Care Bill [Lords]

Written evidence submitted by Buckinghamshire County Council (CB 35)

Summary of Buckinghamshire County Council’s Written Evidence

This submission will focus exclusively on Mental Health after-care services which are dealt with under clause 74 of the Care Bill.

Mental Health after-care services are provided under section 117 of the Mental Health Act 1983 to meet a need arising from or relating to the mental disorder of the person concerned.

The Care Bill does not provide clarity around what a "joint" responsibility between health and social care means in respect of section 117 funding arrangements. Section 117 of the Mental Health Act 1983 imposes an enforceable joint duty on health and social services authorities to provide after-care services for certain categories of mentally disordered patients who have ceased to be detained and leave hospital. There are many different interpretations across the country of what a joint responsibility between health and social care means, resulting in very different funding impacts for CCGs (Clinical Commissioning Groups) and Local Authorities. The Care Bill could and should be used as an opportunity to address this issue once and for all to provide clarity, consistency and to avoid disputes.

House of Commons Public Bill Committee: Care Bill

Buckinghamshire’s Written Evidence

1. This submission will focus on Clause 74 of the Care Bill

The Care Bill does not provide clarity around what a ‘joint’ responsibility between health and social care means in respect of Section 117 funding arrangements

2. Section 117 of the Mental Health Act 1983 imposes an enforceable joint duty on health and social services authorities to provide after-care services for certain categories of mentally disordered patients who have ceased to be detained and leave hospital. This is a stand-alone duty and is not a gateway provision which places a duty on the responsible after-care bodies to provide services under other legislation such as the National Assistance Act 1948 or the National Health Service 2006. A consequence of this is that the normal rules about commissioning responsibility (in the NHS) or ordinary residence (for social services) do not apply.

3. Social services and health bodies should establish jointly agreed policies on providing services under section 117 (see HSC 000/003:LAC(2000)3).Also functions under section 117 are prescribed NHS functions which may be the subject of partnership arrangements with local authorities under section 75 of the National Health Service Act 2006.

The current lack of clarity about joint responsibility has led to many different "interpretations" with consequent funding impacts on CCGs and Local Authorities.

4. There are many different interpretations of joint responsibility in respect of section 117 funding arrangements across the country that result in very different funding impacts for CCGs and Local Authorities. Buckinghamshire has carried out a review of what is taking place in other areas which includes the following funding arrangement possibilities for eligible s.117 clients:-

1. Free Nursing Care entitlement is the extent of CCG funding and the Local Authority picks up the rest

2. Local agreement to share the costs on a 50/50 basis which reflects

the joint nature of the legal duty.

3. Use of the Decision Support tool and Continuing Care Domains to

indicate the responsible body for s.117 after-care. So where a client

meets the threshold for health funding, then the CCG is the

responsible funding body for s.117 after-care. In all other cases the

Local Authority is the responsible funding body.

4. Use of financial thresholds. So anything over x is funded by Health

and anything below is social care and other versions of this.

5. Funding arrangements based on the individual lines in a care plan

and an assessment around whether they are health or social care

needs.

There are significant financial impacts and financial risks for both health and social care as a result of different interpretations of section 117 leading to a range of funding arrangements.

5. The table below effectively demonstrates the impact of these differential payments we have taken a illustrative but representative figure of £9,000,000 spend on Mental Health After Care. The figures illustrate that if a joint 50/50 split between partner organisations is not adopted on an indicative spend of £9,000,000 at the top end of the inequity of split (80/20) one partner organisation is providing £2.7 million of funding over and above that of a joint split and contributing £5.4 million more that its "partner".

Section 117 Differential funding contributions and their impact on the contributions of partner organisations working "jointly".

Range of % splits

e.g. LA

e.g. CCG

Total Spend on Mental

Health After Care

50/50

£4,500,000

£4,500,000

£9,000,000

60/40

£5,400,000

£3,600,000

70/30

£6,300,000

£2,700,000

80/20

£7,200,000

£1,800,000

The lack of clarity about ‘joint’ responsibility between health and social care in respect of Section 117 funding arrangements can lead to disputes arising between partner agencies.

6 . Health Service Circular HSC 2000/003 and Local Authority Circular LAC 2000(3) states that:

‘Social services and health authorities should establish jointly agreed local policies on providing Section 117 Mental Health Act after-care. Policies should set out clearly the criteria for deciding which services fall under Section 117 Mental Health Act and which authorities should finance them. The Section 117 Mental Health Act Aftercare plan should indicate which service is provided as part of the plan. After-care provision under Section 117 Mental Health Act does not have to continue indefinitely. It is for the responsible health and social services authorities to decide in each case when after-care provided under Section 117 Mental Health Act should end, taking account of the patient's needs at the time. It is for the authority responsible for providing particular services to take the lead in deciding when those services are no longer required. The patient, his/her carers, and other agencies should always be consulted’

7 There are a number of local authorities which, are in dispute with their local area CCG (and before this PCT) around responsibility for the provision of after-care services as a result of the lack of clarity around what ‘joint’ means in terms of funding arrangements for s117 after-care packages between the CCG’s and the Local Authority.

8. Where disputes cannot be resolved between the "joint" partnership the local authority may have to resort to a court judgement with the associated legal costs which the Local Authority and its ratepayers will have to fund , an additional cost to establish clarity and equity of funding with no benefit to either rate payers or service users .

9. A whole systems approach to providing care and support and ensuring people s health and well - being and preventing them from losing their independence requires a number of elements . These include an understanding of the needs and assets of the local population , agreed shared priorities and that the partners take a rounded , whole system view of value for money , in which investment and benefit is transparent and fairly balanced between partners. The current lack of defined joint approach to funding mental health aftercare makes a whole systems approach and integrated working between Health and Social Care much more problematic.

Impact on service users

10. If joint responsibility does not mean a joint approach to funding this can produce significant and direct inequity for residents and more specifically services users. In our example an 80/20 spread would result in the local authority partner spending an additional £5.7 million from its limited envelope of financial resources. This impacts directly on budgets and would lead to a reduction of service spending either in adult social care and /or the local authority as a whole.

Parliamentary Scrutiny of the Care Bill

11. On Thursday 23rd January the Public Bill Committee were scrutinising clause 74 of the Care Bill and specifically considering the definition of aftercare. During the debate the minister of state for the department of health cited another member of the committee who had said that "legislation can sometimes provide clarity, as long as the words used are clear" he also stressed the importance of using targeted definitions. We feel that "jointly" and its relationship with funding is too important an area to remain unclear and ill defined.

Conclusion

12. There is an opportunity with the passage of the care bill through parliament to seek an amendment to the Bill to clarify the position in law. We believe that the Care Bill provides the best possible opportunity to address this issue once and for all and provide the clarity around what we consider to be an opaque piece of legislation, namely Section 117 of the Mental Health Act 1983. If the Care Bill can be amended to clarify the position in law this would provide a clear determination of what "joint" means in terms of funding arrangements for Mental Health after care services. The impact would be to provide clarity, consistency and avoid disputes. A key consideration would be to ensure that the service user is at the heart of everything we do and to avoid any actions and activities with a negative impact for service users and our residents.

Buckinghamshire County Council

10. Buckinghamshire County Council is a local authority whose responsibilities include Adults and Family Wellbeing. Buckinghamshire’s population is approximately 505,300 people (census 2011)

· 84,000 people (16.7%) of the population is currently aged over 65. By 2025 this number will increase by 36% people are aged 65+

· 11,000 people (2.2%) of the Buckinghamshire population is currently aged 85+. This number is expected to increase by 84% by 2025.

· During 2012/13 we supported 12859 people to live in their own homes.

· During 2012/13 we supported 2,298 people living in residential or nursing homes

· Approximately 1 in 12 (42,108) people in the population have some form of Mental Illness.

11. We have a strong focus on Preventative work, our Prevention Matters programme focuses on people who are on the cusp of needing social care or who are at risk of needing more intense health or social care and support. During 2012/13 we are investing £4.14 million in Prevention Matters.

12. Our Day opportunities programme has meant that a significant proportion of our day service users are able to spend their days using services provided in the communities rather than staying in a day centre . This has enabled people to access a wide range of activities.

13. We have recently successfully set established a Local Authority Trading Company that operates independently from, but is completely owned by the council. This means that people can buy council run services with Direct Payments if they choose having greater control on the services they purchase and how they are delivered.

14. We fully recognise, and value the important role that our many partners across the districts, other statutory and voluntary and community members have in ensuring the success of our Health and Wellbeing priorities. By working together with Health partners we can share resources effectively and influence decisions to make sure our residents and vulnerable adults receive the best care possible and in a joined up way.

Source documents

Health Service Circular HSC 2000/003

Local Authority Circular LAC 2000(3)

February 2014

Prepared 5th February 2014