My Lords, I am grateful to all noble Lords who have spoken for their questions and comments on these regulations. I turn first to the regulations relating to business failure duties and market oversight criteria, and in particular to the question posed by the noble Lord, Lord Lipsey, about why we have chosen the CQC as the regulator in this regard. I say openly to him that it was a finely balanced decision. We were confident that we had a choice between the CQC and Monitor. Either could have performed the role. Last year, the Health Select Committee recommended that the Government should reconsider their decision to choose the CQC rather than Monitor to undertake this regulatory function.
However, as set out in the committee’s report, there is a close correlation between poor quality and poor financial performance. It recognised that for this reason the CQC is well placed to perform the function. The CQC is gearing up to do that. It recognises that it needs additional skills to assess the financial sustainability of providers. It does not yet have these core skills in-house. The CQC has procured external consultants to assist in designing its new regime and the resources needed to operate it, which will comprise a mix of internal and external expertise. That will ensure value for money. It is recruiting a number of highly experienced specialists in accounting and insolvency who will be responsible for undertaking the financial sustainability assessments of providers in the regime on an ongoing basis.
The department will support the CQC to carry out this function by providing additional funding. I hope that that provides the noble Lord with some confidence that the CQC is well capable of undertaking this task. The CQC has published draft proposals on how the market oversight regime should operate. A four-week public consultation began on 29 January. Revised final guidance will be published in early April.
As regards the process of gathering financial information, which was referred to by the noble Baroness, Lady Wheeler, the CQC has the power to require a provider to supply the information specified. The provider
cannot refuse without risking enforcement action by CQC. The CQC’s aim is that the information it requests from providers will be the same as the provider’s own board would use to assess how the business is faring. It will be light touch in the sense of not onerous. The CQC has a duty to minimise burdens on businesses. However, its overriding duty is to protect vulnerable people by understanding providers’ finances and sustainability, and giving early warning of any likely failure to local authorities to help them intervene. It will require information in a proportionate way to deliver this duty.
The noble Baroness also referred to the need to support local authorities to carry out their temporary duties when a care provider fails. We recently published statutory guidance outlining local authorities’ roles and responsibilities in the event of business failure to support them in this area. In addition, the department plans to work with the Association of Directors of Adult Social Services to develop further guidance on contingency planning for provider failure, which should be available by the summer of 2015. The department has also commissioned guidance which will help local authorities to assess the financial sustainability of their local care market and individual providers within it that are not subject to the market oversight regime.
As regards the Care and Support (Children’s Carers) Regulations, concerns were raised by the noble Baronesses, Lady Wheeler and Lady Pitkeathley, around children’s carers, and in particular the new right to assessment for carers in the Children and Families Act which covers adults caring for disabled children only when they have parental responsibility. The Government will address this issue through the Care Act 2014 and the Children and Families Act 2014 (Consequential Amendments) Order 2015, which will be laid in draft before Parliament very shortly. The order will effectively save Section 1 of the Carers (Recognition of Services) Act 1995 in so far as it applies to adults caring for disabled children who do not have parental responsibility. This means that such adults will continue to have a specific right to ask for an assessment under the 1995 Act if they are caring for a child being assessed under the Children Act 1989 or the Chronically Sick and Disabled Persons Act 1970. I hope that that is helpful.
As to the specific right of adults caring for children to support to meet eligible needs, care and support for children and their carers takes place in a different context to that covered by the adult statute. Children’s legislation rightly gives primacy to the welfare of the child and this is reflected in the way the legislation works. With that said, of course the Government recognise the enormous contribution of carers of disabled children and the sacrifices they often make in taking on these caring roles. That is why the Children and Families Act includes a specific right to assessment for parent carers of such children and a requirement that in carrying out these assessments local authorities must now have regard to the well-being of a parent carer. This mirrors the definition of well-being in the Care Act, which is of course also the basis for considering the impact on well-being through the eligibility criteria.
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I do not believe that the concern of the noble Baroness, Lady Wheeler, that carers of children will be left with inferior rights during transition, is well founded. The regulations stipulate that services may not be provided to a child to meet the needs of their carer under this legislation, but we are not at all saying that providing services to a child would never be an appropriate response to supporting their adult carer. The stipulation is simply about division of responsibility, specifically the principle that care and support for children should always be provided under children’s legislation. Where children under 18 are supported, this should always happen under children’s legislation—usually the Children Act 1989. This of course is also the rationale for a parent carer’s broader right to assessment being inserted into the Children Act 1989 rather than included in the Care Act. Transition is a time when it is particularly important to be clear about the division of responsibility, so it would not be appropriate to create an overlapping set of legal entitlements for carer support for children based on whether or not their adult carer has had a transition assessment.
I come lastly to the Care and Support (Eligibility Criteria) Regulations 2014. Perhaps I may, first, briefly cover the comments made by the noble Baroness, Lady Wheeler, about funding for adult social care in general. We know that there have been pressures on local authority budgets and it would be idle to pretend that local authorities have not felt that pressure very acutely across the board. Since 2010 we have allocated additional funding for the NHS each year to support social care. That funding is worth £1.1 billion in the current financial year. Social care expenditure has decreased in real terms but by a great deal less than local authority expenditure in other areas.
We can also look forward to next year when the better care fund will be established to provide better integrated care. One of its conditions is to improve the delivery of health and social care by preventing people reaching crisis point. The vast majority of the £5.3 billion that has currently been allocated to the fund is being spent on social care and out-of-hospital community health services.
The noble Baroness asked whether it followed that the 12% reduction in local authority budgets and the knock-on effect in care spend, plus the 14% growth in the numbers of elderly and vulnerable people, equates to a 26% shortfall. I cannot agree with her maths on that. The two figures are for different issues and are not comparable. For a start, not all of the additional elderly people will be eligible for care and support.