‘Failing’ local authority adults’ services will not be turned over to independent trusts, the government has confirmed.
Ministers will have the power to direct authorities to take actions to improve services or to take over specific council functions, but will not remove services from authorities and transfer them to other bodies, as they have the power to do in children’s services.
It accompanies the reintroduction this year of Care Quality Commission (CQC) assessments of council adults’ services, which will involve each of the 153 authorities receiving a single-word rating – outstanding, good, requires improvement or outstanding – over the next two years.
The DHSC’s new powers – brought in through an amendment to the Care Act 2014 last year – are designed to respond to situations where an authority is failing to discharge its duties under the Care Act 2014 to an acceptable standard.
What the law says
Section 72A of the Care Act states that, where the secretary of state (ie the DHSC) is satisfied that a local authority is failing, or has failed, to discharge any of its adult social care functions under the act, they may give the local authority any directions they consider appropriate for addressing the failings. These directions may:
- Require the council to act in accordance with the advice of, collaborate with, or provide specified information to, the secretary of state, or a person nominated by them.
- Allow the secretary of state – or a nominee – to exercise specified functions of the authority for a defined period or for as long as the secretary of state considers appropriate, if they feel this is necessary to address the failings.
- Require the council to comply with any instructions from the secretary of state – or a nominee, in the exercise of its functions, if the secretary of state feels this is necessary to address the failings.
- Require the council to pay the secretary of state – or a nominee – for costs incurred as a result of the directions.
Section 72B states that the secretary of state may revoke or vary directions and, before issuing them, give the council the opportunity to make representations, except when they consider this impractical due for reasons of urgency (section 72B).
Under the DHSC policy, statutory interventon is the third and final stage of actions taken to support councils to improve where there is evidence – principally from CQC assessments, but also from published service data – of performance issues.
The department said it would “support authorities to lead their own improvement wherever possible” including through accessing sector-led support, whether through regional networks of authorities or the national DHSC-funded partners in care and health programme (PCH).
Delivered by the Association of Directors of Adult Social Services (ADASS) and Local Government Association (LGA), PCH provides advice and support on issues including improving social work practice, safeguarding, assessments, commissioning, providing information and advice and financial management.
Enhanced support and monitoring
Where there are “serious and persistent failures”, the DHSC said it would offer “enhanced support and monitoring”, a non-statutory form of intervention that may involve the department appointing, and funding, an improvement adviser to work with the authority. This is similar to the improvement notice process used by the Department for Education (DfE) with struggling children’s services.
“The improvement adviser will provide support, guidance and challenge to the authority to develop and deliver a robust improvement plan,” the DHSC framework said.
Improvement plans should generally be shared with the DHSC and CQC within three months and contain prioritised actions and outcomes, with named individuals and realistic timeframes against each, arrangements for monitoring and scrutinising progress and costings.
The DHSC will publish details of the support and monitoring these authorities are receiving and councils will also be expected to publish their improvement plans and report to the department on progress.
Authorities that demonstate sufficient improvement, as judged by improvement advisers, CQC and the DHSC, will be removed from support and monitoring.
However, where this does not happen and the DHSC has “limited confidence in the authority’s ability to improve”, it may escalate to statutory intervention.
Statutory intervention plans
The department said this was “a very significant step” and would “generally be used only in the most serious cases and where an authority does not have capacity to lead its own improvement”.
Before taking this step, the DHSC will send – and publish – a letter to the council, setting out its proposals and reasoning for statutory intervention and inviting them to make representations.
As in children’s services, interventions will consist of statutory directions to the council and often involve the appointment of commissioners, either to direct improvements or take over some or all of the authority’s adult social care functions.
Councils will be expected to provide the commissioner with all of the resources and support required to perform their role and the commissioner will, in turn, report to the DHSC on progress.
This, along with other sources of evidence, such as the CQC, will inform the DHSC’s decision on whether to continue, revise or revoke directions.
No removal of services to independent trusts
However, the DHSC stressed that councils would not have their services transferred to another organisation.
“Unlike interventions in children’s social services, there is no power to set up independent trusts,” it said.
In response to the proposed framework, ADASS joint chief executive Sheila Norris said: “The framework clearly sets out what will happen if improvements are needed, and it’s good that, in the most cases, councils will get the support they need to lead improvements in care themselves.”
However, she said the association remained concerned about the CQC issuing councils with single-word judgments, adding that this would be “unhelpful and [would] not do justice to the broad range of responsibilities and services that make up adult social care.”