Changes to adult social care laws could make life easier for social workers

BASW has described proposed changes to the legislation underpinning adult social care, part of the government’s care and support white paper published on 11 July, as having the potential to make life easier for adult social workers, but cautions that the consultation process must be thorough.

There are currently over 30 Acts of Parliament which relate to adult care and support, underpinned by the 1948 National Assistance Act, a situation described by the Law Commission review of adult social care law in 2011 as creating a “net result” of confusion, both for those who use services and for the public.

BASW contributed to the Law Commission’s proposals to reform the complex, outdated and confusing nature of the law, guidance and directions, and is broadly supportive. However, the Association is concerned that some proposals in the report attached to the white paper do not look sufficiently rigorous.

Commenting on the white paper’s legislative shake-up, BASW professional officer Joe Godden says:

“The proposed changes to adult social care law will make life easier for social workers because it will turn 32 different pieces of legislation into one. There are many potential benefits to these changes, such as carers being given more statutory rights and also removing any confusion among different local authorities on the duty to provide information and advice.

“These proposals need proper scrutiny and BASW will be consulting extensively with members.”

The proposals made in ‘Reforming the law for adult care and support: The Government’s response to Law Commission report 326 on adult social care’ include (numbers correspond with format used in report):

5. Assessment

Proposal

  • Consolidate existing requirements, currently comprised of many separate pieces of legislation, into a single duty to assess for care and support on the appearance of needs

BASW response

The proposal to provide information and advice to the general public about care services, where they can be found and how they can be accessed, is welcomed by BASW, as currently the duty to provide information and advice is unclear, and interpreted differently by different local authorities.

The proposals that local authorities should have a duty to stimulate and shape the market for care services, for example, day care services or domiciliary care, appears to be a political strike at those few authorities who are not keen on doing this. However, the evidence of the effectiveness of strategies to stimulate markets for care, particularly driven by price, is that this leads to considerable problems. Social care is not like the provision of sweet shops. Planning, quality and humanity must be integral parts of developing markets.

BASW is particularly pleased to see that assessments should not be pre-determined by perceived ability to pay and that assessments should be pitched at a “low threshold”. In other words, assessment should take place even if it is perceived that the person may have “low” social care needs.

The reference to assessments not being too prescriptive and not undermining professional judgement is also welcomed, as are requirements to consider the needs of the whole family.

BASW believes that social workers should be central to assessments, and that the trend of call centre staff “undertaking assessments” should be stopped. Assessment is a skilled role, and the oversight or involvement of a social worker, who has the knowledge base and skills to tease out often hidden and complex issues, is always needed.

6. Eligibility and entitlements

Proposal

  • Clarify individual entitlements to care and support to help people understand what they can expect from local authorities.
  • Consolidate existing requirements into single duties to determine eligible needs and to provide care and support to meet those needs.
  • Place a duty on the secretary of state to make regulations in relation to the exercise of the eligibility framework

BASW response

BASW welcomes the proposals to look at portability/ transferability of assessments, and welcomes the fact that framework will be developed with partners. BASW offers to help, and to bring social work expertise to making that process successful.

7. Carers assessment and eligibility

Proposal

  • Create a new entitlement of carers to public support, to help people understand what they can expect from local authorities.
  • Consolidate existing requirements into a single duty to assess carers’ needs on a similar basis to that for users; and mainstream carers’ legislation within the new statute, to make clear the integral part carers play in modern care and support.

BASW response

BASW welcomes the proposals to clarify and simplify the law in relation to assessment and particularly welcomes the proposal to remove the restriction in the present law that currently limits assessments to those carers who are providing “substantial” amounts of care. The current law massively underestimates the impact on carers who are providing other than substantial care, particularly where there is a lot of emotional stress, or the specific carer may be providing only part of the care, but nevertheless plays a critical care role.

It should also help with the prevention agenda. BASW does, of course, have concerns about the capacity and funding to enable local authorities to undertake this additional work, which does not appear to have yet been costed.

BASW welcomes the proposed extension of duties to not just assess, but to provide services and support, but again has strong concerns about the lack of identified resources to undertake this.

8. Care and support planning and provision

Proposal

  • Support innovation in the provision of care and support by defining services in an open manner.
  • Strengthen the position of care and support plans by creating an entitlement based on eligible needs.
  • Give personal budgets a new central place in the statute, and consolidate the law on direct payments.
  • Maintain the right to a choice of accommodation.
  • Update and clarify the requirements on charging, to be clear what support is subject to charges, and how means-testing should be carried out.

BASW response

BASW supports the clarification of the duty on local authorities to provide a written care and support plan, or if not eligible that the reasons are put in writing. This is already good practice.

The government proposes running some pilots to see if direct payments could be extended to the purchase of residential care. BASW applauds the fact that this proposal is to be piloted, and hope that the pilots will be genuinely evaluated against clear objective criteria, not ideological ones.

BASW is also opposed to the ideological belief that direct payments and personal budgets should be for everyone. The Association supports the desirability of offering choice to service users and carers, but not the policy of de facto making this compulsory, regardless of whether the service user and carers want it.

9. Safeguarding and adult protection

Proposal

  • Create a new statutory framework for adult safeguarding, to clarify the roles and responsibilities of local authorities and other organisations.
  • Legislate to create Safeguarding Adults Boards in every local authority area, as the vehicle for co-ordinating partners’ activity on safeguarding.
  • Consult on whether to introduce new powers for local authorities to support their ability to make safeguarding enquiries

BASW response

BASW supports the proposals to establish Safeguarding Adult’s Boards, but regrets that their responsibilities will only be to protect people from significant harm. We feel it should be “harm”. This is a longstanding issue for BASW, and many other campaigners concerned about the position of vulnerable adults, and should be addressed speedily.

11. Overlap and other areas

Proposal

  • Clarify the legal boundaries between adult care and support and other local services.
  • To avoid confusion and support partnership working
  • Modernise and incorporate the provisions on delayed discharges and streamline requirements on registers
  • Provide powers for local authorities to provide temporary urgent services.
  • Clarify the status and treatment of Shared Lives schemes and remove anomalies between types of accommodation.

BASW response

Mental Health Guardianship Powers

BASW supports the proposal to engage with stakeholders in a pre-legislative scrutiny of a bill.

Section 117

BASW welcomes the continuation of the right not to be charged for after care services.

Delayed discharges

BASW is very disappointed that it is proposed that the ridiculous delayed discharge scheme should continue. The whole concept of “fines” is an anathema to joint working, which is rightly stressed in the proposed legislation. This proposal looks like the desire to be able to wield a big stick at local authorities hasn’t gone away.

Advocacy

BASW has long been a supporter of advocacy services, and is disappointed that a decision has been made to continue with the vague duty on local authorities.