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Care and Support Regulations

Volume 759: debated on Thursday 12 February 2015

Motion to Take Note

Moved by

That this House takes note of the 17 negative instruments relating to care and support laid before the House between 24 and 31 October.

Relevant document: (See Negative Instruments list) 14th Report from the Secondary Legislation Scrutiny Committee

My Lords, following last week’s consideration of the affirmative regulations, I very much welcome the opportunity for further discussion and scrutiny of the implementation of the Care Act. These 17 draft regulations range widely across key aspects of the implementation: the updated assessment process for care and support for adults and carers; the charging, personal budget and direct payment arrangements, and deferred payments; and the NHS/local authority interface for providing care and support, particularly continuity of care. These are important issues and our consideration of them is also very timely, with the publication last week of the Government’s consultation on the draft regulations bringing in phase 2 of the Care Act implementation, on the cap on care costs. I do not intend to go into any of the details of the consultation today; suffice it to note that, at this stage, the closing date for responses to the phase 2 consultation is 30 March 2015—with, of course, the small matter of a general election in between.

For the record, too, this is the third debate we have had on regulations implementing the Act. My noble friend Lord Lipsey, who unfortunately cannot be in his place today, raised a number of key issues in relation to the deferred payment regulations in a debate in the House before Christmas. I do not intend to repeat that debate today, other than to remind the House about my noble friend’s continued concerns over the confusion he fears will be caused by bringing in the regulations this April rather than under the phase 2 implementation of the cap on care costs in April 2016. I also underline the widespread frustration of care and support organisations, and of many noble Lords, that the take-up of the scheme is likely, in reality, to be pretty low because of the Government’s decision to limit it to those with less than £23,250 in non-housing assets.

I begin today’s consideration of the regulations by underlining that, while I was very happy to expedite the business of the House by taking all 17 regulations together, I hope that the House will bear with me again as there are a number of areas to cover in relation to both the implementation of the Care Act and some of the individual SIs. I also take the opportunity to thank the Minister for his very helpful follow-up letter responding to issues raised during consideration of the affirmative regulations that he did not have time to address.

I turn first to the regulations on the assessments for adults and carers, which update the process to reflect the focus on outcomes on the basis of best practice, existing policy and consultation. These regulations improve and develop previous guidelines, particularly the requirement for the assessment to consider the impact of the person whose care needs are being assessed on their carer and their family. I know I would say this, but it is so important to ensure that the carer’s physical, mental and emotional well-being are part of the assessment of an adult’s need for care, as well as the impact of caring on the family as a whole. There are still concerns about how the provisions for local authorities to delegate the carrying out of and decision-making on carers’ assessments will work in practice and on the issue of charging a carer for support to meet their needs, but my noble friend Lady Pitkeathley will address these in her contribution.

We also welcome the specific reference in the assessment regulations to the assessment of people with fluctuating health conditions such as MS and Parkinson’s disease, where symptoms can vary unpredictably by the month, day and week. My noble friends Lord Dubs and Lady Gale advocated this strongly during the passage of the Bill, and we welcome the duty placed on local authorities to ensure that assessments for these and similar conditions take account of the person’s state of health over a period of time. Parkinson’s UK is concerned to ensure that local authorities interpret this provision in terms of months rather than weeks, to establish patterns of care need as well as more rapid fluctuations over a 24-hour period. I would welcome the Minister’s reassurances on this.

As with a number of other conditions, everyone’s experience of Parkinson’s is different and may include, at a particular stage in time, motor symptoms, slowness or rigidity, physical symptoms such as pain, fatigue or bladder or bowel problems, and mental health conditions such as anxiety or depression. It is very important to have the person’s condition assessed over a suitable period.

During the pre-Christmas debate on deferred payments, my noble friend Lord Hunt raised our concern that assessments should be retrospective to the date on which the applicant makes his or her submission for an assessment, rather than on the date that the local authority conducts it, which could be delayed due the authority being overwhelmed with applications and lacking the capacity to deal quickly with them. We were thankful to the noble Baroness, Lady Jolly, for clarifying this in her letter of 12 January, which stated:

“If a local authority was delayed in performing a person’s assessment, their progress towards the (care) cap would apply retrospectively and be backdated accordingly to ensure they were not worse off as a result”.

We were grateful for this important reassurance, but I am not sure that local authorities are clear on this and on when backdating takes effect. They continue to be concerned at the prospect of having to assess whether need would have met the threshold at the time of application. Can the Minister further reassure the House that the Government’s clarification on this matter will be contained in national guidance and that it will not just be left to local discretion or interpretation? Consistency across local authorities on the basis for recording information and data on care accounts is vital.

Finally, on capacity, we need to come back again to local authorities’ continuing concern about the adequacy of funding for phase 1 of the Care Act’s implementation in the face of modelling that shows increasing support needs for councils around IT, workforce and information advice. As careful as the modelling work undertaken by the joint LGA/ADASS/Department of Health programme management office has been, the fact is that take-up on assessments, particularly from self-funders wishing to start the process rolling for costs to be counted towards the cap, can only really be estimates at this stage.

I know from personal experience and from speaking to other carers caring for people with significant care and support needs that the questionnaire for assessment of applicants with complex needs and their carers is on average 40 pages long, taking two or three face-to-face briefings and interviews with a social services team member. There are a number of follow-up processes, too, such as the verification documentation for any agency provider of care; health and welfare assessments; medical management assessments; moving, handling and safeguarding assessments, and so on. Then the all-important financial assessment process is to be faced. These are processes that need to be thorough; they are not simple, quick and straightforward administrative processes for councils. However, I recognise that many assessments will be more light-touch self-assessments, for individuals concerned with getting their details “logged” so that their accrued costs can begin counting towards the cap.

The LGA has called for financial compensation for councils that are shown under the monitoring framework being developed by ADASS to have incurred extra implementation costs over and above their 2015-16 allocation. The Minister’s correspondence assures me that monitoring data on this will be collected during 2015-16 to determine whether the estimated costs outlined in the impact assessment are accurate, and that additional funding costs would be considered as part of the next Government’s spending review—so we will leave it at that at this stage.

The regulations covering the charging and assessment of resources are more than 20 pages long and are not for the faint-hearted. They broadly follow the previous process for calculating what a person can afford to contribute towards the cost of their care, setting out the £23,250 cap on local authority contributions towards residential care but now also providing for councils to be able to pay towards the cost of care and support of a home care user or carer whose savings total more than this amount.

This extension to the home care situation is welcome, as is the setting of the minimum income requirement on a regulatory basis for those in non-care accommodation and, as I understand it, their carers. The specific thresholds for this reflect income support thresholds, but may I ask the Minister why the previous practice of the thresholds being adjusted annually for inflation has not been followed? Is this now being left to local authority discretion?

On pensions, I notice in Regulation 16 of the charging and assessment of resources regulations the reference to pension annuity payments being treated as income. While this reflects current practice, it brings us back once again to the thorny issue of the interaction of pension flexibilities under the Pension Schemes Bill with the benefits and social care means tests, and how pension pots will in future be treated for assessment of care and support. The Minister will recall that I questioned him last week on the Department of Health’s involvement in ongoing discussions on this following the dogged attempts made by noble friends on this side to get Ministers dealing with the Bill to acknowledge and address this problem.

I understand from the response of the Minister, the noble Lord, Lord Newby, at Third Reading that in relation to means-testing for benefits or care and support we are now in the position that, if cash is drawn from a pension pot, it will not be dealt with as income. However, ISA savings will be counted as capital unless transferred to a pension pot, and not be deemed as deprivation of assets if the funds are so transmitted. The Minister has confirmed this to me in his letter. According to the noble Lord, Lord Newby, the Government intend to issue what they call “clear guidance” on the treatment of pension pots in income-related benefits in advance of April, when the new pension provisions come in, and thereafter to monitor the situation and, “respond proportionately if we need to”, in the words of the Minister.

The letter of the Minister, the noble Earl, Lord Howe, reassures noble Lords concerning the Department of Health’s involvement in the development of the Pension Wise service, which will issue guidance on these key areas. He is also confident that the duty placed on local authorities to facilitate independent financial information and advice will enable them to provide the support that people need to make informed choices. However, these are very complex issues and the advice across government departments and from local authorities needs to be clear and consistent. I would welcome the Minister’s assurance that he has full confidence that this will happen.

The final batch of regulations deal with important interface issues between the NHS and local authorities, such as: hospital discharges to local authority care; interaction between clinical commissioning groups and councils; the provision of NHS continuing care; and ensuring continuity of care when an individual receiving care and support intends to move from one local authority to another—the portability provisions so hard fought for by the noble Baroness, Lady Campbell, who is unfortunately unable to be in her place today. Overall, these regulations are important to the improvement of NHS and local authority co-operation and joint working, which are so vital to the future successful integration of care and support. I was pleased to see that, under the hospital discharge regulations, the fines that the NHS can impose on local authorities for delayed discharges of patients from acute hospitals are now optional rather than obligatory, reflecting the fact that most hospitals apparently no longer impose these fines anyway. This is a welcome change as, in the past, too many patients and families have been caught in the middle of some very unpleasant rows between hospital and council over funding responsibility. That is a very upsetting place to be at a time of great uncertainty and trauma for the patient, carer and family.

I want to raise an important issue on the question of care and support regarding ordinary residence. The Care Act regulations extend types of accommodation where a person’s ordinary residence would be deemed to remain with the original authority to cover shared life schemes and supported living, which provide excellent support for people with complex care and support needs. These regulations are designed to resolve disputes between authorities but will do so only if it is clear and unambiguous who is and is not covered. Section 39(1) states that an adult is covered by this only if their needs can be met in specified circumstances.

However, the Care & Support Alliance is concerned that there is a significant risk that local authorities will dispute whether needs can be met only in such accommodation, which will still leave many people with high support needs as the subject of disputes about which council will fund their support. Section 39(3) allows for the making of regulations to clarify this, but these powers do not appear to have been used in the regulations covering the ordinary residence position. Are the Government confident that the definitions in the Care Act regulations are clear enough to prevent disputes between local authorities? Why are the powers in Section 39(3) not being used to clarify Section 39(1)? Does the Minister acknowledge that the reference in the latter subsection to,

“needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations”,

will cause confusion and disputes unless properly clarified?

I have one more important issue to address before I conclude. What role do the Government expect health and well-being boards to play in overseeing the implementation of the Care Act? I ask this because we would have expected the role to be a key and strategic one. Yet both the feedback from local authorities and the comments in the King’s Fund’s recent review, The NHS under the Coalition Government, about the current readiness of many health and well-being boards to tackle the key strategic issues facing them, are deeply disappointing and disturbing. HWBs have been operational for more than 20 months and were to be the key vehicle for integration and collaboration under the Government’s restructured NHS.

The House will recall that we strongly supported those boards and advocated increased powers to give them the vital leadership, impetus and support to joint working and co-operation across health and social care that was needed. Yet the King’s Fund’s assessment of their performance so far is pretty stark:

“While the creation of health and wellbeing boards was widely welcomed, their impact and influence has been variable, and generally limited ... Boards have shown few signs of being able to provide the collective leadership needed to tackle the urgent issues facing their local systems, and have often chosen to prioritise other issues ahead of promoting integrated care”.

Of course, we know that a number of boards have been working hard on key priority areas such as joint strategic needs assessments, the better care fund and public health but many are still establishing themselves and surely we should expect health and well-being boards by this time to be playing a major role in such key areas as Care Act implementation. Can the Minister tell the House what action the Government are taking to ensure that health and well-being boards undertake the key functions and duties expected of them, and how the Government will ensure that they discharge their responsibility for overseeing the Care Act implementation, particularly as it enters into the first phase in just two months’ time?

My Lords, I thank my noble friend Lady Wheeler for the clear way in which she set out her concerns about these regulations and her tenacity in pursuing this issue. I want to comment on two parts that are of particular interest to carers: first, the delegation of assessments and, secondly, concerns about charging carers. The Minister will know that I have always warmly welcomed the Care Act, which showed a hugely significant development for carers, giving them the clearest rights ever to an assessment of their caring role.

Although it is already possible for local authorities to delegate the carrying out of a carer’s assessment, from April they will be able to delegate the carrying out of the assessment and, for the first time, the decision on whether the carer is eligible for support. This is a significant change and local authorities are considering whether to delegate their assessments in future. I have a number of concerns about this. Considering a carer’s assessment in isolation from the assessment of the person they are caring for will make it difficult for those making eligibility decisions to consider the family’s situation in the round—as my noble friend has reminded us—and is unlikely in my view to result in the best outcomes being identified for that family or the right action taken to achieve these outcomes. Moreover, the complaints and appeals system will be at arm’s length from the local authority, making it more difficult for families to get redress if they have complaints about the way in which an assessment is carried out or the decision made on eligibility. What measures have the Government put in place to avoid or mitigate these unintended consequences of delegating carers’ assessments? I stress that I understand that they are unintended consequences.

I am also concerned about charging carers for services. The Care Act retains the current power allowing local authorities to charge for services provided to carers. It also confers a new power to charge carers for arranging services for them if they request the local authority to do so. Currently very few local authorities charge for carers’ services but, with increasing pressures on budgets and the new duty to provide services to carers, we know that some local authorities are considering charging carers for the first time, perhaps not surprisingly. This would be an unintended and very unwelcome consequence of the new legislation. I recognise that the Government have further strengthened the statutory guidance on charging carers, but I am still concerned that the Care Act will result in an increase in the number of local authorities which make charges for services to carers. Perhaps I do not need to remind the House, because I have done it so often, that carers contribute a huge amount often at a great personal cost as caring has a negative impact on their finances, their health and well-being and opportunities to engage in work, leisure and education. That figure that I always quote is that carers save the Exchequer £119 billion. Charging a carer for support to meet their needs, often in order to help them to continue caring, risks being counterproductive by preventing carers from accessing services and may even discourage carers from seeking support. The adoption of charging policies might very well result in additional—not fewer—costs to local authorities. A carer and the person they are looking after—sometimes they look after more than one—may not have the same income. In many cases, carers have given up work or live on a reduced income as a result of their caring responsibilities, so will the Government commit to monitor the extent to which local authorities are charging for services provided to carers and publish the results as part of their evaluation of the impact of the Care Act? We should all bear in mind that this could have consequences way beyond the initial discomfort for the carer, in that many carers may then choose not to take up the caring role. I will be glad of the Minister’s response.

My Lords, I thank both noble Baronesses for their thoughtful questions and comments. I will seek to address as many as possible today and respond to others in writing as need be.

These 17 sets of regulations give full expression to many of the key aspects of the reformed care and support system envisaged by the Care Act. First, there are two sets of regulations that set out important details of people’s rights as they progress through the pathway of care and support envisaged by the Care Act. The assessment regulations specify further matters about carrying out an assessment under Section 9 of the Care Act, while the direct payment regulations largely replicate the existing regulatory framework around this, but with some changes to make the framework more flexible and less bureaucratic.

The noble Baroness, Lady Pitkeathley, asked about charging for carers’ assessments. The joint implementation programme has commissioned the ADASS carers policy network to produce a document on the economic case for investment in carers which will expand on the case set out in the Care Act statutory guidance that charging carers for services needs to be considered carefully. It can often be a false economy to charge carers beyond, of course, the moral case for recognising and supporting the extraordinary contribution that carers make to our society. We are putting in place a robust set of measures to monitor the implementation of the Care Act and I will of course keep this matter under review, as will my department.

There are five sets of regulations that help to ensure that people pay a fair amount for their care and support and have adequate choice in the way their care and support needs are met. The charging and assessment of resources regulations set out how a local authority must conduct a financial assessment when seeking to calculate what a person can afford to contribute towards the cost of their care and support. The choice of accommodation regulations set out conditions regarding the choice of placement in residential care. The deferred payment regulations set out the circumstances in which local authorities may or must enter into deferred payment agreements. They also make provision as to the operation and content of the agreement. As the noble Baroness, Lady Wheeler, mentioned, these regulations were the subject of a specific debate in your Lordships’ House in December, following two Motions tabled by the noble Lord, Lord Lipsey. In addition, there are two smaller sets of regulations that specify whether certain types of services can be charged for and on certain costs to be excluded from personal budgets.

There are a further four sets of regulations that relate to general local authority responsibilities, as opposed to duties regarding individual people set out elsewhere, such as in the assessment regulations. The advocacy regulations set out the considerations for determining whether a person would experience substantial difficulty in doing certain things connected with being involved in the care and support process, which may trigger a local authority’s duty to provide an independent advocate. The instrument also establishes the requirements of an advocate and the manner in which they must carry out their functions.

The market oversight information regulations make provision for the Care Quality Commission to obtain information to help it assess the financial sustainability of providers. The sight-impaired and severely sight-impaired adults regulations specify the persons who are to be treated as such for the purposes of local authorities’ duty to maintain registers of these groups.

There are a further two statutory instruments that set out important details of local authorities’ interaction with NHS bodies. The provision of health services regulations essentially set the boundary between care and support functions on the one hand and healthcare on the other, while the discharge of hospital patients regulations cover the details of the regulatory framework for the discharge of hospital patients with care and support needs.

I come last to the five statutory instruments that relate to ensuring there are clear procedures and responsibilities when people move between areas. The first two primarily concern ordinary residence, which is a mechanism for allocating responsibility between local authorities for meeting needs. The ordinary residence specified accommodation regulations make provision about the types of accommodation to which provisions in the Act deeming ordinary residence apply, while the ordinary residence disputes regulations set out the procedures that must be followed if a dispute concerning ordinary residence, continuity of care or provider failure arises.

There are a further two statutory instruments that make provision about similar issues, but arising from a placement from one UK country into another, rather than within England. The first sets out how disputes will be handled, while the second makes provision around business failure duties for Scotland, broadly to ensure reciprocity of duties across the UK.

Lastly, the continuity of care regulations set out the matters that a local authority must consider in fulfilling its duty to meet the care and support needs when a person moves home to its area, where the authority of previous residence was meeting such needs and a new assessment has not been conducted.

The noble Baroness, Lady Wheeler, asked me about the reference in the ordinary residence regulations to the phrase “needs can only be met”. The guidance makes clear that needs should be judged to be able to be met through a specified type of accommodation only where the local authority has made this decision following an assessment and the care and support planning process involving the person.

I wanted to make noble Lords aware that we propose to introduce a short set of amending regulations to make several small changes to some of the regulations I have described; and, in answer to the noble Baroness, Lady Wheeler, that includes the uprating of certain allowances in the charging regulations in line with existing practice on annual uprating of figures and some minor corrections of cross-references and terminology in two of the regulations. We are also making a change to the deferred payment regulations to make clearer that the provisions concerning disposable income do not apply if the local authority ceases to make deferrals. We will make a change to the list of local authorities that may make a direct payment for accommodation in a care home to reflect developments in the pilot scheme relating to this.

We will make a change to the regulations on specified accommodation so that the ordinary residence deeming principles apply only from the date a person living in the accommodation receives care and support under the Act. The purpose of the amendment is to ensure that the deeming rule does not apply when a person is living in a specified type of accommodation, such as a care home, before they begin to receive care and support from the local authority. In such a situation the normal ordinary residence rules should apply. That is the position under the current legislation and it has always been the intention that the Care Act should not change this.

The noble Baroness, Lady Wheeler, asked me whether guidance will be clear that local authorities should backdate the care account if an assessment is delayed. We will ensure that guidance provides clarity on this point. If I can elaborate on that in a letter I will certainly be happy to do so.

I hope I have been able to address at least some of the main points raised today, but as I said at the beginning, I shall write after this debate to noble Lords with any further points that I have not been able to cover.

I thank the Minister for his response. It is customary to say, “It has been an excellent debate”, but since only three of us spoke I will say that it has been informative, very valuable, and that all contributions have been excellent. I particularly welcome the Minister’s comments around the carers’ organisations and that he will keep that situation under review. I am sure that he will meet carers’ organisations if he needs to, if there are continuing concerns.

I will finish by reiterating our strong support for the key principles of the Care Act. The majority of the foundations of the Act build on work started by Labour—the personalisation of care agenda, personal budgets and direct payments, independent living, the national carers strategy, and the groundbreaking work of the Law Commission to consolidate six years of fragmented social care legislation—and of course carried through by this Government. However, we said from the outset that implementing the Act in the face of significant funding cuts and financial pressures faced by local authorities would be a huge challenge, and so it is proving. It will be particularly so for the phase 2 implementation of the cap on care costs. Whichever party is in office after May will need to work closely with local authorities and with care and support users and organisations to monitor implementation of the Act and make decisions accordingly.

Motion agreed.

House adjourned at 1.46 pm.