Health and Care Bill 2021: Implications for social care providers

Social care provision is of course very much under the spotlight at the moment, especially following the government’s recent announcements about how to address the funding crisis in the sector. Running in parallel with this is the government’s push for greater integration between health and social care services, with the changes proposed in the Health and Care Bill being very much focused on this integration agenda. 

The central pillar of these integration plans will be the creation of Integrated Care Systems (ICSs), which we looked at in our first briefing on the Bill, but there are also a number of other proposed changes which will specifically impact providers of social care, including introducing CQC scrutiny of local authority delivered social care, direct payments to social care providers, new requirements around data sharing and new arrangements around discharge from hospital to social care settings.

In this briefing, we look in more detail at these areas and how they may impact social care providers. 

Key points for social care providers

• Under the Bill, local authorities’ delivery of “regulated care functions” would be assessed by the Care Quality Commission and the Secretary of State would have the power to intervene where any local authorities fell below the required standard

The aim of this proposal is to increase transparency and accountability within social care. The reforms would allow the CQC to highlight shortfalls in local authority delivered services in a way that is more closely aligned with how it regulates other providers in the sector. Previously, the Care Act 2014 had removed the CQC’s duty to assess local authority performance, but the new assessments will be by reference to criteria set by the government.

As part of this proposal, the CQC must determine (and if necessary revise) indicators of quality for the assessment of local authorities, subject to the approval of the Secretary of State, who may also direct the CQC to revise these indicators when necessary. So far, the detail of what these indicators will be, and how they compare to current key lines of enquiry used by the CQC, is unclear and requires further detailed explanation.

The CQC must also put out a statement (approved by the Secretary of State) on the frequency of such reviews and the methods it will use to assess and evaluate the performance of local authorities.

• The Secretary of State to have the power to make payments directly to social care providers

Under the Bill, the Health and Social Care Act 2008 would be amended to allow the Secretary of State to make payments directly to any bodies which provide social care services. Currently, the Secretary of State can only make such payments to not-for-profit organisations, but the Bill expands the power to include providers who operate on a profit-making basis as an ordinary business.

• Data collected from social care providers to be shared across local authorities, with a requirement to share anonymised information to the benefit of the health and care system

This would allow for useful data to be more readily shared across organisations, to better inform decisions about how care is provided. The Secretary of State will be able to require data from all registered providers, including those in the private sector. Again, we await further details as to exactly what data can be collected, and what, if any, challenges can be raised in response to a data request and exactly how local authorities can use the data they gather.

• The Secretary of State to have additional obligations, including a statutory duty to publish a report in each Parliament on workforce planning responsibilities across the social care sector

This reporting obligation would include information relating to primary, secondary and community care, as well as sections of the workforce shared between health and social care (such as district nurses). This will focus on the workforce planning and supply systems in place, and will also report on collaboration between the Department for Health and Social Care, and various other arm’s length and NHS bodies. The intention is to set out in one document their current roles and responsibilities in order to provide greater transparency.

However, there have been calls to go further given the scale of the workforce crisis currently being experienced, for example the publishing of national workforce strategies for the NHS and social care sector and implementation of mechanisms to measure progress against stated objectives.

• The creation of a new discharge mechanism between NHS and social care settings

What is being proposed on this is to change the current legislative framework to move toward a “discharge to assess” model. This would allow for assessment for NHS Continuing Healthcare (CHC), NHS Funded Nursing Care (FNC) assessments, and Care Act assessments to take place once a patient has been discharged from hospital. The Bill also proposes removing the previous procedural requirements set out in the Care Act 2014 which were known as the “delayed discharge regime.” This set time limits for the provision of support arrangements for hospital patients, with fines being paid by the local authority should they cause a patient’s discharge to be delayed.

What does this mean for social care providers?

Implementation of the Bill is about integration, both within the NHS but also, and importantly for social care providers, integration between the NHS and other services and providers. The way in which this integration comes to life in the coming months and years creates real potential to improve communication and co-operation between NHS and social care providers. However, the Bill is an early step in the process and considerably more work is needed to understand how providers will be impacted.

The reference within the Bill to change in the role of the CQC, particularly in relation to regulation of local authority providers, comes alongside wider changes to the way in which the CQC will regulate and inspect adult social care services and it will be important that all of these changes are managed in parallel to ensure the regulatory system is transparent, robust and consistent.

What next?

Separately from the Bill, we have now seen the first steps towards funding reform, with the government recently announcing that National Insurance will rise by 1.25 percentage points to generate increased funding to cover costs of health and social care. There has been little detail on how this money will be used or organised or the extent to which it will be used to support provision of social care. How this will be done, remains to be seen.

However, it is now clear that through the variety of changes proposed in the Bill, together with significant funding reform, the social care sector is heading for a period of change, something which has been called for by many different stakeholders for a long time and, as such, this progress is widely welcomed and encouraged, albeit with many questions around the detail remaining.

We will continue to monitor how the current proposals transform into detailed legislative and policy change and we will provide further updates as changes develop.