Build back better – ‘too little, too late’?
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Marc Bloomfield
Description: Community care
Anne-Marie Irwin, Steve Broach, Rachel Sullivan and Daniel Kozelko analyse the government’s latest plans for social care.
On 7 September 2021, the government published its command paper, Build back better: our plan for health and social care (CP 506), intended to fulfil the prime minister’s aim to ‘fix the crisis in social care once and for all’.1Boris Johnson’s first speech as prime minister: 24 July 2019, Prime Minister's Office.
The context is bleak. In May 2021, the King’s Fund reported:2Social care 360, The King’s Fund, May 2021. The report uses 2019/20 data.
demand for social care was increasing but receipt of long-term care was falling – between 2015/16 and 2019/20, 120,000 more people requested social care support but around 14,000 fewer people received either long- or short-term support;
the means test continued to get meaner because thresholds were not rising in line with inflation;
per person spending was still well below that seen a decade ago;
as a result of the national living wage, care worker pay was rising by more than inflation but was not keeping pace with other sectors; and
staff vacancies were falling but remained at a high level.
In July 2021, it was reported that almost 75,000 disabled and older people and carers were waiting for help with their care and support, and almost 7,000 people had been waiting more than six months for assessment.3ADASS spring survey 2021, Association of Directors of Adult Social Services, 14 July 2021, pages 3 and 6.
One in seven adults aged 65 now face lifetime social care costs of more than £100,0004Build back better: our plan for health and social care, page 15. and The Health Foundation has estimated a shortfall in funding in 2030/31 of somewhere between £6.1bn and £14.4bn a year.5Social care funding gap: our estimates of what it would cost to stabilise and improve adult social care in England’, The Health Foundation news article, 11 February 2021.
Currently, care home residents with capital of over £23,250 must pay for their care in full.6Social care – charging for care and support: local authority circular LAC(DHSC)(2021)1, Department of Health and Social Care, 28 January 2021. Care home residents with capital of between £14,250 and £23,250 are eligible for state-funded residential care but must contribute a ‘tariff income’ of £1 per week for every £250 they have above the lower limit. Care home residents with capital below £14,250 are eligible and not treated as having tariff income. A care home resident’s home is treated as capital (with some exceptions). For non-care home residents, the capital limits are discretionary (although cannot be lower than £23,250 and almost all local authorities maintain the limit at this level) and homes are disregarded. Income will also be assessed, with certain income disregarded, and a person must be left with a statutory minimum amount of income following payment for care (the minimum income guarantee (MIG)).
Successive governments have, however, failed to address the ‘crisis’ in the provision of adult social care (whether viewed from the perspective of the cost of care or the paucity of care that service users experience). The Commission on Funding of Care and Support (commonly known as the Dilnot Commission) had recommended a lifetime cap on personal care costs (but not ‘hotel costs’, as discussed below) of £35,000 for those over 65 and a fourfold increase to £100,000 of the eligibility threshold.7Fairer care funding: the report of the Commission on Funding of Care and Support, July 2011, page 5. The Care Act 2014 introduced a statutory framework for reform and an initial start date for the ‘cap’ of 2016 was proposed, but this was delayed to 2020, and then indefinitely, until the recent announcements.
The command paper (a white paper and statutory instrument will follow) outlines the government’s four aims:
introduce a cap on personal care costs;
provide financial assistance to those without substantial assets;
deliver wider support for the social care system, particularly our brilliant social care staff; and
improve the integration of health and social care systems.
Cap on care costs
As mentioned above, the reforms include the introduction of a lifetime cap on care costs. This is planned to come into effect in October 2023 and will be set at £86,000. It will cover personal care but does not apply to costs of daily living such as food or accommodation, or so-called ‘hotel costs’, in care homes. The intention is to use the existing framework under the Care Act 2014, which was introduced to deliver the recommendations of the Dilnot Commission but never brought into force (it is notable, however, that the level of the cap is significantly higher than the £35,000 recommended by the commission).
There will also be changes to capital limits: from October 2023, the lower limit will be £20,000 while the upper limit will be £100,000. As the command paper notes, this is more than four times greater than the existing upper limit of £23,250. The effect of this is that those with less than £20,000 will not have to contribute towards their care costs while those with between £20,000 and £100,000 will be eligible for some means-tested support.
Health and social care levy
A major element of the proposals is the announcement of a new ‘health and social care levy’. This will feature an increase in national insurance contributions (NICs), introduced in two stages: a 1.25 percentage point increase in class 1/class 4 NICs in 2022/23, which will be replaced by the introduction of a new levy set at this rate in 2023/24. The money raised by the levy will be ringfenced. A new Health and Social Care Levy Bill has been laid before parliament to bring these changes into effect.
Other changes
Aside from these headline proposals, there are various other important reforms. First, the government proposes to unfreeze the MIG, which limits the charge for those receiving care in their own homes, and personal expenses allowance (PEA), which provides a set allowance of money for care home residents. The rate of the PEA has not been increased since 2015/16, and the MIG since 2016/17. They will again begin to rise in line with inflation from April 2022. The primary purpose of this change appears to be to reduce the financial pressure faced by those who fund some of their care on a means-tested basis.
The government also intends to review the system of deferred payment. Originally introduced in 2015, these schemes provide for local authorities to pay the cost of a person’s care as a loan. The loan is then underwritten against the person’s home, often in the form of a legally binding agreement and a legal charge. When the home is sold, the funds are then repaid to the local authority. The intention of these agreements is that a person is not compelled to sell their home to pay the cost of care. By reviewing them, it would appear the government intends to provide individuals with more flexibility in the range of options available to avoid paying for care up front.
Finally, the government intends to commence Care Act 2014 s18(3). The purpose of this provision is to allow self-funders to request that the local authority still arrange their care. The government is proposing this change because, often, self-funders will be charged a higher rate than the local authority for the same care provision. By requiring the local authority to arrange the care, this disparity will be avoided. It is of note that in the House of Commons briefing paper on this proposal8Proposed reforms to adult social care announced in September 2021, Briefing Paper No 9315, 10 September 2021. some concern was noted from social care providers that it is self-funders paying a higher rate that makes provision financially viable. It is possible that, as a result of the commencement of this provision, the sums paid by local authorities will increase proportionally to reflect the loss of self-funders. It is also unclear how local authorities will be expected to meet this significant additional demand from self-funders.
Wider system reform
The command paper commits to publishing a white paper on adult social care that will focus on wider system reforms. In the meantime, the government has stated that it will spend at least £500m over the next three years to:
provide support for developing the workforce, including training places and certification alongside professional development for those already regulated;
fund mental health resources and provide access to occupational health funding to help social care workers recover from their ‘extraordinary’ role in the COVID-19 pandemic; and
introduce further reforms to improve recruitment and support (with details of what these will actually be to be spelled out in the white paper).
The command paper also recognises that there are wider issues beyond funding and the professional workforce, and includes commitments to take steps to ensure unpaid carers have access to support and advice, to improve information for service users and to invest in disabled facilities grants. A new assurance framework is also promised. Details of the concrete measures that will be taken to secure these matters are limited and will presumably be addressed in the forthcoming white paper.
Sector reaction
The overall reaction to the command paper has been that the proposals are nowhere near enough to deliver the prime minister’s stated aims for social care – as Disability Rights UK’s head of policy, Fazilet Hadi, said, ‘too little, too late’.9Government’s proposals to fix the social care crisis is “too little, too late”’, Disability Rights UK news release, 8 September 2021.
Responses from grassroots disability groups have seen the proposals described as ‘disappointing’, ‘regressive’10NSUN statement on social care charging’, National Survivor User Network, 7 September 2021. and ‘insulting’.11Johnson’s social care “fix” is “disappointing … regressive… and insulting”’, Disability News Service, 9 September 2021. Disability News Service (DNS) described ‘almost universal criticism across the disabled people’s movement of the inadequate level of funding, the failure to address the needs of working-age disabled people, the lack of detail, and the disproportionate impact of the plans on lower-income workers’.12See note 11 above. From the statutory perspective, the Local Government Association stated that while the command paper contains ‘potentially positive developments’, councils have ‘serious concerns and question whether they make the kind of progress needed to help adult social care deliver for people’.13LGA response to ‘Build back better: our plan for health and social care’, 17 September 2021.
Professor Peter Beresford, co-chair of the disabled people’s and service-user network Shaping Our Lives, told DNS that the command paper contains ‘"not even a nod in the direction" of the proposals put forward by the disabled people’s movement for a free, universal system of independent living ... funded by progressive taxation, through a National Independent Living Support Service’.14See note 11 above. It does not refer to the right to independent living and community inclusion in article 19 of the UN Convention on the Rights of Persons with Disabilities.
As such, while the command paper focuses on the cost of care, it has little, if anything, to say about the way in which disabled and older people experience the provision (or lack thereof) of care in 2021, which is driven largely by the gaping chasm between need and available resources. These proposals will do nothing to end waits for assessment, exclusion from eligibility and resource-driven care provision decisions such as 15-minute home care visits, all of which impact negatively on the quality of life of those with needs for care and support.
As Inclusion London has said:15Today’s announcement on social care will not fix the broken system’, Inclusion London, 7 September 2021.
The cap won’t fix our broken care system – it won’t provide social care for many hundreds of thousands of people currently excluded from support. It won’t improve the quality or amount of support people currently get which is woeful. It won’t stop the scandal of charging for social care that is robbing disabled people of essential disability benefits income and pushes them into extreme poverty, and it won’t improve wages or conditions of care workers or address the recruitment and vacancy crisis.
Any policy proposals to address these vital issues are still awaited.
 
2     Social care 360, The King’s Fund, May 2021. The report uses 2019/20 data. »
3     ADASS spring survey 2021, Association of Directors of Adult Social Services, 14 July 2021, pages 3 and 6. »
4     Build back better: our plan for health and social care, page 15. »
6     Social care – charging for care and support: local authority circular LAC(DHSC)(2021)1, Department of Health and Social Care, 28 January 2021. »
8     Proposed reforms to adult social care announced in September 2021, Briefing Paper No 9315, 10 September 2021. »
9     Government’s proposals to fix the social care crisis is “too little, too late”’, Disability Rights UK news release, 8 September 2021. »
10     NSUN statement on social care charging’, National Survivor User Network, 7 September 2021. »
11     Johnson’s social care “fix” is “disappointing … regressive… and insulting”’, Disability News Service, 9 September 2021. »
12     See note 11 above. »
14     See note 11 above. »
15     Today’s announcement on social care will not fix the broken system’, Inclusion London, 7 September 2021. »

About the author(s)

Description: Anne-Marie Irwin - author
Anne-Marie Irwin is a partner at Rook Irwin Sweeney LLP.
Description: Steve Broach - author
Steve Broach is a barrister at 39 Essex Chambers in London.
Description: Rachel Sullivan - author
Rachel Sullivan is a barrister at 39 Essex Chambers.
Description: Daniel Kozelko - author
Daniel Kozelko is a barrister at 39 Essex Chambers.