Twelve months ago to the day, social care reforms dubbed by ministers “the most significant in more than 60 years” came into force in England.
The Care Act 2014 put safeguarding adults work into law for the first time; established a national eligibility threshold for access to care; introduced rights to advocacy for people who would otherwise struggle to be involved in assessments and other processes; and gave new rights to carers to assessment and support.
At the same time, it consolidated all the pre-existing law on adult social care into one place, rid it of old-fashioned and discriminatory language and modernised it in line with the current emphasis on personalisation, prevention and integration.
While some of the significance attributed to the act by ministers has been lessened by the fact that the cap on care costs and associated funding reforms have been delayed by four years, the legislation has still done much to shape the working lives of practitioners and managers in councils in particular, over the past year.
This impact has been heightened by the fact that it has been implemented at a time of significant pressure on council budgets. An Association of Directors of Adult Social Services survey last year found that councils were expecting to make £1.1bn savings in adult social care in year one of the Care Act – 8% of their net budgets – because of inflation, demographic pressures and reductions in resource.
So one year on, what impact has it had?
Local authority confidence
The official barometer for tracking progress on the Care Act has been the “stocktakes” undertaken by Adass, the Local Government Association and the Department of Health, surveying local authorities on how the reforms have fared. The latest of these took place in November and its results were published last month.
In many respects, councils presented a rosy picture of how well they were implementing the Care Act. Eighty seven per cent said they were on track to embed the necessary changes resulting from the act, while the remaining 13% said they were only slightly behind. Also, 97% were very or fairly confident that they would deliver the expected outcomes from the Care Act in 2015-16.
Despite the funding pressures, only 19% said there were potential concerns over whether there would be enough money in the budget to implement the Care Act in 2015-16.
Behind the headlines
But behind these headlines lurked a less positive picture. For one thing, councils’ confidence about 2015-16 was not matched by their feelings about the year ahead. Notably, seventy one per cent were not confident they would have sufficient resource to implement the Care Act in 2016-17, well above the 19% for 2016-17.
Secondly, councils’ belief in their own progress against the act’s requirements was not entirely matched by their confidence in the wider sector. For example, while 93% of authorities said they were confident in their own ability to recruit and train a workforce to implement the Care Act in 2015-16, just 72% expressed similar confidence in their local care providers’ ability to do so.
Thirdly councils’ self-reported confidence for 2015-16 also did not square with the facts on the ground in some areas, most clearly in relation to advocacy. While 51% of councils said they were very confident and 44% fairly confident about meeting their responsibilities to provide advocacy under the act in 2015-16, evidence has built up in recent months suggesting that such confidence is misplaced.
Just 2% of people assessed under the Care Act from April to September 2015 were given access to an advocate, found a Community Care survey of 80 English councils, whose results were published in January. The government’s impact assessment on the Care Act estimated that 7% would qualify.
The survey followed significant concerns raised by advocacy providers and legal experts that many people were going without their entitlement to an advocate under the act because of practitioners’ lack of knowledge of the legal triggers for an advocate and problems with the way councils were commissioning advocacy.
Almost two-thirds of contracts for advocacy services were for one year or less and average spending on advocacy by councils in 21 areas was less than half of what the LGA had estimated it should be for 2015-16, found a survey by the Advocacy Action Alliance carried out last summer.
The introduction of Care Act advocacy could not have come at a more challenging time for local authorities and advocacy providers. The tenfold increase in Deprivation of Liberty Safeguards cases (DoLS) initiated by the Supreme Court’s ‘Cheshire West’ judgement in March 2014 has triggered significantly increased demand for independent mental capacity advocates (IMCAs) for such cases. Also, another judgement last year, the AJ case, has meant councils are relying more on advocacy services to provide representatives for people subject to the DoLS where family members or friends are unable to perform this role.
According to the stocktake, councils are more confident about meeting their advocacy responsibilities in 2016-17 than 2015-16, with 69% saying they are very confident compared with 51% for this year. However, while practitioners’ grasp of the law may well be improving as the act beds in, the pressures on advocacy services are, if anything, set to get worse. A recent Court of Protection judgement may require advocates to provide representatives for people subject to deprivations of liberty not covered by the DoLS, in addition to their current roles.
Cuts and the Care Act
Like its predecessor legislation, the Care Act places councils under a set of duties in relation to meeting people’s eligible needs. But five years’ of cuts in government funding – which Adass has estimated has taken £4.6bn out of council budgets after adjusting for demographic and inflationary pressures – makes meeting these duties more difficult.
The recent budget-setting season has led to concerns that some councils may be putting themselves at risk of legal challenge in their efforts to save money. In January, Southampton council dropped a controversial plan to cap the amount it would spend on people receiving care at home to the cost of meeting their needs in residential care, in cases where the weekly cost of care at home topped £500.
The Care Act statutory guidance, which councils must follow unless they can demonstrate legally sound reasons for not doing so, states that councils “should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or comp”atible with public law principles”.
And besides the risk of legal challenge, councils are also facing the prospect of user-led groups using the Care Act to fight back against the cuts they are introducing. This has happened in Norfolk, where user group Equal Lives has reported the council to the Care Quality Commission for disregarding its duties under the act through cuts being made to people’s care packages following review – a charge rejected by the authority. Equal Lives wants ministers to allow the CQC to inspect the council – as is allowed for under section 91 of the act.
In the context of these pressures, the news from the latest stocktake that safeguarding caseloads have doubled under the Care Act suggests there are even bigger challenges facing local authorities. The stocktake estimated that there were 100,000 safeguarding enquiries in the first six months of the act, roughly the same number of cases that there were in the 12 months from April 2014 to March 2015.
Social care sources said the rise was likely to reflect a combination of factors. These included increased reporting, greater awareness of the need for safeguarding interventions in cases involving issues like modern slavery, and that the Care Act’s statutory threshold may be broader than the local definitions previously used by councils. At the same time there were concerns that it may reflect problems with the quality of local care services leading to suspected neglect.
At the same time, there are questions about the meaning of these figures. While welcoming the potentially positive implications of the news for victims of abuse, Action on Elder Abuse chief executive Gary FitzGerald queries how safeguarding teams and social workers were doubling their workloads at a time of resource shortages. He suggested it could reflect significant numbers of cases being delegated to other organisations, such as care providers, to investigate.
Social work shortages
On the day the Care Act came into force, Community Care released figures showing that councils were increasing their numbers of social work posts by 6% in order to implement the act. This partly reflected the fact that councils were due to have to significantly increase the number of assessments they carried out this year as part of the planned introduction of the cap on care costs this year, a pressure that has been relieved by the government’s decision to delay implementation by four years.
However, there were other reasons too; Essex council, which was expanding its social work complement by 100 posts, said this as an invest to save policy. It saw social workers working intensively with people for short periods of time to get them back on their feet following a crisis, removing the need for long-term care and working in the preventive way the act envisages.
If safeguarding cases really are rising as fast as the stocktake figures suggests, this presents another reason why councils need more social workers to deal with the Care Act.
In the subsequent year, it has become apparent that the supply of social workers may not be meeting demand. Latest official figures showed social worker vacancies in council adults’ services rose from 8% to 12% between 2014 and 2015, despite the number of filled social work posts rising during that time.
Again, this may reflect the combined impact of the Care Act and the post-Cheshire West DoLS landscape, the latter driving significant increased demand for best interests assessors to co-ordinate DoLS cases, a role mostly filled by social workers.
The year ahead
One consolation for councils as they enter year two of the Care Act is that they do not have to implement its funding reforms this year. This would have necessitated assessing hundreds of thousands of self-funders and then setting up care accounts for those with unmet eligible needs to track their progress towards the care cap.
But this may be small consolation as the difficult government spending settlement for councils, the cost pressures arising from the introduction of the national living wage, which applies from today, and ongoing DoLS demands take their toll.
It looks set to be a difficult second year for the Care Act.