Heralded as “the biggest change to the law in 60 years”, the Care Act was designed to move the spotlight from councils providing prescriptive, template services to a more nuanced approach in which an individual’s care and support provision was reflected in a bespoke package tailored to their needs.
The ‘no decision about me without me’ principles at the heart of the Act reflected the intention for service users to fully engage with and contribute to their care plans through early engagement and independent advocacy support. The emphasis was on frontloading resources; on prevention rather than crisis management.
The Act also built in safeguards to ensure that local authorities would be required to provide a “diverse range of high-quality and appropriate services” and prevented them from undertaking “any actions which may threaten the sustainability of the market as a whole … for example, by setting fee levels below an amount which is not sustainable for providers in the long-term (Statutory guidance for section 5 of the Act).
However, with two of the most significant and ground-breaking aspects of the Act (direct payments for those in residential care and the cap on care costs) now delayed until 2020 at the earliest and the Care and Support Alliance warning that councils are not meeting the existing statutory requirements, will the Act be able to live up to its promises?
From the CQC’s State of Care report 2014/2015 to the Nuffield Trust, The Health Foundation and the Kings Fund analysis of the Spending Review, commentators in the sector are unanimous in their acknowledgement of the financial challenges faced by adult health and social care.
The Chancellor’s Budget claimed to offer relief from these challenges in the form of new rules, giving councils the ability to increase council tax by up to 4 per cent this year; with two per cent of that rise earmarked for funding adult social care. The move by the Chancellor aimed to provide councils with flexibility to direct spending to local issues and acknowledged the growing financial pressures of the adult social care sector. A recent Local Government Information Unit survey confirmed that 86 per cent of councils surveyed would be using this new power; all stating that they would be increasing council tax this year, compared to just over 50 per cent the year previously.
Whilst a greater discretion to control finances has been welcomed, the significant reduction in funding from the central government purse has meant that councils are continuing to struggle when considering how to reduce costs and supply basic services.
The Local Government Association (LGA) warned in February that the council tax rises would not alleviate the pressures created by the reduction in central funding. The LGA argued that the majority of the additional income from a council tax increase would likely be spent covering the costs of the new National Living Wage. Meanwhile, critics have pointed out that a rise in council tax is likely to have less impact on council’s funds in the more economically deprived areas, where the range of adult social care needs are correspondingly often even higher.
As previously cited, the Act’s guidance specifically sets out that local authorities must not threaten the sustainability of the provider market and must not set fees below a sustainable level. In its first chapter, the guidance explains the Act as “the core legal entitlement for adults to care and support, establishing one clear and consistent set of duties and powers for all people who need care and support”. This can be read as a statement of intent: to create expectations, tie the hands of those apportioning funds at a local level and force through the changes the Act intended to bring.
The stark language of the Act and the explicit responsibilities imposed upon local authorities have been picked up by user groups and campaigning organisations alike. Councils have encountered public challenges and media scrutiny in their attempts to cut costs where those costs have impinged on their ability to meet the requirements of the Act.
Merton Council’s October 2015 ‘Consultation on proposed Adult Social Care (ASC) Savings for 2016/2017’ is a good example and clearly demonstrated the difficulties faced at a local level. In the section entitled ‘The law says that ASC services should provide…’, the council listed their obligations under the Act. In the section ‘What is the financial challenge for Merton?’, it noted that the government has reduced council funding by 40 per cent and that, whilst adult social care will bear less of the burden of cuts, “significant savings” must still be made.
It may be unsurprising therefore that staff reductions were a key aspect of the proposed savings; despite the paper acknowledging the corresponding possibility of “reduced capacity to carry out assessments and reviews, give social work support, undertake safeguarding activities, fulfil DOLs responsibilities and undertake financial assessments, monitor quality and performance within services and to proactively work to sustain and develop a local provider market”.
By the February 2016 consultation response, whilst staff savings were still present, the paper explicitly referenced the consequences of proposed savings on Merton Council’s Care Act obligations. It also noted the strenuous objections of those consulted to any loss in service. Plans were put in place to lessen the impact through engagement with and funding for the voluntary sector to replace statutory provision, among other mitigations. Significantly, greater staff reductions were not taken forward as a proposal within the consultation “as further staff cuts would risk reducing capacity to the point where delivering statutory duties under the Care Act 2014 would not always be possible”.
Whether it is the unambiguous nature of the drafting or the wide-ranging responsibilities it imposes, the fact that local authorities appear to be doing more than merely paying lip service to this Act makes the developing impact of this piece of legislation one to watch.