Musts and shoulds - immersion in the Care Bill

TLAP's Director Sam Bennett provides an insight into the collaborative approach taken to develop the Care Bill statutory regulation and guidance that are most critical to the implementation of personalisation.

It would be fair to say I'm somewhat immersed in the Care Bill that is currently making its way through parliament. I have chaired 24 hours of reference group meetings established to support the development of the related statutory regulations and guidance. The resulting drafts will go to Ministers and legal teams soon, ahead of an anticipated consultation period beginning after the local elections in May.

To briefly explain why these documents are so important, it helps to think of the primary legislation as setting out duties on councils - the things they 'must' do. The regulations will put more flesh on the bones of some of these duties and the guidance describes what councils 'should' do in meeting these duties. While carrying less weight in law, the guidance is arguably the most important piece of the Bill because this is what gets under the legalese to detail how areas should be interpreting the legislation and what sorts of practice should be adopted. Effectively, the guidance brings the legislation to life by setting out what good should looks like in the reformed system.

Chairing the reference group meetings has been a great privilege, but not a task I have taken lightly. These are perhaps the best of times and the worst of times for personalisation and for care and support more generally. The worst due to ongoing and severe pressure on public finances, which requires increasingly more radical change and threatens any semblance of progress. And the best because the Care Bill, the single greatest change to the legal framework for care and support for over 60 years, is poised to embed personalisation in statute. In short, this is defining stuff that may shape the way care and support is delivered for a generation.

The groups I have been chairing are those developing regulations and guidance for parts of the Bill most critical for personalisation.

First, a reference group for Clause 4 - the new duty upon councils to establish and maintain a universal information and advice service. Information and advice is clearly a critical building block for choice and control and you can't have a care and support system that is truly empowering without people being able to understand and navigate it well.

Second, a group convened to develop guidance for Clause 5 - the new market shaping duty. Similarly, efforts to enable people to direct their own resources will mean little if the range of options for people to choose is not sufficiently diverse or high quality, so this is also a vital clause for personalisation.

And finally, a group developing regulations and guidance for personal care and support planning, personal budgets and direct payments - Clauses 25-32. Amongst other things, these place personal budgets on a statutory footing for the first time for people with care and support needs and for carers.

The process of developing these documents has been genuinely collaborative. Each of these groups (and I understand this has been the case for others too) has sought to include views and perspectives from across central and local government, from provider organisations and the voluntary and community sector and from people with lived experience.

Many of TLAP's partners have been involved at some stage in this process. In speaking to people who were involved in similar stages of the Community Care reforms, this is evidently an entirely different approach - one that may well have happened without TLAP, but which certainly reflects our example of collaboration and co-production. This has been the polar opposite of a top down approach where government always knows best. This does not of course mean that the guidance will be perfect. There are bound to be plenty of improvements still to be made, but it should at least mean that what goes out for consultation will include few surprises and will already have had the benefit of scrutiny by many different stakeholders from across the sector.

So what of the content? Well, you won't have to wait long to review it all and help improve it further, so without going into the detail, there are two aspects of it I am particularly pleased about.

Firstly, on market shaping - the guidance will flesh out the role of councils in facilitating the local market of care and support. In doing this, it identifies frameworks commissioners should have regard to in determining their approach, in particular the Adult Social Care Outcomes Framework (ASCOF) and TLAP's own Making it Real (MiR). This reflects what we know about how a number of councils are using MiR, or locally developed versions of it, to describe the outcomes they are commissioning in the words of people their actions are intended to support.

Secondly, on personal budgets and personal care and support planning - the guidance builds significantly on the framework in the Bill to describe good practice in terms of the first principles of self-directed support. I hope as part of this it will mean that words like 'person-centred' and 'co-production' make it into statutory guidance for the first time...so my fingers are crossed on both counts that they make it through the legal edit!