New Clause 28 - Part 1 appeals

Care Bill [Lords] – in a Public Bill Committee at 9:45 am on 4 February 2014.

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‘(1) Regulations may make provision for appeals against decisions taken by a local authority in the exercise of functions under this Part in respect of an individual (including decisions taken before the coming into force of the first regulations made under this subsection).

(2) The regulations may in particular make provision about—

(a) who may (and may not) bring an appeal;

(b) grounds on which an appeal may be brought;

(c) pre-conditions for bringing an appeal;

(d) how an appeal is to be brought and dealt with (including time limits);

(e) who is to consider an appeal;

(f) matters to be taken into account (and disregarded) by the person or body considering an appeal;

(g) powers of the person or body deciding an appeal;

(h) what action is to be taken by a local authority as a result of an appeal decision;

(i) providing information about the right to bring an appeal, appeal procedures and other sources of information and advice;

(j) representation and support for an individual bringing or otherwise involved in an appeal.

(3) Provision about pre-conditions for bringing an appeal may require specified steps to have been taken before an appeal is brought.

(4) Provision about how an appeal is to be dealt with may include provision for—

(a) the appeal to be treated as, or as part of, an appeal brought or complaint made under another procedure;

(b) the appeal to be considered with any such appeal or complaint.

(5) Provision about who is to consider an appeal may include provision—

(a) establishing, or requiring or permitting the establishment of, a panel or other body to consider an appeal;

(b) requiring an appeal to be considered by, or by persons who include, persons with a specified description of expertise or experience.

(6) Provision about representation and support for an individual may include provision applying any provision of or made under section 68, with or without modifications.

(7) The regulations may make provision for—

(a) an appeal brought or complaint made under another procedure to be treated as, or as part of, an appeal brought under the regulations;

(b) an appeal brought or complaint made under another procedure to be considered with an appeal brought under the regulations;

(c) matters raised in an appeal brought under the regulations to be taken into account by the person or body considering an appeal brought or complaint made under another procedure.

(8) The regulations may include provision conferring functions on a person or body established by or under an Act (including an Act passed after the passing of this Act); for that purpose, the regulations may amend, repeal, revoke or otherwise modify an enactment.

(9) Regulations may make provision, in relation to a case where an appeal is brought under regulations under subsection (1)—

(a) for any provision of this Part to apply, for a specified period, as if a decision (“the interim decision”) differing from the decision appealed against had been made;

(b) as to what the terms of the interim decision are, or as to how and by whom they are to be determined;

(c) for financial adjustments to be made following a decision on the appeal.

(10) The period specified under subsection (9)(a) may not begin earlier than the date on which the decision appealed against was made, or end later than the date on which the decision on the appeal takes effect.’.—(Norman Lamb.)

Brought up, and read the First time.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I beg to move, That the clause be read a Second time.

This morning is hard work, but I will continue in the same vein. [Interruption.] That was an unnecessary comment from the hon. Member for Leicester West; I will continue none the less. New clause 28 provides for a broad regulation-making power specific to appeals of decisions made under part 1 of the Care Bill. This power gives us the flexibility to provide for a range of options, depending on further work to ensure that we achieve the outcomes that people have told us are important to them. The details of the system that we develop through that work will be set out in regulations.

I know that many hon. Members will join me in welcoming the fact that the Bill establishes a new legal framework that puts the well-being of individuals at the heart of care and support and puts them in control of their own care. The Bill will also put in place a new statutory framework for assessment and care planning, extending the duty to assess carers’ needs and allowing people who pay for their own care to count the reasonable cost of meeting their eligible needs towards the cap.

Given those changes, it is important that individuals have confidence in the system, and that they are able to challenge decisions without having to resort to judicial review. Accordingly, we held a wide-ranging consultation during the second half of last year to seek opinions on how best we could ensure that. Following that consultation, we have recognised the need for change in this area, and I have accordingly tabled a new clause that will give us the scope to develop detailed proposals for an appeals system, along with stakeholders, keeping to the spirit of co-production that has characterised our work on other areas of the Bill.

The issue is important and complicated. We need to make sure that we take time to get the detail right, drawing on experience from other sectors where possible, and ensuring that the changes are aligned with the broader changes to NHS and social care complaints, following the Francis report and the Clwyd review. It is possible that we will want to involve an existing statutory body in the appeals arrangements, to bring particular expertise to the process, and so the power is wide enough to enable us to confer functions on such bodies  if necessary. Of course, if that involves repealing or amending any element of the primary legislation that relates to such a body, we intend that such regulations would be made using the affirmative procedure. We are not yet in a position to share detailed proposals with hon. Members, but in introducing the new clause I should like to set out the principles that will guide us in developing the new appeals system, and I hope that the Committee will agree that those are right.

First, we believe that it is best to have a flexible appeals system that works at a local level in a manner proportionate to the type of dispute, avoiding unnecessary bureaucracy and burdens on local bodies. Secondly, we have heard clearly through the consultation that an appeals system should have an element of independence from the local authority to give people confidence that the appeals process is fair and unbiased. Thirdly, the appeals system will clearly need to take account of the wider arrangements for complaints and redress that are already established in other parts of the health and care system, avoiding duplication and gaps. We are working actively with our various partners and stakeholders to develop our policy on this, and we will consult further, along with our wider programme of consultations on regulations and guidance, later this year.

I hope that I have reassured hon. Members and my right hon. Friend the Member for Sutton and Cheam that the new clause demonstrates our recognition of the need for change and our determination to ensure that there is a clear, flexible and independent appeals system.

Photo of Liz Kendall Liz Kendall Shadow Minister (Health) (Care and Older People)

The new clause is extremely important. As hon. Members know, Opposition members of the Committee have been pressing for an appeals process. New clause 28 very much echoes new clause 8, which was previously tabled by me and my hon. Friend the Member for Copeland. I thought that the Government would inevitably have to institute a proper appeals process, so we welcome the fact that, following representations from hon. Members, the Government have listened and taken action.

There has been concern that under the new system, with more people being assessed, with a new type of assessment regime, with the complicated system of the new cap on care costs, and with people questioning what they are paid and how far they have gone to meet the cap, more people would raise concerns and make appeals. So it is absolutely right that the Government have tabled the new clause. We do not want to end up resorting to judicial review. We want a proper process of appeal for this new—in some ways simpler; in some ways, certainly on the finance side, more complicated—system of assessment. We need to make sure that the appeals process will be carried out by people who are properly qualified to deal with disputes about care packages and finance. A system with people clocking up amounts towards the cap is quite new. We will need a proper system in place and people with the right skills. I hope that when the regulations are introduced, Ministers will bear in mind the range of skills that people will need to carry out an appeals process.

I am sure I am not the only hon. Member who has seen appeals procedures often being conducted with a tick-box approach that makes people feel dissatisfied,  so it is worth getting the process right from the start. I hope that the Minister will ensure all the issues are properly looked at in regulations.

Photo of Paul Burstow Paul Burstow Liberal Democrat, Sutton and Cheam

I rise to thank the Minister for introducing the new clause. It reflects the debate the Committee had on an amendment that I tabled. It was supported by Government Members and called for an appeals mechanism to be put in place. The new clause reflects the recommendation of the Joint Committee, which came to a cross-party consensus on the need for such provision, and it obviously reflects the fact that the Government have taken on board the representations they received in their consultation. I will mention another matter on which that has perhaps not been the outcome.

However, on the new clause, the Minister is right. He has set out clearly a thorough set of regulation-making powers that will enable the design of a proportionate fit-for-purpose appeals system to emerge. We now need the many stakeholders, who have an interest in getting the design right, involved in its design, and it must be implemented in a timely fashion. It needs to be in place and understood as the legislation goes live from 2015, so that it is running in advance of the introduction of the capping system from 2016, because I think aspects of the legislation warrant having it in place at that stage. For those reasons, I am pleased to see the tabling of the new clause. I congratulate the Minister on listening to what the Committee has said and on taking on board the recommendations of the Joint Committee.

Photo of Norman Lamb Norman Lamb The Minister of State, Department of Health

I am grateful to the shadow Minister and my right hon. Friend for their contributions. The shadow Minister’s amendment put the case for an appeal process, as did my right hon. Friend’s. There has been a lot of discussion about this, including suggestions for a whole tribunal system. The problem with that is that it takes money away from providing care, which is what, ultimately, we are all after. I think the new clause gets the balance right, and I repeat what I said in my speech: we will work collaboratively with the stakeholders mentioned by the shadow Minister and my right hon. Friend to make sure that we get the detail right through the regulations.

Question put and agreed to.

New clause 28 accordingly read a Second time, and added to the Bill.