New Care Act guidance exposes Government deception

New Care Act guidance exposes Government deception

The care minister Norman Lamb has hailed the 2014 Care Act as the biggest change in social care in 60 years because it gives people full control of their care packages. But Peter Beresford says that this stance is a sham…

Guidance does not have the same force of law as primary legislation but it sets out how the government would like to see the legislation applied and therefore its overall strategy. The situation of M, a disabled woman who took her case to the Supreme Court, illustrates the point.

M lives alone at home. She has mobility issues and needs support to transfer into and out of bed. At night she needs to visit the toilet frequently. Her council had paid for a carer but then decided the cost was too great. Instead they recast her need as being not to risk falls at night. This need, they argued, could be met with incontinence pads. M disagreed with the recasting of her need and protested that dignity is a key element of need in toileting matters and that forcing her to wear pads and to sleep in her own urine and faeces when not incontinent was a profound affront to her and denied her need for dignity.

In the era of personal budgets, an up-front allocation would have played no part in the decision. Her weekly allocation was simply slashed so all she could afford was incontinence pads and not the carer she wanted. This exposes the notion of personal budgets through up-front allocations as the route to choice, control and independent living for the sham that it is.

The Supreme Court dismissed her appeal but there was a dissenting voice on the panel of judges. Baroness Hale pointed out that the law required a distinction to be made between what a person’s needs are and what a council is willing and able to do; resources cannot come into how needs are understood. Needs are needs, whether we can meet them or not. We have all come to expect our dignity to be respected when urinating and defecating and we all have the right to define what meets our needs for dignity. The council had no right to recast her needs simply to suit its budgets.

What difference would this dissenting view make under the new guidance? The council cannot conjure money it doesn’t have. M’s council might still have only given her incontinence pads (or the money to buy them herself). But crucially it could not have pretended this met her real needs for safety and dignity. It would have been forced to be honest; they only had the resources to meet some of her needs.

The Government’s guidance to the new care act makes it very plain that it has no intention of changing this system. It’s one that protects them from the reasonable, lawful and ethically legitimate demands of M and the many thousands like her. It’s a system that enables political leaders to proclaim that eligible needs are always met, no matter how small or diminishing the budget. It’s a system that ensures they can sleep easy in the belief no one can ever prove there is any unmet need. The new National Minimum Guarantee is simply a system where the professionals are required to do the dirty work of the politicians. Government has rejected the notion of making any kind of person-centred outcome such as the United Nations concept of independent living, a guiding principle of assessing needs as being abstract.

If Government has its way the future will be every bit as gloomy as the present is for the great majority of service users.

But it need not be like this. The law, understood as Baroness Hale sets out, has always offered a legal right to a holistic assessment of need whether simply based on the standards of civilised society or an equivalent of the UN vision of independent living. The new care act affirms this. If the budget cannot meet them all, everybody should know it, not least the politicians who would prefer not to know. Professional staff would stop being forced to compromise the ethical standards which require them to put service users first.

If there are councils who truly want their older and disabled citizens to have a quality of life comparable to others, they will buck the government guidance and declare a vision based on a person-centred outcome, assess needs in partnership with service users accordingly, be honest about how much of that need can be met and expose the local and national political system to the shortfall. But the track record of supine compliance with government policy in recent years doesn’t give any basis for confidence that many will follow this path.

A better way forward would be for service users and their allies to mobilise with a new focus. They should insist on the right to a holistic assessment of needs for all, untampered by considerations of resources, honesty about the shortfall of resources and political action to address it. But for that to happen those who take government at face value will need to let the scales fall from their eyes and see government strategy for what it truly is. And they should not accept that giving control and a sufficient resource to a small minority, while the great majority have neither, is any kind of substitute for the vision of independent living as a quality of life all deserve.

Peter Beresford is Director of Centre for Citizen Participation – Social Work at Brunel University

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