Full spirit of Care Act not being met, says DHSC ahead of return of local authority performance assessment

Government would have powers to intervene where councils are failing to discharge Care Act duties

The front cover of the Care Act 2014
Photo: Gary Brigden

The “full spirit of the Care Act” is not being met, the government has said as it plans to reintroduce performance assessments of council adult services.

The Department of Health and Social Care made the comment in its social care reform white paper, published this week, where it set out further details about how the “assurance framework” for councils would work.

The current Health and Care Bill would place a duty on the Care Quality Commission (CQC) to carry out and report on reviews of councils’ performance of their Care Act 2014 duties. A similar function was carried out by the CQC and its predecessors until 2010.

It would also give the Department of Health and Social Care the power to intervene and, if deemed necessary, direct improvements at authorities found to be failing, in a similar regime to that currently operating in children’s services.

Delivering on ‘letter and spirit of Care Act’

The white paper sets a 10-year vision for adult social care based on three objectives:

  1. People have choice, control and support to live independent lives.
  2. People can access outstanding quality and tailored care and support.
  3. People find adult social care fair and accessible.

The DHSC said the Care Act 2014, particularly with its focus on promoting wellbeing, provided a “strong foundation for our vision”.

But then, in a reference to the planned return of performance assessments, it said: “We recognise that the ambition of the Care Act has not consistently been achieved in the way we would have liked. New measures currently going through Parliament will strengthen how care and support is delivered and give us the tools to ensure we deliver on both the letter and the spirit of the Care Act.”

Lack of carer support

The white paper made one of two references to the Care Act’s full spirit not being met in a section on support for carers, though without explicitly setting out where councils were falling short.

A study published last year found the Care Act 2014’s strengthening of carers’ rights did not improve their access to support because of council budget pressures.

The legislation enhanced carers’ rights to an assessment and gave them, for the first time, an entitlement to support if they met new national eligibility criteria. However, the research found that volume of carer assessments, the numbers receiving support, council expenditure on carers and carer satisfaction with support all decreased after its implementation in 2015.

Citing a 2021 survey by Carers UK, the white paper said the availability and accessibility of services was “not always as easy or straightforward as it should be”.

Need to improve market shaping

In other areas, the white paper was more specific about Care Act failings.

Under section 5 of the act, councils must promote an efficient and effective care and support market that has a variety of providers, and high-quality services, with people having sufficient information to choose between them.

However, the white paper said there was “variability in the culture and strategic leadership across different localities, which impacts the quality and choice of services available for people”.

It said low fee rates paid by councils to providers, and uncertainty about future funding “can result in poor workforce conditions, inadequate quality care, market fragility and pose a threat to continuity of care”.

In relation to quality, it said that CQC provider ratings showed that some councils had 100% of services in their areas rated good or outstanding, but in other areas it was 65%.

“The government is committed to levelling up the country and addressing this geographical inequality so that everyone, everywhere receives outstanding quality and tailored care,” it added.

The paper also said that the sector was not doing enough to encourage the development of “innovative, community-based organisations that have the potential to give people greater choice, independence and wellbeing”.

Information and advice gaps

Under section 4 of the Care Act, councils must maintain an information and advice service that provides information on how the local care system works, available care and provision, how to access care and independent financial advice, and how to raise safeguarding concerns.

However, the white paper said: “People often do not know where to start when looking for information and advice, while others find that the volume of information available is overwhelming and poorly tailored to their own circumstances.”

It added: “Stakeholders have noted that some people do not know how to, or do not want to, go to their local authority, and may seek help or advice from family and friends, community groups, the voluntary sector, or doctors and nurses. This means that people end up seeking advice from multiple fragmented places, potentially receiving confusing or conflicting advice.”

It also said there was a need to “make prevention and early intervention a much stronger element of our model of support and of care pathways”. This is despite councils being under several prevention-related duties under the Care Act, including that under section 2,  requiring authorities to contribute to preventing or delaying the development of needs, and also reduce existing needs.

Increasing sector-led improvement

The DHSC said that it would increase investment – by £70m over the next three years – in sector-led improvement to help achieve its white paper ambitions.

This would build on the existing DHSC-funded care and health improvement programme, delivered by the Association of Directors of Adult Social Services and Local Government Association.

The white paper said that councils and providers would have access to a “universal improvement offer”, including guidance on “the most up-to-date, evidence-based practice as it emerges”. Councils and their partners could also request bespoke support to tackle particular issues.

“By providing this tailored support early, local authorities and others will drive their own improvement, and reduce the risk of the need for more intensive support later,” it said.

Return of performance assessments

When performance assessments of adults’ services were scrapped in 2010, the then care minister, Paul Burstow, said sector-led improvement would take its place, providing a “more proportionate and constructive system”.

But, from April 2023 at the earliest, the two will go hand in hand with the reintroduction of CQC reviews of council adult services.

Under the Health and Care Bill, the CQC would assess councils against indicators it had developed, using methods it had devised and with a frequency it had set, all with the approval of the DHSC.

Secondary legislation will set out which council Care Act functions would be assessed, but the DHSC said its initial view was that it may cover some or all of:

  • maintaining oversight of the social care workforce;
  • managing transitions between services;
  • preventing people from requiring social care ;
  • carrying out their safeguarding duties
  • ensuring good outcomes for people through effective leadership;
  • managing their commissioning and contracting responsibilities;
  • shaping the care market to meet people’s needs;
  • meeting the needs of unpaid carers;
  • assessing need and supporting people, including self-funders, to access care.

Government intervention

Where councils were found – through CQC assessments, data or intelligence from the DHSC’s regional officials – to be struggling, the white paper said the first step would be “directed support”.

Under this, the council would be required to produce and implement an improvement plan, success against which would see the directed support removed or tapered away.

In exceptional circumstances, the DHSC may intervene to either take over functions of the authority – which would likely be carried out by a commissioner – or direct the council to comply with the government or the commissioner’s instructions.

Councils would have the right to make representations before any statutory intervention was carried out.

“We expect that the Secretary of State for Health and Social Care would only use these powers in exceptional circumstances, where the CQC has identified a serious and persistent risk to people’s safety, and where other forms of support are insufficient to drive improvement,” the white paper said.

No plan to introduce appeals system

The DHSC onfirmed it had no current plan to implement the system, provided for in the Care Act, for people to appeal against decisions taken by councils in relation to care and support.

This was originally due to be implemented in 2016 but was subsequently dropped.

The DHSC said a strong feedback culture, including a right to redress, was important, but that this would be pursued through the current adult social services complaints system. Under this, where people are dissatisfied with the way complaints have been handled by councils or providers, they can refer their case to the Local Government and Social Care Ombudsman.

“While we do not intend to introduce [the appeals] system immediately, we are keeping it under ongoing review as the new reforms are implemented and will continue to gather evidence to inform future thinking,” it added.

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6 Responses to Full spirit of Care Act not being met, says DHSC ahead of return of local authority performance assessment

  1. Alec Fraher December 3, 2021 at 2:02 pm #

    You couldn’t make this up. All of te legislation in Health and Social Services has since the 1970″s had a path dependency driven by the EU. The last I heard we’d left.

    Without the bureaucratic protection of the European Commission on the use of Public Procure Procedures and the short sightedness of personalisation most councils will fail to satisfy their own Standing Orders let alone the so called spirit of the Care Act.

    All contracts let by way of a restricted procure procedure do not and will not work. Procure procedures for Category B services are not designed for this. Category A procedure is off limits. As has been the case for too long defining what a relevant market actually is hasn’t happened or rather the OFT have to but no one gives a…

    Competition and competitive process in Social Work and Social Care will bury the services. The experiment is over, surely?

  2. Belinda Schwehr December 3, 2021 at 3:56 pm #

    I can’t believe that the DHSC has the effrontery to suggest that the CQC – the care regulator, its own handmaiden – and a body with no public law training, or need for knowledge about the Care Act, or the huge body of law going back 20 years, or the ombudsman’s approach to “fault” – should be the right body to performance-manage local authorities’ adults’ social services decision-making. And nor that it disclaims responsibility for what has now become open and hardly newsworthy breach of the Care Act after years of stripping out the funding provided for councils to ‘honour the spirit of the Care Act’!

    The complaints system has been utterly discredited by the ombudsman’s statistics in the adult social care world as to how many complaints ultimately require to be upheld.

    Of course the DHSC doesn’t want an appeal system or a tribunal. But when Middle England, needing to start progressing towards the cap on care costs, is told ‘No you’re not eligible’ or ‘This titchy notional budget will have to do – that’s your lot’ – Middle England will be off to High Street solicitors who will have to learn about community care law for the first time ever. That is when the sticky stuff will really fly.

    • Anonymous December 30, 2021 at 9:23 am #

      Each care organisation hates it if any if their own service users even think.of turning to other companies for activities. I found this through experience. It shouldn’t be a huge deal, if, for example, an autistic person seeks out an activity centre, if the person feels like the service they use isn’t enough for their own wellbeing. Also, so what if someone living in supported living accommodation chooses to make friends at other places than their accommodation? I’ve never understood why care charities take such insult at these basic things. What’s the problem exactly? And we don’t always need a care worker or a support worker constantly following us wherever we go
      That’s a privacy invasion and a breach on our human rights. I say this as an autistic person who lives in a supported-living flat. And why take offence if we want to make friends at other places anyway? It’s so flipping annoying. I think health and social care need to separate from each other again, now. It’s all becoming very confusing. It’s not for the greater good. And people with learning disabilities such as myself, shouldn’t be feeling harassed. We don’t need keeping an eye on. Some do, but are allowed to get away with murder, for some strange reason.

  3. Carol Doreen Slasberg December 3, 2021 at 4:56 pm #

    This is no more than a re-write of the glossy brochure, which is very different from the reality. Until Government and the CQC start testing councils’ delivery of the requirement to assess all needs for wellbeing without regard to resource availability, and use the real time information about the gap between real needs and resources to drive the political process that sets budgets, the Care Act’s vision will never be realised. The eligibility process has to be abolished for that to happen.

  4. Carlton December 5, 2021 at 1:17 pm #

    Here’s your laptop. Go to your kitchen and complete these 6 assessments. No need to see your people. Talk them through the assessment over the phone. Remember you wil present any care packages to a panel for approval so calculate your eligibility costs very carefully. Don’t forget to record that your “outcomes” were co-produced and your person agreed them. Blame the Tories if there is a complaint. Never ever publicly admit that there is rationing and a cap on how much can be spent on “packages”. Smile and repeat, “eligibility is needs led”. Hope no one notices a bit more of your morality and decency shrivelling up. The bloggers say we are here for the “peeps” but I am not sure even they are convinced by the gymnastics anymore. Still I paid my £90 so the public can feel safe and are reassured that I am practicing ethically.

  5. Chris Sterry December 6, 2021 at 1:49 pm #

    This government, what more needs to be said!!

    They issue these edicts but they have no clue, or do not wish to have a clue.

    The Care Act 2014 was a start, but only a start and as we see Local Authorities are just ignoring it as they know, they will hardly ever be brought to account.

    Yes, you can complain and maybe the complaint will be upheld, but will there be any alterations to improve, I fear not. There are Judicial Reviews but try to get a Solicitor to take one on is virtually impossible, especially on a no win, no fee basis, as to get Legal Aid is an impossibility, again down to the Government making it harder.

    Local Authorities also have problems, especially with finance again down to this Government and previous Tory Governments with their austerity cuts, so much of the problems emanate from the Government, yes, the same Government who are making all the noises about non-compliance with the Care Act. Surely they should be complaining to themselves, especially to the Department of Health and Social Care, which is only connected to social care in the title for they do little else for Social Care.

    They do provide some funding for the NHS, but perhaps not enough, but funding for Social Care is virtually non-existent, it is so little to have no real value.

    This Government as no ‘Duty of Care’ for Social Care, which is also borne out by this disgrace of a welfare system, where benefits such as PIP. ESA and UC are so difficult to obtain, especially from the assessment process which is so much against claimants.

    This Government needs to change for if it does not there will be no credible Social Care to speak of.