The need to bring an end to the era of eligibility policies for a person-centred, financially sustainable future

Abstract

Attention within the social care sector in England is moving away from consumerist notions of choice towards good professional practice as the route to personalisation. This demands a new focus on how to make practice that is person-centred the norm. The following sets out that this is unlikely to happen until the use of eligibility policies is ended. The lessons are relevant not only to England, but to other countries who may be looking to the United Kingdom as pioneering in the personalisation agenda.

Keywords:

• eligibility
• personalisation
• care act
• resource allocation
• person-centred

Context

Attention in England is shifting to the importance of good professional practice in the long-sought transformation of social care so it is both personalised and financially sustainable. We previously welcomed this as an important step in the right direction (Slasberg and Beresford 2017).

However, we went on to suggest that the emerging strategies – based on ‘strengths-based practice’ – will end in yet another false dawn if the original source of the problem of depersonalisation is not first identified and removed. The national narrative has pointed the finger at the controlling behaviour of practitioners or the lack of commitment of councils to the interests of ‘users’. We have set out evidence that leads to a very different understanding (Slasberg and Beresford 2016). The real problem is the eligibility process, the process of deciding which of a person’s needs will be met. Councils are under an imperative to spend within pre-determined budgets. With concern that need will outstrip resources, the question of how much need can be afforded has to be addressed. Eligibility policies do so by creating a circular definition of ‘need’, whereby a ‘need’ is only a need if there is the resource to meet it. Budget holders develop a view of the types of needs they believe exist on the scale their budgets can sustain. The practitioner role is to test each person accordingly.

It has long been recognised that this process is delivered through ‘street-level bureaucracies’ (Evans 2011; Henwood and Hudson 2008). These form when formal policies do not address the realities that frontline staff face (Lipsky 1976). It has been thought that the ‘bureaucrats’ are practitioners, seeking to subvert the formal eligibility policies to the benefit of service users. However, the pattern of spending around the country belies this view. Rather than the random distribution of spend that would result from each practitioner wielding whatever power they could muster, there are clear patterns. They exist in relation to councils – the ‘post code’ lottery – and differences between user groups (RIPFA 2015). This shows budget holders to be the true ‘bureaucrats’. The formal eligibility policies serve only to provide the language with which to rationalise decisions post hoc. This creates a semblance of consistency and fairness. In effect, there are as many eligibility policies as there are council budget holders around the country.

Assessing people against types of ‘eligible’ need denies the uniqueness of the individual. Social care needs arise from the complex interplay of a host of factors, such as the nature and severity of the person’s impairment/condition, how long they have lived with it, the personal resources and attitudes they bring to it, the personal resources and attitudes of those around them, the community they live in, the social resources available and their physical living environment. These factors are themselves highly variable and can interact in an infinite variety of ways. The uniqueness of need seen in this way can be described as the ‘lived experience’ of need. It contrasts with the standardisation associated with the concept of ‘eligible’ need.

A system that fails to build from the uniqueness of the lived experience of need is inherently depersonalised and depersonalising.

Further, eligibility-based working wastes unknown, potentially large, sums of money. The eligibility process creates a black and white, ‘all or nothing’ context for resource allocation decisions. ‘Needs’ are met, ‘wants’ are not. This generates a focus on how bad things need to be to prove ‘need’ and thus attract resources. The resulting focus on deficits leads to people being seen as less able than they are or could be, less in control of their lives than they are or could be. Further, as eligibility criteria are wont to do in all fields, they encourage gaming behaviour. Practitioners and service users, understandably, engage in ploys to secure as much resource as they can, regardless of actual need, with the ethical justification that any support will be a benefit.

Under eligibility policies, it is not possible to know how much money is required to deliver a social care service capable of delivering the vision of well-being as set out in the Care Act 2014. In addition to the problem of the unknown volume of waste, the circular definition of need means councils have no information about unmet need. Last year, authoritative bodies had to resort to the independent sector for such information (Care Quality Commission 2016; Kings Fund 2016). It cannot be known how much of the need currently unmet could be met within existing funding levels if the waste was removed.

Can affordability be managed differently?

Each person’s lived experience of their needs to have the level of well-being right for them can be assessed and costed. Good practice would minimise the cost to the state by being more cost effective. It would do so firstly by building on the maximum, appropriate use of the person’s own resources and of those around them. It will then find the most cost-effective way of meeting the remaining needs. However, cost-effectiveness cannot be relied on to deliver affordability. Case-by-case decisions about which needs can be afforded, and which cannot, will be required to ensure that spend matches budget.

Is such a change legally possible?

The system currently behaves as if eligibility-based working is a legal requirement. However, this is not the case. It is a policy choice. The key legal permission to define need taking resources into account came in the landmark Gloucestershire judgement (House of Lords 1997). Lord Clyde noted:

It is enough … to recognise that they [resources] may be a proper consideration. (House of Lords 1997)

The word ‘may ‘is critical. The 2014 Care Act now makes the law abundantly clear (Department of Health 2014). Assessed needs that require public funding fall into two groups: those that are a duty to meet and those that are a power to meet. Those that are a duty must indeed be met whatever the cost. The legal obligation to meet the need regardless of cost does not, however, apply to needs that are a power to meet. This makes it possible to dispense with the judicial system’s permission to define ‘need’ by resource.

Duty and power

The duty to meet need should form a safety net. The threshold would have to be robust, transparent and not rely on categorisation of needs. This could be achieved by mapping all individual needs against universal human needs. For example, all individual needs that risk survival or safety would come under the safety net. Needs that risk quality of life – self-worth and self-fulfilment, the needs that and make life worth living – would come under a power.

In effect, there would be a reversal of the current situation whereby the duty to meet need forms core business to the power to meet needs doing so.

What difference would this make?

There will be six key consequences:

(1)	The person would become an active participant. This would be a pragmatic requirement if the ‘lived experience’ of need is the currency of the assessment. Substance would be given to the rhetoric of the person being ‘expert in their own lives’. Under eligibility working, the practitioner is the real ‘expert’.
(2)	The person’s own view of their needs can be respected at the end of the process, not just the beginning. People who want to remain at home but whose care is too costly for the council will no longer have to endure the patronising insult of being told that residential care will meet all their ‘needs’ and everything else they seek from life is just a mere ‘wish’ that the council has no responsibility for.
(3)	Practitioners would be freed from the responsibility of shaping ‘need’ to match the budget holder’s spending imperatives. Budget holders would have to work as budget holders usually do, making spending decisions against their budgets.
(4)	The available resource could be put to best use. Personal outcomes could replace deficits as the basis for allocating resources.
(5)	Prevention could move from the margins to the mainstream. Eligibility-based working has forced preventive needs to be addressed through preventive services. Yet preventive needs are as unique to the person as needs for continuing support. It is an irony that while there is consensus about the undesirability of standardised, service-led practice, this is exactly what has been created for the area of intervention seen as the most progressive. Spending on ‘short term support’ represented a mere 3% of gross spend in 2015/16 (National Statistics 2017).
(6)	The full cost of meeting needs to enable all to have an appropriate level of well-being would be exposed. This would change the politics of funding of social care. Formal information about unmet need would enter the public domain. Information about unmet need from external sources is too easily treated as lobbying behaviour and not acted on.

These outcomes would justify such a resource allocation policy being described as person centred.

Will councils only deliver the safety net?

Service user organisations will be concerned that councils continue to see their role as to do only the minimum required. Would they meet only the safety net, and regard the power to meet need as superfluous? This may indeed be the instinct of a number of councils. However, for both legal and pragmatic reasons, delivering only the safety net is not a viable option:

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It would be unlawful. Section One of the Care Act requires that all needs to bring about well-being must be assessed, with nine areas of well-being delineated. Those of the nine within which there are needs should provide the scope of the assessment. There is evidence that this part of the Act that has yet to be realised. Assessments continue to be carried out in the context of the Eligibility Regulations (Department of Health 2015).

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With the threshold based on mapping individual needs to the universal needs, the assessment will have to assess all individual needs in order to determine which ones are below and which ones above the threshold.

The extent to which needs above the safety net – the quality-of-life needs – are met is transparently determined by the budget. This makes it explicitly a political responsibility – both locally and nationally.

Service user organisations, and any who advocate for service users and carers, will need to be vigilant in holding their councils to account in two key areas. Firstly, that they are assessing needs for well-being, as the Act requires. Secondly, that they are aggregating unmet need, publishing the information and taking action upon it.

What would it take for change to happen?

The key action required for change on a national scale is re-writing of the Statutory Guidance to the Care Act (Slasberg and Beresford 2014). Whether or not this happens will depend on whether key people within the sector are persuaded that this is the direction in which the evidence takes us, and are willing to provide the leadership required.

Summary

A social care system that is both personalised and financially sustainable needs to be built from the lived experience of need. This must replace the resource-led view of need that eligibility policies create. This will release the service from the grip of budget holders through ‘street-level bureaucracies’. The legal duty to meet need should be recognised as a minimum safety net, with an invigorated political process determining how much need above the safety net is met.