1 April 2015 saw the introduction of the largest reform of social care in more than 60 years. The Care Act 2014 (the "Act") is a consolidating piece of legislation that introduces new responsibilities for local authorities and aims to make care and support more consistent across England.
The Act will be implemented in two main phases: the first provisions came into effect on 1 April 2015. These introduce:
- A new national standard for assessing care needs: for the first time there will be a "national minimum eligibility threshold" that all local authorities in England must consider when assessing whether an individual is eligible for care. The new provisions will ensure that people with the same needs receive the same support wherever they live in the country.
- Increased support for carers: the Act places carers on the same legal footing as the people they care for and provides a right to support if they meet certain eligibility criteria. The local authority will assess the carer's needs based on risk and the impact that caring has on their life.
- The establishment of a universal deferred payment scheme: this will allow people to use the value of their property to pay for residential care by entering into a deferred payment agreement. People will be able to delay repayment until they choose to sell their house.
The second phase of the Act will come into effect in April 2016. The headline changes include a lifetime cap on care costs of £72,000 (for those above state pension age), after which the local authority must pay for additional care costs. The upper and lower capital limits for means-tested support will also be increased, which will result in more people becoming entitled to local authority financial support.
Local authorities are expected to carry out more assessments under the Act and are encouraged to engage with local providers to understand how support services should be developed.
New CQC regime from 1 April 2015
1 April 2015 also saw the introduction of a new regime for the Care Quality Commission ("CQC") under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the "Regulations"). The Regulations introduce significant changes to health and social care standards, which are regulated by the CQC.
The Regulations introduce new "fundamental standards", which will apply to all health and adult social care providers from 1 April 2015. They provide, for example, that service users must be treated with dignity and respect (regulation 10); care and treatment must only be provided with consent (regulation 11); and the nutritional and hydration needs of service users must be met (regulation 14).
From 1 April 2015, all providers will also be required to prominently display their CQC ratings at their registered locations and on their website, which are classified as Outstanding, Good, Requires Improvement or Inadequate. The aim is to provide clear information to people, allowing them to make informed choices about their care.
Already in force...
Regulations 5 and 20 have been in force since 27 November 2014. These currently relate only to health service bodies (i.e. NHS trusts, Foundation Trusts and Special Health Authorities) but are extended to all other providers from 1 April 2015.
Regulation 5: Fit and proper persons: directors
Under this regulation, providers must ensure that all new and existing directors are "fit and proper persons." This extends to executive directors, non-executive directors, interims and associate positions, regardless of voting rights.
Providers must not "appoint or have in place" a director unless they:
- are of good character;
- have the necessary qualifications, competence, skills and experience;
- are fit (after adjustments) to perform their duties;
- have not been responsible for or involved in any serious misconduct or mismanagement in the course of carrying out a regulated activity; and
- are not classified as an "unfit person" in part 1 of schedule 4 (e.g. they have been declared bankrupt).
The chair of the provider is responsible for ensuring that all directors are fit and proper persons, while the CQC will monitor whether providers discharge this responsibility. Regulation 5 strengthens corporate accountability in healthcare, and boards must therefore assess (on an ongoing basis) whether directors meet the above criteria and fit in with the values of the organisation.
Regulation 20: Duty of Candour
Regulation 20 aims to ensure that health and care providers act in an "open and transparent way" in relation to care and treatment provided to service users.
It imposes an obligation on providers to notify the relevant person and provide reasonable support if a "notifiable safety incident" occurs. This is defined as an unintended or unexpected incident that could result in, or appears to have resulted in, the death of the service user or causes the service user severe, moderate or prolonged psychological harm.
It also imposes further obligations on providers to provide an account of the incident, advise the person concerned what further enquiries it believes are appropriate, include an apology and keep a secure written record of the incident.
In their guidance, the CQC notes that most NHS bodies are already subject to a contractual duty of candour under the NHS Standard Contract, Condition 35. However, the Regulations give the duty a statutory footing and the CQC can now prosecute for offences, leading to fines of up to £2,500.
For more information about the changes introduced on 1 April 2015, please contact Robert Breedon.