More than half of councils have admitted to “rationing” care over winter because of staff shortages, according to a survey by the Association of Directors of Adult Social Services (Adass).
Adass carried out a national survey about adopting policies for limiting care provided because of Covid pressures over Christmas. NInety-four of the 152 English local authorities responsible for social services answered and the results were published in January.
In the same week, The Observer newspaper made freedom of information enquiries to local authorities about unfilled hours of need on people’s care plans – that is, unmet needs that are eligible for a service or funding response.
Within the 96 local authorities in England that responded, 8,808 people in their areas had “unallocated” or “unsourced” hours of home care. The overall number of unsourced and unmet hours had risen from 15,905 in April 2021 to 60,664 by December.
Rationing
The ADASS survey showed that the responding councils were taking steps that they themselves regarded as “rationing” care because workforce shortages meant providers simply could not find the staff to fill the hours in care plans.
Half of all councils who responded to the survey were taking at least one exceptional measure to prioritise care and assess risk for at least some of their area and for some of the time. This included prioritising life-sustaining care over helping someone else to get out of bed or completing other activities.
Beyond the 13% that had carried out this most extreme form of rationing, 43% of councils were reprioritising support to those most at risk with essential activities only, and 42% were reviewing risk itself on a reduced basis.
This included accepting providers’ view of risk, relying on people receiving services, carers or providers to flag issues up, and responding only to requests for reviews, rather than carrying them out as a matter of course.
Councils were accepting providers’ views of risk, relying on people, carers or providers to flag issues up, and carrying out reviews only on request
Of the respondents, 11% had paused support for facilitated social contact, leaving people with dementia, learning disabilities or mental health problems isolated or alone for longer periods than normal.
People with unsourced care may have been going without but were more likely to be receiving care in a less appropriate setting, such as in hospitals or care homes, or being looked after, unpaid, by family members, who would likely have no idea that it need not be that way.
There is a right to be paid for care, even if this is provided by a close relative in the same family, if a council has judged that care is necessary.
The local authority cannot just say “that’s a conflict of interest” – it has to address the evidence as to necessity, because the regulations for direct payments specifically require it to consider necessity as a reason for departing from the normal arrangements.
Going without
There were shocked reactions to the survey findings.
Caroline Abrahams, Age UK’s charity director, said: “It comes to something when so many paid-for hours of care are not being used, all because there aren’t enough staff to put them into effect.
“This inevitably means that growing numbers of older and disabled people are going without the care and support they need and that, where unpaid carers are helping their loved ones, they are being forced to do more for longer, unaided and with no chance of a break.
Edel Harris, chief executive of Mencap, said that its support workers went above and beyond the call of duty every day for those they supported and the skilled work they provided was being taken for granted by the government.
She added that those who stayed in the care sector were being stretched to breaking point, and were having to prioritise meeting basic needs over encouraging independence and supporting social interaction that empowered people with a learning disability to live fulfilling lives.
Anne Pridmore, who runs a support group for people using personal assistants (PAs) through direct payments, said that what was blatantly missing in this survey was any mention of direct payment employers and the burden of responsibility placed upon them.
“Recruitment and retention over the last two years has been horrendous,” she said. “People are able to earn more working at Amazon or Aldi than work in care. I have been recruiting on and off now for 12 months and I still do not have a full team of PAs.”
Behind the scenes, Adass is calling for social care to receive at least an extra £7bn funding a year, a social care minimum wage equal to what the NHS pays for similar work, and for social care to receive a larger share from the new health and social care levy.
ADASS president Stephen Chandler said: “The roots of this lie in the failure to fund adult social care sustainably over the past decade and to recognise and reward properly the committed, courageous and compassionate people who work in it.
“Opportunities were repeatedly missed to ensure that adult social care would be robust enough to withstand the challenges posed by Omicron. Any money that has been forthcoming, though welcome, has been too little, too late.”
The survey was carefully worded, so Adass did not reveal precisely which councils were doing what. It was not therefore possible to determine whether any particular authority had said it was engaging in rationing.
Aiming for attention
In one sense, the survey is not a mass attempt to commit corporate harikiri by half the social services sector but more of a strategic flagging up of risk – legal risk – designed to grab attention at central government level.
Passing attention was stirred up in the care and serious press, but with regard only to the numbers, not to which measures might be on the wrong side of the flexibilities in the Care Act, and which might be just about defensible.
Nor was any attention given to the consequences for clients, or for their carers – women, in the main. Nothing was said about the routes to challenge these developments via the courts or the ombudsman.
One could be forgiven for concluding that this sorry state of affairs is inevitable and not really noteworthy. But it is an admission of breach of absolute enforceable statutory duties.
Who is it, one might wonder, who decides what to write about such things? And when is it worth actually properly researching around the subject matter, as opposed to just going along with the press release provided?
Reference was made to easements in the survey – an unprecedented legal device that meant the immediate suspension of the Care Act when Covid first arrived. This was mitigated by instructions from the government to ignore the suspension that existed in law only, and focus on continuing to do their best.
Councils were, effectively, asked to continue as if there had been no suspension, unless or until there was no option left to them but to admit defeat.
At that point, a council could trigger easement and scrutinise itself very carefully for exactly how people’s human rights, at least, would still be honoured.
Eight councils triggered easements in 2020. It would seem that the rest just got on with slip-sliding away from the legal framework and escaped challenge because of widespread ignorance of the rights actually underpinned by the Care Act, and as most people appreciated that most councils were trying very hard and that individuals were not to blame.
But look where that got us: long after access to those easements last summer, more than half of responding councils were admitting they could not reliably discharge their legal duties.
This is an object lesson as to how social services legal rights will be lost. Not with a bang but a whimper.
CASCAIDr ran a survey to try to find people who had been affected by this. Fewer than 10 people replied.
We know of no judicial reviews about this trend. We think this is because the legal aid system is broken already in this area, law firms know that public law judges are aware a court order will not magic up boatloads of qualified, competent care workers, and that golden hellos like those paid by retail and hospitality will not assist this labour market.
Even if politics present a more appropriate means of challenge, we know of no MP willing to ask in the House of Commons what the secretary of state for health and social care actually thinks of this development.
CASCAIDr wonders what the Local Government and Social Care Ombudsman will do about this when complaints about it start coming through, or on what basis this issue could not be described as “fault” causing injustice once the Care Act was back on the statute book in all its glory.
It can only be assumed that people have lost faith in the rule of law.
We would exhort people to do a reality check on their own thinking – because, without remedies and people to seek them, there are no rights, even in a society and a sector that are doing their best.
Updated advice
As an antidote to this sort of slide, therefore, CASCAIDr has updated its original analysis of the effect of the easements on whether council practices would attract legal challenge.
This time, the analysis has looked at: which practices would be defensible as they would just be making use of Care Act flexibilities whether or not any easements had ever existed; which ones would be a breach of public law when there are no easements (ie currently); and which would be unlawful even if the original easements were reinstated.
We hope that you will find this useful in your dealings with your local council.
Practices that May or Clearly Amount to a Breach of the Care Act is available from https://bit.ly/3p3Vzqb
