Adult Social Care Committee
Corrected oral evidence: Adult social care
Monday 20 June 2022
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Members present: Baroness Andrews (The Chair); Baroness Barker; Lord Bradley; The Lord Bishop of Carlisle; Baroness Eaton; Baroness Fraser of Craigmaddie; Baroness Goudie; Baroness Jolly; Lord Laming; Lord Polak; Baroness Shephard of Northwold; Baroness Warwick of Undercliffe.
Evidence Session No. 16 Heard in Public Questions 122 - 128
I: Belinda Schwehr, Chief Executive Officer, Centre for Adults’ Social Care—Advice, Information and Dispute Resolution (CASCAIDr); Professor Jerry Tew, Professor of Mental Health and Social Work, University of Birmingham.
Q122 The Chair: Good afternoon to the committee and a very good afternoon to our witnesses for this session of the Adult Social Care Committee. We have apologies from Baroness Campbell; otherwise, we are completely intact this afternoon.
I am very pleased that this afternoon we will be listening to two groups of experts on topics that we have identified, and that have been identified to us from the evidence we have taken so far, as profoundly important to our understanding of the topic that we have chosen, the invisibility of adult social care, and unpaid carers in particular, and that offer some solutions in many instances. For the first topic we have Belinda Schwehr, chief executive officer at the Centre for Adults’ Social Care—Advice, Information and Dispute Resolution. Hello, Belinda. Thank you for being with us.
Belinda Schwehr: Good afternoon.
The Chair: We also have Professor Jerry Tew, who is the professor of mental health and social work at the University of Birmingham. Both Belinda and Jerry, if I may use their Christian names, are expert in the implementation, design and delivery of the Care Act. This is something that we are very keen to understand more about. Witness after witness has said, “The Care Act held out much promise. Unfortunately, it hasn’t delivered on those promises”. Our questions to our witnesses in this part of the session will be, essentially: why not, and what has gone wrong?
The second part of our meeting this afternoon is on rural affairs. Rural issues in relation to adult social care are themselves extremely complex and very different from the situation we find in the inner cities, for example, and they deserve us paying particular attention to some of the challenges and innovation we may find. Our witnesses will be Graham Biggs, chief executive officer at the Rural Services Network, and Kate Garner, service manager at Shropshire Council, which has an outstanding reputation for good work in this field.
We have two very different but related topics, and we are very much looking forward to both those sessions and hearing from our witnesses. Thank you very much indeed for your time and for being willing to talk to us this afternoon.
I will kick off with a question on the Care Act 2014, an Act that came with great promise and some optimism and which we have heard held the possibility of doing things better and differently. In its language and approach, and the debates we had about the Act, it also argued for a new approach and maybe even a new culture and attitude to social care. It includes many of the necessary elements for change in social care, but we have heard without exception that it has not been implemented successfully.
One of the questions that is put to us, which we are now putting to you, is what adult social care would look like today if the Care Act 2014 had been identified. Where is the gap between what is possible and what we have ended up with so far? Professor Tew, can I put that question to you, please?
Professor Jerry Tew: That is an extremely good question. Some of the problem lies in the legislation itself, and how the ideas that are brought forward in the legislation are conceptualised and the degree to which there is a clear sense of: how do we know whether we are doing it or not doing it, how is accountability arranged around that, and so on?
In terms of vision, there is a real welcome for the ideas of prevention and well-being being foregrounded in the legislation. The research that I have been involved with has tried to dig under this and to see how this is actually being interpreted and understood on the ground. We have found that particularly the concept of prevention as conceived in the Act has been a little problematic, in a number of ways. For example, it does not talk to the way prevention is conceptualised in public health or in other public services, where typically there is an understanding of primary, secondary and tertiary prevention and the activities that then follow as to how we will have an integrated approach to prevention. Prevention in social care, as you well know, is defined as “prevent, reduce or delay” the need for social care.
Another unintended and unfortunate consequence, I think, is that for some people that read as cuts, so when we are talking about prevention what we are really talking about is cuts rather than capacity building, capability, resources, and so on. When we surveyed local authorities, they were having real problems conceptualising what they were supposed to be doing. If they do not know what they are supposed to be doing, it is then very difficult to hold them accountable for whether they are doing it or not doing it. I do not know whether this requires a change to legislation or just a change to guidance, but the guidance is singularly unhelpful because it equates prevention with primary prevention, reduction with secondary prevention, and delay with tertiary prevention, when an action at any of those levels could result in any of those outcomes or even none of those outcomes. An outcome could well be that somebody has a better life, but their better life involves ongoing support from social care services.
There is an unfortunate conceptual issue, which has made it hard. When we surveyed local authorities, we asked them, “Do you have a prevention strategy?” Almost universally, they said, “No, we haven’t. It’s embodied in our various other strategic documents, but we don’t have a prevention strategy as such”. Some said quite definitely that they had made that choice because they did not find prevention a useful way of organising the activity that they wanted to be promoting. They were much more comfortable talking about strength-based or asset-based practice, or other capacity-building language that gave them a better way of saying, “This is what we’re trying to do here. This is who needs to be involved. This is how we organise it”, and so on.
There is a lack of traction for the whole idea of prevention in the sector at the moment, and a concern, which obviously was not thought of at the time, that it would be so closely linked with the impact of austerity that people would tend to read prevention as a synonym for, “This is a way of cutting services”.
The Chair: That is very interesting. To be absolutely clear, do you think local authorities are saying that prevention is too difficult, or that, had the Act or the guidance made it clear that prevent, reduce and delay was not a sequential process but something that you had to do and that could be defined and implemented simultaneously, they would have been able to do it better and would not have had the excuse—it may not have been an excuse, of course—that funds had been drastically cut? We are trying to get under the radar. That is my question: is it simply too difficult in social care, or can we redo the guidance?
Professor Jerry Tew: I am not quite sure I have your question clear. Are you asking whether preventive activity is possible, or whether it needs to be reconceptualised in some way and clarified in legislation?
The Chair: I was not sure whether local authorities were finding prevention itself in social care more difficult, more challenging, than notions in the health service, or whether the guidance could be reviewed and clarified to make sure that there was no accidental suggestion, as it were, that these things have to happen in sequence.
Professor Jerry Tew: I do not think it is the sequencing that is the issue. It is the wider purpose and how that is conceptualised. Across sectors, there are issues with prevention. In public health you sometimes have a focus on trying to prevent a specific ill, such as obesity, and there are other times when public health is very strongly wanting to build capacity in a more general sense and to be involved in connecting communities and making sure that people have access to healthy food locally and so on in a much more integrated way.
It is not that anybody has prevention right necessarily, but by casting prevention in a different language in social care from that in public health, which is the obvious next ally in terms of how we will do things differently on the ground, that rather narrow definition almost reads as, “Can we save money?” in relation to social care services, rather than, “Can we enable people to be better connected, better resourced, and so on, as a result of which they will then have alternative recourse to support that may work much better for them than pure reliance on social care funded services?”
The Chair: Thank you very much. That is a question that my colleagues will pick up in different ways as we go through because the Act, of course, includes many other things as well.
Q123 Baroness Warwick of Undercliffe: Belinda, I noticed that you had your hand up, so if there is a particular specific point you want to make during our conversation, please do.
I wanted to ask you something that is possibly even more difficult conceptually than the conversation we have just had. From your experience, if the Care Act 2014 had been appropriately understood and enforced—we are specifically looking at unpaid carers—what would social care services look like for unpaid carers? How different, in your experience, is this concept from reality?
Belinda Schwehr: It is a very different concept from the reality, if I may say so. I have prepared three things quickly that I think are worthy of note, and one solution, which I will not say is an easy one but is at least feasible. It relates back to the references to amending the Guidance.
The main problem for unpaid carers is the very great deal of misinformation that is spread about what they ‘must’ do for their loved ones. There has been a long-standing notion among councils that there is a doctrine somewhere of ‘natural’ or family support. I have to say that I think council staff and central government politicians peddle that notion to deter people from pushing for larger care packages. Under the Care Act, councils are allowed nuance as to what carers do and what local authorities would have to do if carers were just to ‘down tools’ and stop. That is an aspect of expertise in the legal framework, and one of my major themes throughout my presentation this afternoon will be about how legal illiteracy in relation to the legal framework has now reached such a pitch in local authorities that it is impossible for staff to understand when they are abiding by the law, when they are sailing a bit close to the wind, and when they are going well over the borderline.
Another thing for unpaid carers is that the Care Act, if it is properly understood, does not make it an ‘all or nothing’ thing. A carer can withdraw a little, bit by bit or they can pivot the aspects of care for which they are positively wanting to take responsibility. That is what a discussion about an ‘indicative’ budget was always intended to be for. The idea in the guidance of an indicative budget as opposed to the finalised budget was that there could be a proper discussion about whether it could all be rejigged a bit between the State and the carer so that the carer had the energy and the time to do the most valuable things for their loved one, knowing their loved one as they do, harnessing all that expertise that the carer has, in the notion of what matters to their loved one. However, in practice, that negotiation just does not happen and sometimes an indicative budget is still used as a ‘take it or leave it’ thing, which means that carers feel that they must do whatever the local authority says the local authority will not do, or else that they risk their loved one being taken away and being stuck in a care home. For people who are dedicated to unpaid care, that is a pretty horrific thing to be happening.
The third thing that matters is an aspect of carers’ support budgets. Carers’ support budgets are for an entitlement in their own right, yet the way in which councils have allocated money to a support budget bears no relationship whatsoever to the way in which they try, on a good day, to allocate a specific amount of money to a service user’s budget. There is a developed body of case law around the sufficiency of a personal budget for a service user, for which councils can be judicially reviewed if they get it wrong, and that requires a nexus between what has been identified as the main problem, the impact it is having on the service user, and the cost of the thing or the service that would put it right. The law is meant to be the same for a carer’s support budget, but in fact the old habits of councils were just to allocate a small grant called “Something for Me” or a sum of money for respite or short breaks, and basically say, “That is what we do for carers. That’s our local offer”.
If, in fact, the Care Act were properly understood, we would come off the fence about whether the law is meant to be the same for carers and service users in relation to the rational sufficiency of the sum of money that is allocated. We are in meltdown, and there is legal illiteracy flowing all around, so that nobody does that, and carers just take what they are given and are expected to be grateful, if they are given any money at all. Those are my points on carers.
Baroness Warwick of Undercliffe: You were going to offer a solution, or at least a part of a solution, but let me just ask you something. Has there been any litigation on that basis at all, any cases taken by any of the representative bodies for example, or anything that could be pointed to that has in some way clarified the purpose of these moneys?
Belinda Schwehr: No, I am not aware of any litigation related particularly to the rationality of a carer’s support budget. Most of the emphasis in the litigation has been on the sufficiency of the budget for the customer, the service user—whatever the trend is in how we refer to those people.
It is true to say, of course, that if the carer withdraws in part, some of what they were doing will be the equivalent of the type of response for eligible assessed unmet need that the council would then have to fund. There is that case law, but it tends to focus on the implication of the carer’s withdrawal for the service user’s budget rather than on the relevance of the impact on the carer and the domains in respect of which they have been found to be eligible in their own right. That is the problem there.
There has not really been a fertile field for judicial review in the seven years since the Care Act came into force, because of the impact of changes to the legal aid system and the legal aid fraternity’s capacity in general to take these principles forward and get them clarified. There were about 60 cases a year before the Care Act came into force, but only about 15 or so over the six or seven years, since.
I believe the solution would be writing into the Guidance a proper chapter on carers’ rights. It is extraordinary that it has no such specific chapter. It is so extraordinary that it makes one wonder whether it is deliberate. There are references to the law being the same for carers as it is for service users, and then no follow-up on that. The irony is that the most radical parts of the Care Act were the parts that changed carers’ rights.
It is obvious that one could have expected such a chapter to be there, and I think it could be done in less than half a day with proper references to judgments from which principles can be drawn. It would specify in words written a mile high that unpaid carers have to be both willing and able before their availability and their willingness offset the statutory duty. Yet we have rhetoric at the moment that is all about ‘families first’ and that being the natural way that British people want to behave. That is effectively driving us towards a culture in which carers, and that means mainly women, simply step up and do the stuff that the State is not being funded to do. It becomes a personal and political issue as well.
Baroness Warwick of Undercliffe: Thank you very much indeed.
The Chair: Thank you very much, both of you, for these extraordinary answers. We will probably come back to you with additional questions on that point, Belinda. There is a lot in the very important things that you have just said that we want to unpack.
Q124 Baroness Shephard of Northwold: I have been terrifically interested in the answers from both of you so far, I must say. Local authorities often say that the major reason for their non-implementation of the Care Act 2014 is that they lack resources, whereas we have heard from both Professor Tew and from Belinda that there are many conceptual issues that apparently underline some sort of misunderstanding of the interlocking between local authorities and the health service.
My question is to Professor Tew and is about financial resources. We had a very illuminating question in our evidence, I think last week, which was quite simply about the division between the accountability of health and local authorities for social care leading to a continuing misunderstanding. Most of the people on the committee have had experience on both sides. I certainly have, and my observation is that the Care Act does not make it any easier for one to allocate accountability and responsibility between the two sets of thinking. Anyway, my question is about financial resources.
Professor Jerry Tew: My expertise from my research is related much more to the prevention and well-being side of the Act and its implementation rather than to the specific budgetary constraints that Belinda referred to, which obviously impact hugely on people’s lives. When we were surveying local authorities, we had a very interesting paradox coming back to us, which was that it was actually austerity that was the most powerful driver of local authorities thinking about prevention. That was a more powerful motivator of change than the Act itself.
At the same time, it was the lack of resources to do the prevention activity that they identified would be effective in their local area that was the biggest inhibitor to doing that. We had local authorities saying, “We’re having to cut back on our preventive activity”. A lot of local authorities think that the funding of local micro-organisations through the third sector provides an effective safety net and support structure in many areas, and that was proved correct when Covid suddenly happened. For local authorities that had invested in that there were people on the ground who knew who would need prescriptions, who would need food, and so on. That investment had been very good.
We had other local authorities saying, “We’d love to do that, but we’re not meeting what we see as our basic commitments to meeting the needs of people we deem critical. Therefore, we’re having to disinvest in that prevent activity. We know that it’ll result in the long term with more people needing more help from us, but we can’t square that circle”. A number were saying that if only there had been some dedicated, ring-fenced funding under the Act that said, “This is money that you can only spend on preventive activity”, that would have been a huge enabler, once they had identified what would make a difference in their local authority area to their citizens, to putting that into practice.
Some local authorities have made very tough decisions and said, “We’ll continue to invest in prevention at the expense of the budget that’ll be available to individual citizens who are in greater need”. That is a very difficult decision for local authorities to take, both morally and politically.
Baroness Shephard of Northwold: I think that when local authorities used to say austerity, they meant financial resources. It was a period we passed through. The discussion so far between our members and you and Belinda Schwehr is also about attitude and understanding what the responsibilities are. We heard from Belinda that one thing that would be great would be much more clarity about local authorities’ responsibility for carers. I am terrifically interested in that, and I totally accept what you say. Of course we know that, and it is good to have it confirmed. During this afternoon’s discussion, we wonder whether a bit more clarity about local authority accountability might be helpful. Thank you so much, and thank you also for your splendid answer to the first question.
Q125 Lord Laming: Professor Tew, I think the picture that the committee has been getting during our work has been that the Care Act is well intentioned, but is it implementable? Can it be put into practice? We would be very interested in your assessment of that, because we wonder whether the Act is achievable. I will come back to you with a second question when we hear your first response.
Professor Jerry Tew: Again, I think I am more able to answer your question in terms of the focus on prevention and well-being than on the eligibility for service part of the Act. I do think that there is an inherent contradiction between the two in terms of how local authorities and practitioners deal with this on the front line.
One of the things that concerns me is the notion of assessment and how that is conceptualised. There is a reductive approach to a Care Act assessment, which is, “All we’re doing is assessing your needs for social care”, which is no different really from what pertained under the National Health Service and Community Care Act previously. It does not achieve that change of focus and change of thinking. People should have a right to an assessment that feels very different. In other parts of the Act we are talking about much more co-productive ways of working rather than doing things to people, recasting assessment as something that is about co-producing solutions with people that enable them to resolve the challenges they are facing with the people who matter to them.
I take everything that Belinda is saying about the danger of an agenda that morally assumes that family has to sort things, but there are also a lot of instances of the model of involving family members working. It is helpful to move beyond the idea of the singular carer as being the model of care, which is an extremely unsustainable model of providing care and support, and ways of involving more people are inherently more likely to work, to be mutually supportive and so on.
If we can have a way of doing assessments that is about finding out who the important people in your life are and the challenges that you are facing, and getting those people together to come up with solutions, that is a very different feel. I am sure there are many inherent problems with that in some instances, but I think we know from best practice in local authorities that are doing this that it can work extremely well and that people can be very satisfied. They used to say, “We’ve been excluded from key decisions. It’s the local authority that is saying, ‘This is what will happen’, and this is not really what our relative wants. This is not really taking into account who they are and who we are”, and so on.
I would like to see in the guidance a fundamental reconceptualisation of what sort of assessment people should be entitled to, which is about what a better life would be like for you, who is involved and how we get there. Then it is a subsidiary question: what forms of funded service support may be part of helping you to get from A, where you are now, to B, which is where you want to be?
I will give an example, from previous research on how people were using personal budgets, of what I thought was excellent practice in one local authority in relation to mental health. They were allowing much more flexibility in the use of personal budgets, so that people not only used those budgets to have a support worker and to carry on with the not very satisfying life they had but used short-term funding maybe to get a bike or a laptop, leading towards them enrolling on a course. It was about getting a life in a much broader sense rather than just ticking over at a level that was almost socially acceptable but not quite.
Lord Laming: Would that be achievable without changing the legislation, or should we be realistic and think that to achieve what you have just set out, which seems admirable, there would need to be a fundamental change in the legislation?
Professor Jerry Tew: I suspect the latter, but I am not the legal expert in this virtual room. I am sure Belinda would have a much better take on that.
At the moment, the part of the legislation that in a sense is closest to previous legislation on eligibility criteria and so on is the bit that has bite. In what I have been observing, I have seen samples of case records supplied by local authorities that are trying to work in a different way. In the way the case record is written, you have that sense of eligibility criteria as the elephant in the room that is stalking the whole conversation.
Rather than the conversation being about what a better life would look like and how we get there, the conversation is, “Let’s tick off as many disability deficits as we can find, because ultimately we want the ticket to claim your eligibility for services. Let’s downplay things that are potentially positive and play up anything negative”. It just gets into that unconstructive conversation, which is about people feeling that they have to downplay their own abilities and aspirations in order to get a service, which is probably a service that they do not particularly want anyway but is the only thing that is available. That is the world we are all trying to move on from.
Lord Laming: Indeed. That is very helpful. Thank you very much, Professor Tew.
Belinda Schwehr: I do think that some amendment could be made to the prevention and reduction section that is Section 2 in the Act. I think local authorities misuse it as an excuse to stretch out the assessment process. I remember a target many years ago that there would never be more than 28 days between first contact and putting a package in. That was a government target, but it was not in legislation. Now that we have prevention and reduction, a reduced workforce and a concept of free reablement, it is as if we have automatically gone to a six-week wait for a care package other than in urgent cases. With Covid on top, that can stretch into three or four months (or longer in complex cases).
One thing I would suggest is that the Care Act is amended to make it clear that there needs to be a record, however brief, of what prevention and reduction strategies or signposting suggestions have been made, and whether they were taken up or not, and whether by the time the final assessment and eligibility decision is made, those efforts at prevention and reduction have had any effect. That is so important, because if they have not worked first time round, it is key at the care planning stage that that is remembered, to avoid local authorities just signposting people back around again, to the same or same sort of thing that has already not worked.
For me, the obvious truth of prevention and reduction being a ‘before’, ‘during’ and ‘all the time’ sort of thing—(and that is in the Care Act Guidance incidentally - which I think councils find confusing)—is that IF it works first time round, it will reduce impact and the amount of money councils then have to spend. However, if it has not worked, it will be because people were signposted to things that have since closed because of the grant running out; or to things that were unarguably, and inconceivably daft ideas that could not possibly meet the needs arising from the problem, or because people had other good practical reasons for not taking those things up. There are very few people who refuse to engage with prevention and reduction just because they have a prejudice or a level of snobbishness that says they are ‘not going near that, if it is council-run or funded’.
If - at the final stage of care planning - there is still eligible unmet need, the Care Act is good and rights-based in saying that that is what local authorities then have to fund. At the moment, I come across people who are still being told that there is something out there that will do, and that is why they have a nil budget even though they have been assessed as eligible and have a care plan. It is a care plan about nothing, in the end, because of the idea of community sourced ‘assets’ and ‘strengths’.
That is an amendment that I think would feasibly help people to not just get sent around the system again.
Lord Laming: That is very helpful. Thank you very much.
Professor Jerry Tew: Could I add a slightly different perspective to what Belinda has said? Clearly there are people who have exactly the experience that Belinda is describing, of being, shall I say, fobbed off. Signposting is quite a dangerous concept. For many people it suggests that the assessment has been very limited and that they have not understood the person, their wider network or what sort of life they want. The better models of practice out there involve concepts like sticking to a person like glue until you have found and helped them to find and maybe build their confidence to find the things that will work for them.
I do not think that prevention should be equated with signposting for a small number of people with very straightforward needs like, “I’d like to know where the nearest book group is”. It is down there, fine, end of story. You will get some of those, but what we are concerned with here is people who have substantially higher levels of challenge in their lives. For those, finding an alternative that really does work for them, that perhaps better integrates them into the community or into a community that they particularly wish to identify with, and so on, takes worker time, relationship building, confidence building, capacity building, and connecting.
Those are seriously important activities, and when they are done well, it impacts the proportion of people who then need services, at least at the same level that they might otherwise have needed. The evidence we have is that it can work very effectively, and there will be a proportion who will have formal services as part of that better life.
One of the things that I find particularly dispiriting is when local authorities see the provision of the service as the end, the outcome and the achievement in itself—residential care, problem solved. No. Somebody has moved to a new place, but how will they stay connected with their family, with their community? How will they have a good life with their base being in residential care? The four care calls a week or residential care are not about a good life. They are means to an end; they are not ends in themselves.
Lord Laming: Thank you very much.
The Chair: I will come back at the end to some of the things you are saying. They are such important answers that you are giving us.
Q126 The Lord Bishop of Carlisle: Belinda, you talked very helpfully earlier about unpaid carers and the need for a chapter on carers’ rights. Can I bring you back to social care professionals and what I think you described earlier as their legal illiteracy? I take that to mean that very often they do not fully understand their own duties and responsibilities under the Care Act or, even if they do, they are not entirely sure how to implement them. What could we do to make sure that those professionals are properly equipped to carry out the roles the Care Act envisages for them?
Belinda Schwehr: I would say that the workforce is key, but I would specify that I am talking about the social services workforce rather than the social care workforce, for now.
I would say that we get the social workers or the care managers that we deserve in this country, and this is where it does come back to funding for the training or the college stage of training for a social worker - or the continuing professional development stage of making sure that even non-formally qualified staff know what they are doing. That simply is not funded at the moment.
Even though everybody is supposed to have one Care Act course a year, it is often about things like identifying assets and strengths rather than the legal framework. That is not to denigrate what Jerry has been talking about at all. There simply is not enough time, money or people doing the job to stop the de-professionalisation of care managers and social workers.
The culture in a local authority has been that one gets promoted by reference to whether one can save money and make the budget balance, rather than by reference to one’s intellectual calibre and one’s knowledge base. A cultural change needs to happen, and part of that would be a curriculum change. The classic approach is that social work degree students will be told about the Care Act, the Mental Health Act, the Children and Families Act and, of course, the Mental Capacity Act, but they will not be taught about public law principles and how public law works as a sort of ‘common law’ governing public bodies so as to keep staff on the straight and narrow. However good their values-based training is, they then go and work in the statutory sector, sometimes for an organisation that positively needs them to sail close to the wind, because the councils do not have enough money to deliver on the Care Act as it should be delivered upon.
The curriculum needs to change, and both the CQC and Social Work England need to insist on continuing professional development in and about the legal framework as part of proper quality assurance. I do not think that we will get a functional safety net in this country unless we pay more than peanuts. One needs to build in the time for the training.
The thing that worries me from the training perspective is that social services are about to get even more closely integrated with the health service, as you know.
The health service management cadre knows about the law of negligence but does not know about public law. Its writ does not run in the NHS. We are about to integrate and have functions indiscriminately allocated to one bunch of staff or another, without any edicts about the need to train the NHS people who might whilst doing hospital discharge, start feeding into a Care Act assessment, without training them at all on the Care Act.
It is almost un-trendy to suggest that one needs to know about law, in order to do this work. It is like sending a surgeon into an operating room without a scalpel, it seems to me. The legal framework is a tool for management and strong leadership, and it cuts through hours of waffle about what professionals ‘could’ do or what they definitely ‘cannot’ do. As the workforce gets more and more overstretched, of course, there is less and less time for legal framework training.
The integration direction of travel needs to be underpinned by legal framework training. The real shake-up, next year, when the Government changes the social services charging framework and the £86,000 cap comes in, will mean that ‘middle England’ floods into social services to get their progression to the care cap started, which likely means a doubling of assessments, which are not being done properly in the first place.
The idea that we will somehow get a more qualified workforce when local government has to cast about for people who just fancy trying it out and have no social work background, heralds, for me a worsening of legal literacy in the system, rather than a commitment to improving it.
The Lord Bishop of Carlisle: That is very helpful. Thank you very much. It is primarily about training but also about selection and pay, which are other issues that we have touched on in the past.
Q127 Baroness Fraser of Craigmaddie: My question is to Professor Tew. This committee has heard from various local authorities, various different geographical areas and different models of care. We are interested in whether in your research you have found any evidence to help us or have identified the key elements for how we take good models of practice in small geographical areas and work those up. How can it be disseminated at a national level? Does your research have any pointers to help us with that conundrum?
Professor Jerry Tew: That is an extremely good question. Had Covid not happened, I might have a much better answer, because the most recent research project, which we are currently running, is with local authorities that in 2019 had very clear aspirations as to how they were going to take forward an innovation agenda. Then, the research was more about tracking the experience of local authorities surviving and doing the best they could in circumstances that no one could have predicted.
But there are still important lessons that come out of that about the principles of what makes things work. Local authorities are typically not great on clarity. They tend to have a sense of where they would like to go, but crystallising it into a very clear, simple vision that everybody gets is much harder. There are wonderful exceptions. The vision of primary prevention that Leeds came up with was for everyone in Leeds to have three good friends. That is wonderful, because it is so simple and so clear, the public understand it, the workforce understands it, and so on. If people have three good friends, we have moved beyond the idea of the singular carer shouldering everything and something being unsupportable. Whether three is the magic number I have no idea, but it gets people thinking about the support systems that work for people that are about more than just physically keeping people ticking over but about having interesting lives, varied contacts and so on. There are good examples, but not many, of where there is that crystallisation of a vision.
For it to work, it has to work with the citizens out there as well as motivating the workforce or whatever. It is about the local authority having a different relationship with its citizens and seeking to work with them to produce solutions rather than doing things to them or for them, imposing things on them or backing away when they are most needed, or all the other things that unfortunately local authorities can do.
There are distinct advantages in aligning with a practice approach that a number of local authorities are all trying to implement at the same time. Then there is a chance for them to compare notes, support each other, and learn from each other’s mistakes in a wider community of practice. There can be a tendency in some local authorities to say, “We’ve got to do it our way. This is the Bolton way of doing things, and we’re not going to do what they are doing in Wigan, because we never do in Bolton what Wigan is doing”. That, unfortunately, is unhelpful.
There are some very effective and useful networks nationally that are hosted by third sector organisations like Community Catalysts, which you may well have taken evidence from, which are very good at providing those learning networks across local authorities so that they can have a sense of, “Are we doing it? Could we do it better? Can we learn from you?” There are obviously limitations if you are buying into a particular model, and there may be local variations that you want to make. That is very good, but it is better not to go it alone if you can go forward with a wider community of practice.
I would also say from our research that you have to have quite a broad approach if you are really going to change things, and if you have a really good model for working with people as they come through the front door but you do not have a good model of developing the micro-level capacity in communities—how people on the same street can connect with each other and not have to go to a day centre, because they hate day centres and that is not what they do, but they may have common interests.
It is that fine-grained knowledge of communities that to some extent we have lost in social care. In some ways, we had it better some years ago, and it is about coming back to that combination of focus where we can look at how we as local authorities interact with individuals and how we convene the wider network of people who matter to that person, who may be family and may well not be family. It is who those key people are who can be involved in supporting them and in supporting them making decisions.
What is the wider community? As I said before, do not conflate that with something like signposting. This is serious hard work and there are different ways of doing it, but if it is done well it results in very different and much more positive outcomes for people, which is not just about sustaining a “just about ticking over” lifestyle, but about supporting a good life for people at different stages of their life.
When this is done well, the actual costs involved seem to be not that different from what we may be doing under ways of working that are much less well focused on people’s outcomes. I am very cautious about saying that this way of working saves money, because it probably does not, but nor does it cost the earth. If people can come up with the solutions that work for them, the decisions that work for them, they will probably be broadly in line with the budget that professionals would have come up with if they were not over-constrained by a local authority culture that says that you have to save money even if it hurts, even if it damages people.
Baroness Fraser of Craigmaddie: Thank you. If research has identified that a better way of doing it produces better outcomes and probably does not cost a great deal more, our frustration is: how on earth can we make those areas that are not doing that do that? Thank you.
Q128 Baroness Barker: Just out of interest, could you tell us, perhaps in writing afterwards, whether you know of any local authority that knows how many people in its area are ageing without children and whether they plan accordingly? I would be interested to know that.
I am supposed to ask how accountable local authorities and social care providers are. I suppose the better question would be: to whom are local authorities and social care providers accountable, and how can that accountability be improved?
Belinda Schwehr: Understood. Taking it as quickly as I can, I want to stress that there is no appeal in the system against a professional judgment that somebody has a want rather than a need. There is no tribunal. There is merely the complaints system. The Government have made it perfectly clear that they are not open to being pushed into creating a tribunal.
When you bear in mind that local authorities, if they are a social services council, spend something to the tune of 60% of their budgets on social services, children and adults combined, you can see why the thought of an appeal tribunal overriding professional decisions would simply be unaffordable to any Government who knows what the system costs at the moment.
The systems for accountability are either the complaints system, which leads forward onto the ombudsman, or the use of a councillor or the press, or a little-known remedy called the monitoring officer, who is a statutory governance official created in 1989 by Parliament with a view to that person being a sort of chief governance director who would intervene behind the scenes if they had had referred to them a likely contravention of an enactment or a rule of law.
The Hansard debates for that period show that Parliament intended that person to be a mover and shaker, not anybody’s direct line manager but somebody who would call departmental heads back to the straight and narrow with the express purpose of avoiding litigation for illegality. The monitoring officer is actually a very hard person to find in any local authority; they tend to be hiding in a dark corridor up at the legal services end, it’s usually the head of the legal department. My charity is constantly told by monitoring officers to just use the complaints system—as if their statutory duty did not exist. The complaints system is for something completely different, but the monitoring officer culture is, “Don’t bother us with illegality. Either sue us or use the complaints system”. That needs radically solving.
Those are the forms of accountability at the moment. I have six very quick suggestions for what we should do, and I will write to you further about them. One is that I would expand the ombudsman service, doubling the number of investigators the ombudsman has. That service is the next best thing to a court or a tribunal that any Government seem to be willing to fund. Something like 70% of all rejected local authority adult social services complaints that go on to the ombudsman are upheld. If that is not the most telling evidence of local authorities not abiding by the Care Act, when probably 50% of fault found is because it is a breach of the Care Act, I do not know what is.
I would also clarify the legal aid framework so that law firms knew that they could help people to complain to the ombudsman with the help of preliminary legal help legal aid funding . That is ambiguous at the moment, so most people do not make a properly couched complaint as to illegality, when they could be helped to make one by the legal aid fraternity.
I would next fund thelocal focus disability groups used by councils to get better informed so as to be a more effective force for public awareness and challenge
I would ensure that CQC is not let loose on scrutinising local authorities’ functions without specific training about public law and community care law in particular,
I would clarify the role of the Monitoring Officer and extend that role into the Health Service
I would press for the government’s funding of a personalised advice pilot, as promised
I would press for central government to fund CABx at a national level to take on community care law as a field that the network offers alongside housing, and benefits rights.
The Chair: Belinda, I will have to ask you to write to us about this. We have another session after this.
Belinda Schwehr: Yes, I understand. I will.
The Chair: I am very sorry to interrupt, because what you are saying is critical. Baroness Barker also asked a very important question.
In wrapping up this session, we have heard from both of you a very complementary approach to some of the gaps, inefficiencies and deficiencies of the Care Act in its design and implementation. You have given us some very powerful steers on what guidance we can think about. You recommended specific changes, Belinda. I know it is an extra burden and you are very busy, but can you set out what you have said about guidance and the amendments, and about how we strengthen accountability, which were talking about when I so rudely interrupted you? What needs to change?
Professor Tew, you have talked passionately and very powerfully about what can and should be done by way of a connective tissue in local communities and local authorities. Can you give us examples that we might not have come across in other ways? Can you tell us, if you find some, what are the universal principles that characterise the successful innovations? Does the Care Act incentivise that, or does it have nothing to do with the Care Act? Is it happening because local authorities are the most innovative agencies that we have? If so, how can that be liberated and encouraged?
I am extremely sorry. It has been a very important session and we could probably have gone on for another hour, but such is the timetable of this committee that we are under the cosh every week. We have learned a huge amount from you and I am very grateful. On behalf of the committee, thank you very much.