In the News
The Health and Care Act
On the 28th of April, after months of parliamentary ping pong and worries it may end up having to be thrown on the rubbish heap, the Health and Care Bill received royal assent, becoming the Health and Care Act. It introduces a number of measures aimed at tackling the backlog in the NHS caused by the COVID-19 pandemic, as well as reforming the way the health and social care systems work together.
The most significant of these is the introduction of Integrated Care Systems (ICS) to replace existing Clinical Commissioning Groups (CCGs) in England. These build on plans outlined in the government’s Integration White Paper published in February, which aim to unite the operations of hospitals, community-based services, and health and social care bodies across local areas.
Alongside the introduction of ICSs, the Act sees key changes to how people pay for care. The Act has finalised the introduction of a care cap, which will limit the amount people will have to pay for their care to a maximum of £86,000, and a rise in the upper limit at which people can receive financial assistance, rising to £100,000 from £23,250.
Initially, the proposed formula for the care cap covered the full cost of care. However, a government amendment saw that changed so that only client contributions would count towards the cap. This has provoked strong reaction from a number of groups, and research from the Health Foundation and the Institute for Fiscal Studies shows that this will have a greater impact on those with less wealth and those in poorer regions.
“There is a danger in the developing narrative that social care is now fixed”
Different elements of the Act have provoked different reactions. On the ICSs and the potential for greater integration of health and social care services at a local level, this has been seen as largely positive. In particular, as outlined by legal firm Hempsons, it is hoped that cooperation between health organisations and social care will be much simplified by the reforms.
Despite this, a report published jointly by the Good Governance Institute, the Homecare Association and Care England has criticised the government’s level of engagement with the adult social care sector, calling it inconsistent.
Other aspects of what was (and wasn’t) included in the Act have not gone down well. The amendment to the care cap, which the House of Lords attempted to remove on multiple occasions, has been widely criticised. Hugh Alderwick of the Health Foundation called the plans “less fair and generous than… expected”, while Baroness Campbell labelled the costs “criminal.”
Criticism of the Act has also focused on the apparent belief that the sector is well on the way to being fixed. In a blog post, King’s Fund Chief Executive Richard Murray (see this month’s interview) said that many in the sector feel ‘everything’ is still left to do. Sarah McClinton, President of ADASS worries that "there is a danger in the developing narrative that social care is now fixed”, while Vic Rayner of the National Care Forum believes that these new measure mean nothing without “the workforce necessary to do this.”
Interview
This month, we spoke to Richard Murray, Chief Executive of The King’s Fund, who believes that while creating a long-term vision of the social care offering is a positive step, not enough in the Health and Care Act focuses on the current issues hampering the adult social care sector.
Sajid Javid called the Health and Care Act the most significant change to the system in a decade. How significant do you feel the Health and Care Act really is?
I certainly agree it is the most significant change in the last decade. It could be hugely important as it ends the era of competition, makes it much easier for areas to collaborate – across local government, the NHS and social care – but it is more ‘enabling’. You can’t force people to collaborate. You can’t legislate for people to work well together. So the Act creates a legislative statutory structure that should make it easier to get better integrated care, to get better health and social care together but the devil is going to be in the implementation. How is this done? It is unfortunately possible in two years’ time we will look back and think “Oh well it turned out that it was old wine in your bottles”. It is still all to play for.
So do you agree with Sajid Javid that it will put the health and social care system in the strongest possible position to recover and rebuild from the pandemic?
Yes but in a very limited way, and that’s because I’m not sure there is that much legislation can do to help with recovery from the pandemic. We are in it now. Legislation by its nature is slow and processed, and the bill isn’t enacted in the most important way until July.
As far as legislation can do anything, it is creating that structure. But you have to remember it is also disruptive, so if you want to focus on recovery there is a credible view we should just let people focus on that, and not start moving the deckchairs about. That’s true, there’s never a good time for a change. But I think we have to recognise that it will always cause a degree of disruption.
But really thinking about recovery we need to ask is there enough money and is there the workforce? That is not a zone for legislation. So while I agree to a certain extent with Sajid, the real action on recovery is not on the floor at the House of Commons. It is in budget setting, staffing and, critically, asking ‘has social care got the money and the staff that it needs?’
Are there any measures in the final act that you feel should have been there? For example, the workforce planning amendment the Lords wanted introduced?
The workforce one is one of the big ones. Workforce planning both in health and social care, to be honest for the last decade, has been either non-existent or done behind closed doors and never sees the light of day. We strongly agreed with the Lords and with Jeremy Hunt, and indeed we worked with other organisations to brief parliamentarians and help shape the proposed amendment.
Workforce planning isn’t a magic bullet, but at least it might force the government into confronting what is the big issue facing recovery, and indeed facing any ambitions for health and social care. I think the dark hand of the Treasury, mistakenly, led the government to reject that amendment, feeling that it binds their hands on future spending, even though future spending forecasts are already in the OBR numbers. The workforce crisis is the Achilles heel of the sector, so that was very unfortunate.
These long term structural changes… are just not targeting those issues
We also wanted the care cap amendment to be withdrawn. The government is very clear about its levelling up ambitions and fairness, and their amendment on the care cap means it is much less fair. More of the burden falls on people with small to moderate assets. That just felt to be inconsistent with their stated objectives.
Therefore the care cap amendment should have been taken out and council funding and local government funding should have been included, even though the government claims the amendment will save £900m?
Yes. It seems to have been something that was negotiated at a fairly late stage. It surprised many of the people that worked on the care cap, I suspect. It was a piece of arm wrestling on making a few more savings rather late at night between the Department of Health and the Treasury. They said it saves £900 million, which sounds like a lot of money but £900 million in a few years’ time won’t break the bank.
£900 million could have been found in other ways. But £900 million off of people with low to moderate assets is a lot of money. To them it really will sting. It just felt to be something of an own goal. If you did need to save the money, save it in some other way, not off people that you really wanted to help. So we did support the Lords and for a while, there was a hope that the government might move but that wasn’t the case in the end.
In the King’s Fund’s recent discussion looking at what's in store for health and care in 2022, Sally Warren outlined her optimism for the role of local government in the ICSs and local level decision making in general. Do you share her optimism?
I am optimistic, but it might take longer to show up in terms of real action on the ground. The biggest complication is that it relies on developing relationships and governance agreements.
This won’t happen overnight, and it won’t solve the immediate recruitment crisis in domiciliary care. In two or three years’ time if health and social care work closer together they might be able to find common ways that might improve workforce retention and recruitment but that is going to take a while to develop.
In some parts of the country older conflicts and older styles of more distant working will remain, because you can’t legislate people to work together. But in others the relationship is already better and this will really help make life easier.
Coming out of COVID some of the cooperation between the NHS, local government and social care in some parts of the country went forward leaps and bounds. What you hope is this can now be cemented in so it becomes something that becomes routine.
At the start of his premiership Boris Johnson spoke of fixing the social care crisis. Do you think these recent policy efforts indicate a willingness to fix this crisis in social care once and for all, or is it all a bit of a smoke screen?
Successive administrations - Conservative, Coalition, and Labour - in England have failed to grasp the long term offer on social care. The care cap, whether you like it or not, is a genuine attempt to implement this offer, and they have done it when all before it have failed.
Where they slip is if you ask local government and social care at the moment what really matters, they will say vacancies and workforce shortages, and these long-term structural changes that the government is implementing are just not targeting those issues. For those you need to ask, ‘what is the funding offer now and how are you going to help social care providers, local government and the NHS overcome the workforce crisis?’
Without answering that question, you have an answer to the longer term challenges facing health and social care, but very little about what is going to happen now.
For a government facing an election in a couple of years it is a slightly odd thing to have done. Governments have tended to do short term patches of social care; this government tried to provide the long term solution but hasn’t got much of an answer for the short term.
Opinion
Charles Tallack, Interim Director of Data Analytics at the Health Foundation and former chief analyst to the Dilnot Commission, believes the care cap introduced as part of the new Act is a positive step, but that there are still plenty of issues left unresolved in the legislation.
In July 2019, Boris Johnson said that he would “fix the crisis in social care once and for all”. Since last summer we’ve had a new health and social levy to raise money for reform, a white paper setting out the government’s 10 year ‘vision’ for the sector, and reforms to the way in which care is funded, including the introduction of a cap on individual care costs. So does all of this add up to fixing the social care crisis?
One glaring failure of the current system is the unfairness in how we pay for care. We currently face a care cost lottery, where how much care we end up needing depends largely on luck, and there is little we can do to plan ahead for those care costs. In other areas of our lives we pool our risks through insurance (in healthcare through the NHS), but in social care there isn’t this option.
The £86,000 cap on care costs and more generous means tested support to be implemented in October 2023 is a fix for this. A cap was recommended by the 2011 Dilnot Commission, legislated for in the 2014 Care Act but plans to implement it were ditched by the Cameron government in 2016. Last September the government announced the cap was back on, with its implementation funded by the new health and social care levy.
One glaring failure of the current system is the unfairness in how we pay for care
Controversially, the government said it wanted to amend the Care Act to change the way that costs were counted towards the cap, saving money by reducing the protection that poorer households have against catastrophic costs. Despite considerable opposition from MPs - including a backbench revolt - and rejection by the Lords, the amendment eventually passed, leaving us with a version of the cap which is not as progressive as Dilnot and the Care Act intended.
Nevertheless, a cap on care costs is a major step forward and focuses a relatively small amount of the levy on helping fix a problem which has bedevilled governments for at least two decades. Over the longer term a cap could be transformative, creating a more universal social care system (everyone is covered by the cap), and helping us to meaningfully plan ahead for later life. And because the level of the cap can be changed, future governments could reduce it to provide a more generous offer in the future.
The cap fixes an important aspect of the system. But the crisis in social care is far broader than this. During the decade of austerity, spending on social care was cut so that by 2019/20 age-adjusted spending per person was 12 per cent lower than it was a decade earlier. As a result, unmet need and pressures on family and friends providing unpaid care have grown, leaving many people in desperate need. Downward pressure on the fees local authorities pay for care has left providers in a perilous state with many handing back loss-making contracts. Add to this over 100,000 workforce vacancies, with many of those working to provide the care we depend on being poorly paid and facing poor terms and conditions.
These problems have not been fixed. Improving access to and quality of care, addressing workforce and provider market issues will require further government action and, crucially, extra funding. Disappointingly, last year’s Spending Review provided barely enough money to keep pace with demographic pressures and provided virtually nothing for addressing the other challenges. This is despite the new money being raised by the levy, with barely a fifth going to social care reform over the next three years. We estimate some extra £9bn is needed in 2024/25 to meet rising demand, make some inroads into reducing unmet need and increase prices paid for care so that providers can improve people’s quality of care and raise wages. At 0.5 per cent of GDP this is surely a price worth paying to fix the social care crisis and create a system which we can be proud of.