The Care Bill, a largely welcome piece of legislation for community care practitioners, nevertheless contains some obvious areas of potential dispute. At this late stage of its passage into law, it is unlikely that they will be resolved by Parliament. We suggest four:

  • The Care Bill introduces a cap of £72,000 on the care costs self-funders will have to meet from their own pocket during their lifetime. After this point, local authorities will be required to pick up the bill (where requested).. In order to keep track of the amounts self-funders are spending, LAs must log all costs in what is to be called a “care account”. It is in self-funders’ interest to reach the £72,000 cap more quickly, and in LAs’ interest for it to be met more slowly. We expect there to be a large number of disputes between self-funders and LAs over the true cost of individual items of care. We also expect there to be disputes over the frequency of reassessments: again, it is in self-funders’ interest to insist on frequent reassessments in order to ensure that their care account keeps up with any increase in needs in real time.
  • LAs often obtain lower rates for placeements at care homes by buying in bulk, with self-funders crosssubsidising the difference. Where self-funders ask LAs to commission their care home place, questions may arise as to whether they pay the LA rate or the self-funder rate. Without proper management of the various commercial pressures, these questions may well destabilise an already fragile market.
  • It is not clear whether self-funders who ask their LA to commission their care home place will receive the protection of the Human Rights Act 1998. The HRA 1998 applies to all public bodies or those exercising a public function, but query whether it applies in a case where the public authority is merely acting as commissioner at the request of a private individual.
  • The Bill imposes a range of safeguarding duties without creating any correlative safeguarding powers. An obvious candidate might have been a right of entry by LAs to investigate safeguarding concerns. It is possible that the absence of any specific safeguarding power on the part of LAs is compatible with human
    rights legislation