What’s the point of section 5?
Section 5 Care Act 2014 places a duty on councils to promote an efficient and effective care market: such markets must promote user choice, have a variety of high quality providers and have sufficient services to meet local needs.
On the face of it a recent local government and social care ombudsman (LGO) report concerning Lincolnshire CC s a timely rebuke to a local authority whose inflexible commissioning arrangements resulted in ‘Mrs A’ being separated for 10 months from her husband due to lack of available homecare. As the LGO‘s publicity states:
The woman was placed for too long in an unsuitable care environment. She wanted to return home to be with her husband, but instead had no choice but to live with people whose care needs were very different to her own, causing her significant distress.
Look more closely and the approach of the LGO is troubling.
The report describes how, via a procurement exercise called the ‘prime provider model’, the council rationalised its care services in 2015 moving from 75 providers to only 12: each of them becoming responsible for all homecare services within a particular zone. When Mrs A was ready for discharge from hospital it became apparent that the provider for her area was unable to deliver her services and so she was eventually discharged to an inappropriate care home (a dementia unit even though she didn’t have dementia).
Over the next 10 months the social workers made considerable efforts to identify other domiciliary care providers but without success. The report notes that on one occasion a suitable agency was identified but it requested payment of £15 an hour. The council refused this as it was above their payment level (£13.85 an hour), stating that ‘the request was not commercially viable as the purpose of the prime provider model was to stabilise the market and increase capacity for all users’.
The LGO considered this reasonable.
Such rationalisations / transformations – call them what you may – don’t enrich the market; don’t promote diversity; don’t promote micro providers; don’t promote the ‘not for profits’: they put many good providers out of business and of course reduce the options when one of the big providers fails – ie the antithesis of what we thought section 5 was about. In very many cases the motivation for such changes is the containment of costs and the reduction of local authority administration– not the well-being of adults in need and carers.
In this case the provider for Mrs A’s zone was clearly failing as the council considered terminating the contract but it decided that ‘there were few viable contingencies in place’. Despite this, it was not prepared to pay an increased hourly rate because it might ‘have threatened providers’ confidence in their prime provider status’ and the LGO considered that the risk of undermining the market in this way to be ‘a persuasive explanation’. Persuasive is a strong word: ‘interesting’ perhaps but how could it be considered ‘persuasive’ given the council’s serious misgivings about the provider in question? So we see here section 5 being used as a mechanism to restrict choice, restrict ‘variety’, to put front line social workers in commissioning straitjackets and to sacrifice the well-being of adults ‘in need’ to preserve provider confidence (even when at least one of the providers is seen to be failing).
The LGO could have approached this a different way: it could (and should) have looked through the other end of the telescope: should have focused on the needs of the individual and not the administrative problems of the council (quite possibly self imposed problems).
15 years ago the LGO considered a very similar fact case concerning Essex CC. It concerned service delivery difficulties for a disabled man and his main carer, both aged over 90 with the weekend and evening cover being provided by an agency. Because of recruitment problems, the agency gave notice to the council and the council was unable to find another agency willing to provide this service unless the council agreed to pay a relatively small additional sum, above the council’s flat rate fee for the service. The council refused as this was against its policy. In finding maladministration the ombudsman commented:
It cannot be easy to arrange for home care in the rural parts of the county’s area, and even the best contractual agreements must fail from time to time. But it seems to me that when a service failure occurs, the council might well have to seize any realistic opportunity to make the service good. Here it had such an opportunity. Another home care contractor offered to provide the … service but only if the council would pay … costs over and above the flat rate fee … . Doubtless there are many tussles between the council and its providers over such arrangements and I can understand why the council might have considered this a precedent and the thin end of the wedge, but what was that to Mr and Mrs Derwent? It seems to me that Mr Derwent’s home care was entirely sacrificed to maintain the purity of the council’s contractual arrangements … This was a classic case of the council fettering its discretion, and was maladministration.
Objectively Mr and Mrs A’s article 8 rights under the European Convention on Human Rights (the right to respect for their private and family life) were sacrificed to maintain the purity of the council’s contractual arrangements. 15 years ago the LGO found the words to express this severe failing and it is difficult to see how the enactment of section 5 changes the position.