As of 1 April 2015, the care system landscape in the United Kingdom changed with the implementation of the Care Act 2014 ('the Care Act'). It has been heralded by the Department of Health as the 'most significant reform of care and support in more than 60 years' and can be regarded as the most systematic and complete set of changes to adult social care legislation since the Beveridge Reforms of the 1940s. For example, it was then that the National Health Service Act 1946 created the NHS in England and Wales whilst the National Assistance Act 1948 formally abolished the entrenched Poor Law system. The Care Act however is not applicable in Wales. The equivalent Welsh legislation, the Social Services and Well-Being (Wales) Act 2014, is going to come into force in 2016.
Over the last 70 years however the legislative wing of the care system has been added to piece by piece and has become fragmentary, out of date and confusing. The Government therefore envisages that the Care Act will create a 'single, modern law that makes it clear what kind of care people should expect'. The Care Act however does not profoundly change substantive law. Under the current law a local authority must perform an assessment of those appearing to it to be in need of care and support; decide on the provision that is appropriate to meet those needs; and then make that provision. That basic structure is retained in the Care Act. In broad terms the main aims of the Care Act, with regard to adult social care law, are as follows:
- Consolidation and simplification of the existing legal framework;
- Reforming the cost of care to individuals;
- Implementing the policy aims of early intervention and personalisation (e.g. giving the individual the choice and control over how their support is delivered).
It is essential to appreciate that the Care Act places a series of new duties and responsibilities on local authorities about care and support for adults. It also creates a consistent route to establishing an entitlement to public care and support for all adults with needs for care and support. In addition, it produces the first ever entitlement to support for carers, on a similar basis.
It is important for every strand of the care system to understand these duties and responsibilities however it is equally as imperative to understand that the Care Act is expected to have significant cost implications for local authorities. As the increase in their responsibilities becomes apparent local authorities will no doubt be concerned about the effect that this new piece of legislation will have on their social care budget. It is food for thought also that due to the Care Act being implemented at a time of significant financial pressure on local government, a question mark arises over the ability of local authorities to have the capacity to deliver the good practice which is enshrined within it.
Section 1: The Well-Being Principle
Local authorities now have statutory recognised 'general responsibilities' which are set out in sections one to seven of the Care Act. Section 1 creates a general duty on local authorities exercising community care functions to promote the well-being of the individual.
The definition of well-being is wide and can encompass looking out for someone's personal dignity, physical health, mental health and emotional well-being, amongst other things. In addition to this, under this section a local authority must have regard to the views, wishes, feelings and beliefs of an individual. It must also have regard to avoiding the development of the need for care and support of that particular individual. The Guidance explains that, with regard to the principle of well-being, all aspects of a person's well-being should be given equal importance.
A question arises therefore as to how much in practice this general duty will dictate decision making by local authorities. It is also less clear as to whether it will create an obligation which is enforceable. It is clear however that the duty is in relation to 'that individual's needs' and therefore the duty is owed to each and every individual in relation to whom the local authority is discharging its care and support functions. In addition, the Guidance states promoting well-being involves actively seeking improvements in the aspect of well-being. As such, commentators have suggested that an easily recognisable upshot of this principle is that in situations where services might be provided in a different manner which could be perceived to improve a person's well-being, a local authority must be able to clarify clearly why such a service is not being provided. This element of the Care Act could be particularly useful to service users who express a view to their local authority that their well-being would be heightened if they were in receipt of a different care and support package. This scenario would ensure, via the duty to promote well-being, that some onus is placed on the local authority to take some steps to address the individual's wishes.
Safeguarding and the Care Act 2014
Sections 42 to 47 of the Care Act 2014 seek to place safeguarding on a statutory footing. They codify some of the obligations in the Department of Health's No Secrets Guidance and replace it through the creation of Chapter 13 of the Care Act Guidance. It generates procedural obligations, but however provides no new powers. Six key principles are laid down by the guidance and should underpin all safeguarding work undertaken. It is thought that these principles will inform the way in which all professionals and other staff who work with adults, and they are as follows:
- Empowerment - People being supported and encouraged to make their own decisions and informed consent
- Prevention - From the basis that it is better to take action before harm occurs
- Proportionality - The least intrusive response appropriate to the risk presented
- Protection - Support and representation for those in greatest need
- Partnership - Local solutions through services working with their communities. These communities have a part to play in preventing, detecting and reporting neglect and abuse
- Accountability - Safeguarding practice and arrangements should be accountable and transparent
Section 42: Duty to make an enquiry
A local authority is now under a duty, by way of section 42, to make enquiries (or cause to be made) if they reasonably suspect that an adult in its area has needs for care and support and is experiencing, or is at risk of experiencing abuse or neglect. The Guidance for local authorities in carrying out its section 42 enquiries is set out in paragraphs 14.63 – 14.6. The purpose of the enquiry therefore is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. If the local authority decides that another organisation should make the enquiry, for example a care provider, then the local authority should be clear about timescales, the need to know the outcomes of the enquiry and what action will follow if this is not done. In addition, a local authority should seek to establish facts; ascertain the adult’s views and wishes; assess the needs of the adult for protection, support and redress and how they might be met; protect them from the abuse and neglect, in accordance with the wishes of the adult; make decisions as to what follow-up action should be taken with regard to the person or organisation responsible for the abuse or neglect; and enable the adult to achieve resolution and recovery.
Section 43: Safeguarding Adults Boards
A statutory obligation has now been imposed on a local authority to set up a Safeguarding Adults Board ('SAB') for its area. The overarching objective of an SAB is to assure itself that local safeguarding arrangements and partners act to help and protect adults in its area who have needs for care and support and are experiencing, or is at risk of experiencing abuse or neglect. The Guidance reports that an SAB has three core duties. Firstly, it must publish a strategic plan for each financial year that sets how it will meet its main objective and what the members will do to achieve this. Secondly, it must publish an annual report which details, amongst other things, what the SAB has done during the year to achieve its main objective and implement its strategic plan. Finally, it must conduct a Safeguarding Adults Review in situations which arise by way of circumstances detailed in section 44 of the Care Act.
Section 44: Safeguarding Adults Reviews
SABs are therefore required to conduct a Safeguarding Adults Review into certain cases in certain circumstances. An SAB is required to arrange a review where there is reasonable cause for concern about how the SAB, its members or some other person with relevant functions involved in the case worked together and either the adult has died and the SAB knows or suspects that the death resulted from abuse or neglect or the adult is still alive and the SAB knows or suspects that the adult has experienced serious abuse or neglect. An SAB however may arrange for there to be a review of any other case involving an adult in its area with needs for care and support whether or not the local authority has been meeting any of those needs.
Section 45: Supply of information
Under this section an SAB may request a person to supply information to it or to another person. The person who receives the request must provide the information provided to the SAB if:
- The request is made in order to enable or assist the SAB to do perform its functions; and
- The person or body requested to supply the information must have functions or engage in activities such that the SAB considers it is likely to have information relevant to a function of the SAB.
Guidance on the sorts of persons/bodies who would have functions/engage in activities which satisfy the requirements in section 45 are found in the Care Act's explanatory notes. For example, one such person/body could be a GP who provided medical advice or treatment to an adult in respect of whom a SAB was carrying out a case review, or to a family member or carer of that adult.
Section 46: Abolition of local authority’s power to remove persons in need of care
This section repeals the power under section 47 of the National Assistance Act 1948 for a local authority to remove a person in need of care from their home.
Section 47: Protecting property of adults being cared for away from home
The duty remains, initially laid down in section 48 of the National Assistance Act 1948, for local authorities to take reasonable steps to prevent or mitigate the loss or damage to the moveable property of adults who have been admitted to a hospital or to a residential care home, and who are unable to protect it or deal with it themselves. The duty applies to any tangible and physical moveable property which belongs to the adult in question. For example, this includes pets owned by the adult. In addition, the section makes clear that any person who obstructs the exercise of this duty by a local authority is liable on summary conviction to pay a fine. A defence of reasonable excuse is provided. This offence is re-enacted from section 55 of the National Assistance Act 1948. A local authority however may recover from an adult whatever reasonable expenses it incurs under this section in the adult’s case.
The question which is looming over the Care Act is whether it will be adequately funded. It is arguably the main barrier to its successful implementation. As things stand, the current government funding for year one of the Care Act consists of £470 million which is comprised of the following:
- £335 million of funding for new responsibilities contained within the provisional local government spending review settlement for 2015/2016 to cover assessment and eligibility, IT, capacity, deferred payments and information and advice;
- £135 million funding for the implementation of the Care Act through provisions contained in the Better Care Fund.
Another anticipated £175 million will be used to support the second phase of the Care Act which will see the implementation, in April 2016, of the cap on care costs and an extension of means tested support so that more people are eligible for local authority support with their care costs. As this will phase will not be in force for some time it is unclear how it will work in practice and commentators are unsure what the knock-on effect will be for local authorities. On a more positive note it does mean councils do have time to prepare.
Local authorities will no doubt be concerned about the effect of the Care Act on their social care budget. The changes, such as the general duty to promote the well-being of an individual and the setting of a national eligibility threshold for an individual to receive services, will in all likelihood focus the financial concerns of local authorities upon the number of reassessments/reviews of individuals which might now be necessary and how to meet the potentially increased need for services. Only time will tell whether the funding provided will be adequate enough to meet the adjustment of systems, redrafting of forms and retraining of staff to take account of the changes.
Adult social care has long suffered in relation to other public services and local authorities have had to endure significant budget reductions. It is plain to see that requiring local authorities to provide heightened social care services with less funding will be a difficult practice to make work and will put both the local authority and the individual in harm's way. Local authorities could be under threat of judicial review from individuals who think an authority is not meeting its duties and/or responsibilities under the Care Act. Similarly, the Department of Health might come under threat of judicial review from local authorities in relation to funding. Two councils recently did just that. Wokingham and West Berkshire councils announced towards the end of March 2015 that the Department of Health’s promise to fully fund the implementation costs of the Care Act has not been met in relation to them.
So the sticking point is money. The Care Act will only work if those that need care get it and local authorities have the resources to fully fund it.
1. Link to Care Act 2014
2. Link to Care Act 2014 Statutory Guidance