A fantastic result – using real legal literacy – that will deter commissioners from driving people into care homes – and just before the Mencap decision on the NMW and sleep-ins might make care during the night beyond the means of most!

Press release received today

NHS U-TURNS ON DISCRIMINATORY POLICIES
Thirteen NHS organisations have agreed to review their NHS Continuing Healthcare policies following the threat of legal action by the Equality and Human Rights Commission (EHRC).

The U-turn resolves almost eight months of disagreements between the EHRC and Clinical Commissioning Groups (CCGs) across the UK over their unlawful NHS Continuing Healthcare (NHS CHC) policies.

In March 2018, the EHRC threatened to judicially review 13 CCGs over concerns about their blanket NHS CHC policies which placed arbitrary caps on funding and failed to consider the specific needs of individual patients, amounting to a serious breach of the Human Rights Act, the Public Sector Equality Duty and the Department of Health and Social Care’s own NHS CHC framework.

The CCGs have since demonstrated that they are in the process of revising their policies, meaning further legal action is not necessary at this time. The EHRC has asked to see the revised policies to ensure they are lawful and adequately consider equality and human rights implications for their patients.

Rebecca Hilsenrath, Chief Executive at the Equality and Human Rights Commission, said:

“Everyone has the right to live their lives to an adequate standard and to have access to good quality health care. Those who need help are individual human beings with individual circumstances which need to be taken into account. We said that it is unacceptable and de-humanising for CCGs to adopt a blanket approach in forcing people into residential care, especially when with the right support they would be able to live at home with the families who love them. We are really pleased with the result and we know that all those affected will be reassured to see CCGs putting the rights of patients at the heart of their decision-making processes. We will continue to work with CCGs to ensure that future policies do not make the same mistakes.”

The EHRC first voiced concerns over the policies in October 2017 when it wrote to 43 CCGs demanding more information. Of the 43 CCGs contacted, all but one have now replied to the EHRC and most are reviewing their policies or following the NHS CHC Framework. Haringey CCG is the only organisation that has failed to share its policies with the EHRC. It was not one of the 13 that originally faced judicial review, but their lack of engagement now leaves them open to further action.

Comment from Belinda

Lots to say here.

First, it’s brilliant that civilised discussion of how legal principle simply must be taken to apply to faceless CCGs and NHS commissioning support units can actually do some good.

Second, it was a challenge to a blanket policy, which was always the best way to attack such abjectly ignorant daftness on the part of presumably highly paid NHS personnel.

And third, it could not come at a timelier moment whilst the sector awaits the Mencap decision on the national minimum wage for every hour of a sleep-in. Anything that makes care at home more expensive than it has hitherto been able to be bought for, is a driver that means individual decisions will in fact be made by the State – Councils, and not just CCGs – to offer care home care rather than care at home. But fortunately, now, not as a result of a blanket policy that was a fetter to any care planner’s professional duty to take account of individual circumstances.

One reason we will need to look out for ‘warehousing’, as it’s called, when the Mencap case comes out – is that it’s businesses that provide care home care, under contracts for services to council and CCG commissioners; and they can often be persuaded, for commercial reasons to take a smaller margin, overall, whilst paying enough to keep their employees from suing them.

Ordinary people, however, who have taken a direct payment, in order to pay a human being who works as an employee in day to day contact with a dependent relative, will already have noticed that their direct payment amounts have not all been put UP to match the current state of the law on paying the NMW.

For some people, using their direct payments to employ live in carers on unmeasured work contracts, that model of obtaining care in the first place, might just become unaffordable, depending on the breadth of the forthcoming Mencap judgment, assuming that it loses (which is by no means inevitable, please note – it’s too close to call, to my mind).

It seems obvious to me that people with a direct payment form of personal budget will find their hours are cut on the next review, even if their needs haven’t changed. Unlawful! – or that they’ll be told by councils, in particular, that they cannot be sustained at home any longer, so it’s off to a care home for them.

The case brought by the EHRC would have been more useful if it had involved some councils as well, to my mind, because councils have been pursuing this sort of an approach for far more many years, and just not publicising it as POLICY.

But the outcome will still help STOP the legally literate at least from being so easily manoeuvred into thinking that the offer of a care home is simply the default position – at the point of hospital discharge; at the point of a review, or at the point of a person’s moving to another part of the country to be closer to loved ones.

This campaign by the EHRC does not resolve the often related issue of whether a person who can lawfully be offered a care home as a way of meeting their needs, (ie not as a result of a blanket policy, but due to a proper consideration of individual aspects of their situation and a comparison of the costs) can THEN be offered merely that same sum of money as the care home would have cost the council, if and when they say Thanks, but No, Thanks, over My Dead Body….

That’s known as cost-capping, and half the council sector thinks it’s illegal, and the other half thinks it makes perfect sense, and gives people their ‘choice’ whilst managing public funds. On balance, I think it’s unlawful, but I don’t think it’s a black and white issue, like the issue the EHRC took CCGs to task over.

That’s the next legal issue that needs to be the subject of some test case litigation, but in the right case, I sincerely hope, not in a weak one.

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 fantastic result – using real legal literacy – that will deter commissioners from driving people into care homes – and just before the Mencap decision on the NMW and sleep-ins might make care during the night beyond the means of most!

  1. Finola Moss

    This is good news but from a legal and PR perspective it had to happen.

    What worries me, is human rights issues can still be ignored and circumvented on spurious, made up safeguarding issues found in the family home, deliberately to force all into private for profit care homes/community living or whatever the latest name. This can then be forced by means of COP orders, which appear to ignore human rights and indeed the MCA.

    It is far far cheaper to care for a person at home, particularly if ASD/LD and they do not have physical needs so do not understand why this argument of cost can be made. Just look at the profits that are being made by Care UK, Cambian etc, and the fact that care homes have been hailed in investment magazines as the hottest investment of the decade.

    This, as with austerity is about forcing all into for profit residential care to feed our economy not about cost. Many of these homes are paid in excess of £8000 a year (a week?) by CCGs and LAs with scant accountability as to how the money was made. The MENCAP etc case was not about insufficient money to pay but making more profit to recycle. As was Cambian take over of Lifeways when they cut workers’ wages to below legal min.

    1. Belinda SchwehrBelinda Schwehr Post Author

      The reason the cost argument CAN work for public bodies is, I think, about the way the sector operates as a whole, and what the differences in market forces are regarding risk – that is, the factors that lead to cost comparisons in different settings for say, the older person who is not mobile or particularly challenging, but who may be very distressed and need a LOT of physical care; for people with physical difficulties who need a lot of input too but whose mental capacity is able to be harnessed to keeping them stimulated and occupied, and for people with learning disabilities who might be very mobile, and may need a lot of prompting and supervision but less physical attention for personal care.

      It is cheaper to look after a person with LDs in tenanted accommodation than in a care home, but increasingly they might miss out on all the specialist provision that drives up the cost of care home care. In a care home, the cost model for an individual will have to be based on a proportion of the cost of that service and the building, even if they don’t use it to the full. Concepts such as Flat Rates, Core Hours, Shared Care, Wants vs Needs vs Top Ups and additional payments etc, Usual Rates, the “cost to the council” and references to sufficiency for goodness sake, when there is no solid test of what is actually required to MEET needs – no standard no benchmark, and no explicit principle – and the lack of connection between all of these things and the person’s actual care plan from the body obliged to meet the needs, have all contributed to the lack of transparency.

      I don’t have a problem with people making money (or replenishing charitable reserves) from providing care at all, as it happens. I think it is an interesting question whether most people in care jobs would prefer to keep their jobs and be paid an allowance, rather than the NMW for every hour. Since councils and CCGs don’t like to PROVIDE, and we don’t prime our sons and daughters to be the physical providers of care in this country, there is no option but to look to business for the services.

      We should be honest about it, however, I think, and not cover up that the State is withdrawing from funding social care, just as it has withdrawn from from funding housing. This is a political choice but not one that is easily explained in a way that reaches people’s hearts.

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