Making the Care Act work

There is wide agreement on two points. The first is the Care Act is the right legislation to create a system responsive to individual need to deliver wellbeing and control. The second is that it isn’t working.

The question is why.

The easy target is to blame funding levels and austerity. But that doesn’t stack up.

• The Institute for Fiscal Studies points out that since the Act came into being, real terms spending on working age people has increased by 20.1% against a population increase of just 5%, and by 12% on older people against a population increase of 11.8%.

• The £29.3BN gross spend in 2024/25 is virtually the same real terms as the £18.8BN in 2009/10. 

• There is a post code lottery of huge proportions. The top spending 10% of councils spend nearly double per service user than the lowest. But there is no suggestion the top spending councils are any nearer delivering the Care Act.

Sufficiency of funding is, of course, essential for lives to be as they should be. However, not only is the level of funding not the reason for the failure to implement the Care Act, until the Care Act is properly implemented there is no prospect of there ever being sufficiency of funding. The following sets out why.

What the Care Act says

The Care Act sets out what should be a three stage process.

• The first stage is to identify all needs that impact on any of nine areas of wellbeing – this is section 9 of the Act. There is broad agreement that the nine areas are comprehensive. They address all areas that make life worth living.

• The second stage is to identify which of them are a legal duty to meet. These must be met regardless of the cost. This is section 18. 

• The third stage is to make decisions about all the needs that did not fall under section 18. These needs can be met under a statutory power to do so. This is section 19. The Act then says that support plans consist of the needs the council must meet and all those it has decided to meet under the statutory power to do so.

But this is not what councils do. Instead, they collapse the three stages into one. The government's guidance to the Care Act correctly describes the legal duty to meet need as no more than a ‘minimum’. But councils regard them as the total offer. The statutory power to meet need is ignored as if it does not exist. The only needs assessed are those that are a legal duty. This is the essence of the eligibility process. 

It is the way it has always been, since long before the Care Act. Mixed and contradictory messages in the guidance to the Act lead councils down this path.

It is also unhelpful that in drafting the Act the Law Commission continued to use the language that had been used for before the Act by giving needs that are a legal duty to meet the label of 'eligible'. It is an incorrect use of the word as it carries the unintended implication that needs under the statutory power are somehow ineligible and therefore unworthy of public funding. This is clearly not what the Act intended as it says support plans consist of both categories of need.

What this means for the people who rely on social care

Making all assessed needs a legal duty sounds like a very good deal for people. It most certainly would be if councils could do what the government guidance to the Act says they should do. This is to set budgets big enough to meet all needs. But this is a nonsense. They cannot and do not. The idea that social care can be budgeted in this way is a myth.

This means that councils' front line must shrink ‘eligibility’ to whatever the local budget happens to allow.

The formal eligibility policy, of course, says otherwise. It says eligibility is determined in a fair and transparent way. But this is a complete sham.

Under the eligibility process a need is only a need if there is resource to meet it. The system behaves as if everything else has no value or simply doesn’t even exist. Councils use the following strategies to deny the existence of need.

• they are required to meet only needs, so they may say something is nothing more than a mere wish, want or preference regardless of its importance to the person’s wellbeing.

• they say it is the responsibility of informal carers, regardless of whether it is right, proper or safe or how much strain it puts on the carers.

• they may say it’s for universal services to address, whether or not they exist or have the capacity to do so.

  
  

The process requires the professional to have full control of decisions. Policy rhetoric about giving the person control is no more than rhetoric. Only the small minority who have what it takes to self direct with a direct payment are able to consistently impose their view of their needs on their council. Even this group is under increasing threat.

Essentially the only measure of unmet demand comes from waiting lists for a Care Act assessment. Once a person has had their assessment or review, as far the system is concerned, all needs are met. 

So why persist with this policy?

For political leaders, it works perfectly. Spending is always to whatever budget they set. In the last six years, the aggregate net spend of £106BN of all councils about 1% from the £104.9BN in budgets. And just as valuable for political leaders, Directors report that not a single need that meets the eligibility test - which basically means a need is worthy of public funding - is left unmet. However loud the noises off stage about unmet need, they can be safely ignored.

Directors can also say the policy works for them. Spending on social care has been largely protected through the austerity years. Directors have been able to use the threat of legal to maintain spending levels. 

But the cost is enormous:

• It keeps the system trapped at historic funding levels leaving huge swathes of needs unmet or undermet

• By councils through their professionals taking absolute control of the way each person's needs are identified and support planned, it is a profoundly institutionalising service that does not know how to use its resources to make lives the best they can be.