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Funding - the main barrier to implementing the Care Act successfully?

Our People - Maria Nicholas
30 April, 2015

Local Government analysis: What will the impact of the Care Act 2014 (CA 2014) have on local authorities?

Analysis

Statutory guidance published to help with Care Act implementation, LNB News 23/10/2014 121

The final version of the statutory guidance supporting the implementation of CA 2014, Pt 1 has been published. The guidance, which was published in draft form for consultation in June 2014, has been amended by the government to reflect the concerns and issues raised by the respondents to the consultation. Amendments include the clarification of the duty to promote wellbeing set out in CA 2014.

What are the key financial concerns around the implementation of CA 2014?

Local authorities will no doubt be concerned about the effect of CA 2014 on their social care budget. Certainly, on an initial reading at least, CA 2014 sets out extended responsibilities to local authorities, such as creating a general duty to promote an individual’s well-being, and setting a national eligibility threshold for an individual to receive services.

Financial concerns are therefore likely to centre around the number of reviews and reassessments that will be necessary, and how to meet the potentially increased need for services. Inevitably, there will also have to be re-training of staff, re-drafting of forms, and adjusting of systems to take account of the changes. I am aware there is a concern that central government is not providing sufficient resources to allow local authorities to properly implement this new legislation.

The other primary financial concern relates to the new cap on an individual’s self-funding, how this will work in practice and the knock-on effect it will have for local authorities. This is not implemented until April 2016, however, so there is a little more time to prepare for this.

How might local authorities be affected if funding remains a challenge?

Local authorities will be under great stress following the reductions already made to their budgets. If funding remains a challenge in respect of implementing CA 2014, this will place local authorities in real difficulty. It is easy to see that asking a local authority to provide greater social care services with less funding cannot work, and both the local authority and the individuals will suffer for it. Those individuals with the ability to access legal representation will no doubt be seeking to judicially review their local authority if it is not meeting its responsibilities under CA 2014 and the accompanying regulations. As with any new legislation, there will be plenty of provisions up for interpretation and I think there is likely to be a flurry of judicial review applications to this end.

How can local authorities engage with the provider market effectively?

With pressures on funding, relations with the provider market could become pressured. Establishing and
maintaining good provider relations from now on should assist in the near future. It may also assist to ensure
providers are well informed as to the changes being implemented so they have a greater understanding of
what lies ahead.

What are the challenges in tendering of such services?

There is a clear conflict between the funds local authorities have available and the rates providers need to charge to ensure a good service to individuals. If local authorities are seeking to reduce the rates paid to providers, this could cause problems with future contracting. However, as this will be an issue across the country, providers may have to seriously consider their own business models in order to fit in with what local authorities can afford to fund. This in turn causes concern for the individuals, as their services could well suffer as a result.

Are there any headline concerns around implementation?

As above, the funding available to ensure smooth and effective implementation is an issue, and the lack of funding could well cause delays and mistakes. The other significant issue is timescales–the government has been criticised for pushing this new legislation through Parliament and to implementation stage too quickly, leaving insufficient time for local authorities to get to grips with and apply the changes.

What should lawyers do next?

Any lawyers not already familiar with the new CA 2014 should certainly take this opportunity to familiarise themselves with it, and the key changes to community care legislation. Identifying the areas liable to be the subject of judicial review challenge could assist in pre-empting future claims.

Local authority lawyers may also wish to encourage their client departments to start ear-marking those individuals who will need re-assessment or review and start planning for those now to ensure there is sufficient time to carry them out thoroughly and to allow for a check by the legal department where necessary.

Interviewed by Nicola Laver.

This article was first published on Lexis®PSL Local Government and Lexis®Library on 14 January 2015.

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Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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