Care Bill [Lords]

Written evidence submitted for Essex County Council (CB 20)

Summary

Please find enclosed issues and concerns that Essex County Council (ECC) would like members of the Public Bill Committee to explore during your deliberations. In particular, Essex County Council would welcome:

a) Clarity around certainty of funding for the cost of these reforms. ECC is concerned that the Government has significantly under-estimated the cost and we support the inclusion of two LGA-sponsored amendments (see paragraphs 1.4 – 1.6)

b) Removal of Section 1(2) from the Bill. While we support the inclusion of the wellbeing principle in Section 1(1), we do not believe that the list set out in Section 1(2) should form part of primary legislation. Section 1(2) also seems to pre-empt work underway by the Government to develop new national minimum eligibility criteria (which won’t be formally consulted on until May 2014)

c) Clarity about whether local authorities will have the power under the Bill to delegate responsibilities under sections 9, 10 and 27 to a third party (namely in relation to the carrying out of assessments and reviewing of support plans)

d) Provision for a new clause (proposed by the LGA) for the establishment of a national body to oversee and administer the proposed Deferred Payments Scheme

e) Clarity on whether the cap on care costs (Section 15) will be applied retrospectively to those already receiving care and support

Our enclosed paper sets out more detail on these issues and others we would welcome the Bill Committee exploring.

Finally, Essex County Council is also concerned at the very short timescales for local authorities and the market to prepare for such fundamental reforms by April 2015, especially when the detailed regulations have still to be published. If the implementation is rushed, the reforms could be inadequately supported and potentially unstable when they are scheduled to ‘go live’ in April 2015. This is in nobody’s interests and we have called on the Government to consider delaying the implementation of the Bill until April 2016.

Essex County Council would welcome any opportunity to meet with the Bill Committee to discuss our concerns.

1) Adequate funding

1.1 Essex County Council (ECC) is concerned that the Government has significantly under-estimated the cost of the reforms. Without adequate funding, the reform of care and support will be unsustainable, unstable and place significant additional financial burdens on already over-stretched council budgets when the reforms are scheduled to be implemented in April 2015.

1.2 ECC has set out in our consultation responses our concern that the draft national minimum eligibility criteria (although being classed as ‘substantial’) is actually a move towards ‘moderate’. ECC has carried out a review of a random sample of cases where people had been assessed as not having eligible needs under the existing threshold of ‘substantial’. Our review suggested that 23% of those people not currently deemed eligible for care may meet the eligibility threshold each year under the new regulations. This pressure is currently unfunded.

1.3 The Government has calculated that the cost of moving to the new national minimum eligibility criteria will be £23 million nationally – based on those operating at ‘critical’ moving to ‘substantial’. The real impact would be the cost of 130 local authorities currently operating at ‘substantial’ facing increased pressures on services as the eligibility criteria effectively lowers the access threshold. Just within Essex, we estimate that the cost of implementing the Care Bill could be in the region of £40 million in year one alone arising from new duties towards carers, the cost of additional assessments, loss of income/client contributions and the new draft eligibility criteria.

1.4 ECC therefore supports the inclusion of an LGA-sponsored clause that seeks certainty on the adequacy of funding. Furthermore, ECC would support independent verification by the Office of Budget Responsibility on an annual basis about the funding requirement for adult social care and support:

1.5 AMENDMENT ONE: FUNDING FOR NEW COSTS ARISING FROM PART 1

To move the following Clause:-

"(1) The Secretary of State must provide local authorities with sufficient funding to enable them to meet new costs arising directly or indirectly to them by virtue of this Part.

(2) The costs mentioned in subsection (1) include (but are not limited to)-

(a) costs of introducing the new measures set out in this Part;

(b) on-going costs of implementing those measures (to be allocated through the annual spending review);

(c) costs identified by the Department of Health to be funded through the Better Care Fund."

1.6 AMENDMENT TWO: PROVIDING ASSURANCE ON FUNDING

To move the following Clause:-

(1) Before any provision of Part 1 is brought into force, the Joint Care and Support Reform Programme Board must have informed the Secretary of State that it is satisfied that sufficient funding is in place or will be put in place to ensure that the provision in question can be implemented satisfactorily.

(2) In subsection (1), the "Joint Care and Support Reform Programme Board" means the board of that name consisting of representatives including the Local Government Association, the Association

(3) That the Office for Budget Responsibility includes an annual assessment of funding requirements for care and support within its annual forecasts on public sector finances

2) The definition of wellbeing (Section 1) and links to the eligibility criteria (Section 13)

2.1 Section 1(2) provides a list of what ‘wellbeing’ may mean in relation to an individual. Essex County Council believes that Section 1(2) should not form part of the primary legislation; rather it should form part of policy guidance on the application of the eligibility criteria (which has still to be finalised)

2.2 ECC believes that Section 1(2) pre-empts the detail of the eligibility criteria, which the Government has indicated will be formally consulted on in May 2014. Section 1(2) could also increase the risk of legal challenge for local authorities as rights under Section 1(2) are judged against eligibility criteria for services.

2.3 ECC therefore supports the deletion of Section 1(2) from the Bill and we believe this is consistent with the conclusions of the Law Commission’s report which stated that while an overarching wellbeing principle would be a positive inclusion, the principle itself should not be prescriptively defined. Any such litigation is likely to be complex and costly to local authorities due to the subjective nature of individual wellbeing in any given social care context.

2.4 The Law Commission stated:

"A primary well-being principle would provide a positive statement about the nature and purpose of adult social care. This principle would operate on two levels. First, when general decisions are being made under the legislation which do not relate directly to an individual (such as when local authorities commission services or set their eligibility criteria), decision makers would be required to ensure that in a broad sense adult social care promotes the well-being of individuals. Second, the principle would also apply when decisions are being made in relation to individuals.

"In both instances, the well-being principle would be worded to operate as a rule which applies to every decision made under the statute. We note that the eligibility decision in relation to an individual person is not a decision for the purposes of the well-being principle, but rather is part of the process of determining the appropriate well-being of the person concerned.

"The term well-being would not be defined precisely in the legislation. No single definition could offer an exhaustive account of what would promote or contribute to a person’s well-being in any given circumstance covered by the statute; the intention is that the individual person and their circumstances should determine the result. In some instances, the well-being of the individual may best be promoted by the provision of a comprehensive care package; in other cases (for example, where the person falls below the local authority eligibility criteria) wellbeing may best be secured through advice, information and signposting to universal services."

3) Carrying out of assessments and / or the review of care and support plans (Sections 9, 10, 27 and 78)

3.1 ECC would welcome clarity from the Committee about whether local authorities could delegate responsibilities around the carrying out of assessments for adults and carers (Sections 9 and 10) and carrying out of reviews of support plans (Section 27) to a third party, and whether it is allowable under the criteria for delegation set under Section 78.

3.3 ECC believes that local authorities may need flexibility in this regard in order to be able to cope with the high level of assessments and reviews that may be required. ECC also believes that the Voluntary and Community Sector has an important role to play in supporting the early intervention and prevention agenda with regard to initial assessments and signposting for further information, advice and support.

4) Deferred payments

4.1 ECC believes there is a need for a national body to oversee and administer the deferred payments schemes.

4.2 We therefore support the addition of a clause that has the support of the LGA and CCN (County Councils Network):

4.3 To move the following Clause:-

"(1) The Secretary of State may make arrangements for any person or body specified in the arrangements to exercise on behalf of local authorities, to such extent as is so specified, any function exercisable by local authorities by virtue of regulations under section 34.

(2) Any arrangements made under subsection (1) shall not prevent local authorities from exercising the function in question themselves.

(3) The Secretary of State may pay to any body or person by whom any function is exercisable by virtue of subsection (1)-

(a) such amounts as he considers appropriate for the purpose of meeting expenditure incurred or to be incurred by that body or person by way of administrative expenses in, or in connection with, the exercise of that function;

(b) such remuneration as he may determine.

(4) Any payment under subsection (3)(a) may be made subject to such terms and conditions as the Secretary of State may determine; and any such conditions may in particular-

(a) require the provision of returns or other information before any such payment is made;

(b) relate to the use of the amount paid or require the repayment in specified circumstances of all or part of the amount paid."

5) The implications on local authorities and on providers of the new cap on care costs (Section 15) and the new duties to set up independent personal budgets and care accounts (Sections 28 and 29)

5.1 ECC seeks clarification from the Bill Committee as to whether the cap on care costs (Section 15) will be applied retrospectively. Will somebody already receiving care be exempt from the cap on care costs?

5.2 The requirement to set up and provide annual statements on independent personal budgets (clause 28) will create an administrative pressure on local authorities. It will also highlight the differential between local authority rates and self-funder rates, which could begin to undermine the business model for many providers. ECC expects that local councils receive full funding under the new burdens doctrine.

5.3 ECC would also like to stress the potential impact on the provider market of Section 28, which states under Section 28 (1) that "an independent personal budget is a statement which specifies what the cost would be to the local authority concerned (see section 24(3)) of meeting the adult’s eligible needs for care and support".

5.4 As a result of our buying power and economies of scale, an ECC residential placement costs 40% less than the private market rate paid by a self-funder. ECC hourly rates for Home Support Services are about 20% less than self-funders.

5.5 The introduction of the cap and obligations on local authorities to broker or arrange services for self-funders will make it impossible to maintain this differential, because local authorities will have to place self-funders on their residential care contracts. While initially this may have a positive impact for self-funders, this is likely to result in a reduction in providers’ turnover which will not be sustainable long term. There could be an increased risk of provider failure and / or upward pressure on market prices for local authorities as providers seek to sustain their business.

5.6 ECC therefore believes a market assessment is required to understand the implications.

6) Provider failure and oversight of the care market (Section 54)

6.1 The Care Quality Commission (CQC) would gain new duties to oversee the care market, monitor the financial sustainability of providers subject to the regulatory regime, and to inform relevant local authorities is a provider is likely to fail.

6.2 Section 54 suggests that the CQC will not monitor all providers but just those that meet the eligibility criteria.

6.3 ECC seeks clarification from the Bill Committee on who holds responsibility for monitoring the sustainability of those providers that are not subject to CQC oversight?

7) Responsibilities of local authorities towards prisoners and those in bail accommodation (Section 75)

7.1 We would welcome the Bill Committee Members exploring several issues in committee:

a) How can the local authority meet the wellbeing criteria under Section 1(2) of the Bill ("wellbeing") for those who are incarcerated?

b) How can local authorities meet eligible unmet need in a setting where we cannot actually implement the provision required?

c) How will portability of assessment work within penal establishments?

January 2014