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Community Care (Residential Accommodation) Bill

Volume 589: debated on Thursday 30 April 1998

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7.2 p.m.

My Lords, I beg to move that this Bill be now read a second time. It is a great privilege today for me to launch a Bill on this important subject affecting the welfare and well being of our senior citizens. I trust that those noble Lords who remain will give it their full support.

The Bill is short, simple, straightforward and, in my view, not at all controversial. Its purpose is to close a small gap in the legislation relating to the provision of residential and nursing home care by local authorities. It will ensure that anyone entering a home—the majority of whom are elderly people—will be able to safeguard a set amount of their capital assets.

It is of great significance to anyone entering residential care and to their immediate family and relatives to have any uncertainties about what will happen to their assets clarified at that stressful point in their lives. We need to make certain that elderly people know that care home fees will not completely devour their modest savings, nor swallow all the proceeds from the sale of their home. Many of those people have been saving all their lives to put something aside for the future, for their old age and, in many cases, it has been a great struggle. Many will have done without in order to buy their own homes. After having sacrificed and saved all their lives, they can endure an overwhelming sense of loss and worthlessness seeing all their prudent efforts shattered if that last small amount of savings is taken away.

This set amount of capital fixed by Parliament, which is known as the capital limit, is currently £16,000 and is set down in the Assessment of Resources Regulations for residential accommodation. Those charging regulations provide that anyone with less than that amount of capital should receive financial support from their local authority.

The need for the Bill came about because of a judicial review case which revealed a flaw in current legislation; that is, the National Assistance Act 1948—that old favourite on which so much community care law is based.

I should like, if I may, to give the background to this case. Almost two years ago a local authority—the Metropolitan Borough of Sefton—was found to be operating a policy of refusing financial support for people in residential or nursing home care, until their capital had fallen to a very low level (around £1,500—or the average cost of a funeral). That was contradictory to the government policy that anyone needing residential or nursing home care could receive financial support from their local authority if their capital came to less than the £16,000 national capital limit (as set out in the Assessment of Resources Regulations); and that the local authority should assist with the cost of care for people funding themselves in care homes once their capital falls below that level.

Sefton council was taken to court by an individual who was adversely affected by this policy, and by the charity Help the Aged. Unfortunately, the High Court found in Sefton's favour. Until the High Court judgment in this case, it had been accepted that anyone needing residential or nursing home care could receive financial support from their local authority if their capital came to less than the national capital limit. But the National Assistance Act does not expressly state that. It provides that local authorities may make arrangements for providing residential accommodation for persons,
"in need of care and attention which is not otherwise available to them".
It is only the charging regulations which refer to the "capital limits".

The High Court ruled on 27th March 1997 that the capital limits do not apply unless and until someone has actually been placed by their local authority in a home, because it is only at that stage that the local authority should assess a person's finances. The judgment sanctioned that local authority's practice of letting people place themselves in residential care and pay for it out of their own capital until it reduced to £1,500.

However, the High Court judgment was overturned on 31st July 1997 by the Court of Appeal which ruled that an authority is not entitled to assume that a person could pay the full cost of their care if they have less than £16,000 in capital. In that ruling, the Court of Appeal confirmed the Government's contention that the will of Parliament was clear and that that limit of savings should be protected.

Sefton initially petitioned for leave to appeal to this House against the Court of Appeal judgment but has since withdrawn the application, so the case is not being taken any further.

So why, your Lordships may be asking, is there still need for a Bill? Although the policy intention is clear, it is not necessarily secure in case law. There is still scope for a different view. Any local authority now operating a "Sefton type" policy could certainly be challenged by judicial review, and although the High Court would be bound by the Court of Appeal decision, it is possible, (albeit unlikely) that if the matter were to be considered by the Court of Appeal, it could depart from one of its decisions and deliver a different judgment.

I believe that until the policy intention is explicitly written into the law, social services departments feeling pressed to meet community care demands could be tempted to continue to seek new loopholes.

For those reasons I think that there is a very strong case for putting the policy position beyond doubt by amending the wording of the Act itself. It is clearly more appropriate and sensible for parliamentary opinion and government policy to be explicitly set out in primary legislation rather than left to case-law. It would ensure that this area—the balance of responsibility between the state and the individual—would not in future run the risk of being left to local policy makers. It will reassure the very many older people who feel disenfranchised and are afraid—many of them severely afraid—that they will lose all their hard-earned savings in paying for long-term care.

The Bill intends to remove further doubt about the policy intention that people who are entering residential accommodation should be able to retain a nationally set amount of their capital, as determined by Parliament. Clause 1 of the Bill will amend Section 21 of the National Assistance Act so that local authorities will have to disregard a person's capital up to the limit set out in the Regulations, when considering whether care and attention are "otherwise available" to them. Clause 2 deals with the situation with regard to Scotland and Clause 3 cites the Title.

I must reiterate to your Lordships that there are no financial implications, because the Bill is not imposing new duties or powers on local authorities: it is simply ensuring that local authorities carry out their functions under the National Assistance Act in accordance with the Government's policy intention, which will provide security and peace of mind for elderly people by ensuring that they will be allowed to retain a moderate amount of their capital and that they know explicitly what that amount is.

Finally, I would point out that there is nothing about this Bill which is party political. When the Chancellor in the previous government increased the capital limits to their present levels there was full cross-Party support and I very much hope that your Lordships will find it acceptable. I beg to move.

Moved, That the Bill be now read a second time.—(Baroness Pitkeathley.)

7.11 p.m.

My Lords, I am delighted to be able to support the noble Baroness, Lady Pitkeathley, on this Bill and I hope that when the Minister comes to reply she will also welcome the Bill, as it is a necessary tidying-up measure.

The noble Baroness, Lady Pitkeathley, has very ably described the reasons for the Bill and the content. In this matter I am briefed by Help the Aged, who took part in the original court case and fought it through to appeal. There are, however, still major concerns about other aspects of access to residential and nursing home care by older people which concern them. Help the Aged receives calls all the time from older people and their families about the difficulties they are experiencing in gaining access to community care services and to residential services. They have analysed these calls, and believe that there are outstanding problems in some areas in the following fields.

First, local authorities have a duty to assess the needs of those older people who may require community care services under the National Health Service and Community Care Act. However, it appears to them that some local authorities do not offer an assessment to people whose assets are over £16,000. In other areas there may he considerable delays in assessment. As I understand it, local authorities have a duty to assess the needs of people who are elderly or otherwise in need of care.

Secondly, having made an assessment and agreed that residential or nursing home care should be provided, the local authority may leave it to the older person or their relatives to make the necessary arrangements, if they will be "self payers". This is a very and difficult painful decision for people to make, and few people have the experience to know what it is they should be looking for and what to guard against. I believe that people need good support and advice in making such a major decision, which could affect the quality of life for their remaining years—or possibly only months.

Even in circumstances where the local authority will be meeting the cost of care home fees, there are not infrequently delays between identifying the need for residential or nursing home care and actually providing the services. This varies from authority to authority, but Help the Aged is well aware that in some areas waiting lists for residential or nursing home placements are very considerable. Also, under the Direction on Choice 1992, people should have a reasonable say about the home in which they are to live, whether they are paying for it themselves or whether the local authority is meeting all the fees. However, it is clear that not everybody has access to a home of their choice, even if that falls within the financial parameters set by that particular authority. The reason for this seems to be that some authorities "block purchase" beds in certain homes, leaving little money available to meet the fees of people who make alternative choices.

Help the Aged receives a great deal of anecdotal information through its free advice line about the problems experienced by elderly people and their relatives in gaining access to residential and nursing homes of their choice. As a result, they commissioned research into what is happening in those areas where there appears to be a concentration of problems. The research focused over a very limited period on only five local authority areas. There is reason to believe, however, that similar problems are occurring in other areas, but there is no reason to believe that such practices are universal or even widespread among local authorities.

So far as concerns assessments, local authorities have a duty to undertake an assessment of people who may need Community care services under the National Health Service and Community Care Act of 1990. The research revealed that assessments do not always happen. If people have more than £16,000 worth of assets and are therefore self-funders, they may be sent a list of homes and told to make their own arrangements. In other instances, older people are being advised to use the benefit system to put together a package of benefits which will go some way towards meeting residential home fees, and make up the difference themselves. In both circumstances older people may not get a community care assessment.

I am told that Manchester has a confused policy. One informant told Help the Aged that people with over £16,000 would not get an assessment; another informant said that they would get an assessment but that the social services department would not arrange a placement. Last July an internal memorandum was sent out, instructing care managers not to assess people with over £16,000, but after pressure from the local Age Concern and others, this was retracted. However, a "no assessment" policy seems still to be continuing in some parts of the city. There is also some anecdotal evidence of people not getting assessments in Cambridgeshire if they have more than £16,000.

Turning now to waiting lists, most older people only consider residential or nursing home care in extremis. The noble Lord, Lord Woolf, in his Court of Appeal judgment on the Sefton case, made it quite clear that if an older person is assessed as needing residential care according to local eligibility criteria, the local authority has a duty to arrange such care. The research evidence indicates that this is either not happening in some areas or that there are long waiting lists if people require social services funding to meet residential home fees.

Turning now to the choice of a home, Direction on Choice made it mandatory for people eligible for residential or nursing home care to have a choice about which home they go into. Cultural, religious and personal preference should all be taken into account. However, in some areas such choice appears not to be available to those who require social services funding. I am told that in Liverpool beds in council homes are "block purchased" so that they are already paid for and the money is already committed. They say they can only put people in private homes when cash becomes available and then they can "spot purchase" an individual bed for a specific person in a home of their choice. People are told they can go into a council home specified by social services almost straight away, but if they want a private home of their choice they will have to wait a long time. This of course can lead to very much greater pressure on the older person and that person's family.

There is another matter, where local authorities seem to wish to maximise the income from the older person for the council. As the House will appreciate, most older people want to stay in their own homes for as long as possible. One of the aims of the National Health Service and Community Care Act was to support people in the community and divert them from unnecessary residential or nursing home care. However, when people need a relatively high level of support it is financially advantageous to the council to place them in residential or nursing home care, since the people contribute their own incomes, including pensions and benefits to which they may be entitled, and the net cost to the council is reduced—the well -known perverse incentive. If residents have assets in excess of £16,000, including the value of their home, the cost to the council is, of course, nil.

I understand that Cheshire seems to have adopted a deliberate policy of increasing the use of residential care in order to reduce its own spending. On 14th January last year, in a report on special transitional grant and placement activity, it stated:
"There continues to be a gradual shift in favour of residential care associated with the Group's corrective action strategy aimed at reducing the current overspend. There is a perverse incentive to looking after people in a residential setting as opposed to their own homes as greater access to DSS benefits and statutory charges results in higher income levels for the authority when people are in residential care".
I understand that for the past 18 months the service has been delivered on a strictly cost minimisation basis and that there has been a significant negative impact on clients. I also understand that in some homes, not necessarily in Cheshire, the residents do not receive the £14 a week to which they are entitled out of their own income to spend on themselves—on soap, bath essence or presents for the grandchildren. That is disgraceful.

I am coming to the end of my speech. I am sorry that it has been rather overlong. Will the Government make certain that local authorities carry out the following acts: first, that they carry out their statutory duty to assess the needs of those older people who may require community care services, in accordance with the National Health Service and Community Care Act; secondly, that they make arrangements for the provision of residential or nursing home care for those who are assessed as needing it, in accordance with the judgment of the noble and learned Lord, Lord Woolf, in the Court of Appeal in the Sefton case; thirdly, that they minimise delays in assessment and take steps to reduce the length of waiting lists for the provision of services; fourthly, that they implement the Direction on Choice so that older people have a reasonable say about the home in which they are to live; fifthly, that they offer people support at home where their circumstances allow that and not propel people into residential or nursing home care merely because it is financially advantageous to the council to do so; and, finally, that they abide by the national regulations with regard to charging for residential and nursing home care? I support the Bill.

7.22 p.m.

My Lords, certain Bills come under the heading, which I first saw in 1066 and all that, "Basically, this was a good thing". This Bill comes under that heading. The noble Baroness, Lady Pitkeathley, deserves praise not only for bringing forward the Bill but also for doing so after we have chewed our way through so much ham in the previous debate. It was nobly done, if that is not an overly-used phrase in this House, and it is certainly a measure that should have been brought forward before now.

As the noble Lord, Lord Swinfen, pointed out, the Bill is not a panacea to cure all the evils in this sector. There is still considerable diversity of quality of care throughout the sector, but giving a finite limit of £16,000, after which one is entitled to support, is a positive step forward. It stops worry and it stops stress. It means that elderly people will have a better idea of where they stand. It is probably a description of just how creaking a ship we are dealing with here that we have to have a Private Member's Bill to get a degree of clarification into the regulations. If people stop worrying about this, they will know how to plan.

I support the Bill. I hope that there will be less need for courageous Back-Benchers to bring forward Bills and that the Government will be able to give us an indication that they will take this problem away and deal with it across the board in the near future.

7.24 p.m.

My Lords, the House will be grateful to the noble Baroness, Lady Pitkeathley, for introducing the Bill and for the capable way in which she has done so. This is a measure designed to establish firmly in law a decision taken during the previous Parliament by my right honourable friend Mr. Kenneth Clarke, the former Chancellor of the Exchequer, to improve the lot of those elderly people of modest means who are in need of residential or nursing home care. That decision to increase the relevant monetary limits which determine entitlement to state support was subsequently approved by Parliament and was widely welcomed.

It was welcomed as a recognition of the principle that those people who have worked and saved during their lives should be entitled to look to the state to support the cost of their care in old age without, as a pre-condition of that support, having to forfeit all of their private capital. Unfortunately, as the noble Baroness has explained, the legal position surrounding the changes to the means test is unclear.

It was placed into doubt by the decision of the court to uphold the actions of Sefton Borough Council, which took it upon itself to ignore the thresholds that had been laid down and to refuse assistance to a considerable number of people whose entitlement to it should have been indisputable. While, as we have heard, the Court of Appeal reversed that decision, it is unsatisfactory to have a situation whereby another hard pressed local authority might perhaps seek to pursue the matter in the courts at the point where Sefton Borough Council left off and, in the meantime, cause a great deal of stress and anxiety to a further group of elderly people. It is not right that the law should be ambiguous or that it should not fully reflect the clear wish of Parliament. From these Benches we have no hesitation in supporting the Bill whose purpose is to put those defects right.

I should very much like to believe that our worries on the matter could end here. It strikes me that in any area of the law it is always possible for an ingenious lawyer or an ingenious local authority to find a way round inconvenient obstacles. Indeed, worries were voiced in another place, and again today by my noble friend Lord Swinfen, that a local authority, if so minded, might deliberately delay assessment of an individual for community care services. When the Minister comes to reply, I should be very grateful if the noble Baroness will say whether any sanctions are available against a local authority seeking to evade its responsibilities by adopting deliberate delaying tactics. Will she also confirm that once a person has been assessed as needing residential care and as being entitled to such care at public expense a local authority is not able to delay or refuse that care on the grounds that it has insufficient resources to do so? In other words, are there rules in place which are sufficient to close off those avenues?

I have a further question to which I should be glad of an answer. The Bill and its Explanatory Memorandum make clear that the capital thresholds which determine an individual's entitlement to care are as laid down in regulations from time to time. Will it be necessary to bring forward regulations under the National Assistance Act 1948, as amended by the Bill, prescribing the new thresholds; or is it the case that Parliament is being asked in this measure to accept an element of retrospection which will render a further statutory instrument unnecessary?

The Minister in another place, Mr. Boateng, described the Bill as modest and uncontroversial. That is so. But it is nonetheless necessary for that. The Government have declared their support for it. The only puzzle perhaps is why they have not brought it forward as a government Bill. Whatever the arcane reasons for that decision, I believe we should all acknowledge that great credit is due to Help the Aged for its role in pursuing these issues in such an assiduous way. I am very pleased to offer the noble Baroness my support for the Bill and I wish it well in its passage through your Lordships' House.

7.30 p.m.

My Lords, I would like to congratulate very warmly my noble friend Lady Pitkeathley on bringing forward this Bill and to thank all noble Lords who have taken part in this short debate for their general support for her measure. The Bill has the complete support of the Government and I commend it to the House.

One of the reasons why the Bill has not come forward as a government measure is largely the pressure on the legislative time that we have before us. I support the noble Lord, Lord Addington, in thinking that perhaps if this House spent more time on these sensible measures and not on some of the things that we have discussed at length this afternoon, it might not have been such an issue. But at this point in the evening I do not wish to be controversial. As my noble friend said in introducing the Bill, it is a simple measure but of considerable importance, particularly to elderly people seeking to safeguard a fixed amount of their capital assets. Nonetheless, it is a tightly focused Bill on one specific issue.

Although I heard, for example, the extremely authoritative list of proposals which the noble Lord, Lord Swinfen, suggested to improve access to and assessment of residential care, the Bill is designed, as the noble Earl, Lord Howe, said, simply to deal with the loophole created by the so-called Sefton decision. I would very much welcome the opportunity to discuss some of the broader points raised by the noble Lord, Lord Swinfen, and the noble Lord, Lord Addington, on general policy in this area, but tonight I shall confine my comments to the specific matter of this Bill.

Like the noble Earl, I would like to take the opportunity—since the noble Lord, Lord Swinfen, said that he, too, was briefed by Help the Aged—to acknowledge the important role that the voluntary sector plays not simply in providing the great care that it does but in advising and helping us in Parliament on some of the broader issues.

As your Lordships will be aware, the treatment of capital in the residential charging system, which is the point of this tightly focused Bill, has in recent years been the subject of considerable controversy. But safeguarding a set amount of capital is of great importance to everyone who enters residential or nursing home care and indeed to their families. Most of the people entering such care are, as one would expect, very elderly and sometimes quite vulnerable and many of them have saved all their lives to prepare for their old age. We owe it to these senior citizens to protect a modest amount of their life savings and/or, for example, the proceeds from the sale of the family home which might indeed be passed on as a nest-egg either to grandchildren or children or simply kept by themselves for small luxuries in the way that has been described.

I know that there are those who question, in strict fiscal policy as it were, why it is that someone at this stage of their lives and whose primary needs are presumably entirely catered for in a residential home should be allowed to keep this amount. But I do not believe that this provision is based on need but on a humane and reasonable approach, which I believe has support all round the House, towards those people who may have worked for many years and often struggled to save in modest circumstances to pay for a mortgage or to buy their own home. We believe that for those people there should be a reasonable balance between the state and the individual in paying for their social care.

As your Lordships have heard, last year the Court of Appeal upheld the view that has been taken by successive governments and decided that this level of saving should be protected. But the very fact that at least one local authority had sought before to ignore the capital limits and had to be taken through the legal process showed that the position was not secure. As my noble friend Lady Pitkeathley pointed out, even with a Court of Appeal judgment some unequivocal statutory provision seemed to us to be needed.

We turn now to the very important example that the noble Lord, Lord Swinfen, introduced about waiting lists. It has come to our attention recently that, despite the Court of Appeal judgment, some local authorities are ignoring the capital limit by establishing waiting lists for residential care. As the noble Lord said, that can result in elderly or disabled people being forced to put themselves into a home and use up their capital savings until they reach the £16,000 level in order to receive the care that they need.

Unfortunately, it has become clear that until the policy intention is explicitly written into primary legislation, some social services departments will continue to side-step the law, and that is why the loophole needs to be closed.

I would like to respond to the noble Earl's point about the loopholes. I am advised that all the legal loopholes about personal capital assets are covered by this provision. But the questions about guidance and regulation to local authorities become slightly more tenuous, shall we say. It is based on guidance rather than primary statute.

We believe that the guidance to local authorities which is binding and which is issued under Section 7 of the Local Authority Social Services Act should meet the concerns about some of the issues which were raised. That will be monitored by local social services inspectorates. As regards the issue of personal capital assets, I am advised that those legal loopholes have now been closed.

The noble Earl also raised the question of the element of retrospection in this law. It was raised in another place, too. I believe that, although it might normally be regarded as unacceptable and bad practice as far as law-making was concerned, there was a general understanding that concerning this very specific measure covering the small area of revising and improving the statute, the element of restrospection would be agreed. I very much hope that that will also be the attitude of your Lordships' House—to approve what I believe we have agreed is the uncontroversial and simple purpose of the Bill, simply to enforce the current capital threshold, which was the original intention of Parliament, so that it is applied equally to anyone in the United Kingdom needing residential accommodation. Therefore, I reiterate the Government's support for this excellent Bill. I am grateful to my noble friend and those noble Lords who support it. I commend it to the House.

7.36 p.m.

My Lords, I am most grateful for the contributions tonight and for the general agreement that the Bill is a good thing. It emphasises, as noble Lords' contributions have done, the cross-party nature not only of the support for this Bill but of the concern about general community care issues. As someone who has spent her working life working and campaigning on these issues, it is pleasing to have that support confirmed and emphasised.

This Bill is modest, as has been pointed out, but its provisions will be of great importance in offering clarity to older people and their families about what they can expect and in setting their minds at rest about how much of their capital they may retain. Anxieties about this run very high, as noble Lords have pointed out. I am particularly grateful to the Minister for re-affirming the Government's support for the Bill and the original policy intention to safeguard modest savings.

The Bill will most certainly not solve all the problems faced by older people and their families when it comes to residential care or waiting lists and whether the current capital limits are adequate or the current system for funding long-term care is right. It will not address any of those things. But the wider issues are being considered by the Royal Commission on long-term care which is due to report at the end of this year. The fact that the Government made a manifesto commitment to set up a Royal Commission shows that they recognise, as do all your Lordships, how important the provision and funding of long-term care for older people is. This Bill makes a small but important contribution towards the development of policies which will be clearly set out so that everyone will know what they can and, equally important, cannot expect from long-term care provision. I commend the Bill to the House.

On Question, Bill read a second time, and committed to a Committee of the Whole House.