Health and Social Care Bill

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Mr. Burstow: I thank the Minister, and I shall beg leave of the Committee to withdraw the amendment.

The Chairman: Order. The new clauses have not been moved, although they would have been at the appropriate point, if there were to be a Division on them.

Question put and agreed to.

Clause 52 ordered to stand part of the Bill.

Clause 53

Funding by resident etc. of more expensive accommodation

Mr. Swayne

: I beg to move amendment No. 315 in page 46, line 13, at end insert—

    `(2A) Nothing in this section shall prevent or preclude any local authority from meeting any costs which exceed the cost it would usually expect to pay in order to provide suitable Part III accommodation.'.

At another hour there would have been a debate arising out of the questions that were prompted by this probing amendment, but that is not the case now. There is a key question, however. Are the provisions specifically limited to the examples in the explanatory note—those waiting for three-months disregard, or those expecting deferred payment arrangements as set out in clause 54. Are they the only ones who will be able to avail themselves of the provision of the clause? Would a resident who has no property—but who has more than £18,500 capital— be able to use that capital to top up their additional payments, if there was no third party?

Moving closer to amendment No. 315, if a resident has lived in a home for some time, having made their own arrangements and the costs are more than the local authority would ordinarily have been prepared to pay for someone with those assessed needs, what will happen when that person exhausts their funds and has to rely on the local authority? Would such a person be able to use their remaining resources to make up the difference, or would they to have to move?

The amendment raises the question of those who choose a home that costs more than the local authority's level of expected payments, and what happens to them when they run out of money and need help. The amendment would enable the local authority to continue to make those payments, if it so wishes. We see no reason why it should not be able to do so. It prompts a wider debate, surrounding the complex interaction between local authority fees and the fees set by homes. There is a body of evidence to suggest that homes do tend to charge self-funders more than local authority residents, but I will not go further down that road now.

9.30 pm

Mr. Hutton: The effect of the hon. Gentlemen's amendment would be to ensure that local authorities would meet a person's care needs, regardless of the cost. Some of his other points do not seem to relate to his amendment—he may have wanted to speak more widely about the purpose of the clause. Perhaps I should help him and his hon. Friends with that.

The clause in no way removes or alters existing provisions, which require a council to meet a person's assessed care needs, even where that might mean providing residential or nursing home care that exceeds the local authority's usual standard rate. The clause, as will be specified in regulations, will ensure that people who avail themselves of the three-month property disregard or use a deferred payment arrangement can choose more expensive accommodation than the council would normally finance. That is sensible and fair, as such residents are to all intents and purposes self-funders who have the resources to pay for more expensive accommodation, should that be their choice. I do not believe that we should restrict people's choice to use their resources in that way if they consider it appropriate. They should be able to exercise choice over the care home that they will enter. For many, that will be their final home, and it should meet their needs and be to their liking. It is particularly important for councils to use their resources efficiently and fairly.

Councils currently consider and make placements with two important principles in mind. The first relates to the choice of accommodation, direction on which was issued to them in 1992. A key principle is that people seeking council support may enter care homes of their choice where the home meets their assessed needs, a vacancy exists and the fees are in line with what the council would normally expect to pay.

The second key principle concerns the financial assessment. Once a council has assessed someone in need of residential accommodation who qualifies for council support, it will undertake a financial assessment. That assessment will take full account of a person's assets and income and, according to national regulations and rules, determine how much he or she should pay towards the cost of their care. The nub of the second principle is that once a council has made a fair and full financial assessment, it cannot ask the resident for a further contribution. Residents are not allowed a top-up from income and assets that the means test has disregarded, and the council should make up any difference between the fees charged by the care home to meet individual assessments and what the user can contribute.

If a resident wishes to enter a care home with higher basic care costs than a council would normally contract for, because of extra facilities, he or she may not expect the council to pay the difference. Instead, the resident may be able to turn to a third party, sometimes a relative, to make up the difference. I am aware that not all residents have someone to turn to in such circumstances.

Because we introduced the three-month property disregard and the deferred payment scheme in the NHS plan, to which I shall come in a moment, we have reviewed the rules on top-ups. As I said, those who take advantage of the measures are to all intents and purposes self-funders with sufficient resources to pay for the care that they want and need, but for the duration of the three-month property disregard or the deferred payment scheme, they will technically be council-supported residents. As such, they will technically not be able to enter homes of their choice if the fees are greater than the council would usually pay. Residents are forbidden to make up the difference with income and assets disregarded by the means test.

The clause provides a clear legislative framework—to be clarified in regulations—to enable residents in such situations to top up their contributions to care fees if the fees are greater than those that the council would normally meet for someone with those needs. The clause also provides a clear framework for the current practice of third-party top-ups, which allow family members, charities and others to contribute to care costs and bridge the gap between the care home's fees and the council's standard rate.

I hope that I have reassured the hon. Member for New Forest, West that the clause does not remove or alter existing provisions, which require councils to meet a person's assessed care needs, even where that means providing residential or nursing home care that exceeds the local authority's standard rate for that care. Councils have a duty to pay for care, no matter its cost, if it is essential to meet assessed needs. The fact that the legislation will not allow for top-ups for any situation other than the three-month disregard and deferred payment scheme indicates that the Government recognise that reform in that area is difficult and sensitive and that we need to proceed carefully.

I hope that, having heard what I have had to say, the hon. Gentleman will withdraw the amendment. He has raised several issues that go wider than that but I have tried to reassure him about why we are changing the top-up rules. We intend to preserve and extend choice and to make sure that the new schemes are not frustrated or resisted by other rules relating to top-ups. We want the whole system to work effectively, and changing the rules on top-ups will encourage both those schemes.

Mr. Swayne: I welcome the Minister's helpful explanation of the clause, but I am not sure that I share his analysis of the amendment. He said that it would provide open-ended costs for the local authority. We believe that it would allow the authority to exercise a measure of discretion, where it wished to do so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 ordered to stand part of the Bill.

Clause 54

Power for local authorities to take charges on land instead of contributions

Mr. Burstow: I beg to move amendment No. 289, in page 46, line 21, at end insert


    (c) that person has been informed in writing of the advisability of appropriate independent financial advice by a suitably qualified advisor,'.

The amendment is simple. It would provide that, in setting up deferred payment arrangements and placing a charge on a property, which is a welcome development, a resident is made aware of and signposted towards independent financial advice to enable him to consider the pros and cons of such an arrangement before deciding to go down that path.

Mr. Hammond: I sympathise with the hon. Gentleman's intentions, but it is difficult to understand what financial advice one would need when offered a zero interest loan.

Mr. Burstow: I am grateful for that comment, because it brings me to one of the matters that I wanted to raise. There is a time limit of 28 days after the period for which no payment is due. I hope that the Minister will respond to the concern that 28 days is not an adequate period in which a property might be disposed of and that interest will consequently kick in and accrue quickly. For that reason in particular, one could argue that aspects of the way in which the measure is being implemented warrant a financial adviser giving a person independent financial advice about the arrangements that pertain under the clause.

We want to clarify whether the Government have any intention of facilitating the provision of independent financial advice on such decisions at the relevant stage in a person's life. It will be helpful if the Minister describes what guidance will be issued to local authorities on how to assess the amount of a deferred payment when it falls due, because there are concerns about precisely what that will mean in practice. Again, a financial adviser might ensure that, when taking a decision about whether deferred payment is the right course of action, a person can take into account the guidance that I assume will be issued by the Department.

Who will pay for the legal charge? Will it be the local authority or the individual, by also attaching that cost to the property? Will it be paid for in another way? Those questions arise from the clause and it would be helpful if the Minister gave us some information about them.

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