I thank the Minister for his comprehensive introduction to these four important affirmative regulations. As he knows, I also have a take note Motion tabled for next week on the negative regulations on implementing the Care Act. Inevitably, there will be overlaps between today’s debate and next week’s but I hope that we can clear off some of the major issues today. The four SIs cover a number of important issues so, while we were happy to have them taken together to expedite the business of the Committee, I hope that the Committee will bear with me since there are a number of areas to cover in relation to implementation of the Care Act and the individual SIs. I also thank the Minister for the very helpful briefing meetings that he has had with Opposition Front Bench health team members on the regulations. He will know that both the Opposition’s health and local government teams are keeping a close watch on how the Care Act is being implemented, so we were grateful for the time that he took on this.
We believe strongly that this first phase of implementation has to be viewed across both the local government and health departments, and considered in the context of the huge funding pressures on local authorities, with a 40% cut in their funding since this Government took office. The Minister, of course, disputes this figure and others from independent bodies on the scale of local government cuts cross the piece and their devastating knock-on impact on social care. Whether the figures are from the King’s Fund, the Nuffield Trust or Age UK, they all put the scale of cuts to social care budgets in terms of billions of pounds.
Recent figures from the Association of Directors of Adult Social Services, with which the Department of Health has worked closely on the Care Act’s implementation, point to this year being the third year of continuing cash reductions and the fifth of real-terms reductions in spending on social care. It points out that, since 2010, social care spending has fallen by 12% while the number of those looking for support has increased by 14%. Social services departments have been forced to make savings of 26% in their budgets—the equivalent of £3.53 billion over the last four years. Compared to 2009-10, almost 300,000 fewer people over the age of 65 are receiving state-funded care.
On many previous occasions, the Minister has set out the additional funding being made available for Care Act implementation—and, despite the challenges, the recent DH stock-take shows encouraging overall progress in local authorities’ readiness for the phase 1 implementation from April 2015. Like the department, we commend the role of the joint LGA/ADASS/Department of Health programme management office. We fully recognise the scale and extent of the work that has gone into consultation exercises with stakeholders, the drafting of the regulations and guidance and the joint working on implementation with local authorities.
However, the same stock-take also makes clear councils’ continuing concerns about the adequacy of funding in the face of modelling which shows increasing
support needs for local authorities around IT, workforce, information advice, carers and market shaping. Workforce capacity is a particular concern. The LGA view is that these aspects of implementation of the 2015-16 reforms may be underfunded by as much as £50 million.
Before moving on to the regulations, perhaps I may refer quickly to the Government’s plans to close down the Independent Living Fund in June 2015. We seek reassurances from the Minister that the funds transferred to local authorities from that fund will continue to be used to provide vital support for the disabled people who currently depend on it to be able to live independently in the community and have the same rights, choices and chances as any other citizen. My understanding is that it will be for individual authorities to make decisions on how the resources from the fund will be applied. Will the Government issue guidance to help protect the thousands of disabled people currently receiving ILF support who are affected by this decision? How will they ensure that the money is not just diverted into helping to fund the Care Act implementation or into general funding support for social care services?
The care and support regulations on the market oversight criteria, the interlinking negative regulation on market oversight information—covered by my take note Motion next week—and the business failure regulations are about trying to prevent the sort of problems witnessed in 2011 with the collapse of Southern Cross Healthcare, as set out by the Minister, by empowering the Care Quality Commission to monitor and obtain financial information from providers to check their financial stability and spot the early warning signs of potential difficulties and failure. The aim is to protect vulnerable people and their families if there is provider failure, to ensure that local councils have both early warning and support to be able to maintain vital continuity of support and to ensure that no one depending on the service will suffer.
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We all agree that, to do that, the CQC has to have the right powers, resources and expertise to scrutinise the very complicated company financial structures and accounts of care providers, which are often multi-company set-ups both here and abroad, making financial assessment and monitoring a huge and complex task. My honourable friend Liz Kendall questioned the Health Minister, Norman Lamb, closely on this when the regulations were dealt with in the Commons. The Minister expressed his full confidence in the CQC powers across the range of the provisions in the Act and the regulations, including, as the Minister pointed out, assessing finances, requiring organisations to take steps to return to financial health if there are problems, requiring the provider to undertake an independent review and producing a plan to mitigate financial risk.
Those are complex expert tasks indeed, and in the light of that I am sure that the Government now regret saying in the consultation that they expected CQC information-gathering to be “light touch”. I ask the Minister to reassure the Committee that he recognises the scale and extent of the task facing the CQC, involving detailed monitoring, scrutiny and assessment under the criteria set out in the regulations, equating
to 400 registered providers across about 4,000 locations. Will he commit to ensuring that the CQC is effectively resourced to undertake this work?
Under the Care Act, local authorities are required to step in and provide care where a provider is no longer able to carry on because of business failure. I also ask the Minister what guidance, support and funding will be given to local authorities to help them cope with ensuring that there is continuity of care and that they are given the concrete practical advice they need. There is concern that the current focus is on the duties faced by local authorities rather than on the vital support to be provided when a major failure occurs.
Finally on these regulations, I note that the Joint Committee on Statutory Instruments has drawn the attention of the House to the market oversight information regulations being “defectively drafted”. I assume that we will be covering this next week but I ask the Minister to provide for noble Lords—prior to the debate, if possible—information on the department’s response to the Joint Committee’s comments and notice of any proposed changes that need to be made as a result of the committee’s findings on this and the two other SIs to which the committee refers.
Next, I turn to the children’s carers regulations. We now hear that we have an important interface between the Care Act and the Children and Families Act concerning the extent to which the arrangements for the carers of disabled children fall under either Act. Many hours and days were spent during the passage of both pieces of legislation on trying to address the concerns of parent carers. The provisions in these regulations deal with the preparation of carers of disabled children for the child’s transition to adult care and support. I understand that there has been considerable discussion with carers’ organisations over these transitional arrangements and that progress has been made, but there is still strong concern that carers in this situation have weaker rights than carers caring for adults.
As I understand it, under these regulations someone caring for a child in transition who is eligible for support would be able to receive services for the child, such as replacement care, only if this were provided by children’s social services. However, under the children legislation, there are no nationally set eligibility criteria for carers, which means that the carer of a child in transition who needs support as a carer will not have as clear a right to this support as an adult caring for another adult covered by the Care Act. The important interlink here is the need for regulations or statutory guidance setting out the operation of the new duties to carry out parent carers’ assessments for local authorities. There is no sign of these coming, and only belatedly have draft regulations on assessments for young carers been issued for consultation. Can the Minister comment further and update the Committee on this? Does he acknowledge that, without these, local authorities will be left without clarity about implementing the new rights? What plans do the Government have to support local authorities in implementing the new rights for parents and young carers?
There is also strong concern about the rights of carers of disabled children under the age of 16 who do not have legal parental responsibilities, such as siblings,
grandparents and other family members or friends who are not covered by either the care or the families legislation. Can the Minister confirm that the relevant parts of the Carers (Recognition and Services) Act 1995 will be retained to ensure that such carers do not lose any existing rights to a carer’s assessment?
My final issue on the subject of parent carers concerns those caring for a disabled child as well as an adult with care needs. It is more an issue of practice rather than official guidance. It would be complex for those working with carers to bring together the legal duties and practice from the two pieces of legislation and it is important that practitioners are supported to develop best practice in this area. What are the Government doing to support the workforce to understand how to knit together the two pieces of legislation in more complex family situations such as these?
The final regulations we are discussing today concern the key issue of eligibility criteria for care and support. We cannot consider these without first acknowledging the deep concerns of the organisations that work with older and disabled people that the objectives of the Care Act of early intervention, prevention and promotion of well-being cannot be achieved with the eligibility criteria set at the level in the regulations. The Care and Support Alliance, which represents 75 leading charities, estimates that this will leave 340,000 older and disabled people without the support they need to do things as basic as get up, wash, dress and eat.
The alliance rightly argues that if older people do not get the care and support they need it would be bad for them as well as costing the taxpayer more because their health will suffer and they will need to go into more expensive hospital or residential care. The strong fear is that the mix of the “unable to achieve two or more” of the activities in the list of the 10 outcomes, combined with the caveat that the local authority must deem such an inability as having “a significant impact” on the adult’s well-being, leaves open to interpretation by each local authority what constitutes a significant impact on well-being. Some of the language in these regulations is seen by many as vague and open to misinterpretation.
We support national eligibility criteria which limit postcode lotteries and variations across the country and we do not consider that the current regulations achieve this. How does the Minister consider that the postcode lottery situation will be avoided? The original draft regulations referred to one or more specified outcomes and it would be helpful to hear why the criteria were tightened up following the consultation.
We know that with the current financial pressures councils are deeply concerned about the potential costs of the new eligibility criteria. Their fear, in contrast to the stakeholder concerns, is that the new definition of “substantial” and the wider well-being perspective may in practice turn out to be more generous than the current definition, despite the firm view at the Department of Health that the regulations have been drawn in such a way as to be very similar if not the same. The LGA is calling for financial compensation for councils which are shown, under the monitoring
framework being developed by ADASS, to have incurred extra costs over and above their 2015-16 allocation. Can the Minister reassure councils that this will be the case? Does he agree with the LGA view that the reality is that the eligibility will continue to be a very subjective process under each council?
On a wider issue, the Secondary Legislation Scrutiny Committee—we have copies of its report here today—has rightly pointed out the huge communications and information challenges ahead for the Government and local authorities in explaining the new system and how it operates to applicants. As it said, the extensive guidance that has been drawn up at 500 pages,
“is going to be beyond the understanding of most applicants”—
an understatement if there ever was one. Can the Minister tell the Committee what strategies and work are in place to address this situation? Will he undertake to have further discussions with stakeholders on this key issue and work closely with them to ensure effective information, communications and support for the applicants, their carers and families as they try to tackle the mound of form-filling and paperwork that is potentially involved?
Finally, on pension pots, is the Minister in a position to update the Committee on any progress that has been made concerning the question of assessments for income-related benefits and the implications for care and support under the Care Act arising from the pensions flexibility provision in the Pension Schemes Bill? My noble friend Lord Hunt raised this matter during the debate on the deferred payments regulations before Christmas, but the subsequent response of the noble Baroness, Lady Jolly, in January did not answer the key question of what happens in the light of the effective breaking down of the distinction between a savings account and a pension under the pensions flexibility arrangement.
During the Pension Schemes Bill debate on this issue there was little evidence of joined-up working and discussion between the DWP and the Treasury, let alone of discussions with the Department of Health on the implications for the pension pots of applicants applying for support under the Care Act. Can the Minister confirm that the DoH is involved in discussions on this and that the Government will respond on this issue to deal with the situation under the Care Act before the Third Reading of the Pension Schemes Bill, which is tomorrow?