Government Shelves Plans to Cap Care Costs from 2020

Introduction

The government has shelved plans to introduced a £72 000 cap on social care costs. The cap was due to come into effect from 2020. The Care Act 2014 provided the legislative base for the cap. The article below was written in 2014 when there was quite a bit of media attention about the cap on care fees.

At the time the article was published, The Care Act 2014 had not long received the Royal Assent. In the article I argued that there was no guarantee that the cap would, in fact, come into force. The relevant section providing for the introduction of the cap had not yet been implemented and the Act itself did not set any figure at which a cap, should one be implemented, should be set. The government's original intention was to introduce the cap from 2016 - hence the reason that my article refers to 2016 not 2020. This was later revised to 2020.

Given the debacle over social care funding following the Conservatives' manifesto launch during the election this year, and the announcement that there will be green paper on social care next year, it is probably not surprising that the cap has been shelved. It is equally unsurprising that the announcement was made during some tricky brexit negotiations. Perhaps the brexit spotlight has cast a shadow on the social care situation, at least in the short term. I have been saying for some time now that history will judge this government not just by brexit but also on how it deals with social care funding, and social care more generally.

What follows is a slightly modified version of an article first published on 2 October 2014.

The Care Act 2014 and Caps on Individual Care Costs

You may have read in, or heard on, the news that The Care Bill became the Care Act 2014 when it received the Royal assent recently, on the 14 May 2014, to be exact. Potentially, the Care Act 2014 contains some major reforms that will have important consequences for people receiving care in their homes.  A reform of huge significance for everyone involves an upper limit, a cap, being placed on the amount that you as an individual will have to pay for your domiciliary care.

The Legislative Process

The Care Act 2014 (from now on referred to simply as the Act) is an Act of Parliament. An Act of Parliament – or a statute as it is often called - is law made by Parliament. Parliament consists of one elected body - the House of Commons – and two unelected bodies, the House of Lords and the Monarch. A statute begins its life as a Bill. To become law it must be passed by all three of the bodies that make up Parliament. In the Houses of commons and the Lords this is achieved by the members voting in favour of the Bill. The Monarch – ie the Queen – grants her assent, which, it might be suggested, is a type of vote. The final stage in a Bill’s progression through Parliament is reached when it is granted Royal Assent, at which point a Bill becomes an Act.

However, just because a Bill has become an Act does not mean that its provisions have come into force; indeed, far from it. Today, it is fairly typical for a statute to be granted Royal Assent and only over a period of time – often a period of years - for its provisions to come into force. There are some Acts of Parliament various parts of which have never come into force.

The different parts of a statute are generally brought into force by a cabinet minister. Section 127 of the Care Act 2014 says “The provisions of Parts 1 to 4 come into force on such day as the Secretary of State may by order appoint.” Section 127 is known as a commencement section. Parts 1 to 4 are the main parts of the Act. Therefore, even though we now have a Care Act that is law in England and Wales, all the important reforms that it contains await implementation by the Secretary of State over time.

The Care Act 2014

The Act is long – 129 sections contained in 167 pages - and wide ranging. Norman Lamb, the care minister has described the Act as “[representing] the most significant reform of care and support in more than 60 years”.  Speaking more generally about care and the new Act, Norman Lamb has commented that:

"Care and support is something that nearly everyone in this country will experience at some point in their lives….Even if you don’t need care yourself, you will probably know a family member or friend who does, or you may care for someone. And many more of us will need care in the future, so it is important for us to have a modern system that can keep up with the demands of a growing ageing population….Until now it’s been almost impossible for people who need care, carers, and even those who manage the care system, to understand how the previous law affecting them worked.”

Amongst other things, the Act deals with personal budgets, duties on local authorities, minimum eligibility thresholds and, of course, caps on the amount that you as an individual will have to pay for your care.

The Cap on Your Individual Care Costs

Under the current system, to qualify for your care costs to be paid by social services you need to have less than £23 250 in savings (known as your capital) and be on a low income. For more information on this, go to this page.

The new Act provides the legislative framework to place a cap on the total amount that you will have to pay in your lifetime.  There will be a needs assessment – currently known as a community care assessment. The care and support that you are assessed as requiring will be care and support for what will be known as your “eligible needs”. The cap on your care costs is the maximum amount that you will have to pay in your lifetime to meet your eligible needs.

It is important to note two points. First, at this moment in time the relevant part of the Act dealing with the cap has not been brought into force. The intention expressed by the government is that the cap will operate from April 2016. However, there will be a general election in 2015 and we may have a different government. As explained above, it is for the Secretary of State (who is Jeremy Hunt at the moment) to bring into force the relevant part of the Act.

The second thing to note is that there are no figures contained in the Act. Once again, the government has expressed an intention, this time to the effect that the cap should be set at £72 000. Just as with the implementation of the relevant part of the Act dealing with the cap itself, the actual figure at which the cap is set will be set and implemented by the Secretary of State.

The cap will not cover what are called “living costs”. This is highly relevant if you were looking to move into residential accommodation. The cap will not cover such costs as utility bills and food. The aim behind this is to try not to disadvantage those receiving domiciliary care. If you have home care; you still have to pay for things like heating and food. Therefore, excluding living costs from the cap attempts to gain some consistency between those in residential care and those receiving home care.

The cap will only cover the cost of meeting your eligible needs. You may want something extra. In such a case you will be expected to pay for that yourself. For example, if your eligible needs require a home care visit of 30 minutes each morning, only the cost of those visits are covered by the cap. If you wish to have a 45 minute call each day, you will have to pay for the extra 15 minutes.

 

Garry Costain is the Managing Director of Caremark Thanet, a domiciliary care provider with offices in Margate, Kent. Caremark Thanet provides home care services throughout the Isle of Thanet. Garry can be contacted on 01843 235910 or email garry.costain@caremark.co.uk. You can also visit Caremark Thanet's website atwww.caremark.co.uk/thanet.

The Care 2014 and the Concept of Well-being

Introduction

The Care Act 2014 is regarded as one of the most important pieces of social care law for over half a century. It is not a light bedtime read. It runs to over 150 pages and contains more than 120 sections. Section 1 of the act introduces the concept of well-being: “The general duty of a local authority…in the case of an individual, is to promote that individual’s well-being.” But what, exactly, is well-being.

Well-being an Idea Whose Time Has Come

Well-being is, and has been for a while, a concept that is very much a feature of our political landscape. David Cameron explained it in  2006 as there being  “… more to life than money…”. This idea has been around for a while. In the 1970s, it was labelled the Easterlin paradox, after Richard Easterlin who argued that the rich in any particular society may be happier than the poor, but rich societies are not necessarily happier than poor ones. When Cameron was Prime Minister in 2010, the Office for National Statistics was charged, under the government’s well-being initiative, with measuring the nation’s well-being.

Well-being in the Care Act 2014

The Care Act 2014 gives no simple definition of well-being. It does, however, list nine aspects of well-being and a further eight matters to which a local authority must have regard. There is also some statutory guidance that helps interpret what is meant by well-being. Two points to note here are first that the duty placed on a local authority is a general duty. A general duty is considered to be a weaker form of a duty tout court. Second, the general duty is to promote well-being not to achieve well-being.

A key matter to which a local authority must have regard is the assumption that individuals are best placed to judge their well-being. Section 1 (3) (a) reads:

In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular—

(a)the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being.

It will be interesting to see what effect this has in encouraging a less deferential approach by the courts to social services' expertise. It will also be interesting to see how easy it will be for local authorities to defeat the assumption on financial grounds.

The Act is still relatively new so there is not yet a great deal of case law dealing with it. There has been, however, just a few weeks ago, a case involving the Act that has been considered by the Court of Appeal. The assumption appears not to have been raised, although there was a consideration of some aspects of well-being. 

R (Davey) v Oxfordshire County Council and Others

The facts of R (Davey) v Oxfordshire County Council and Others 2017 appear in the judgment of Bean LJ who delivered the leading judgement:

“Luke Davey (the Claimant) seeks judicial review of the decision of Oxfordshire County Council (the Defendant) made in or around October 2015 to reduce the Claimant's personal budget and to revise his care and support plan pursuant to the Care Act 2014 (the Act). The effect of these decisions was to set the personal budget for the Claimant's care at £950 per week with effect from 1 May 2016, a substantial reduction from his previous budget of £1651 per week. Morris J, in [the High Court], dismissed the claim. Mr Davey appeals to this court. We were told that this is the first case in which the Act has been considered in this court.”

The Court of Appeal upheld the decision of the High Court. Mr Davey put forward a number of points, some of which touched on the general duty of his local authority to promote his well-being.

In the High Court, he had explained that his reduced budget would mean that he would have to spend more time on his own. Spending more time on his own, he argued, posed a risk to his emotional well-being. His local authority, asserted Mr Davey, should have had regard to this risk by virtue of its general duty to promote his well-being. More specifically, section 1 (2) (b) says that

“Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following—

 (b)physical and mental health and emotional well-being;

Morris J dismissed this claim, and concluded that the local authority had not failed to take into account the risk to Mr Davey’s emotional well-being. Detailed reasons for forming this conclusion are to be found in paragraphs 136 -141 of Morris J’s judgement. In the Court of Appeal, the contention that the local authority did not have regard to the risk to Mr Davey’s emotional well-being did not form part of the appeal.

In the High Court, Mr Davey contended that his Personal Assistants (PAs) would now be available for shorter periods and this would curtail the social activities that he could take part in. Social activities were important to his well-being. Morris J concluded that that the local authority had considered the effect on Mr Davey’s social activities of the shorter periods for which his PAs would be available. Therefore, the local authority had not acted inconsistently with section 1 of the Care act 2014. The Court of Appeal upheld the judge’s decision. Bean LJ’s reasoning is in paragraphs 82-84 of the Court of Appeal Judgment.

Mr Davey had a team of PAs working for him. This team had been together for over 17 years. He contended that his reduced personal budget would mean a change for the worse in the terms upon which this team was employed. This could lead to some in the team leaving which could affect Mr Davey’s well-being. The local authority had a duty to have regard to this risk under section 1 (3) (d) of the Care Act 2014, which states that

In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular—

 (d)the need to ensure that decisions about the individual are made having regard to all the individual’s circumstances (and are not based only on the individual’s age or appearance or any condition of the individual’s or aspect of the individual’s behaviour which might lead others to make unjustified assumptions about the individual’s well-being).

Again, Mr Davey’s argument was dismissed by Morris J who explained that the local authority had had regard to all Mr Davey’s individual circumstances. Once again, the Court of appeal upheld the judge’s decision on this point. The full reasoning of Bean LJ can be found in paragraphs 66-79 of the Court of Appeal’s judgment.

Conclusion

I’m not sure that the case advances our understanding of well-being that far. It would have been good to have seen a discussion of the assumption. If local authorities can routinely defeat the assumption on grounds of cost or that risks to well-being have been considered then the assumption has little or no purpose. 

Garry Costain is the Managing Director of Caremark Thanet, a domiciliary care provider with offices in Margate, Kent. Caremark Thanet provides home care services throughout the Isle of Thanet. Garry can be contacted on 01843 235910 or email garry.costain@caremark.co.uk. You can also visit Caremark Thanet's website at www.caremark.co.uk/thanet.