Taking care: adequate funding will be essential if the new Care Bill is to be effective

The Care Bill introduced by the government in the House of Lords on 9 May is intended to give effect to the Law Commission's recommendations on adult social care and to implement the changes put forward in the Dilnot report. It also contains elements of the government's initial response to the Mid Staffordshire NHS Foundation Trust Public Inquiry, and will establish Health Education England and the Health Research Authority as non-departmental public bodies. This new legal framework for the provision of adult social care in England is set out in part 1 of the bill (social care being a devolved matter, the Welsh government has produced its own legislative proposals for reform in the Social Services and Well-being (Wales) Bill).

Individual well-being

The existing law that underpins care and support is outdated, complex and piecemeal. The general duties in part 1 take forward the Law Commission's recommendations to consolidate existing care and support law into a single, unified, modern statute. But the bill purports to be more than a consolidating measure: it also includes a number of significant policy reforms for care and support.

Clauses 1-7 set out the general responsibilities of local authorities. For the first time, the bill contains an over-arching principle: that of individual well-being. Clause 1 states that in exercising any function under part 1 of the bill in respect of an individual, the general duty is to promote that individual's well-being. "Well-being" is expressly defined in the bill to include an individual's physical and mental health, emotional well-being and personal dignity, protection from abuse and neglect, and control by the individual over day-to-day life. Clause 2 governs the local authority's role in preventing, and delaying the need for care and support, so as to avoid the need for crisis intervention. Emphasis is also placed on the integration of care and support with health services and housing (clause 3). The bill requires local authorities to "promote the efficient and effective operation of a market in services for meeting care and support needs" with a view to ensuring diversity and quality in the provision of services (clause 5). This kind of express power requiring local authorities to engage in 'market shaping' ?is novel.

Local authorities will also need to provide comprehensive information and advice about care and support services in their local area, to help people to better understand how services work locally, the options available, and how services can be accessed (clause 4).

Finally, there are express duties imposed on local authorities to cooperate with each of a list of relevant partners, and vice versa in the exercise of functions relevant to care and support. There is also a duty to cooperate in a specific case of an adult with needs for care and support, unless the partner or authority considers that it would be (i) incompatible with its own duties; or (ii) otherwise have an adverse effect on the exercise of its functions. If they decide not to cooperate, they must write to the other person setting out their reasons for not doing so. This is the counterpart to the ?duty on the NHS in the Health and ?Social Care Act, supposedly to ensure ?that organisations work together to ?improve outcomes.

Assessment, entitlement and charging

Clauses 8-40 of the bill set out the process of assessment, charging, establishing entitlements, care planning and the actual provision of care and support. One of the core objectives of the bill is to provide clarity for people on what they can expect from care and support. Clause 8 sets out examples of how a local authority can meet an adult's needs for care and support, including providing accommodation in a care home or other premises, care and support at home or in the community, counselling and other types of social work, goods and facilities and information, advice and advocacy. Clauses 9-13 then set out the process of assessment and outcome. The clauses contain a single right to an assessment for adults and for carers, based on having an appearance of needs for care and support. An assessment must be of the adult's needs and the outcomes they want to achieve, and must consider the adult's capabilities, and what other support might be available from their family or local community to prevent or delay their well-being deteriorating.

Clause 13 will make provision for a first national eligibility framework, and contains a power for the secretary of state to make regulations setting out the eligibility criteria. This aims to put an end to the 'postcode lottery' where each local authority is free to adopt different eligibility thresholds, and provide different amounts and types of care. A number of local authorities have moved to "critical only" provision in recent years. The aim is to bring transparency and consistency across England. One of the key issues for the operation of the new social care regime is where the eligibility threshold will be set. The government has stated that draft regulations will not be published until after the financial settlement for social care has been made as part of the spending round in June 2013.

Care and support is not a free service like the NHS. Clauses 14-17 of the bill are concerned with imposing charges for adult social care provision and assessing financial resources. Clause 15 will make provision for creating a cap on the costs of care and for local authorities to enter into deferred payment agreements. The precise level of the cap will be specified in regulations. The government has stated that the cap will be £72,000 (significantly higher than that recommended by Dilnot) and will apply from 2016. Individuals will be responsible for their care costs up to the cap if they can afford it. Progress towards the cap will not include people's contribution towards their general living costs (e.g. non-care expenses such as utilities and rent). The state will then be responsible for any further care costs once an individual reaches the £72,000 cap, and for financial help to people if they have less than around £17,000 and if they do not have enough income to cover their care costs. The cap will be adjusted in line with inflation. The bill proposes imposing a duty on the secretary of state to review the level of the cap on care costs every five years.

Clauses 18-19 contain a new, single, legal duty for an adult's eligible needs to be met by his or her local authority, subject to their financial circumstances. This will be a great improvement on the current system, where different pieces of legislation contain different entitlements for different types of care and support. Clause 20 of the bill also creates the first ever entitlement to support for carers. A care and support plan (or support plan for carers) must be produced.

The bill seeks to clarify the boundary between health and social care provision (clause 22). The intention is not to change the current law around the boundary, but to set this out in legislation more clearly. The bill also includes personal budgets in legislation for the first time, and will set out new provisions relating to direct payments. Direct payments must be made if various conditions are met. The bill also seeks to improve continuity of care when an individual moves between local authority areas (clause 36-40). The aim is to ensure that there is no gap in care and support, and the new local authority is responsible for meeting needs from the date of arrival. However, there is no requirement to guarantee the same support from each local authority - although the second authority must "take into account" the plan supplied by the first authority and must provide a written explanation if there is a difference between the first authority's assessment and the second.

Safeguarding adults

Clauses 41-46 and schedule 2 to the bill set out the first ever statutory framework for adult safeguarding. These provisions will outline the responsibilities of local authorities and other partners in relation to the safeguarding of adults at risk of abuse or neglect. This includes a new requirement to establish Safeguarding Adults Boards in every area. The bill also requires local authorities to make enquiries when they think an adult with care and support needs may be at risk of abuse or neglect in their area, and to find out what, if any, action is needed. Safeguarding Adults Boards must arrange a Safeguarding Adults Review if there is reasonable cause for concern about how the board, members or other persons have worked together to safeguard the adult, and either (i) the adult has died and the board knows or suspects that the death resulted from abuse or neglect; or (ii) the adult is still alive and the board knows or suspects that the adult has experienced serious abuse or neglect. The government held a separate public consultation on the question of a new power of entry or access to persons for local authorities and decided not to add a new safeguarding power of entry to the bill.

There are provisions for the oversight of registered care and support providers by the Care Quality Commission, with local authorities taking some responsibility for ensuring continuity of care where a provider goes out of business.

Finally, there are clauses in the bill to support young people in the typically difficult transition between children and adults' social services by giving adult services powers to assess children, young carers and parent carers.

Overdue reforms

The bill contains ambitious, but long overdue, reforms to the adult social care system in England. There is much to admire. However, it is questionable whether the reforms will achieve their objectives and meet the needs of the most vulnerable in society. The Association of Directors of Adult Social Services has recently confirmed that funding cuts have resulted in adult care budgets being slashed by £2.7bn (a fifth of their funding) over the past three years. The association also said that a further £800m needed to be cut in the current financial year alone. The funding package will be crucial to the success of the reforms in ?the bill.