BASW England policy response: Health and Social Care Bill
BASW England is consulting with members on the proposals within the Health and Care Bill and the implications for social work
The Government’s Health and Care White Paper was introduced to the House of Commons by Secretary of State for Health and Social Care, Matt Hancock, on 11 February 2021.
On 6 July 2021, the Health and Care Bill was introduced to parliament and received its second reading on 14 July 2021.
The proposals are the culmination of two years of Government work alongside the NHS, local councils and the public. The aim of the White Paper is one that delivers “greater integration, reduces bureaucracy and supports the way that the NHS and social care work when they work at their best: together”.
BASW England consulted members of its ‘Adults group’ on key areas of the White Paper that were of most relevant and of interest to our work and we present this Policy Statement as our initial response to these proposals - along with the recently published Bill, with a separate statement focusing on Discharge to Assess proposals.
It should be highlighted that the white paper does not contain proposals for the long-term reform of social care.
BASW England’s response focuses on the following areas relating to the Bill:
- Discharge To Assess
- Better Care fund
- Direct Payments
- Digital and Data
- Quality assurance
The recommendations in the Bill aim to give a statutory footing for the existing Integrated Care Systems (ICS).
NHS England describes integrated care as “giving people the support they need, joined up across local councils, the NHS, and other partners. It removes traditional divisions between hospitals and family doctors, between physical and mental health, and between NHS and council services. In the past, these divisions have meant that too many people experienced disjointed care.”
The ICSs were developed over most of the country as Sustainability and Transformation Partnerships (STP) and are effectively collaboration partnerships between hospitals, Community Health and Local Authorities. NHS England and NHS Improvement had previously called on Government and Parliament to establish ICSs in law. This is what the Bill intends to achieve.
BASW England’s view:
BASW England welcome a step away from the marketisation of health and social care and are encouraged to see the Bill set out further integrated working between and partnership with social care.
The Bill does not propose a full absorption of social care into the health service which has been a concern of BASW in the past.
BASW England Adult group has developed a submission for the Social Work APPG (All Party parliamentary group) setting out the groups’ position and evidence for the Inquiry: Integration of NHS and social care.
A recording of the first APPG evidence session can be viewed on the BASW Facebook page.
Discharge to Assess
The Bill asserts that measures will be brought forward to “update approaches to hospital discharge to help facilitate smooth discharge, by putting in place a legal framework for a ‘Discharge to Assess’ model, whereby NHS continuing healthcare (CHC) and NHS Funded Nursing Care (FNC) assessments, and Care Act assessments, can take place after an individual has been discharged from acute care. This will replace the existing legal requirement for all assessments to take place prior to discharge.”
The aim of these changes will be to “embed good practice guidelines”. The aspiration of the Bill is that the individual care and support needs of people are adhered to by ensuring the safe discharge into familiar environments which thus leads to more appropriate evaluations.
These proposals will involve amendments to the existing Care Act 2014 and the legal requirements relating to hospital discharge policy. The Care Act 2014 presently outlines a clear responsibility of local authorities to work together with health partners to bring people to the centre of any decisions made, with the Wellbeing Principle forming a corner stone of the assessment process and provisioning of support and services.
BASW England’s view:
We have concerns that a local authority’s Care Act duty to integrate care and support provision with health provision to promote individual wellbeing will be compromised. The proposals for Discharge to Assess do little to promote Article 8 and 5 of the Human Rights Act or offer assurances as to how rights will be upheld. These were key concerns reported with the current Discharge to Assess arrangements implemented during the Covid-19 pandemic.
Echoing the findings of the Healthwatch and British Red Cross survey in October 2020, BASW England presently has several concerns about the experiences shared by people, the support available, safety and consistency in approach to those with eligible needs for care and support leaving acute care settings, based on this proposed consolidation of Discharge to Assess pathways.
A survey of Social Workers conducted in December 2020 involved in hospital discharges highlighted that the vital contribution of social work in the multidisciplinary team was being marginalised by the medicalisation of people’s journeys out of hospital. Most importantly, social workers felt that the voice of the individual was lost, indicating arrangements being made without consent or against people’s views and wishes. Social workers identified that the care and support arranged for people’s hospital discharge was often more restrictive, for example not being supported to return home with care or equipment but being taken to a care home.
The survey highlighted an increase in the number of people being discharged to 24- hour care settings, with restricted access to family, networks, and existing care resources. A key concern raised by social workers was the loss or reduction of the involvement of social workers skill set in hospital discharge and the ability to effect change at crucial decision-making points.
Clear accountability needs to be established within this process to ensure individual’s rights and the opportunity to be listened to, heard, and involved in making decisions about care and treatment, are fundamental principles of this proposal in line with the principles of the Mental Capacity Act (2005) and the right to respect for private and family life (Article 8).
Please also see BASW England's Hospital Discharge policy statement.
Better Care Fund
As set out by NHS England, the Better Care Fund (BCF) programme “supports local systems to successfully deliver the integration of health and social care in a way that supports person-centred care, sustainability and better outcomes for people and carers.”
The Bill sets out a standalone power for the BCF, with legislation to amend the “process for setting the NHS mandate so that it is no longer set on a rolling annual basis. Currently the allocation of the Better Care fund is tied to this annual process. As such, we will be creating a standalone legislative power to support the Better Care Fund and separate it from the mandate setting process.”
The BCF funding will be used to underpin the Discharge to Assess model, as it currently does for other services such as mental health, community health and more. The Better care fund will be separated out from the existing NHS mandate settings process as currently the BCF is aligned to this process. Due to the BCF now being able to rely on an ongoing funding stream there will no longer be a need for annual approval of funds.
BASW England’s view:
BASW England is generally supportive of these proposals relating to the Better Care Fund:
- The plans for the Better Care Fund cement Discharge to Assess becoming an established pathway so the funding will align. It will allow local networks to fully integrate the Discharge Assess pathways into service delivery.
- Increased funding security may allow local networks to future-plan in terms of resources, staffing and establishments, enabling greater flexibility and control at a local level.
- For social work, questions remain as to whether the promotion of well-being and person-centred approaches to care and support are at the heart of the proposed legislative changes.
The Bill sets out how the pandemic has demonstrated that there is a real need for speed and flexibility in supporting the social care sector and includes the suggestion that the Health and Social Care Act 2008 is amended to expand the powers of the Secretary of State for Health and Social Care. Currently, payments from the Secretary of State can be made to not-for-profit bodies engaged in the provision of health or social care services in England. The Bill proposes to widen this power so that payments can be made to any bodies which are engaged in the provision of social care services in England.
The proposals state that this is not about amending the overarching funding model whereby funding is provided by local authorities, largely through local income, and supplemented by grant funding. Ultimately, funding directly from government will be maintained on a case-by-case basis.
BASW England's view:
The proposals in the Bill require further clarification. Under the current arrangements local authorities who are given the power by the Secretary of State can make payments to individuals and providers through direct payments.
In light of what appears to be proposed, BASW England has the following concerns:
Transparency: There is a risk in terms of transparency with what is being proposed bypassing local decision making systems and structures currently in place for social care services. Transparency is key given that the proposal is that direct payments could be made to private for profit companies. How will the proposals ensure that there are a diverse range of providers?
Exceptional Circumstances: The proposal is for "direct payment" to be made available to providers in exceptional circumstances. How will this be determined and what will the impact of this be on the provider market? would smaller providers benefit from this or be disadvantaged?
Accountability: Reduction in bureaucracy is welcome however, what assurances will there be about the money that can be paid to providers in this way, in terms of achieving identified outcomes for people, families and communities. Robust monitoring and auditing will be required to ensuring accountability to local citizens.
Digital and Data
- The Bill makes reference to the development and forthcoming Data Strategy for Health and Social Care which will capture and build on the lessons from the COVID-19 response and will set the direction for data and digital in a post-pandemic system. 
- The plans include legislative changes to reduce bureaucracy with a flexible legislative framework which will improve access and use and will enable and provide safe data sharing leading to effective functioning of the wider health and care system.
- The Bill reflects commitments made in the Department of Health and Social Care document: Bureaucracy busting mission which was published in November 2020.
- The focus is on a number of measures that will lead to better understanding of capacity and risk in the system and will enable the health and care system to be more joined up with a focus on integration and innovation.
The stated purpose of collecting “more and better data” is to achieve the following:
- “plan the future care of our population”
- “potential to generate significant health benefits such as:
- increased independence,
- improved quality of care,
- higher patient satisfaction
- more efficient use of funding.
In the section setting out specific proposals for adult social care, it states that “we will remedy gaps in available data to help us understand capacity and risk in the system”. One particular gap is highlighted “is around services provided to those who self-fund their care”.
BASW England’s View
As many commentators from the social care sector will no doubt be pointing out the “health benefits” can also be considered as social care benefits. What follows are additional gaps in the data that we think should be included, and endorsement of the collecting of data on self-funders.
- Local authorities do not record the needs of people they deem to be ineligible or the extent to which people are under-supported in the system. Anecdotally, there is a widening gap between unmet needs and service provision but within the current system of data collection there is no way of knowing what the funding gap is.
- Under the Care Act, Local Authorities have a power to meet non-eligible needs, and the duty to record all needs identified by the assessment. They must provide written information and advice to individuals to assist them in preventing, reducing and delaying needs that have been determined as non-eligible. However, what is missing is the requirement to quantify, record and report on unmet or under-met need.
- In the Ten Reforms for Social Care, reform 6 articulates BASW England groups’ position on unmet need: 
We think that local authorities should collect data on needs that have been determined as ineligible and that this should be published locally and nationally.
- Self-funders are people who are not state-funded but who pay for social care from their own resources. 
- There are currently no requirements to include information collected about self-funders in official statistics, making it problematic to estimate the size of the population.
- The data about people who self-fund their care is limited and based on estimates, the accuracy is therefore in question. There are differences in how data is collected across local authorities and by care providers. This leaves a substantial gap in knowledge and understanding about who needs social care, how care is funded and the impact that this has on the adult social care system.
- The lack of information gathering and reporting about self-funders means that adult social care profiling and decision making about budgets at a local, regional and national level are based upon incomplete data.
Within the new proposals in the Health and Care Bill relating to the use of data and digital
BASW England is keen to ensure that the issues of data collection, recording and publishing in relation to unmet and under-met will be addressed alongside the need for data about people who self-fund their care. Both are missing but necessary pieces of the jigsaw in making sense of the landscape in adult social care funding, resources and provision.
The stated intention is that reporting burdens will be reduced “by extracting from existing data sets”. We think that the way forward is to press for the data that we think is needed and then at a later stage evaluate the practical difficulties.
The Bill sets out the Government’s intention to see the Adult Social Care (ASC) system delivering “the right kind of care, and the best outcomes, with the resources available”.
With a backdrop of increased demand for services and the need for accountability of those services, the Government is clear it wants to enhance assurance frameworks that “will support our drive to improve the outcomes and experience of people and their families in accessing high-quality care and support, regardless of where they live”.
To achieve this, the Health and Care Bill will include "a new duty for the Care Quality Commission to assess local authorities’ delivery of their adult social care duties” and provide “a power for the Secretary of State to intervene where, following assessment under the new CQC duty, it is considered that a local authority is failing to meet their duties”.
To achieve this the proposals suggests they “identify best practice across the system, building on existing sector-led support and improvement programmes” as well as “enhance existing assurance frameworks that will support our drive to improve the outcomes and experience of people and their families in accessing high-quality care and support”.
BASW England’s view:
BASW England believes that the scope of the Care Quality Commission’s “new duty” needs to be extended further to include, not just the power to assess delivery of services, but to include assessment and care planning. Eligibility determination and deciding on what will and will not be funded (personal budgets) should be a key focus of the CQC.
BASW England also believes it is crucial that we will have the opportunity to make our case during the process of detailed system design and practice, in line with the Department’s pledge to work “with government partners and the sector”.
BASW is keen to hear members views on the new duty on CQC to quality assure local authorities and will be consulting further in relation to this and the other matters identified here.
As detailed above, there are positives to the proposals set out in the Health and Care Bill however, what remains are the challenges faced by social care and the health system that were evident before Covid-19 and exposed further throughout the pandemic, some of which were highlighted in the BASW England response to the parliamentary inquiry into social care funding and workforce and expanded upon in the Ten Reforms for Social Care which highlight the pressing need for the long-term reform of social care.
BASW England will be consulting with members on the proposals within the Health and Care Bill and the implications for social work.
Evidence will be submitted to the House of Commons Public Bill Committee ahead of the first hearing on 7 September 2021.
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