Health and Care Bill — Clause 35 — Cap on Care Costs for Charging Purposes — 25 Apr 2022 at 20:06

The majority of MPs voted to limit the amount adults can be required to pay towards their eligible care costs over their lifetime, rather than to prevent an individual being charged once they, local authorities, or others had paid a certain amount, the majority of MPs also voted against requiring trials of new arrangements relating to the care costs cap.

MPs were considering the Health and Care Bill.^[1][2][3]

The motion supported by a majority of MPs in this vote was:

• That this House insists on its disagreement with Lords amendment 80, insists on Commons amendments 80A to 80N in lieu, and disagrees with Lords amendments 80P and 80Q.

Lords amendment 80 which was rejected in this vote stated^[4]:

• Leave out Clause 140

The Explanatory Notes relating to Clause 140 explain^[3] that the clause makes it so the costs that count towards the cap on care costs are the costs the adult is required to pay (at the local authority rate) rather than the combined costs incurred by both the adult and the local authority.

Lords amendments 80P and 80Q which were rejected in this vote stated:^[6]

80P

• After Clause 139, insert the following new Clause—
• “Cap on care costs for charging purposes
• (1) The Secretary of State may by regulations amend the Care Act 2014 as regards how “costs accrued in meeting eligible needs” for the purposes of section 15 of that Act are to be determined.
• (2) The regulations must ensure that any costs incurred by any local authority to meet eligible needs are included within that determination.
• (3) The regulations are to have effect in accordance with a timetable specified in the regulations.
• (4) The regulations may not be made unless—
• (a) the results of the Trailblazer pilot schemes have been evaluated, and the Secretary of State has laid that evaluation before Parliament, and
• (b) the Secretary of State has completed a further general impact assessment covering distributional regional analysis, regional eligibility, and the effect of the care cap on disabled adults under 40.
• (5) The regulations must ensure that no charges may be imposed under section 14 for any adult under the age of 40 with a disability.”

80Q

• Clause 150, page 128, line 20, at end insert—
• “(ca) regulations under section (Cap on care costs for charging purposes);”

This required any regulations under the new clause proposed via amendment 80P to be approved by a resolution of each House of Parliament before coming into force.

Commons amendments 80A to 80N which were supported by a majority of MPs in this vote stated:

80A

• Page 116, line 41, leave out from beginning to end of line 9 on page 117 and insert—
• “(a) in relation to eligible needs met by a local authority, to any amount the local authority charged the adult under section 14(1)(a) or 48(5) for meeting those needs;
• (b) in relation to eligible needs met by a person other than a local authority, to what the cost of meeting those eligible needs would have been to the local authority that was the responsible local authority when the needs were met.”

The text from the Bill^[2] left out by this amendment stated:

• (a) in so far as a local authority met the eligible needs, to how much of the cost of meeting those needs at the local authority’s rate the adult was required to pay (as reckoned from the amount that was specified in the local authority’s personal budget in respect of those needs (see section 26(2)(b)));
• (b) in so far as a local authority did not meet the eligible needs, to what the cost of meeting those needs would have been at the rate of the responsible local authority (as reckoned from the amount that was specified in the personal budget (see section 26(2A)(a)) or the independent personal budget (see section 28(1)) in respect of those needs

The new text introduced by amendment 80A appears to have the same intent, but is generalised and simplified and does not refer to the "personal budget", so would apply if such a budget was in-place or not.

80B

• Page 117, leave out lines 13 and 14 and insert “at any time after a local authority was required to carry out a needs assessment that resulted in the preparation of a personal budget or an independent personal budget for the adult”

Here the text to be replaced stated:

• during the period between the making of a request for an independent personal budget and its preparation

The text in the Bill ensured costs incurred between requesting a personal budget and one being prepared counted towards the cap.

The change proposed by section 80B changes the language from "requesting a personal budget" to "requesting a needs assessment" which resulted in "personal budget or an independent personal budget".

80C

• Page 117, line 25, after “Where” insert “, following a determination under section 13(1),

This amended a line stating: "Where no local authority is going to meet any of an adult’s needs for care and support" in the Bill. This clarified that the decision in question was the result of an assessment of needs under the Care Act 2014.

80D

• Page 117, leave out lines 30 to 32 and insert—
• “(b) the adult has at any time either—
• (i) asked a local authority that was, at that time, the responsible local authority, to prepare an independent personal budget, or
• (ii) had needs met by a local authority as mentioned in section 24(1).”

The lines replaced stated: "the adult has at any time asked a local authority that was, at that time, the responsible local authority, to prepare an independent personal budget."

The amendment covers the situation where needs are being met without an independent personal budget.

80E

• Page 117, leave out lines 37 to 42 and insert— “(a) the current cost to the local authority of meeting those needs, (b) how much of that cost the adult will be required to pay under section 14(1)(a), and (c) the balance, if any, of the cost referred to in paragraph (a).”

The lines replaced set out what was to be included in a personal budget and stated: "(a) the cost of meeting those needs at that local authority’s rate, (b) how much of that cost the adult must pay, on the basis of the financial assessment, and (c) the amount which that local authority must pay towards that cost (which is the balance of the cost referred to in paragraph (a))

The amendment appears to be a simplification, and omits reference to a financial assessment.

80F

• Page 117, leave out lines 45 to 48 and insert— “(a) the current cost to the local authority of meeting those eligible needs, (b) how much of that cost the adult will be required to pay under section 14(1)(a), and”

The lines replaced set out some of what the personal budget must specify and stated: "(a) the cost of meeting those eligible needs at that local authority’s rate, (b) how much of that cost the adult must pay, on the basis of the financial assessment, and"

The change was to set out the budget must state the actual cost to the local authority, not the cost at the local authority rate.

80G

• Page 118, line 3, after “adult” insert “has needs which a local authority is required or decides to meet as mentioned in section 24(1) and”

The line amended originally stated: "If the adult also has eligible needs which are not being met by any local authority, the personal budget must specify". The amendment required the personal budget to specify information in respect of care needs it decides to meet, and made a direct connection with the steps the local authority was required to take under the Care Act 2014.

80H

• Page 118, leave out lines 5 and 6 and insert— “(a) what the current cost would be to the responsible local authority of meeting those eligible needs, and”

The lines replaced specified material required in the personal budget and stated: "what the cost of meeting those eligible needs would be at the responsible local authority’s rate. Again this is a switch from costs at the local authority rate to actual costs.

80I

• Page 118, leave out lines 9 to 13

The lines replaced stated: "References in this section to the cost of meeting needs at a local authority’s rate are to the cost that the local authority would incur in meeting those needs, assuming for the purposes of this subsection that the adult is not paying any amount in respect of those needs and has not expressed any preference for particular accommodation."

This is no-longer required following the removal of references to the "local authority’s rate".

80J

• Page 118, line 17, leave out from beginning to “(but” in line 18 and insert “what the current cost would be to the responsible local authority of meeting the adult’s eligible needs”

The text impacted originally stated: "[An independent personal budget is a statement which specifies] what the cost of meeting the adult’s eligible needs would be at the responsible local authority’s rate (but the independent personal budget need not specify the cost of meeting those needs at any time when the local authority required to prepare it has ceased to be the responsible local authority).”".

Again this switching from local authority rate to actual costs.

80K

• Page 118, line 21, after “authority” insert “or at any time when the adult has needs which a local authority is required or decides to meet as mentioned in section 24(1)”

The intent of this change is unclear, it may mean that one local authority does not have to include in its budget care provided by another authority.

80L

• Page 118, line 22, leave out paragraph (b)

The paragraph removed provided the definition of the "local authority’s rate", which was the cost incurred assuming no contribution from the individual.

80M

• Page 118, line 32, leave out subsections (7) and (8) and insert— “(7) In section 31 (adults with capacity to request direct payments), in subsection (1), for paragraph (a) substitute— “(a) a personal budget for an adult specifies an amount under section 26(1)(c) in respect of any needs, and” (8) In section 32 (adults without capacity to request direct payments), in subsection (1), for paragraph (a) substitute— “(a) a personal budget for an adult specifies an amount under section 26(1)(c) in respect of any needs, and”.”

The amendments here required personal budgets to consider all needs, not just those the local authority is required to, or decides to, meet.

80N

• Clause 153, page 129, line 14, at end insert—
• “(5A) In relation to section (cap on care costs for charging purposes), different days may be appointed under subsection (4) for different areas.”

This relates to commencement and enables the section relating to the cap on care costs for charging purposes to be brought into force on a different day to other provisions in the Bill.

Clause 140, which was supported by the majority of MPs in this vote, provided for an amendment the legislation which provided a framework for introducing a cap on care costs, Section 15 of the Care Act 2014^[8]. That legislation had not been commenced, and brought into effect. The intent of the 2014 legislation as indicated by its explanatory notes^[9] was to establish: "a limit on the amount that adults can be required to pay towards eligible care costs over their lifetime."

The 2014 legislation was drafted such that the local authority would not be able to charge an individual for the costs of their care once the total amount the authority, or other authorities, or anyone else had spent on the individual's care exceeded the cap. This did not achieve the intent of capping the amount an individual can be required to pay.

Clause 140 corrects the legislation such that it has its intended effect.

Without clause 140 the cap on personal contributions would be lower for those for whom councils, or others, had contributed to their care costs. Without the amendment there would still be a cap, but it would not operate in the manner intended.

The minister who originally introduced the new clause stated^[10]:

• We have always intended for the cap to apply to what people personally contribute, rather than on the combination of their personal contribution and that of the state.

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• [1] Parliament's webpage on the Health and Care Bill, Parliament.uk
• [2] Health and Care Bill as brought from the Commons, 24 November 2021, Parliament.uk
• [3] Explanatory notes to the Health and Care Bill as brought from the Commons, 24 November 2021, Parliament.uk
• [4] Lords amendments to the Health and Care Bill, 24 March 2022, Parliament.uk
• [5] Explanatory notes to the Lords amendments to the Health and Care Bill, 24 March 2022, Parliament.uk
• [6] Lords amendments to the Health and Care Bill, 25 April 2022, Parliament.uk
• [7] Commons amendments to the Health and Care Bill, 6 April 2022, Parliament.uk
• [8] Section 15 of the Care Act 2014, Legislation.gov.uk
• [9] Explanatory notes to Section 15 of the Care Act 2014, Legislation.gov.uk
• [10] Edward Argar MP (Charnwood, Conservative), House of Commons Official Record, 22 November 2021, TheyWorkForYou.com

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