievement of a consensus on this for us to meet, I would welcome that. I am very conscious of the calls on the Minister’s time as a Bill such as this goes through the House, so it may be that a meeting with officials would suffice. If further dialogue with the department would help to establish that we were fully on the same page on all this, I would welcome that very much. However, for now, with the very full assurances that the Minister has given us, I beg leave to withdraw the amendment.

Amendment 88M withdrawn.

Amendment 88N not moved.

Clause 12 agreed.

Clause 13 : The eligibility criteria

Amendments 88P to 88PC not moved.

Amendment 88Q

Moved by Baroness Grey-Thompson

88Q: Clause 13, page 12, line 17, leave out subsection (7) and insert—

“(7) Needs meet the eligibility criteria when—

(a) there is, or will be, an inability to carry out several personal care or domestic routines, and/or

(b) the individual will be unable to maintain control over several aspects of their day-to-day life, or

(c) involvement in several aspects of work, education, training or recreation cannot or will not be sustained, and/or

(d) several domestic, family and personal relationships cannot or will not be sustained, and/or

(e) there is a risk of abuse or neglect; they form part of a combination of needs described in paragraph (a).”

Photo of Baroness Grey-Thompson Baroness Grey-Thompson Crossbench 5:00 pm, 16th July 2013

My Lords, Amendment 88Q relates to the eligibility for social care. This is a probing amendment in order for the Committee to debate the most critical area of social care reform for working-age disabled people—that is, whether they are eligible to receive the care and support that they need to lead independent lives.

The Government’s regulations have now confirmed that the Care Bill will be nothing more than an unachievable aspiration for more than 100,000 working-age disabled people and more than 150,000 older people who have significant care needs but will not be eligible for support. It is not my intention to debate the nuances of the regulations that have been published in draft, and the Minister would, rightly, tell me that this is not the time or the place to do so. However, it is my intention to focus on the policy principle concerning who should be eligible for social care and support. I also thank the Minister in another place for taking the time to meet me yesterday to discuss my amendment.

The difference that good-quality social care can make cannot be underestimated. It is the difference between being isolated, living locked up and staring at the same four walls or being set on the path to living a full and independent life. The recent Time to Invest in Care publication described the situation faced by David, a 23 year-old man with autism and schizophrenia who currently lives with his parents. David needs support to engage in activities and look for suitable jobs. He needs guidance to gain a better understanding of social rules and to develop his awareness of dangers in the community. He also has difficulty in understanding boundaries in regard to friendships. As a result of receiving the right social care and support, David has a volunteering job and is now working towards moving into supported living and leading an independent life. This is the difference that the right social care support can make.

However, under the current eligibility system David has been assessed as having only moderate care needs. This means that, under the eligibility regulations set out alongside the Care Bill, David would not be entitled to support and his future would therefore be far less positive. Essentially, the Government’s regulations mean that David should not receive this formal social care support.

That brings me to the policy intention of the regulations. I very much welcome the pause in the proceedings of the Care Bill in this House so that time has been allowed for us to look over the regulations that have now been published in draft. I have read them with interest and there is much in the direction of them that is to be welcomed. They represent a real improvement on the current system. Particularly positive is the focus on well-being and, specifically, the inclusion of shopping and managing household finances in the definition of basic household activities. This appears to be a very progressive step which joins up the regulations with the very first clause of the Bill, which has been widely praised, and I congratulate the Government on that. It is also a very brave and positive step to end the postcode lottery in care provision.

However, I have very real concerns about the Government’s intention—as stated by the Minister in another place in his foreword to the draft regulations—that in terms of practical outcome the regulations will be equivalent to “substantial” under the current system. This will be devastating news to the hundreds of thousands of disabled and older people with significant care needs who will be excluded from receiving formal social care.

The Minister is aware that historic underfunding of the social care system, the pressures of an ageing population and a 33% reduction in local council budgets by 2014-15 have led to many local authorities raising the threshold at which disabled and older people become eligible. In 2005, 50% of local authorities set their eligibility criteria at “moderate”. By 2012, 84% had set the eligibility criteria at the higher level of “substantial” needs. The result is that since 2008 90,000 people have fallen out of the care system.

The excellent report, The Other Care Crisis, illustrates the impact that this has had. Four in 10 disabled people who receive social care support say that it does not meet their basic needs, such as washing, dressing and getting out of the house—all things that we take for granted. The Care Bill will not resolve this crisis in care if the regulations are set at the level currently proposed. In fact, by setting a national minimum threshold at a level which maintains this crisis, the Government appear to be reducing their ambition for their social care reforms.

One point which has not been picked up is that the Government also appear to be reducing their ambition for the cap on care costs. While it is a welcome and important measure to attempt to cap the catastrophic costs of care that some people face, particularly in their old age, the Government have made it clear that the cap will only be triggered once an individual has been deemed eligible for care. Setting the bar for eligibility too high effectively means that there will be hundreds of thousands of people who think that they will not have to sell their homes to pay for care in their old age, yet will not be eligible for the cap itself. They will still have to pay for the cost of their care, even well above the £72,000 threshold, unless they are deemed eligible by their local authority.

For working-age disabled people the cap on care costs is irrelevant. The recent joint parliamentary inquiry, co-chaired by my noble friend Lady Campbell of Surbiton, highlighted the fact that the introduction of the cap was never designed to answer the care crisis for disabled people under 65. The inquiry was clear that the most crucial aspect of reform for working-age disabled people is where the eligibility for care is set. For them, this is the difference between living an independent life and spiralling into crisis.

I also have very real concerns that those disabled people who are set to lose out as a result of the Government’s welfare reforms will be the same people who will lose out on social care. It is highly likely that an individual who has significant care needs, but who falls just short of the current threshold, will be one of the half a million disabled people who will not get the personal independence payment under the new system. This means that not only will the social care that enables them to live independent lives be beyond their reach, but their financial independence will also be threatened further.

It appears to me that there is a clear group of disabled people whom the Government deem not quite disabled enough to receive support. Providing them with just enough support to remain independent will prevent them spiralling into crisis, costing local authorities much more money in crisis emergency care. I also believe that there is a clear economic argument to be made here. Economic modelling, carried out by Deloitte and published in the Ending the Other Care Crisis report, found that an investment of £1.2 billion in a lower eligibility threshold, equivalent to the current “moderate” level, would lead to substantial returns across government. This would include a £70 million saving to central government through increased taxes and reduced welfare spending. There would also be a £570 million saving to the NHS and local government through the avoidance of expensive crisis care.

The Government made a very welcome investment of an additional £2 billion at the recent spending review. I urge the Minister to use this money to invest in a lower national eligibility threshold, not just to ensure that his ambition for a care-based system on well-being becomes a reality, but for the savings it could generate as well.

In conclusion, as Members from across the House have repeatedly made clear, the Care Bill is a very good piece of legislation, and is welcome. However, we must make sure that disabled and older people who have significant care needs do not fall out of the social care system. If the eligibility threshold continues to be set at the level the Government have proposed, hundreds of thousands of disabled and older people will be shut out of the care system. There will be real concerns that the Government’s admirable focus on well-being will be far from reality for these people. I beg to move.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I am glad to support Amendment 88Q, put forward by the noble Baroness, Lady Grey-Thompson. As she has explained, the amendment seeks to ensure that the national eligibility threshold, a welcome feature of the Bill, is set at a level which will not exclude this group of more than 100,000 disabled people with significant needs from the social care system.

I would like to focus particularly on the role of the eligibility threshold in creating a truly preventive care system. While I welcome the explicit duty on local authorities actively to take steps to prevent delay or reduce the need for care and support, I fear that the regulations published last week on the national eligibility threshold will impede the realisation of this vision. In confirming their intention to set the threshold at a level equivalent to “substantial” under the current criteria for fair access to services, the Government would exclude more than 100,000 disabled people with moderate care needs from the care system. These are people who need support to get out of bed in the morning, wash, eat, get out of the house and participate in the community—the most basic of tasks that you need to be able to do in order to live a fulfilling life.

Moreover, denying disabled people with moderate needs the care and support they need is a false economy. If their needs are not met in the care system there is a real risk that they will escalate to a point where they have to be dealt with further down the line once they reach crisis point. This does not come cheap. It could lead to longer hospital stays, frequent readmissions, even the need for residential support, not to mention the lost tax revenue resulting from disabled people having to give up work as a result of losing social care support. This happens in one in three cases of working-age disabled people who need care.

Take, for example, the case of Elizabeth, of which I have been made aware. She used to have seven hours of key worker support a week to help with managing her bills and shopping. Following a letter from her council she was told, with no consideration of the impact it would have on her independence, that her hours would be reduced to three per week. As a consequence of losing this support she fell into a crisis. As she said, “I did have a job—I was working with disabled people—but I left because I couldn’t cope. I thought it wasn’t fair on the clients. I was going through a bad time, overdosing a lot”.

This case illustrates how only a small amount of timely support can pay real dividends. Support with shopping and managing her bills helped Elizabeth maintain an independent life. However, as a consequence of losing her support she was left in crisis, resulting in her making several suicide attempts and becoming reliant on more expensive medical services.

Under the current draft regulations Elizabeth would be shut out of the care system. I have real fears that cases such as hers will be replicated up and down the country. Indeed, despite the Government’s supportive words about prevention I am concerned that they are effectively regulating for prevention to be taken out of the care system. The consultation document published last week on the draft minimum eligibility threshold states that for those people who are not eligible for care— namely, the 100,000 disabled people with moderate care needs—local authorities will make available universal support, including information, advice and preventive services.

However, this implies that coverage of such services is comprehensive, consistent and of adequate quality when we know that this is not the case. The reality is that many such services have already been axed or are at risk of closure. Indeed, research by the Red Cross has found that nearly two-thirds—64%—of councillors said that their local authority had cut or frozen funding for prevention and lower level social care since the last local elections. This means that universal services will simply not have the capacity to provide the adequate preventive support that the Government intend. People who are not eligible for care will continue to face a postcode lottery of support and will be allowed to fall through the gap between the care system and universal services.

I end by emphasising that setting eligibility at a lower level is the essence of prevention. We cannot have a system where you have to reach crisis point before you can get the support you need. Early intervention and preventive support can also have significant financial benefits. Research undertaken by Deloitte on behalf of disability charities found that investing in people with lower levels of need provides a net positive return of at least 30% to the Government. I therefore hope that the Government will be prepared to take these points on board and ensure that the regulations on eligibility underpin rather than undermine the vision of a truly preventive care system, glimpsed in Clause 2 but, sadly, not yet fully followed through in later clauses.

Photo of Baroness Wilkins Baroness Wilkins Labour 5:15 pm, 16th July 2013

My Lords, I strongly support this amendment. If the Government do not agree with the intention behind the amendment, it is clear that they accept, no doubt at the Treasury’s insistence, that the social care crisis should continue for years to come. As we have already heard, the social care system is currently failing to support four out of every 10 disabled people of working age to do the basic things in life such as washing, dressing, eating and getting out of the house. The proposed national eligibility threshold will do nothing to change this. The cap on care costs for these people will be a fiction; unless their needs are assessed to be at the equivalent of “substantial” under the current FACS criteria, they could well spend a small fortune paying for care, none of which would count towards the overall cap.

The public would be shocked to learn that the level of needs spelled out in the amendment in the name of the noble Baroness, Lady Grey-Thompson, is not covered by the cap on care costs. The Government envisage that people whose needs are below the proposed national eligibility threshold will be helped by the universal preventive services covered in Clause 2. However, as the Care and Support Alliance points out, many of these services have already been axed in the cuts or are at risk of closure. The £2 billion funding is very welcome, but we need the Government to be clear with the public that they are endorsing the continuation of the social care crisis unless a major shift of resources takes place.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat

My Lords, I, too, am delighted that these amendments have given us the opportunity to debate the eligibility criteria and I echo the comments of noble Lords who know better than I do how this will affect them. Eligibility is a critical issue, which affects both disabled people and older people with care needs—disabled people account for one-third of the people affected by the Bill and elderly people the other two-thirds.

The Joint Committee warmly recommended the introduction of a national minimum eligibility threshold as a key way of resolving the current postcode lottery in social care. The new eligibility framework and national threshold proposed in the Bill will go a huge way to alleviate the lottery of care and will be vital in ensuring that there is more clarity and consistency in the provision of care for disabled people and the elderly in England.

The focus on well-being in the Bill was hugely welcomed by the committee. This principle is the thread that runs through the Bill and will ensure that the care system not only delivers basic support but promotes older and disabled people’s independence, allowing them to realise their potential through participating more fully in their communities. This is a bold vision for the future and one that could truly revolutionise the care system. It is therefore key that these two elements of the Bill work seamlessly together so that the well-being principle is at the forefront of the Government’s mind when considering who will be eligible for care, something that the committee explicitly recommended in its report on the Bill.

However, as the Government have rightly recognised, social care is not merely about allowing people to “survive” but about enabling them to live full and independent lives. The Bill explicitly places a duty on local authorities to provide care that promotes the well-being of individuals. In a conversation yesterday with the Minister for Care and the noble Baroness, Lady Grey-Thompson, it was acknowledged that the draft regulations, which have already been referred to in this debate, were just that—draft. Much more can and needs to be done to make them asset or strength-based. Can my noble friend ensure that the work on the draft regulations proceeds at pace so that they are fit for purpose and meet the needs and requirements of all within the scope of the Bill? Can he also ensure that any work involves those from the sector and expert Members of this House?

Photo of Lord Rix Lord Rix Crossbench

My Lords, the Minister knows perfectly well where I stand because I already talked about eligibility at Second Reading and in the debate last week on the future funding of health and social care, led by my noble friend Lord Patel. I was backed in that part of the debate on the question of someone having to reach a level of substantial disability before becoming eligible for care. It should be the right of all people with a disability at least to be assessed properly, from the lowest level of disability to the highest. A level may be set where tens of thousands of people are excluded, such as people with a learning disability. Many are already being excluded by local authorities and being denied the use of day centres, or whatever. I can only plead with the Minister to say something which would give a glow of optimism to all of us who are totally and utterly opposed to the level which the Government are likely to set.

Photo of Lord Touhig Lord Touhig Labour

My Lords, I support Amendment 88Q, which was so powerfully moved by the noble Baroness, Lady Grey-Thompson. I certainly welcome the Government’s intention to establish national eligibility criteria, so that local councils across the country will be required to provide care for all those with a minimum level of need. However, I share the concerns which were so well articulated by the noble Baroness and the noble Lord, Lord Low of Dalston, that setting the fair access to care services criteria at “substantial” is simply plain wrong. It is wrong because it will exclude many people who I know with autism, and who have a low-level need of support. They will no longer be able to live independently if the level is set at substantial.

Setting the threshold at this level also seems to be running counter to the Government’s stated intention in the Bill, which is to focus on prevention. The requirement for people to have a physical or mental impairment to qualify for support could mean that those without a diagnosis will be excluded and miss out altogether. A great many people with autism do not get a diagnosis. I have been dealing with a case recently where people have been waiting four years to get their daughter diagnosed. I join the National Autistic Society—again, I declare an interest as a vice-president—in urging the Government to reconsider this and set the threshold at something equivalent to “moderate”. That is by far the fairest and best way to do it.

I make no apology for saying something which I think I have said about three times in this Committee: there is substantial evidence from the National Audit Office and NICE to indicate that investing in services for those with a moderate need is cost-effective. New economic modelling by Deloitte, published recently, shows that every £1 invested in support for people with autism and other disabilities who have moderate needs, generates a return across the piece of £1.30. That is not to be ignored and should be part of our consideration. There is much merit in this and I rather feel that the Minister, who is a decent and honourable man, will see that there is. I am sure he is going to give us some good news; at least, I hope he will.

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, I would have added my name to this amendment because it is excellent and necessary. I, too, hope that the noble Earl will see the sense of it. Certainly, people’s fears that the Government would propose to set the national eligibility threshold too high have been confirmed. Rather than celebrating the achievements of councils that have been able to provide highly valued, innovative and low-cost services to people with low and moderate needs, we are instead to fall in line with the majority of local authorities, with the false hope of avoiding financial strain. Failing to provide services to people with moderate care needs is, at best, a missed opportunity to encourage preventive care and significantly improve the quality of life for a highly disadvantaged group of people. At worst, we are leaving a considerable proportion of people with a lifelong disability to fend for themselves.

Case reports of those recently excluded from receiving support are extremely troubling. We have heard some examples already today with some people losing all daycare provision and facing an isolated life at home. Other case reports demonstrate the importance of lower levels of support. I want briefly to give the example of Frances, a middle-aged woman with a mild to moderate learning disability who has always struggled to understand and manage bills. Since receiving a few hours support a week she has finally had relief from receiving constant threats and eviction notices. How long will her support survive before she is declared ineligible? Clearly the resources of the state are limited but they need to be used wisely, and I believe that our care system must encourage and incentivise local authorities to provide lower intensity interventions that can make a difference to the quality of life for many people.

On the face of it, opting for a moderate national eligibility threshold may sound as if it would require considerable additional funding, but providing these services to a group who by definition are often highly vulnerable and disadvantaged could result in great savings by avoiding more costly acute care later. I hope that the Government will rethink this amendment.

Photo of Baroness Greengross Baroness Greengross Crossbench

There are vast numbers of older people—for whom this Bill is designed, in terms of quantity—who we know want to stay in their own homes in their community. Early intervention can make that possible. If we delay, the alternative is crisis-driven. It leads to many older people going into expensive care homes where they do not want to be and from which they do not emerge again or into hospitals, adding to the problems we know about with frail elderly people. I very much hope the noble Earl will reconsider and enable people with moderate needs to have access to services.

Photo of Lord Warner Lord Warner Labour

My Lords, I hesitate to intervene in the debate on Amendment 88Q but I feel under some obligation to share with the Committee some of the thinking of the Dilnot commission where we went into this issue and set out our views in our report. I declare my interest as a member of that commission. I suspect that what I am going to say may be thought of more advantageously by the Minister than by those who tabled the amendment; however, it is important that we consider these factors.

First, we made it very clear in the report that,

“we believe that those who develop a care and support need during their working life should be assessed in broadly the same way as an older person”.

We tried to create an architecture that was reasonably consistent between the needs of those of working age and older citizens. Secondly, when we were asked to undertake this assignment we were asked to consider the feasibility of introducing this and the affordability of the changes. We wrestled with this quite a lot in our deliberations but we concluded in recommendation 6 of the report:

“In the short term, we think it is reasonable for a minimum eligibility threshold to be set nationally at ‘substantial’ under the current system”.

Our concern in doing that was not just that we were mealy-mouthed stooges of the Treasury but the overwhelming amount of evidence given to us about underfunding of the adult social care system over a long period. We considered that and said in the report that it was seriously underfunded and that funding had failed to keep pace with demographic changes in people of working age and those who were not. We thought that the deficit had to be made good but that that was a matter for the Government of the day and would need cross-party consensus if improved funding for social care was to be maintained.

We were trying to be realists in saying where we could begin this scheme. We were not saying that the threshold would be set at substantial for ever but that if we had a hope in hell of getting these changes made—this issue has been around for 10 to 15 years and has not been resolved and we had achieved a reasonable consensus among all stakeholders and across the political spectrum—one of the key issues was that the recommendations should be affordable. Given the deficit funding, we could not see how in the short term you could end up with eligibility criteria that would be more generous than substantial, which is where, in reality, most local authorities had ended up, whatever the rights and wrongs of those kind of considerations. That is where we were. We wanted a consistent architecture between working age and non-working age; we wanted practical proposals that would be implementable in the reasonably short term and we recognised that there was a deficit in the funding that had to be made good before you could get this new set of arrangements off the ground and improve them over time.

The Government deserve a lot of credit for the way they have simply accepted our recommendation that the FACS system was opaque and totally misunderstood or not understood at all by most of the public. They have abandoned a banding system that was a poor servant to comprehensibility about the way the system operated. They have made a pretty good first shot at draft eligibility criteria in their draft regulations, moving away from that discredited banding system under FACS.

In that situation, it is very difficult to foresee circumstances in which we can go from where we are now into a new cap system which is consistent between working age and non-working age and make the leap beyond a national threshold of substantial. You could argue that as we are being brave and making this change, we should become braver. The argument against that approach is that we would raise expectations among a lot of people of working age or non-working age about what they will get when the financial reality at the local level is that they will not get it because there will not be the resources to deliver those services. That would be a cruel deception. The only way to break out of that is to say that we will take one particular group—those of working age—and deal with them differently in the eligibility criteria for meeting needs from the older age group. If we are going to keep consistency between those two age groups, we have to accept that at present it is very difficult to introduce this system with eligibility criteria that are substantially more generous than “substantial” under the present FACS system. I fully accept that that is not likely to be a popular view and that it will mean that some people will not get the services they need and may deserve, but—and this is a big but—if you look at the characteristics of this system, even if people do not get free services, they still get a guarantee of an assessment of their care needs and advice on how to meet those needs. That is a lot better than the circumstances that they are faced with under the current system.

Photo of Lord Rix Lord Rix Crossbench 5:30 pm, 16th July 2013

How is it that the commission found that people with disabilities and elderly people helped to make up the deficit? I would have thought that they were the very last people in this country who should forgo support from the state system.

Photo of Lord Warner Lord Warner Labour

I do not think we want to have a debate on our report, but I suggest that the noble Lord reads Chapter 2 which sets out the arguments why we should have consistency between the two age groups and why there was a fairness issue about that. If you distinguish between the two age groups, we favoured not being over-elaborate in means-testing working age people. If the noble Lord reads Chapter 2, he will see that we have in many ways discriminated in favour of working-age people in the treatment of them under a means-tested system. We were not being hard-nosed about it; we were saying that there was a general equity issue about treating people of working age and non-working age under the same architecture in this system. I do not want to detain the Committee with the Warner standard lecture on the Dilnot commission, but I recommend to the noble Lord that he refreshes his memory on Chapter 2, which sets out our arguments.

Photo of Lord Rix Lord Rix Crossbench

I would not necessarily put working-age people at the top of the list. I talked about disabled people. I was asking how the commission found that disabled people should be called upon to provide funding to support the pay-off of the deficit.

Photo of Lord Warner Lord Warner Labour

I do not think that we said that they should fund the deficit. We said how they should be treated under the architecture of a new system for funding care and support in the future.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I rise to make two brief points. First, this argument is not really about eligibility criteria but about money. It would be highly desirable to extend eligibility to people with only moderate needs, but we will find it extremely hard simply to cater for people with substantial needs unless the pot of money is substantially expanded. That is the elephant in the room. In all the discussions here, we are describing a marvellous new system, but we have not yet said how it will be paid for.

Secondly, I think that eligibility criteria are, to a degree, a bit of a phantom. We know that there is variation between authorities across the country: some accept people with moderate needs and some accept them with substantial needs. Quite aside from that, there is overwhelming evidence of enormous variety not between local authorities but within local authorities depending on who is assessing you and their state of mind. I quote in support of this a report from the National Care Standards Commission in 2005-06 and an excellent report by the PSSRU last year which tells you what actually goes on when people are being assessed. You might have a social worker who is terribly sympathetic to the older or disabled people she is assessing, and her boss who is, no doubt, sympathetic but who knows what budget he has to meet each month. In those cases, you simply get a wrestling match.

Thirdly, and to me most worryingly, once the cap comes in, people and their families will have a huge economic interest in demonstrating that they have substantial needs because that is when the meter starts ticking for them getting help. The danger is that those with, in some cases, the biggest needs will not be very good at gaming the system. Somebody with autism may be told by their parents to seem as bad as possible so they can get the meter ticking. They are not going to be very skilled at that, but the mums and dads of articulate middle-class people will have a different set of instructions to go on. There will always be a tendency to exaggerate—play up to the full may be a better way of putting it—their needs to get them graded as substantial.

I make these points, not to draw any firm conclusion, not even on the question of whether those with moderate needs should be catered for, but to say that more fundamental thinking has to go into deciding how eligibility criteria should be set and operated. This has not yet been apparent, even in the Government’s improved scheme which is encapsulated in the Bill.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, my Amendments 88R and 88S take us back to the amendments which I moved last week on eligibility criteria, inspired by the noble Baroness, Lady Campbell. Promoting individuals’ well-being, assessing their needs and those of carers, deciding on eligibility and the priority for needs to be met, developing them with an appropriate care and support plan, enabling the best use of a personal budget and/or direct payments and ensuring continuity of capacity during and after a move, such as a house move, are all processes or stages in which the active engagement of NHS professionals or services could have a positive effect on the outcome for individuals and carers.

In his response, the noble Earl said that he agreed and that the Care Bill already allowed for that kind of co-operation from the NHS through Clauses 1 and 3. He also pointed out that Clause 12(1)(f) sets out regulations where a local authority must consult with someone with expertise before undertaking an assessment. He went on to say:

“Regulations may also set out conditions around co-operation with the NHS, by specifying the circumstances in which the local authority must refer the adult concerned for an assessment of eligibility for NHS continuing healthcare”. —[Official Report, 3/7/13; col. 1272.]

That is helpful but I wonder if we should go further and place an explicit responsibility on the NHS so that we know it plays its part in full.

Amendment 88Q, tabled by the noble Baroness, Lady Grey-Thompson, and my Amendment 88T focus on the eligibility criteria in the draft regulations. We support national eligibility criteria. As the consultation paper says,

“the needs which are determined to be ‘eligible’ vary from one area to another”,

at the moment, with local authorities,

“able to set their own ‘eligibility threshold’ or ‘criteria’…This approach has led to perceived wide distances between areas and inconsistency in the offer made to local people, confusion and legal challenge. Because local authorities are able to vary the threshold over time, it also leads to the fear that people may lose their care and support if ‘eligible needs’ are reclassified locally”.

It is also very helpful to have the draft regulations available for debate and I have been able to discuss them with a number of stakeholders in the last few days. The noble Baroness is absolutely right that there is concern among many stakeholders about the level at which the criteria are set. This is reflected in the amendment in her name and those of the noble Lord, Lord Low, and my noble friend Lord Touhig. However, we must also take account of the points raised by my noble friends Lord Warner and Lord Lipsey because this is, in the end, an issue of funding. I hope that, when she winds up, the noble Baroness will address the issue of affordability. This may be a technical point, but this might be a matter of supply, since the Commons might well assert their own position in this regard. The noble Earl, Lord Howe, will, no doubt, advise us on that matter.

The guidance is very important and my noble friend Lord Warner said that it was a good first shot. I agree with him and it is certainly something to work on. However, could it warrant more parliamentary scrutiny than is normally given to regulations? We usually have a debate of about one hour; the conventions allow us to defeat a statutory instrument on very few occasions, and there is no opportunity to amend those regulations. We have benefited enormously from having a Joint Select Committee to advise us on the draft Bill: might it be right to have a similar process in relation to the regulations? I hope the noble Earl might be sympathetic to my Amendment 88T, which asks for a joint parliamentary committee process to look at the regulations before they are laid before Parliament.

Finally, I would ask the Minister to focus on the points raised by my noble friend Lord Lipsey. If we go towards national eligibility criteria, which we all support, can we be assured that there will then be a consistency between local authorities in their application and within local authorities? My noble friend is right to suggest that, even if you are covered by one local authority, how you are assessed and what support you get can sometimes be like pot-luck.

We will come later to the consequences of the introduction of Dilnot and the cap. I am concerned about the capacity of local authorities to deal with all the responsibilities being placed on them, not just in terms of funding services and support, but the capacity to carry out the assessments required by this legislation. We will talk later about the impact of self-funders. On commencement day, we can have hundreds of thousands of people needing to be assessed in order to make sure the clock starts towards the £72,000 cap. Alongside that, all the other assessments that are covered by this legislation will need to take place. There is a real worry that local authorities do not have the capacity to do this. I am always tempted to talk about the problems of the Child Support Agency, but when you have a commencement date there is a risk that many more people become eligible to be assessed at that point. There is a real risk that local authorities will not be able to meet the demands placed on them. This is why my noble friend Lord Lipsey is right to raise the issue of consistency of approach and capacity in assessment against the national eligibility criteria which will have to be undertaken by individual local authorities.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 5:45 pm, 16th July 2013

My Lords, this has been an excellent and very important debate and I thank all noble Lords who have contributed. I will, if I may, begin by picking up the remarks of the noble Lord, Lord Warner. He put his finger on a number of very important points. The system of locally-determined eligibility for care and support has been confusing to people for too long. It has been seen as an unfair system under which different levels of needs are met on the basis of where somebody lives. The changes we are bringing forward will mean that people’s entitlements to care and support will be much clearer and fairer and will reduce variation in access between local authorities.

That is our starting point and, once this legislation comes into effect, local authorities will not be able to reduce eligibility below the level set out in regulations. They will be able to meet other needs which do not meet the national eligibility criteria through the power in Clause 19, but they will be required to follow a consistent approach to determining eligible needs. That is a big step forward. We must not view these national criteria in isolation. The Bill does a great deal for people with lower levels of need, including through provisions on prevention, information and advice. One of the key aims in relation to assessment is to ensure that this is effective in identifying needs and support options for all people, in particular to help those who do not have eligible needs and to prevent deterioration.

Clause 13 provides for regulations which will set out the eligibility criteria according to which local authorities must meet an adult’s needs for care and support or a carer’s needs for support. Amendment 88Q seeks to add this detail to the Bill. I understand why the noble Baroness would like to see the eligibility criteria set out in this way. Some noble Lords have questioned the number of important provisions being introduced through secondary legislation. However, in this case I believe that it is necessary. It is important that we get the eligibility criteria right, otherwise there is a danger that we will put in place a system that is more confusing than the one that we are replacing.

There is advantage in having the flexibility of setting the criteria in regulations; once again the noble Lord, Lord Warner, gave a helpful pointer to this in his remarks. We are not proposing to amend the national eligibility criteria on a regular basis. However, we need the ability to amend the regulations if it is shown that the criteria need to change at some point in the future. Of course, we would consult fully before making any such change.

To help inform debate on this area, and as noble Lords have mentioned, on 28 June we published draft regulations for discussion which set out the proposed national eligibility criteria. I emphasise that these are intended to set a national minimum equivalent to the level operated by the vast majority of local authorities in the current system. As part of the spending round announced recently we have committed to provide funding that will maintain the same level of services when authorities move to the new system in April 2015. This is the beginning of engagement with stakeholders before we formally consult on draft regulations next spring.

Amendment 88T is concerned with parliamentary scrutiny of the eligibility regulations. The power to set the eligibility criteria in regulations is one of the most important in the Bill and is central to the new care and support system. For this reason the Bill requires the regulations to be made under the affirmative procedure. That will ensure that Parliament will consider the regulations before they are introduced and that it will also consider any future changes. As a matter of course the regulations will also be considered by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments. Therefore we do not believe that the regulations need further scrutiny by a Joint Committee of both Houses.

Amendments 88R and 88S in the name of the noble Lord, Lord Hunt, refer to matters that the Secretary of State should have regard to when making the regulations. Amendment 88R clarifies that the regulations may describe a person’s care and support needs by reference to the effect of needs arising from a physical or mental condition. The well-being principle at Clause 1(2)(a) includes physical and mental health, and this is reflected in the draft regulations. Regulation 2, which sets out the eligibility criteria, explains that needs are eligible needs if they have a significant impact on a person’s well-being and are as a result of a physical or mental impairment or illness. Amendment 88S proposes that a person should be eligible for care and support if they are in receipt of health services. As we debated earlier, a person can expect to receive an integrated service, but the determination of eligibility for care and support must be based on care needs only, rather than what health services a person is receiving.

A number of noble Lords suggested that the eligibility criteria should be set at moderate. As I have already said, this threshold is about establishing a minimum standard, not about taking away councils’ discretion to go further. Local authorities will remain able to meet lower needs locally if they choose to do so. Once again I was grateful to the noble Lord, Lord Warner, for his realistic assessment, and to the noble Lord, Lord Lipsey, for his comments. The eligibility criteria are intended to be equivalent to the level operated by the vast majority of local authorities in the current system. Independent research suggests that it would cost an additional £1.2 billion to set the threshold at moderate for younger disabled people and those with mental health needs, and a further £1.5 billion for older people. The combined total is £2.7 billion, which is a large amount to find in the current financial climate.

The pooled funding that we are proposing is important to factor in here. The noble Baroness, Lady Grey-Thompson, suggested that setting the criteria at moderate would save money. It is important to understand what the pooled funding is designed to do. Once again, the eligibility criteria should be seen as part of the overall system that we are putting in place. The pooled funding that we have announced will support better integration between local authorities in the NHS to improve outcomes for the local population. Part of this funding will be used to support local authorities and the NHS if they need to intervene earlier to prevent people’s health or care needs worsening. That will include many of the people with low or moderate needs.

The noble Lord, Lord Low, suggested that universal services do not have the capacity or resources to meet the aspirations that the Government have set out. As we have debated, the Bill sets out new duties on local authorities to provide universal services such as preventive services. These will also be supported by statutory guidance to make clear the expectations that we are placing on local authorities. Moreover, as I have mentioned, the pooled funding is relevant here. Among other things, that will enable preventive and integrated services, which also benefit the NHS.

The noble Baroness, Lady Grey-Thompson, said that it was not fair that the cap applies only to eligible needs. We will debate the Government’s proposals for the cap cost system in due course. However, access to the cap needs to be consistent in order for the system to be fair. Using national eligibility criteria will ensure that the cap applies on an equivalent basis in every area. The noble Lord, Lord Lipsey, commented that the eligibility criteria will not solve the huge variation within local authority areas due to variable assessments. First, the eligibility assessments will set a minimum threshold, which is important. Some differentiation in local implementation will remain, but as we referred to previously, we will require that local authorities appropriately train assessors to ensure that assessments are carried out properly, and we will publish guidance that will help to reduce variation.

My noble friend Lady Jolly asked whether we can ensure that the regulations become more asset-based and that that work involves experts. I can reassure her that the Bill already allows for the individual’s strengths to be taken into account in the assessment. In relation to the draft eligibility regulations I can assure her that we will engage widely with stakeholders to make sure that they deliver our policy.

Photo of Baroness Browning Baroness Browning Conservative

As far as the eligibility criteria are concerned there is another indicator, which I have not heard mentioned in this debate, and that is the number of people who challenge their local authority through the courts. Currently—from my own experience of case work, particularly with those on the autistic spectrum and with learning disabilities—many local authorities, when challenged legally on this, will settle before it goes to court. It is difficult to quantify what that number is, and I do not know whether what I am asking my noble friend is practical. However, in monitoring the success of whether the eligibility threshold is correct, particularly for those with low to medium needs, would the Government be prepared to use the number of applications for legal challenge and, if possible, of those who settle out of court before it goes to court? That is a very clear indication of where local authorities refuse because the current eligibility criteria have not been properly constructed. When challenged, they usually pay up pretty quickly.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 6:00 pm, 16th July 2013

My noble friend raises an important point, and I will take her suggestion away with me. As I mentioned earlier, however, a great deal of what this Bill will deliver is, so to speak, invisible to the naked eye, because it will ensure that those with lower needs will also be catered for in some way or another. I would like to hope that, for that reason, there will be less scope for challenge. I will write to my noble friend if I can supply her with our further thinking on that important topic.

I hope that what I have said will have reassured the Committee on these important matters. This has been a well informed debate. Our continued approach to engagement and consultation on the draft regulations will obviously allow us to consider many of these issues further, and on that basis I hope that noble Lords will not press their amendments.

Photo of Lord Touhig Lord Touhig Labour

Have the Government looked at the Deloitte economic modelling, which shows that support for moderate needs actually gives a greater return on the money invested? If not, will the Minister undertake to look at it before Report stage, so that we can discuss the savings that could be achieved?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I know that my officials have looked closely at that modelling. I have not yet had an opportunity to look at it but undertake to do so. However, in all such matters a judgment is needed as to how money is best spent. No doubt there are good arguments for the Deloitte point of view, but, as I have already outlined, we think that if one has to spend money of that order, it is better spent in the way that we propose. Nevertheless, this is a debate that we can usefully continue, and I shall be happy to do that between now and Report, and also at Report stage itself.

Photo of Baroness Grey-Thompson Baroness Grey-Thompson Crossbench

My Lords, I thank all noble Lords who have taken part in the debate, and also the Minister for his response. My amendment, which is about who is eligible and who is not, addresses the main crux of the Bill. I shall respond to a few points that noble Lords have raised.

I agree with the noble Lord, Lord Warner, when he says that we need to be realistic. However, my view still is that a small amount of support for working-age disabled people or older people—to keep them active, to keep them in their own homes and to support them in the best way—will actually save us money in the long term. Moreover, expectations have been raised about what older people can expect.

There is still a lot of work to do on the draft regulations to encompass the needs of working-age disabled people and older people, and to ensure that we keep the consistency. As things stand, giving someone the ability to have an assessment of the care that they can expect, but no actual support, does not help them; it just raises their expectations in a slightly misleading way. Again, disabled people and older people are paying the price of the economic downturn. Although this is not the right time for it, I would welcome a really honest debate on what the Bill is about. Is it about saving money, or is it about the well-being of certain groups of people? As ever, disabled people and older people seem to be at the bottom of the priority list.

I welcome the fact that the Minister has said that he will go away and look at Deloitte’s economic modelling. I think that we would probably agree to disagree about where that is at the moment, but it would be beneficial to try to find the best way forward in that context.

The noble Baroness, Lady Jolly, raised two very important points, the first of which was about the seamless transition. That is incredibly important. This is about not just who makes it to the support level, but what we do with people who are just outside that category. It is crucial that we get the advice and the signposting and all the support absolutely right, to make sure that people are not falling through the cracks. Her second point was that the regulations are still in draft. The Minister in the other place has offered me the opportunity to continue this discussion on the eligibility criteria, and I very much welcome that, because it is a recognition that the draft regulations can be improved.

It is also important that we have a constructive continued discussion on what the draft regulations mean in reality. There is lots of expertise both inside and outside your Lordships’ Chamber, and we must use those people to get to the best place, and use the time we will have in the summer leading up to the formal consultation. I do not see all this as just a negative discussion. There is much work to be done, but I see that as a huge opportunity to improve the regulations and get them into a much better form for everybody. At this stage, however, I beg leave to withdraw the amendment.

Amendment 88Q withdrawn.

Amendments 88R to 88T not moved.

Amendment 89 had been withdrawn from the Marshalled List.

Clause 13 agreed.

Clause 14 : Power of local authority to charge

Amendment 89A

Moved by Baroness Pitkeathley

89A: Clause 14, page 12, line 35, at end insert—

“( ) Services of an intimate nature can only be provided to the disabled person and not to meet a carer’s need for support and regulations may make provision about what is, or is not, of an intimate nature for the purposes of subsection (3).”

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I wish to speak to Amendment 89B as well as Amendment 89A, as they are both amendments about the circumstances in which a carer can be charged for services. Carers UK—I declare an interest as its vice-president—has estimated that carers save the UK economy £119 billion per year. That is a statistic that I never tire of giving your Lordships. Local authorities recognise the value and cost-effectiveness of supporting carers. As a result, very few local authorities charge for services provided to carers. The Government’s impact assessment for the Bill sets out current evidence on the cost-effectiveness of supporting carers, and refers to the benefits received from doing so: for example, preventing or delaying hospital or residential care admissions; sustaining the caring role; improving the health and well-being of carers; and, crucially, assisting carers to remain in or return to work.

The Bill includes a power to charge carers for services, and a power to charge for arranging services for carers. Given the benefits of providing support for carers, I shall argue that it would be counterproductive to charge carers and thereby reduce the take-up of support.

The current legislation under which support is provided is the Carers and Disabled Children Act 2000, which started as a Private Member’s Bill. Under the Act, services provided to a disabled person in order to meet the needs of the carer cannot include services for the disabled person that are “of an intimate nature”. It is for that reason that that same wording is used in Amendment 89A.

Interpretation varies concerning to whom, and by whom, services are provided, but the definition legally prevents carers being charged for a respite care service that includes personal care provided to the person whom the carer cares for. As I have said, very few local authorities now charge for carers services. However, given the difficulties with local authority funding, about which we hear constantly, I am concerned that more local authorities may consider charging carers in the future.

Following a recommendation by the Joint Committee scrutinising the draft Care Bill—on which I, together with several other Members of your Lordships’ House, served—the Government have sought to protect carers from being wrongly charged, by introducing the following wording in Clause 14:

“The power to make a charge under subsection (1) for meeting a carer’s needs for support under section 20 by providing care and support to the adult needing care may not be exercised so as to charge the carer”.

Although the intention of this wording is welcome, it does not provide any definition of what is a service for the carer and what is a service for the adult. So it does not prevent local authorities charging carers for services such as replacement care and other things that help them.

It is important that any potential conflict is resolved so that carers and disabled people have clarity about their personal budgets. Independent personal budgets can be useful in relation to managing options and direct payments. Whose budget is this to come out of? It will also be important when the carer count is introduced that we have clarity, so that the disabled person knows whether the cost of care is starting to accrue to their account.

Decision-making on whether services are designed to give carers a break or result in them having a break from caring is very variable at the moment. Some local carers’ services, for example, have experienced variations in approach from their local authority. I cite a particular example in which a local carers’ organisation that provides a sitting service—that is, replacement care, so that carers can take a break—operates with two neighbouring local authorities. One regards replacement care as a service for the cared-for person, including sitting services. The next-door authority allows carers to purchase a sitting service, as long as it does not include intimate care, with their direct payment. Varying interpretations mean that there is a disparity for carers in the same area. Some can access breaks, while some cannot. This creates difficulties for the service provider and for those who want to support carers.

In the current legislation, the Carers and Disabled Children Act 2000, services provided to the disabled person to meet the needs of the carer cannot include services for the disabled person that are of an intimate nature. My Amendment 89A seeks to reproduce that wording in the Bill to probe the distinction made in the Bill between carer services and services for a disabled person and to clarify how the current wording would prevent a carer being charged for respite or replacement care provided to the carer. Without a clearer definition of whose service is whose, negative consequences for the carer will inevitably result. Carers may be prevented from having a break; they may find that they are subject to charges for services that should be allocated to the disabled person; and social workers and others assessors’ time will be taken up in trying to allocate services to people.

I hope that the Minister, who I know to be totally committed to supporting carers, as are the Government, will accept this amendment to clarify the position with regard to charging carers. I beg to move.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I rise briefly—I fear that that will be the last time that I will use the word “briefly” tonight—to speak to Amendment 104ZB in my name in this group. This is another bits and pieces group; my amendment does not relate to the excellent speech just made by my noble friend Lady Pitkeathley.

Clause 64 enables a local authority to recover money owed to it in connection with the provision of care and support. A person’s failure to disclose any material fact would make them liable to recovery proceedings. However—and this is the nub—it would do so even if they had done so inadvertently. This seems terribly draconian and might well deter people from taking steps, such as asking for a direct payment, which they might perceive as carrying the risk of legal proceedings. This clause should refer only to misrepresentation, and the deliberate failure to disclose information, rather than incorporating, as it does, accidental failure.

These decisions of where to apply for help are taken at time of acute stress in many families. There may have been an incident, such as a fall or a stroke, which has changed the picture for that family entirely. At that stage, the last thing that people want to worry about is whether they have inadvertently failed to disclose some piece of information and will have legal proceedings taken as a result.

I cite an example given to me by Age UK, which was contacted by a husband whose wife has dementia. She has a private bank account that she will not let her family have access to, and discussions of financial arrangements upset her terribly, so he has not yet gained a power of attorney over her affairs. Despite knowing that his wife has assets, her husband is paying for everything relating to her care with his benefits and pensions. He feels that he could not make an accurate disclosure of her assets that would be necessary to get the benefits to which he is entitled. Imagine how that person would feel when faced with this clause and the danger that an inadvertent failure to disclose fully would lead to the local authority taking him to court.

Photo of Baroness Browning Baroness Browning Conservative 6:15 pm, 16th July 2013

In the case that the noble Lord has just mentioned, would there be any question of the lady concerned being assessed as not having capacity?

Photo of Lord Lipsey Lord Lipsey Labour

That could arise, I suppose, but it has not arisen in this case. I am not even sure—it is very difficult with these cases, and I do not know if it is even known—whether the man I am referring to has attempted to find that way around it. This lady gets distressed at the mere mention of financial affairs, so it is not surprising that he is ducking away from that. As the noble Baroness says, there could be capacity issues. In certain circumstances, clearly, there could be a court decision that she no longer has capacity to exercise discretion, but that is a long and difficult route to go down in the situation of this poor old man and his poor wife. That is the sort of situation that I am trying to avoid. I am not trying to open the door so that everybody can get away with claiming everything. I am simply saying that if people have inadvertently misled the local authority, the authority should not go after them in the courts to get its money back. It seems a moderate proposal, and I hope that the Minister will be able to respond positively to it.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

I shall speak to Amendments 89BA and 92ZZM. I very much welcomed the comments of the Minister at Second Reading, when he stated that the Government,

“intend to use regulations to ensure that services ... currently … provided free, including … minor aids or adaptations, remain provided free of charge”.—[ Official Report , 21/5/13; col. 826.]

That seems only right, since minor aids and adaptations are qualifying services under the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003.

The Government do not want to see local authorities charging for services that they are not permitted to charge for today. Clauses 2(3)(b) and 14(6) hint at this, explaining that regulations may prohibit local authorities from charging for particular types of support. However, the Bill should be explicit about what local authorities are prohibited from charging for.

I shall take the amendments in reverse order. Amendment 92ZZM relates specifically to personal budgets and would ensure that anyone needing care and support and requiring equipment or adaptations costing under £1,000 would not be financially assessed as part of a personal budget, which would effectively impose a charge for those items. In considering the amendment, will the Minister clarify how equipment and adaptations will be provided for in personal budgets? Will he ensure that regulations are unambiguously clear on the need for equipment and adaptations to remain free and for there to be no variations at a local level? The College of Occupational Therapists has some concerns about this.

I know that the Minister understands how important these provisions are to ensure effective preventive services that reduce both the demands on care services and the cost to local councils. In many instances, occupational therapists assist those requiring care and support by recommending the provision of equipment, minor adaptations and assistive technology, often resulting in recommendations for disabled facilities grants for safe management of progressive conditions and the moving and handling of people.

Equipment and adaptations are critically important, as they reduce the need for escalating care, protecting the individual and saving the resources of cash-strapped local authorities. Any reference to the provision of equipment and adaptations is notably absent from the legislation. However, these aids are critical for many people, and it is important that the Government are clear about how equipment and adaptations will be treated under the Bill. I hope that the Minister will agree not only that they should remain freely available but that they should not attract a charge by the back door when made the subject of a personal budget.

Amendment 89BA is a probing amendment to seek an assurance from the Minister that the provision in the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003, preventing local authorities charging for minor aids and adaptations under £1,000, will be maintained and to ask whether the £1,000 threshold, set 10 years ago, will be kept up to date.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I support all the amendments in this group. On these Benches one of our great hopes for a national system of criteria is that it will lessen the frequency with which people in different parts of the country are wrongly charged for services that should be free. It has always been the case that older people, and carers in particular, can find themselves being charged by a local authority for things that are in fact free under various different pieces of legislation, notably the Community Care (Delayed Discharges etc) Act.

All of these amendments have things to commend them. I will start in reverse order, with the amendment of the noble Lord, Lord Lipsey. He has hit on something that is a bigger issue than perhaps has been realised yet. When we were debating the pension credit legislation in this House, the noble Baroness, Lady Hollis, talked about the fact that she had taken over the affairs of an elderly relative. She was probably the one person in the whole of Britain who at that time knew exactly what the regulations were. Yet it was only after the person died that she discovered that they had a little account about which she had known absolutely nothing. Why? Because many older people put money aside to cover their funeral. That is the truth. It is something that is very important to them. They probably do not tell people about it. I am sure that they also have other reasons, but that is a very common one. It is not uncommon for relatives to discover such accounts, although they are not vast amounts of money. The noble Lord, Lord Lipsey, is absolutely right that if, in a circumstance like that, somebody was deemed to have transgressed the law, it would be unfair and unjust.

I also add support to Amendment 89BA, an amendment of the noble Lord, Lord Low of Dalston. I was lucky to serve with the noble Lord, Lord Best, last year on an inquiry into the availability of aids and adaptations for older people who need help to remain in their own homes. We discovered extraordinary variations across the country and heartrending stories of elderly ladies having to carry their very elderly husbands up and down flights of stairs on their back, in a way that was simply unsustainable.

I commend to noble Lords the policy that was adopted by the local authority in Hull. It occurred to officials one day that, truth be known, nobody really wants a ramp outside their door. So they abandoned their assessment procedure; they stopped sending social workers out to discover whether or not this was necessary. They saved a lot of money that went instead into direct services. That is a commendable approach, and one that probably saved the city of Hull a lot of money in immediate and direct costs. Would that that spirit could go into the implementation of this Bill.

Photo of Lord Warner Lord Warner Labour

My Lords, I rise briefly to support the amendment of my noble friend Lady Pitkeathley. As someone who has spent six years in the local authority salt mines, I say that one should never underestimate the capacity of any local authority, when times are hard, to scratch around for things by which they can raise some money—I say this with affection. If there is a scintilla of doubt in this legislation about the ability to charge carers for services, we should remove it immediately. Otherwise I would be willing to bet a reasonable sum of money that when there is a financial crisis in some part of the country at some point in the future, a bright spark in a local authority will light upon the chargeability of carers for particular services. I am not sure whether my noble friend’s wording is the right way of doing this, but her intention is absolutely right. I hope that the Government will take this issue away and make sure that this particular piece of legislation is totally fireproof in terms of the ability of local authorities to charge carers for services.

I also support the amendment of my noble friend, Lord Lipsey. Evidence was given repeatedly to the Dilnot commission about the distressed state that many people were in when they made key decisions about their family’s circumstances. I suspect that he is on to something important that affects quite a lot of people.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, these amendments under Clause 14 deal with the difficult area of charging for the care and support that we have established is required through assessment. The historic settlement of charging for social care but not for healthcare is being increasingly challenged and the obviously linked issue of funding for social care is ever present, as we have been reminded in today’s debates.

The common agreement about charges is that they should be fair and that the process for means testing should be as simple and as unintrusive as we can make it. Fairness in the eyes of the public means no postcode lottery, but the excellent work by my colleague Liz Kendall, our shadow Care Minister, has shown just how stark the variations are across local authorities today. This is something that we need this Bill to address. Why should charges for the same service be allowed to vary so much? This is seen as unfair and it is. I will be interested to hear from the Minister about this variability of charges and what actions the Government are taking to address it.

For many older people, claiming for any kind of help is hard. We need a system that is easy to use and we could do far more to integrate the various bureaucracies to minimise form filling and document checking and having to repeat the same information over and over again. We could use income information from the

Inland Revenue, for example, and we could unify all assessment frameworks and use passporting of entitlement to minimise bureaucracy and administration costs. Much of the detail is for the future in the regulations, but this is our opportunity to remind ourselves of key principles, such as fairness and simplicity, that should shape those regulations. Can the Minister tell us when the draft regulations relating to Clause 14 and charging will be published?

When they are published, the regulations themselves will inevitably be complex and disputes are likely. Dispute through judicial review or the courts is not the way. Will the Minister explain why there appears to be no response to appeal or conflict resolution processes contained in this part of the Bill? Why do many of the decisions made under provisions in Part 1 seem not to have some mechanism of appeal attached to them? The appeals system should be fair, easy to access and independent. Does the Minister acknowledge that this is needed?

On the specific amendments in the group, my noble friend Lady Pitkeathley has provided an excellent explanation of the importance of her two amendments, Amendments 89A and 89B. As usual, it is very hard to find anything additional to say when it comes to carers and carers’ rights after she has spoken. It is right always to underline our support for the provisions in the Bill providing statutory rights for carers, but there are still areas of concern that need to be addressed relating to means testing and local authority care charges, and the widespread fear among carers about charges as local authorities become increasingly strapped for cash.

Amendment 89A aims to make the distinction between what is a disabled person’s service and what is a carer’s service by using the wording under the Carers and Disabled Children Act 2000, and ensuring that personal services provided for the disabled person in order to meet the needs of the carer cannot include services of an intimate nature. There are very real concerns that without this the Bill would not prevent the carer being charged for a respite care service which includes personal care that is provided to the person they care for.

My noble friend has set out some of what are presumably the “unintended consequences”, to quote the Select Committee on the gaps and risks in the Bill that need to be addressed. It would be particularly confusing when trying, for example, to work out whether a service would be accrued to the care account under the capped system and whether a direct payment can be spent on a replacement care service. We need clarity on what carers and disabled people’s personal budgets and independent personal budgets can be used for.

Amendment 89B again focuses on the position of carers caring for an adult in the community receiving support under NHS continuing care. The amendment that was tabled last week sought to clarify who was responsible in these circumstances for assessing the carer. Today, the concern is to ensure that the NHS meets the cost of support services provided to a carer. The noble Lord, Lord Low, raised important issues about the provision of, and payment for, aids and adaptations in the home. It is a complex issue that causes deep frustration among those who are eligible in terms of knowing what is available, the bureaucracy involved, the time taken to assess and make adaptations, the availability locally of basic equipment such as grab rails, and, indeed, the different charging practices of local authorities. This issue also came to light around the bedroom tax, where properties which had been adapted were vacated and the new property then had to be adapted and the old one unadapted for the new tenants. Presumably, that was another unintended consequence. Adaptations of low cost can have a high value for the independence of older people and so again we should make it as easy as we can for them to get that support.

Finally, the amendment of my noble friend Lord Lipsey makes a strong case in relation to Clause 64 —this deals with a local authority’s powers to enforce debts owed to it—for trying to distinguish between people who deliberately supply fraudulent information on their finances and those who make mistakes or misunderstand what is required of them. The financial assessments for care and support are involved and complex and errors can occur with no intention to be dishonest or defraud. I hope that the Minister has taken note of my noble friend’s arguments and will consider how the Bill can be amended.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 6:30 pm, 16th July 2013

My Lords, not for the first time, I find myself in sympathy with the noble Baroness, Lady Pitkeathley, and the concerns she has raised about the Bill’s practical implementation. I am sure it is a shared view across the Committee that people should be supported to remain independent within their own homes for as long as possible. As the Bill recognises, supporting carers and preventing or delaying the need for care and support are both vital to achieving this goal.

On the specific amendments tabled by the noble Baroness, our previous debate shows the value and importance which noble Lords place on carers and the need to support them. I thank the noble Baroness for her recognition of the significant improvement that this Bill will make. I reassure her that the Bill makes it clear that local authorities cannot charge carers for services provided to the person being cared for. Our clear view is that Clause 14(3) puts this matter beyond doubt, and this would include services of an intimate nature provided to the person being cared for.

Local authorities need to retain the flexibility to meet the needs of carers in the most appropriate way. This might include providing services to the adult needing care such as feeding them or taking them to the toilet. Providing these services is necessary to allow carers of people with the greatest needs to take a well earned break from their responsibilities. However, Amendment 89A would create a legal barrier which may hinder the provision of support to carers. For that reason, I do not warm to it.

Amendment 89B would ensure that services provided to carers were provided free of charge by the NHS. Local authorities currently do not usually charge carers, as they recognise the vital work that they do. In some cases, however, local authorities may charge a fee for services provided directly to carers, such as when the local authority arranges a trip for them. We want to continue to give local authorities this flexibility.

The noble Baroness expressed a worry about the scope for different interpretation about who is the beneficiary of a particular service. In most cases, I suggest that it will be clear what is being provided to the adult needing care and support as opposed to the carer. However, statutory guidance will be provided to help to promote national consistency on that point. I hope that that reassurance will provide the noble Baroness with the wherewithal to withdraw the amendment for the time being although I will, of course, reflect further on what she has said.

On Amendments 89BA and 92ZZM, I reassure the noble Lord, Lord Low, that we intend to maintain the existing entitlements to aids, minor adaptations and intermediate care in regulations. Aids and minor adaptations costing up to £1,000 will continue to be provided free and without the need for a financial assessment. We will shortly be consulting on the implementation of our reforms to care and support funding, which will inform the future regulations. In designing the new regulations, we will consider whether we should update the list of services which must be provided free of charge. However, we must bear in mind that further limitations on the ability of local authorities to charge would reduce the resources available to support people with the greatest needs. The draft regulations will be subject to a further public consultation to ensure the final regulations are based on the best available evidence.

As I indicated earlier, we are introducing a fairer system, including a cap on care costs. It is right that people who can afford to do so should continue to contribute a fair amount towards their care costs, and when they do not, Clause 64 allows local authorities to recover these costs as a debt. I understand the desire to protect people who make mistakes or accidentally fail to disclose relevant information. However, I fear that Amendment 104ZB, which would require local authorities to prove intent, would result in complex and expensive legal cases. Intent is not always easy to prove. Local authorities will not be able to charge people more than their due debt and the costs incurred in recovering that debt, and we think it is right that they should be able to do so even if someone has made a genuine mistake. This is not about instituting recriminations but about correcting mistakes. We should surely allow local authorities to take action in such a case if we believe in protecting public money.

Photo of Lord Lipsey Lord Lipsey Labour

I am a bit bemused. I cannot see where my amendment states that local authorities have to prove intent, nor do I see in the noble Earl’s argument any reason why the person who makes a mistake should have to pay not only the extra money they have received but the cost to the local authority of retrieving that money. That seems to me a punishment too far.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I had rather assumed, perhaps wrongly, that if, for whatever reason, there has been a discrepancy in the declaration made by a person, it either has to be a genuine error, or something more deliberate, in which case there is intent involved. I am not sure what other explanation there could be. That was why I read into the noble Lord’s amendment what I did.

I think that the ability of a local authority to recover costs ought to act as a disincentive to people to be careless about what they are doing. They should make sure that what they declare is accurate and should be made aware that if they make a mistake, it might prove a little more costly to them than just rectifying the error. This is not about imposing recriminations on people. It is right for local authorities not to be out of pocket when other people out there could be benefiting from the public money that is available.

Photo of Lord Lipsey Lord Lipsey Labour

The noble Lord has interpreted my amendment one way; I have interpreted it in another way. It may be that the Bill, either as it is or as amended, is not quite right. Can the noble Lord agree that we have further discussions to see if we can find a way forward that satisfies us both?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I am more than happy to discuss this with the noble Lord and I apologise if I have misunderstood his amendment. I certainly would not wish to do that.

The noble Lord, Lord Low, asked me how equipment and adaptations will be addressed in a personal budget. Those costs that are intended to meet eligible needs will be included in the personal budget, or the independent personal budget, and will count towards the cap. We intend that aids and minor adaptations will be provided free of charge however they are funded, including by way of direct payments.

The noble Baroness, Lady Wheeler, asked me when the regulations under Clause 14 will be published. We intend to publish the draft regulations after the forthcoming consultation on funding reform. This consultation will enable the regulations to be based on the best available evidence. She asked where are the provisions about complaints and redress in relation to charging and, indeed, all of Part 1. Existing complaints provision for adult social care is through regulations. The provisions of the regulations mean that anyone who is dissatisfied with the decision made by the local authority about their assessment or eligibility would be able to complain to the local authority and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations.

The Government recognise that the existing framework allows local authorities flexibility in the development of the process for dealing with appeals and challenges. There are options for local authorities to introduce independent elements to the complaints process through a range of formal and informal measures. Each local authority will therefore have a different process and we appreciate that local variation will result in varying user experiences. If a complainant is not satisfied with the response from the local authority, they can refer the case to the independent Local Government Ombudsman.

I hope that those remarks will be helpful and that the noble Baroness, Lady Pitkeathley, will for now be able to withdraw her amendments.

Photo of Lord Warner Lord Warner Labour

Can the Minister clarify his response to my noble friend’s amendment that there would be statutory guidance? I know that I have been away for a few weeks, but before I left, the Government had turned their back on a statutory code of guidance, as I understood it. Has there been a change of heart in my absence?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 6:45 pm, 16th July 2013

My advice is that the guidance that we will issue on this topic will be binding on local authorities. It will not be the type of guidance which merely points to best practice, which local authorities are free to ignore. The last thing I wish to do is to mislead the noble Lord and if I have done so, I apologise in advance and I will clarify that point to him and to the entire Committee.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I thank all noble Lords who have spoken in what my noble friend Lord Lipsey called this “bits and pieces” group, although charging and access was the theme that linked the amendments. I am naturally disappointed that the Minister cannot accept my amendments, but reassured by his restating his intention so far as carers and charges are concerned, and by the statement that he has now given twice about the guidance being binding on local authorities with regard to charging. I am also grateful for his offer to reflect on my concerns, because I am not entirely certain that we have totally removed what my noble friend Lord Warner called “the scintilla of doubt” which might allow local authorities at some point in the future to charge carers. For the time being, I beg leave to withdraw the amendment.

Amendment 89A withdrawn.

Amendment 89B not moved.

Amendment 89BA not moved.

Clause 14 agreed.

Clause 15 : Cap on care costs

Amendment 89C

Moved by Lord Lipsey

89C: Clause 15, page 13, line 30, leave out from “is” to end of line 33 and insert “the number of years for which people are expected to contribute to their care costs”

Photo of Lord Lipsey Lord Lipsey Labour

Now for something completely different. These amendments hardly deserve the epithet “probing”—more a light examination by the doctor’s fingers. What they do is, in essence, simple. They substitute for the monetary cap proposed by the Government a cap based on the number of years a person has been receiving care at a substantial level.

The origins of my amendment were in a proposal floated in the minority report to the 1999 royal commission on the funding of long-term care. As I was the author, I remember this quite well. It did not even gain the support of a majority of the minorities, as the noble Lord, Lord Joffe, declined to sign up to it. Nevertheless, it has had a life after death and I think it can claim paternity —the noble Lord, Lord Warner, knows better than I—for the cap proposal in the Dilnot report, because it shares precisely the same objective as the cap: to limit the costs of care to those unlucky enough to require it for a long time as it costs a lot of money. That is the aim of the proposal.

When I first saw the Dilnot proposal, I thought that it was clearly superior to the one in the minority report—everyone would spend the same before the state kicked in. But as time has gone on I have become much less sure of this as two defects of the Dilnot version have become more apparent. The first is that it is extremely complex for local authorities to administer. There have been figures of between £300 million and £500 million floating about for the cost of administration, before money is handed out to people. That is because, to implement the Dilnot report, it is necessary to track each individual from the time the meter starts ticking to see exactly what they are spending on care or, rather worse, to see exactly what a local authority thinks it should be providing in spending on care for each individual—a sort of abstract concept that has to be turned into a concrete figure.

As will be apparent from other amendments I have tabled, I am not even confident that local authorities will have their systems sufficiently sorted to manage it by the proposed start date of April 2016. There is a non-negligible risk that this will prove to be universal benefit mark 2, a scheme that will in practice prove impossible to operate. I hope I am wrong but the fact is that, putting the best face on it, it will cost a lot of money to implement without any of that money going to better care, and not a penny of it going to the people who should be helped. In the Government’s ghastly jargon, it will be money spent on bureaucracy, not front-line services. That is my first query about the Dilnot way of doing things.

My second point is equally worrying. The Dilnot system is terribly difficult for anyone normal to understand. When do you start to get it? How much is assessed as being the cost of the care that you may get from the council? How much have I spent? How much of that counts towards the cap? People may say, “My care costs differ because my condition goes up and down”. All those factors are crucial if people are to know what they spend out of their own pockets. I am sure that better-off people who are in full possession of their faculties will work it out, but we know that 40% of people over 80 have some degree of dementia and are therefore not in full possession. Certainly, those with computer-literate families and sons or daughters who happen to be independent financial advisers will crack it all right. Their claims for substantial care needs will be there on day one in a large pile on the local authority’s desk. They will know every penny that has been spent, but are we confident that everyone else will? Just explaining the system and the process of communication, to which we shall come later, will be jolly difficult. It should be remembered that more than half the people think that the state at the moment pays their entire care costs without deductions. There is a long way to go from there to understanding Dilnot.

By comparison, a time-based system is simplicity itself. You have an assessment, and if it shows that you need substantial care or its equivalent under the new system, the clock starts ticking. Five years later, you no longer have to pay the cost of your care. That is very simple. Five years is what you have to find. In my variant, the council would then pick up the whole cost, not some notional cost, as under the Dilnot cap, and you would simply have to find your hotel costs where applicable. That is simplicity itself and, incidentally, it makes it much easier for you to insure privately. Private insurance companies are going to struggle to know how much their liability will be under the Dilnot system. Under a time-based system, they will know that they have a liability. If you live more than five years the state will pick up the bill and the only bit that they will have to cover is the first five years.

How does that compare in generosity with Dilnot? It will probably be about the same. The Dilnot cap would be reached by someone in residential care rather more quickly than the five years but, on the other hand, as you are going to be paid only in part if you reach the cap, you may not be any better off. I suspect that for those receiving care in their own homes my proposal will prove to be more generous than Dilnot’s £72,000 cap. In most cases, people will take more than five years to reach the £72,000 and it may therefore be slightly more generous to people who live at home, which is no dreadful thing.

Sunny optimist though I am, I do not expect the Minister to go snap on my scheme today. I am not even sure that I do. He and his colleagues had enough trouble getting the Government to sign up to Dilnot, and they will not want to execute any unnecessary U-turns now. However, I suggest that he puts this proposal in his bottom drawers because it may become apparent in six, 12 or 18 months’ time that Dilnot, as encapsulated in the Bill, is simply impossible to administer on any realistic timetable. When that day dawns— I hope it does not—my scheme may come in handy. I beg to move.

Photo of Lord Warner Lord Warner Labour

My Lords, my noble friend will not be surprised if I gently defend the Dilnot commission’s recommendations on a cap. His final suggestion of putting his proposal in the bottom drawer was actually rather good. I remind the House that as a young civil servant I was once the recipient of a Health Minister’s regular manuscript notes asking me about progress on various matters. They ended up in my bottom draw because he had usually forgotten about them. Putting this recommendation in the bottom draw may be the best thing to do.

I think that my noble friend has forgotten the task that the Dilnot commission was set. It was not the case that we just brought a cap out of the ether and projected it on to an unsuspecting world. We were trying to fulfil the task that we were given, which was to make recommendations on how,

“to achieve an affordable and sustainable funding system … for care and support for all adults in England, both in the home and in other settings”.

In particular, we were asked to examine,

“how best to meet the costs of care and support as a partnership between individuals and the state … how people could choose to protect their assets, especially their homes, against the costs”,


“how both now and in the future public funding for the care and support system can be best used to meet care and support needs”.

I suggest that to fulfil those requirements it is probably better to concentrate on money and try to achieve a credible system than to concentrate on time. One of our main purposes was to project the idea that if we could get citizens to be more engaged with the realities of a means-tested adult social care system, they would plan for the future in a better way than at present. Money is the currency in which they would be thinking, to all intents and purposes. That is why we came up with the idea of a cap.

My noble friend is right to ask how well prepared local government is to introduce this system. There are some genuine concerns about that, which we will debate later. However, he is a little pessimistic about our ability to develop, perhaps over a longer period than the Government might like, a taxi-meter system that works for the Dilnot proposals. They are essentially a taxi-meter system. You need to clock up the costs that are being spent over time until you reach the cap. There is a thing called IT; it is not always well used in the public sector but it is possible to take the pain out of all this. We as a commission did not envisage a new pencil-and-paper system that 152 local authorities would reinvent in individual and separate ways. It is a complex system but it is actually not that difficult to manage, once you get into the swing of it.

I say very gently to the Minister and to my noble friend that we sweated blood for about a year to try to get a very large number of people to agree on a way forward. This is not the time to go back to square one and think of another way of doing it.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 7:00 pm, 16th July 2013

My Lords, I totally dissent from the case that my noble friend Lord Warner makes. I have opposed Dilnot since the first day that it was made public as a report. My view is very simple. It will simply transfer money from those without to those with, and it has been introduced to appease—I repeat: to appease—the demands of those who insist on passing on inherited wealth from one generation to another, a most ignoble way of proceeding.

I think that my noble friend’s amendment is utterly brilliant—it deals with exactly the concerns that I have, and I hope that it does not end up in the department’s bottom drawer. I hope that when the Government begin to realise that the whole complicated process they are imposing on local authorities will inevitably lead to mistakes and errors and congestion and arguments between carers and people being cared for and their relatives and local authorities, they will sit down, have a rethink, and turn back Dilnot.

The Dilnot report is unjust as far as I am concerned in that it simply transfers wealth from one generation to another. I totally oppose it, and I think that my noble friend’s amendment should be enshrined in the legislation. My noble friend Lord Warner set out the remit as if members of the commission were somehow imprisoned in it so that they could not even consider this proposal. As I understand it, my noble friend’s amendments and the idea behind them were not considered by Dilnot. Sad to say, that is the case. I hope that in the near future this proposal will be resurrected—I hope by my own Labour Party.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I hesitate to come between my noble friends Lord Warner, Lord Lipsey and Lord Campbell-Savours, and indeed knowing what is good for me I am not intending to do so. I say to my noble friend Lord Campbell-Savours that I understand the point that he is making and I agree that Dilnot is not the answer to many of the really pressing problems that we are talking about.

I want to tempt the noble Earl to say a little bit more on two areas which have been referred to by noble Lords. The first is the complexity for local authorities of what they have to administer. The noble Earl has not really responded in detail on this matter so far. Indeed, it is noticeable that local authorities have not responded. We have received a huge amount of evidence, but not very much from local authorities and the local authority associations. This worries me. I understand why local authorities would be keen to play a prime part in the administration of this new system, but these are genuine concerns about whether there is capacity to make changes of this complexity happen. Nothing would be worse than the new system coming into being and collapsing almost on day one. At the moment, that is my view on what is going to happen. I do not know what the Government intend in terms of testing out the robustness of the system for when it is due to come in. I hope that at some point during our debate the noble Earl will be able to tell us.

Secondly, the next group of amendments deals with the public understanding the complexity of the system being considered, but it seems to me that this issue relates to the point about insurance raised by my noble friend Lord Lipsey. My understanding is that one benefit of full implementation of Dilnot—although I am not sure that the Government have gone down that path—would be that, if the public knew that their liabilities would be capped, there would be likely to be a ready insurance market. A number of us have looked with interest at the comments of the Association of British Insurers and other parts of the insurance industry. I have to say there does not at the moment seem to be much optimism about whether there is going to be a market and whether packages are going to be developed. This may come up in later amendments, but at some point I hope that the noble Earl will give a little more information about the Government’s view of the potential of the insurance market to develop products which the public can understand and will be willing to invest in.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, as the noble Lord, Lord Lipsey, explained very clearly, these amendments would mean that the capped system counted time rather than costs. I agree that there are advantages to this approach. The Dilnot commission, in considering this option, said that using years instead of costs would be easier to administer and simpler to understand, and I appreciate those arguments. However, the commission also made the case that to adopt this approach would disadvantage those with more intensive care needs, who over a given period of time could spend significantly more on care than those with less intensive needs, so that what we might gain in simplicity we should lose in fairness. I am sure that we all want to see a fair care and support system giving the most support to those in the greatest need. Using time instead of costs would undermine that goal.

We are committed to using notional spend—in other words, the equivalent of what the local authority would pay to meet an adult’s eligible care needs. As with using time, it is in fact relatively simple to administer because it fits in with the current system of needs assessment. It also ensures that people with more intensive needs are not disadvantaged. That is why the Government agree with the Dilnot Commission, which said,

“the only suitable way of deciding when a person has reached the cap is to meter notional spend.”

The noble Lord, Lord Lipsey, pointed to the understandable fear that Dilnot will mean spending money on administration rather than on meeting people’s needs. I accept that times are challenging for councils, but we are committed to funding these reforms. Critically, we are also committed to co-producing the implementation of the reforms to minimise the bureaucracy that accompanies them and maximise the benefits that they bring. The noble Lord suggested that local authorities might not be ready to implement Dilnot in 2016, and the noble Lord, Lord Hunt, also asked about this, and whether we were intending to test the robustness of the system. We shall be coming to the issue of readiness in the next group, but I agree with the noble Lord, Lord Warner, that there is sufficient time to develop what he referred to as a taxi-meter system.

The noble Lord, Lord Campbell-Savours, took us to a point that he has made in this Chamber before about Dilnot, and his view that it is fundamentally unfair. I simply say to him that the vast majority of state support, under the Dilnot system, will be provided to the roughly 40% of older people with the lowest income and the lowest wealth. The cap, and the extended means test, provide the most reassurance to that particular group. Our view is that we need a system that protects people with the greatest lifetime care needs. It is not about protecting people with the greatest wealth.

To clarify the question that the noble Lord, Lord Warner, raised in the previous group of amendments about the guidance under Clause 71, this will indeed be statutory guidance, and it will look and feel like a code of practice. Importantly, it will have the same legal status. However, we do not think that guidance should be subject to parliamentary scrutiny every time it is updated, as with a code of practice Statutory guidance under this Bill will have the same status as the current guidance issued under Section 7 of the Local Authority Social Services Act 1970. I hope that this is helpful.

In a later group of amendments we will come to what local authorities think about the new system and indeed the whole area of financial services. However, I was reassured that the Local Government Association said that it fully supports and welcomes the inclusion of a cap on what an individual will pay. The Association of British Insurers has welcomed the announcement that we have made as a positive step forward in tackling the challenges of an ageing society. Arising out of that is a sector-led review that is working constructively with government to understand how the market will develop and create the right environments for products to succeed. That review will be completed over the summer.

I hope that with those comments the noble Lord, Lord Lipsey, will for now be content to withdraw his amendment. I hope that he found my comments, if not ones that he can agree with immediately, at least ones that he will put into the context of the Bill in, I hope, a manner that he will understand.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I thank the Minister for his reply, which was a miracle of putting very well the point that has come out of the debate. I thank all those who have participated. We have here a trade-off between simplicity and fairness—it is as simple as that. The Government—unusually, my party might think—have opted for fairness, and my party might not be surprised that in this case I have opted for simplicity. However, the matter will rest. Of course, if this system goes absolutely swimmingly, I shall forget that I asked the Minister to put it in his bottom drawer, but if it all goes wrong I shall tell the world that “I told you so”. With that, I beg leave to withdraw the amendment.

Amendment 89C withdrawn.

Amendment 89D not moved.

Amendment 89E

Moved by Lord Sharkey

89E: Clause 15, page 13, line 46, at end insert—

“( ) The Secretary of State has a duty to ensure that there is, through national public awareness campaigns, a high level of public awareness and understanding of the terms and implications of the cap on the cost of care.”

Photo of Lord Sharkey Lord Sharkey Liberal Democrat

My Lords, my Amendment 89E covers the same ground as, and is very similar to, Amendment 90 in this group standing in the name of the noble Baroness, Lady Greengross. I entirely agree with the spirit of the noble Baroness’s amendment except that I do not think that it goes quite far enough.

The question of public awareness of the terms of the cap on care costs is obviously critically important. However, as I said at Second Reading, the Dilnot report views communication to be central to the success of the entire scheme. Dilnot makes two recommendations in this area. The first is:

“To encourage people to plan ahead for their later life we recommend that the Government invests in an awareness campaign”.

The second is:

“The Government should develop a major new information and advice strategy to help when care needs arise”.

In his reply at Second Reading, the Minister said:

“Legislation is not required for that but the Government agree on the need to raise public awareness. The Government will adopt a strategic approach to maximising the public’s understanding of the new care and support system, and that is a crucial part of our plans to implement Dilnot”.—[Official Report, 21/5/13; col. 827.]

I was very glad to hear that the Government plan to maximise public understanding of the new system. Maximisation is a strong word and this is a very strong and very welcome commitment. I agree that legislation is not necessary in order to implement an awareness campaign. However, while legislation may not be necessary, I think that in this case it is highly desirable and probably even essential.

I believe that it is highly desirable for four reasons. First, it is a binding and unambiguous commitment; secondly, it allows for a national campaign, so that there should be no unsatisfactory variations in achievement by local authority area; thirdly, only central government is really likely to spend the amount of money needed to truly maximise public understanding; and, fourthly, it is the only efficient way of holding someone to account for failure to achieve maximisation. As I mentioned, where I slightly part company with the noble Baroness, Lady Greengross, is over whether her amendment goes far enough.

I have had a great deal of experience of devising and running very large-scale information and advice campaigns, some of the largest being for government departments, and I know that successfully providing information and advice is never enough. It is critical that this information is understood but it is also critical that there is awareness and understanding of the implications of that information and advice. Awareness of facts is not in itself worth very much if we do not understand what those facts mean or what their implications are for you. That is why my amendment is slightly stronger than Amendment 90. It imposes a duty on the Secretary of State not only to run a national awareness campaign but to ensure that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care.

My Amendment 104ZD in this group takes this a little further. The Government agree with Dilnot’s view that communication is fundamental to the success of the whole enterprise. If communication fails, so will the new system. That is why, I assume, the Government have made the very strong promise to maximise awareness. However, if it is so important to maximise awareness, surely we need some clear indication of the progress being made in maximising this awareness and some indicators to show that, when awareness is in fact maximised, that is where it stays. As it stands, Clause 66 proposes a five-yearly review by the Secretary of State of the funding provisions, and Clause 80 provides for reviews and performance assessments related to care standards. However, there is no provision in the Bill for a review of progress towards the Government’s goal of maximising awareness of the Dilnot terms and their implications.

My Amendment 104ZD would insert a requirement for the Secretary of State to report annually to Parliament on progress in achieving this maximisation nationally and by local authority area, starting 12 months after Section 15 comes into force. This is not an onerous requirement; it is the kind of thing that commercial organisations do entirely as a matter of routine. However, even if it were onerous, it would still be the right thing to do. It is vital that we know how we are doing in maximising awareness and understanding, and the amendment enables us to do that. I hope that the Minister will be able to give sympathetic consideration to this amendment and to Amendment 89E. I beg to move.

Photo of Baroness Greengross Baroness Greengross Crossbench 7:15 pm, 16th July 2013

My Lords, I support the noble Lord, Lord Sharkey. A similar amendment in my name is not as strong as his amendment. I think that his would do the job that needs to be done remarkably well and I hope that it will be agreed by the Minister.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I will speak to the amendments in this group standing in my name but, before I do so, I should like to offer the strongest possible support for the noble Lord, Lord Sharkey, and particularly for the words that he said at the beginning about the information task that we face here. This is not just a question of advising individuals when they go to their councils, although that is important and we have had a debate on that. It is a question of making the whole of our society aware of what is going on against a background of very great ignorance and misinformation. It is crucial that something is done on a real scale to turn that around and that the best communication skills are used in doing so. We have to move from the language that we use in this Chamber as aficionados or geeks studying the detail of the Bill to the general public out there, and that is a hell of a task.

As I said, I will speak to my Amendments 90D, 92ZZB, 92ZZC and 104ZC. Amendments 90D and 92ZZC relate to a topic that we touched on in the debate on the previous amendment—namely, the costs and administrative difficulties for local authorities of introducing the cap in the scheme. The Local Government Association has expanded on the numerics in the briefings for this debate, as has London Councils. I think that the local authorities have a slight tendency to underplay what is going on for fear that the Government will take the whole thing away from them, and they want to be shown as “can do” rather than “can’t do”. When you get into the detail, and look below the politicians in local government at the fine detail of those who have to implement it, you find that it is quite difficult.

The Government have in principle accepted the burdens doctrine, namely that if they make local government do something they will pay for it. They have provided around £335 million to pay for that. None of this extra money is coming now, by the way. The contributions will not start until 2016. Bad though the administrative mess may be, if local government does nothing to prepare for this scheme until 2016 it will certainly fail. Already it is doubtful whether the burdens scheme is really being met. Many of the costings put forward are fingers in the air stuff. The detail has yet to be grappled with. Details crucial to costing the implementation of the scheme, such as the eligibility requirements, are only emerging bit by bit. We do not even know what the government money is supposed to cover. Does it fund in full the cost of additional self-assessments, when the self-funders and people who will potentially benefit from Dilnot queue up for assessments? I really do not think that we know the detail of duties around advice and information, on which we spoke earlier, or on the funding for setting for up new deferred payment schemes.

My change is designed to write into the Bill what is in effect the burdens doctrine. Whatever the cost, the Government must pick it up. It is not as if local authorities have got large chunks of money in their pocket at the moment to reach in and pay for all this stuff. They do not. They cannot afford basic care services at the moment, so this is a huge task. There is a huge task, too, in training the local authority workforce to do assessment and implementation on this scale, and indeed in creating the workforce.

These facts lead me to believe—and I am very glad that my noble friend Lord Warner, with whom I agree on nearly everything, agrees—that it was a terrible mistake to bring forward the start of the scheme from 2017 to 2016. We know why it happened, do we not? The Government found that they had a few spare quid in their pocket, and wanted to be able to tell the electorate that Dilnot was nigh, and so without proper consideration of any kind they brought the date forward. It was a U-turn, and my amendment U-turns on the U-turn to get back to the right place where they were to begin with, namely that the scheme will come in in 2017. This would give it a good chance to work.

I turn now to my other amendments in this group. I hope that we might finally get an actual concession from the Minister, instead of words of great sincerity and great sympathy and not much change. My other amendments in this group refer to the setting up of a ministerial advisory group on the cap and the means test. They insist that this group should be consulted in the planned five-year review of how all of this is working. This is not a criticism of the Department of Health. I have been impressed by how effective officials have been in grasping this scheme, particularly as for most of the time that Dilnot was under consideration they probably thought that it was never going to happen. They are a first-class team, but I do not think that they possess a monopoly on wisdom, and indeed they do not think so, either. The Minister just referred to the working parties with the financial services sectors that have been set up to give advice. I applaud that.

I think that there are complexities in all of this that even the most literate advisers have barely grasped. I will come to some of them, for example when we come to the detail of the proposals on the means test. It would be helpful if Ministers had to hand a helpful advisory group comprising academic experts, local authority representatives, representatives of the financial sector and someone from Dilnot. Maybe the noble Lord, Lord Warner, would like to volunteer. A group of that kind would not second-guess Ministers on every detail, but would offer its general advice on how things are progressing and how they may be set right if there are departures from the course on the way forward.

Photo of Lord Warner Lord Warner Labour

My Lords, I support the comments made by my noble friend, Lord Lipsey. There is a case for setting up some sensible monitoring arrangements. This is not just to check up on the Government, but to make sure that this system is working in the way that everybody wants it to. It is a big change, and we are starting from a position which means we have to grasp the nettle, as the noble Lord, Lord Sharkey, said. I strongly support his amendments.

I want to refresh the House’s memory of what we said in the Dilnot commission report. I will briefly detain noble Lords with a quote:

“There is very poor understanding of how the adult social care system currently works and how much it can potentially cost. Many people live under the false impression that social care will be free if they need it. If people are confused over how the system works and the costs that they potentially face, they will not prepare appropriately for the future.”

That setting was why two of our 10 recommendations were that the Government should develop a major new information and advice strategy to help when care needs arise. To encourage people to plan ahead for their later life, we recommended that the Government should invest in an awareness campaign. We deliberately put those responsibilities on the Government. We did not put them on local authorities. We did this because we thought that unless the Government of the day—and this would apply to a Labour Government as much as a coalition Government—took a grip on this awareness campaign and planned the information and advice strategy, we would end up with a badly informed public and a mishmash of different local authority systems up and down the country.

We are not going to make this system work well or deliver the changes in the Bill and in the Dilnot commission report, unless there is investment. In our report we put the price tag of this as being a massive public awareness campaign. The public do not start from a position of being well informed about how they prepare for the future care and support needs that they will have in later life. The only way to start to change that is for the Government to grasp the nettle. I strongly support the proposals of the noble Lord, Lord Sharkey, to put this in the Bill. We should put a clear responsibility on the Secretary of State to run with the ball on this issue and, in effect, to monitor progress, not on a five-year basis but on a regular, annual basis. If we do not do something like this, we will live to regret it. We will see failure of implementation and failure to take the public with us on this major set of changes.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

My Lords, my noble friend refers to the exhortations in the report to require the Government to carry out an awareness exercise. However, the reality is that there has been a huge spin on the whole Dilnot proposal. Many people, even those in care, believe that as of the starting date, 2016, everyone who has already spent something like £70,000 will suddenly receive free care. Of course, that is not true. It only affects people who enter the care system after a particular date. That is all part of the spin which has now led to a gross misrepresentation of what Dilnot proposes. Dilnot, while I oppose it, is offering a lot less than the spin suggests.

I want to talk about the reference in the amendment to the,

“implications of the cap on the cost of care”.

The implications of the cap on the cost of care are that there will be far greater transparency in the system, which was what the Minister told us in the debate that took place last week, when we debated the question of transparency. I argue that that transparency will lead to a lot of conflict between self-funders and people who are in receipt of support from their local authorities.

There is a group of people who will be over the means-test threshold but will pay the full cost under the cap. They will suddenly be confronted with information in this new regime of transparency which will give them far more information about what other people are paying in the home, what the local authority is prepared to pay and what the local authority believes to be a reasonable fee for care. That could lead to conflict within individual care homes and I wonder to what extent Ministers have taken it into account.

An amendment such as this is absolutely necessary because, before people are confronted with this decision when it comes later in this decade, it will at least give them some indication of where the truth lies and will perhaps bring an end to the misrepresentation that is taking place.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 7:30 pm, 16th July 2013

My Lords, my Amendment 90ZA requires the Secretary of State to report to Parliament,

“in advance of this section coming into force with the Government’s assessment of the likely impact of the cap on care costs; and … annually once the section is in effect, with the Government’s assessment of the impact of the cap, in particular its distributional impact across the income spectrum”.

I echo some of the points already made. The operation of the cap ought to be, and continue to be, subject to ministerial oversight. The opportunity to report to Parliament and for us to have an annual debate should not be missed. This links into the amendment of my noble friend Lord Lipsey, Amendment 92ZZB, because it would enable a ministerial advisory group to feed into an annual report on how the scheme is being implemented and whether changes need to be made.

It is important to bear in mind the concern of my noble friend Lord Campbell-Savours that simply operating Dilnot will favour the better off at the expense of the worse off. We must keep an eye on how it impacts on the distributional spectrum in this regard. That is why I have the second part of my amendment.

Like other noble Lords, I agree with Amendment 89E in the name of the noble Lord, Lord Sharkey, and Amendment 90 in the name of the noble Baroness, Lady Greengross. I have learnt over the past few months how complex this issue is, and if noble Lords do not understand the full complexity of the scheme—and I gladly hold my hand up that I have yet to believe that I have full mastery of how it will operate—how can members of the public be expected to understand its full consequences?

In our debate on Clause 2, we discussed the responsibilities of local authorities in providing advice and we debated the need for independent financial advice to be made available. The consequences for a person making the wrong decision on funding could be catastrophic. It is therefore important that advice is readily available, and I agree with those noble Lords who think that it ought to be a national responsibility. Whether I would give it to the current Secretary of State, I am not quite so sure.

I remember how the Government spun this Bill in the Queen’s Speech and the Prime Minister giving the impression that no one would for ever more have to sell their home and that the £72,000 cap was the limit. However, as we have gone through the Bill has become quite clear that neither is the case. I agree with my noble friend Lord Campbell-Savours that the Government have not thought through the implications of what the noble Earl said last week about the issue of transparency.

The point is that most people have to spend more than £72,000 because self-funders do not pay local authority rates. In his sophisticated response last week, the noble Earl suggested that local authorities took advantage of procurement at scale, which is why they were able to get a rate lower than self-funders. That was a remarkable argument. Most people see this as a case where local authorities underpay and that if homes only existed under local authority rates many of them would not be viable. It is therefore not surprising that many homes are on a cliff edge of viability on the one hand and at risk of being put out of business because of CQC inspections on the other. There is no doubt that it is generally thought that self-funders subsidise the people in those homes who are paid for by the local authority.

However, most people do not know that. Only an inside circle is aware of the issue. However, come the new implementation, everyone will know—as the noble Earl said last week, it will be transparent—and people will not put up with it. That is why, first, it is essential that more thought is given to implementation. I am not sure whether my noble friend Lord Lipsey is right to want to delay it by a year, but I am sure that he is right to say to the Government that they need to look carefully at the practicalities of implementation.

Secondly, it is important that self-funders are in future fully aware of the consequences of any decisions they take. At the moment, I and many other noble Lords are not convinced that the public are aware. That is why it is so important that a duty is laid on Ministers to fund, and continue to fund, a national campaign of information and that we come back to our debates on Clause 2 in relation to independent advice being made available.

Thirdly, I hope that the noble Earl will readily accept the amendment of my noble friend Lord Lipsey about the need for a ministerial advisory committee, which could then enable the Secretary of State to report to Parliament annually in relation to the implementation of the Dilnot proposals.

The noble Earl will be aware that, in general—my noble friend Lord Campbell-Savours aside—the Care Bill enjoys support. However, there is a risk of our disagreeing on implementation. If he can reassure us on the readiness of local authorities, on the willingness to provide independent advice and on the willingness to establish some kind of independent mechanism to report on a regular basis, it would provide a great deal of comfort.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, the clauses on the capped-costs system represent a significant step forward, ending decades of uncertainty, with the introduction of a clear system that fairly shares costs. For the first time, people will be protected from spiralling costs and will no longer have to fear that their home will be sold while they are in a care home. In response to Amendment 90ZA, I can confirm that we published an impact assessment of the reforms which includes the distributional impact by income.

The current system exposes those with little savings or modest housing wealth to the greatest risk of losing everything to pay for their care and support. We will enable people to keep more of their capital and still receive a contribution from the local authority towards their residential care costs. Under new regulations, those with capital assets of less than £118,000 will see the local authority pay a proportion of their residential care costs rather than only those with assets of under £23,250.

As I mentioned earlier, the vast majority of state support will be provided to the 40% of older people with the lowest income and wealth. The cap and extension to means-tested support provides the most reassurance to this group. This is about protecting people with the greatest lifetime care needs and not people with the greatest wealth. The reforms must be sustainable and affordable for the long term, which is why we have accepted the Dilnot commission’s recommendation that the level of the cap should be adjusted annually in line with inflation. It is an approach used in taxes, pensions and benefits, ensuring they remain equally fair year after year.

I turn to amendments 92ZZB, 92ZZC and 104ZC. The noble Lord, Lord Lipsey, shares our aim in drawing up the Care Bill of ensuring the system can respond to changing circumstances. However, that dynamism must be balanced with some certainty about the basis for changes. That is why Clause 16 requires annual adjustments to be made to the cap and to an adult’s accrued costs, so that they keep pace with inflation. Clause 66 provides some certainty that changes are likely to occur only as a result of the annual adjustment or five-yearly review. In reviewing the level of the cap and the means-test threshold, the Government will want to involve a range of experts in assessing how external factors such as demographic change and healthy life expectancy are affecting affordability and the benefits of the capped costs system. A standing independent committee is therefore unnecessary and could suggest that the system is subject to constant change—which may, perversely, result in fewer people planning and preparing on the basis of these reforms.

Amendments 90A, 90B and 90C would require the annual adjustment to be made in line with average care costs. The first point to make is that there is no nationally recognised measure for care costs inflation. Linking the annual adjustment to a care costs inflation measure that has no national benchmark would not give people, or the financial services industry, certainty or confidence in the system. It would of course be possible to develop such a measure, but we feel it is unnecessary, as a robust proxy already exists. Average earnings is one element of the measures used to determine the state pension and therefore represent changes in people’s ability to pay. Earnings is a national statistic certified as compliant with the code of practice for official statistics. In addition, care costs and average earnings are related since labour is a substantial proportion of the cost of care. The latest Laing & Buisson market survey states that,

“in the longer term, fees are inevitably driven by costs … the major cost item is payroll”.

Turning to Amendments 89E, 90 and 104ZD, which is where my noble friend Lord Sharkey began this debate, I fully agree that it is critical that people are made aware of the reforms and what they will mean. The Dilnot commission rightly recommended that there should be an exercise in raising awareness alongside implementation of the reforms. Many people do not realise that they may have to pay for their care and support, which acts as a significant barrier to effective planning and prevention. The Committee will be aware from the debate on Clause 4 that we know that easier access to good quality, trusted information and advice is a critical enabler. The Bill places a duty on local authorities to provide information and advice, including on the capped cost system.

I assure the noble Lord, Lord Campbell-Savours, that we have absolutely no intention to or interest in allowing spin to replace clear and balanced information for the public. In improving awareness and advice, national and local must work together. It will be in the interests of local authorities, the public, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and prepare to meet their care and support needs. We will seek views in the forthcoming consultation on the design and technical implementation of the funding reforms, which will include addressing the best way to raise awareness of these reforms nationally and locally.

My noble friend Lord Sharkey made the good point that awareness and understanding of the Dilnot reforms has to be evaluated and measured over time. As with any other policy, we will seek to evaluate the effectiveness of this particular policy, but we believe that to require an annual report in the Bill would incur a potentially high and unnecessary cost. There are other ways of delivering the same aim.

With respect to Amendments 90D and 92ZZC, I recognise that alighting on a solution to the long-standing issue of funding reform should not mean that we sacrifice effective implementation for speed of delivery. There must be a suitable balance, but that does not mean that we cannot deliver in April 2016. We are working closely with the key representatives of the care sector to shape the consultation over the summer on the detail of implementation to make sure we get it right and realise the benefits we all want to see. There is a shared understanding that we need to work together to address the implementation challenges. However, the capped cost system builds on what already exists—assessments and personal budgets are two elements that will form the building blocks of capped cost implementation. It is worth adding that government guidance requires all new burdens on local authorities to be fully funded. Alongside the funding that we have announced for the reforms at implementation, we are providing additional funding for transition to ensure that councils are ready to take on their new responsibilities from April 2016.

The noble Lord, Lord Campbell-Savours, asked what impact Dilnot will have on the market. Our reforms will mean that people will be able to see the cost to the local authority of meeting their eligible needs. They will be able to compare that with what they might pay on the open market and will then have the option to request the local authority to arrange their care for an administrative fee. We know that many people will not want to have the local authority arrange their care but it is important that we fully explore the potential impact.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 7:45 pm, 16th July 2013

If someone is below the £70,000 figure and funding their own care, why would they bring in the local authority? What business is it of the local authority?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, potentially, everyone in need of care and support may benefit from these reforms. We want to make it as widely known and as apparent as possible that planning is an important matter, whatever a person’s means. If I have misunderstood the noble Lord’s question, I will review that answer and write to him, but that is the main point.

I come back to the point I made earlier: this is just the beginning and it is why we will shortly be consulting on all these implementation issues. With those comments, I hope that my noble friend will feel able to withdraw his amendment and that other noble Lords will not press theirs.

Photo of Lord Sharkey Lord Sharkey Liberal Democrat

My Lords, I thank all noble Lords who have spoken in favour of a comprehensive, national and centrally funded information and advice campaign under the direct control of the Secretary of State. I am sorry that my noble friend the Minister did not seem entirely convinced by that. I was very puzzled by one thing that the Minister said about the cost of an annual report on how well we were making progress in generating awareness of the terms and implications of Dilnot. I cannot see that the cost could be anything but essentially trivial. I may be wrong about that, but I should be very grateful if the Minister would clarify, perhaps in writing later, why he thinks that the cost would be substantial at all.

I continue to feel that the whole issue of providing information and understanding is much too important to be left to local authorities and for the Secretary of State not to have direct responsibility for it. The task facing any information campaign in this area is enormous. The last survey that I saw showed, for example, that only 17% of UK adults understand what a percentage is—even that may be an overstatement—and Dilnot’s implications are much more complicated than that. We need the best communication with the most money and we need obvious accountability. That means central government and the Secretary of State having responsibility.

Given the opinions expressed around the Chamber today, we may well want to return to this issue on Report. I beg leave to withdraw the amendment.

Amendment 89E withdrawn.

Amendments 90 and 90ZA not moved.

Clause 15 agreed.

Clause 16 : Cap on care costs: annual adjustment

Amendments 90A to 90D not moved.

Clause 16 agreed.

House resumed. Committee to begin again not before 8.50 pm.