Care Bill [Lords]

Written evidence submitted by Staffordshire County Council (CB 25)

Authors: Ben Odams, Public Affairs Officer

Contributors: Martin Samuels Commissioner for Care, Sara Pitt Principal Accountant 

Staffordshire County Council recognises the Care Bill as the single biggest adjustment of responsibilities and financing for the care system since a national system was introduced in 1948.

We welcome the opportunity to engage through the committee stages to ensure that the bill reflects the current concerns within local government and can succeed in promoting health and wellbeing, resolving the current problems in the care system and complimenting the work of the County Council in establishing a commissioning based approach that promotes independence, choice and control for those in the care system

About Staffordshire

Staffordshire County Council has transformed to become focused on outcomes, using innovation, insight and smarter use of resources, commissioning and procurement to meet future challenges in the public sector. This transformation is outlined in the council’s strategy entitled ‘Achieving Excellence’ which is a single vision to establish a "connected Staffordshire, where everyone has the opportunity to prosper, be healthy and happy". This vision is matched by organisational values and behaviours, which are in turn expressed through three key outcomes:

1. Be able to access more good jobs and feel the benefits of economic growth

2. Be healthier and more independent

3. Feel safer, happier and more supported in and by their community

In meeting these outcomes, the council is committed to challenging organisational assumptions and boundaries. We believe we have to work much more closely with partners, residents and communities to ensure the £7.5billion spent by the public sector in Staffordshire each year is used to maximum effect. We believe that by emphasising partnerships and outcomes we can ensure that each public sector partner focuses on doing and delivering on what they do best, with the whole achieving more than the sum of the parts.

Our vision involves looking at the fundamental role of the council and its partners in people’s lives now, and looking at how that role could develop in future years, when the impact of technology and societal change are considered. For Staffordshire County Council, our strategic strengths in developing an overview and insight of need within the county are matched by our ability to commission the best providers to deliver our outcomes.

Overview of the bill

Staffordshire County Council believes that the bill presents a welcome opportunity to update Social Care but some significant challenges remain. These challenges are not necessarily negatives, but in conjunction with areas of concern below, the challenge will be to ascertain how these could be implemented with a Strategic commissioning system. Our overriding aim is to ensure that the development of a modern Care System doesn’t create an extra burden on the system and doesn’t undermine an approach to commissioning.

We have read with interest the work of the Kings Fund on this, including the recent blog article [1] that covered in detail the different attitudes towards the role of the government and the state. We find that the expectation that ‘the government’ in its broadest sense should provide the care with varying degrees of individual responsibility. However, this should not be the basis of creating an additional burden on local authorities that is prescriptive – the simple logic being that whilst the role of the state should be set in statute it should not undermine local reforms and services that exist.

Furthermore it is critical that the Bill reflects the need to build into the system an expectation of self-reliance, independence and choice. This is crucial to support the change in culture that will be required to ensure that the system can support future developments and demands without creating expectations on the system that cannot be met.

The changes to the eligibility criteria to support the underpinning principles in the Bill therefore must promote independence, and to avoid creating an entitlement culture. We are concerned that the development of new criteria would necessitate a large scale reassessment of needs with current users and could create an excessive demand early on in the transition of the system.

Regulations

The Care Bill will require detailed regulations, guidance and supplementary legislation so that councils can commence their local preparations. However it is essential that local authorities are included in the drafting of thee as well as being able to respond to the consultation on them. We recognise that the LGA is also calling for this and it should be noted that with different local authorities we cannot have a top-down set of regulations that assumes the uniform delivery of services, and isn’t flexible to changes in provision. We favour the maximum level of local discretion and would feel that national regulations and guidance should not be onerous to either compliance or implementation of the reforms.

In particular there is a concern regarding regulations and the statutory duty placed on Health Wellbeing Boars by s195 of the Health & Social Care Act 2012 to encourage greater use of arrangements under s75 of the NHS Act 2006. This is also in line with the philosophy behind the Better Care Fund, which will require a major extension of s75 arrangements in Staffordshire.

The problem is that the regulations need to recognise that contracts and agreements are based around financial years – so the development of regulations needs to reflect those timescales to ensure that enhanced provision as a consequence of the Bill’s passage supports local commissioning cycles.

Clauses:

· The wellbeing principle set out on the face of the Bill. (Clause 1& 2)

Staffordshire County Council, like most local authorities, is already fully engaged in promoting individual health and wellbeing. Indeed the Health & Wellbeing Board’s strategy makes it clear that the prevention, early intervention and community based approaches are key to meeting our outcomes and objectives.

We welcome the current wording of clause 1 in part because it preserves the high level of local discretion needed to meet those general responsibilities.

Additionally Clause 2 does support a commissioning based approach; however the committee may want to be assured that the provisions within the Clause are not undermined by the expectations created by the changes to the eligibility thresholds. The overall balance of the legislation stems from the ability of the local authority to promote individual choice, independence and reliance to delay the need for support. This isn’t about reducing entitlement but ensuring the resources available are utilised to the maximum effect for those who do meet the necessary criteria.

However it may be effective to demonstrate the approaches for provision, including direct delivery, commissioning and mutualisation within clause 2.

· The focus on the importance of integration between health and care. (Clause 3)

Staffordshire County Council welcomes the provisions for a more integrated care system. We value the role of creating an integrated system for supporting both health and care due in part to the longstanding impact of morbidity on the system.

However we are concerned that Clause 3 does not clarify what powers the local authority has to support integration. This could therefore delay the creation of a more integrated local structure which could be further delayed as the NHS pursues its efficiency agenda under the Nicholson challenge.

More widely, the issue of funding is something that needs to be addressed within the Clause. Whilst we anticipate that supplementary legislation and regulations will be central to implementation of the Care Bill, there is a need to establish the various funding mechanisms the government anticipates and expects to be applied in terms in the medium to long term. This should also reflect the expected balance between NHS resources and the LA.

As the King’s Fund and other commentators have suggested the biggest challenge is getting more resources into the system, firstly to balance out the integration between the NHS and Local Authorities but, secondly to address systemic shortfalls present within the current system which will remain through the implementation of the Care Bill. Whilst the Better Care Fund establishes a common pot in the short term, the longer term would need to be addressed.

Broadly we would assume that this would be subject to local partnership arrangements, however Clause 3 is an opportunity to set out an expectation upon local partners to pool resources to facilitate longer term integration.

· Clause 4: A requirement to promote information and guidance, ensuring people have a better understanding of both ‘the system’ in order to plan for their own future, and how to get help when needed.

Whilst Staffordshire County Council’s current approach relates strongly to the provision of information and guidance to promote personal choice and responsibility around care, the Care Bill and the practicalities of its introduction must address the potential risks around the Local Authority providing/promoting financial advice/products, legal advice and insurance which future service users may need.

Acting as a ‘signpost’ for service users could bring its own challenges in the wake of various ‘mis-selling’ scandals that have struck within the UK. This means that there is a need to ensure that the expectation upon local councils to promote health and wellbeing can be fulfilled by empowering people to make provision for their own care in future years, without that signposting making the LA liable.

As it currently stands Clause 4 section 2 (d) does allow the LA to promote access to independent financial advice, however there is need to ensure that the LA is protected from any future legal action if subsequently that financial advice is unsound.

This is logical primarily because the wider revamping of eligibility criteria and approach to assessments means that local areas will need a variety of options to advise and support local people. The best means to do that is to promote a variety of providers. However such a change within the clause should also bar the local authority from receiving any compensatory arrangements to promote particular advice or information.

· Clause 9 – 12 Assessment: Overall we believe that Clause 12 needs an additional sub-section to facilitate the ability of local authorities to seek partners to contract out or mutualise their assessment functions. This approach has been undertaken by SCC through our Families First programme and we have worked closely with government (specifically DfE) to get such innovation supported through the Children and Families Bill.

Being able to use such a mechanism, will not reduce the LA’s responsibility but facilitate the development of services and approaches locally – as we have stated, the Care Bill must support local discretion to support the best outcomes for care users and this change would be welcomed.

Additionally the provisions with Clauses 28 – 29 have the potential to increase the expected number of ‘speculative’ assessments required by current self-funders who may believe that their prior expenditure counts towards a cap and therefore a presumed expectation of the local authority footing the bill. We believe that either through regulation or clarification, it should be clarified the circumstances under which current service users can be reassessed.

· Clauses 28/29 regarding Individual Personal Budgets and Care Accounts, the role of top-fees and the differential impact on self- funders, Council funded and ‘top-up’ funders.

Overall we welcome the provisions for Individual Personal Budgets and Care Accounts. However we do have some concerns; firstly in a renewed tension between self-funders and local authority funders in terms of the ‘usual cost’ approach which will place more reliance upon ‘top-up’ fees.

This matter has been detailed by Independent Age in their report ‘Short Changed: The Care Bill, top-ups and the emerging crisis in residential care funding’. Although strikingly titled, the report does highlight the disparity between the impact on different service users and we would urge the committee to look into this report.

More widely the difference between the market rate and the local authority rate for care needs to be clarified through the bill and subsequent regulations. The current ability of the LA to limit the costs of care through their own defined rate will be challenged through the development of the care bill and the potential increase in pressure to pay a market rate.

· Deferred Payment Scheme Clause 35

Furthermore, we have serious concerns about the operation of the ‘Universal Deferred Payment’ scheme. Whilst the principle is sound, it presents a challenge for local authorities around the following:

o Cash flow – if deferred payments schemes are used this, in conjunction with a general reduction in charge income, could present a challenge for Local Authorities in terms of covering the cost of care,

o Property valuation and maintenance – whilst the scheme would provide assurance for service users, the methodology and mechanics of valuing the property as part of the assessment process, plus the requirements for maintaining the property will be problematic.

o Variance in valuation – the largest problems concerns how the deferred scheme would accommodate the variation in property values, either in the sense of the property value increasing and how this is reflected in the settling of the deferred payment and secondly how any decline in property values would be resolved.

o Market rates for residential care – as an extension to our comments for Clauses 28/29 there is a concern around the differential for market rates for care versus the current spend by LA’s. This could affect a lot of the calculations for deferred payment and could lead to challenge on the process.

January 2014