Health & Social Care

In the Care Briefing last month we looked at the long list of key elements in the Care Act and the impact this may have on providers. It was just not possible in the space of a few hundred words to enter into any great depth but we thought it may be helpful if each month thereafter we look at individual aspects in greater depth. As expected we have seen a daunting plethora of communications about the Care Act but by looking in some detail at the Dept of Health consultation guidance notes we will hopefully be able to make some sense out of it. Of course the regulations have not yet been finalised so some detail may change in the next few months.

So, the chosen subject for this month is about charging, financial assessments and choice of accommodation taken from sections 14, 17, 69 and 70 of the Care Act. This has been quite a contentious subject in the past because LAs seem to interpret and apply the previous regulations in different ways, especially in terms of a service users choice of accommodation and where block contract arrangements seem to limit that choice. The new regulations seem to provide much needed clarity about this.  Nevertheless, it is interesting to see that much use is made of the words may, must, should and but throughout the guidance which will eventually be translated into the regulations. These are key words which need to be treated with some caution in interpretation, especially when challenging decisions made by the Local Authority (LA). For instance in terms of charging, where the LA arranges care and support to meet a person’s needs it may charge except where the LA is required to provide this free of charge. However, the LA should take into account when making decisions on charging, the clear principles of fairness, consistency and transparency, wellbeing and so on, but it should also be sustainable for the LA in the long term. The overall picture is that the ‘m, m, s, b’ words above are being consistently used across the proposed regulations thus narrowing the opportunity for convenient interpretation by LAs.

Staying on the subject of charging, LAs can make the decision not to charge for services where it sees this as helpful to a service user on a case by case basis but must now stick to the regulations where it does decide to charge with a prescribed limit of how much they can charge.  The discretion varies across the type and setting of care.

The proposed financial assessment regulations do not appear to have changed to any significant extent from the current arrangements although there may still be something in the really small print which we have missed. The one point of note is that people who are not eligible for financial support from LAs may elect for the LA to arrange their care for them.  This will be alright for care at home but where a ‘self funder’ enters residential care providers need to be aware that the fee expected would be aligned to the LA fee rate.

The proposed choice of accommodation regulations seem to be much clearer than hitherto. Where a LA is responsible for meeting a person’s care needs and is assessed as needing a particular type of accommodation. The person must have the right to choose between different providers and the LA must offer at least one option that is within the agreed personal budget limit. However, the person must be able to choose alternatives at the same budget level or where a third party is willing to top up, in a more expensive setting. The person may also choose a setting which is not currently contracted by the LA and provided the provider accepts the placement, the LA must engage with that provider and establish an appropriate contract with them. Other aspects of interest are that the LA must now be very clear in writing why it is unable to meet a person’s choice and how it plans to meet its obligation to meet the needs of the individual. This is helpful in establishing a basis for challenge where necessary. This has been widely and loosely interpreted in the past, so it is pleasing to see a tightening up of the regulations to meet the objectives of choice and control.

Overall, it seems that the proposed regulations seem to have developed towards supporting the individual and the change of culture towards choice and control for them, together with demanding greater transparency from the authorities. All good so far but we will see whether this carries through the remaining aspects of the Care Bill over the next few months.


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