As announced in the Queen's Speech in May 2012, the government has confirmed its intention to reform the UK's adult care and support system by publishing a draft Care and Support Bill (the Draft Bill). Also published alongside the Draft Bill are the Care and Support White Paper (the White Paper) and the Progress Funding Report (the Funding Report).
The proposed reforms have been informed by two separate reviews into the existing care and support system.
In the first, the Law Commission looked into the existing legislative framework. In the second, the Commission on Funding of Care and Support (set up by the government and chaired by Andrew Dilnot - the Dilnot Commission) considered the funding aspects of the system.
The legal framework that underpins local authority responsibilities for adult social care originated in 1948. But it has developed in such an ad-hoc manner since then that understanding the rights of users and responsibilities of local authorities involves trawling through a complicated spider's web of legislative provisions.
Moreover the legal framework has not been brought into line with other major legal developments, such as the significant advances in human rights and equality law over the last two decades, and more generally has failed to keep pace with improvements in living standards in the late twentieth and early twenty first centuries.
Consequently, the area is long overdue for consolidation. Many of the Law Commission's recommendations, set out in its report published in May 2011, have therefore found their way into the Draft Bill which streamlines the existing complex legal structure and consolidates it into one overarching statute together with the provisions relating to support services for carers.
But the Draft Bill is not concerned only with consolidation. The Department of Health has said that the reforms represent the most comprehensive review of adult social care law in 60 years. The Bill includes a number of notable new duties on local authorities and makes some significant changes to the existing regime - some of which are in line with the funding reform recommendations of the Dilnot Commission.
We consider below some key issues arising from the Draft Bill in relation to adult social care. The provisions apply with regard to individuals over the age of 18 (an adult). For ease of reference we will refer to a service user when we mean an adult in need of, or receiving, social care and support.
First things first - what is not included in the Draft Bill
The key proposals deriving from the work of the Dilnot Commission centred on the need for funding reform. The Commission considered that the current system - under which support is provided to a service user on a means-tested basis which looks at both income and assets of that service user - is both confusing and unfair. In particular it 'penalises' those with modest assets as they are at greatest risk of being required to spend much of their income and wealth on care costs.
To address these concerns the Commission recommended that there should be a cap on the costs to be paid during their lifetime by service users and that the threshold at which people lose means-tested support should be raised.
At present there is no cap on the costs that a service user may need to pay during their lifetime towards the costs of their social care. The Commission reported that a fairer funding system should offer protection against the risk of high care costs (which are in excess of £100,000 for almost one in 10 people over 65) and therefore that one of its features should be a cap on the contributions made by the service user. It considered a cap of £35,000 (for those over 65) to be both fair and realistic.
In addition, under the current system, people with assets over £23,350 are not entitled to financial assistance from the state and are therefore required to fund their own care. The Commission noted that this threshold was neither fair nor sensible and recommended that it be increased to £100,000.
The government has given a very clear indication that it supports these general principles. They are not, however, reflected in the Draft Bill. The government wants more time to consider how the principles could be given effect in the light of the current fiscal deficit, and has said that it cannot yet commit to introducing a new system for funding.
In these circumstances it appears unlikely that the Dilnot Commission's recommendations will be implemented in their entirety. For instance, the Funding Report notes that some stakeholders and commentators have indicated that a higher cap may be appropriate and deliver similar benefits, and it appears likely that the government will seek to raise the cap beyond that proposed by Dilnot if it can find a justification for doing so. The Report also suggests that the means-test threshold could be set at a different level.
An announcement on the government's decisions with regard to funding reform is to be expected in the next Spending Review due in Spring 2013.
Continuity of care
Although the Draft Bill includes provisions relating to continuity of care in cases where a service user moves from one local authority area to another (see below), it does not deal with continuity of care where a service provider goes out of business.
Concerns about how continuity of care can be ensured, and how the difficulties that arise when a service provider goes out of business can be managed, are by no means new. But they have gained some momentum in recent times due to the widely reported financial difficulties of Southern Cross.
The White Paper confirms that the government proposes to consult on the steps that might be necessary to ensure that there is continuity of care in the event of major service provider failure. Additional provisions may be introduced into the Bill in due course.
The major changes included in the Draft Bill
Local authorities - the new framework of duties
The Draft Bill includes a number of new general duties on local authorities. These effectively set out the purposes underlying adult social care.
These duties do not replace or supersede any existing duties but are in addition to - and effectively overlay - them. In essence they define a framework of objectives within which a local authority must exercise its social care and support functions.
The suite of new general duties include:
- Promoting well-being - this reflects the core principle that the overarching purpose of adult social care is the well-being of the individual. This new duty requires local authorities when undertaking their social care functions - i.e. making decisions with and about the service user - to promote the well-being of the individual in question. The concept of well-being is clarified in the Bill.
- Having regard to certain matters - this provides that in exercising their social care functions local authorities should have regard to a number of matters including for example having regard to the service user's views and feelings, and to the importance of achieving a balance between the service user's well-being and that of any person involved in caring for him/her.
- Provision of information and advice - this is a duty to ensure that there is sufficient information and advice available in respect of matters relating to adult social care, so as to enable service users to make plans for their social care needs. The principle here is to ensure that there is genuine autonomy and choice for service users making decisions about their social care requirements, and that local information is available locally in order to stimulate and manage the market for social care provision.
- Promoting diversity and equality - this is a new duty on local authorities to promote the efficient and effective operation of a social care market so that service users have a choice of providers and of high quality services, and sufficient information to exercise that choice.
- Preventing needs for care and support - The focus here is on local authorities taking pre-emptive and proactive steps to provide services, facilities or resources to negate the need for care and support further down the line.
Although the above duties do not in themselves provide any substantial new rights for service users, they clearly indicate what lies at the heart of the reform and provide a new legal framework within which the system must operate.
They reflect the concept that local authorities have a significant role to play in social care which extends beyond the actual provision of social care services in order to meet individual needs.
Eligibility criteria - an end to the postcode lottery?
Determining the 'eligibility criteria' plays a crucial part in local authority decisions with regard to the provision and funding of adult social care.
At present the eligibility framework which local authorities must use to specify their eligibility criteria is set out in statutory 'guidance' issued by the Secretary of State. The guidance provides for four eligibility thresholds, defining categories into which a person's needs for adult social care will fall. Local authorities are required to determine, by way of an initial policy decision, which of the four thresholds (i.e. levels of need) they will meet by way of providing social care services. There is no legal obligation to meet needs falling within any particular threshold.
In recent times, as a consequence of diminishing financial resources and the government spending review, a number of local authorities have raised the bar so that only those service users with needs that fall within the highest threshold will have their needs met by the local authority.
In turn this has resulted in a significant amount of litigation (see for example W & Others v Birmingham City Council ; McDonald v Royal Borough of Kensington & Chelsea ).
In future, the proposal is that regulations made by the Secretary of State will define the eligibility framework. The change of status (i.e. regulations v guidance) is not in itself as significant as it might at first seem, given that the legislative requirement is for local authorities to 'act under the guidance'. The courts have determined that this means they are obliged to follow the guidance unless there is good reason for departing from it, and even then may not substantially depart from it and may only do so on admissible grounds (see R v LB Islington ex parte Rixon ).
However, what is significant is that the regulations will be able to set the eligibility threshold for the level of needs that local authorities must meet. This effectively enables the Secretary of State to set a national minimum threshold, so that if an individual's needs for social care and support fall at or above that threshold level the local authority will be obliged to meet those needs.
Although the possibility of local authorities being able to set their own eligibility thresholds (as at present) is also left open - the Draft Bill provides that regulations may also preserve this alternative position - the government has confirmed that a national eligibility threshold will be introduced in April 2015.
Doing so may remove the unfairness inherent in the current regime - the so-called 'postcode lottery' - in which different local authorities have different eligibility thresholds and eligibility for care therefore depends on the area in which a person with needs happens to reside.
Deferred payments - no more forced sales of homes?
Following the recommendation of the Dilnot Commission, the government has confirmed (in the Funding Report) that it will introduce a universal system of deferred payments for residential care.
The Draft Bill provides for regulations to specify the circumstances in which a local authority either may or must have a deferred payment arrangement with a person who has needs for social care and support and who is required to pay towards its costs.
The Funding Report focuses on the introduction of a universal scheme under which those who are unable to afford residential care fees without selling their home will be able to defer payment until a later time. In return the local authority will be able to register a charge over the home in order to secure the payment of the fees later.
The universal scheme relating to deferred payments for residential care will be mandatory but local authorities will also be able to offer deferred payments for other types of social care too.
The concept of deferred payments is not new as there are some local authorities that already offer such arrangements. But it is not mandatory and in practice not very many service users have the option available to them. One of the reasons for this is that local authorities are not able to charge interest on the deferred fees or recover their administrative costs. Under the new provisions, local authorities will be able to charge interest and administrative costs. It is hoped that this will make it easier for them to offer deferred payments for the full spectrum of social care services.
Personal budgets and direct payments - another step towards autonomy
Successive governments have been keen on the idea that individuals in need of social care and support should have greater autonomy in determining how money allocated to the meeting of their needs is spent.
To date this has been reflected in government policy and guidance to local authorities, but it is now to have legal force for the first time.
Under the Draft Bill, every care and support plan produced by a local authority will be required to include a personal budget. This is effectively a statement that sets out the amount assessed by the local authority as the costs of meeting the user's needs together with the amount (if any) which the user is required to pay (as informed by the financial assessment) and that which the local authority itself must pay.
Where a personal budget provides for an amount to be paid by the local authority, that amount must, subject to certain exceptions which may be set out in regulations, be paid by way of a direct payment in cases where the service user requests direct payment (either to him/her or to a nominated person) or where an authorised person makes that request.
In both cases the local authority must make the direct payment if certain conditions are satisfied. The conditions relate primarily to the ability of the service user/nominated person to receive and manage the direct payment and to the authority being satisfied that making such payments is an appropriate way to meet the needs of the service user.
A direct payment must be used for meeting the needs specified in the care and support plan. Local authorities will be empowered to stop making direct payments and require a service user to repay some or all of the payment if it is not used to meet those needs.
Continuity of care - service users moving area with minimum disruption
Moving from one local authority to another can cause disruption in the level and type of social care services provided to users.
One way of addressing this is found in the changes to the eligibility framework. These should help to ensure that where service users move from one local authority to another, their needs will continue to fall within the eligibility criteria and therefore continue to be met. The new duties in relation to cooperation not only between local authorities but also with other partners (for example local NHS bodies and local policing bodies) should also help authorities to manage and overcome some of the obstacles that are faced by service users who move from one local authority area to another.
However, in addition, there is to be a specific obligation on a local authority receiving a service user moving into its area to ensure that there is continuity of care - the user's needs must continue, at least in the short term, to be met by it to the same extent that they were being met by his/her previous authority.
The proposal is that once a local authority is notified by a user that he/she is moving into that authority's area, it should undertake its own assessment of needs, but until that assessment is undertaken (or until any alternative arrangements required as a result of that assessment are put in place) the user's needs must continue to be met as if the user had not moved area.
Delegating social care functions - facilitating work with partner organisations
The Draft Bill also includes provisions that enable local authorities to authorise other bodies - e.g. partner organisations in the field of social care (whether commercial or in the third sector) - to exercise on their behalf many (though not all) of their adult social care and support functions.
Local authorities will be unable to delegate their functions which relate to co-operation, promoting integration with health services, imposing charges, making direct payments and safeguarding adults at risk of abuse or neglect. But the delegation of all other functions will in principle be possible.
At present local authorities are not (other than for the purposes of adult social work practice pilot schemes) in a position to delegate the exercise of their social care functions - although they could be in principle, if a Minister were to make an order under the Deregulation and Contracting Out Act 1994.
Although the Government has stated that provisions in the Draft Bill are in addition to and do not replace or supersede the provisions in the 1994 Act, going forward they will effectively negate the need for an order to be made under the Act and the process entailed in making such an order.
The Draft Bill is out for consultation until 19 October 2012. It has also been presented to Parliament for pre-legislative scrutiny.
After consultation and pre-legislative scrutiny has taken place during Autumn/Winter 2012, the Bill will be introduced formally in Parliament. Although a specific timetable has not yet been set out for its introduction in Parliament, the target date for the introduction of the universal deferred payment arrangements and the minimum eligibility criteria is April 2015.