Underlying themes

Community care, in its widest sense, appears to be in substantial disarray. Contributing to this situation are a number of factors, any one of which would be capable of destabilising such a system but which in combination create significant problems. Of these factors, a number stand out.


First, local authorities and NHS bodies lack adequate resources, relative to demand, to meet the needs of all those people reasonably requiring services. The numbers of people with health and social care needs are increasing, for example, due to an ageing population and more people with learning and physical disabilities surviving at birth and living in the community. One consequence is that, by definition, social and health care policy appears almost always to have a double edge, containing elements of good practice and improvements but coupled with an imperative to minimise expenditure.


Second, the consequence of this mismatch between people’s needs and available resources is that services are being increasingly withdrawn from groups of vulnerable people, such as older people with various health and social care needs, people with mental health problems and people with learning disabilities. For instance, the number of people assisted by local social services authorities, but apparently not the money spent, has significantly decreased over the past ten years. Likewise, across the country there has been closure of elderly care, rehabilitation, mental health wards and day hospitals by the NHS. And, for many years, NHS bodies have been refusing to accept their caring and financial responsibilities for people with NHS continuing health care needs – in particular, older people with high levels of chronic illness and disability.

In addition to the actual withdrawal or denial of services, people may find themselves being either charged for services that were previously free, paying very much higher charges than previously – or, although still eligible for social and health care services, nonetheless encouraged to arrange and pay for them privately.


Third, there has been a signal failure by central government, local authorities and NHS bodies to concede the extent of this situation. This has led to a gap, sometimes gulf, between aspiration and official policy on the one hand, and practice on the other. As this gap and the associated political stakes have grown, so too has a singular lack of transparency and disingenuousness. Such levels of disingenuousness can have a number of undesirable consequences. Some may be serious in that the needs and welfare of patients may as a result not only be glossed over but in some instances positively sacrificed. The Healthcare Commission discovered this when NHS trusts in Buckinghamshire and Kent concealed the extent of infection and resulting mortality in their acute hospitals, thus contributing to the continuing deaths of patients at the time.


Fourth, the imposition of performance and financial targets in both health and social care appears to have had some significant adverse consequences. Whilst measurement of performance may have an important place, a balance is clearly required. Yet, too often, it has been reported that targets have resulted in a distortion of priorities, such that users of health and social care services have suffered. Indeed, the Healthcare Commission has attributed serious lapses in standards of patient care partly to the pursuit, by senior NHS management, of government imposed targets. The political parading of targets links to the lack of transparency; behind the facade of the targets, which focus on particular services only, other services – politically invisible – may deteriorate.


Fifth, the legal framework underpinning social and health care is complex and uneven. On the one hand, social care legislation is labyrinthine and contains a number of duties and rights that potentially pressurise local authorities to spend money they do not have. On the other, health care legislation is so vague that it contains relatively few clear duties to provide services; yet this is out of keeping with the expectations generated by central government for political purposes. Things can become even more confused because the rules are so numerous, that many local authorities struggle to identify them all, let alone stick to them; they then proceed to confuse matters further by making up their own, some of which are not lawful.

Unsurprisingly, this unstable situation – with people’s needs not being met and expectations being gravely disappointed – leads to complaints against health and social care bodies as well as sometimes to legal cases.

Notwithstanding this array of legislation in social care, and a monstrous quantity of guidance from the Department of Health aimed at both local authorities and the NHS, central government is quite happy to bypass the law when it suits. For instance, it has for many years happily evaded the legal issues concerning NHS continuing health care, and its introduction of ‘individual budgets’ into social care – with potentially fundamental implications – is, at the time of writing, being undertaken with no legislation, no definitive guidance and with little reference to how, or even whether, this new system is consistent with the existing legal framework.

In addition, other areas of law are in a state of flux and are forcing their way into social and health care related decisions. These other areas of law include, for example, two relatively recent developments – human rights and disability discrimination – as well as the long established law of negligence. This last is in a state of uncertainty, when it comes to the question of whether or not liability should be imposed on local authorities or the NHS for negligence, if that negligence is connected to statutory functions, policy or resources. And the safeguarding and protecting of adults, an increasingly important part of local authority activity, brings with it a substantial range of legal considerations.


Sixth, with such financial, legal and political pressures in play, uncertainties and sometimes chaos flourish and escalate when financial pressures bite. Legal escape routes inevitably beckon, tempting local authorities and NHS bodies to reduce their perceived obligations in relation to the level of resources available. If the courts close off one of these escape routes, another is readily found.


Seventh, a growing focus in community care concerns adult protection or the safeguarding of adults – that is, the protection of vulnerable adults from serious harm through abuse or neglect. One question, so far unanswered and almost unasked, is how effective local authorities or NHS bodies are at scrutinising themselves and identifying what is sometimes their own very significant contribution to the harm caused through the abuse (financial or physical) or neglect of vulnerable adults.


Eighth, questions arise about the effect on professional good practice of the pressures and uncertainties of the system described above. There is increasing regulation of professionals (and others) working in health and social care, including requirements of competencies and good practice. And yet, some of what is transpiring in social and health care appears to be undermining this aim, forcing staff and managers into policies and practices far removed from these regulatory and professional aspirations. An obvious example of this trend is of the nurses in Kent reportedly telling patients to relieve their bowels and bladder in bed, because of a shortage of staff and over-occupancy of beds, brought about by the NHS trust’s pursuit of financial and performance targets (HC 2007a).


There are clearly inadequate resources available through statutory services to meet the demand and need for social care (e.g. Caring Choices 2008; Joseph Rowntree Foundation 2006; Wanless 2006; All Party Parliamentary Groups 2006). Likewise, the NHS has been in financial turmoil in the last few years, despite the apparent increase in funding provided by central government.

As a result, it is almost a rule of thumb that government policies in health and social care cut two ways. Partly, they contain many statements and ideas about good practice; at the same time most are aimed at saving money. Too often, apparently good intentions are undermined by the lack of resources.


When adequate resources are not forthcoming because of the financial policies of the moment in local or central government, the effect on statutory duties laid down by Parliament is corrosive. This has been particularly so in social care, because some of the duties in legislation contain strong duties, non-performance of which cannot be excused by the local authority pleading lack of resources.

Thus, the courts have accepted that resources cannot be conjured up out of thin air (e.g. R v Islington LBC, ex p Rixon), but decided also that financial cuts must stop somewhere if specific legal duties (where they exist) are not to become meaningless (R v East Sussex CC, ex p Tandy). In this last case, the House of Lords stated that when there is an absolute statutory duty imposed on an authority to do something, it must find the resources, even if it has to raid other budgets. It is not sufficient to claim that one budget in particular has been exhausted and that therefore the statutory duty cannot be performed. This statement confirmed what had been established previously; namely that once an eligible community care need had been assessed, there is an absolute duty to meet it one way or another (R v Gloucestershire CC, ex p Barry).

Unremarkably therefore, many of the community care judicial review cases heard to date have focused on an apparent lack of resources to meet people’s community care needs. This was predictable. Some 20 years ago, the Griffiths report (1988, pp.iii, ix) on community care emphatically denied that it represented a cost-cutting exercise. It did nevertheless concede that many local authorities felt that ‘the Israelites faced with the requirement to make bricks without straw had a comparatively routine and possible task’. It also stated, correctly but naively, that what could not ‘be acceptable is to allow ambitious policies to be embarked upon without the appropriate funds’. The ensuing White Paper spoke of better use of taxpayer’s money, but arguably did not confront sufficiently forcibly or transparently the inevitable conflict which would follow between people’s needs and available resources (Secretaries of State 1989, p.5). Subsequent policy guidance (DH 1990) and practice guidance (SSI/SWSG 1991) tended to camouflage, in verbiage relating to good practice, the issue of resources.

The disparity between the stated policy of central government and practice was highlighted in 1997 by one of the members (Lord Lloyd) of the House of Lords in Rv Gloucestershire CC, ex p Barry. He confirmed the soundness of the warning about appropriate funding given in the Griffiths report nearly ten years before, pointing out that central government had departed from its ‘fine words’ in its 1989 White Paper and simply failed to supply the resources required:

Fine words and noble aspiration. The local authority was in an ‘impossible position;truly impossible, because even if the Council wished to raise the money themselves to meet the need by increasing council tax, they would be unable to do so by reason of the government-imposed rate capping’. Furthermore, it was the government’s departure from its ‘fine words’ in the community care White Paper that had brought about the situation. The ‘passing of the 1970 Act was a noble aspiration. Having willed the end, Parliament must be asked to provide the means’ (R v Gloucestershire CC, ex p Barry).


In the case of the NHS, the legal, if not the political, problems created by a lack of resources is nowhere near so pronounced as in the case of social services. No legal case has succeeded in arguing that the NHS must find resources to treat patients. The NHS has lost cases on other grounds, such as the rigidity or irrationality of local policies on certain treatments or on lack of adequate consultation before closing down services – but not directly on the issue of resources. However, the political consequences of lack of resources may be uncomfortable when local communities see services closed, or people are denied treatment to prevent them going blind – whether former Labour MPs or war heroes (Mahon 2007; Clout 2008). For this reason, going to the newspapers can be effective in persuading an NHS primary care trust – under pressure in the background from the Department Health which is averse to bad publicity – quietly to authorise a treatment this week, which it was flatly refusing to provide last week.


Despite apparently increased levels of spending by central and local government, it is arguable that the welfare state is in recession, relative to the needs of the population. Not only is central government breaking up the monopoly of public service provision, but services are being cut back, particularly for older people – who of course represent the largest number of people in need of social and health care services – as well as for other vulnerable groups of people.


Local social services authorities have increasingly restricted eligibility for assistance to vulnerable groups of people. They are helping ever fewer people relative to demand and to the needs of an ageing population. For example, in 1997, 479,000 households received home care support from local authorities; this had decreased to 358,000 in 2006 (CSCI 2008, p.6). Given the inevitable rise in numbers of people in need in the community during that period, this actually represents, overall and relative to need, more than the 25 per cent reduction indicated by the figures. This trend of diminishing provision relative to need can presumably only continue; in the next 30 years the number of people aged 85 or over is forecast to rise from just over one million to nearly three million, and the number of people with dementia is expected to double. The number of people aged 50 or over with learning disabilities is projected to rise by 53 per cent between 2001 and 2021 (LAC(DH)(2008)1, para 9).

As a result of the decreasing help being offered, the Commission for Social Care Inspection (CSCI) has found that older people were being denied fundamental services such as gardening, shopping, cleaning and access to the bath in such a way as to undermine seriously their quality of life and dignity (CSCI 2008). Another indication of the apparent unconcern about the basic needs of older people was indicated by an Age Concern England (2008) report, which focused on the social exclusion and isolation of older people and an ‘out of sight, out of mind’ attitude to them. None of this is new of course; 40 years ago, a foresightful physician at Edgware General Hospital, working in a geriatric department where the ‘pips were squeaking’, wrote My brother’s keeper, noting that ‘history has never had an equivalent situation; no civilisation has ever had an elderly population of such magnitude, and these older people have to be able to find reasons for living’ (Stewart 1968, pp. 7–16).

Even in the case of people who were deemed eligible to receive services, the CSCI nonetheless concluded that they, too, may experience a shortfall in what is offered and therefore get too little care to ensure a reasonable quality of life (CSCI 2008, p. 120). That this represents a retraction of the welfare state is not hyperbole; especially as it is not just a question of local authorities providing services for fewer people, to the bare minimum, but also charging them ever more money for those inadequate services (Counsel and Care 2006).

Indeed, central government’s 2008 vision for social care referred to ‘high quality’ services available to people who receive social care support ‘whether from statutory services, the third and community or private sector or by funding it themselves’ – clearly envisaging that many people may indeed be doing the latter. Yet it, too, refers to the inexorable rise in the numbers of people in need, particular of older people (number of over 85 year olds set to almost treble from 2006–2036, from 1.055 to 2.959 million) those with dementia (set to double between 2007 and 2037, from 560,000 to 1.20 million). At the same time, it states that giving more ‘choice and control’ to people ‘must be set in the context of the existing resources and be sustainable in the longer term’ (LAC (DH)(2008)1, pp. 3–5). Juxtaposing these three points, high quality services, rapidly increasing numbers of people in need, and no more resources, the message and tone would appear absurdly optimistic. Reading between the lines, the message is crystal clear; increasing numbers of people will be left to their own devices.

In financial terms, this is already the case to a significant extent. For instance, in 2007 it was estimated by the CSCI that some half of the total spending on social care in England was funded by people themselves rather than local authorities. Net public spend was calculated at £5.69 billion, slightly less than the £5.9 billion spent privately. Private spend was made up of six categories of people. The first three categories were those people who: (a) chose not to approach public authorities; (b) had assessed needs deemed to be ineligible for support; (c) had assessed, eligible needs but who had savings above the relevant threshold for public support. The remaining three categories comprised people eligible for public support but paying toward that support; who (d) needed residential care but were liable to contribute financially; (e) needed non-residential support but were liable to contribute financially; (f ) bought in extra care privately because that provided by the local authority was inadequate (Forder 2007, pp. 5–9).


NHS waiting times may have improved, but apparently at a cost of cuts to many other services, particularly those for older people with more chronic or complex needs, as well as other vulnerable groups (people with learning disabilities and mental health problems). For instance, a 2006 report found that 59 per cent of mental health NHS trusts had reduced staff, and 24 per cent had reduced services, including closure of wards and other units (Sainsbury Centre for Mental Health 2006, pp. 5–6).

The British Geriatric Society reports large scale rehabilitation bed closures, largely for older people, without apparent adequate alternatives (British Geriatric Society 2007). Health visiting for the old and the young has likewise been affected; a single health visitor working with 800 families has been reported (Vere-Jones 2007). Local community hospitals or units (in both town and country), maternity units and paediatric services, too, are being affected as local services are increasingly run down or closed, in the name of patient interest and choice but arguably to save money. Specialist services are being centralised into regional centres of excellence, again ostensibly to improve practice, but often it seems to rationalise expenditure. And, the overall policy of making more health services ‘local’, seems removed from what is happening in practice (see: Mandelstam 2006, pp. 112–116). The removal of local services is likely to affect vulnerable groups the most because of difficulties, amongst other things, in travel.


Local authorities have a duty to charge for residential accommodation and a power, that is, discretion, to make charges for non-residential services. Increasingly, the latter power is used up to the hilt, in what is sometimes a distinctly flinty and rapacious manner. For example, an older person might receive an hour and 40 minutes essential help in the form of three, barely adequate, short visits a day – and be charged £260 a week for it, until his or her savings run out. Yet, the higher rate of a key disability benefit for older people, attendance allowance, designed to pay for such care is only some £65.00 a week – a huge discrepancy.

In addition to such increased charging, a major change has occurred insofar as health services, by definition free of charge, have increasingly been re-labelled social care – for which a charge can then be made. A range of tasks carried out in people’s homes in the past by registered nurses are now undertaken under the umbrella of social care and accordingly are chargeable.

But perhaps the most egregious example of this surreptitious shift comes in the form of NHS continuing health care in care homes or in people’s own homes. For the past 14 years at least, the NHS has made strenuous efforts to minimise its responsibilities for people needing such care, and to argue that their needs are primarily social, rather than health-related. This then leaves local authorities free to charge people very large sums of money for such care, and to force people, in some circumstances, to sell their homes to pay for it. Such has been the unseemly rush to effect this change in policy and practice, without full public debate and transparent legislation, that the NHS and local authorities have been acting improperly and unlawfully in a significant number of cases.

Such a diminishing of NHS continuing health care, replaced by means-tested care in care homes and people’s own homes, has led to repeated and continuing accusations that central government has abandoned the ‘cradle-to-grave’ philosophy of the welfare state and broken its promises to people who believed they would be cared for at no cost – with a policy which is unfair and favours the spendthrift over the thrifty (HCHC 1996, p. xxiv). People might feel cheated because they had been led to believe – whilst paying National Insurance contributions, and ‘scrimping and saving’ all their lives – that the state would care for them in their time of need, that they and their spouses would not be reduced to penury, and that their inheritance would be safeguarded for their children (Salvage 1995, p. 3).

A Royal Commission on Long Term Care for the Elderly sat during 1998 with a brief to report on the future funding of long-term care for elderly people, both in their own homes and other settings. In the event, central government failed to implement the Commission’s central proposal that personal care be provided free of charge (Royal Commission on Long Term Care 1999). Instead, government in England went only so far as to introduce a limited system of ‘free nursing care’ for people in certain care homes. (By comparison, free personal care in addition to free nursing care was introduced for older people in Scotland: Community Care and Health (Scotland) Act 2002.) Unfairness of system

More generally, there is widespread agreement that the system of community care and NHS continuing health care is unfair, a situation that has come about precisely because of the lack of hard-nosed public debate about the question of resources and the charges to be paid for services. Some people, increasingly fewer, qualify for totally free care from the NHS. Others have to pay for all their care, assuming they have a certain level of assets (if it is provided by a local authority) or when they are forced to fund it privately.