Dilnot or not? That is the question!

Until fairly recently, the parts of the Care Act that ultimately resulted from The Dilnot Commission recommendations, may not have been foremost in everyone’s minds. Some of us will have been so busy preparing for the implementation of elements of the reforms such as the new eligibility regulations, the independent advocacy duty and carers’ rights in April this year, that we have put the second tranche of the reforms to the bottom of our To Do lists.

Many people will have heard of the cap on care costs of course, due to come into force in April 2016, a year after the rest of the Act; after all, it’s been in the news a fair amount, and arguably has enjoyed a higher public profile than any other aspect of the Care Act – not having to sell one’s home in one’s lifetime is a major selling point, is it not? Well, like most marketing headlines, the detail is really in the small print: it is interesting to note that as far back as two years ago, the care Minister and Department of Health admitted that only a small minority of people will benefit from the cap.

Originally it was promised that the detail of how Dilnot would be implemented would be published last October or November. Finally in February this year, Government published another consultation, this time on draft guidance and regulations for the cap on care costs, and proposals for an appeals system, which finished eight weeks later on the same day Parliament was dissolved before the general election. One cannot help thinking that despite the undoubted hard work that has been done by the Dilnot Commission, the Law Commission, the Department of Health, and across the sector over several years to pave the way for the biggest reforms to adult social care in over 65 years, the end result has been something of a rushed job.

Ongoing concerns about the affordability of the reforms, voiced not only by councils, but by national charities and providers, serve to further dampen people’s optimism about what on the face of it is a fantastic, progressive piece of legislation. It was interesting to note then, that in the Summer Budget on Wednesday 8 July, there was not a single mention of the Care Act, but perhaps there WAS a clue about the Government’s intentions in the fact that the couple’s inheritance tax threshold will be increasing to £850,000 from 2017. In 2013, the Health Secretary told Parliament that the cost of implementing the cap would be met in part by freezing the inheritance tax threshold at £325,000 per person for a further three years from 2015-16.

Two days before the Summer Budget, on Monday 6 July, the Guardian ran a piece which said that senior figures in the social care sector say the idea of “pausing” the cost cap, due to be brought in next April, is being discussed urgently in Whitehall. According to journalists, we will know the outcome before Parliament rises for the Summer on 21 July – no doubt when journalists go away on holiday too.

For those Councils up and down the country, which have been grappling with issues such as how to manage an increase in needs assessments, or an influx of complaints about the sufficiency of someone’s Personal Budget, let alone how they are going to pay for it all, it will be a long few days.

Adam Webb

About Adam Webb

Although originally a physicist by background, Adam soon realised he was “more interested in people than particles” and has spent the last ten years working in policy and project roles in adult social care to support operational staff. Starting his career a few months before Our Health, Our Care, Our Say was first published, Adam has observed with great interest as personalisation and integration have evolved, and been implemented with varying degrees of zeal and success, against a backdrop of demographic pressures and shrinking budgets. As a self-confessed geek who has always been involved in the technical side of things, including charging and resource allocation, Adam will be blogging about developments around the cap on care costs and changes to capital thresholds (‘Dilnot’), which are (were?) due to come in force from 2016. Adam is enthusiastic about the Care Act, because it has finally enshrined personalisation in law, achieved parity for carers and re-emphasised the need for transparency and due process, but feels it is not without its challenges, particularly given the budget difficulties facing all local authorities today. He is particularly interested in how local authorities have gone about implementing the new eligibility criteria, carers’ rights and independent advocacy, and hopes the Care Act has heralded a new dawn for those of us who may need support.

5 thoughts on “Dilnot or not? That is the question!”

  1. Belinda SchwehrBelinda Schwehr

    I have mixed feelings about delaying Dilnot and if it happens think that the detail of what else is brought in or NOT, is going to be important. On the good side, money set aside for Dilnot will be able to be scrabbled for to keep councils able to deliver the rest of the Care Act, but the private client subsidy culture which keeps homes able to be bullied into taking lower fees from councils will continue. Dilnot’s vision gave well-off people a rational reason to get over themselves if they would have otherwise disdained social services involvement in their lives – an economically rational reason to let the council do the purchasing, at a lower rate than the privately contracting wealthy person would be charged. Never mind the cap – few would have reached it – no, the attractive part for better off people was being able to insist on being purchased for, through the auspices of s18(3) of the Act, albeit paying full cost, and no doubt top ups as well for better rooms.

    Whatever discussions have convinced the DH of, over timing, I would be willing to bet that THAT provision will remain on the statute book, but not in force. It will effectively mean that the old rule, that you are not entitled to a council contracted for care home placement unless care and attention needed is not otherwise available to you including through your own means, UNLESS you lack mental capacity AND have no-one willing to sort it out for you.

    The other aspect to watch out for, if there is an announcement about pausing Dilnot, is what is to happen to the idea of bringing in so-called appeals? Mixed feelings again: they weren’t appeals at all, but they would have had a stultifying effect on judicial review. And without judicial review, there would be no legal consistency in the interpretation of the Act at all.

    What would YOU do if you were advising government on this issue, from within the civil service?

  2. Belinda SchwehrBelinda Schwehr

    Well, the announcement has been made. The DH has described the decision to delay Dilnot into an example of how carefully it listens to stakeholders and I hope that .

    Some of the unexpected outcomes for adult social care, from my perspective:

    a) It means that councils don’t really need to have a Resource Allocation scheme, because they can just do care planning for those eligible care and support needs, and cost each one out, sensibly, using an evidence basis: they don’t need to tell people a notional amount. The guidance says ‘indicative’ allocations are ‘vital’ and ‘important’ and ‘essential’ but they are not a duty, or a MUST – and we all know that they are no use if they are not rationally configured or populated in the first place.

    b) The National Assistance Act notion of being ineligible, for having care and attention ‘otherwise available’ to you – purely because you have the money to be charged so much in fees that you are effectively contributing twice – once through your taxes and once through your fees – for others who have no means to pay, for whatever reason – is preserved, for another 5 years, although the legislation itself will be repealed. Mr Dilnot, deliberately or not, had found a way of solving one of the trickiest moral issues of our time: getting rid of the private client subsidy so that the government of the day (ie we people as a whole nation), have to pay more because unfortunate but rich people should not have to contribute disproportionately. Did anyone get to vote on deferring the Dilnot measure? The sector will have to go back to deciding which well-off eligible people to ‘let in’ to the secret council rate and which not – more discretion, more potential arbitrariness.

    c) No appeals system for adult social care as yet. For me personally, that probably preserves at least a CHANCE of continuing to offer training and consultancy at a level where the notion of legal literacy adds some real value for those seeking to understand how the system works – if only the odd judicial review can ever find its way to court, to clarify what’s legal and what is not.

    TWO cheers from me then, but a tear on account of what squashing the Dilnot provisions into the same Act as was supposed to SIMPLIFY adult social care, ultimately did to its architecture, elegance, and intentions….

    1. David

      Hi,
      I think that the Government’s decision is a betrayal of the highest order – worth more than a tear, if I may respectfully suggest. I know people who voted Tory in the last election because they believed that their homes and savings may be saved through a cap on care costs. I am appalled at such duplicitous political behaviour.
      Also, forgive my ignorance but would you please be good enough to explain why there would now be no need for a resource allocation system. I am struggling to see the link (in the context of councils needing to evidence how they fairly allocate resources) and the announcement made by the Government to delay Dilnot.
      Thanks

      1. Belinda SchwehrBelinda Schwehr

        Sorry! I should have explained more clearly.

        There is no STATUTORY LEGAL requirement for an indicative resource allocation or the use of a RAS in the Care Act or the Assessment Regulations. They are just management accounting tools, and not determinative of anything, but something of a check against the risk of a professional (or otherwise) ‘fringe’ element in assessment.

        Many councils have bought into commercially provided RASs, and some have home grown and bench tested ones; and the centrally grant funded project for developing a “Common RAS” found favour with as many councils again, for a while. But the reason that having one was still regarded as worthy of reiteration in the Guidance, in my view, (now that everyone should be within less than a year of having their own formal statutory care plan and a budget derived from that plan, rather than a plan derived from the budget) was that DILNOT people (shorthand for people with over the capital threshold for being entitled to a financial subsidy from the council through being charged less than the full cost of their care) were not going to be entitled to get a care plan, under the Care Act.

        They were only going to get an assessment, an eligibility decision, and a notional personal budget for the purposes of their individual care account that would record their progress to the Dilnot cap. The idea was that after eligibility, the service would have a basic conversation about whether the person WANTED the council to meet their needs, and if the answer was “No thanks, I am going to buy in my own services, but I just wanted to get my progress to the cap started” then one was not entitled to a care plan.

        If you try to imagine how a local authority worker would struggle to come up with a notional figure, rationally and defensibly, once challenged, without having done a proper care plan, you can see how impossible it would have been to run the system without a really good resource allocation system.

        The best ones already enable staff to compare people’s situation with how much it costs to meet their needs, or at least with how much they seem to need to cope, so if working properly, they are undoubtedly useful, for treating people equitably, and fighting the ‘S/he who Shouts Loudest’ syndrome that can sap morale within a service.

        But once the need to give Dilnot people a notional amount, no longer exists, no council needs to have a RAS.

        They can just follow the old Cambridgeshire case principles, which say coming up with a figure is not that hard: you take the type of care the decision- maker thinks is needed to suit the given area of need, after person centred assessment, and the rough cost of that sort of care. Then you take the rough amount of the service that the professional thinks is needed, in terms of hours, minutes, days, sessions, outings or whatever; and then you multiply the two together, to produce a needs-led budget.

        If a council keeps good records and scores the types of need in a rational way, and its contracts officers are good at sourcing facts about how much things cost, then the council will eventually be able to tell NEW people coming into the system, the rough amount of money they are likely to be given, if they are agreed as presenting a particular needs profile, so that the person can be thinking about their care plan with a realistic figure in mind…

  3. Loma

    Having worked at a senior level in Social Care and worked in partnership with our Health partners over some 25+ years I can only agree with Lord Sutherland. I have thought for a very long time that the Health budget would be more responsive and efficient if managed under local council control. Nothing focuses the mind of a local councillor more than the 4 year elections and ensuring that they are re-elected and the strategy to achieve that objective. The opportunity for a local council to invest in and ensure a high quality and responsive local health service would without doubt help drive up and maintain high standards. It really is a no brainer as not to do so would guarantee losing one’s seat. Whilst Health remains under DH control the local accountability and therefore incentive to improve all such services is lost. I do though somehow doubt Government or indeed the DH would willingly allow such a radical devolution.

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