The Care Bill – Challenges and Opportunities

Surprisingly, Douglas has never been diagnosed with any mental disorder. Nor has he spent any time detained in hospital for treatment for such a disorder.

This is because Douglas is, in fact, a cat.

How does a local authority find itself paying for care, veterinary fees and cattery costs for a significant number of years, as part of a s117 package?

The Care Bill is broadly welcomed by those working in adult social care for its attempt to reformulate a raft of different legislation and regulation under one catch all Act of Parliament. At its heart, the Bill has the overarching principle of the promotion of an individual’s well-being and the emphasis on prevention of needs arising and equipping people to manage their own social care needs.

The Bill does however present significant challenges to local authorities in terms of their manpower, systems and budgets.

Crucially, local authorities will, from November 2015, need to engage actively with “self-funders” and potential self funders (and with their carers) within their area.

Individuals who previously would have organised and paid for their own care, will be able to request assessments from their local authority, ask the authority to make the arrangements to meet their eligible needs in the first instance and require the local authority to keep a “care account” for them, recording their every financial contribution towards their care and measuring their progress towards the “care cap”.  

Clauses 3 and 6 of the Bill require a local authority to ensure integration of care and support with health and health related provision and impose a duty to co-operate with its partners (such as primary medical and dental providers and private registered providers of social housing) in the exercise of its functions.

Clause 34 of the Bill places an obligation on local authorities to offer deferred payment agreements (“DPAs”) to all self funders.

Self funders and their carers will be able to view the local authority as the one stop shop for a holistic and free assessment of their needs (and a regular review of those needs), arrangements for their care and regular updates on their “spend” on those needs.

Local authorities have just a few months in which to identify the self funders (and carers) in their area, consider the financial implications of assessing and then meeting their eligible needs, decide how to arrange proportionate assessments, review the impact on their workforce in terms of capacity and training and overhaul financial and IT systems to cope with the additional workload.

So we return to Douglas, the cat.  Douglas’ owner, “Bob”, had been placed in a care home following discharge from hospital and from s3 of the Act, and Bob’s care was properly funded under s117.  A detailed and proactive annual review of Bob’s s117 package would have identified and addressed the inappropriateness of Douglas’ expenses as part of that package. (Bob had sufficient funds in his own right to fund Douglas’ arrangements).

The overhaul of systems necessitated by the implementation of the Care Bill in relation to adult social care generally might provide opportunity for significant savings if also rolled out to existing areas of responsibility.

The Afework case* established that “ordinary accommodation” does not come within the s117 obligations.  Auditing and review of existing s117 arrangements might produce savings, eg where provision of ordinary accommodation is no longer lawfully required as part of a care package.

Regular reviews would also identify circumstances where, by virtue of an individual being re-detained in another local authority area, your local authority is no longer responsible for their s117 funding under the ordinary residence rules.

With the inevitable expansion in provision of DPAs and loans, a wholesale review of existing deferred payment arrangements would identify instances where loans should now be repaid but have been left outstanding.

Robust record-keeping and financial trails will have to be introduced by every local authority when key aspects of the Care Bill are implemented, as authorities prepare to service the expectations of an estimated 1.5 million self funders nationally.  Might this be an opportunity to review and improve systems within existing social care arrangements, to secure savings, improve efficiency and ensure that rationed public funds are not spent meeting the needs of the likes of Douglas the cat?

*R (Afework) v London Borough of Camden [2013] EWHC 424 (Admin)

Contact Sheree Green – sheree.green@anthonycollins.com, 0121 212 7495.

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