Author Archives: Stephen Lowe

Tackling the future funding of social care

Age UK has responded to a Department of Health consultation on the future funding of social care. This marks the latest stage in the long march to reform how we pay for care. The ‘Dilnot’ Commission on long term care funding recommended a new system whereby the amount that individuals would be expected to pay towards their care needs would be capped. The government has announced that it will implement a modified version of these recommendations. However there are still many unanswered questions about the new system and concern about its complexity.

The proposals are based on a new national system of eligibility for local authority care. The only spending by an individual that will count towards the 440px_older_carers_handscap is that required to meet needs which fall within these criteria – currently set at ‘substantial’ . If the criteria are too restrictive people might have spent large amounts before their outlay even starts to count towards the cap. Age UK has therefore argued that eligibility for local authority care should include people with what would currently be defined as moderate needs. Continue reading

Joint Committee reports on Draft Care and Support Bill

The Joint Committee on the Draft Care and Support Bill has completed its scrutiny of the draft bill, and published a report and recommendations. The committee is supportive of much of the bill, but suggests that further measures to promote preventative services and early intervention, and to promote integration between local authority social care, housing services and the NHS, could be included.

440px_older_carers_handsThe committee also argues that the government has underestimated the cost of implementing the proposals contained in the bill. In launching the report, the committee’s chair, Paul Burstow, argued that “The government must take stock of its funding for adult care and support and think seriously about whether the transformation we all want to see can truly be delivered without greater resources’. Age UK has similarly called for the government’s forthcoming spending review to make provision for funding a fair and dependable care system.

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Worth waiting for? The Draft Care and Support Bill

As the Law Commission first began work on its review of adult social care in 2008 it seems reasonable to describe the new draft Care and Support Bill, based on the Law Commission’s recommendations, as ‘long awaited’.  So has it been worth waiting for?

Throughout its work the Commission was adamant that it did not intend to reduce the rights of older and disabled people who need care and support.  That the Law Commission has largely achieved its aim does in itself deserve praise, not to mention a sigh of relief that essential rights have not been swept away.

The Law Commission’s recommendations were never intended to be revolutionary. The aim of the exercise was primarily to consolidate existing legislation. This meant both bringing together successive acts of Parliament and proposing a new structure for regulations and guidance issued under the new act. Guidance will also be pulled together into a single code of practice, a huge improvement on the current mass of guidance, good practice guidelines, and guidelines produced by third parties.

There are, however, some dramatic and welcome new proposals in the draft bill;

  • A general duty to promote the wellbeing of service users will become the underlying principle used as a basis for interpreting the rest of the legislation;
  • People who do not meet eligibility criteria will still have rights to advice and information;
  • Carers will, for the first time, have the same rights to services following assessment as care service users;
  • There will be a new national framework for eligibility for care and support (the White Paper also promises a new minimum threshold for eligibility by 2015 although this is not in the draft Bill)
  • There will be improved transition arrangements for service users who move from one local authority to another;
  • Legislation to safeguard adults at risk of abuse.

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Rights and resources – Supreme Court social care ruling

Local Authorities have statutory duties to provide social care to people who need it, but at the same time have finite resources. The way in which local authorities should reconcile their duties towards individuals with sound budget management appeared to have been established by the so called ‘Gloucester judgment’ (R v Gloucestershire County Council, Ex parte Barry).  This judgment ruled that local authorities could take their resources into account in setting their eligibility criteria for social care, but if someone met the criteria the local authority had an absolute duty to meet eligible needs. The local authority could not, once eligibility was established, use resources as a justification for not meeting needs.

However in the past couple of years the implementation of personalisation combined with unprecedented funding cuts has resulted in the relationship between rights and increasingly limited resources once more being tested in court, with the most recent case, R. (on the application of KM) v. Cambridgeshire County Council, going all the way to the Supreme Court.  This case was flagged up in advance as one which might overturn the ‘Gloucester judgment’ though in the event this did not happen.

Photo: Rosie O’Beirne

The main issue at stake in this case was the use of ‘Resource Allocation Systems’ (RAS) to calculate a personal budget. RAS are often used to allocate an amount on the basis of a standardised questionnaire. This means that the budget calculated might not be enough to meet the individual’s needs. However it is often not clear to the person how the budget has been worked out, or what needs the budget is supposed to meet, so This makes it impossible for the person to challenge the amount allocated on the basis that it is not enough.

However the law has not changed; local authorities still have duties to fully asses the needs of the individual, to consider whether they are eligible for support, and to ensure that eligible needs are met. In 2010 an important case, R (Savva) v Kensington and Chelsea Royal London Borough Council, underlined this point. Whilst the court agreed that a local authority could use a RAS to work out an approximate, or indicative, budget, it remained the case that once eligible needs had been established on the basis of an assessment of individual needs, the council was under an absolute duty to provide services that would meet those needs, or a personal budget with which to purchase them.

The person was also entitled to know how their budget had been worked out. The judge gave an indication of the level of detail required concluding that ‘I would consider it adequate to list the required services and assumed timings… together with the assumed hourly cost. That would not be unduly onerous. I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done.”

All of this creates a fairly consistent picture, but during 2011, R. (on the application of KM) v. Cambridgeshire County Council appeared to overturn this position, with the Appeal Court concluding that in allocating a personal budget ‘the  local authority are not obliged to meet an individual’s needs in absolute terms’. This caused considerable alarm and resulted in a number of representative organisations supporting a further appeal to the Supreme Court (Age UK did not intervene as no older people were involved).

The Supreme Court judgment, announced last month, reconfirms the position established by Savva and concludes that the view expressed by the Court of Appeal was erroneous and based on a misunderstanding of the Savva case.

 So the law effectively remains as it was. Local Authorities have an absolute duty to meet assessed needs and must be able to show that a personal budget has been worked out on the basis of a proper assessment, and that it is sufficient to meet needs identified by that assessment.  The decision re-enforces the point made in Savva that a local authority must explain how it has calculated the person’s budget – the court notes that ‘failure to meet eligible needs may prove to be far less visible in circumstances in which it [the local authority] has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer’.

Age UK are calling on the Government to urgently reform the care system. More than130,000 people have signed our Care in Crisis petition calling for reform of England’s care system. Find out more about the campaign and how you can get involved.