The Department of Health’s consultation on draft guidance and draft regulations relating to Part 1 of the Care Act 2014 (“the Act”) closed on 15 August 2014 after receiving over 4,000 responses from a variety of sources. The responses to the consultation highlighted a number of areas of concern.

The objective of the Act is to place adult care and support provisions into a single statute, with the principle of “individual wellbeing” at its heart and the ability of service users to tailor their own care packages to their own needs. The Minister of Health, Norman Lamb, described the implementation of Part 1 of the Act as “...the most substantial reform of the care and support system in England for over 65 years...”. To this end, the Department of Health launched the consultation to ensure that the proposed guidance and regulations underpinning the Act were fit for purpose.

On 23 October 2014, the Department of Health published its response to the consultation along with the final guidance and regulations, setting out the key themes from the consultation responses and the changes made to the regulations and guidance.

Financial concerns

Many responses to the consultation raised concerns regarding the funding for the implementation of the reforms. The Government response stated that £470m would be provided in order to support the implementation, divided into £135m of revenue funding, £50m of capital funding, and £285m in additional government grants.

Following a cost modelling exercise, the Government has identified additional costs for carers to access their rights in the first and subsequent years which could amount to £100m per year. In light of this, the Government plans to introduce a Care Act implementation grant in 2015/16, which will be funded from monies that had originally been identified to cover other areas of implementation under the act , as the Government consider the costs will be less than expected in other areas.

Implementation

Concerns were raised with regard to the timetable for implementation, and the ability of Local Authorities, alone, to fully implement the changes. The Government responded by stating that the reforms are “overdue” and that they must not be delayed. In addition, the Government stated that a recent Local Government Association survey demonstrated that 97% of Local Authorities were either “fairly” or “very” confident of their ability to implement the reforms.

The Government has allocated £25.7m for local authorities to invest in management capacity and,  in consultation with local authorities, has produced support materials covering a range of areas including IT and workforce, following concerns that the Guidance contained insufficient detail.

Impact on provider market

Concerns were raised with regard to sections 18 and 20 of the Act which place a duty on local authorities to meet the needs of both the individual requiring care and their carer(s). First of all, there appears to be confusion as to how this duty replaces the existing duties on local authorities to provide services to specific people. The Guidance has been amended to make clear that the new duty to “meet needs” is intended to be “broader than a duty to provide or arrange a particular service.” The intention is that local authorities ensure that every individual’s specific needs are considered, rather than providing a “one size fits all” service.

The Guidance has also been amended to provide examples of how local authorities may be expected to “meet needs” by providing a mix of several services, including:

  • The local authority directly providing support;
  • Commissioning care and support by contracting with providers; and
  • Making direct payments to individuals who can then source services to meet their own needs. 

Secondly, section 18(3) of the Act states that, even where a person is assessed as having the financial means to fund their own care, a local authority, even though it may not have the responsibility to fund that care, has a duty to ensure that care is accessed by that individual, by providing appropriate support and information. This will assist individuals who do not have the “skills and confidence to navigate the market and find their own care home”.

It has been suggested that this will place unmanageable additional burdens on local authorities, particularly in areas where there is a significant number of self-funders.  However, the Government’s view is that local authorities are already providing services to meet the needs of self-funders for non-residential care, this provision simply places that service on a statutory footing.

The Government has, however, agreed to delay the implementation of section 18(3) insofar as it relates to residential care, to further consult on the implementation and to address issues that may arise.

Carers

Given the concern that there were now too many different documents which set out the rights of carers, the Government has agreed to publish “at a glance” documents which set-out, in one place, the impact of the new guidance and regulations.  The Government has made clear that a generic system of providing information and advice to meet carer’s eligible needs is highly unlikely to be compliant with the Care Act.