By Tim Spencer-Lane (article updated 2 June 2022)
The Health and Care Act received Royal Assent on 28 April 2022. . It introduces another major overhaul of NHS structures, and has implications for the social care sector. The act gives effect to the recommendations set out in the NHS Long Term Plan 2019 and the white paper Integration and Innovation, which was published in February 2021. Most of the reforms apply to England only.
The following summary highlights the key issues for social workers and other social care staff.
Return of CQC assessment of council adults’ services
The Care Act 2014 removed the duty – under section 46 of the Health and Social Care Act 2008 – on the Care Quality Commission (CQC) to conduct periodic reviews of adult social services provided or commissioned by local authorities, assess the local authorities’ performance following each review and publish a report of its assessment. In addition, the Health and Social Care Act 2012 had limited the power of the CQC, under section 48 of the 2008 act, to carry out ‘special reviews’ of local authority adult social services to cases where this had the approval of the secretary of state.
However, the Health and Care Act amends the 2008 act to introduce a new legal duty for the CQC to review and make an assessment of the performance of English local authorities in discharging their ‘regulated care functions’ under Part 1 of the Care Act 2014. The exact functions in scope for review under the new duty will be set out in secondary legislation. The CQC will be required publish the findings of its reviews.
The reviews undertaken by the CQC will be by reference to objectives and priorities set for the CQC by the government. Review by the CQC will also be by reference to a set of quality indicators determined by the CQC and approved by the government. The CQC will be required to devise a methodology for assessing and evaluating local authorities, including the frequency by which it will undertake its performance reviews, which it must then set out in a statement to be approved by the secretary of state. The CQC may also consider that it wishes to review local authorities that perform above a certain threshold less frequently.
Where the CQC considers that the local authority is failing to discharge any of its adult social services functions to an acceptable standard, the act requires the CQC to inform the government of this and recommend any ‘special measures’ that it considers should be undertaken by the government.
However, where the CQC considers that the failings are not substantial, it may instead choose to give notice to the local authority about what it considers the local authority is failing to do, the action that the CQC thinks should be taken to remedy failings and a timeframe within which the CQC thinks the action should be taken. The CQC must notify the government that it has taken this action. The CQC will also be given powers to conduct inspections for the purposes of its reviews.
This new oversight duty will sit alongside the CQC’s existing powers and duties to review adult social care. These include the duty to conduct reviews and performance assessments of adult social care providers in section 46 of the Health and Social Care Act 2008 and the power – and duty when requested by the government – to conduct a ‘special review’ or investigation into a range of matters, including the provision of adult social care, under section 48 of the 2008 act.
Secretary of state default powers in relation to adult social care
Where the secretary of state is satisfied that any local authority has filed, without reasonable excuse, to comply with any of their social services duties, the act gives the secretary of state the power to make an order containing directions to the local authority for the purpose of ensuring the duty is complied with. These directions may require, for instance, the local authority to co-operate with advice given by the secretary of state or their nominee or provide information required by the secretary of state or their nominee. The directions can also provide for specified adult social care functions to be carried out by the secretary of state or their nominee. The direction making power is contained in an amended section 7D of the Local Authority and Social Services Act 1970.
Removal of delayed discharge regime
The act revokes the procedural requirements in schedule 3 to the Care Act 2014 known as the ‘delayed discharge regime’. In broad terms, this regime sets time limits for the completion of social care assessments and the provision of care and support services for NHS hospital patients, and fines to be paid by the local authority to the relevant NHS body for every day that the person’s discharge has been delayed where this has been caused by the local authority. It also sets requirements for communication between the NHS and local authority in relation to patients who were ready to be discharged and for the involvement of patients and carers during the discharge process.
The government has justified the removal of the delayed discharge regime in the following terms:
“Since the Care Act 2014 came into force, the requirement to carry out assessments before discharge has resulted in some individuals experiencing delayed hospital discharge as they wait for their assessment to be carried out, meaning the appropriate transfer of care cannot take place when a patient is ready to leave a hospital. Delayed discharges can result in poorer patient outcomes, such as loss of independence or functional decline such as muscle deterioration in patients who are elderly or have dementia; additional expense to the NHS as patients occupy beds without a clinical need; pressure on hospital beds so it is harder to give in-patients the healthcare they may need; and more complex or higher levels of care on discharge due to the loss of function described above.”
The policy intention is that, instead of a legislative framework, guidance on hospital discharge will set out the requirements and expectations of health and social care partners during the discharge process.
Integrated care boards and integrated care partnerships
The act establishes statutory integrated care boards (ICBs). These will replace, and take over most of the functions of, clinical commissioning groups (CCGs). Each ICB will consist of a chair, chief executive officer, and representatives from NHS trusts and NHS foundation trusts, general practice, and local authorities.
Beyond that, local areas will be able to determine any further representation in their area. In the future, the functions of an ICB will include the role of a responsible body (the body charged with authorising arrangements giving rise to a deprivation of liberty) under the Liberty Protection Safeguards.
Each ICB and its partner local authorities will be required to establish an integrated care partnership (ICP), bringing together health, social care, public health (and potentially representatives from the wider sector, such as social care providers or housing providers, where appropriate). The ICP will be tasked with developing a strategy to address the health, social care and public health needs of its system. The ICB and local authorities will have to have regard to that plan when making decisions.
Duty to co-operate
The act amends the NHS Act 2006 to introduce a new power that allows the secretary of state to issue guidance on co-operation between NHS bodies, and between NHS bodies and local authorities. This guidance is intended to give organisations greater clarity about what the duties to cooperate mean in practice.
Adult social care provider payments
This act makes changes to the Health and Social Care Act 2008 to allow the government to provide financial assistance to all social care providers. Currently, the power is only available in respect of those who operate on a ‘not for profit’ basis. The act expands the power to include providers operating on a profit-making basis as an ordinary business.
In the February 2021 white paper that preceded the act, the government justified this measure with reference to the Covid-19 pandemic which, it said, “has demonstrated the need for speed and flexibility in providing support to the social care sector”.
Cap on care costs
The act amends the Care Act to provide that only the overall costs to the local authority of meeting the person’s eligible needs should count towards the cap. To find out more about the cap and the changes see this summary.
New safeguarding body
The act establishes a new body, the Health Service Safety Investigation Body (HSSIB), to conduct investigations into incidents that occur during the provision of health care services which have, or may have, implications for the safety of patients. The purpose of the investigation is to identify risks to the safety of patients and address those risks by facilitating the improvement of systems and practices in the provision of health care services in England. The HSSIB has powers to enter and inspect certain premises, inspect and take copies of documents and to obtain information, documents, equipment or other items.
The act creates a ‘safe space’ within which participants can provide information to the HSSIB for the purposes of an investigation without fear that it will be disclosed to others. Information held in safe space will only be disclosed by the HSSIB in certain limited circumstances. According to the government: “The HSSIB will look to encourage the spread of a culture of learning within the NHS through promoting better standards for local investigations and improving their quality and effectiveness. To this end, the HSSIB may provide advice, guidance and training to organisations in connection with an investigation upon request.”
The act requires the secretary of state to issue a report describing its policy for information sharing by public authorities for children’s health and social care or safeguarding or promotion of the welfare of children.
New criminal offence – hymenoplasty
The act creates a range of new criminal offences relating to hymenoplasty (the reconstruction of the hymen with or without consent). These include carrying out hymenoplasty and aiding and abetting someone include carrying out hymenoplasty. In England and Wales the offence can be punishable by up to 5 years in prison and/or a fine.
Mandatory learning disability and autism training
The act amends the Health and Social Care Act 2008 to require service providers to ensure that all staff receives training on learning disability and autism. The secretary of state is required to issue a code of practice about the training, which must make provisions about the content of the training and the involvement of people with learning disability and autism and their carers.
The act amends section 60 of the Health Act 1999 to give government new powers to:
- Abolish an individual health and care professional regulatory body where the professions concerned have been deregulated or are being regulated by another body;
- Remove a profession from regulation where regulation is no longer required for the protection of the public; and
- Regulate groups of workers concerned with health and care, whether or not they are generally regarded as a profession ie senior managers and leaders.
These new powers will apply in respect of healthcare professionals and social care workers in England, but not registered social workers.
Information sharing and standards
There are various data provisions in the act which are intended to enable increased sharing and more effective use of data across the health and adult social care system. These include:
- The introduction of mandatory information standards which health and social care commissioners and providers will be required to comply with. This will aim to ensure a standardised approach to the collection, storage and processing of data.
- A power for relevant health or social care public bodies in England to require the sharing of information (other than personal information) for purposes related to their functions in connection with the provision of health services or adult social care in England.
- New powers for government and NHS Digital to require providers of adult social case services to provide information relating to themselves, their activities and service users.
Tim Spencer-Lane is a lawyer specialising in mental capacity, mental health and social care law and legal editor of Community Care Inform.