Your latest Care Bill reading list

The Care Act 2014 will be on the statute books by April, leaving social workers and other practitioners one year to get up to speed with its provisions before implementation in April 2015.

In August last year, I did a reading list on the Care Bill (as it is currently known) to help you access the latest commentary and news on its provisions. Much of that – on the bill’ impact on social work and the key issues within it – remain relevant, but, five months on, it’s time for an update.

Parliamentary twists and turns…and battles to come

In October of last year, the Care Bill was passed by the House of Lords, after peers made significant amendments to the legislation, which we summarised in this piece.

Top of the list of changes was the introduction of a duty on councils to provide independent advocacy to people during assessment and support planning if they would otherwise struggle to understand the process and have no one else to represent them. While most changes occurred through amendments made by the government, one change opposed by ministers was to make all providers of regulated adult social care services directly liable under the Human Rights Act 1998. Currently, only local authorities, other public bodies and care homes, in respect of residents placed by the state, are so bound.

It will be interesting to see whether the government overturns this amendment in the House of Commons. While the debate in the Lords was largely consensual, Labour has taken a more oppositional approach now the legislation is in the Commons.

As we reported in December, Labour refused to support the bill’s second reading in the Commons on the grounds that the legislation did not do enough to address current levels of funding shortages and concerns over the quality of care. It will be interesting to see how the opposition plays out this approach in the remaining stages of the bill’s passage.

With the Care Bill currently being scrutinised by a committee of MPs, legal trainer Belinda Schwehr, of Care and Health Law, has published a commentary on the committee’s first debate last week. This covers issues including whether individuals should have the right to challenge councils’ decisions on their care and support at some independent body, something on which the government is promising action.

Know your law

Much of the detail of the legislation’s impact on practice will be contained in the regulations and statutory guidance that will follow the passage of the bill through Parliament. But understanding the primary legislation will be important for professionals and managers within English local authorities, who will be at the front line of implementation.

Schwehr has published a clause-by-clause commentary on the key sections of the bill for social care practitioners, including assessment of need, eligibility, care and support plans and making safeguarding enquiries.

This usefully combines the relevant clauses of the bill, the government’s own explanatory notes on these and Schwehr’s commentary on them, which sets out how far the provisions reflect or build on existing law, and any difficulties in interpreting the provisions.

Who’s right on eligibility?

One of the most contentious issues to emerge in recent months is over the proposed national eligibility threshold. Consultation on draft criteria closed in November 2013 but with the sector none the wiser on whether the proposed threshold was unfairly restrictive or unaffordably generous.

The threshold is supposed to be equivalent to the current ‘substantial’ band used by about 85% of English councils. This would wrongly exclude hundreds of thousands of people with moderate needs – defined as needing help with several personal care tasks – from support, charity coalition the Care and Support Alliance has warned.

But, as we reported last November, local government leaders see things differently, warning that the proposed threshold is much more generous than ‘substantial’, potentially leading to a significant unfunded burden for councils. The proposed criteria were also vague and outdated, warned the Association of Directors of Social Services and Local Government Association in their response to the consultation.

The matter came to a head today in the House of Commons bill committee’s next session, where a CSA-backed amendment to enshrine the current ‘moderate’ threshold through the Care Bill was discussed. The government is certain to resist this but the debate should force the issues of the generosity – or not – of the proposed threshold into the open.

The limits of formal eligibility criteria as a guide to the accessibility of service were revealed by a Personal Social Services Research Unit paper commissioned by the alliance and published in December. This revealed that 450,000 fewer people were receiving council-funded services in 2012-13 than would have been the case had access to care remained at 2005-6 levels. However, the bulk of this reduction was not due to increases in formal thresholds but in changes in the way criteria were implemented and interpreted by professionals, as we reported in our story on the report.

Let us hope this issue informs the debate.

Councils’ implementation challenge

In the past few months, the scale of the implementation challenge facing councils has become clear. In October, we covered how adults’ services managers had given Department of Health officials a grilling over how they would resolve a series of “wicked issues” about the bill’s funding reforms, particularly the £72,000 ‘cap’ on older people’s liability for ‘reasonable care costs’ that will kick in from April 2016.

Not least among these issues is the fact that councils will have to carry out hundreds of thousands of more assessments in 2016-17 than in previous years because of an influx of self-funders seeking to qualify for the cap. Who will carry out these assessments – council social workers, third sector organisation or families themselves – and how – online or in person – are substantial issues yet to be answered.

There are many more such issues to resolve. Help is at hand though from a new programme of support for authorities from Adass, the LGA and the DH. As we reported last week, the programme has set up a website with resources for managers of councils at various stages of the implementation journey.

No doubt this reading list will need updating in due course but hopefully this should provide some food for thought regarding the biggest reform to adult care law in several decades.