| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
It cannot be automatically assumed that someone will want to take on the role of “suitable person”. This may be particularly relevant when children make the transition to adulthood. A consultation carried out by Sense—the charity concerned with deafblindness—found that many parents receiving direct payments on behalf of their children received inadequate support. They found it very difficult to cope with the added stress of organising services, and problems occurred when people did not turn up due to sickness.
There is concern that direct payments could be presented by local authorities as the only way for an individual in transition to continue receiving the support that they need. Parents are anxious that they would have no real choice in taking on the role of suitable person or in consenting to direct payments. It is essential for the protection of vulnerable people and their sometimes equally vulnerable and overstretched parents that those parents are not pressurised into taking on the role of suitable person. It may be that another adult—for example, an adult sibling—will be better placed to take on the role.
Once appointed, it is essential that the suitable person has a real choice as to whether to consent to receiving direct payments on behalf of the person lacking capacity. A consultation into direct payments carried out by Sense indicated that a quarter of respondents had no choice about receiving a service from the council instead of direct payments. Local authorities must ensure that suitable persons are given adequate support so that the role can be carried out effectively.
Social services departments must be satisfied that the direct payment is used for the benefit of the person with limited capacity. This can be particularly relevant where the suitable person is also the primary care-giver. Suitable persons may need training in person-centred planning.
In Committee on the Bill in another place, the Health Minister stated that,
- “regulations may specify that if the suitable person is not a family member or friend ... local authorities may be required to carry out vetting and a barring check under the Safeguarding Vulnerable Groups Act 2006 before making the direct payment”.—[Official Report, Commons, Health and Social Care Bill Committee, 25/1/08; col. 512.]
Vulnerable people are at great risk of deliberate befriending for the purpose of exploitation, and there is concern as to how a “friend”, as referred to by the Minister, would be defined. There is also concern about whether more distant relatives will be subject to the vetting and barring procedure. If the family member in question was not previously the care-giver, would they be subject to a vetting and barring check? They would be in a quite different position from someone who was previously the care-giver for a long time.
It is worth noting that persons lacking capacity are very vulnerable to abuse, and the vetting and barring check is vital in protecting them from that. By limiting
22 May 2008 : Column GC638
Once a person has been deemed to be a suitable person, it cannot be assumed that they will continue to be so indefinitely. The final provision in the amendment has been inserted for the protection of the well-being of both the suitable person and the person lacking capacity. A clear example of when this provision might play a vital role is in the case of an elderly parent who is appointed as a suitable person on behalf of their adult offspring who lacks capacity. As the parent ages, they may need greater support to carry out the management duties and may reach a stage when they are no longer capable of carrying out the role. That is why the amendment has been drafted in this form. I beg to move.
Baroness Masham of Ilton: The noble Baroness, Lady Wilkins, is recovering from an operation. That is why she is not here today. Of course, I support the amendment.
Baroness Thornton: The noble Baroness, Lady Masham, is always admirably brief and to the point in her remarks. I thank her—and, of course, we all wish the noble Baroness, Lady Wilkins, all the best in recovering from her operation.
Amendment No. 208 is aimed at safeguarding both the vulnerable person who lacks capacity, and the suitable person who may manage the direct payment on their behalf. I hope that noble Lords will agree that the spirit of this amendment is very much in line with the powers that we are already seeking to take in the Bill, and is therefore not needed. But I will deal with each additional power and, I hope, set people’s minds at rest.
As regards new subsection (3)(m), I can reassure noble Lords that a suitable person will not be forced to receive a direct payment on behalf of a person lacking capacity. Being a suitable person will not automatically mean that a direct payment will be made to that person; it is simply the first step in the process. Let me be absolutely clear on the record that no direct payment can be made to a suitable person unless they give their consent.
As regards new subsection (3)(n), under the current scheme, direct payments can be paid as part of a mixed package of support from the local authority. For instance, if a person enjoys receiving day care at a local authority-funded centre and is then reassessed as needing additional support, they may continue to receive day care provided at the day centre, while the additional funds, to meet other needs, are provided as a direct payment. I can confirm that it is envisaged that local authorities will continue to arrange mixed packages under the new scheme.
Person-centred planning, as dealt with in new subsection (3)(o), is a concept that runs throughout the provision of social care. The ministerial concordat,
22 May 2008 : Column GC639
As regards new subsection (3)(p), I agree fully that it is important to ensure that the right arrangements are in place with regard to vetting and barring and to ensure that the necessary checks are carried out, but also that people do not have to go through unnecessary bureaucracy to receive a direct payment on behalf of a person lacking capacity. I can confirm that it is envisaged that regulations, subject to a full consultation, will set out that where the suitable person is not known to the person lacking capacity, the local authority may be required to ensure that that person has undergone a CRB check.
As regards new subsection 3(q), we are taking regulation-making powers to allow us, if it were thought appropriate, to require local authorities to carry out periodic reviews of a decision about who will administer the direct payment. Setting out the monitoring requirements in regulations will allow us and local authorities to take into account the fact that some people will need less monitoring than others. For instance, a wife who has been involved in the care of her husband for 20 years may need less monitoring than an individual who may not know the person for whom they are receiving the payment.
I turn to a direct question that I was asked about how councils will ensure that a suitable person does not mismanage a direct payment. The regulation-making powers that we will have will enable regulation to set out conditions to be complied with by the suitable person, which may or may not be imposed by local authorities. In addition, it is envisaged that the vast majority of suitable persons will either be court-appointed deputies, donees of lasting powers of attorney or friends and relatives who may already be involved in managing and organising the care of the direct payment receipt. Anyone taking decisions for or acting on behalf of a person who lacks capacity must act in accordance with the Mental Capacity Act 2005. Anyone caring for a person who lacks capacity under that Act, who wilfully neglects or ill treats that person, can be found guilty of a criminal offence under the Act, punishable by up to five years in prison, a fine, or both.
I hope that the noble Baroness feels reassured by what I have said and feels able to withdraw the amendment.
Baroness Finlay of Llandaff: I am most grateful to the Minister for giving an in-depth assurance in response to the points raised. I find it very reassuring, as will everyone else involved in the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
22 May 2008 : Column GC640
Baroness Campbell of Surbiton moved Amendment No. 209:
(a) an English or Welsh local authority (the original authority) has made a determination of need for care services in respect of a person ordinarily resident in its area under any of the social care enactments, and—(i) has arranged or is providing such services, or(ii) is making payments to such a person in lieu of care services under section 57 of the Health and Social Care Act 2001 (c. 15) or section 17A of the Children Act 1989 (c. 41); and(b) the person concerned becomes or intends to become ordinarily resident in a different local authority (the new authority).(a) give notice to the new authority if it becomes aware that a person to whom it provides care services or direct payments intends to become ordinarily resident in the new authority’s area; and(b) co-operate with the new authority in making appropriate arrangements for such a person. (a) services of an equivalent type and quantity to those provided by the original authority, or(b) direct payments enabling an equivalent type and quantity of support to that provided by the original authority,(4) All arrangements made under subsections (2) and (3) are to be made with the involvement and consent of the person concerned and must include effective arrangements to meet any new or different needs of the person concerned.
The noble Baroness said: This is the first amendment that I have tabled in this House since arriving. I am very excited because if I could choose an amendment this one would certainly be high up on my list of priorities.
The amendment will right one of the most fundamental flaws in our social care system—the absence of a clear statutory provision to guarantee portability or continuity of support for disabled and older people when they move from one area to another. In my view, the amendment is underpinned by a fundamental human right set out in Protocol 4 of the European Convention on Human Rights. Article 2, which deals with freedom of movement, states:
“Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence”.
22 May 2008 : Column GC641
Due entirely to the way we organise social care within local authority boundaries, the freedom of movement of disabled and older people is entirely dependent on whether or not a local authority social services will agree to take over your support. Therefore, when I am offered the job of a lifetime in Newcastle, it is not me who decides whether I can take it, but the local authority which decides whether it wants me. It is as simple as that.
Let me briefly set out a broader case for the amendment, which has the support of the national coalition, Our Lives, Our Choices, which brings together older people and disability and carers organisations in support of independent living. The amendment also reflects one of the measures included in the Disabled Persons (Independent Living) Bill, which has twice been brought before the House by the noble Lord, Lord Ashley. Currently, if a disabled person moves out of their local authority area they must give up whatever payments or services they are receiving and start again from scratch to negotiate a new package with the new local authority. This necessitates a costly reassessment even if the person’s needs have not changed. Needless to say, this presents a huge bureaucratic cost to the local authority and, at the same time, causes frustration and stress to the service user.
When my colleague, Dave Morris, made the move from Barnet to Tower Hamlets to take up his post as principal disability adviser to the Mayor of London, it took a year to re-establish his support package. Throughout the year he was told on at least three occasions that his package was,
His job was in jeopardy; his peace of mind was in shreds. Some individuals have literally died waiting for an answer.
In the Guardian last week, a recently retired director of social services in Wiltshire said:
“We still have what can look remarkably like the remnants of the Poor Law system of outdoor relief, paid for by parish rates (what we now call council tax). We lose our entitlement to help if we cross the parish (the local authority) boundary, have to be re-assessed and will hit a different policy about who gets help and who doesn’t, making geographical mobility extremely risky”.
At the Disability Rights Commission, I recall a case involving a blind woman with diabetes, arthritis and a small child, who had moved area. There had been a complete failure by both local authorities involved to plan a seamless transition. Consequently she was left without support for two years. We spoke to her GP who advised us that her situation was so bad that it had become life-threatening. We had to intervene. We did. And we got things moving. I am pleased to say that she is still alive, but it was tricky.
3.15 pm
As well as putting lives and mental well-being at risk, the absence of a right to portable support has a negative impact on employment opportunities. There is little point in applying for a job in another part of the country unless you know that you can relocate in the sure knowledge that your support will be ready and waiting. It is stressful enough applying for a new job without knowing whether you will able to get out of bed to get there. It also has an extremely negative
22 May 2008 : Column GC642
The current situation is, I have to say, grossly inefficient. Why waste scarce resources on reassessment if someone’s needs have not changed? Of course needs may have changed slightly, and my amendment covers that eventuality.
I do not believe that my amendment can be resisted on the grounds of cost. I propose that those whose eligibility for social care support has already been established should be entitled for a transitional period to equivalent services or direct payments to cover their support needs before they need undergo any reassessment in a new local authority. The amendment provides explicitly for liaison between both authorities to ensure that preparations are made in a timely way.
We can debate the details—much of which would need to be dealt with by regulations—but at this stage I seek a clear statement of support from the Government. I appreciate that I am still relatively new around here in this formidable House, however, I can anticipate the Minister’s response. I suspect that we will either be told that the amendment is not necessary or that we must make the case for inclusion in the Green Paper on social care. As someone who knows the social care world backwards, these reassurances will not be adequate. There is currently nothing in primary legislation that tells local authorities to ensure that when a disabled person moves, their support package follows them seamlessly. Local authorities are required to re-assess from scratch when someone moves into their locality, even if their health needs have not changed one iota. I know that that is fact.
Urgent action needs to be taken to remove this barrier to social and economic mobility. Serious human rights violations are occurring and will continue to occur if the matter is not resolved. What is needed is a clear duty which gives rise to an enforceable right, as provided by this amendment. I beg to move.
Lord Low of Dalston: I support the amendment which has been so ably moved by the noble Baroness, Lady Campbell. It is clearly founded on an important principle, that of portability of care, so that care moves with the person. If a person who needs care and support decides to move, they should be able to move with confidence that their care and support will move with them. All of us would agree that mobility—the ability to move where one wants to and live where one wants to—is intrinsic to independence. That is a principle that we should see reflected in this legislation. It has been missing for too long.
I shall speak also to Amendment No. 209A, which is tabled in my name. The Bill gives us a chance to discuss the problems caused by ordinary residence disputes. The severity of the problem is shown by the concerns expressed by a range of organisations, including the Voluntary Organisations Disability Group, the Local Government Association and the Association
22 May 2008 : Column GC643
Each year, disabled people are prevented from moving home or moving from residential care to independent living because of bureaucratic delays and disputes about who should pay for their care. The root cause of these problems is the definition of someone's place of ordinary residence, whereby local authorities and primary care trusts determine which authority has responsibility for personal support for disabled people who live in their area. There is no legal definition of ordinary residence, and the guidance is unclear. Some local authorities are using this confusion to delay or avoid paying the costs of care for those for whom they should be responsible. The amendments that I tabled last year struck a chord with noble Lords who, speaking with great experience of the statutory and voluntary sectors, stressed that this problem has been crying out for a solution for decades. There was widespread support for the notion that it is a fundamental principle that the ability to change one's place of ordinary residence should not be dependent on purely administrative considerations or the convenience of health and social care systems and that a framework should be put in place for the transfer of funds between authorities so that the issue of ordinary residence can no longer be used as a basis for refusing to provide care and support.
Local authorities are responsible for social care, and in our mobile society cases inevitably arise where it is not clear which authority is responsible for a particular person's care. That can happen when care homes deregister, when young adults graduate from a specialist residential school, when people want to move from specialist care homes to supported living and in all kinds of circumstances. All these examples are covered by just one sentence of the guidance, which reads:
“If subsequently, by private arrangement, the person moves he may, depending on the specific circumstances, become ordinarily resident in the area of the local authority where he has chosen to live”.
It is little wonder that disputes arise. The department is aware of this and promised to update the guidance by 2004, but that has not yet happened. I would be grateful to hear from the Minister when she feels that the guidance will be updated and expanded in order to cover the variety of situations that give rise to these boundary disputes. Guidance cannot eliminate disputes entirely, so I am concerned also that disputes could drag on for months and even years. Amendment No. 209A is an attempt to deal with this situation more expeditiously.
The amendment, although its drafting is rather complex and its thrust may not be immediately apparent to your Lordships, would introduce a system under which disputes not resolved by the authorities within
22 May 2008 : Column GC644
| Next Section | Back to Table of Contents | Lords Hansard Home Page |