A year after it was introduced, public law specialists at Irwin Mitchell have said that budget cuts and a lack of compliance from local authorities are making The Care Act less effective than hoped.
When it was brought in last April, the Care Act 2014 was billed as the biggest change to adult social care for more than 20 years, which aimed to give disabled adults and their carers a greater understanding of their rights.
The new legislation consolidated all existing laws relating to adult social care and introduced new duties, aimed at providing better support for disabled adults and carers. The key changes included:
- New rights for carers – for the first time, carers of disabled adults were given equal rights in law to those they care for. Carers are now entitled to an assessment of their needs based purely upon the ‘appearance’ of need. If “eligible” needs are identified by reference to new national eligibility criteria, councils have a legal duty to meet those needs and provide support to the carer. A support plan and personal budget should be provided, depending on any financial contribution that may be required from the carer.
- The introduction of a wellbeing principle and other key duties – these duties underpin any decision made by a local authority and require councils to promote a person’s wellbeing in any decision being made about their care and support. Councils are also required to promote the effective operation of a marketplace in care services in their local area, and to ensure that there is consideration of how the needs of disabled adults and their carers can be reduced or delayed, rather than simply meeting current eligible needs.
- The introduction of the national eligibility criteria – this criteria replaced the previous eligibility system where eligibility could vary from council to council. Under the Care Act, if a person has a care assessment and their needs meet the new eligibility criteria, regardless of where they live then their needs should be met and a care and support plan should be produced.
But Caroline Barrett from Irwin Mitchell’s Public Law team, who specialises in representing disabled people and their loved ones in relation to health and social care issues, said that it is still unclear whether the Care Act has succeeded in offering better support to the most vulnerable members of society and those looking after them.
Research carried out by the law firm six months after the Act passed found that out of those surveyed, 92% of people involved in social work said the Care Act was a good piece of legislation. However there was also an overwhelming number of people who cited a lack of funding as their single biggest concern about social care.
The survey also worryingly revealed that over half of social care workers surveyed (54%) admitted they were not aware of new rights brought in by the Care Act.
Recent research by the Care and Support Alliance (CSA), which represents more than 75 charities, warned cuts are reducing local authorities’ ability to meet their statutory duties.
Their analysis of savings plans from 15 councils revealed proposals to cut staff, freeze recruitment and reduce assessments in 2016-17, leaving a potential for them to fall foul of the new Act’s requirements.
“Local authorities are severely cash-strapped and over the last year we have seen evidence in our cases that many of them are not promoting a marketplace in care services by commissioning enough providers.
“We suspect this is mainly due to financial constraints. There has not yet been a case go through the courts looking at the extent of local authorities’ duties in this area, but this would help provide clarity on what local authorities are required to do in these difficult financial times,” said Caroline Barrett.
“Massive budgetary cuts are possibly the biggest obstacle hampering the Act’s success. This year many local authorities have made cuts to the funding for adult social care so the question is, how can the Care Act duties be enforced when there may not be enough money in the system?
“The duties of local authorities under the Care Act are not optional and they must comply with them but with cuts to the amount of provision on offer in many areas, councils could run the risk of being challenged in the courts.
“We are particularly concerned that despite the strong wording in the Act, insufficient focus is being placed upon the wellbeing of disabled adults and their carers. We are yet to see a case go through the courts which examines the extent of this duty, or how much reliance can be placed upon it in obtaining better and more person centred care, but such a case would help to clarify the law in this area.”
“Financial changes such as the cap on care costs are now not coming in until 2020 but in the meantime, we have also seen concerns being raised about the impact of the Care Act charging regulations which allow higher rate Disability Living Allowance (care component) to be taken into account by local authorities. This appears to be having an impact upon severely disabled people, who may now have to pay more towards their care. It would be very disappointing if the Care Act had the outcome of making severely disabled people worse off than before.
“The good news is that since the Care Act came into force a year ago, we have seen positive feedback from carers which indicates they are enjoying better access to more assessments and support. So while there is more work to be done to ensure the Act lives up to its full potential, it shows a step in the right direction.”
More information on the Care Act 2014 can be found online here