Report (2nd Day)

Part of Care Bill [HL] – in the House of Lords at 6:30 pm on 14th October 2013.

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Photo of Lord Warner Lord Warner Labour 6:30 pm, 14th October 2013

My Lords, I support these amendments—not necessarily the specific wording but the principles behind them. I remind the House of a real difference between many of the appeals under the new framework for adult care and support and what has gone before. We are now talking about a set of arrangements with considerable financial implications for people and their families. In the social security system we set up a tribunal system to arbitrate, which has worked pretty well for a long time. Many of these issues are more akin to the social security system than to complaints about process. There will be complaints about process but many of the things covered in these amendments are about a failure to get a resource from the public purse to which people think they are entitled and have evidence that they are. This is much more akin to the arrangements in the social security system for people who have their claims rejected. It is much nearer to that than complaints about poor processes of work by a public body. The Government should think long and hard about this issue because they are in grave danger of ending up with the whole system being overwhelmed by the number of complaints. Without a convincing system for resolving appeals in the framework of the Care Bill we are heading down a path where judicial review will start to feature quite strongly.

I remind the noble Earl of some of the other issues where there could be appeals. The Joint Committee looked at some of the friction points where there was scope for dispute. There is a raft of areas for dispute over assessment of carers and service users and a whole range of areas for dispute about ability and whether you are going to be charged or not. After the previous debate on deferred payment I can think of another fruitful area for complaints—an inability to get on to some kind of deferred payment scheme. Another area, important to patients and service users, is setting the price for contracts to providers. Clearly, the price-setting mechanism may be disputed between the providers of services who may claim that the price offered by the commissioning agent will be bad for service users and patients. I am not suggesting that these could all come together under one process, but we want more convincing architecture in this Bill to give confidence that there is a sensible way of resolving and arbitrating areas for dispute and for the service user and their carers to secure redress without going through an excessively complicated process.

Amendment 124 deals with the knotty problem of the boundary between health and social care—the continuing care issue. We looked at this in the Dilnot commission and found the assessment process monumentally opaque. It was extremely difficult to be sure that you would have consistency of assessment in different parts of the country. So much seemed to depend on individual professionals’ judgment about dependency in a very complicated set of arrangements. It is interesting that the Law Commission recommended that it would be desirable to put NHS continuing healthcare on a further statutory footing. The Dilnot commission report on page 58 said:

“We are strongly supportive of the Law Commission’s recommendation to put NHS Continuing Healthcare on a firmer statutory footing. Furthermore, as we are recommending a new national eligibility framework for social care, which is aimed at being more transparent and consistent, the Government may want to consider how this will work alongside the assessment process for NHS Continuing Healthcare”.

This is highly disputed territory. The changes in adult social care are likely to make it very disputed territory again. We have a whole raft of issues coming out of this Bill ripe for dispute between the citizen and the state without a convincing architecture to resolve them. The Government need to think again about this issue and look at putting some more convincing architecture in the Bill to make clear to the public what they can expect, both in statutory guidance and in any regulations the Government chose to make.