Government plans to overhaul social care law need radical revision, including by giving social workers powers to enter homes to identify the abuse of adults, say MPs and peers appointed to scrutinise the legislation.
Today’s report of the joint committee on the draft Care and Support Bill made 107 recommendations to revise the legislation to strengthen provisions on safeguarding, personalisation and integration with health, and protect funding for services.
The committee has spent the past three months scrutinising the draft bill, which is designed to codify the law on adult social care in England in a single statute, while also putting adult safeguarding on a statutory footing and shifting the care system away from crisis response towards prevention and the promotion of well-being.
|About the draft Care and Support Bill
The draft Care and Support Bill is designed to bring together existing adult social care under a single statute, while modernising out-of-date elements. It would also make the following reforms:
Since the draft bill’s publication, the government has announced that the final Care and Support Bill would also introduce a cap on the lifetime care costs of older and disabled people with eligible needs.
Though welcoming the thrust of the government’s proposals, committee chair Paul Burstow, who as care services minister introduced the draft bill, said there was “room for improvement”. The committee also warned that the government had underestimated the costs of the reforms and that the long-term under-funding of social care would further blunt their effectiveness.
The MPs backed giving social workers powers to enter homes where abuse or neglect is suspected but a third-party is preventing access to the adult at risk, to strengthen the draft bill’s proposed duty on councils to investigate cases of suspected abuse.
The power of entry was not included in the draft bill but subject to a separate consultation. Though this showed strong support from social workers, care services minister Norman Lamb told the committee that most people who would be subject to the power were opposed, implying that the government would not introduce it.
While the committee acknowledged there were risks in introducing such a power, it said ensuring social workers had to seek authorisation from the courts to use it and comply with the Human Rights Act in using it should provide sufficient safeguards for families.
The committee also urged the strengthening of provisions around proposed safeguarding adults reviews, which are designed to learn lessons from serious adult abuse cases. It said safeguarding adults boards, which would be made mandatory by the bill, should be able to compel people to submit relevant information to safeguarding adults reviews panel – a power not included in the draft bill but held by local safeguarding children boards in respect of children’s serious case reviews.
Overhauling the RAS
The draft bill would result in a significant extension of personal budgets, which the committee said would require an overhaul of councils’ resource allocation systems to make them much more transparent.
Not only would personal budgets become effectively mandatory for people whose needs are met by councils, but many self-funders would also receive a notional personal budget under the government’s plans to cap people’s lifetime social care costs. Under these proposals, self-funders would be given a notional budget, based on what their council would spend on meeting their eligible needs, to track their progress towards the cap.
However, research published by community care legal researcher and blogger Lucy Series in 2011 found none of a sample of councils would or could demonstrate how their RAS translated needs into personal budgets.
For those receiving notional budgets under the capped costs scheme, the committee called for resource allocation systems to be placed on a statutory footing so that the government could require councils to publicise their RAS and demonstrate how personal budgets were calculated through its use.
While this would not apply to personal budgets provided to people whose needs were being met by councils, the committee said these should also be made more transparent. It recommended that the government review the effectiveness of RAS for this group and ensure guidance published under the new legislation make clear that systems should be transparent and ensure eligible needs were met.
Better deal for providers
The committee also called for stronger measures in the bill to improve commissioning, alongside the draft bill’s duty on councils to promote a diverse market of high-quality services.
To protect providers from low council fees, it said councils should be under an explicit duty to take into account the actual costs of care when setting fees. In the wake of several judicial reviews lodged by providers against council care fees, the committee suggested the government consider setting up an independent adjudicator to resolve disputes between councils and providers.
The committee also said the government’s plans to end home care commissioning practices that compromise service user dignity – notably by contracting care by the minute – should be backed by legal force to ensure councils complied. Currently, the government aims to achieve this aim through the spread of good practice under a scheme led by the Think Local Act Personal coalition.
To improve the quality of care, the committee also said councils should be under an explicit duty to have regard to the Care Quality Commission’s essential standards and the National Institute for Health and Clinical Excellence’s new quality standards on social care, so that these inform commissioning practice.
The committee also made the following recommendations:
- The proposed duty on councils to provide preventive services should be strengthened to oblige authorities to have regard to the importance of identifying adults at risk of developing care and support needs or of having increased needs;
- The proposed duty in the bill on councils to provide information and advice should be extended to include the provision of advocacy, so people can receive this if necessary prior to or during assessment;
- The lowering of the threshold for a carer’s assessment and the proposed right to support for carers with eligible needs should apply to young carers and parent carers, not just adult carers of adults;
- The health secretary should have the power to mandate the joint commissioning of and pooling of budgets across health and social care services to boost integration;
- All regulated adult care services should have to comply with the Human Rights Act, not just those provided by or commissioned by public bodies;
- A new offence of corporate neglect should be introduced to cover heads of care providers where an employee has abused or neglected an adult with the consent of management or due to their neglect.
What difference will the committee’s report make?
The committee’s recommendations should carry weight with the government as it considers how the draft bill should be revised before it formally introduces the Care and Support Bill to Parliament later this year.
Ministers opted to publish a draft bill to enable parliamentarians and the public to fully scrutinise their proposals, a process the government said was “essential” to getting the final piece of legislation right. The committee also included parliamentarians with significant experience or knowledge of social care, including Burstow, former social services director and health minister Lord Norman Warner and International Longevity Centre-UK chief executive Baroness Sally Greengross.
However, the committee’s proposals are likely to add significant costs to the legislation at a time when public finances are tight, creating a significant barrier to the government taking them up.
- This piece originally said that the committee had recommended that resource allocation systems generally should be placed on a statutory footing. It has now been corrected to make clear that the committee said a statutory RAS should only apply to notional budgets provided to self-funders seeking to have their care costs capped.