The Care Act is due to come into force in April 2015. Norman Lamb, the minister for care and support, has described it as “the most significant reform of care and support in 60 years”. This is one case where a politician cannot be accused of exaggeration. There is no question that the act heralds major change. For example, it brings to an end the last vestiges of the National Assistance Act, which was a key component of the original welfare state and put in place provisions for those in need of support.
Lamb has also said that the act will put “people and their carers in control of their care and support”. There is certainly a lot in the care act and its guidance about choice, involvement, partnership, empowerment and co-production. But this seems a big ask at a time when hundreds of thousands of older and disabled people have been losing state social care support, when welfare reform has restricted access to benefits, and mainstream services that service users are particularly reliant on have seen cuts year after year in the name of austerity.
Lamb’s claim demands closer examination. The guidance confirms that when considering a person’s wellbeing, councils must begin “with the assumption that the individual is best-placed to judge the individual’s wellbeing”. This seems to place the service user in a powerful position at the outset of an assessment; but it is the end point of the assessment that determines what support the person will get. The guidance on assessment and eligibility makes clear that the final decisions about what a person’s needs are will remain with the council. Even for those who are allowed to self-assess, the council will have to be “satisfied that the individual’s self-assessment has accurately captured their needs”.
This places the council in a dominant position at the point that matters most, although of course this is also dependent on the level of funding from central government. Local authority funding has been decreasing year on year, and we have been told that this is set to continue. The guidance does not explain how councils will move from the person’s views to their own views other than “an assessment must be person-centred, involving the individual”. These are concepts that are interpreted at the council’s discretion. Given that the council has an obligation not to overspend, how will the present situation of finances trumping needs be changed? It is difficult to see service users and carers being able to exert more control in a context of serious funding limitations.
Much has been made of the “independent advocacy” provided under the act. At the National Advocacy Conference in October, Carl Evans, the department of health official responsible for the development of advocacy in the care act, reported on its provisions. He stressed that the message running through the act was about a person’s involvement in his or her assessment, care planning, reviews and support. He made clear that he was interested in more than people’s engagement; “in the personalisation approach”. As he said, in his work, “it was clear from the start that everyone regards advocacy as a good thing”.
Section 67 of the care act places a duty on councils to use an independent advocate if the person would experience substantial difficulties in understanding, retaining or using relevant information, or in communicating their views or wishes.
This is a very narrow view of advocacy and does not include the role of an advocate to represent people simply to ensure their rights are protected. There is nothing in the law to stop someone using an advocate in this way, but the council is not obliged to arrange it and of course is unlikely to have the funding to provide it. So it doesn’t prohibit the use of an advocate in the widest sense, but places no duties on councils to promote it.
As Evans said, the approach to advocacy given in the act is a “targeted not universal one”. He referred to the funding attached to the act: £14.5m between 2015 and 2016, and £34.6m between 2016 and 2017.
These are relatively small sums. We need to remember that social care deals with hundreds of thousands of people, many at difficult and vulnerable times in their lives, when sudden life changes or the acquisition of physical, sensory or intellectual impairments can make speaking for yourself very difficult. Social care is an area where there is a special need for good-quality, independent and ongoing advocacy support. It does not appear that the care act will deliver this. And the numbers are likely to grow, as resources grow tighter and if welfare reform continues. On closer inspection, the act looks less like a new beginning than a continuation by other means of social care’s marginalisation.
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