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.

Continue reading “Worth waiting for? The Draft Care and Support Bill”

The Government must be bold on social care reform

This article was originally featured in the Telegraph.

It is quite a challenge to attempt radical reform of social care in a period of public spending entrenchment.   Yet to do so now is also a good time.   It is painfully plain that state-provided social care is in crisis. Age UK estimates that currently there are 800,000 older people who need care but do not receive it from the state, and that this will increase to one million people by 2014.

No-one involved in social care wants the status quo to continue. Inadequate funding and a chaotic legal framework have created the perfect storm in which those in the last years of their life are routinely failed by the system.

The most vulnerable members of our society often receive inadequate support or no support at all. Others find that the only way to pay for the residential care they need is to sell the family home, a decision that only compounds an already difficult time.

This situation is only going to get worse as social care services are under growing pressure: first, as a result of stand-still budgets which have seen investment in social care increase by only 0.1% per year in real terms since 2004; second because of large cuts in central Government support to local Councils this year and planned for the next three years as well; and thirdly, because there is greater demand than ever – since 2004 the number of people over 85 has risen by two-thirds.  Demand outstrips supply. Continue reading “The Government must be bold on social care reform”

Doing better for social care users

The inadequacy of current social care provision has been a hot topic in the media and Parliament this week. The appalling abuse of residents in Winterbourne Care Home, as uncovered by Panorama, and concerns about Southern Cross’ 750 care homes have provoked anger and anxiety. As such, Stephen Lloyd MP’s adjournment debate on Tuesday night on care services for older people was well-timed.

Mr Lloyd, as Secretary of the All-Party Parliamentary Group on Ageing and Older People, highlighted in Parliament the growing age profile of our population and the need to reform the social care system now. He highlighted in particular the needs of older people suffering from dementia, their families and carers. In support, Penny Mordaunt MP stated that in her constituency of Portsmouth alone, there are 1,000 people with dementia who have no access to services whatsoever.

The debate provided many questions, but few answers. The consensus was clear that the care system needs to change. Stephen Lloyd challenged the Government to provide a minimum level of care and support to everyone for free. He argued that access to early intervention services for those with dementia would improve the lives of those suffering from the condition and would make economic sense by delaying progress of the disease. He raised the importance of respite care for families coping with a loved one with dementia and called for a guarantee of good-quality care.

But we heard little from the Minister responding (Paul Burstow MP, Minister for Care Services) about concrete proposals for reform – he, like everyone else, is waiting for the proposals of the Dilnot Commission. Dilnot’s Commission on Funding of Care and Support is due to report at the beginning of next month, and we expect that legislation based on the Commission’s proposals and those of the Law Commission on reform of social care law will be a high priority for the Government in the next parliamentary session. In the meantime, the Minister last night did not comment on Stephen Lloyd’s proposals about social care funding, saying only that “there is no perfect solution… but we need to strive to reach a settlement that requires trade-offs but also secures the necessary change and sustainability of a system for the future.”

What Tuesday’s debate did do, was to raise in Parliament the real, human impact of care services on the lives of older people. Several MPs spoke with passion about the numbers in their constituency who were not receiving support, while Stephen Lloyd talked about the impact of dementia on his own family. Social care funding is not just a policy problem to be solved; it has a huge impact on the dignity and quality of life of millions of older people in the UK and their families. When the Government legislates to reform social care, Age UK will be making sure that their voices are heard.

Social care at breaking point

This post originally appeared on Left Foot Forward.

The past few months have been full of speculation about dissent and division between the Coalition partners; on AV, on pensions and most recently on health. Yesterday Age UK, as part of an alliance of health charities and think-tanks, wrote to all three main party leaders calling on them to put aside their political differences and work together to reform social care.

It’s clear that the social care system in England is at breaking point and badly in need of reform. Earlier this week, Age UK launched our ‘Care in Crisis’ report, which outlines the flaws in the current care system. The system simply isn’t meeting people’s needs; in England, of the 2 million older people with care needs, over 800,000 currently receive no support whatsoever from either public or private sector agencies.  Funding has increased only incrementally (0.1% per year in real terms since 2004), while local authority budget cuts mean that spending on older people’s care is due to plummet by £300 million over the next four years. There are massive variations in the quality and quantity of care between different local authorities, and older service users receive less funding on average than younger ones. The system is failing to meet people’s basic needs and desperately needs to change.

There were opportunities to reform the social care system during Labour’s time in Government which weren’t adequately seized. The Royal Commission on Long-Term Care, established six months into Blair’s first term and reporting in 1999, made a series of recommendations on care reform, including paying for personal care through general taxation according to need, establishing a National Care Commission to set benchmarks, monitor longitudinal trends and represent the interests of consumers, a national carer support package and a more transparent grant and expenditure allocation system. The majority of the Commission’s recommendations were never implemented. Subsequent reform attempts were too little, too late. The Personal Care at Home Act was passed last April in ‘wash-up’ before the General Election, but relies on a commencement order to take effect. The Coalition Government announced in November last year that it would not be commencing the Act – a symptom of the failure to achieve broad political consensus on the need for reform.

But change is on its way. Last month saw the publication of the Law Commission’s review of adult social care law, which is proposing some significant changes to the legal entitlements and responsibilities accompanying social care provision. Under the proposals, there would be a national framework for eligibility, which would stipulate basic minimum entitlements to services. Care users would be able to use direct payments to purchase residential care. There would be clear legislation on the role of social services in leading and coordinating the safeguarding of vulnerable adults, a topic which is currently left to guidance. There would also be more support for carers; local authorities would have a duty to assess carers’ needs, and also a duty (rather than a power at present) to meet them. Continue reading “Social care at breaking point”

A new legal framework for social care; the Law Commission reports

The Law Commission review of adult social care law has completed its work and has published proposals for comprehensive new social care legislation. It would be an understatement to call these proposals ‘long awaited’. The Law Commission has been working on them since 2008, but on a longer timescale it has been apparent for many years that community care law,  made up of over sixty years’ worth of legislation and case law, is a complete shambles. The Law Commission notes that ‘piecemeal’, ‘exceptionally tortuous’, ‘labyrinthine’, and ‘the worst drafted subordinate legislation ever encountered’ are just some of the descriptions that Judges have used in referring to various components of the legal system.

The brief of the Law Commission has been to consolidate, rather than radically reform the law. This was always going to be a challenge. Decisions have to be made about what to do where current law is confused, contradictory or fudged, and there are differing views of how social care law should develop in the future. Even basic definitions such as ‘social care’ and  ‘adults at risk of abuse’ can be hotly contested. On top of this, in the current political climate the very idea that the work of local authorities should be constrained by legislation is under challenge.

The Law Commission has taken the view that its role is not to take sides but to make recommendations for a new statute which will be robust and flexible enough to accommodate different policies. The Law Commission has not, as is usually the case with reviews of this kind, produced draft legislation, so the new report marks the conclusion of the review. This  is attributed mainly to the fact that, in response to a request from the government, the review has had to conclude a year earlier than expected. This is so that its conclusions can be brought together with those of the Dilnot Commission on long term care funding in order to inform a single parliamentary bill in 2012.

In practice the Law Commission is proposing some significant changes, so  the importance of the commission’s proposals  should not, be underestimated.

Really significant new proposals include;

  • The legislation would set out overall principles which should be used to interpret more detailed legislation
  • A national framework for eligibility would (unlike current guidance) ‘stipulate basic minimum entitlements to services’
  • Local Authorities would have a duty to asses the needs of carers and would have a duty (rather than, as at present, a power) to meet carers’ eligible needs.
  • People should be able to use direct payments to purchase residential care;
  • Local authorities will be able to delegate aspects of the assessment process to other organisations – but the local authority must ‘retain overall control of the process’
  • Local Authorities should be required to do more to enable people with care needs to move from one local authority to another
  • The role of social services in leading and co-ordinating safeguarding of adults who are at risk of abuse or neglect should be set out in legislation rather than, as at present, left to guidance

Perhaps as significant as the new legislation, however, would be measures to make existing rights and entitlements clearer. The overall structure of the law would be simpler, with different roles allocated to legislation, regulations and guidance. Guidance in particular would be simplified. At the moment, as the Commission points out, there is a ‘range of disparate and unconnected pieces of statutory and practice guidance’. These should ideally all be consolidated into a single document, and if multiple documents are issued they should at least be available in a single location and presented as a coherent whole. The Commission notes that at present there is considerable confusion about the status of guidance and of policy documents such as ‘Putting People First’. The purpose of guidance, the commission notes, should be ‘to guide social services authorities on the exercise of their functions under the statute’. Guidance should ‘not extend to policy exhortations or vague statements about the ‘direction of travel’ of social services functions’. Continue reading “A new legal framework for social care; the Law Commission reports”