Achieving a Health & Social Care System fit for purpose – A Green Paper – Solutions from a leading specialist health and social care law firm
It would seem that the long awaited Green Paper on Health and Social Care has been postponed once again, this time until the New Year. To perhaps help the Government in the task of producing a Green Paper fit for purpose we are printing here, in full, a ‘Green Paper’ drawn up by Paul Ridout Of Ridouts Professional Services PLC. A leading specialist health and social care law firm
It is hoped that the thoughts in this ‘Green Paper’ will be seen as helpful in stimulating debate on these important issues, and assisting Government in the policy formulation for their own Green Paper on Social Care.
ACHIEVING A HEALTH AND SOCIAL CARE SYSTEM FIT FOR PURPOSE
A GREEN PAPER – SOLUTIONS FROM A LEADING SPECIALIST HEALTH AND SOCIAL CARE LAW FIRM
About Ridouts Professional Services plc
Ridouts is one of the UK’s leading health and social practice law practices. Based in London’s Marylebone, but acting for national and international clients, the Ridouts legal team works with care homes, domiciliary care agencies, children’s homes, NHS hospitals, GP practices, dentists and independent hospitals and special schools.
With more than 75 years’ combined experience of the breadth and depth of the health and social care sector, Ridouts is uniquely placed to assist Government at this crucial time in its development of the forthcoming Social Care Green Paper.
Paul Ridout is the founder and Managing Director of Ridouts and has been providing advice to the sector for over 40 years.
Caroline Barker is a Director in the firm. She qualified in 2005 and has worked at Ridouts since 2009.
As a leading health and social care legal practice we recommend the following five fundamental changes to the health and social care system in England.
The sector is not lacking ideas and recommendations but these need to be considered urgently by Government and policy makers. Now is the time to re-appraise some basic principles of entitlement to, and funding of, social care services. Meanwhile, increasing deficits in resource to meet the needs both in social care and in the NHS have made this more pressing than ever before.
The aim of our recommendations is to provide certainty for millions of service users, tackle the current waste inherent in the system, and create a world-leading system of commissioning and regulation. Our recommendations are:
1. Introduce a more sustainable funding model, through co-payment
2. Promote a career in social care as a valued profession through establishing a specific grant
3. Address the current under-utilisation of assets within the independent and voluntary sectors
4. Keep social care distinct from health care
5. Distinguish the roles of Commissioner and Regulator, and place adult safeguarding within the jurisdiction of the Care Quality Commission
In the March 2017 Budget, the Government committed to producing a Green Paper on Social Care in acknowledgement that the social care system needs to change.
The last Green Paper was published in 2005 and while it did not result in wholesale change, it did lead to some smaller reforms as part of the Health & Social Care Act 2008.
One of the most significant changes that occurred as a result of the 2005 Green Paper was the unification of the respective Health and Social Care regulators (the Health Care Commission and the Commission for Social Care Inspection) into the Care Quality Commission.
This move strengthened regulatory enforcement processes in health and was perhaps the first step towards the integration of health and social care.
Thirteen years on from the 2005 Green Paper, however, the health and social care space has changed a lot. We believe there are a number of areas within the sector that need to be examined and require significant change if we are to improve the system for the benefit of those who rely on it, and who deserve the best care we can give them.
This Green Paper examines developments that led to the current system, the challenges that have developed along the way, and outlines recommendations to address some of the stark realities impacting the social care system – notably funding challenges, issues with governance, workforce and under-utilisation of assets.
With our experience of working with the health and social care sector, Ridouts hopes this paper will assist Government at this crucial time with its development of its own forthcoming Social Care Green Paper.
Before moving on to outlining our recommendations in more detail, we feel it necessary to review the history of the social care system, which has evolved to the system we know today.
From 1600, social care was the moral and legal responsibility of local communities, in which communities and extended families were held legally responsible to provide for the needs of those unable to manage with the resources at their disposal.
Several hundred years later, in 1948, the NHS was born, promoting a health service free at the point of delivery for all.
However while social care was embraced through the National Assistance Act 1948, it was not intended to be free at the point of delivery; decency in lifestyle expectations were managed through a continuing contribution system tied to the ability to pay, and the State did not accept a role as provider for all, but only as a provider of last resort for those in need.
The financial management of the system changed in the late 1970s when the Government decided to offer state-paid residential care to all. The cost was to be recovered in whole or part from those in care, with the means.
When, in 1985, the entitlement was capped to a maximum charge, this rapidly became the set charge. We would argue this set the scene for the care crisis of today.
The shifting of social care funding responsibilities to local public authorities, which have limited tax raising powers, in the 1990s and the 2000s then fuelled the system’s current problems with financing, namely, that rising demand for social care services from claimants, who are living longer, and diminishing resources, means that the social care budget holder is extremely squeezed.
The context of the 2005 Green Paper
As hinted in the introduction, many of the larger aspirations of the 2005 Green Paper have not been met in practice.
Moreover, it failed to address for the question of how to fund state-supported care, despite being written against a financial background of greater sector funding availability generally. This has resulted in some of the challenges of today.
The paper included proposals for:
• Wider use of direct payments and individual budgets
This was largely unsuccessful due to a lack of user confidence that direct payments and budgets would meet the rising cost of care.
• Greater focus on preventative services to ensure social inclusion.
The impact of this is not known as it is beyond the reach of available statistics. Current pressure on funding probably indicates this has not been a success.
• Strong strategic direction for Local Authorities.
The Local Authority Social Services Department (LASS) for each area was affirmed as the lead agency via the Health & Social Care Act 2014. This envisaged the Local Authority being the lead commissioner and expected them to take a ‘market-shaping’ role. Unfortunately, austerity has made this less achievable.
• Encouraging new and exciting models of care to deliver correct outcomes to adult social care.
Innovation was, and still is, stifled by the increasingly heavy hand of the regulator. A move from relative plenty to austerity has furthermore made these worthy aspirations more difficult to deliver. Providers must be engaged by public service stakeholders to ensure that the historic mind-set and attitude that ‘the old way is right’, do not stifle genuine change and innovation.
Since the 2005 Green Paper, the financial climate, market and governance of the system is now very different. The challenges as outlined above for the health and social care system were not adequately addressed in 2005 and have become even greater since. But in cognisance of this, Ridouts accepts these challenges nonetheless.
Below, we outline some of the recommendations we believe will bring meaningful change.
It is over-simplistic to echo that all that is required is more funding. More funding is to be welcomed, but does not address those areas of reform which are needed, as highlighted above.
It is likely that implementation of these recommendations will require additional funding, but the urgent requirement is to establish the structure and outcomes which are desirable, and then measure the realistic cost against available funding.
If there is a shortfall, then affordability and desirability of bridging the gap must be decided. If the affordability is unacceptable, expectation must be reduced.
We now have an established two-tier structure: one state-funded; the other independently-funded. That distinction should be recognised and not denied.
On a wider funding point we believe funds should go to those in real need (the safety net) and not those who choose to spend their accumulated wealth in another way. Against that backdrop, we identified the issues as aforementioned and here set out our suggestions in support of the Government, who have to make these difficult decisions.
1.Introduce a more sustainable funding model through co-payment
Social Care is not and never has been a ’free at the point of delivery‘ service, nor should it be, given the funding pressures providers of social care services already face.
The debate about whether or not people should fund their own care, if able to, needs to be carefully managed, while acknowledging the system devised in 1948 did not envisage that care services would be provided exclusively via state aid.
In order to balance the net cost of our recommendations in this paper, every opportunity to maximise contributions from users of social care services, and to an extent their relatives, must be taken. This must not be offset by cuts to already available social care funding resources.
1. If individuals have sufficient funds to meet arising care needs, they and the wider public should recognise that their individual resources are the first point of call when that need demands it.
2. The system should enhance the concept of co-payment in social care, and possibly in health care. The iconic principle that neither an NHS patient nor anyone paying on their behalf should be permitted to pay a part of NHS cost is historic and should be abandoned. That mantra has led to artificial schemes of varying types designed to avoid the so-called trap that co-payment infringes NHS principles.
We do not believe that that mantra is sound in law. Rather than waiting for an expensive and time-consuming test case, Government should act to make clear that voluntary co-payment is not unlawful. Maybe a small legislative change is appropriate. Our experience shows that voluntary co-payment is not unpopular and is often welcomed.
Whether co-payment should be extended to a compulsory requirement of those with close connections to the user being required to contribute to liabilities, is an altogether more difficult question. Voluntary contributions may be more popular with the public than compulsory contributions, but fairness suggests that those who refuse to contribute should not be able to avoid ‘familial’ responsibility. The decimation of the rules on liable relatives in 1948 to married couples and parents of minors is outdated and requires revision.
We believe that avoidance of payment responsibilities, by asset-stripping of the dependent to avoid care costs, can be solved by robust anti-avoidance procedures. We prefer a course which aims to dis-incentivise antisocial behaviour to be preferable to a compulsion to liability for those linked by relationship to the service user. That preserves our principle that the wealth of the user should be available to meet cost rather than a compulsion to access the wealth of others, however close to the service user.
3. Capping of care contributions is illusory and should be abandoned. It is illusory because it only addresses one element of the care package (personal care) and not the other elements, such as accommodation and lifestyle enhancement. The reality is that no personal care cap is likely to be exceeded with modern levels of care dependency and length of stay.
2. Promote a career in social care as a valued profession through establishing a specific grant
The most significant element within Social Care is the human resource which actually delivers the service, as set by all other stakeholders.
However, for too long that human resource has been undervalued and not provided with a meaningful career path. As a consequence, social care workers have been under-remunerated, with jobs in this sector sometimes seen as a last resort rather than a positive choice.
This attitude is not helped by the fact that the social care workforce is stigmatised thanks to unwelcome media attention. Journalists often choose to highlight individual cases of wrongdoing, which in truth, only apply to a very small minority of cases.
It must be stressed that if social care is to function in a sustainable way, workers must be valued and respected in their communities.
Significant investment in training and business resource management is required to achieve this, as well as improved pay for social care workers. The cost of this must be factored into any new settlement in care.
Recognition is not solely about remuneration, though. It is about self-worth and the perception of the value of important work, done well. Correct career structures must be introduced to encourage talented people to choose social care as a lifetime workplace choice rather than view it as a dead-end job.
To achieve this, we recommend:
1. That regulators be required to refine and define the statutory obligations of providers to provide ongoing lifetime learning training for all social care workers, from early entrants to mature and established professionals. This should include explicit provision for the expectations of a career path. That will cost money which is not available. Government should therefore introduce a Social Care Training Grant Scheme accessible by all employers who demonstrate commitment to, and delivery of, the objective of career-long learning. Access to the grant money will depend on how well providers adhere to the aforementioned enhanced regulations around training. Grant money should also be forfeitable if regulations are not obeyed.
2. That career development paths lead to graded increases in remuneration, to reflect success. Public funding will have to be sufficiently generous to ensure that those operators focused on Government-funded residents will be able to compete effectively with those who cater to the independent sector, to attract the best staff.
3. Training grants should be cash neutral to the sector. Proper career paths regulated by the CQC will, we recognise, cause inflation in staff costs, but this should be balanced by improved quality of service, enhanced value for money, and an acceptance that funding has to be at a level to meet the cost of quality care.
We do not recommend market intervention by seeking to fix minimum levels of remuneration, or the capping of provider fees, as this can distort the market.
3. Address under-utilisation of assets within the independent and voluntary sectors
From our conversations with senior managers in the independent sector, there is a perception that the public sector is reluctant to deal with them commercially. This is fuelled by mutually clashing and deep-seated philosophies in public service commissioning and independent sector provision.
The result is that the independent sector is a very significantly untapped resource. Recent figures suggest that utilisation in independent facilities, available for state-funded users, is at 85 per cent. That shortfall must be addressed to not be a drag on the efficiency of the sector.
There is substantial, well-invested infrastructure in the independent sector for the delivery of appropriate care services. Meanwhile, there is limited infrastructure in public services. There is, in the public sector, often an issue around NHS facilities being used for social care-type services, which arguably is not the best use of resources.
On the other hand, too many providers adhere resolutely the concept of the ‘fair price of care’, which they calculate on the minimum price per person per week. However, once they reach 90 to 92 per cent occupancy, all further fees from residents become pure profit. Providers should therefore be more willing to negotiate on the price depending on their current volume levels, rather than demand cash-poor commissioners pay for a block contract, i.e. a set number of beds at an inflexible price. This way they will see occupancy, and profit, rise.
There is an urgent need to research the steady state capacity in the independent sector. Success here can help to deliver reductions inappropriate placements in NHS hospitals, or ‘bed blocking’. We could see NHS savings of £2,000-£3,000 per patient per week by using sensible negotiation to increase care utilisation and free up NHS capacity. There is significant room for reallocation of funding from NHS to social care. Such arrangements should be encouraged and concluded as a matter of urgency.
1. Government directs commissioners to take steps to negotiate the purchase of spare capacity in the independent sector, and to report to Government quarterly on their success in increasing local utilisation. These reports should include information on block contract fee levels and any refusal by providers to negotiate. Providers should be willing to offer discounted fees to utilise spare capacity, particularly above 90 per cent occupancy.
2. Government should consider directing the CQC to seek information from providers about capacity and fee levels demanded by independent voluntary providers.
4. Keep social care distinct from health care
The integration of health funding and social care funding has not been successful to date. Our view is that the forced integration attempts are making wholesale reform and effective delivery even more difficult.
As outlined, one example is nursing care, where those fortunate enough to be assessed as needing higher dependency nursing care, receive free accommodation and care irrespective of means. However, the amount allocated by Government often turns out to be insufficient to meet the real cost of nursing care.
Contracts are made either by private agreement or by contract with a state commissioner, either Local Authority Social Services (LASS) or the NHS. Where facilities offer both independent and state funded care, very often the independent care users subsidise the state funded users. This is anomalous and unsatisfactory.
1. Artificial overlapping between social care and health care should be abandoned. All funding available for Government should be channelled through LASS commissioners.
2. Artificial alternative funds, e.g. Funded Nursing Care (FNC) and Continuing Health Care (CHC) should be abandoned and resources redirected from the NHS to LASS. This will save significant commissioning costs. Some small legislative change will be required to achieve this. Our view is that Funded Nursing Care is a flawed scheme. It goes nowhere to meet the true cost of the nursing care element in a care package and is available to all including those with sufficient resource to pay.
Our view is that NHS-funded Continuing Health Care is a mistake. The difference between LASS funding tests and CHC (NHS funding) is very small. Sometimes there is no difference at all. However, LASS funding is means-tested and CHC is free at the point of delivery. This is illogical and unfair. LASS should only support those with insufficient means to meet their own costs, leaving sufficient funds to support an appropriate lifestyle. The levels will probably be slightly higher than the current level of retainable capital and income and should certainly be index-linked. Such a limit will require careful consideration and is beyond the scope of this paper.
3. The role of Local Authority Social Services should be recognised and enhanced. LASS has 70 years accumulated experience and wisdom in the field of commissioning social services. Public funding of commissioning should be retained in LASS.
5.Place adult safeguarding within the jurisdiction of the CQC, and integrate the roles of Commissioner and Regulator more closely
Clarity is urgently needed in the sector as to who is the Commissioner of care and who is the Regulator of care.
There is no justification for regulatory duplication due to the different standards and different agendas held by the CQC (Care Quality Commission) and LASS (Local Authority Social Services). Over-regulation is likely to produce the same result as bad regulation, and just adds to operational costs for already cash-strapped social care providers.
This happens particularly through LASS misuse of the so-called safeguarding process, introduced in 2002 under Government direction, and given a legal structure of very limited impact in the Health & Social Care Act of 2014.
At the same time, the savings made by having just one regulatory system could be reinvested in care.
1. Government legislate to reinforce the CQC as the sole regulator of social care.
2. Government should abolish the LASS role in safeguarding, by repeal of the appropriate provisions of the Health & Social Care Act 2014, and associated Government Directions and Guidance.
3. However, Government must recognise that it is unhelpful to have a regulator that attempts to shape the market which it regulates, and ensure that the CQC is prevented from introducing guidance on matters other than day-to-day operations in the field. This can be achieved by either secondary legislation or binding guidance.
We believe that the range of detailed measures we have outlined can release funds and protect significant resources for the social care sector.
Increasing demand for services, the lack of a well-motivated workforce and under-utilisation of available capacity presents a dangerous cocktail for social care as a business sector, not least because it creates a barrier to entry for much-needed investment.
Chronic failure to address adequate levels of funding over many years is a contributory factor, but not the whole story. National disenchantment with public sector managers and independent voluntary providers has presented a perfect storm of reluctance to change. Senior public sector managers feel that ‘profit’ should not be made from a public service, but all activities require healthy surplus for investment and sustainability. Just like a worn-out vinyl record, providers are stuck in the mantra that they must receive their perception of a fair price for care when, in fact, there is never a fair price for anything.
Substantial leadership is required to overcome the obstacles. There is an urgent need to rationalise costs on all sides. That should start with an evaluation of ‘blue-sky’ thinking on a proper allocation of resources. Only then can it be decided what, if any, shortfall exists in reality. There is no reason for that process to be prolonged. All the information is available to objective researchers.
We hope that our thoughts in this Green Paper will be seen as helpful in stimulating debate on these important issues, and assisting Government in the policy formulation for their own Green Paper on Social Care.