The Joint Committee reports on a new care laws

Update to the original text: I’d read “We agree” in paragraph 29 as referring to all the points made earlier in the paragraph where it is reported that the law commission and others argued for a statutory footing for resource allocation systems. In fact, the commitee agreed only with Richard Humphries’ point in that paragraph about a muddled of picture of 152 allocation systems as is clear from the later recommendation in bold. Paul Burstow MP, the committee’s Chair, kindly clarified this: “we only recommend placing RAS on a statutory basis for the purpose of arriving at notional costs [for Dilnot care accounts – see below], not for determining the amount in a personal budget.  On the more general use of RAS we recommend in para 204 that the “Government should review the efficacy of RAS and ensure that the code of practice or guidance makes clear that the development and application of any methodology for calculating the cost of meeting eligible needs is transparent, has regard for the well-being principle, and is subject to the duty to meet eligible needs.”” Some text below amended accordingly.

The Joint Committee chaired by Paul Burstow MP which has been examining the draft Care and Support Bill has reported today.

One of the most interesting aspects of the report is what it has to say about Resource Allocation Systems, which are the complex sets of calculations (algorithms) which turn an assessment of need into a cash amount to pay for an individual’s services. The recommendations taken individually are very sensible. For instance, the committee urges the government to put beyond any doubt that nobody’s resource allocation should be reduced because of the presence of a carer, without having gained that carer’s consent to carry out the caring which is seen as reducing the need for state funded support.

The committee identifies the fairness and transparency of Resource Allocation Systems as a crucial part of the delivery of personal budgets and Direct Payments and suggests that a RAS will be just as crucial to developing the “care account” by which the amount and individual is seen as having spent on care will be totted up under the new Dilnot system of capping the maximum amount anyone has to spend on care. The Dilnot system will not add up what a person actually spends, which could vary according to the care provider they choose to use, but will instead be based on a notional spend, proportionate to their level of need and typical or expected support costs for someone with their level of need.

The committee agrees that having 152 different resource allocation systems is “muddled”. This is part of the current “Ordinary Residence” problem, in which non-transferable care packages can stop people from moving from one council area to another for fear of losing an existing care package and the committee notes that this challenge will extend to those with a “care account” unless there is a national system.

This shows how far away from the original brief the reform of care laws has come. When the Law Commission was charged with tidying up and modernising social care law, it was very clear that it had not been given a brief to draw up a law for personalisation. Of course, sweeping away all existing social care law, was an opportunity for precisely that – why would we just tidy up a law which fits badly with the vision for a personalised social care system? – and the committee are calling for the new system to be built around personalisation.

Personal budgets and Direct Payments are of course just one aspect of personalisation. I can see a risk with establishing RAS for care accounts and putting them on a statutory footing. This is that some areas already treat the figure calculated by the RAS as a final allocation in all but name, even requiring a formal appeal to alter in some. A RAS was only ever intended to give people a ballpark estimate of their individual allocation – a rough guess which they could use to plan with the resources likely to be at their disposal, rather than drawing up a support plan they would never in reality be able to afford. Formalising the RAS for calculating Dilnot care accounts could inadvertently reinforce this behaviour when it comes to personal budget calcultions. The unhelpful and unhealthy focus on money, which was the focus of much of the formal assessment and service rationing system in the old world, and has in many areas continued to be the focus of the newly ‘personalised’ system.

But focusing down on the money at a point when there is less and less of it available may not be the best way to deliver a care, support and inclusion system which becomes expert at helping people to be creative and to draw on their own skills and resources, and the resources and relationships within their families and communities.

So how to mitigate those risks? The committee makes helpful recommendations which I hope the government will look at very carefully. It suggests that “where either the NHS or local authorities assess a person and determine that they are not eligible to have their needs met” by the state, assessments should be coordinated and information shared so that people nevertheless are supported with “suitable arrangements to meet their needs” which could include support offered under the proposed duties to provide information, advice and preventative interventions.

It recommends an awareness-raising campaign to get people thinking creatively at an early stage about what the state can offer and how to avoid needing to draw on that limited offer through building their resilience and having plans in place for decreasing health or mobility (paras 43 and 44). It quotes some bloke called Fox saying that “All social-care interventions should be future-focussed as well as reactive. Things that are genuinely preventative leave people better informed, better connected and more able to live with dignity themselves” (para 141). The report kindly agrees with the suggestion that we need a clear definition of this kind for ‘prevention’, suggesting amendments to ensure that the information and advice duties are clearly intended to be part of acting preventatively and to ensure local authorities “have regard to the importance of identifying adults at risk of developing care and support needs, or increasing such needs” in targeting preventative interventions. In para 147, the committee agrees with Care Minister Norman Lamb MP that if this aspect of the Bill is got right, Dilnot has huge potential to be a public health measure for people likely to develop social care needs (which of course is most of us).

The committee also examines the meaning of ‘well being’ and how the well-being principle is intended to be at the heart of social care law. It makes some useful suggestions about extending the concept of well-being to include dignity and acceptable housing (para 74) and to ensure it clearly applies to carers. It wants the government to be clear that we are moving away from having an exhaustive (but narrow) list of what social care services can look like, towards councils being able to provide or commission almost anything which appropriately meets social care needs (para 170).

I feel that Paragraph 173 is crucial on the potential for the well-being principle to be used for a real transformation of care and support: “We agree that the Bill fails fully to follow the logic of adopting well-being as the overarching principle, and defaults to a more traditional model of needs assessment. The Department should amend the draft Bill to support people planning to achieve well-being within their own resources. The aim should be to frame assessment as a discussion about the additional support people may need to maintain or achieve well-being.” This could include whole-family assessments for those that would like them (para 183). My other quote in the report notes  that the draft is  “an opportunity to describe more clearly what an acceptable level of well-being is, and to base eligibility on whether or not the impact of a long-term condition or impairment takes somebody below that level of well-being…”

If we can re-constitute the formal system around early conversations about how people at risk of needing services can build their confidence, resilience and links to all kinds of sources of support, we may just build a social care system which works, even in the depths of a recession.

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