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The Care Bill 2013: Tinkering round the edges of a bottomless pit? Part 1

As the Care Bill makes its way through the Parliamentary process it feels rather churlish not to give it a warm welcome.  Many of its provisions seem like timely and appropriate antidotes to recent difficulties in the health and social care sector:

  • The headline duty to promote individual wellbeing;
  • Additions to the safeguarding regime;
  • Duties in relation to the needs of carers; and
  • A new emphasis on preventing needs for care and support from arising in the first place.

The new duties on local authorities to promote integration of care and support services with health services and to co-operate with NHS bodies are essential to complete the statutory foundation of integration started in the Health & Social Care Act 2012.  The new national eligibility framework for adult care and support is much needed and long-awaited.  But how far will the Bill actually take us towards a system for social care provision that will meet society’s needs and enable us to safeguard vulnerable people?

In this first of a two part discussion on the Care Bill, Ros Ashcroft, Associate at DAC Beachcroft LLP, considers the main provisions of the Bill and to what extent they highlight current tensions in the social care sector.

More duties; less funding

The most obvious point is that a new legislative framework does not in itself resolve the continuing budgetary pressures on both local authorities and the NHS (as the government acknowledges a £30bn gap in NHS funding by 2020).  In this context many authorities will baulk at the prospect of new duties being imposed, for example, in relation to carers and prevention.  Of course ultimately those duties are intended to save money in future care costs, but in the short term authorities will have to find both the funding to meet existing needs and the resource to fulfil the new duties.  A similar point can be made about the resource implications of the new duties to provide information and advice about care services (clause 4) – information which will have to be comprehensive, accessible and up to date.

Eligibility framework: a level playing field for assessment?

As regards the new eligibility framework, this should assist local authorities if clearly set out in the Regulations.  But any new framework takes time to bed in and will be subject to “testing” challenges in its early days.  If different authorities take different approaches to managing appeals and challenges, how consistent or national will the new framework be in terms of how needs are assessed and what care is made available?

How social care needs are assessed

Currently, social care needs are categorised by national guidance into four levels of need which are used by all authorities. But it is up to individual authorities to decide what at which level of need they will start to fund care. Access to care funding is therefore different   in different parts of the country. Also, it is generally said that the definition of the four categories of need is very open to different interpretation, and that different authorities (or perhaps even different people within the same authority) can read and apply them in different ways. So some people with similar needs may get different levels of support depending on who/which authority assesses them.

The new eligiiblity framework should help achieve more certainty and consistency (and therefore fairness) in two ways:

  • First, because it sets a single eligibility threshold for when care has to be provided – i.e. all authorities will have to meet needs which go over that threshold.
  • Second, it is hoped that the definition of the needs which have to be met will be   clearer and easier to apply, so there will be less scope for different interpretations by different authorities (in particular, there will only be one threshold, i.e. eligible or not, rather than the four categories at the   moment). However this depends on the quality of the definition which is set out in the regulations. In addition, if there is just one threshold to apply, there will be a lot at stake in those assessments and there are   bound to be challenges to decisions.

Quality and safeguarding

That brings us to the question of the nature and quality of the care provided once needs are assessed. From the Francis report to the Winterbourne View investigation, through the recent problems identified in NHS emergency care, the CQC disclosure scandal and debate about 15 minute home care visits, there are multiple concerns about how health and social care services are provided and regulated.  The safeguarding provisions in the Care Bill have been broadly welcomed, as providing stronger teeth for local authorities when problems are suspected.  But they don’t resolve the prior question, of how we can ensure that the quality of day to day care provided is sufficient.

The headline duty in clause 1 of the Care Bill is to promote individual wellbeing, requiring a focus on individual needs. That does provide a clear touchstone for those trying to commission and provide care as well as those battling to secure care provision. The same is true of the duties in respect of prevention and carers’ needs.  But there is still a shortage of funds to fulfil those duties and needs, so there will still be hard decisions to take about how funding is allocated and how authorities can limit spending or drive down cost without sacrificing the quality of care.

The tension between quality and cost

At this point it is interesting to consider the recent experience of local authorities in relation to residential care provision.  An extraordinary number of authorities have found themselves in court defending their decisions on proposed fees for residential care, reflecting the financial pressures on both the authorities and the care home providers (see  Legal update, Decision of South Tyneside Council relating to care home fees quashed by High Court). These cases obviously demonstrate that questions about what it reasonably costs to meet clearly-identified needs and how to allocate a tight budget to those needs are likely to end up in court.

As the line of case law on residential care fees has developed, the legal and technical issues have become refined.  The logical conclusion would be a case in which the authority has made no errors in its approach, either in terms of fairness or technical calculation, but concludes that it just cannot afford to pay a fee which meets the actual cost of providing care to an appropriate standard, and so fails to meet its statutory duties.  We are also still waiting for a case which openly deals with the issue of cross-subsidy between private paying and publicly-funded residents.  If/when those cases do come before the court, they will highlight the core issue about the sustainability of social care provision and the expectations on local authorities.  Many people would think that the High Court is not the place in which that issue can or should be resolved.  Traditionally the courts have fought shy of making judgments on affordability – but soon they may have no choice but to become involved in assessing whether these most difficult decisions on funding of care are rational and reasonable.  The question then is how the government will react.

The question for the government has in fact already been neatly formulated by Baroness Howarth, during the House of Lords committee scrutiny of the Care Bill:

“Have the Government as a whole given thought to discussing with the community at large what we really can and cannot afford for the future? … If we are going to take this forward, we have to know what level of quality people are prepared to accept.  Then, when there are failures in organisations, people are not blamed, because the failure is not necessarily one of individuals or even of groups but of the corporate whole simply not having enough resources to work across the whole piece. Until we start that debate, we will not be able to intervene in discussions about criticisms of local authorities giving only 15-minute slots to people when they have only enough resources for 15-minute slots.

We all want these wonderful things. I want things in this Bill, but somehow we have to decide on some priorities between them all. Whatever we say, we cannot go on expecting to get the same out of the same.”

It is obviously unfair to expect the Care Bill in itself to resolve the fundamental societal and demographic problems with our social care system.  The problem is that the Bill is at risk of seeming out of date before it is even passed – at the very least it feels as if the Bill highlights more problems than it resolves.

For more information, see Legal update, Care Bill 2013-14 under consideration in the House of Lords.

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