Ending eligibility: ten tests for establishing a human rights-based approach to adult social care

By Colin Slasberg and Peter Beresford

We have previously set out why we believe the Independent Review of Adult Social Care in Scotland has the potential to be truly ground breaking. Its first and primary recommendation is that social care should be established on a human rights basis. Whilst it also makes recommendations about structural change, the report recognises that structural change without cultural change is no change at all.

While the rhetoric of human rights has littered social care policy for at least two decades, this review is not the first to recognise it simply hasn’t happened. Whilst there are examples of excellence, they cannot be said to be the norm.

However, what is different in the independent review’s report is that it goes further and begins to pinpoint the practical changes required. These focus on the process of assessment, support planning and resource allocation with three recommendations of particular importance:

Social workers focused on rights

• People should understand better what their rights are to social care and supports, and “duty bearers”, primarily social workers, should be focused on realising those rights rather than being hampered in the first instance by considerations of eligibility and cost.
• A co-production and supportive process involving good conversations with people needing support should replace assessment processes that make decisions over people’s heads must enable a full exploration of all self-directed support options that does not start from the basis of available funding. Giving people as much choice and control over their support and care is critical.
• Where not all needs can be met that have been identified as part of a co-production process of developing a support plan, these must be recorded as unmet needs and fed into the strategic commissioning process.

The Scottish Government has accepted the findings of the report, saying it provides “a clear roadmap for the future of care provision in Scotland”, and there can be little doubt there is a head of steam building up. Nonetheless there remains a deep scepticism. It is born of many years of governments, national and local, north and south of the border, taking the talk of rights whilst walking a very different walk.

The following sets out ten tests by which to judge the authenticity of the Scottish Government’s intentions. They suggest the practical steps required if it is to deliver the independent review’s recommendations. They also provide a blueprint for what it would take to implement this system elsewhere in the UK, given the UK government’s plans to unveil plans to reform adult social care in England later this year.

Ten tests for a rights-based approach

1. Establish the principle that in social care, as in the NHS, need will precede resources. A founding principle of the NHS was that clinicians must be free to identify clinical need and the resource consequences must follow. People generally trust that NHS clinicians will indeed identify to the best of their knowledge what modern medicine can do to give them the best possible health. This is not the case in social care where decisions about ‘eligibility’ are made ‘above people’s heads’. If the Scottish Government declares that social care will join health care in putting need before resource, social workers will be free, in line with their professional ethics, to identify what will give people the best quality of life their circumstances allow. This, in itself, is arguably the single most transformative test that will deliver for social care the ‘1948 moment’ – a reference to the founding year of the NHS – first minister Nicola Sturgeon says she is seeking. The following eight are all a consequence of this one change.
2. Declare the end of the eligibility system. The eligibility system, whereby ‘need’ is defined against so-called ‘national’ criteria, ostensibly exists to deliver equity. The scale of the inequity in levels of provision between councils identified by the independent review is testament to its failure. What ‘critical and substantial’ means varies from council to council according to their resources. The endurability of this system is owed, therefore, not to the pursuit of equity, but control of spending. Success in that task comes at the expense of the resource-led and controlling practices the independent review so roundly condemns.
3. Commit to funding all needs for people to have a dignified quality of life to the best of its ability. The independent review does not recommend the Scottish Government commits to funding all needs. No public service is guaranteed the funds to meet all its responsibilities, not even the NHS. However, the necessary process of prioritisation should not and need not lead to loss of vision and moral purpose. The Scottish Government should lead the way in ensuring the needs of older and disabled people compete on a level playing field with all other public services, currently denied by the eligibility system.
4. Require that systems are established that aggregate and report unmet need. Unmet need is the inevitable consequence of adopting the principle of need preceding resources. The NHS equivalent is waiting times. At the operational level, waiting times provide the safety valve when need exceeds resources. At the strategic level, they tell political leaders the level of funding they need to make available, which they are denied under the eligibility system. Unmet need must be seen as the social care equivalent of waiting times in the NHS. Information about unmet need must be in the public domain, easily accessible and able to hold political leaders to account. Councils have sometimes in the past experimented with boxes on assessment forms for social workers to record unmet need. The information languishes in filing systems, goes nowhere and quickly falls into disuse. The Scottish Government must avoid repeating such a mistake.
5. Acknowledge that regional equity depends on the level of resources available to local authorities and is a national responsibility. Whatever else a National Care Service – which the review recommended – may comprise, responsibility to ensure not only that resource levels minimise unmet need, but are fairly allocated, is clearly key.
6. Require councils to establish systems that control spending without compromising assessments. No matter how large or small the gap between needs and resources, spending will have to be contained within budgets. Case by case decisions to determine eligibility as the means to do so must be replaced with case by case decisions that determine affordability. This will require a complete re-engineering of the decision making infrastructure, including financial and IT supports. Whilst equitable allocation of resources at budget holder level will continue to be important, it will be joined by value for money as no less important a challenge. A budget holder’s task will be to achieve the greatest quality of life for the greatest number of people within their budgets. This will require significant re-skilling of budget holders
7. Require councils to democratise their assessment process. Assessing for eligibility spawns a bureaucratic, obscure and professional-centric process. Such processes must be swept away. New processes will be required that are accessible to all service users to support them to think through and declare their own assessment of their needs and support requirements. The council only has to be concerned that such self-assessments make the best use of resources so the person can have the best quality of life their circumstances allow. The social work role will be to support people to achieve such a self-assessment, working to whatever depth is required. An open, democratised assessment process is key to realising the independent review’s recommendation that assessments must be ‘co-produced’ and for people to have authentic choice and control over their support.
8. Develop a workforce development strategy. The social work role will be transformed from the current ‘piggy in the middle’ role to being able to work in authentic partnership with service users. It should come naturally to those whose value base is person-centred and also to social workers who are professionally qualified. Research shows that it takes about six months following qualification working in a local authority for social workers to lose their idealism. Scotland could buck that trend. Retraining will also be needed at the most senior levels too. Directors of social services will no longer have the task of managing a system that makes ‘need’ fit within whatever resource their political masters give them. Their task will be firstly to get the best from the given resource, and then to inform their political leaders of the shortfall. Their relationships will change. They can truly become the champions of the community.
9. Develop a transition strategy for people currently receiving support. Resource-led assessments for ‘eligibility’ and person-centred assessments are as chalk and cheese. Whilst the former is a negative exchange to see how bad life can be, the latter is a positive one to see how good life can be. However, there will be overlap. Needs previously deemed eligible will continue to be needs within a human rights-based approach. There is a clear moral argument that existing service users should not be penalised by the change. All needs previously considered ‘eligible’ that also meet needs within the reformed system should be subject to a guarantee of being met as long as the need remains.
10. Define what a ‘National Care Service’ is. The vision for the service will be a national responsibility. The independent revview points squarely to that being independent living, as defined by the United Nations, for all older and disabled people whether living in their own home or communally. It will then be a local responsibility to secure the greatest degree of independent living for the greatest number of people within the available resource. It will also be a local responsibility to inform national government of any gap between needs and resources. If funding continues to comprise a mix of local and general taxation, it will be a national responsibility to ensure general taxation is allocated to ensure equity in levels of need met between localities. However, as that would incentivise local governments to minimise spending on social care, it may be better to end the use of local taxation for social care altogether with funding becoming 100% from general taxation. This would make the level of funding, and therefore the extent to which need is met, along with equitable distribution, a national responsibility.

Implications for England

Scotland could well be on the brink of becoming a world-leading country in the delivery of social care. The independent review has created the foundations. It will depend on whether the Scottish Government passes the tests set above. They amount to a recognition that the whole system must be repurposed, whatever structure is applied. It must cease to be one designed to protect public resources at all costs. It must become one designed to make the lives of older and disabled people as good and as dignified as their circumstances allow.

Whether or not Scotland does move forward, the lessons England could pick up are clear. England, whilst using different words, operates the same eligibility system as Scotland. England, too, has regional inequity of enormous proportions. The Local Government Association itself, in confidential reports we have seen, calculates a 60% difference in spend per service user between the highest and lowest spending councils. Most service user groups will recognise the independent review report’s description of the assessment and support planning process. It is bureaucratic, depersonalising and alienating.

Debates in England are dominated by the funding issue. That takes the form either of a focus on the balance of public and private funding, sources of taxation or funding levels. There is, however, little debate about the vision for social care. Some MPs sometime raise the issue of a vision for social care, but those debates are not entering the mainstream. Yet without vision, how can the service know it is getting the best it can from the resources it has? And without vision, how can the public know what they are being asked to support, and how can political leaders know what they are being asked to fund?

We can only hope that key people in England also take a keen interest in what Scotland is doing, and reflect on how the issues Scotland is grappling with are issues England should grapple with too.

Colin Slasberg is a social care consultant and Peter Beresford is co-chair of user-led network Shaping Our Lives and a social work academic at Brunel and Essex universities and the University of East Anglia