The equality and human rights watchdog has won praise for launching an inquiry that should get to “the heart of the inadequacy” of current social care policy.
The Equality and Human Rights Commission (EHRC) said this week that its inquiry would examine how individuals are able to challenge the decisions made about their entitlement to social care in England and Wales.
Disability News Service revealed in April that the commission was to hold an inquiry into whether the care and support system breaches equality and human rights laws.
But EHRC has now published the terms of reference for the inquiry, and launched a short survey.
It comes as the government appears to have delayed yet again its long-promised plans for social care reform, with no announcement now likely before MPs return from their long summer break in September.
There was a string of other government announcements, though, including the publication of a new strategy that ministers say will “speed up diagnosis and improve support and care for autistic people”.
The focus of the EHRC inquiry will include an examination of: people’s experiences of attempting to challenge decisions about their social care entitlement; whether people are provided with adequate information through the process; and the availability of advocacy support to challenge decisions.
It will also ask whether local authorities learn from successful challenges to their decisions to improve their future decision-making.
It aims to focus on evidence from the last three years, dating back to April 2018, and hopes to gather evidence from social care users, families, unpaid carers, local authorities and other individuals and organisations.
Although the inquiry may touch on issues relating to charging for social care, it will not look at “substantive” issues around charging, including the amount someone is charged or whether a person should be charged, or charging policies.
The commission said it had launched its new inquiry after disability and older people’s organisations “raised concerns that people faced barriers to complaining about or challenging decisions related to their social care”.
The inquiry will “look to see if these decisions can be meaningfully challenged if they fall short, and if the existing ways to do so are accessible and effective, including whether high quality advocacy support is available”.
Professor Peter Beresford, co-chair of the disabled people’s and service-user network Shaping Our Lives, said the commission had “got this absolutely right”.
He said: “The focus is going to be on how councils view ‘need’, what they tell service users about how they view ‘need’ and what they believe the Care Act requires them to view as ‘need’.
“The inquiry will therefore grapple with the eligibility/needs test which is at the heart of the inadequacy of current social care policy.
“The complaint process is a ‘pinch point’ with the potential to expose how councils operate.”
He said the inquiry would test if councils realise that they should be identifying disabled people’s “need” for social care without any reference to the availability of resources.
Beresford said: “If councils cannot afford to meet any [needs], they should be honest. But we know councils don’t do this – they identify only needs they have the resources for.
“The inquiry as it’s set out will expose this and for that reason is to be greatly welcomed.”
He said the inquiry would complement the commission’s paper, published in May, which stated that councils should identify unmet need and that the health and social care secretary should set out plans every two years to address this funding gap.
He added: “The commission could have expanded the inquiry to include complaints about charging, but then it would have diluted the focus and diverted attention away from the needs agenda.
“The means test is in plain sight and getting enough attention. The needs test is the silent killer of disabled people and this challenge is long overdue.”
Svetlana Kotova, director of campaigns and justice at Inclusion London, said: “This inquiry will look at and hopefully expose a hidden and very oppressive aspect of the current social care system.
“Despite all the rhetoric in the Care Act about respecting person’s wishes and feelings and starting with the assumption that people know their needs best, in reality important and often life-changing decisions are made by local authorities.
“Professionals decide what our needs are, how to meet them and what kind of support works best for us.
“Those disabled people who disagree and want to challenge have no affective avenues of redress.
“Complaints often take months and lead to nothing, especially when decisions are driven by budgetary considerations.
“This leaves many people frightened and powerless. It absolutely feels like care is done to us and we cannot do anything about it.
“The Care Act gave the government power to introduce appeals system, which the government failed to do.
“We hope this inquiry can push for action to create effective and independent avenues of redress so disabled people can effectively challenge decisions made by professionals which have a huge, often negative, impact on their day-to-day life.”
Linda Burnip, co-founder of Disabled People Against Cuts (DPAC), said DPAC welcomed the inquiry, although the failure to examine the care charging system “seems inadequate”.
She said: “There is no point in needs being properly assessed if people can’t afford to pay for it. The outcome that they don’t get the support they need remains in both cases.”
She added: “The lack of uprating of the minimum income guarantee since 2015 also deprives people of their right to lead an independent life, with the full level of support they need to take part fully in society in the same way that non-disabled people can.
“We know that many people can no longer afford to pay for their care or that others are forced to choose between paying for care over the costs of food or heating.”
EHRC’s chair, Baroness Falkner, said: “We know that the social care system has been under significant pressure and many problems have been exacerbated by the pandemic.
“With vital decisions about people’s care being made under such pressure, it is essential that there are effective ways to challenge them if people feel they have been left without the support they need.”
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