My Lords, I am glad to add my voice in support of the amendments in the name of the noble Baroness, Lady Campbell. Unfortunately I was too late to get my name on the Marshalled List but that should in no way be taken to indicate any lack of enthusiasm for them. I do not think that I can usefully add anything to the advocacy of the noble Baroness. She is the expert in this area, and as she has told us, she has been living and breathing this for several years. She has spoken to the amendments comprehensively and with great eloquence.
Instead, I shall speak to Amendment 92ZZAFA in this group, which is a more narrowly targeted amendment. It is not unrelated to the amendments tabled by the noble Baroness, Lady Campbell, but it is more targeted. It would amend Clause 38, which deals with where a person’s ordinary residence is. Ordinary residence rules under the National Assistance Act 1948 established which local authority has a duty to fund a person’s care and support, particularly when they are living in a residential care setting outside their original local authority area and in another local authority. These rules are often disputed by local authorities, and every year hundreds of disabled people are caught in the middle of these disputes, which are mainly about financial responsibility, of course.
This is a probing amendment designed to seek clarification from the Minister about the policy which will inform the regulations accompanying Clause 38, which have yet to be published. Ordinary residence disputes are not merely academic; they affect the
liability of local authorities, as I have said, but more particularly, they profoundly affect people’s lives. People who rely on significant care and support in their daily lives can change where they live only when all the arrangements are in place. As the noble Baroness, Lady Campbell, has powerfully demonstrated, they cannot afford to take the risk of a local authority refusing or delaying payment of their care, so people’s independence is put at risk and sometimes severely compromised. For example, there are people like Peter who, after three happy and productive years at a specialist college, wants to stay in the area to look for a job. He plans to live with two fellow students in supported accommodation, but he is under pressure from his home local authority to go back home. There is Lucy who has profound physical and learning difficulties. She requires 24-hour care and has been living out of area in residential care in London. She is ready to live more independently and a voluntary sector care provider is supporting her to move nearer her family on the south coast. However, her plans are in limbo because of disputes about funding her care package.
The Voluntary Organisations Disability Group—an umbrella body of more than 70 voluntary sector providers—estimates that 500 people, such as Lucy and Peter, are affected by ordinary residence disputes at any one time. A small number of disputes are referred to the Secretary of State for determination—64 in the past three years, of which 40 were dealt with. But these are just the tip of the iceberg. Not only disabled people are affected: providers too are caught up in these disputes. The Voluntary Organisations Disability Group estimates that in the past three years, voluntary organisations had to cover a gap in fees of more than £1.5 million while disputes have been resolved. That is not counting the amount of staff time involved.
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To their credit, the Government have recognised the problems surrounding ordinary residence disputes and are making some welcome changes through Clause 38. Clause 38 provides that when an adult requiring a particular type of accommodation to meet their care and support needs moves into a different care setting, responsibility remains with their original or first authority. Regulations will describe different care settings by defining what constitutes accommodation of a particular type. These improvements will help to address some of the problems, but I fear not all. Unless the regulations are clear and comprehensive in terms of what types of accommodation are included, ordinary residence disputes and the uncertainty associated with them will continue.
As the Government's current guidance on ordinary residence makes clear:
“The well being of people is paramount in all cases of dispute”.
Since this guidance was published, the meaning of well-being has been helpfully clarified in Clause 1 of the Bill. Clause 1(2(c) refers to,
“control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)”.
Clause 1(2)(g) refers to the “suitability of living accommodation”, and Clause 1(3)(a) to,
“the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being”.
However, with ordinary residence disputes, the individuals themselves becomes invisible in the midst of financial wrangling between authorities. If an individual is prevented or delayed from moving because of a dispute between local authorities over who pays, they have been denied the choice and control that are said to lie at the heart of this legislation. Funding rather than individual well-being has become the prime consideration.
Regulations must capture the full range of relevant accommodation options and be drafted in such a way as to anticipate future models of care. The Government have said that their intention is for regulations to include any type of accommodation where accommodation is required as part of meeting care and support needs. Specifically, I understand that regulations will include extra-care housing, supported living, and shared lives schemes, but the starting point should be the need for care rather than the specific type of accommodation. The type of care and the range of settings in which it is provided are developing quite rapidly. It would therefore be more appropriate for regulations concerning people placed out of area to be framed more generally in terms of the care that people need provided that they are eligible rather than a list of accommodation types which may soon become out of date.
I would welcome clarification from the Minister about the Government's intentions and that not only settings regulated by the CQC will be included. The regulations need to be clear. It is essential that councils are left in no doubt about which types of accommodation have a care element and which do not, otherwise this will become a new area for dispute. Some types of accommodation, such as a residential home, clearly have a care element but with others the picture is far less clear. For example, there is considerable diversity of definition about what constitutes domiciliary care as compared with supported living and what the differences are. This just indicates the sort of issues that need to be addressed if continuing disputes are to be avoided. These regulations provide an opportunity to attend the needless consignment of vulnerable people and their families to limbo, avoiding the waste of time and resources caused by disputes and thereby give those who rely on social care and support more choice, control and independence in their lives.