Article
The care sector needs cash not lawsuits
Reform of statute alone won't address the root problem of cash-strapped councils making cuts to adult social care, says David Brindle
Bupa research estimates that, to pay rates to meet CQC standards, English councils would need an extra £1.7bn over the next three years. Photograph: Brian Harris/Rex Features
Legal rulings against councils' cheese-paring of adult social care are starting to flow thick and fast. One day it's a censure over the tightening of eligibility criteria; the next it's a reprimand for the screwing down of fees for care operators.
Such judgments are invariably hailed as "landmark", but in truth they rarely have a wider impact. More often than not, they turn on an error of process in decision-making and the guilty council is sent back to do it all properly. Net result: a heartening moral victory for the complainants, a temporary reprieve for those affected and a salutary warning to other councils not to fall into the same trap.
Two rulings last week are likely to follow that pattern. In one, in a case brought on behalf of two autistic men, the Isle of Wight's tightening of its eligibility criteria in April was quashed on grounds that both its consultation and impact assessment were flawed. In the other, in an action taken by care operators in Sefton, Merseyside, the local council was found to have failed to assess the full costs of care provision when it acted last December to freeze for a second year the rates paid to care home operators on behalf of state-funded residents.
Hard on the heels of the Sefton judgment came news that another council, Staffordshire, had forestalled a similar court challenge by agreeing to revisit its fee levels for this year and next with a transparent review of care costs and other relevant factors.
The labyrinthine and outdated nature of social care law, added to but fundamentally unreformed since 1948, certainly offers rich pickings for lawyers. That should change under sweeping changes proposed by the Law Commission, due to be included in a white paper next spring. But reform of statute alone will not address the root cause of the legal bushfires breaking out all over the care sector because they are fuelled primarily by a quite separate problem: shortage of money in the system.
Research published this week by care home operator Bupa, and carried out by care sector analysts Laing & Buisson, suggests that the average fee of £461.70 a week paid by councils in England for residential care falls significantly short of what is required to meet basic standards set by the Care Quality Commission (CQC). Typically, fees have been frozen this year after an increase of just 0.5% in 2010.
Anecdotal evidence indicates that some councils are trying to drive rates down as low as £350 a week. By way of context, that would just about buy you a week from tonight in the cheapest Travelodge in Leeds – provided you had no wish to eat anything.
Small wonder that the number of care home businesses going bust has more than doubled over the past year. According to accountants Wilkins Kennedy, 72 companies went under in the 12 months to 30 September. And while almost all the 750 homes of the biggest casualty, Southern Cross, have found new operators, many have reputedly been taken up only because their landlords dangled attractive short-term incentives.
If those operators are gambling on there being a new cash deal for social care, they may be whistling in the dark. Ministers are committed only to produce a progress report on funding reform in England, further to the recommendations of the Dilnot commission, "alongside" the white paper.
To pay rates to meet CQC standards, Bupa's research estimates, English councils would need an extra £286m next year,nrising to £866m in 2014-15. That amounts over three years to £1.7bn – by chance the first-year price tag attached to the Dilnot plan for the care system as a whole. Either way, it doesn't look likely that the lawyers will be short of work.
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User Comments
TheSmallPlaces
15 November 2011 5:11PM
I don't think any lawyer would disagree with the analysis that 'legal bushfires' are breaking out primarily because of a shortage of cash in the system. However the law is certainly implicated in these bushfires. The Gloucestershire ruling in 1997 was key to local authorities being able to ration resources through changing their eligibility criteria in response to resource limitations. This is what the Isle of Wight case (and the Birmingham case) was about. I have tremendous sympathy with the dissenting judgment of Lord Lloyd in Gloucestershire:
By your Lordships' decision today the Council has escaped from the impossible position in which they, and other local authorities have been placed. Nevertheless, I cannot help wondering whether they will not be regretting today's decision as much as Mr. Barry. The solution lies with the government. The passing of the Chronically Sick and Disabled Persons Act 1970 was a noble aspiration. Having willed the end, Parliament must be asked to provide the means.
I do wonder whether by creating the option of raising local eligibility criteria, as the Gloucestershire ruling did, central government manages to deflect attention from its role in under-resourcing the community care system. If eligibility criteria were set nationally, as Dilnot has suggested should be the case, there would be a more explicit relationship between those who ration resources and those responsible for implementing its effects. In short, it would not be individual councils fighting 'bushfires' over raised eligibility thresholds, but action could be directed towards central government itself.
sparklemouse
15 November 2011 5:12PM
So, the rulings might send councils back to do it all properly. This is a realistic approach, but ignores how other disability rights activists can use the legal arguments to challenge their local authority. Even if the L.A discharges their disability equality duties and the cuts go ahead later on, the campaigners have bought vital time.
Here in Cameron's favourite borough, Hammersmith & Fulham, we (HAFCAC) delayed the re-introduction of charging for 18 months, and other activists were able to use our legal arguments.
Isle of Wight L.A said they weren't going to challenge the ruling and would reinstate the services.
Feathernest
15 November 2011 5:50PM
One of the major problems with local authorities is their lack of cutting-edge commercial experience and their quite deliberate aim to be ignorant and aloof with respect to the cost of the provision of care when purchased from the private sector.
Some years ago I owned a nursing home and, on behalf of all care home operators, was also extensively involved in negotiations at local and national level with regards to care standards and fees. It was perfectly obvious to me and others that residential and nursing provision was going to collapse in both quality and access unless providers and authorities worked together to plan for the medium-to-long-term, as such planning simply did not then exist. I proposed that the authorities sat with provider representatives to discuss (a) standards, and the cost of varying standards (b) forecast need by location and type and (c) optimum size of homes and (d) future cost of care provision. With the intention of illustrating my integrity in this matter, I offered to lay open the books of my home so that they could directly see expenditure and profit / loss accounts and the effect of occupancy levels, fees, etc on the viability of homes, for I did not want to see homes gradually fail whilst inevitably compromising care as they entered any downward spiral.
They categorically refused: in fact, although these attempts at planning were made about 15 years ago, I can still remember the smarmy grin on the face of the L.A. Finance Director who declined any such knowledge, prefering to witness a collapse in 'private' care provision (public sector residential care was costing twice as much although acknowledged as inferior). I finished up writing a paper which was presented to a then Minister of Health (and others) which forecast exactly the position we are today and believe me, it wasn't clever of me to make the prediction.
When you are running something as important and costly as integrated social care you MUST have financial competence. I was never to witness it in local authorities.
jediperson
15 November 2011 7:00PM
£461.70 a week for those without resources seems relatively low to me. I have to add that my mum in law, as a dementia ridden care home resident, is paying well over £800 a week in order to cross subsidise those with no money to pay for their own care. When she runs out of money I am expecting the tax payer to fund her care, as she has been paying over £300 per week towards those that cant afford to pay! If the Local authorities were paying the actual cost then my in laws money might have been enough to see her through her dementia ridden years, but as it is I doubt it! Apart from the dementia and incontinence there is actually nothing wrong with her, and she is likely to carry on for a very long time.
jediperson
15 November 2011 7:03PM
£461.70 a week for those without resources seems relatively low to me. I have to add that my mum in law, as a dementia ridden care home resident, is paying well over £800 a week in order to cross subsidise those with no money to pay for their own care. When she runs out of money I am expecting the tax payer to fund her care, as she has been paying over £300 per week towards those that cant afford to pay! If the Local authorities were paying the actual cost then my in laws money might have been enough to see her through her dementia ridden years, but as it is I doubt it! Apart from the dementia and incontinence there is actually nothing wrong with her, and she is likely to carry on for a very long time.
oiburke
15 November 2011 7:24PM
Where should Local Authorities get the money to pay for good quality care?
NIG123
15 November 2011 7:59PM
The Care sector needs taking back into public ownership , the private sector will always put profits to share holders before care for our elderly people.
enzee199
15 November 2011 8:02PM
This is the real scandal in social care
The purchaser/provider split which came in in the 1990 act (but which has really come to maturity in the past 5-8 years as LAs ditched functions like in-house care providers and res. care homes) allows LAs to focus on driving down fees without having to worry themselves about the details of how this is achieved, or what corners are being cut to do this.The problem as pointed out is that lack of money in the system turns the purchaser/provider split into a destructive force which eats itself; it's not about getting quality care for a competitive price, but just about securing the lowest possible price to protect the diminished budget.
What we have is a failing market which is seeing a race to the bottom in terms of care standards.
A massive, massive issue to me, as I was only talking about someone to today is that the purchaser/provider split allows LAs to delegate responsibility and accountability. For instance if there is a scandal in a care home operated by a LA then the head of service and cabinet member are directly accountable... if it's with a private provider then they can simply blame a greedy owner, or bad management and point to the role of CQC.
Being able to escape this direct acvcountability means LAs can turn a blind-eye to just how margins are being cut and the impact of real cuts in the cost of care.
And being cut they are. I can't speak for now, but I began in Social Care in 2004 when providers were being paid £15 per hour for care...... when I left in 2009 the avearage was more like £10-12 per hour.
oiburke
15 November 2011 9:25PM
Yes, you were talking about this earlier, I have yet to read the link, will do now.
blairsnemesis
15 November 2011 11:19PM
The whole system stinks.
My mum gets care services at home due to various disabilities. She pays something like £250 a month for 30 mins of care a day. The care company that provides the care has recently stopped paying it's staff petrol money for the travel between the people they care for. Many are leaving, despite the dire economic circumstances, because they can't get by on their meagre incomes. So the service gets worse and staff are placed under ever increasing pressure. Both the care recipient and the staff are losers.
But the county council does not care - the private company was probably the cheap[est and the council's only goal is to save money. The company needs to cut costs so screws it's staff. But they don't care because the council just wants the cheapest service so they're quite likely to retain the contract. This is the inevitable consequence of such services being privatised.
I agree with NIG123.- bring all council services back under council control. Get rid of the quick-buck private companies. They're no good.
colddebtmountain
15 November 2011 11:52PM
To be honest Councils are suffering from the appearance of private sector intake on the recruitment side, just as central government has done. These recruits try to bend rules in much the way companies do but the stricter legislation thankfully stops them in their tracks, in some, but too few, instances.
But the real deal for local authorities has been the massive increase in local responsibilities without due finance from central government. In Thatcher's era the attack was on the "crackpot projects" but they have all but dsiappeared leaving most councils with a real conundrum on how to make the money they get fit all their responsibilities. Once again we can blame the Treasury but not just the Tory idiots we have now, also New Labour and the previous Tory administrations before them too. All have "fiddled" budget transfers to make local authorities, especially those in deprived and largely socialist areas, really desperate for relief.
And so when I see an elderly person maltreated in a public funded establishment there is more than just one person to blame. We should, as a rich country, be ashamed about how we treat a large percentage of our elderly and vulnerable. The other irony is that it is probably only the goodwill of many staff that keeps other places from slipping over that edge, and the pay they receive is a miserable reward for such diligence.
themissing
16 November 2011 12:09AM
Another problem that could be helped by the renationalising the power companies.
The amount of money they could save on the bills to run and heat these homes.
Feathernest
16 November 2011 9:58AM
NIG123 @ 7.59 PM
Like most who write your sort of comment damning the private sector as profiteers and lauding public provision as a better alternative, you are hopelessly misinformed.
Not too long ago a councillor in Devon was interviewed by a newspaper following the council's announcement that it had no choice to close local authority homes because they could not meet those standards required of the private sector, albeit that the cost of the council's care was nearly twice that offered by privately run homes. The same story could now be repeated throughout the country.
In case the significance of this is not obvious to you: twice as many people could receive help with their lives when its provision came from private providers or looking at it another way, only half the number needing care would actually receive it if left for the council to provide. The reason? innefficiency, bad and excessive management, waste, etc which the private sector could never tolerate if it was to survive. Fact.
Scullyfox
16 November 2011 11:19AM
@Feathernest
You might want to check your use of the word 'fact'.
These are the facts and the reasons why LAs (and the staff within who do care) are stuck between a rock and a hard place:
- People are living for longer, and often with increasingly complex social care needs
- Dementia is increasing
- Central Government have imposed severe cuts to LAs budgets
- The way in which Central Government are messing with the NHS has a knock on effect to social care
- Disabled people and 'younger older people' are more aware of their rights and more confident in asking for support in a way that suits them (and rightly so)
- LAs not only have to adhere to targets and policies imposed by Central Government, but sometimes also face complex local political barriers/agendas
The combination of the above is making providing essential support to people who need it incredibly difficult for LAs and whilst it is important that they are taken to task when they don't meet their legal requirements to consult etc - paying out for legal undertakings and for subsequent compensation packages is adding to the financial crisis they face and distracts from the REAL bad guys - Central Government.
Feathernest
16 November 2011 2:41PM
Sculleyfox @ 11.19
My use of the word 'fact' was entirely accurate within the context of the substance of my 9.58 AM post. None of the points you make alter the fact that care provision since the early 90's (after the introduction of Care in the Community) has been available and given to higher standards and at less cost by the private sector, relative to local authorities. This was said in response to NIG123 who lives (like so many others) in a dreamworld about publicly provided care being 'good' whilst that from the private sector was 'bad'. Such thoughts absolutely fly in the face of reality and, at very least, would mean about 50% less care being delivered if provided solely by local authorities, no matter the amount and complexity of need. That is fact.
I must harp back to my post of 5.50 PM yesterday: extensive personal experience in very high level negotiations with local authorities at directorate level proved to me (and many others) that their primary focus was on preservation of the status quo (then public sector provision and control) whilst demonstrating a breathtaking lack of knowledge of management economics and planning ability. I'm not saying that today's care is adequately funded no matter who provides it. I am saying that there is no room whatsoever for an ideological agenda when dealing with care of those dependent upon it.
steveshires
16 November 2011 4:54PM
There is only one ruling ideology in the wrongly-termed care sector. Selfish exploitation of the vulnerable, for kicks/money/cowardly abuse of the unfortunate to obscure the loser's inferiority complex (well-earned) of the exploiters. How can I assert this? Every day of the last 5 years has provided me with examples in the form of the abuse of my sister, Julia Shires.
ColonelHathi
16 November 2011 5:40PM
I agree that the purchaser/provider split can lead to LAs driving costs down without being accountable for the effects of their actions.
I have been involved quite closely in the development and management of housing association registered care homes in the past (esp mental health).
The LA were typically very vocal on suggesting enhancements to proposed services in new schemes - but then took no responsibility or part whatever in understanding or agreeing how these were to be paid for.
I have to say also that the quality of the local authority registration and inspection units was laughable.
They often seemed to have very little idea of how schemes are actually managed.
My experience also was that Local Authority run schemes were certainly no better than those run privately or by housing associations.
For these reasons, I do not agree that Local Authority managed schemes is the way forward.
Perhaps as the CQC gets "bedded in" a pattern will emerge which allows it and providers to establish a view on minimum fee levels that are likely to be commensurate with quality care?
Also, Perhaps a legal requirement that Local Authorities can demonstrate that they have considered the impact of fee levels and cuts on services to clients?
What do you think?
By the way, the very best care I have witnessed has been in a private care home which my father in law uses.
The mantra that some others repeat that public sector = good, private sector = bad just doesn't wash in my experience.
enzee199
17 November 2011 7:17PM
Yes, I'd agree with that. You're right that there is a danger in these arguments of valorising the public-sector rather than recognising the messy reality that yes, some in-house services in some places left a lot to be desired all the while not recognising that there are good, or even better providers (as much as bad ones) among the private sector and voluntary sector.
Even if we did think this, it has to be recognised that the public sector, in LAs no longer possesses the expertise needed to set up services from the ground up so turning the clock back to 1946 isn't an option.
It does seem that what is needed is something which makes LAs accountable and like you say the need to ensure that decision making is based on more than just financial considerations. I think in the case of many services that public bodies prioritising making savings over and above quality is no different to the private sector prioritising profit margins.
Sadly at the moment it seems that LAs are acting like a major supermarket chain.
HomeCatering
18 November 2011 1:57AM
It should actually be a privilege to do everything we can to enhance the quality of life ofhome residents. Not all companies are ready to go the extra mile for that..
http://www.elior.co.uk/sector/health-and-care-homes
teamcarevisions
15 November 2011 5:00PM
I agree! It will be interesting to see how the two scenarios mentioned ie. squeezing payments to social care providers and tightening up eligibility criteria will affect the quality of care received by vulnerable adults. It will also be interesting to see whether, following large scale restructuring exercises, taking place in many organisations, Local Authorities have the capacity and expertise to deliver Dilnot's recommendations with the required levels of urgency. It might be useful to read Marcia White's recent comments socialcareleadsonDilnot</a7