Care and Support Regulations

Baroness Wheeler Excerpts

Thursday 12th February 2015 Lords Chamber

Moved by

[Baroness Wheeler]

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

[Baroness Wheeler (Lab)]

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”.

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[Baroness Wheeler]

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.