Care Bill [HL]

Lord Hunt of Kings Heath Excerpts

Monday 22nd July 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, when this issue was discussed previously I had the feeling that Monitor had at least some claim to having the kind of expertise which goes some distance in this area whereas, as far as I could understand it, CQC did not seem to. I entirely agree with the noble Lord, Lord Warner, that what either of them has at the moment is probably unequal to the task of seeking out exactly what is going on and seeing how great the risks are. It is pretty obvious that to understand the risks in these financial transactions is a very difficult task. We have seen examples, not particularly in this area but in others, where serious risks have emerged which were not suspected until very close to the time of their emergence.

I also agree with the view that one great factor in the care regime is the number of local authorities that are to be involved. Some degree of understanding at least the variation across these 152 authorities is essential. During the workings of the Joint Committee, I was impressed by the skill of some of the local authority representatives we had before us but they were in quite a particular position in relation to their work. I am not sure that their knowledge, expertise and feel for the situation necessarily goes right across the sector. I do not at all decry the valuable work that local authorities do but the variety of tasks assigned to them is very great and the care situation must be among the most difficult of their responsibilities.

[Lord Hunt of Kings Heath]

My Lords, this is an important debate and the collapse of Southern Cross has brought it home to us how the risk of financial failure is likely to be a continuing problem in this sector. That is why it is important to understand whether the regulatory regime that the Government are proposing will be robust enough and whether it will have access to the kind of information that will enable the regulator to take a view on the viability of those companies which seek to do business in this area.

We are going back partly to our earlier debates when we discussed the new failure regime. At that time, I referred to the Department of Health factsheet that we were given, which said that the new failure regime will give regulators clear roles in tackling failure. However, I do not think that is actually so in practice. According to the department, the Care Quality Commission will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority, which deal with non-foundation trusts, will focus on intervening if a poorly performing provider is unable to resolve the situation by working with commissioners. As we have heard today, the CQC retains enforcement powers for social care, general practice and independent sector providers. This whole picture is very confusing and in his Mid Staffordshire inquiry Robert Francis made it clear that regulatory complexity can contribute to system failings.

I am still unclear about the interrelationship between Monitor, CQC and the NHS Trust Development Authority so as to know whether they are going to work together to ensure that problems are acted on. I am still unclear whether when Monitor and the NHS Trust Development Authority are asked to intervene as a result of the CQC’s concern about findings in relation to safety and quality, they simply carry out the instructions of the CQC or have to go through the same process to satisfy themselves as public bodies with specific statutory duties—certainly in the case of Monitor—whether they share the concern about quality or simply take the CQC’s word on trust. As the actions of these regulators are likely to be tested in the courts, one way or another, clarity at this stage would be very welcome indeed.

My noble friend makes the case that, because of its expertise and experience, Monitor would be a better bet for looking at financial issues to do with care providers. It is very difficult to understand why bits of the system have been dealt with differently and the CQC is considered acceptable in relation to private care providers for adult social care and so on but not for NHS foundation trusts. The Government have brought a rather curious mish-mash to your Lordships’ House.

On my noble friend’s second amendment, I share his view and am not sure that NHS England is the right body to have a duty to scrutinise the commissioning plans of local authorities. However, I very much agree with my noble friend that it is very important that there is a method of checking on the performance of local authorities in their commissioning of adult social care services. My noble friend mentioned Winterbourne View as an example of where a number of local authorities placed clients but having placed them paid no attention to their experience. That was a salutary warning about the problems of local authority commissioning.

I wonder whether the CQC ought to be the body which undertakes that responsibility. Clause 5 sets out that the local authority is responsible for promoting diversity and quality in provision of services. The local authority clearly has responsibility for ensuring that there are sustainable providers in the market. I also refer my noble friend to Clause 80 which sets out the CQC’s responsibilities in performance assessment and performance ratings. My noble friend will see that under Clause 80(2) the proposed new Clause 46(3) of the Health and Social Care Act 2008 sets out that:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social service provided or commissioned by the authorities as may be prescribed”.

My reading is that the CQC is given powers to do what my noble friend wants. The question—we debated this when we debated Clause 5—is the extent to which the Government are so going to prescribe. I would like to hear from the noble Earl, if possible, that the Government have reflected on our earlier debate and have come to the view that it would be a very good thing to prescribe that all local authorities should have their commissioning performance reviewed by the CQC as a matter of priority.

My noble friend raised the question of Winterbourne View. We debated the problem of the contracts local authorities have set with private providers where they are contracting staff on very low rates of pay. These are the same providers which in some cases are giving 15-minute periods of service, with staff on zero-hour contracts and often having to pay the cost of their travel. I do not believe that those are the right circumstances in which a quality service could be given. That is why I believe that the CQC should prioritise the commissioning responsibilities of local authorities. If it did, it would answer the question posed by my noble friend.

[Earl Howe]

My Lords, I begin with an observation that I hope is incontrovertible: it is unacceptable for care users to be left without the services that they need, particularly where the interruption of those services, or the worry that this might happen, could badly affect their well-being and place unacceptable stress on them and their families, friends and carers. As the noble Lord, Lord Hunt, rightly observed, the collapse of Southern Cross in the autumn of 2012 highlighted the importance of this principle. Although no one was ultimately left without the services they needed, many people suffered from a considerable amount of stress and anxiety as a result of worries over whether the services that they, their friend or their relative relied on would stop being provided. At the time, there were no formal mechanisms for the Government to ensure that that was the case.

The Government are therefore introducing, through the Bill, a new system of financial oversight of the 50 to 60 providers of care and support that are the most difficult to replace. The system will provide local authorities with early warning that one of those providers is likely to fail or could fail, and will support authorities to ensure that, if a provider does fail, the continuity of care is maintained. The Care Quality Commission will assess the financial sustainability of all providers that are part of the regime, ensure that providers are taking adequate steps to tackle any risks to the sustainability of their business and support local authorities to tackle the risk of individuals suffering gaps in the services that they rely on when providers fail.

I sympathise with the arguments set out by the noble Lord, Lord Patel of Bradford, in favour of this function being undertaken by Monitor. He should be under no misapprehension: the decision about which regulator should undertake this role was a finely balanced one. This would have been a new role for either regulator. For the CQC, although its existing powers extended to some financial issues, it had not in practice used them significantly. For Monitor, this would have been an extension into a new market and type of provider with which it had had no previous experience. In the end, we came to the view that the CQC was the most appropriate body to perform this market oversight function, for three key reasons. First, this approach ensures that there will be a single regulator for care and support providers. The financial performance of a provider, whether exceptionally good or exceptionally poor, can be a leading indicator of serious quality failures. The CQC will be able to integrate quality and financial information and assess both together.

Secondly, the CQC is better placed to implement this regime because of the existing working relationships that it already has with providers through its current role. This should also contribute to minimising the regulatory burden on providers by ensuring that they have to work with and provide information to only one regulator rather than two. Thirdly, the CQC already has established working relationships with local authority commissioners. The main objective of this regime is to support local authorities in managing the failure of a difficult-to-replace provider. The CQC’s existing relationships will be invaluable in assisting it in performing this function effectively.

The noble Lord, Lord Hunt, questioned that rationale and pointed particularly to the advantages of Monitor undertaking the role, not least because of its current functions. I am the first to accept that Monitor has existing expertise in financial regulation, but it does not have experience in the care and support services market. The nature of Monitor’s licensing regime differs from this market oversight role in two key ways.

--- Later in debate ---

The noble Lord, Lord Warner, asked how the Government will help a regulator to secure the necessary expertise to oversee providers, including the largest kind of consolidated provider. We are currently discussing with the CQC whether it will require additional financial or other support from the Government to implement this regime. We are on the case. Clearly, the noble Lord is correct that it requires specialist skills, but we believe that we can support the CQC to ensure that it has those skills.

[Lord Hunt of Kings Heath]

Is the Minister satisfied that the CQC will be able to have access to sufficient information about the ownership of these companies? To pick up the point made by my noble friend, ultimately, when a home is at risk of going down, there is a danger that the interests of shareholders are put before the interests of the residents. Clearly, issues to do with ownership become very important there.

[Earl Howe]

The noble Lord makes an extremely important point, and one that has not been lost on us. We recognise that ownership structures can be extremely complex and that true ownership can be hidden from normal view. It is one of the factors that we will have to build into our discussions with the CQC. I do not pretend that there is an easy answer because some businesses quite consciously and deliberately set themselves up to ensure that it is very difficult to probe the true state of their financial affairs and their true ownership. As and when I can come back to the noble Lord on where we are with that, I will be very happy to do so.

--- Later in debate ---

[Lord Patel of Bradford]

My Lords, I have put my name to Amendment 94 in the name of the noble Lord, Lord Patel. I do not think that I can add to the detailed and clear exposition that the noble Lord has provided. I know that the amendment is slightly lengthy, but it is also very logical and clear—I understood it very clearly, so that is a bonus. I welcome the intention behind Clauses 55 to 63, which enable parents and young people to request a child’s needs assessment. Clause 56, on requirement’s for a child’s need assessment, states:

“A child’s needs assessment must include an assessment of … (a) the outcomes that the child wishes to achieve in day-to-day life”.

What is the intention behind “outcomes”? What outcomes are we looking at?

[Lord Hunt of Kings Heath]

My Lords, it was remiss of me not to declare an interest during our debate today as president-elect of GS1, chair of a foundation trust and consultant trainer with Cumberlege Connections.

Perhaps I, too, may raise the connection of this Bill with the Children and Families Bill. As my noble friend Lord Warner said, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting the framework for children and young people up to the age of 25, there is a clear overlap in their jurisdiction in the context of social care provision. Education, health and care plans under the Children and Families Bill also include an assessment of a child or young person’s social care needs, which means that young people between the ages of 18 and 25 may be eligible both for an EHC plan and an adult care and support plan. That seems to reinforce my noble friend Lord Warner’s comments.

My understanding—perhaps the Minister could confirm this—is that the Government are considering bringing forward amendments to the Children and Families Bill to make sure that the two link together. If that is so, the problem that we have is that the Children and Families Bill will not go into Grand Committee until we come back in October, whereas this Bill should have cleared the House by about the fourth week in October. It would be very disappointing if we, in debating this Bill, were not able to see the changes that the Government were going to make to the Children and Families Bill so that we could make sure from our perspective that the two hung together. Can the Minister assure us that, if the Government are contemplating some amendments, we could see them so that we could debate them within the context of this Bill?

[Earl Howe]

My Lords, I thank Members of the Committee, and especially the noble Lord, Lord Patel, for a debate which illustrates the significance of transition to young people and their families and the need to get the legal framework right for them.

As we have heard, these amendments cover a range of issues. In respect of Amendments 92D, 98 and 100, I have listened with interest to concerns about the absence of a requirement that transition assessment should take place at a particular age. We are in agreement that the timing of assessment is crucial, but this is essentially a question of approach.

The Care Bill proposes that two tests be used to ensure that assessment takes place at the right time for each young person or carer. We believe that this is preferable to rigid timescales which take no account of an individual’s needs or circumstances. First, a local authority may assess a young person, their carer or a young carer where it appears to the local authority that the child or carer is likely to have needs upon the child turning 18. This is to be used in conjunction with the second consideration, whether assessment would be of “significant benefit”. This recognises that a one-size-fits-all approach is not in the best interests of young people or their carers.

Amendments 92B and 92C would limit the group of young people who can benefit from transition planning to those who are already in receipt of services. We would not wish to impose any such restriction. Indeed, this restriction was removed following public consultation and pre-legislative scrutiny, because transition planning may equally benefit those who are not currently in receipt of services.

I have heard the concerns expressed that local authorities are not under a duty to assess in every case. This is indeed true, and for very good reason. Some young people will not have needs for care and support after the age of 18. It will not be appropriate, nor indeed will it be in a young person’s interests, to assess in every case.

I listened with interest to concerns about provision for carers of children. We need to be clear about this. Support should be available where it is needed. The question is the source and nature of that support. Clause 59 provides a power, rather than a duty, for local authorities to provide support because existing children’s legislation already includes provision for support to a child’s carer. Duplication of existing legislation may cause confusion and is unnecessary. This power is intended to enable support to be provided under adult legislation where a certain service is available only locally via that route.

I turn now to planning for transition and Amendments 92BA and 94. Provision for transition assessment is focused on the outcomes that the individual wants to achieve. I can reassure the noble Lord, Lord Patel, that such outcomes may include employment, education or housing. I also share the noble Lord’s expectation that, when a child has an education, health and care plan, any assessment under these clauses should take the EHC plan into account and the assessment should be integrated into that plan.

The Care Bill and the Children and Families Bill include provision that assessment can be joint, including joined-up assessments in relation to an EHC plan. These issues will be addressed by both the guidance supporting the Care Bill and the Department for Education’s SEN code of practice.

In respect of Amendment 94, I briefly add two further points. First, when a young person over the age of 18 has an EHC plan, and as such the care part of that plan is provided under this Bill, we would expect co-operation between adult and children’s services in relation to any review of the plan under Clause 6(5)(a) and (b). Such co-operation for those under 18 who are in transition is provided for by Clause 6(5)(c). This would include co-operation with the preparation, maintenance and review of the EHC plan as provided for by the Children and Families Bill, in respect of children. Guidance can ensure that this is clear.

Secondly, requiring a local authority to make arrangements to secure provision for children and young people with a transition plan would not be appropriate. Services to children cannot be provided under the Care Bill. Children’s legislation provides for this. Services to young people over the age of 18 would be provided, if necessary, under provisions earlier in Part 1.

In relation to Amendment 104ZA, I agree on the need to ensure continuity of care. However, we must avoid creating overlap or confusion with local authorities’ existing duties in relation to children, including rights to assessment and support under the Children Act 1989. For this reason, it would be preferable for the young person to request assessment as they see fit and for the local authority to initiate this conversation with the child. The request itself is not envisaged as a formal process. Indeed, for some young people the request will form part of a conversation the local authority initiates about transition to adulthood. Guidance can be used to make this point.

Young people and their families will need information in order that they can understand the adult care and support system and, crucially, that they are aware of their right to request assessment. Clause 4 requires local authorities to establish and maintain an accessible system for information and advice including information and advice about how to access the care and support that is available.

Through Amendments 95, 96 and 97, the noble Lord, Lord Patel, the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel of Bradford, have also expressed concern that there should be provision to support children with care needs to move between areas, without the fear of experiencing a gap in their care and support. I agree. Provision for people over the age of 18 already exists at Clauses 36 and 37 and provision for children with an Education Health and Care plan exists in the Children and Families Bill. If a young person under the age of 18 who has had an assessment under the provisions of Clauses 55 or 60 moves to a new area, the general duties of co-operation, in particular with other local authorities under Clause 6(6)(b), would also apply.

I should like to reassure the noble Baroness, Lady Pitkeathley, in relation to Amendments 93B, 100A and 104ZZA that consideration of “other matters”, a person’s own capabilities and the other support that may be available does not exclude the provision of more conventional care and support services where needed. Indeed, when the child becomes 18, if the individual’s needs are eligible, the local authority must meet them, in accordance with Clause 18, if the adult wants the authority to do so, and those requirements are not diminished by these three paragraphs. The intention is to recognise that, in order to make the right connections to the local community and the variety of support available, the local authority should consider how these matters, along with more formal care and support provision, could be of benefit in achieving the adult’s outcomes.

The noble Baroness suggested that carers might be pressurised by these provisions into providing care. It is certainly not our intention that pressure is put on carers. The clauses make it very clear that a carer must be willing and able to provide support and that the impact upon carers’ well-being must be considered.

She flagged up the concern that the new provisions in Clauses 56, 58 and 61 are departures from the draft Bill and asked why that was the case. The Bill as introduced includes greater clarification as to the nature of the assessment that should be carried out and what should be considered. It is largely for drafting reasons that we split the subsections relating to children, children’s carers and young carers into two subsections for each group.

The noble Lord, Lord Warner, pointed out that, in his view, the Bill is framed as though young people are strangers to the local authority. The Bill makes provision both for those who are receiving children’s services and are known to social services and for those who are not currently receiving care and support. Clause 6 provides a duty to co-operate, including within the local authority. In particular, in relation to children transitioning to adulthood, there is a duty for those internal discussions to take place. The request mechanism in the Bill is not intended to be a formal or bureaucratic process, as I mentioned earlier.

The noble Lord, Lord Hunt, asked me to confirm whether the Government are considering bringing forward amendments on carers, and expressed his concern that the timing of the Children and Families Bill relative to this Bill is unfortunate. I can tell him that my noble friend Lord Nash, at Second Reading of the Children and Families Bill in your Lordships’ House, said:

“As my honourable friend the Minister for Children has said, we are considering how the legislation for young carers might be changed so that rights and responsibilities are clearer to young carers and practitioners alike. We will also look at how we can ensure that children’s legislation works with adults’ legislation to support the linking of assessments, as set out in the Care Bill, to enable whole-family approaches”.—[Official Report, 2/7/13; col. 1201-02.]

The Minister for Children and Families and the Minister for Care and Support have met the National Young Carers Coalition to discuss the key principles for taking this work forward over the summer, as well as how we can most effectively involve the NYCC during this period.

Finally, the government amendment in this group will ensure that the provision added to Clauses 58 and 61, following consultation and pre-legislative scrutiny, specifying that a needs assessment must include an assessment of the impact of the adult’s needs for care and support on their well-being, is also added to Clause 56.

We have had much discussion recently about the need to ensure that services are organised around the needs of individuals. I hope that I have been able to explain how this legislative framework for transition is focused on meeting that aspiration. I hope, too, that I have provided some reassurance about the approach we are taking to smooth the transition to adult care and support. I hope that the noble Lord, Lord Patel, will feel able to withdraw his amendment.