The majority of the provisions of the Care Act 2014 (the “Act”) are due to come into force in April 2015 (followed by some costs provisions in April 2016). There is always potential for legal uncertainty and complexity with new legislation, such as ensuring compliance with statutory obligations which have not been tested in court or explored through detailed guidance. These are some of the key areas of the Act that we envisage will provide opportunities for private health and social care providers to work with Local Authorities to reengineer, restructure and reinvent the way in which health and care services are delivered.
Wellbeing and eligibility
The Act is clear that, when fulfilling their social care functions, authorities must focus on the promotion of individual wellbeing. This concept of wellbeing is pervasive throughout the Act. However, it remains to be seen how the impact will be felt across providers of health and social care services.
Whilst much of the Act is relevant to how Local Authorities operate and fulfil their social care functions, this Article focuses on those elements of interaction that are likely to arise by virtue of authorities exercising those functions and their duties airing from the Act.
The Act places an obligation on Local Authorities to monitor, enquire about and identify individuals with care needs who may be at risk of care and abuse, irrespective of whether or not the individual receives care and support from the Authority.
Any failure in safeguarding will undoubtedly have serious implications for an Authority and this is certainly an area where we expect that Local Authorities will look to increase their interaction with NHS bodies, Police and Probation Services, as well as other potential partners, including private providers of health and social care services.
The Act places on Local Authorities a duty to ensure continuity of care for individuals. It also introduces changes to financial assessments, which will arguably increase the number of individuals qualifying for care. This, in turn, is likely to put a further strain on Local Authorities’ limited resources. In addition to the section 5 obligation to manage the market, this may force Authorities to delegate more of their social care functions to private, charitable or other voluntary organisations.
Authorities also have an obligation to ensure sufficiency of choice. To do this, they will need to assess trends and requirements. Key, however, are likely to be the published strategies of the relevant authority. The development of these strategies will require consultation with all stakeholders.
Some Authorities have already started this process: there are already some very good examples of Market Position Statements which have been published by Authorities. Such statements should provide the private sector with a pipeline of prospective projects as well as serving as a useful assessment of current and future service provision and supply and demand.
There are likely to be plenty of opportunities for public and private sector partnerships in developing the market for care. Department of Health guidance also suggests that Local Authorities should look to collaborate closely with relevant partners and encourage innovation, investment and continuous improvement. It is clear from reviewing the Market Position Statements of a number of Authorities that many public sector bodies have already radically transformed health and social care services by reconsidering the ways in which services are commissioned and provided. However, this is clearly a great area of opportunity for private health and care providers and is an area where more could be done to collaborate.
There is a desire for Authorities to prioritise cheaper, early intervention services over costly long-term services. Consequently, we expect that Local Authorities will continue to look to move away from, and reduce investment in, residential care and look to fund the provision of alternative services which will assist an authority in complying with its section 2 obligation under the Act to provide or arrange for the provision of services, facilities or resources, or take other steps, which it considers will contribute towards preventing or delaying the development of the need for care and/or support in its area.
Both Local Authorities and its private partners will need to be mindful of the Public Contract Regulations 2015 which came into force on 26 February 2015 (the “New Regime”). The New Regime introduces the new light touch regime for certain specified health and social services contracts above £625,050. As before, there is no defined process to follow for such procurements but a local authority will need to conduct the process in line with the general principles contained in the New Regime and the remedies are more limited than in respect of fully regulated contracts. Importantly, Local Authorities will now have to publish all opportunities above £25,000 on Contracts Finder and, for contracts above £625,050, also in the OJEU through a PIN or contract notice.
Duties of co-operation and integration
The overall effect of the Act is to promote the efficient and effective operation of care and support activities, to ensure that individuals who wish to access such services have a choice of quality providers and receive sufficient information to enable them to make an informed decision.
Local Authorities will need to co-operate with “relevant partners”, including NHS bodies and private health and social care providers, in exercising their care and support functions. This duty to co-operate is enhanced through a duty to exercise social care obligations with a view to promoting integration with health and health-related services.
In addition, Local Authorities must take steps to prevent or delay the need for care and support. The effects of this may be wide ranging. For example, it is well known that the risks associated with chronic conditions reduce with physical activity. It is likely, therefore, that co-operation, integration and prevention will lead to much wider partnerships being formed, budgets being redirected towards improved pathways and further endorsement of the work that Local Authorities are engaging in with other local organisations.
The potential for the redirection of funding from various stakeholders into services that will reduce long term needs or expensive future care is likely to give rise to new opportunities and new models of working. Better collaboration between Local Authorities and health and social care providers should, in theory, streamline services and reduce the number of people who miss care opportunities.