A cunning stunt for a council to pull, by way of maximising Choice and Direct Payments….

I heard of an interesting managerial wheeze today, which Jeremy Hunt, SCIE and the LGA and ADASS might like to consider, when focusing on Equal Lives’ complaint about Norfolk’s ignoring the Care Act.

It’s another council, not Norfolk, but here goes:

The council re-tenders for all its homecare, looking for just a few providers organised geographically sensibly to take over large patches of the council’s area, rather than the many that they have previously contracted with. (That’s not unlawful, so long as they bear in mind diversity of provision and do the procurement lawfully, of course).

The council says to the existing providers (and to the clients on care plans) as follows:

“If existing providers don’t get on to the new framework there’ll be a period of grace for them to persuade the clients (our clients) that they’d prefer a direct payment from us in order to contract with the existing  company privately – that’s how we give citizens ‘choice’.  The existing providers might want to think about ways to make that attractive, like offering to run the client’s direct payment account for them – so it’d be a bit like an individual service fund but the company would be doing the admin work that so often puts people off of direct payments, and ensuring that they will get paid. After that period of grace, however, existing clients who don’t want a direct payment will be transferred to our chosen new providers.”

That’s not unlawful either: there is no right in the Care Act to insist on a provider of your own choice, through a council commissioned budget. The choice the council makes for these clients has to be appropriate and adequate to meet need in terms of skill etc, but if as the client, you want a choice, you can take a direct payment. There is a case from the 1990s that says clients should be consulted before a change of provider is foisted on them to identify those that should not be transferred by reference to impact and dependency, so a blanket policy of transferring all Direct Payment refuseniks by a set date, is dodgy, but never mind that, for the minute. Let’s get to the point: the direct payment rate being paid to the council’s Care Act clients!!

The companies that don’t make it on to the new framework are all believed to be charging less to the council anyway, for the packages for the existing council clients, at the present moment, than the new rates to be paid to the successful providers, which one might think is bizarre in any event – why weren’t they successful on the new framework? (But no doubt this is something to do with the living wage, commitments to quality that the successful ones have made, size of turnover criteria in the first place, or maybe a premium for providing for banking the client’s hours if they are not wanted and reasonable notice is given – who knows?)

The unsuccessful providers, however, are all assuming that they can at least charge the clients who go on to a direct payment the same as what they used to charge the council for bulk purchased homecare  – which – guess what – is now a bit MORE than the direct payment rate that the council has now announced to the public. It’s a rate that’s about a pound an hour, more, but still more. And yet these clients are not going to be getting their needs met through employing PAs, without overheads. They are going to be going to agencies, the same agencies, for the exact same services that they used to have through the council’s contract. Despite this, the money allocated to them for their personal budgets has now been reduced.

This is dodgy: you can’t cut a budget without a proportionate re-assessment under the Care Act – s 27. It’s no good saying that giving the client a DP is just a new WAY of meeting need: it is a change to that affects the plan, without a shadow of a doubt, if it is blind to the fact that the rate won’t now be enough, nothing else having changed.

What’s going on here? Well, the clients who are keen enough to keep their current providers to consider a direct payment, tend to be people who are open to the assertion that since that’s their choice, they need to pay the small extra per-hour cost, as a top-up for want, not need. They are often so happy to keep their current provider that it does not occur to them that there’s a legal framework governing what has to be paid, in the first place, by way of a direct payment, in order to make the payment lawful. The council, in addition, says it’s not an hourly rate: it’s an overall amount for the services we think you need, plus a contingency, but even then, we’ve assessed the needs in a very outcomes based way, using our Resource Allocation System, so it’s up to each client to decide how they want to spend it.

Is this lawful? No WAY! The council has to do a care plan (s25) even for people with direct payments. The care plan has to say how the response will meet assessed eligible unmet need – logically, referring back to the assessment and the domains in which people were unable to achieve, and experiencing significant impact.

We all agree that there’s no real answer to the question ‘How much fun is enough?’ for a person, but we are talking homecare here, not recreation: the kind of thing that Dispatches covered a while back. I think we would all agree that there are some aspects of homecare that can’t be described without identifying how long it will take to meet the basic need/outcome, and this is all the more so, given a market that still charges by the period, because the staff are PAID by the period (and paid a minimum wage by legally counted ‘time’, by law).

The lawful rate for the person’s budget has to be transparent and sufficient to meet need. So the rate for the Direct Payment has to be rationally evidence based (even though that doesn’t mean worked out to the last penny on evidence that would be needed in a civil court!).

It has to be based on what companies are looking to charge individual purchasers for the services, by way of individual contracts, rather than in bulk. Commissioners are supposed to know those rates, because that’s the only way that they can have populated the resource allocation system within the council, when setting the figures for the relationship between pounds and points and needs, if they wanted a RAS set on direct payment rates, as opposed to a rate for their own commissioned services.

There is therefore plenty of room for challenge here. But by the clients, not the companies. And the vulnerable do not bite the hand that feeds them, in general. Moreover, in an era where the home care providers know no public law either and just want to keep the clients, on almost any basis, before the period of grace is over and all the others are taken from them, they won’t want to rock the boat and tell any of those potential clients that those clients may need to challenge the council’s notion of budgeting for sufficiency, and they probably won’t be talking to each other about what they’re charging, for fear of being accused of forming a cartel.

Truly magic, eh? This is how the discussion would go within the commissioning team: “We will make the clients into our budget savers, on the basis of maximising their CHOICE. And we will shape the market by ensuring that businesses have no option but to go along with what we are doing, by making the most of the fact that they’ll now be the ones managing the relationship with the customer, and won’t want to say no to looking after them, even for less than it costs them to pay their staff. We won’t have to consult them about the actual cost of care, because they’re not our contractors any longer, and none of the clients will be able to find out what other clients are being charged, as it’s all personal data.”

The only solution to this is to go back to the law – public law.

The law says that the council must be satisfied that it is paying enough. The assessment needs to detail the needs; the care plan needs to detail how the needs will be met. The Cambridgeshire case says that there must be a nexus between the needs, the points, the pounds and the cost in the market. And that this has got to be transparent so that the client can see if the council has done its job. The Savva case, brought against Kensington & Chelsea council, shows that the reasons why a final offered budget IS a lawful discharge of the statutory duty to meet need MUST be the panel’s reasons, and that they must be evidenced based. There is nothing in the Care Act to have changed those principles of judicially developed adult social care law.

So this is what clients have to be helped by advocates, user groups, and providers, to contend, using the Monitoring Officer route if necessary, to force out of all such councils – their evidence basis for their rate being sufficient – otherwise social care will be non-existent by the time we all need it, other than for private purchase by the rich and well- organised.

That’s not what any spin doctor can describe as a social care safety net, in any civilised country, to my mind.

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!

2 thoughts on “A cunning stunt for a council to pull, by way of maximising Choice and Direct Payments….

  1. Nick G

    Hi Belinda
    We’ve had a couple of paid carers tell us recently that they have been told by their local council that people in receipt of direct payments can only use the DP to pay organisations that are CQC registered. Has something changed that this is now the case or should we be challenging this assertion?

    1. Belinda SchwehrBelinda Schwehr Post Author

      It all depends on what you’re selling Nick. If you are selling a regulated service such as prompting together with supervision in people’s own homes (what used to be called a Supporting People type service, very often, when Housing Benefit was available to pay for it as part of sustaining a tenancy) then no-one can properly spend public money on a criminally unregistered agency: the fact is that the service is what determines whether the provider should be registered. But if what you are selling is support and support ONLY, ie, support that doesn’t count as a registrable service in the first place, then anyone can buy it from anyone.

      When a person is given a direct payment by a council, the recipient becomes the commissioner of the service, and so the recipient is not doing public procurement or anything that is subject to special rules – so if carers, managing or holding another person’s direct payment are being told they can only spend it on regulated providers, that is a bit misleading, without going into the question above.

      The holder of a direct payment can choose to buy a service from an unregulated individual, but you sound as if you are a business. So I am thinking that you might be an agency which is merely HELPING people to SPEND their direct payments, a sort of broker?

      If that is the case, and the clients all have mental capacity, or the clients have proper Authorised Persons holding their direct payment for them, and it is the AP who is coming to you for that help in purchasing, then THAT IS NOT A REGISTERED SERVICE, so it would be very wrong of the council to tell carers that that was the position.

      If however you work in a part of the country where the council is still foisting direct payments onto the carers of people without mental capacity, to hold one in their own name, and without abiding by the rules about Authorised Person status, then the council may have grasped that you are in effect being purchased by an incapacitated person which is enough to make you into a direct provider of what you then organise with their direct payment money – and that MIGHT be why they are saying that you should be registered – assuming that the end product is a registrable personal care service being provided to the ultimate client?

      The council is allowed to imposed reasonable conditions on the holder of a DP, but the council is not allowed to constrain choice by imposing unworkable conditions. They can say that the money must not be spent on a particular provider, but not a whole CLASS of providers, especially if it’s not legally the whole truth.

      If I were you, I would ask a direct question to the council’s direct payment support provider, or a Head of Service, if you can’t get any further with what the carers have been told.

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