The Care Act received Royal Assent last month. Judith Barnes, Susan Thompson and Ros Ashcroft outline the key measures in this landark legislation.
The Care Act 2014 came onto the statute books on 14 May 2014. It sets out a new framework of local authority duties in relation to the arrangement and funding of social care, along with a number of changes to the regulation of social care providers. It will have a very significant impact on local authorities and the market for social care. The final version of the Act is now available here.
The full implementation timetable is not yet known, but some provisions will come into effect in October 2014. The care costs cap will come into effect in April 2016 and this is likely to be the backstop date for implementation.
Key provisions in the Act include:
- a new framework of duties on local authorities in relation to the provision of social care, covering assessment of care needs, duties to arrange care, funding and the Dilnot care cap. This includes new requirements to assess and meet the needs of carers and new provision for a single national test of eligibility for local authority involvement in arranging and funding care. It includes provisions which will greatly increase transparency about costs of care and impact on the current market balance between self-funded care and local authority funded care;
- a requirement to arrange for the provision of preventative services, i.e. services which will reduce, prevent or delay the development of need for care and support;
- a number of general duties which apply when local authorities are fulfilling their social care functions, including duties to promote the wellbeing of individuals and promote integration between health and social care services.;
- new powers for local authorities to delegate many of their social care functions;
- new duties on local authorities with regard to safeguarding of adults receiving social care;
- a number of new provisions regarding the regulation of care providers, including: the legal basis for the duty of candour, applying to all health and social care providers regulated by the CQC; a new criminal offence for some care providers of giving false or misleading information; changes to the CQC regulatory regime, including new powers to monitor the financial sustainability of providers; provision for the Human Rights Act to apply to some private sector care providers;
- the statutory basis for the Better Care Fund, i.e. powers to direct CCGs to use NHS funding in projects for developing integrated health and social care services
- new arrangements regarding discharge from hospital and after-care under section 117 of the Mental Health Act.
The introduction of a new legal framework for a key area of local government responsibility is bound to have a significant impact on authorities, which will be concerned about the demands of implementing a new system. However the Care Act also looks set to place significant substantive demands on authorities as well. There is the prospect of significantly more people qualifying for financial assistance with social care, with the new duties to support carers and a proposed increase in the means test threshold, although much depends on the nature of the new eligibility criteria. The volume of assessments of care needs to be carried out by local authorities will increase significantly, as an assessment of eligibility is the gateway to the care cap system and a number of other rights, so it is no longer of interest only to those who think they might qualify for financial assistance with care.
The Act requires local authorities to manage and develop the market for care in their area. Part of that development may be directly generated by authorities themselves, which will be able to delegate many of their social care functions to organisations from any sector: this could create new market opportunities for providers.
But the shape of the social care market will be significantly changed by the Act in a number of other ways.
The requirement on authorities to promote individual wellbeing when fulfilling their social care functions is intended to alter the commissioning behaviour of local authorities market by restricting their ability to commission 15 minute domiciliary care visits and other minimal provision. Other measures, including the duty of candour, the provisions on safeguarding and the extension of the Human Rights Act to private sector providers, also reflect the new focus on standards of care and sustainability of care providers in light of events such as the Francis Report, the Winterbourne View scandal and the failure of Southern Cross. The wide impact of these measures will be felt across all providers of health and social care services, in the public, private and third sectors, and it remains to be seen how these will affect provider sustainability and cost profiles.
Perhaps the most radical impact on the care market, and on authorities, may come from a new duty on local authorities to arrange care for those with eligible needs even if they will not be receiving any financial support with the costs of that care, along with new transparency about the costs to local authorities of providing social care. The government guidance on this provision confirms that this is intended to allow those individuals to benefit from the lower prices available through local authority frameworks, raising the prospect of an end to the split markets for local authority and self-funded care. As all those involved in negotiating social care contracts will know, this could have a very major impact on local authority commissioning and spending.
Authorities obviously need to understand the nature of the new duties and be aware of their implications both for internal organisation and governance and for commissioning of residential and domiciliary care. Much of the detail of the new framework will be contained in regulations and guidance: it will be very important for authorities to review consultation versions of these documents and contribute to the consultations so that central government has clear information on the practical impact.
It is important to consider how the new duties will link to the work of your Health & Wellbeing Boards and Public Health functions, for example the requirement to provide preventative services and the duties to promote integration and to develop and manage the care market.
Authorities should begin thinking about how they can gather and share information which is relevant to the decisions they need to make about implementation of the Act and ongoing performance of its duties. You need to consider information about services and user profiles which can inform strategic thinking, e.g. by Health & Wellbeing Boards, information from care providers relevant to the new duties to provide information about care costs and information about care service users and potential new service users to inform approaches to commissioning. It will also be important to consider how individuals can be tracked or monitored to enable you to assess the success of particular services or care packages (e.g. to determine the effectiveness of preventative services or signposting to alternative sources of support).