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The care act and eligibility
– uncovering the truth of Government’s plans

Colin Slasberg gives his analysis of the reality of the Care Act’s changes to eligibility in light of the Government’s draft guidance.

In May’s issue of CMM, Jamie Balbes introduced the new Care Act. The article correctly pointed out that, potentially, one of the most significant changes is that the Act opens up the possibility of needs assessments becoming holistic, meaning they identify the whole of a person’s needs calling for public funding, notwithstanding affordability. This has the potential to be a game-changer. It would expose the funding gap between needs and the resources to meet them. This would have a major impact on the politics of social care funding. However, since Jamie’s article the Government has published its draft guidance in relation to the Act. This makes it clear the Government has no intention of going down this route, and will seek to make sure there is no change to the core processes in the way needs are assessed and funded. This article explains this view.

The economic realities of social care

Social care needs, properly understood, come in highly variable and unpredictable shapes and sizes that are unique to the individual. They arise from the complex interplay of many factors: the nature and severity of the person’s impairment; how long they have lived with it; the personal resources and attitudes they bring to it; the attitudes and resources of people in their personal network; their physical living environment; their physical community space; the attitudes and resources of their local community; and the attitude and resources of universal services. Just as needs are unique, so is the cost of meeting them. The guidance recognises this when it says that needs are ‘different and personal’ for each person.

However, social care is delivered within a cash-limited budget. Rule number one for councils is they cannot overspend. With demand so unpredictable, how can the service decide which needs will be funded and which will not whilst also being fair and equitable?

Fair Access to Care Services

The prevailing approach is based on the idea of dividing needs into groups, predicting the costs of meeting each group, and then deciding how many of the groups there are in the resource to meet. This becomes the ‘eligibility threshold’. Needs in the groups above it are called ‘eligible’ and will be met. Fair Access to Care Services (FACS) has four groups, or bands, of needs – ‘critical’, ‘substantial’, ‘moderate’ and ‘low’.

Against its declared objectives, the strategy has proved little short of disastrous. A thorough review by the former Commission for Social Care Inspection (CSCI) in 2008 found that FACS has led to practices that were ‘standardised’, ‘service-led’ and based on ‘deficits’. This is the antithesis of the practices which FACS claimed it supported and characterises what we would not describe as the vision of a personalised system. No less concerning, work by the Audit Commission for the review found that different eligibility thresholds actually made no difference to spending levels. The bands were effectively meaningless. With the FACS bands meaningless, the strategy is not capable of delivering consistency or equity.

Why has FACS failed so badly?

The notion of precisely matching spend to budget by grouping needs is, of course, mathematically impossible given the huge variability of the costs of social care needs. This is addressed in two ways. The first is to blunt the uniqueness of needs by standardising them. Assessment processes are used that categorise and score needs. Secondly, the FACS bands are defined in a way that allows the widest possible interpretation. This is achieved by distinguishing the bands by use of highly elastic concepts such as ‘significant’ and ‘vital’. Councils interpret them as they see fit. The evidence makes clear that resource availability is the dominant factor. The highest spending council spends twice the amount per head as the lowest spending council with the same threshold. Working age people have three times more spent on them than older people, with a much greater range of needs met, yet have the same threshold. In effect, a circular process is created whereby ‘need’ is defined by resource availability.

Response to CSCI’s findings

The Government acknowledged the CSCI’s work and reviewed FACS in 2010. However, no substantive changes were made. This was in the light of an expectation that Resource Allocation Systems would change the landscape by allocating any given council budget to individuals in a fair and transparent way through ‘up-front’ allocations. We now know that promise has failed to materialise. The Care Act is clear that resources cannot be allocated ‘up-front’. Although ‘personal budgets’ are introduced, they are defined as no more than the actual and precise cost of meeting needs the council has decided it will meet. A notional ‘up-front’ figure plays no part in that decision.

This means we are back to square one.

The Government’s plans

The plan is to replace FACS with a National Minimum Guarantee (NMG). However, this is simply a rose by another name. It is built on the same principles as FACS. The Government says the NMG will be the equivalent of the current FACS bands, ‘critical’ and ‘substantial’. The notion that spend can be controlled by grouping needs and precisely predicting the cost of meeting them is retained. It is expected the NMG will form the core business of publicly-funded social care. While councils will have the power to meet needs beyond the NMG, the guidance is clear that it will be optional and of no concern to central Government, certainly not in the terms of providing funding to meet such needs. Finally, needs will meet the NMG if they have a ‘significant impact’ on the person’s wellbeing. It is for councils to decide when the impact is ‘significant’. It is a recipe for no change.

Why has the Government acted in this way?

It seems perverse that the Government should be persisting with essentially the same strategy. It claims to want an approach to eligibility that supports personalisation whilst removing the ‘postcode lottery’, which it ascribes to councils being able to decide their own threshold. This completely ignores the lessons from 2008. Is this a matter of incompetence, or is it wilful? It may well be the latter.

Whilst from the perspective of the service, the strategy of allowing councils to define ‘need’ by availability of resource has been disastrous. From the perspective of political leaders, it has had four major, albeit undeclared, benefits:

  • It has helped to ensure spending has more or less remained within budget, no matter how small or diminishing the budget.
  • At the same time, it has allowed political leaders to claim that ‘eligible needs’ are always met.
  • It has given an appearance of equity within a national framework, albeit entirely spurious.
  • It has allowed political leaders to say they do not recognise there is a funding gap as there is no record of any unmet need. Needs that will not be funded are not recognised. This claim was made by the then Minister of State for Care Services, Paul Burstow MP, when pressed on the funding gap by the Health Select Committee in 2011.

Social care is a major financial risk. It is not known how great the funding gap is but estimates between £5 billion and £10 billion are enough to make political leaders not want to know. The guidance to the Care Act is full of appeals to practitioners to be person-centred and empowering in their practice. Yet at the same time, it is encouraging the perpetuation of a system that makes such practice impossible.

Does it have to be this way?

As Jamie Balbes pointed out, it doesn’t have to be this way. The Act’s distinction between the needs a council has a duty to meet and those it has a power to meet is key. Not meeting a need in the latter group because it is unaffordable removes the fear of legal challenge if an assessed need is not met. However, it does not remove the political risk of exposing the funding gap. Indeed, it looks it square in the face.

This need not – indeed, should not – be the end of the story. Councils who authentically put service users first can negotiate their way around the guidance and refer directly to the primary legislation in setting out their policies and practices. Service users, their advocates and allies can also refer directly to the primary legislation and, through legal precedent, use the Care Act to establish a right to a holistic and costed assessment of needs. How else can a council decide which needs, over and above the floor set by the NMG, it can afford to meet and which it cannot? This will create pressure on the system to address the funding gap in both the short and long term.

If the guidance has been crafted in full knowledge of its implications, it points to a level of cynicism and indifference to the service and the people who rely on it that will make the fight to create a system that is truly person-centred a tough one. However, the Act has created a legal context that makes the fight winnable. It is likely it will happen despite, not because of, Government intentions.

For more information on the Government’s draft regulations visit: http://careandsupportregs.dh.gov.uk/ 

Colin Slasberg is an independent consultant in social care. Email: colin.slasberg@gmail.com

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