Joint Committee on the Draft Mental Incapacity Bill First Report


17 Chapter 17: Resources

309. We identified four aspects to the question of resources relating to the Bill.

  • What will the Bill cost? And will appropriate funding for the Bill be available?
  • What would be the cost of additions to the Bill which have been suggested by some witnesses - in particular, advocacy?
  • Are the necessary resources - such as staff - available to implement the Bill even if the necessary funding for the Bill is supplied?
  • What will be the size of the benefits (either in cost terms or terms of the impacts produced) generated by the Bill?

What will the Bill cost?

Estimate of costs when Bill was published

310. Cabinet Office guidance[332] says that when a Department presents a Bill to Parliament, it should produce a Full Regulatory Impact Assessment (RIA) setting out with some precision what the costs of the Bill will be. The Full RIA should build on a Partial RIA, produced during consultation on the Bill and setting out as definite estimates of cost as possible.

311. When the Department presented the Bill to Parliament in June 2003, however, they provided no estimates of cost. The Bill was not accompanied by a Full RIA, but only by a Partial RIA and this did not contain any cost estimates at all.

312. The Department told the Committee that they had Treasury agreement to publish the draft Bill before the resources required had been fully assessed and the costs settled.

Estimate of costs provided to the Committee

313. The Department did not provide us with any estimates of costs until 16 October 2003. Even so, these late estimates appear to be highly provisional at best. In written evidence the Department told us that these figures 'are very much initial estimates. Significant refinements are likely before the Bill is introduced to Parliament.'[333] They also said: 'Figures at this stage should be seen … only as a rough indication of the likely scale of the cost of the Bill.'[334]

314. The Association of Directors of Social Services (ADSS) told us that Local Authorities, on which many of the costs of the Bill will fall, had not done detailed work on costing the implications of the Bill. They told us that the Department for Constitutional Affairs and the Department of Health had only started talking to them in the last couple of months about costs and that they had a very long way to go before they would be able to make detailed estimates.[335] They claimed that consultation with the Department for Constitutional Affairs had not been adequate and that in most respects the process of consultation had not really begun.[336]

315. Given that the Bill has been under consideration for so many years, we fail to understand why the Department were not able to produce more accurate figures, and do not appear to have carried out adequate consultations on likely costs. We regret that the draft Bill was presented for Parliamentary scrutiny without an accompanying assessment of the resource implications. We were surprised that the Treasury should have apparently waived the requirement for a full resource impact assessment to accompany the draft Bill which placed us in the invidious position of having to carry out our scrutiny without any detailed indication of what the Bill might cost.

Possible costs of the Bill

316. Although provisional, the Department's estimates do show that the cost of the Bill will be considerable. Set-up costs will be in the region of £17 million and on-going annual costs a further £18.5 million.[337] Using these figures, we calculate that the present value of the costs of the Bill over a ten-year lifetime would be £171 million.

317. The Department told us that these estimates do not take account of how much was already being spent on mental incapacity through the provision of legal advice and assistance and by the NHS and social care. But, although they had apparently been unable to find out what was being spent in these areas, they had conservatively assumed the expenditure as being zero in their cost estimates. Whatever this current expenditure turns out to be will therefore offset the estimated cost of the Bill. For this reason, the Department told us: 'It is likely that final cost estimates will be lower after [such] expenditure… has been taken into account."[338]

Training

318. The Department told us:

    "We have not anticipated that there would be significant costs arising from implementation because the Bill largely builds upon the current law and best practice."[339]

319. However, the ADSS told us that: 'The Bill has significant implications for service delivery and there will be costs associated with implementation.' The ADSS pointed especially to training costs, which the Department has not explicitly included in its cost estimates. The ADSS said:

    "[T]here are considerable training implications for care staff. The arising practice issues need to be included in the new Social Work degree; and in the range of training for non-professionally affiliated staff. It should be noted that the majority of care staff will not have a professional qualification."[340]

They also said:

    'Significant additional training resources will need to be deployed to ensure that staff operate within the framework of the Bill and Codes of Practice. This will include staff employed directly by local authorities, and those employed in voluntary, [sic] and independent sector who provide services under care contracts with local authorities.'

320. This evidence was reinforced by what we were told by the British Psychological Society's Division of Clinical Psychology (Scotland). Drawing on its experience with the Adults with Incapacity (Scotland) Act 2000, the Division anticipated 'a requirement for a huge investment in training'. Without that investment, they warned that a wide range of local interpretations would develop, inevitably leading to inequity.[341]

321. In addition, the Department themselves have subsequently told us that they estimate around 100,00 professionals will need training under the Bill.[342].

Other implementation costs

322. The ADSS forecast that, in addition to extra support costs, such as legal advice and preparation of papers for the Court of Protection:

    "The introduction of the Bill could require a review of current assessment and care management practice, including risk assessment. These [sic] are concerns that the Bill could result in additional demands on Social Services from the public, relatives and friends, and other care professionals, to intervene in people's lives when there are signs of mental incapacity."[343]

Appointment of Social Services Directors to make welfare decisions

323. The ADSS referred to Clause 16 of the Bill, which allows for Directors of Social Services to be appointed to take welfare decisions on behalf of people with mental incapacity as well as financial decisions. ADSS told us that 'the extension of the powers to welfare decisions is likely to result in additional demands on services which are already at capacity'.

Legal aid

324. The Department's estimate of costs claims that additional legal aid costs arising from the Bill 'would be restricted to serious, legal matters so should not increase significantly above current levels'.[344] But the Law Society of England and Wales told us in written evidence that:

    'The stated objectives of this Bill will be greatly undermined by the lack of availability of public funding. The need for advance planning for the budget implications is brought to Parliament's attention so that proper planning can take place and an appropriate enhancement to the legal aid budget identified.'[345]

325. Later, however, in their oral evidence to the Committee, the Law Society admitted that, since no major case of this kind had so far come before the Scottish courts, the legal costs might be less than they had feared.

Savings

326. The ADSS also told us that in some respects the Bill might produce savings or income: for example, if Local Authorities were allowed to levy charges on the property of mentally incapable people for whom they were acting as deputies. They also thought that the Bill might make it easier for Local Authorities to collect debt from people with incapacity and, in some circumstances, might minimise the need for Local Authority intervention by encouraging people to make advance arrangements for the contingency of mental incapacity.[346]

Cost of Possible Additions to the Bill

Advocacy

327. Several witnesses recommended provision for people without capacity to be supported by independent advocates. For example, People First told us that there should be a mandatory right to an independent advocate whenever a person's ability to make a decision is questioned.[347] The ADSS also told us that the best interests of a person without capacity would be promoted by easy access to independent information, advice and advocacy. However, they emphasised that Local Authorities did not have the duty or the resources to secure the provision of support and advocacy.

328. The Minister of State for Health, Ms Rosie Winterton, told us that the Department had not calculated what the costs would be if a facility for independent advocacy was added to the Bill. But she said that, given the range of decisions that would be taken under the Bill and the numbers of people involved, she thought that it was unlikely that the necessary resources would be available.[348]

329. Although we support some extra provision for advocacy, we think that uncertainty about the extent of the Department's commitment to advocacy and lack of any information about the possible costs entailed further illustrates the problems of bringing the Bill forward before proper consultation on cost has been carried out.

Will the resources be available to implement the Bill?

330. Lord Filkin, the Parliamentary Under-Secretary of State, in a letter to the Chairman of the Committee, Lord Carter, on 16 October, said that work on how the Bill is to be implemented was still in progress:

331. The ADSS raised concerns that Local Authorities might not have enough staff to implement the welfare provisions of the Bill.[350] They told us that, even if they had the money, the problems of recruiting and training the social workers, trainers and administrative staff necessary to implement the Bill were such that it might not be easy to 'get the bodies'.[351]

332. The ADSS also pointed out that the Bill imposes no statutory duties for Local Authorities to act. Unless Local Authorities were given adequate resources by central government, they might decide not to implement certain parts of the Bill because they would be unable to divert the necessary resources from carrying out statutory obligations.[352]

333. The ADSS also claimed that Local Authorities would need to be assisted with the legal costs of proceedings before the Court of Protection under the Bill. The costs of one or two complex legal cases could come to more than the cost of a social worker.[353]

334. The Minister of State for Health, Ms Rosie Winterton, told us that the Department for Constitutional Affairs and the Department of Health were still looking at the long term implications of the implementation of the Bill for health and social care staff and the training they would need. She said they were still trying to get a clearer idea of how many staff members and workers would be needed in health and social care as a result of the Bill.[354]

What will the benefits of the Bill be?

335. Cabinet Office guidance on RIAs says that the Department when it presents a Bill to Parliament should produce an RIA with precise estimates of benefits. This should quantify and place a monetary value on all impacts. In the few cases where this is not possible then the amount of impact should be quantified (e.g.: numbers of people helped, degree of help provided) or at least detailed qualitative analyses of the benefits should be made. The guidance says: '[T]here needs to be enough analysis of impacts to enable Ministers to decide whether or not the benefits justify the costs and for any external scrutiny to take place[.]' The guidance suggests ways in which benefits can be quantified - for example, through surveys or using consultants to estimate benefits.[355]

336. The Department have listed the benefits they considered the Bill would produce. But they claim that these benefits would be impossible to quantify, although 'they are undoubtedly important to the daily living of millions of people'.[356] The Department have provided no estimate of the quantum of benefit, even in the form of ranges of numbers of people affected or the degree of impact. Nor have they provided any detailed qualitative analysis of benefit.

337. We are not convinced that no action could have been taken to quantify benefits or produce a qualitative analysis. The Cabinet Office guidance makes clear that benefits of many kinds can and should be appraised and we believe that an attempt ought to have been made to give us an appraisal of the likely material benefits of the Bill.[357]

338. We note that Lord Filkin told the Committee that part of the Department's assessment on resourcing would be to consider to what extent best practice was currently met among care professionals and whether there was a gap between average and best practice.[358] This in itself involves an assessment of benefit, since one of the key benefits claimed for the Bill is that it will raise standards to the level of best practice which the Department are apparently intending to quantify.

Conclusions

339. The Department have not produced reliable estimates of the cost of the Bill or adequately consulted on likely costs. They have provisionally estimated a cost equivalent to a present value of £171m over ten years and some witnesses have identified still further costs. However, we recognise that not all the costs predicted by witnesses will necessarily add to the overall burden on taxpayers at national or local level; there may also very well be offsetting savings.

340. Given that the Bill has been under consideration for so many years, we fail to understand why the Department were not able to produce more accurate figures and do not appear to have carried out adequate consultations on likely cost. We regret that the draft Bill was presented for Parliamentary Scrutiny without the accompanying assessments of the resource implications. We were also surprised and disappointed that the Treasury should have waived the requirement for a full resource impact assessment of costs and benefits to accompany the draft Bill. As a result of these factors, we have been placed in the invidious position of having to carry out our duty of scrutiny without any detailed indications of what the Bill might cost or what the quantum of benefits it will lead to might be.

341. In the absence of such indications, we regret that we are unable to reach any conclusions on the resource impact of the Bill. Many of the benefits of social legislation are unquantifiable. Nevertheless, the Department's failure to provide proper estimates of costs and likely benefits has impaired the process of pre-legislative scrutiny and made it impossible for us to judge whether the benefits of the Bill may outweigh its costs or whether the likely cost might benefit people without capacity more effectively in other ways. Nor is it clear to us whether adequate trained personnel will be readily available to ensure that the Bill is implemented effectively. We can only urge that these aspects are exposed to the most rigorous scrutiny when the Bill itself comes before both Houses.


332   Better Policy Making: A Guide to Regulatory Impact Assessment, Cabinet Office, paragraphs 3.6, 3.7, 4.2 and 4.3 Back

333   Ev 464 MIB 1220 pg 11 Back

334   Ev 464 MIB 1220 pg 11 Back

335   Q454 (Mr Collingridge) Back

336   Q458 (Mr Collingridge) Back

337   Ev 464 MIB 1220 pg 11 Back

338   Ev 464 MIB 1220 pg 11 Back

339   Ev 267 MIB 1222 Back

340   Ev 168 MIB 1040 paragraph 5 Clauses 23-25 paragraph (ii) Back

341   Ev 16 MIB 991a paragraph 6 (2) Back

342   Ev 284 MIB.1221, enclosure on 'Remaining Questions as requested by the joint Committee, answer to the fourth question under Resources' Back

343   Ev 168 MIB 1040 Appendix 2 paragraph 3.2 Back

344   Ev 261 MIB 1222 page 11 Back

345   Ev 203 MIB 1030 paras 9.1 and 9.2 Back

346   Ev 168 MIB 1040 para 5 Clause 19(7); paragraph 3.9 Back

347   Q662 (People First) Back

348   Q732 (Ms Winterton) Back

349   MIB 43 Back

350   Q455 (ADSS) Back

351   Qs 468, 469 and 470 (ADSS) Back

352   Q456 (ADSS) Back

353   Q457 (ADSS) Back

354   Q731 (Ms Winterton) Back

355   Better Policy Making: A Guide to Regulatory Impact Assessment,  Back

356   Ev 261 MIB 1222 page 4 Back

357   Better Policy Making: A Guide to Regulatory Impact Assessment, Cabinet Office, paragraph 4.3 and Annex 4 Back

358   Q730 (Lord Filkin) Back


 
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