Three aspects of the Care Bill under the spotlight at the current time are: rights for carers, rights to funded advocacy and eligibility.
Rights of carers
Carers willl have the right to funding for services for the first time. The local authority where the person resides will be the liable authority and the carer will have to be assessed and judged to have eligible needs for support.
The ‘regular and substantial’ test for who is a carer has been removed with the focus placed more on the difference the input makes for the cared for person. This will end the debates about who is and who is not a carer but is of little use if you are not regarded as eligible but do not feel able to stop caring. Carers can still refuse to care, of course, if they are not assessed as eligible but the reality is that most carers want to care and see it is as their duty.
The carers’ draft eligibility criteria make good sense and will mean that carers will be positively incentivised to care by being given something that does not count as a benefit and which relieves them of other obligations in their own households, such as cleaning.
The way the factors relevant to the council’s consideration are stated treat work, education and recreation as pursuits that must be seen as critical to valuing carers as citizens. But of course the law will not determine how much work, education or recreation it is legitimate to want to do, if the carer has a relative or spouse in need.
[su_quote cite=””]Many councils are reported to be investigating once again ‘family therapy’ styles of social work practice drawing on systemic and intervention theories but it remains to be seen if this sort of approach can be melded with what will have to be a more rigorously legalistic approach under the new legal provisions.[/su_quote]
The Bill says:
Where it appears to a local authority that a carer may have needs for support (whether currently or in the future), the authority must assess:
(a) whether the carer does have needs for support (or is likely to do so in the future), and
(b) if so, what those needs are (or are likely to be in the future).
This section includes references to providing practical or emotional support.
A carer’s assessment must include:
- whether the carer is able, and is likely to continue to be able, to provide care for the adult needing care
- whether the carer is willing, and is likely to continue to be willing, to do so
- the outcomes that the carer wishes to achieve in day-to-day life
- whether, and to what extent, the provision of support could contribute to the achievement of those outcomes
- whether, and if so to what extent, other matters (including, in particular, the carer’s own capabilities and any support available to the carer from friends, family or others) could contribute to the achievement of those outcomes.
Eligibility criteria
A carer’s needs meet the eligibility criteria if the effect of those needs is that any of the circumstances specified in the Bill apply to the carer, or are expected to apply at an identifiable point in the future.
A carer’s individually enforceable rights arising out of eligibility will be made out in the following situations:
(a) the carer is unable or unwilling to provide some of the necessary care to the adult needing care; [or]
(b) as a consequence of providing care, the carer is unable to carry out some or all basic household activities in the carer’s home (whether or not this is also the home of the adult needing care); [or]
(c) as a consequence of providing care, the carer’s physical or mental health is, or is at risk of, significantly deteriorating; [or]
(d) as a consequence of providing care the carer is, or is likely to be—
(i) unable fully to care for any child for whom the carer is responsible
(ii) unable fully to provide care to other persons for whom the carer provides care, or
(iii) unable fully to maintain other family or personal relationships, [or]
(e) as a consequence of providing care, the carer is, or is likely to be, unable to obtain or remain in employment, education or training;
(f) as a consequence of providing care, the carer is unable to access necessary facilities or services in the local community; or
(g) as a consequence of providing care, the carer is unable to participate in recreational activities.
Costs arising from these changes are estimated to be in the region of £150 to £175 million per year.
Rights to funded advocacy
The Government has decided to provide independent advocacy for those who would struggle to navigate the social care system alone.
Campaigners have pressed for a right to advocacy since the Bill was introduced to Parliament in draft form last year.
When the Bill becomes law, local authorities will need to ensure funded independent advocates are available for the most vulnerable in the same way as at present they are for people who lack capacity (although current funding is patchy).
Advocates ought to be able to ensure that people’s voices are heard, that they won’t have to face the often intimidating and complex process of council assessments alone, and that they get the care they need when they need it.
Counselling and advocacy are to be made into social care rights as a service response for anyone found eligible – ie chargeable social care services – posssibly as a means of helping a person to access something due from someone else like health, or housing – and thus reduce their eligible needs.
It will be interesting to see if the sector believes that there will be a fundamental difference between this sort of advocacy and brokerage and whether the two sorts of services can be operated by one organisation.
Dilnot concerns
The most recent papers from government on implementing Dilnot (September 2013) assure us that those with needs for care and support by the time they are 18 will not have to pay for their care, ever in their lifetimes, regardless of what they inherit or win on the lottery as it is assumed they will have had no opportunities to amass savings. They will not pay out of earned income, though the position is not clear for those on benefits. Presumably they will need to be left with the same level of benefits as the charging system will leave others with. This will make inheritance planning much easier for those with offspring with learning disabilities, but could make them more vulnerable to abuse.
Eligibility
What all critics are saying now is that it is not necessarily the cap or the threshold or the approach to living costs that are excluded from the cap that matters for the success of the Dilnot approach but something much more pressing.
‘The critical question is not how high a cap on care costs should be, but whether their needs are even deemed eligible for support‘ (Brawn et al 2013).
The cap and extended means test will be irrelevant if people with moderate needs fall outside the public system. As the number of people with care and support needs continues to grow, the level of unmet needs will rise too, and the system will become even more reactive and crisis-driven.
Interpretation is an unruly issue as well. The 2012 report of Melanie Henwood Associates, commissioned by SCIE, said this: “There are considerable variations not only in models of assessment, but also in practitioner interpretation, behaviour and understanding. The particular values and beliefs held by individual social workers, for example, can make a significant difference in practice to their approach to assessment and the outcomes achieved for individuals. There is considerable research evidence on people trying to ‘do their best‘ for clients by ensuring that they assess their needs in a way that will ‘get them over the eligibility threshold’; other practitioners may be concerned to protect budgets wherever possible and may interpret eligibility more restrictively. Any change of assessment tools and methodology would therefore bring major training and workforce development implications, and the introduction of standardised tools and thresholds would not in itself be sufficient to ensure consistent outcomes”.
Many councils are reported to be investigating once again ‘family therapy’ styles of social work practice drawing on systemic and intervention theories but it remains to be seen if this sort of approach can be melded with what will have to be a more rigorously legalistic approach under the new legal provisions inevitably in the spotlight in the first couple of years of implementation.
The draft eligibility criteria have been discussed around the country in a programme of consultation events run by the Department of Health. This consultation ran until 29 November 2013 and a further version of the criteria will be published for public consultation in spring 2014, with a view to the final version being implemented by local authorities from April 2015. The estimate for the additional cost of moving all LAs to the new eligibility criteria is around £23 million per year.
The Care and Support Bill is expected to have its second reading debate on a date to be announced. It completed its House of Lords stages on 29 October 2013 and was presented to the House of Commons on 30 October 2013. This is known as the first reading and there was no debate on the Bill at this stage.
