This year’s ‘National Children’s and Adults Services’ (social care) conference, saw contrasting perspectives on the changing role of local authorities. Peter Hay, the current President of the Association of Directors of Adult social Services, speaking at the morning session, welcomed the new leadership role of local authorities with regard to public health.
In the afternoon, by contrast, Andy Burnham, the new shadow Secretary of State was concerned that current reforms would result in a loss of local authority powers and of local accountability. Concentrating on the NHS and on education, his view was that reforms were dominated by provider interests. They hand huge power to GP’s and Head Teachers and take it away from service users. ‘In a world with no PCT’s,’ asked Burnham ‘how can patients challenge decisions by GP commissioners?’. He concluded that Parliament has not yet woken up to the full implications of these reforms.
The current Localism bill includes proposals for independent social work practices to take over local authority social work functions, so this raises the question of whether Burnham’s concerns will be an issue for adult social care. Independent practices are already being piloted, and in August the Secretary of State for Health issued the Contracting Out (England) order 2011 to ensure that the delegation of local authority functions to these practices is lawful. The order can be found here.
Whether this order was strictly necessary depends on what independent social work practices will be expected to do. Older people for the most part do not receive extended social work interventions. Their contact with social work is more likely to be through assessment, arranging services, and if they are lucky, subsequent reviews of their care and support arrangements.
The Law Commission review of Adult Social Care Law takes the view that local authorities can already delegate ‘the assessment or some parts of the assessment, subject to the local authority retaining ultimate control of the process and ensuring that certain minimum requirements are satisfied’.
The Commission goes on to explain that the local authority would need to retainsufficient control to be able to satisfy itself that the assessment complies with legal requirements, regulations and involvement of the service user and any carer, and to enable the local authority to ‘properly take the decision on eligibility and service provision’. If necessary the local authority would have to rectify any shortcomings in the assessment.
The Law Commission does not propose to change this position, which is probably a good thing, as it ensures that statutory duties, including carrying out an assessment and meeting the needs of people who are eligible for care and support, remain squarely with the local authority. If a person is not happy with the decision they can, if the situation cannot be resolved through the statutory complaint procedure, go to the Local Government Ombudsman or can challenge the decision using community care or other public law, or the Human Rights Act.
However the functions that can be transferred to independent practices under the Contracting Out order – which are set out in a schedule to the order – include most current social services’ duties to assess people and to arrange care. These include duties to arrange services under the 1948 National Assistance Act, provision of welfare services under the Chronically Sick and Disabled Person’s Act, and duties to assess under the 1990 NHS and Community Care Act.
The effect is that independent social work practices will not be restricted by law to providing services on behalf of a local authority. As with GP commissioners they could themselves be the agency that has statutory responsibilities, including for setting eligibility criteria, carrying out assessments and arranging services.
This would drastically alter present lines of legal accountability. It is unclear to what extent people would still be able to complain to the local government Ombudsman about decisions made by independent social work practices, or to challenge decisions using public law. It is also unclear whether independent practices would be, in so far as they carry out these statutory functions, be subject to the Human Rights Act.
It seems extraordinary that such a fundamental legislative change – which goes far beyond, and is in conflict with, the recommendations of the Law Commission, has been made through an order issued by the Secretary of State with minimal Parliamentary discussion. The order only applies to the independent social work pilot areas, but if rolled out more widely it would represent a fundamental change to legislation and to the rights of people who need care and support.