Councils’ Resource Allocation Schemes and Personal Budgets – transparent, timely and sufficient??

Have you had an “indicative resource allocation” applied to your situation, prior to care planning being finished, after a Care Act assessment?

If so, maybe resist the temptation to just grab the money and run for the hills! Taking deep breaths and engaging brain, first, and then finding a calculator, might be a really good idea!

The fact is that some councils have a computerised resource allocation calculation system, for use after the needs have been identified, that generates sums that are known-to-be-lower than the local market rate is actually operating at. This is (not surprisingly) done in the hope that at least some people will just say ‘Wow, thanks so much!’ without thinking the issue through. If people seem satisfied, then how can it be wrong? – the thinking goes. And that means that over time, the cost of meeting care and support needs, shouldered, by the public sector, is kept within pre-set limits, even if people aren’t actually able to buy the help that they were assessed as needing.

I am not knocking the idea of equity and fairness in the matter of the question ‘what sum of money would be needed to meet the assessed need.’ Resource allocation systems are legal, to say the least, so long as they don’t override the need to make a decision about the specific individual’s situation – and some may even be very carefully thought out, tested to destruction, and coherent. But many are ‘closed books’, even to the staff who have to score what’s been said about needs, during the assessment, against them, in order to generate an interim figure, to use to inform the care planning stage.

The courts have long since held councils to legal account, over the rationality and transparency of their policy, regarding appropriate responses to assessed needs; and the same is true about any tools they might design to use for assistance in quality assurance of the outcomes for a widely varying range of people and needs. The case law generated by serious disputes, under the old law, is still bound to be followed as if it were still binding precedent, under the new law, because the fundamental principle that a duty is a duty, and must be discharged rationally, has not been changed, by Act, Regulations or the guidance.

It is clear to those with enough energy to give it some thought that to be of any use to the service user (or to the family member) who is going to be affected by the adequacy of the sum and what it will feasibly cover, the figures on which the correlation between points for needs, in principle, and the pounds allocated to the points, is based to give rise to an average likely cost for a given type of client, must be SANE figures, in the first place.

For example, putting in that home care costs £10.00 per hour, when it costs the council £13.00 per hour, and costs private clients £14.00 per hour, is not going to produce a budget that is needs led and defensible in legal terms, unless the person is over-assessed for how MUCH of the service they are likely to need to be able to achieve the outcomes in the eligibility regulations…Putting in the cost of a support service for a deafblind person as the same cost for a person without complex sensory impairment is just plain daft and optimistic; but councils’s decisions about these approaches are considered legally to be valid unless and until they are challenged…even if harm arises, as a result of the ‘experts’ saying something as unrealistic as ‘one toileting visit a week will be enough’…

What I am trying to raise awareness of is that people assessed under the Care Act don’t get the amount they would like, necessarily; they are only obliged to be given the amount that they NEED, in the view of the assessor acting for the council (albeit after person-centred discussion). The legal definition of a personal budget under the Care Act is the cost to the council of meeting the need, whereas the Government guidance encourages councils to offer direct payments as the first choice wherever that’s feasible – without adequately dealing with what that might mean councils should do, by way of putting extra money in, when the person taking the direct payment is going to be a purchaser buying in small quantities or frequencies, rather than in bulk. My view is that a council must

a) fund to the extent of an objective view as to what is going to be adequate and appropriate;

b) conscientiously consider funding the cost of a direct payment even if it is going to be a bit more than it would cost by way of the council contracting for the same response, because it would promote a person’s well-being by enhancing control over every day life and their services;

c) think REALLY hard before refusing someone a direct payment purely on the grounds that it would cost a bit more, because the only ground for refusal of a direct payment to a capacitated person requesting one  is that it isn’t an appropriate means of meeting the need – which would amount to saying that the cost being greater, is what made it inappropriate – and that is a dangerous position to take and one that law firms will clearly want to challenge;

d) have the courage to stick to their guns when refusing sometimes to meet wants as opposed to needs; some outcomes put forward by potential recipients of funding will be wants and not needs, and the council is not obliged to meet them, and can take its resources into account;

e) be very careful to be seen to consider meeting NON-eligible needs, sometimes; and also to be open at least, during care planning and budget finalisation discussions, to contentions that the person’s wants/personal outcomes could be met, or partly met, alongside the meeting of the eligible unmet needs, with JUST A LITTLE MORE money, and that to do so would amount to the delivery of Best Value, and thus make good sense.

Meanwhile, please accept this invitation to post up anything that is eyebrow raising if you’ve been startled by a recent resource allocation, either indicative or final:

  • Really huge cuts to a person’s budget, since last time round, despite no change in needs;
  • Arbitrary upper limits to care in a particular setting, such as the person’s own home – capped, for example, by reference to the cost of a care home, even though no-one has dared to suggest that a care home would be therapeutically suitable for the person’s overall needs, physical and emotional; (paragraph 10.27 of the Guidance warns against this approach!)
  • Care plans being finished off that aren’t in line with the requirements of s25 of the Care Act ( – a section of the Act that makes doing a properly compliant Care Plan a statutory duty for councils, wherever there are ANY eligible care and support needs found on the assessment, for the first time, in England.)
  • Continued driving down of the budgets being offered by reference to what’s already been bought, rather than genuine consideration of the actual cost of alternative options for delivering an outcome that meets needs as well as suiting the user, better;
  • Any automatic reduction in a notional amount needed after assessment, by reference to the mere existence of a person living in the same household;
  • A ££s based allocation based on the assumption that a person will inevitably end up being accommodated with other people, for their care, so that the care costs will be lower: it is not thought to be legally possible to limit an offer to meet needs to a person assessed as eligible, on the basis of a pre-condition that he or she moves into a group setting, where the basis of tenure requires a tenancy to be agreed to, by the person in question. Either s/he says yes, in which case there is no issue, once the accommodation is sourced – or, if they say No, the council is still obliged to meet the needs. Generally speaking it is people with a relative at home who wishes to stay at home, and for whom the family would like to carry on at least supporting, who get made to go without the longest, once reluctance regarding a move into supported living or extra care facilities is noted. This is not kind or humane because it increases carer strain and fudges the legal situation.

NB It is different, in legal terms, if the council makes a lawful offer to meet needs by way of a placement in a care home, where the council is willing to contract for the package, directly. If one says No to that sort of an offer, (an offer that is, we must stress, clearly lawful by reason of proper attention having been paid to psychological needs, as well as physical ones, to wellbeing, to person-centred outcomes, to the Mental Capacity Act’s procedural duties to consult an incapacitated person’s best interests contacts, and to the person’s human rights properly understood, and to all other relevant considerations – so not that easy for a council!) one may well be regarded as discharging the council from its duty to meet one’s needs, by one’s refusal.

Please do post your anecdotal evidence on this blog so that those advising service users and carers can start to build a picture of what’s really happening out there, now the Act is in force…

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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