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Three Big Changes in Health and Social Care Law

Community Care Law

As part of its Covid-19 Response: Living with Covid-19, the Government has begun tackling some of the health and social care law issues which were stalled during the pandemic.

The three biggest changes that will impact our clients in the months ahead are the Discharge to Assess funding pathway, the proposed £86k Care Cap, and the implementation of the Liberty Protection Safeguards scheme which will replace the existing Deprivation of Liberty Safeguards authorisation regime.

1. Clarity on the future of the Discharge to Assess (D2A) funding pathway

Throughout the pandemic, central Government funding was provided for people to receive fully funded care following discharge from hospital while they awaited assessments by health and social services. These assessments determine which body has the duty to meet and fund the person’s long term care needs, or whether the person will be a self-funder. There is evidence that the Discharge to Assess (D2A) funding pathway not only reduced the length of hospital stays, but also improved the quality of assessments.

Despite calls from the NHS Confederation, NHS Providers and the Social Care Institute for Excellence for the D2A pathway funding scheme to be made permanent, the National Discharge Fund was brought to an end on 31 March 2022. The Government has said that the Health and Social Care Bill, which is still being debated in Parliament, provides for local health and social care systems to continue to operate a D2A model – but no additional resources are being provided to shore this up.

NHS snapshot figures indicate that on 13 March 2022, 12.9% of acute hospital beds were occupied by patients who no longer needed to be in hospital. Age UK research shows that for each day of delayed discharge, the cost to the NHS is £346 per patient. In addition there is the knock on impact: cancellation of planned admissions and surgery; inability to clear the pandemic backlog; and pressure on community social care systems. Investing in social care and community services is critical to a good hospital discharge process.

It is sadly inevitable that deputies, attorneys and individuals and their families will once again become stuck in the type of hospital discharge dispute that was typical before D2A was made mandatory.

2. Underlying detail on the £86k Care Cap

The long-awaited care cap and the associated social care charging reforms are scheduled to come into force in October 2023. There is every indication that the Government will implement the new rules this time around, despite a series of previous U-turns. Five local authorities have been chosen as “trailblazers” to pilot the reforms ahead of the roll-out across England.

The care home industry sector is nervous about how the market will survive if private paying care home residents elect to have the local authority arrange their placement at a rate that will be considerably lower than the private care home fee rate.

Residents and their attorney or deputies will be able to opt for the cheaper fee rate for the first time, under section 18(3) Care Act 2014.

Not surprisingly the industry sector has asked the Government to delay the implementation of section 18(3) until the care home market has had time to recover from the impact of the pandemic on the workforce and ongoing concerns about infection control.

The public consultation about how the social care cap will work ended on 1 April 2022, and we await the Government response.

Catastrophic long term care costs is an issue of great concern to many of our clients: they will need to understand how the proposed reforms will impact upon their eligibility for local authority financial assistance towards the cost of social care packages.

We will continue to advise clients about the costs and about top-up clauses in their care home contracts well in advance of the new rules. We will also continue to advise about other sources of statutory funding for care at home or a care home placement.

Cate Searle is running seminars in association with MBL on the £86,000 Care Cap Promise in Practice – for more information, click here. 

3. Liberty Protection Safeguards replacing Deprivation of Liberty Safeguards

The planned introduction of the Liberty Protection Safeguards (LiPS) has been put back several times due to the pandemic. The LiPS proposals have been warmly welcomed across the health and social care sector, and put the emphasis on protecting peoples’ rights when they lack capacity to consent to their care arrangements. However, some of our clients will be worried about what this means for their relatives in care homes or at home, so we will need to be ready to navigate them through the process – and to challenge any care arrangements which are overly restrictive of the person’s liberty.

Key changes that the LiPS regime will introduce include an extension of the scheme to 16-17 year olds; to people with protective care packages at home; an overhauled and more streamlined assessment process, and an explicit duty to consult those interested in the person’s welfare.

Although there is no set date for LiPS to be implemented, the Government has opened its public consultation, which is a step in the right direction.

Our Community Care law can provide expert advice on the impact of these new rules for you and your clients. Contact us today on 01273 609911, or email

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