
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 £28.4BN gross spend in 2022/23 was virtually the same in real terms as the £18.8BN spend in 2009/10, the year many commentators say should be the benchmark for funding levels.
· Our dossier, Social Care Exposed, will reveal that the top spending 10% of councils spend nearly double per service user than the lowest. But there is no suggestion these councils are any nearer delivering the Care Act than any of the others.
Funding levels are not to blame. The problem is policy.
The Care Act is clear there is a three stage process for assessing needs for on-going support that require public funding.
· The first is to identify all needs that impact on any of nine domains of wellbeing – this is section 9 of the Act
· The second is to identify those that are a legal duty to meet. These must be met regardless of the cost. This is section 18
· The third is to make decisions about the needs that do not fall under section 18. These needs are met under a statutory power to do so. This is section 19. Crucially, the council can take their resources into account when making these decisions.
But this is not what councils do. Instead, they collapse the three stages into one. The Statutory Guidance describes the legal duty to meet need as no more than a ‘minimum’. But councils regard them as the total offer. With the statutory power ignored, the only needs assessed as requiring public funding are those that are a legal duty. This is the essence of the eligibility policy.
What this means for the people who rely on social care
Making all assessed needs a legal duty sounds like a very good deal. It most certainly would be if councils could set budgets to meet all needs for wellbeing. But they can’t, and they don’t.
So ‘eligibility’ must expand and contract to whatever the local budget happens to be. Accordingly crises expand and contract to the local budget.
Formal policy says otherwise. It says eligibility is determined in a fair and transparent way. We have set out elsewhere why this a complete sham.
Under the eligibility policy 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 are obliged to meet only needs, so they may say something is nothing more than a mere wish, want or preference however important it is to the person’s wellbeing
· it might be dismissed as the responsibility of informal carers, regardless whether it is right, proper or safe.
· they may say it’s for universal services to address, whether or not they exist or have the capacity to do so.
So why persist with this policy?
For political leaders, it works perfectly. Spending is always to whatever budget they set. In the last five years, the aggregate spend of £84.9BN was less than 1% from the £84.1BN budgets. And just as valuable for them, Directors are able to report that not a single need that meets the eligibility criteria - the test of whether a need is worthy of public funding - is left unmet. However loud the noises off stage about unmet need, they can be safely ignored.
And Directors can say the policy works for them. The standstill budget can be claimed a success. As council budgets have gone down, the proportion spent on social care has gone up. Spending on social care has been largely protected through the austerity years. The threat of legal jeopardy stemming from all needs being a legal duty to meet has been used by Directors to maintain spending levels.
What would full and proper application of the Care Act mean?
It would be utterly transformational.
· The political-professional dynamic would replicate the NHS. The professional role would be to identify need, the political role to make available the resource to meet need.
· Unmet need in social care would play the same role as waiting lists in the NHS.
· It will no longer be the job of professionals to make need fit the budget, however wrong the budget is. Politicians will no longer be able to hide behind the professionals
· Social workers at the individual level, and Directors at the strategic level, would become authentic and legitimated advocates for older and disabled people in need of care and support
· The known waste of resources arising from assessments rooted in risk and deficits required to deliver the eligibility policy will be replaced with a system that knows how to make best use of resources from assessments rooted in strengths and aspiration.
· The current negative, oblique public narrative about social care would be replaced with a positive and vibrant narrative about wellbeing and contribution. The current depiction in the media of social care as being about eating, dressing and toileting would be like depicting the NHS as the place that cuts you open.
· Providers would cease to be given task and volume contracts designed to meet the greatest number of needs that roll off the eligibility conveyor belt for the least cost. They will need outcome based contracts to support them to work with the flexibility required to be responsive to the individuals they serve.
· The post code lottery could be ended as the scale of unmet need would become public knowledge not just nationally, but between councils.
What would it take?
All it would take is political and professional integrity and courage.
Just as the NHS was launched on the principle of need before resource without a single new nurse, doctor or hospital, so can a social care service without a single penny for more services.
Practically, it would start with a complete re-write of the Statutory Guidance to the Act. The legal duty to meet need would become an authentic minimum, a safety net. The majority of needs, the ones that make life worth living, would come under the statutory power. The responsibility to determine its extent would reside where it belongs.
Why not make the change?
That’s the debate we should be having.