SSRG Briefings – Carers and Disabled Children Bill

The Carers and Disabled Children Bill was introduced in the House of Commons on 15 December 1999. The Member of Parliament in charge of the Bill is Mr Tom Pendry. The purpose of the explanatory notes is to assist the reader of the Bill. They do not form part of the Bill and have not been endorsed by Parliament. The Bill extends to England and Wales only.

What follows is a summary of the main points abstracted from the main report which appears on http://www.parliament.the-stationery-office.co.uk/pa/pabills.htm

Summary

Carers look after those who are in need of additional care, assistance or support perhaps because of long-term illness or problems associated with disability. The Government estimates that Great Britain has 5.7 million carers, and one in six households – 17 per cent – contains a carer. Of the estimated 5.7 million carers, 1.7 million devote at least 20 hours a week to caring. Of those, 855,000 care for 50 hours or more. Most caring is based on close personal relationships.

The Bill makes four principal changes to the law with the objective of enabling local authorities to offer new support to carers to help them to maintain their own health and well being.

First, the Bill gives local authorities the power to supply certain services – services which help the carer care for the person cared for – direct to carers following assessment. This change will involve a new right to a carer’s assessment which, in particular, will enable a local authority to carry out an assessment in circumstances where the person cared for has refused an assessment for, or the provision of, community care services.

Secondly, the Bill empowers local authorities to make direct payments to carers (including 16 and 17 year old carers) for the services that meet their own assessed needs, to parent carers of disabled children for services for those children and to 16 and 17 year old disabled children for services that meet their own assessed needs.

It is important that users of social services and their carers have greater choice and flexibility in the timing and nature of services delivered to meet their assessed needs. The Carers National Strategy was aimed at empowering carers to make more choices for themselves and to have more control over their lives. To that end, the Bill extends the direct payment legislation to carers to meet their own assessed needs.
In addition the Bill extends direct payments to parent carers to meet the needs of their disabled children. The responsibilities of parent carers are made more arduous by the difficulty of accessing mainstream services, for example child care, including after school clubs and leisure activities. Where parent carers do not think services are sufficiently tailored to the needs of their family direct payments offer more choice in the way services are delivered.

The extension of direct payments to 16 and 17 year old carers will offer them additional flexibility in meeting their own developmental needs. The extension of direct payments to 16 and 17 year old disabled children may be particularly helpful where those children are intending to leave home or residential care to go into further or higher education.

Thirdly, the Bill provides for local authority social services departments to run short term break voucher schemes. Voucher schemes will offer flexibility in the timing of carers’ breaks and choice in the way services are delivered to users while their usual carer is taking a break.

The Carers National Strategy report identified voucher schemes as a way of giving users and carers more flexibility in the timing and nature of short term breaks. The short term break voucher scheme will offer users and their carers more flexibility and choice than may be achieved by the direct local authority provision of services, and will introduce a simpler way of achieving some level of flexibility and choice in the delivery of respite care than is currently available via direct payments. For example, a user may not wish to enter residential care while their usual carer is taking a break. They may prefer to seek out a provider of support that will enable them to continue living at home.

Fourthly, the Bill gives local authorities a power to charge carers for the services they receive.

Effects of the Bill on Financial and Human Resources

Government states that the only additional costs that are likely to arise in implementing this Bill will be those relating to the carer’s right to an assessment in circumstances where the person cared for has refused an assessment for, or the provision of, community care services. These additional costs are expected to be contained within the existing local authority allocation.

In terms of Human Resources, Government states that Local authorities already have a power to carry out carers assessments for the purposes of decisions about the services to be provided for users and therefore this Bill will have no appreciable effect on public service manpower.

Commentary on Clauses

Clause 1 : Right of carers to assessment This clause only applies to informal carers (see subsection (3)).

Clause 1(1) provides that a person who is a carer (aged 16 or over) has the right to an assessment from the local authority of his ability to provide (and to continue to provide) care for another individual (the person cared for). That assessment will enable the local authority to decide whether to provide services to the carer under clause 2 of the Bill.
Under section 1(1) of the Carers (Recognition and Services) Act 1995 (the 1995 Act) a carer has the right to an assessment of his ability to provide care for the person cared for and that assessment must be taken into account by the local authority in any decision they make about community care services for the person cared for. The effect of subsection (2) of this clause is that in carrying out a carer’s assessment under subsection (1) (of this clause) the local authority can take into account, so far as it considers it to be material, any assessment the carer may have had under section 1(1) of the 1995 Act.

The Secretary of State, or in relation to Wales, the National Assembly for Wales, may give directions as to how the local authority should carry out an assessment.

Clause 2: Services for carers This enables the local authority to provide services to carers following a carer’s assessment under clause 1. The local authority must consider that assessment and then decide whether the carer has any needs in relation to the care which he provides for the person cared for. The authority must then decide whether or not it can provide services to meet those needs and whether or not to provide them.

Services to carers are not defined as such in the Bill. The local authority may provide any services which in their view will help the carer care for the person cared for. Those services may take the form of physical help, for example assistance around the house, or other forms of support such as training or counselling for the carer.

Sometimes there will be services which, although they are provided to the carer, may be services which could be delivered to the person cared for by way of community care services, for example laundry or assistance with domestic tasks. (For the definition of community care
services, see section 46(3) of the National Health Service and Community Care Act 1990.)

Services which are provided to a carer but delivered to the user may not, except in prescribed circumstances, include anything of an intimate nature. There is a power to set out in regulations what is, or is not, a service of an intimate nature. Services of an intimate nature might include dressing, feeding, lifting, washing or bathing the person cared for.

Clause 3: Vouchers This clause enables the Secretary of State or, as the case may be, the National Assembly for Wales, to make provision in regulations for local authorities to issue vouchers for short term breaks. Vouchers are defined in subsection (2) and will enable the person cared for to arrange for someone to provide services for him either at home or in residential accommodation whilst the carer takes a break from caring. It is intended that the regulations will include provision for vouchers, whether expressed in terms of money or for the delivery of a service for a period of time, to be redeemed in exchange for services delivered by local authority approved providers.

Clause 4: Assessments and services for both carer and person cared for Subsection (1) amends section 1 of the 1995 Act and enables the local authority, insofar as it considers it to be material, to take into account for the purposes of an assessment under section 1(1) of that Act any carer’s assessment carried out under clause 1(1) of the Bill.

The effect of subsections (2) to (4) is that where a local authority is providing services to the carer under the Bill or to the person cared for under the community care legislation, that authority must decide whether the services are to be provided under this Bill or by way of
community care services. The reason for this is so that the local authority can identify who is the recipient of the service; for example, for the purpose of deciding who will be liable for any charges and who may complain in relation to the services in question.

Clause 5: Direct payments This clause amends section 1(1) of the Community Care (Direct Payments) Act 1996 (the 1996 Act). The amendment enables local authorities to make direct payments to carers in lieu of the services which they have been assessed as needing under clause 2(1) of the Bill. A carer can then arrange for a provider of their choice to provide those services.

Clause 6: Vouchers and direct payments to disabled children and parents and disabled children Clause 6(1) inserts new sections 17A and 17B into the Children Act 1989. The effect of subsections (2) and (3) is that regulations made under the new sections 17A and 17B will be made in respect of England by the Secretary of State and in respect of Wales by the National Assembly for Wales.

New Section 17A The new section 17A enables a local authority, instead of providing services for a disabled child under the Children Act, to make to the parent carer a direct payment in lieu of those services to enable the parent carer to arrange for the provision of those services rather than rely on direct service provision from the local authorities. Similar provision is made in relation to a disabled child aged 16 or 17.

Subsections (3) and (4) make similar provision to that contained in the 1996 Act. A parent carer or disabled child aged 16 or 17 (the payee) may not use the direct payment to secure services from a person who is of a prescribed description (subsection (3)). The limitations here are likely to include the spouse of the payee and anyone who lives with him as his spouse and certain relatives who live in the same household as the payee as well as the spouse of such person and anyone living with such a person as his spouse.

Subsection (4) enables the Secretary of State or, as the case may be, the National Assembly for Wales to limit the period of residential accommodation which may be purchased by means of a direct payment.

New Section 17B This makes similar provision for vouchers to that contained in clause 3 of the Bill. It inserts a new section 17B into the Children Act which will enable the Secretary of State or, as the case may be, the National Assembly for Wales, to make provision in regulations for the issue of vouchers by local authorities to parent carers to enable the parent carer to arrange for someone to care for their disabled child while they take a short break from their caring responsibilities.

Clause 7: Charging This enables local authorities to charge carers for the services they receive. This is achieved by means of an amendment to section 17 of the Health and Social Services and Social Security Adjudications Act 1983.
Clauses 8 to 11 Clauses 8 to 11 make provision for minor and consequential amendments, financial provision, interpretation and commencement.

Related legislation

The aim of the Bill is to enable local authorities to offer carers support. The Government announced a review of measures to help carers as part of a National Strategy for Carers On 10 June 1998. The objective of the Strategy was to bring together a range of initiatives designed to
address carers’ concerns and give them support.

The Carers National Strategy document Caring about Carers, published on 8 February 1999 highlighted the need for legislation to enable local authorities to provide services direct to carers.

Since 1996 when the Carers (Recognition and Services) Act 1995 came into force, carers who provide or intend to provide a substantial amount of care on a regular basis have been entitled on request (at the time the person they care for is assessed for community care services) to an assessment of their ability to care and to continue caring.

The results of this assessment are taken into account when decisions are made about the type and level of community care services to be provided to the person cared for. The assessment under the 1995 Act is of the carer’s ability to provide care and of his or her ability to sustain the care that he or she has been providing. However, that assessment does not give local authorities the power to offer carers services to support them in their caring role.