The Care Act 2014 (CA 2014) replaced the previous 50 years of ad hoc legislation setting out local authorities’ duties and powers on adult social care and replaced them with a consolidated modern regime.
CA 2014 sets out the responsibility of local authorities to assess and meet needs for care and support. CA 2014 is supplemented by regulations and extensive guidance and also seeks to shift the focus towards prevention and promoting wellbeing rather than simply meeting need in crisis situations.
CA 2014 replaced earlier legislation and the Fair Access to Care Services (FACS) scheme which sought to set categories of need at low, moderate, substantial and critical levels. It was for each authority to set its own category of need under FACS which would qualify for support. CA 2014 was designed to ensure consistent national eligibility criteria which would equate to substantial need under the FACS scheme, as this was the threshold applied by most authorities prior to CA 2014 coming into force.
A person is eligible for care and support where they are unable to meet at least two of the wellbeing outcomes as a result of a physical or mental impairment which is having a significant impact on their wellbeing.
The duty under CA 2014 is to meet a person’s needs rather than to provide particular services. This is a positive approach as it provides flexibility and enables a person-centred solution to be used. However, it does also leave some discretion in the services offered and this could potentially be utilised to seek cheaper options rather than those that best meet the individual’s needs.
The application of what amounts to a ‘significant’ impact is also open to a degree of interpretation depending on the individual’s circumstances.
CA 2014 together with the regulations and guidance provides a framework which should lead to consistency of assessment of care and support needs and provision to support those needs. In practice, there is variation driven by cuts in funding which is possible because of the interpretation which can be applied to the various elements which make up the duty.
It is possible for authorities to meet non-eligible needs or to provide discretionary support where an individual is not entitled to receive it. While there is no accurate record of whether authorities are providing discretionary services, many are suggesting that they will struggle to meet their duties under CA 2014, let alone provide further discretionary services.
Local authorities are tending to take one of two approaches, cutting where they can and seeking to meet the minimum standards to comply with the law; others are seeking to invest in innovative and preventative services in order to manage demand and reduce the need for services.
The more successful authorities are investing in assistive technology to meet needs and to prevent further deterioration in wellbeing which would result in the need for more costly services. They are also seeking to work with partners in health, housing services, the third sector and the private sector to integrate services to reduce the need for intervention.
These innovative authorities are working with stakeholders to co-design services that meet the needs of individuals in the most efficient and effective way. By engaging with those in receipt of services and providers, local authorities can often commission services which are actually less costly but more effective.
There is a serious concern that legal challenges against local authorities will rise considerably. Local Government Lawyer reported in its survey on dispute resolution that 68 % of those local authority lawyers who responded expected adult social care disputes to rise—more than any other area (see further: Dispute Resolution 2016).
The Kings Fund has highlighted the £1.9bn gap between funding and demand for services and predicted that local authorities will be unable to comply with their statutory obligations.
In addition to increased litigation there is likely to be an increase in the number of complaints to the Ombudsman. In her Review of Adult Social Care Complaints for 2015-16, the Local Government Ombudsman reported a 25% increase in complaints about home care provision. As a result of the pressures on local authorities in delivering care services this trend seems likely to continue.
The claims could take the form of judicial review of a failure by a local authority to provide services. However, judicial review claims are not easy to bring and the government has made it even more difficult. This may mean that alternative methods such as complaints and the Ombudsman are used. A failure to meet a person’s need could also give rise to claims under the Human Rights Act 1998.
This means that legal departments are likely to be asked to advise on complaints and to defend claims. They should be working with their colleagues in adult social care to ensure that policies and processes are compliant with CA 2014 and are being followed.
As budget proposals are developed and reductions are inevitably proposed, legal departments should be involved in the process of reviewing proposals to ensure that compliance with the law will not be compromised by such proposals. They will be involved in supporting their authorities to develop innovative solutions to deliver reductions in cost without compromising compliance. This is likely to involve better commissioning, innovative contracting solutions and greater integration of services, particularly with health.
The crisis in social care service mirrors the difficulties which many public authorities are experiencing in meeting statutory duties in the face of reduced funding but increasing demand. This is particularly acute in social care because of the aging population and the fact that it is such a significant element of most top tier authorities’ overall budgets.
The government, in the face of significant lobbying, appears to recognise the problem but its solution, the social care precept, will not be sufficient to resolve it. There needs to be a radical reconsideration of the whole health and social care system and a better alignment of the objectives of the NHS and local authorities. It may be that devolution deals and greater local authority involvement in health decisions will offer this in some areas but a national solution is urgently required.
Interviewed by Evelyn Reid.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.