Changes to Care Act Guidance: chapters 2-5

April 10th, 2016

Jonathan set the ball rolling in his last post, with a summary of the recent changes that the Government made to chapter 1 of the Care and Support Statutory Guidance. Here is the second post in this series, covering chapters 2-5. This completes the section on general responsibilities and universal services. I have not included here every change (some of which are very minor or style/formatting), but hopefully this post flags up most of the material differences. 

Chapter 2: Preventing, reducing or delaying needs

In paragraph 2.9, under the heading ‘Delay: tertiary prevention / formal intervention‘ there is an additional example of an intervention to maximise independence for people with established or complex health conditions. This now reads (with the new words underlined): “Local authorities must provide or arrange services, resources or facilities that maximise independence for those already with such needs, for example, interventions such as the provision of formal care such as meeting a person’s needs in their own home; rehabilitation/reablement services, e.g. community equipment services and adaptations; and the use of joint case-management for people with complex needs.”

In paragraph 2.29, in the section on developing a local approach to preventative support, there is a new reference to local authorities working with the voluntary sector: “Local authorities should consider the number of people in its area with existing needs for care and support, as well as those at risk of developing needs in the future, and what can be done to prevent, delay or reduce those needs now and in the future. In doing so, a local authority should draw on existing analyses such as the Joint Strategic Needs Assessment, and work with other local partners such as the NHS and voluntary sector to develop a broader, shared understanding of current and future needs, and support integrated approaches to prevention.” Similarly, in paragraph 2.33 (about working with other partners to focus on prevention) there is a new reference to the role of the fire service, in addition to other named bodies.

There is now a new paragraph 2.39 (which changes the numbering of the later paragraphs in chapter 2): “Many people with low level care and support needs will approach the voluntary sector for advice in the first instance. Local authorities and the voluntary sector should work together on how it [sic] can share this information to gain a fuller picture of local need as possible. Authorities should bring data from these different sources together to stratify who in the community may need care and support in the future and what types of needs they are likely to have, and use this information to target their preventative services effectively.” This is one of the more significant changes to the guidance. There may well be FOIA requests or future challenges where local authorities are expected to show both that they undertook this analysis and also that it fed into their policy thinking about preventative services.

There is a slight shift in emphasis in paragraph 2.48 (old paragraph 2.47) about the assessment of adults’ and carers’ needs. It now says: “In assessing whether an adult has any care and support needs or a carer has any needs for support, the local authority must consider whether the person concerned would benefit from the preventative services, facilities or resources provided by the local authority or which might otherwise be available in the community. This is regardless of whether, in fact, the adult or carer is assessed as having any care and support needs or support needs. This is to ensure that as As part of the assessment process, the local authority considers the capacity of the person to manage their needs or achieve the outcomes which matter to them, and allows for access to preventative support before a decision is made on whether the person has eligible needs“. This emphasises that the local authority must consider expressly these capacity issues when it is considering whether or not the person would benefit from preventative services, facilities or resources.

Perhaps the most important change is the removal of the hyphen from “re-ablement” in the case study about Midland Heart…

Chapter 3:  Information and advice

In paragraph 3.41, there is a list of aspects of financial information which the local authority financial information and advice service should include. The service now must include “financial information and advice” (with the underlined wording added) on each of the specified matters. One new item has been added to this list, namely “the cap on care costs, when preparing for its introduction in 2020“.  Similarly, due to the delay in introducing the cap, paragraph 3.43 no longer requires local authorities to provide information from April 2016 on the capped costs system.

There is a new paragraph 3.52 (which changes the numbering of subsequent paragraphs in this chapter): “Further practice guidance is also available to support local authorities to facilitate access to independent financial information and advice“. This is a reference to the March 2015 practice guidance here.

Chapter 4: Market shaping and commissioning of adult care and support

Paragraph 4.2 has been re-worded to clarify what is meant by a local authority facilitating a market: “The Care Act places new duties on local authorities to facilitate and shape their  promote the efficient and effective operation of the market for adult care and support as a whole. This can be considered a duty to facilitate the market, in the sense of using a wide range of approaches to encourage and shape it, so that it meets the needs of all people in their area who need care and support, whether arranged or funded by the state, by the individual themselves, or in other ways […]”.Similarly, paragraph 4.6 has been re-worded: “Market shaping means the local authority collaborating closely with other relevant partners, including people with care and support needs, carers and families, to encourage and facilitate the whole market in its area for care, support and related services. This includes services arranged and paid for by the state through the authority itself, those services paid by the state through direct payments, and those services arranged and paid for by individuals from whatever sources (sometimes called ‘self-funders’), and services paid for by a combination of these sources. Market shaping activity should stimulate a diverse range of appropriate high quality services (both in terms of the types, volumes and quality of services and the types of provider organisation), and ensure the market as a whole remains vibrant and sustainable”. 

An example has been added to paragraph 4.19 of local authorities keeping under review emerging ideas and best practice about outcomes based commissioning and payment by outcomes.

Paragraph 4.21 now spells out how workforces effectively underpin the market i.e. “through standards, skills, qualifications and apprenticeships“.

In paragraph 4.29, there are new examples of how local authorities can encourage training and development for the care and support workforce.

Paragraph 4.31 says that local authorities should assure themselves and have evidence that contract terms, conditions and fee levels for care and support services are appropriate to provide the delivery of the agreed care packages with agreed quality of care. New wording has been added: “This assurance should understand that reasonable fee levels allow for a reasonable rate of return by independent providers that is sufficient to allow the overall pool of efficient providers to remain sustainable in the long term“. This sentence s not particularly easy to follow – is an assurance capable of understanding anything? – but the gist of it seems to be a reminder to local authorities that fees need to allow independent providers to make sufficient profit for the market to be sustainable.

In paragraph 4.32, local authorities are advised to ensure that they have functions “and systems in place” to fulfil their market shaping and commissioning duties that are fit for purpose, with sufficient capacity and capability of trained and qualified staff. There is new wording advising that “Local authorities should have regard to the emerging skill levels and qualifications being developed for commissioning staff by Skills for Care.

Paragraph 4.38 has been re-worded: “Local authorities must encourage a range of different types of service provider organisations approaches to services to ensure people have a genuine choice of different types of service. This will include This may be achieved by encouraging different types of service provider organisation, for example, independent private providers, third sector, voluntary and community based organisations, including user-led organisations, mutual and small businesses. Local authorities should note that the involvement of people with specific lived experience of the type of needs being met, may lead to better outcomes for people who use services and carers as they directly empathise with service users.” This recognises the importance of encouraging different approaches to service, rather than simply different types of service provider organisation. It also stresses the benefits of involving people with relevant experience.

There is a new paragraph 4.40 (which changes the numbering of subsequent paragraphs in this chapter): “For universally available services – for example, prevention – where the local authority does not have a duty to directly arrange services, it should have regard to facilitating this market through market shaping activity to encourage a diversity of service provision. If the authority decides to augment such universal services by directly contracting itself with one or more provider organisations, it should nevertheless continue to ensure that the overall mix of available services presents meaningful choice to people who need these services.”

In paragraph 4.47 (old paragraph 4.46), which is about helping people fund their own services or receive direct payments, the final sentence has been amended as follows to include clearer information about what local authorities should do: “This activity should include facilitating organisations that support people with direct payments and those whose care is funded independently from the local authority to become more informed and effective consumers, helping and to overcome potential barriers such as help to recruit and employ personal assistants and to assist in overcoming problems and issues. This activity should help to match people’s wider needs with services.”

Paragraph 4.75 (old paragraph 4.74) has been amended just to remove references to the cap on care costs.

There is a new sentence on the end of paragraph 4.78 (old paragraph 4.77) about local authorities engaging with providers to gather the necessary information to shape the market: “Smaller care providers should be included in engagement. Local authorities may find helpful the guidance Supporting Local Authority and SME Care Provider Innovation and Collaboration that was co produced by the Department of Health with ADASS and LGA, provider organisations and people with lived experience.” The next paragraph has also been amended to advise that “Consideration should be given to whether [services to meet highly specialist and complex needs, care and support] might better be commissioned and facilitated regionally.”

There is a new example, in paragraph 4.93 (old paragraph 4.92) of local authorities considering with partners the enabling activities, functions and processes that may facilitate effective integrated services.

In paragraph 4.107 (old paragraph 4.106) the wording has been clarified: “Local authorities may consider delegating some forms of contracting to brokers and people who use care and support to support personal choice for people who are not funded by the local authority and those taking direct payments, with appropriate systems in place to underpin the delivery of safe, effective appropriate high quality services through such routes.”

I was pleased to spot the removal of a split infinitive from this chapter.

Chapter 5: Managing provider failure and other service interruptions

The contents have been updated to refer to the Care and Support (Business Failure) Regulations 2015.

Paragraph 5.6 clarifies that the duties on a local authority (set out in this chapter) apply when a provider “of any size” is unable to continue because of business failure.

Paragraph 5.20-5.22 have been conflated into a single paragraph, which changes the numbering of the subsequent paragraphs in this chapter. The reference to anticipated CQC guidance has been removed.

Paragraph 5.23 (old paragraph 5.25) clarifies that “An Administrator represents the interests of the creditors of the provider that has failed and will typically [i.e. not always] try to rescue the company as a going concern“.

Confusingly, there is now no paragraph 5.24.

Paragraph 5.35 (old paragraph 5.36) advises that when local authorities are looking to understand how providers in their area are coping with current trading conditions, they “may find the Cordis Bright guidance and toolkit: Assessing care market and provider sustainability helpful in developing a proportionate approach. Given CQC is responsible for monitoring the financial sustainability of providers falling within the market oversight scheme, it is not necessary for authorities also to ask for detailed financial information from these providers.” Similarly, new paragraph 5.41 suggests that “Local authorities may find it useful to consider the Local Government Information Unit guide, Care and continuity: contingency planning for provider failure.

Right, who wants to volunteer to look at chapters 6-23 and the annexes…

Rachel Kamm, 11KBW, @kamm11KBW 

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