My Lords, I have a number of amendments in this group: Amendment 92ZZCA in Clause 18, Amendment 92ZZLA in Clause 26, Amendment 92ZZQA in Clause 28, Amendments 92ZZR and 92ZZRA in Clause 30 and Amendment 92ZZRB in Clause 31. I will try to be brief.
These amendments follow on from the discussion relating to the amendments tabled by the noble Lord, Lord Lipsey. The first amendment is about the duty to meet needs. We know that carers are often old people themselves. They have often cared for a long time for somebody with dementia or something similar before that adult meets the eligibility threshold for care. In my view and that of the Alzheimer’s Society, those carers should have the right to ask the local authority to arrange that person’s care because it is important that an individual who is in a position to arrange care and support has the right to ask the local authority to do so even when the adult is self-funding. Enabling a carer who would otherwise be required to arrange care to request that the local authority meet that need would help to reduce the strain that that carer is under. Being able to ask the local authority to arrange care would also enable the adult to take advantage of the
better rates for care that the local authority can command through block booking and other means. It would be unacceptable if adults who do not have capacity but who have deputies or other representatives were forced to pay higher costs than other people.
Amendments 99ZZLA and 99ZZQA are about the usual rate of independent personal budgets. Clause 26 refers to the calculation of a personal budget that will enable eligible needs identified by the assessment to be met. The budget needs to be sufficient to enable this to happen. Clause 26 treats this as being the cost to the local authority of meeting that person’s needs, whereas a person receiving their direct payment as a cash payment would not necessarily be able to purchase care at the same amount since care homes, as we know, routinely charge self-payers more than they charge local authorities. Legislation has to be clear that local authorities have a duty to meet eligible needs and personal budgets must therefore be, after application of the local authority’s normal means-testing system, sufficient to purchase that level of care at its local actual cost and not at a tariff rate based on the bulk purchasing power of the local authority.
Clause 28 refers to calculating the independent personal budget which is, confusingly, different from the personal budget referred to in Clause 26. The independent personal budget is used to calculate the amount that an individual can spend on his or her care that will count towards the expenditure cap. Clause 28, therefore, refers always to expenditure by the individual, so it should be the true cost available to the individual of meeting their assessed needs, rather than the cost to the local authority. Once again, there is a difference.
The amendment to Clause 26 also has an impact on Clause 30. This clause replaces the current choice of accommodation directions which enable a person to choose a different residential care home from that provided by the local authority and to top up the payments if their preferred accommodation is more expensive than the local authority’s usual cost. The Minister has confirmed that this is possible. However, the current system is widely abused with local authorities often requiring top-ups even when there are no places available at the so-called usual cost and the person has chosen the only available accommodation that meets their needs.
Clause 30 does not refer to the usual cost but, instead, defines “more expensive” as being more than the value of the person’s individual budget. If the personal budget is defined in Clause 26 by how much the local authority says it will pay to meet the person’s needs, the system is open to the same abuses as the choice of accommodation directions. However, if Clause 26 requires that the personal budget should be sufficient for the person to purchase services which will meet their needs, this ensures that the rate that the local authority will pay for care is directly related to actual market conditions.
Amendment 92ZZR is about the review of independent personal budgets in Clause 28. People should be able to refuse an assessment as long as they understand the implications of that refusal. However, this clause does not offer adequate protection to people who lack capacity. As it stands, the clause puts people with a deteriorating condition, such as dementia, at risk of
falling through the gaps. The proposed new clause stipulates that Clause 28 does not apply when an adult lacks capacity to refuse the assessment. It would stop vulnerable individuals from falling through those gaps as local authorities would be required to carry out a needs assessment and continue to maintain their care account.
Amendments 92ZZRA and 92ZZRB are about the choice of a care home. I declare an interest as chair of the All-Party Group on Dementia and the Alzheimer’s Society shares my concern about this. There is potential that the Bill will not provide the same right to choose a care home as currently exists. Individuals currently have a right to exercise genuine choice over where they live. If an individual has a preference for a particular care home, the local authority should arrange accommodation in that home subject to the following conditions being met: that the home that is chosen is suitable to meet the individual’s needs as assessed; that it does not cost more than the local authority would usually expect to pay to arrange accommodation for someone with those assessed needs; that it is available and the provider is willing to enter into a contract on the local authority’s terms.
An individual may wish to move to a home that is more than the local authority’s usual cost, even though there is a home that meets their needs and within the local authority’s usual cost. In these circumstances the individual or another person can make arrangements to make a top-up payment, as the Minister has said. The Bill states that regulations “may” provide that the local authority must arrange for the provision of the preferred accommodation. This should be amended to “must” rather than “may” to ensure that the right to choice continues. In addition, the Bill currently says that regulations may provide that where an adult expresses a preference for a particular home, the local authority should act on it. The risk is that this excludes an adult’s representative from choosing a home. Holders of lasting powers of attorney relating to welfare are examples of representatives who should be able to express a preference, and that preference should be acted on by the local authority. I beg to move.
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