A great case I’ve just come across regarding specialist care, commissioners and care planners…

Some years ago I went to a council do some training on the legal framework and did not er, hold back. 

The feedback was that although everyone had enjoyed it, and got value from it, the view of senior management was that my visit “should have been risk managed”. I was pretty chuffed to have made such an impression at the time, I can tell you, but I haven’t been asked back since!

So I was very interested to see that warnings that legal difficulties would ensue, unless more attention was paid to public law legal principles by the management team, appear to have come true! Always great when that happens, methinks!  The case is called Clarke, and here is the link to the case.

By 2013 the claimant, a man in his 20s with severe epilepsy, mental health and behaviour that challenged, had become “ordinarily resident” in a tenancy where personal care was available to him in unregistered accommodation. So the new council where the tenancy was situated became responsible for the claimant’s care, in place of Enfield, which had funded the move into the supported living setting, and continued to pay, within its discretion, a specialist epilepsy provider registered to domiciliary care.

In fact the new council did not carry out an assessment until 5 months after Enfield withdrew its willingness to carry on paying, and when it did, it concluded that the claimant’s care could be provided in a non-specialist manner. A support plan costed this at £357 per week as compared with the care package Enfield had been content to pay for, costing £1,300 per week. The new council refused to continue to fund the package from the previously contracted provider, and the young man got an interim injunction to prevent cessation of the package.

Evidence from a specialist neurologist and an epilepsy nurse documented active epilepsy, night seizures and risk of status related to stress and any non-compliance with medication, and injury from falls and 1-2 unpredictable tonic clonic seizures a month.

The provider’s evidence about its provision included its bespoke alarm system, staff trained in all emergency medications administration, and highly skilled management of prolonged seizure activity with access to 24 hour support and monitoring, including waking night staff.

During the pre-trial period, the council raised the allocation amount a little and said that Mr Clarke needed “Waking night support for 3 nights per month, in anticipation that your client will have up to 3 seizures a month during the night”.

Instead of accepting that the provider’s business model of charging per week was valid in relation to the need for 24 hour support, the council purported to assess as an appropriate response to the above profile of need, the following TIMED services:

  • Support for 3 hours for 7 days a week to assist him with taking medication, meal preparation, eating/drinking and showering and bathing
  • Support for 3 hours a week to assist him with cleaning, budgeting and managing bills and correspondence.

The council purported to allocate money for these needs at a level of £661 a week as a direct payment. The council did not consult the claimant before producing the updated plan; nor had it explained how it evaluated the claimant’s needs to produce the weekly figure of £661.

The council did not call for its own independent evidence, from any consultant or other experts in the field of epilepsy treatment or care. Although it had available to it the opinions expressed by the claimant’s consultant, GP, epilepsy nurse and care provider it effectively relied on the judgement of a social worker who did not claim to have any medical skills or qualifications.

In evidence, Independence Homes, the provider, said this:

“A waking night’s staff allocation for three nights a month would put Mr C in danger as it is nonsensical to suggest that assistance with medication is only needed some of the time. Additionally, his seizures are not limited to nights. They are whilst sleeping. This puts him at risk of death. So, he could easily (and often does) have a seizure whilst sleeping in the morning or early afternoon. That is why he needs 24 hour care. Sleep in support would not be able to respond to a seizure in time.”

The council maintained that another provider from whom there was no evidence would be able to meet needs, if Mr C moved from his tenancy to another address. That is, the adequacy of the provision at the cost the council wanted to keep the package to, was dependent on the service user agreeing to move HOME to another house where he would receive services from the cheaper domiciliary provider.

The judge found in favour of the claimant, and quashed the decision of the council, ordering it to re-assess the man’s needs lawfully.

[an aside here: if people with disabilities, and advocates out there, cannot do some good with this fantastic precedent about the right – and the very wrong – approach taken in this case, in these difficult times of Care Act implementation, I do not know what to offer instead, I have to say!]

Please read on for the wisdom of the judge:

“It is important to keep in mind that this is a case in which the claimant has been in receipt of these services for a number of years in circumstances in which his medical team and care providers have made it clear that his needs have not decreased. It is to be distinguished from the type of case in which a claimant is seeking services which he has not had in the past.

In my judgment the assessment by the defendant demonstrates a failure to understand and address the claimant’s medical and support needs. This is most apparent in the approach adopted by the defendant to the provision of support to provide three nights waking care a month against a background of medical and other evidence which demonstrates the need for 24 hour care in circumstances in which seizures, including sleep related seizures are unpredictable and cannot be pre-determined. The explanation as to the basis upon which three waking nights care a month are included within the package as offered in the hearing before me simply does not make sense and does not address the needs identified in the reports from the medical and other professionals.

It is also the case that the claimant has a tenancy at his current placement which has been his home for more than four years and there has been no care plan produced from the proposed non-specialist care provider.

…Notwithstanding the high hurdle faced by the claimant [on judicial review], [I find that] that the decision by the defendant failed to give appropriate weight to obviously relevant material and relied excessively on the non-expert view of a social worker in a face of a wealth of evidence to the contrary from appropriately qualified and experienced experts. I find that those opinions have not been given sufficient weight in the decision-making process and that in those circumstances the defendant should re-assess the claimant’s needs and the extent of care that as a consequence is required.

It was accepted that article 8 [the human right to respect for one’s private and family life and one’s home] was engaged. … I am satisfied that the defendant’s decision that the claimant should be expected to move from his home at which he has a tenancy, to a placement of the defendant’s choosing in circumstances in which no care plan has been provided by the proposed non-specialist care provider does amount to an unlawful interference with the claimant’s rights to respect for home and private life.

Here is the link to the case once again. All review team staff and assessors and care planners in councils receiving people from elsewhere into their area into ordinary accommodation under the continuity provisions – please take account of the principle in this case. Those moving into supported living settings where their needs can only be met by virtue of the availability of personal care will retain continued ordinary residence rights with their OLD authority, under the Care Act, as long as the previous council writes the magic words on the care plan. See other blog posts on ‘ordinary residence’ on this Blog!

 

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 great case I’ve just come across regarding specialist care, commissioners and care planners…”

  1. David

    Hello Belinda,

    Thank you for highlighting this case. It certainly does highlight that Local Authorities would put their honed and toned risk assessing prowess to better use in understanding the dangers of focussing on money, without paying attention to what are very basic public law principles.

    In relation to your unfortunate (albeit amusing) experience of the unnamed LA, I would admit to being temporarily flummoxed about why they would consider asking for your advice in the first place if they wanted any more than for you to pat them on the back and say “carry on – all is well legally”. Then I reminded myself that modern local authority risk assessments in truth amount to nothing more one question … ‘what is the chance of us being caught’.

    I have read the case which does indeed shed light on a number of things to my mind:

    1) Given that the events took place before the Care Act came into force, many of the arguments surrounding legal principles now established in statute (such as the duty to involve a person) had already been rehearsed and decided at common law. For example (and this is only one example) that the council did not involve Mr Clarke, and even when a cursory (and it appears late in the day) attempt was made by the local authority to ask his opinion about moving, it was simply ignored, without engaging with whether it was the council’s right to do so.

    2) Although the ruling makes no comment upon the old or new provider’s professionalism, the case highlights two hugely differing approaches for providers. One being principled and conscientious, paying attention to detail. The other clearly unaware of the risk that it is laying itself out to. Who knows what the consequences would have been if Mr Clarke had been moved to the new provider.

    3) The case is a desperately sad example of all things bad about the care world of today. Remembering that the facts of these circumstances involved warnings for medics about possible avoidable death (and to my mind it doesn’t get any more serious than that) I would like to think that this happens occasionally – when a Local Authority completely takes its eye off the ball because of a combination of incompetence, unprofessionalism, under-capacity, awful commissioning, a lack of organisational legal acumen, and plain stupidity. However, I fear that for every one ‘Mr Clarke’ who makes it through the minefield there are hundreds of thousands whose lives and safety are being put at risk.

    Maybe local authorities should risk assess how (and why) they are assessing risk, and think beyond risk assessing if they will be caught. The new Care Act provides an opportunity to attend to a new organisational risk assessment process.

    1. Belinda SchwehrBelinda Schwehr Post Author

      Thanks for commenting.

      I think it is quite common that prospective new providers are ‘drummed up’ when a council has decided to remove someone from their current provider, cut their package in half, or not to start contracting for the person with the preferred provider of the person.

      I am not knocking the commitment of any council to finding an evidence basis for its stance that needs can be met more cheaply; this is all public money, and the law is clear that finances being tight is a legal factor to put into the mix of what budget or response is adequate and appropriate for signing off.

      What does happen though in my experience is that the old provider is deliberately made more anxious about competition and the risk of losing a client, and a range of sometimes untested new providers may not be told the full story about the client’s situation or history. So a lower than feasible quote may be obtained, and used to beat the current provider over the head with. I wish providers would get the idea that if they wouldn’t be mug enough to take on responsibility for a high cost client, without a trial period or even meeting him or her, then their real competitors might not either. But undercutting is the name of the game, and this is supposed to be a GOOD aspect of ‘a mixed economy of care’ – with the purchaser market probably not bound by the Competition legislation, but the provider market very definitely threatened with warnings against anti-competitive conduct…

      Even this is not unlawful, as it’s a fee negotiation, not a cut to the package, necessarily – but outcomes based specification, which focus on the contractual obligation being ‘a happy safe client’ as opposed to any detail about what the NEEDS to include by way of even TYPES of input, let alone hours, became fashionable in the great ‘transformation’ and personalisation movement before the Care Act.

      What IS unlawful is ignoring Mental Capacity Act due process rights of the person and people who are interested in their welfare; ignoring the concerns of the current provider just because there is a commercial interest as well as the best possible source of evidence about the impact of moving; and ignoring human rights such as articles 3, 5, and 8. The Care Act obligations to involve ANYONE whom a capacitated person asks to be involved will help here too – it could HAVE to be the current provider, regardless of a council’s preference to keep that organisation out of the discussion.

      This case is the first I have seen which subtly underlines that a person may well be offered a care home placement courtesy of the council’s decision about care planning, and need to move house in that sense; but a person can NOT be expected to move from their own home setting to another own home setting to enable a council to make savings: the new tenancy is not a council’s adult social care service being offered, in any shape or form, but a private contractual arrangement, the making of which has to be the decision of the client, and cannot be made a precondition of a person’s entitlement to have his or her eligible unmet needs, MET!

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