DISABILITY RIGHTS UK
RESPONSE TO CONSULTATION ON CARE ACT 2014 PART 1 DRAFT GUIDANCE AND REGULATIONS
About Disability Rights UK
We are led, run and controlled by disabled people and work to create a society where everyone with lived experience of disability or health conditions can participate equally as full citizens. We provide a range of information and advice services for disabled people including independent living.
Contact Sue Bott, Director of Policy and Development
07725 511 562
The Approach to our Response
We are grateful for the many opportunities we have had to contribute to the drafting of the guidance and regulations. We have participated in a number of the Department of Health’s groups in particular the Personalisation Reference Group. As members of the Care and Support Alliance we have had the opportunity to take part in consultation meetings with DH officials. We have also been active in Think Local Act Personal and attended a full day consultation event again with DH officials present.
We have been appreciative of the willingness of DH officials to consider our concerns and make alterations where agreement can be reached with all stakeholders. We should like to take this opportunity to thank DH officials for their work and their willingness to listen.
As a result of our extensive engagement to date we do not intend to give a detailed response to the entire consultation document. Instead we intend to confine our response to some general remarks about the principles and implantation of the Act and highlight some concerns that remain.
Our response should be read in conjunction with the response from the Care and Support Alliance which we endorse.
The Care Act Overall
Of course the Care Act does not contain everything we would ideally wish to see, for example there is no explicit right to independent living, and the eligibility criteria are a major concern. Nevertheless we believe the principle of choice in how support needs are met which underpins much of the guidance and regulations is welcome. We are also particularly pleased that for the first time people receiving social care support will be able to move from one area to another.
The real challenge will come in implementing the legislation both in terms of the resources available to local authorities and in terms of the cultural changes needed to make choice and control of how support needs are met a reality. In this respect it is disappointing that the co-productive approach adopted in relation to drawing up the guidelines and regulations has not, so far, been adopted in the programme of implementation headed up by the DH and the Local Government Association.
The Transfer of the Independent Living Fund to Local Authorities
The ILF will be closed in June 2015 and the monies transferred to local authorities. From this point the care packages of recipients of the ILF will be the responsibility of local authorities and presumably subject to the guidance and regulations of the Care Act. It would therefore be helpful for the guidance to address how the transfer should be dealt with by local authorities and to give clarity to how transitional arrangements should be handled. Indeed in research of English local authorities conducted by Disability Rights UK some local authorities stated that they were waiting for guidance from national government before deciding on what their arrangements would be.[i]
Comments on Specific Areas of the Guidance and Regulations
As stated above, we endorse the responses that have been compiled by the Care and Support Alliance on each chapter. Therefore, to avoid repetition, we have decided to only highlight points that may not have been adequately covered elsewhere or in response to comments that have already been made on the consultation website.
Wellbeing
We strongly support the wellbeing principle and its definition outlined in the guidance. We are also pleased to see the links to the tenets of independent living and to the United Nations Convention on the Rights of People with Disabilities. We do not underestimate how difficult it will be to promote the wellbeing principle in practice given the substantial cultural shift that will need to take place. We would take issue with paragraph 1.16 which states ‘Neither these principles, nor the requirement to promote wellbeing, require local authorities to undertake any particular action.’ We would suggest that actually local authorities will need to consider what training to put in place to ensure their staff are equipped to implement the wellbeing principle.
Market Shaping and Commissioning of Adult Care and Support
The emphasis throughout this guidance on the need to involve and to co-produce with the user of care and support services is welcome and we would not want to see any watering down of the guidance in this respect. Three issues we would like to highlight: -
We would like to see paragraph 4.35 strengthened to ensure that where local authorities set up lists and frameworks they also have consideration for diversity issues so that people can choose services that meet their cultural needs.
We should like to see more emphasis on monitoring contracted services. Although there is reference to consumer feedback there needs to be a specific system in place to ensure a joining up of consumer experience for example joining up individual complaints to social workers about particular services with results from feedback exercises.
Under paragraph 4.58 regarding engagement with people needing care and support services we think that local authorities should also take note of long-term relationships that have been built up in the community. For example when a direct payment support service is contracted to a new provider this can have an adverse impact on service users who find themselves having to build new relationships with people who may not even be local to them thus putting the sustainability of their direct payment arrangements at risk.
Charging and Financial Assessment
The last principle of the charging framework ‘be sustainable for local authorities in the long-term’ of course contradicts most of the other principles particularly the principle ‘Ensure that people are not charged more than it is reasonably practical for them to pay.’. We would question the appropriateness of including the sustainability principle in this list given that sustainability is as much dependent on resource decisions from central government as it is on individual local authorities. The pressure on local authorities to increase charges is enormous given the lack of resources for social care.
On paragraph 8.13 regarding financial assessments we should like to see added that the local authority must provide the financial assessment in a form that is accessible to the user of services.
On paragraph 8.38 on disability related costs we would like to see a statement that local authorities should take into account all disability related costs and not rely on a tick box approach.
Care and Support Planning
In response to the discussion during the consultation period we think a flexible approach should be adopted to support plans rather than specific templates although we accept that there are key areas that all support plans should cover. This would allow people to express their care and support needs and aspirations in a way that most makes sense to them and their families.
Direct Payments
Our comments are made against the background that since the Community Care (Direct Payments) Act 1996 it has been extraordinarily difficult to persuade local authorities to give people the option of direct payments. We therefore want guidance and regulations in this area to be encouraging and avoiding negativity.
Paragraph 12.10 regarding promoting direct payments. In our view the sentence ‘Local authorities must not force people to take a direct payment against their will. . .’ Should be omitted. It is difficult to see how a direct payment could be forced on someone. What is more likely to happen is that the support for managing the direct payment is inadequate. The rest of the sentence ‘allow people to be placed in the situation where a direct payment is the only way to receive personalised care and support.’ Is sufficient.
Paragraph 12.26 regarding gross and net direct payments we should like to add ‘except where there is a dispute over charging In which case the gross direct payment should continue to be paid until the matter is resolved’.
Paragraph 12.29 about the local authority ensuring that people are aware of issues such as potential redundancy costs if employing personal assistants is somewhat scary. The point to make is that front line staff are rarely knowledgeable about employment law and they should signpost people to services and websites where such support is available.
Continuity of Care
We have little to add except paragraph 20.17 about the second authority assuring itself that the intention to move is genuine. We would like to see added that gaining such assurance should be done in a timely manner. We are concerned that there is a danger that local authorities take their time to reach decisions which could work against meeting the needs of the person who is moving. For example if someone is moving for reasons of employment they could lose the opportunity if there is undue prevarication from the local authority.
In our view much of the thinking that underpins this guidance could also be applied to those transferring from the ILF especially the need for an independent advocate and continuity of care until a reassessment has taken place.
Sue Bott CBE
Director of Policy and Development
Disability Rights UK
August 2014
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[i] Disability Rights UK sent out FOI requests to local authorities in England regarding their plans for the ILF transition. Of the 106 responses received 8 local authorities stated that they were waiting national government guidance before making any decisions