Memorandum submitted by Local Government Association (H&SC 13)
1.1 This memorandum sets out the position of the Local Government Association (LGA) on the Health and Social Care Bill. The LGA is a cross party organisation that represents over 400 councils in England and Wales. The government and the LGA have recently committed to a new relationship which moves closer to recognising that central and local government are equal partners in delivering services for people. Councils are ready to tackle future health challenges, but must have the powers and resources necessary to provide the care people expect and deserve.
1.2 The health and well-being of all their residents is one of the most important issues for councils as community leaders. Councils are committed to giving people more control over their lives and to supporting independent living through the introduction of Personal Care budgets. The LGA recently signed a groundbreaking concordat "Putting People First" with central government and the NHS to transform care services over the next three years.
1.3 These are also times of immense challenges for local health and well-being partnerships. Funding for adult social care, now and for the future as demographic trends increase the number of older people in need of care and support, is lagging behind demand. The Government has stated its commitment to a 'radical rethink' on long-term care funding and a Green Paper is promised by the end of 2008. The LGA is also looking at the future of social care finance as the current system of state support clearly needs to be fundamentally reworked. Despite the funding pressures, the 150 local authorities with social services responsibilities in England have shown a consistent improvement in performance such that 32% are three star rated, 49% are two star rated with none zero star rated since 2005 (CSCI, November 2007).
1.4 There is growing acceptance that to achieve improvement in public services more decision-making should take place at a local level. Surveys also show that the public prefer their services to be managed locally and to be responsive to local needs, with health services amongst those that are often the most important to local communities. The LGA has set up a commission, chaired by Niall Dickson (Chief Executive of the King's Fund), to consider how health services can be made more locally responsive and accountable.
2.1 The LGA are proposing three areas in which the bill should be amended to ensure:
· the Care Quality Commission has a duty to co-operate and promote information sharing between local agencies - to help avoid another Climbie-type failure;
· no new performance indicators are introduced for social care services beyond the agreed National Indicator Set - this will only act to undermine the existing performance framework and may divert resources from frontline services;
· Public health powers (as relating to 'things' and 'premises' rather than people) remain with councils and not moved to Justices of Peace (JPs). This will ensure a swift response to incidents of infection and contamination like in the case of remediation work led by Westminster City Council following the death of Alexander Litvinenko.
2.2 We also raise a number of concerns around provisions for a disputes resolution process for deciding councils' responsibility for providing social care.
How should the bill be improved?
3. Part 1, Chapter 1: The Care Quality Commission
3.1 The bill should be amended to ensure that the new Commission has a duty to co-operate and to promote information sharing between local agencies.
People count on local agencies to work together and share information for the better protection of vulnerable people.
3.2 The Commission cannot afford to operate in a regulatory silo. To help avoid another Climbie-type failure we believe the bill should be amended to require the new regulator to co-operate with other agencies working with vulnerable people. At a national level, this would mean taking into account the roles and responsibilities of other bodies when issuing guidance and developing policy. At the local level this would ensure that the new regulator co-operates and shares information with other enforcement agencies, such as the police and local authorities.
3.3 The Commission must support councils in achieving their ambitions for local communities. It should not impose its own views on particular areas or confuse and/or undermine the work of other regulatory bodies. Bringing together three regulatory bodies is helpful, but their previous record, particularly in relation to health and safety in care settings needs improvement. Councils tell us that the Commission for Social Care Inspection (CSCI) has not joined other statutory agencies in developing a national protocol for the investigation of deaths in care settings nor have they consistently taken part in local co-ordination meetings. We want to see a mature and open relationship develop, like that between OFSTED and local authority food enforcement officers in relation to childcare settings, encompassing joint protocols and robust co-ordination mechanisms.
4. Part 1, Chapter 3: Quality of Health and Social Care
4.1 The Bill should be amended to ensure no new performance indicators or data requirements are introduced for social care services over and above those agreed between the Secretary of State for Communities and Local Government and the LGA in the National Indicator Set. Additional bureaucratic burdens will only act to undermine the developing streamlined performance framework and may divert resources from frontline services.
People want to be reassured that the maximum resources go to front line services.
4.2 In October the Communities Secretary Hazel Blears announced a radical re-engineering of the relationship between the state, local councils and the communities they represent. The Government slashed the number of performance indicators handed down from Whitehall to councils from 1200 to 198, of which 31 relate to adult health and wellbeing, tackling exclusion and promoting equality. The Government also removed categorisation of performance, including star ratings. This gives councils major new freedoms to direct their focus and resources at the issues local people care about, while the breadth of the 31 adult health and wellbeing indicators ensures a proper assessment of performance for the Commission as well as reassurance for the public.
4.3 Similarly a `new burdens' doctrine has recently been confirmed in the Central-Local Concordat which stipulates that central government must not impose new responsibilities on councils without making available adequate finance. We believe that powers to create additional performance targets or data demands and new categorisation of performance undermine the principles of localism and could divert resources from the front line services to serve the demands of the regulator. The Commission should also work co-operatively with the Audit Commission in the new Comprehensive Area Assessment process and support Local Strategic Partnerships in achieving their ambitions for local communities.
5. Part 3: Public Health Protection
5.1 The bill should be amended to ensure that public health powers (as relating to 'things' and 'premises') remain with councils and are not moved to Justices of the Peace.
People want a swift and straight-forward response to incidents of infection and contamination.
5.2 It is right that the Courts should have to agree to measures against individuals, but it will cause delays and unnecessary legal costs to use the same processes for contaminated articles and premises, such as in the case of Alexander Litvinenko.
5.3 The proposed changes to public health legislation are mainly sensible and will consolidate existing legislation into a framework that will meet new and emerging challenges via the 'all hazards' approach. However, we believe the passing of powers from local authorities to JPs could delay responses to incidents of contamination. For example, JPs are volunteer magistrates and can live up to 15 miles from the area in which they are appointed. Should a contamination incident occur overnight or at a weekend then the local authority will be required to track down a JP to make the order. This procedure would create delays, an unnecessary layer of bureaucracy and potential legal costs for the local authority.
5.4 Current powers are not used very often, but when they are it is in the face of a serious incident. Following the death of Alexander Litvinenko in November 2006, Westminster City Council has led the process of carrying out remediation work to make the contaminated premises safe for public use prior to returning them to their owners. Forty seven sites in London, including hotels, restaurants and aircraft, were identified as actually or potentially contaminated with polonium - 210. It is essential that the remediation process is undertaken with due speed and minimal risk to the public. We do not accept the assertion in the Department of Health's impact assessment that the costs will be 'negligible'; it has cost Westminster City Council an estimated £250,000 so far to deal with this incident.
5.5 The LGA believes it is not reasonable to ask a council to make up to forty seven applications to the Courts for permission to carry out works in such circumstances. The Chartered Institute of Environmental Health, the representative body for frontline practitioners, endorses this view.
Other issues of concern for councils
6. Part 5, clause 136: Ordinary residence for certain purposes of National Assistance Act 1948
People want to have confidence that they will not be caught up in disputes between authorities over who should pay for their care.
6.2 Under the 1948 Act and the proposals in the bill, when a person moves to social care from NHS care, the local authority of the area in which they lived before they entered NHS care pays for their care - this is where they are deemed to be 'ordinarily resident.'
6.3 If the changes are confined to just those set out in the bill, it will be a missed opportunity to put right some of the root causes of disputes between councils as the rules have not kept pace with changed models of social care provision, family structures and greater mobility. In addition councils are already facing severe financial pressures in providing social care services and legal costs to settle disputes divert resources from front line services. For example, a small unitary authority in the South East currently has three cases undergoing legal challenge.
6.4 By way of example, the bill will not provide straightforward decisions in the following cases:
6.4.1 Mr B has learning difficulties and is placed by council X in a care home in council Y's area. The care home then either deregisters to become a supported living scheme or Mr B moves into a supported living scheme in the same area. The ordinary residence rules say that Mr B now becomes the responsibility of council Y.
6.4.2 Mrs A lived in council X for a long time and then goes to stay with a relative in council Y (usually a son or daughter). Mrs A's health declines and she needs domiciliary care or residential care. She has no intention of going back to council X as she wants to be near her family yet still retains a house in council X's area. Ordinary residence rules say that council Y is responsible for her care.
6.5 Neither of these situations is perceived as fair by council Y and may lead to lengthy disputes. We would like to work with the Department of Health to come up with more fair and workable rules which do not result in a time consuming and costly dispute resolution processes, at a time when the gap between what is spent and what is needed in funding for social care is estimated by the LGA at £1.7 billion.