Report (2nd Day)

Part of Care Bill [HL] – in the House of Lords at 6:15 pm on 14th October 2013.

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Photo of Baroness Greengross Baroness Greengross Crossbench 6:15 pm, 14th October 2013

My Lords, I shall also speak to Amendment 124. Amendment 76 seeks to ensure that a clear process is in place by which adults and carers can challenge decisions that have been made about their care by local authorities, and to ensure that they are made aware of their right to challenge such decisions. I am grateful to Which?for supplying me with background information on this important issue.

Under the new care and support system, there are many decisions that local authorities will take that will affect an adult’s or a carer’s access to services and what they will be required to pay towards care. These decisions can fundamentally affect families’ quality of life and financial circumstances, as we have learnt. It is right that these decisions are subject to proper scrutiny in cases where families feel that they have been made unfairly, and that those receiving care and their carers are aware of their right to challenge decisions.

There is evidence that, in a lot of decisions made by local authorities about care, there is a certain amount of subjectivity and untransparent variation in the way they are made, both between and within local authorities. This includes decisions over eligibility, financial assessments, charging, local authority rates, top-up fees, levels of personal budgets and independent personal budgets. Under the new system, many more people will come into contact with and be assessed by their local authority, and a greater light is going to be shone on these decisions, as we debated earlier today. Currently the Bill does not contain any reference to appealing these decisions.

This has previously been highlighted, and in Committee amendments to establish a care and support tribunal were tabled. The Government’s response was to say that they recognised the need to review the current complaints arrangement, and they have included it in their consultation on funding reform, including the option of a tribunal. They pointed out that there are existing regulations under separate legislation about how local authorities handle complaints in relation to social care. However, these regulations relate to any complaint that a local authority receives about a care matter—for example, about the quality of care received by a provider acting on behalf of the local authority—but they do not include an independent review element. They are not specifically designed to deal with issues of eligibility, entitlements and payments where the challenge may be about the overall decision reached, rather than the process followed. Therefore, I believe that the mechanism for appealing these decisions should also be included in the Bill.

This amendment is designed to allow the Government flexibility over the exact format of the appeals procedure, which can follow in regulations, while ensuring that the principle is enshrined in the Bill. It also, rather importantly, requires local authorities to make individuals aware of their right to appeal a decision that has been made. Too often, care recipients feel done to rather than done with, as we know. They do not understand the basis on which decisions have been made, and they feel very powerless regarding challenging them. Awareness of an existing higher-level redress mechanism, such as the Local Government Ombudsman, is very low. People just do not know about it or how to approach that office. Making users aware of their right to appeal is therefore a key part of ensuring a redress system that works effectively.

Currently, people have limited access to an independent review of decisions regarding eligibility for continuing care. We know this is a huge problem for many people. Amendment 124 would provide access to an independent review process. I am grateful to the Alzheimer’s Society and the Care and Support Alliance for providing me with some background to this issue. NHS continuing care is a package of care arranged and funded by the NHS free of charge to the person receiving care. The decision about eligibility rests not on the person’s condition but on whether the need for care is primarily due to health needs. However, as care provided by the NHS is free but care provided by social services is means-tested, the outcome of any decision can have a significant financial consequence for people who self-fund their care. There are also significant financial consequences to the NHS if a person is eligible. These consequences leave NHS continuing care fraught with dispute, and there is little impetus for the NHS to make a decision quickly, given the budgetary implications. Many people give up or face another long wait to appeal a refusal. While there are just over 57,000 people in receipt of continuing care in England, it is unknown how many people eligible in law have failed in their attempts to be assessed properly for it. At both assessment and appeal stages, various tiers of the NHS remain—I have mentioned this before—both judge and jury on eligibility, and it is only once these stages have been exhausted that the Parliamentary and Health Service Ombudsman can be involved as a truly independent arbiter. It is unacceptable for so many people with extensive health needs, some nearing the end of their lives, to have to deal with a system that is riven with bureaucracy, delay and dispute. People receiving local authority care have some hope that a council will support their case to move on to NHS-funded care, spurred on by its own financial interest for them to do so, but for self-funders there is no such hope. Some may seek out a solicitor, but many, we know, just give up.

The Joint Committee of which I was privileged to be a member felt that the Care Bill provides an opportunity to explore the Government’s intentions towards a much more effective system of complaint, appeal and redress for social care and NHS continuing care. This amendment is to probe the Government further on how they will address the lack of a truly independent arbiter early in the NHS continuing care process. I remain convinced that an initial refusal to award NHS continuing care at assessment should lead directly to an independent review body or procedure, rather than another tier of the NHS, so that people do not have to wait years until an independent body can review their case.