Author: Belinda Schwehr

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!

Court Skills Training – geared to adult safeguarding, capacity disputes and deprivation of liberty challenges

I have a trainer on my books who’s skilled in local authority adults and children’s law, and well-versed in court skills, related to adult safeguarding, capacity disputes and deprivation of liberty challenges.

She’s created a course for me, that’s getting universally strong feedback.

It uses a drawn-from-life scenario which gives actual practice in both questioning and being questioned by opposing parties’ advocates. The roles provided are local authority staff roles, in a scenario where the OS and the client’s relatives take a different view to the council. The scenario can be adapted to involve considerations of continuing health care status as well, so works for CCG staff, not just local authority’s officers.

The structure of the 2-day course gives half a day of the theory and preparation of evidence, for up to 18 members of staff, and half a day’s practice in dealing with questions, for 4-6 learners at a time, (so on the same day as the theory is delivered, or over the next day for the other 2 groups of learners).

This area of work is never going to get less legally complex, so we hope it’s timely and cost-effective for maximising staff’s confidence in advance of Court appearances – and therefore supporting delivery of Care Act implementation.

Details from [email protected] or [email protected]

 

 

Are we creeping closer to emergence of solid LEGAL PRINCIPLE on cost-capping for home care packages, by reference to the cost of a package in a cheaper setting?

The end of this important case, A local authority v X (Holman J)

After the interim hearing, at which the LA had refused to trial the man out with a package in his own home for a month, given the long term financial unsustainability of the cost, the LA was required to serve a commissioning decision letter setting out what packages of care, if any, they would commission for the patient if the patient had capacity to decide to return to his home and chose to do so.

The letter was required to include consideration of direct payments to the patient.

The jointly instructed independent expert in this case, and also the treating psychiatrist at the hospital where the patient currently resides, were both required to file and serve updated reports as to capacity.

The Head of Adult Safeguarding and Learning Difficulties in the local authority wrote a further decision letter dated 31 October 2016.

The gist and effect of that letter is that the local authority remain unwilling to fund a package of care in the patient’s home with two carers present around the clock at a cost of a little under £500,000 per annum.

The decision maker did also consider a further quote that they had obtained from an alternative provider at the lower sum of £338,000 per annum, but he decided that even that cost “is unsustainable in the long-term. For similar reasons [to the earlier quote at just under £500,000] the local authority would also decline to commission a care package at this lower rate.”

The decision maker went on in his letter to consider whether the local authority would be willing to fund less expensive packages, essentially involving less intensive provision of carers. He concluded that they would not, essentially for two reasons. One reason was that they considered that there were potential risks to a single carer caring for this particular patient alone and that the wellbeing of the carers required at least two to be present at all times.

The other reason was that, in any event, the local authority considered that the needs of this patient are so great and that he so frequently needs two people present to turn him or assist him in other ways that, realistically, two people would have to be funded and present at all times.

The decision maker also decided that they were not willing, in this case, to make direct payments to the patient himself, which he considered “an inappropriate way to meet his needs”.

Comment

So would the council be walking away, if he were to leave hospital and go home, refusing the alternative placement in the hospital or elsewhere?

Would you believe it?

On 10 October 2016 there was consideration by the Independent Local Resolution Panel of a longstanding dispute in this case about the customer’s NHS CHC rights.

The court was told that the opinion of that panel will be that the care needs of this patient should be funded by the NHS through the local CCG. It turns out that the CCG was discharged as a party much earlier in the case, to be reinstated as a party in just this event. The poor old CCG!!

The judge then declared, once and for all, despite the council’s disagreement, interestingly, that the service user has capacity to make up his own mind about what he is to be offered (this will challenge the CCG, of course).

So, the CCG will have to decide whether it is appropriate to place this man in a care home or hospital or pay for his care in the community, and any challenge to that determination will likely proceed not in the Court of Protection but in the judicial review court, if anywhere!

Properly understood, the case establishes no new principle: it’s always been possible for a public body to decide that where two places CAN meet needs, there is only one practicable place to meet them, and choosing the cheaper of the two. It’s not a breach of human rights or of any Care Act principle to make that invidious decision. If people don’t like that, they need to lobby Parliament to change the law.

What the case hints at though, is that the council was probably given and accepted some firm legal advice that it was not open to abandon its professional judgement on some misguided altar of ‘choice’, (not even in the case of a person with capacity), and just give the person a direct payment of some lesser amount than is needed at home, or the alternative equivalent cost of residential care.

And that is what all CCGs and councils toying with such policies need to factor into their decision-making now, before they risk embarrassing themselves further and setting precedents that the sector has managed to avoid for over 20 years since the Lancashire case.

Original post

In the week that the Health Foundation, The King’s Fund and the Nuffield Trust have reported evidence of a £1.9 billion gap in funding in the sector, (see https://www.kingsfund.org.uk/blog/2016/11/listening-to-chorus-of-concern-around-social-care) where its authors have anticipated that legal challenges will inevitably arise, soon –  an important judicial decision has been released from Holman J., in the Court of Protection.

Readers will appreciate that in that Court, the judge has no judicial review jurisdiction to determine whether a council’s offer of a care package is lawful, irrational or unfair.

The CoP judges do have a limited Human Rights role, because they could find that a package being offered, which involved disproportionate deprivation of liberty or inadequate respect for a person’s article 8 rights, would not be in the Best Interests of the person concerned in the proceedings. That’s not quite the same as saying it’s unlawful; but it comes quite close. .

This decision, however, because of the heavy and articulate hints in it, should be seen as taking the adult social care world one step nearer to the holy grail of community care law: a position on the circumstances in which it could ever be lawful to offer a person a lower-than-known-to-be-necessary sum, to meet eligible needs, based on there being an alternative appropriate and lawful setting that would cost the council much less, but which the client wishes to refuse.

Here is a free reference to the case online: http://www.bailii.org/ew/cases/EWCOP/2016/44.html

The client in this case was the victim of an accident for which no-one was to blame; his care costs are astronomical. He is currently in a specialist hospital, in which the council has commissioned care, although it is not medical care, or the responsibility of the Health Service. The client may or may not lack capacity to decide whether to refuse a care package offered by the council – that issue has not been decided as yet, and may never be, because of the academic nature of the question, if in effect there IS only one choice for the man to make – the only choice that the council is prepared to pay for, for the foreseeable future, which is care in the current setting, on account of the costs were he to go home to his own home, an adapted rented house.

The difference between care in his own home and care in the specialist setting is £468K to £156K per year. The council had made a firm decision that it will not offer to meet his needs in his own home, but that it would meet them in the current setting, even though it is not the man’s preference or wish to accept living there for the rest of his life.

The cost of the care is on account of his behaviour as well as his needs, ie for the safety of staff, although no-one is suggesting that he should be able to stop himself from behaving unacceptably (so the Muriqi Kujtim doctrine could not apply).

CHC status (free NHS care) does not appear to ave been in the offing, despite his challenging behaviour, perhaps because although his injury was serious, rendering him tetraplegic, the needs that are exacerbating the inputs are in domains related to daily living rather than treatment, diagnosis medication or care, as such, and/or possibly because they arose from his prior personality disorder, and prior abuse of drugs and alcohol, and not from his injury.

The judge has masterfully managed to give his view, in 4 important excerpts from the report, without exceeding his jurisdiction in the Court of Protection:

“He has, I think, suggested that the local authority might consider paying to him the weekly sum that they pay the hospital so that he, with that funding, could organise his own care. That suggestion is, I am afraid, completely unrealistic.”

This suggests that in the judge’s view,  the council would not be likely to agree to this and could not be made to offer something that could not work.

….”one possibility is that they [the council] will say that they cannot fund any care on that basis, for the situation would be so unsafe for him that they would not be willing to participate in it.”

This is consistent with the Judge’s analysis being that it is legal and legally safe for the authority to say that “if he has capacity he can refuse a service but we do have to do anything further.” And that is consistent with existing case law and legal principle.

“He can fairly ask through the Official Solicitor what minimum and lesser level of care the local authority would be willing to fund if he does have capacity to decide to return home and does, in fact, choose to return home.”

This is a principle which emerged from an earlier case, KK, where in fact the judge there said there that an authority MUST make their view of the maximum offer that it would be prepared to make, in any other setting clear, before it can decide that someone in refusing lacks capacity to do so, thereby justifying a DoLS finding of lack of capacity. The judge there referred to a practicable offer – which in my view has always been a euphemism for an offer that was lawful, or at least one that was not likely to be so unlawful as to be judicially reviewable, not a figure out of the blue.

On one footing of course it’s possible to say that the other setting’s cost is not an arbitrary figure – it is rational, it would be argued, given the other option would have had to have been appropriate even to be a lawful offer in the first place. But that still doesn’t get one over the significance of the council’s knowing that the person’s needs would still cost MORE in their own home!  The judge is hypothesising here, In a case where the person’s own presentation requires the staff to be properly protected, the cost could not simply be derived mathematically from the alternative cost of another setting, where greater staff ratios would be always present.

This sends a very loud warning shot out to the social care world, that it could only ever be feasible to offer the price of another setting, to someone determined to stay at home or GO home, to capacitated people (or incapacitated people with a welfare deputy or attorney) to whom a properly defensible offer in relation to the cost of meeting needs in the actual anticipated setting, has been made.

Those needs may well have been re-drawn, on the second ‘go’ once an apparent refusal of care home care has been made, because the assessor may have been able, justifiably, to say this: “in your own home, your view of risk and the value or running it – together with your agreeing with us that you will not do x y or z, so as to minimise risk, (and any freshly volunteered informal input from friends, relatives, etc) has given us a lawful reason to fund you to the tune of less than we first thought would be needed” – but that’s not necessarily as low as the cost of residential care!

Where someone lacks capacity, in relation to refusing the offer of a care home, DoLS will still be available, obviating the need for consideration of a package at home, unless relatives threaten a judicial review.

“Frankly, if the local authority are unwilling or unable to fund a safe package of care within his own home, there is no other person or body who can, or will do so. Subject only to any possible judicial review of the decision of the local authority, the required safe level of care simply will not be available for him in his home.”

This suggests that his human rights and his rights to independent living under the Convention on the Rights of Disabled Persons cannot be used in the UK courts to establish a positive enforceable right to live in a non-institutional setting, if one needs State funded care. I would suggest that such care, in a care home, is still to be seen as IN the community, albeit more restrictive; further, the human rights in article 8 refer to the economic interests of the area and the rights and freedoms of others, as qualifying the human right in question – and in UN Convention terms, independence is a matter of degree and affordability for all of us.

Conclusions

All these points come from a legally literate approach to adult social care, without which, in my view, it is impossible for councils to function properly, whether that be strategically, managerially, or in front line operational terms.

All these points have been the subject matter of my training courses for over 15 years, because cost-capping first came before the court in a case in the late 1990s, involving Haringey – called ex p Norton no. 2, which was settled just before trial, and therefore no precedent ever set.

So how about this for a suggestion: isn’t it time that councils either allowed themselves to be judicially reviewed for doing it, so that we can all be clearer on the legal position?

Carrying on just settling cases if one looks really likely to go to court means that the vulnerable and the uninformed and the anxious get the least choice and freedom, and underfunded care packages – which must be the absolute antithesis of social work based on non-discrimination, anti-oppression, human rights and ethical practice.

If you want to be prepared for the legal challenges, don’t skimp on legal framework training, and get some in soon, by way of my webinar series via the Webinars page above,  or through my face to face training options on the Training page of http://www.careandhealthlaw.com

 

An important new case on use of the Localism Act General Power to accommodate adults with no other recourse to help, not even under a human rights driven assessment for Care Act duties or powers!

The Queen (on the application of GS by her LF the OS) v Camden LBC has just been decided in the High Court, on 21 Oct. Here is the link http://www.bailii.org/ew/cases/EWHC/Admin/2016/1762.html [2016] EWHC 1762 (Admin)

 

It has held that the General Power under the Localism Act can be the basis for delivery of a human rights driven service in the shape of accommodation for even non-eligible needs under the Care Act!

 

I take this to be a significant development of the state of care and support law, firstly in the PSIC/NRPF field, but also beyond cases in which immigration status is relevant, beyond that which has previously been settled.

 

I take it to mean that accommodation that’s been provided to an adult, temporarily, by a council, for the meeting of urgent needs, pending consideration of social care needs, and human rights considerations, cannot be withdrawn just because there is ultimately a conclusion that a person is not in fact eligible under the Care Act for accommodation, and not in line for a consideration of any s19 Care Act power (because of not having any needs for care or support) if in fact that withdrawal would be a breach of Convention rights.

 

To my mind that changes the face of local authority obligations and constitutes a very large new burden – because it could apply to anyone street homeless and in a dire situation, regardless of their immigration status, or their eligibility for adult social care, once denied an accommodation related service under the Care Act, even if they were also not able to access Housing or Homelessness help.

 

This new obligation would be a LOCAL AUTHORITY obligation, rather than a Housing or Social Services obligation (as it is when the person’s situation justifies using the legislation despite the prohibition on help to people with a certain immigration status, since social services is the agency of last resort).

 

If it is a new burden, then surely central government needs to fund until it no doubt finds time to legislate to override the effect of the decision?

 

My next specialist webinar on Wednesday morning 2nd November is about NRPF clients’ rights, in any event.

Please contact me on [email protected] if you would like to be given a free seat in that webinar (no access to recording without a purchase however!)

 

What if supported living set-ups were turned back into residential care homes? Or even made ‘better’?

Rob Greig has written in the Guardian that proposals to meet people’s needs in care homes rather than in supported living turn the clock back, and others have agreed it would be a return to the Dark Ages.

My position (wincing at the flak it is bound to generate – so please read to the end before outpouring on Twitter, and remember that my AIM is true and that I campaign for properly funded adult social care and am not the enemy of the people….!) is simply that this is not necessarily the case.

Before it could possibly be true, one would have to consider some of the NOT so great things that have been done in the name of normalisation of the lives of people with learning disabilities, in supported living – when really, policy has always been driven by accessing alternative income streams, the fit with the Housing Benefit system – and held back by the completely legally illiterate assumption of policy makers that one didn’t need to understand a contract in order to sign it, or take up its benefit…

This piece is not an exercise in ‘bigging up’ care homes or what the current residential model tends to offer, or could offer. It’s just a focus on the legal facts about the system-wide disingenuousness in the Supported Living sector – that’s there for anyone to think about, if they didn’t all have an organisational or sectoral agenda to serve.

Readers with grey hair will remember that care homes were de-registered en masse over the last 15 years,  in order to enable the owners to turn themselves into landlords, and keep the residents on as tenants – tenants who could get Housing Benefit and Transitional Housing Benefit for non-care tenancy related ‘support’ services (and then THB became Supporting People grant, for that type of lower level input – which was not regulated by CQC at the time).

Older readers will also remember all of the manoeuvring of services into that concept that had to be done – and then undone – when Supporting People Grant was terminated, and the services had to be regarded as re-commissioned under the still pre-Care Act legislation, and now the Care Act. These sorts of services are now referred to as part of the response to ‘inability to achieve maintaining a habitable home environment’, courtesy of the Care Act Guidance!

SOME readers may recall that the Alternative Futures saga established that the predecessor of CQC had rightly regarded an establishment as continuing to be registrable when it was shown that the arrangements for the care together with the accommodation were integrated, in legal form, in the tenancy, as well as through the real life relationship between the landlord and the provider, and thus constituting the provision of care together with accommodation.

Readers will now also perhaps grasp why we have had 5+ years of the Court of Protection needing to make single orders and deputyship orders to regularise the tenancy arrangements of all those people externalised by government edict from NHS long stay hospitals and PUT into supported living tenancies without mental capacity. Valuing People’s original vision was that it didn’t matter because as long as rent was paid, the tenancy would be voidable only when someone on the client’s side needed it to be. But loads of those tenancies had never even been signed or signed by the occupant at all: the sector thought that people’s mums, dads, vicars, circles of support, sometimes the care manager or even the bloomin’ landlord could just do the signing for the incapacitated person. And this was done to further their RIGHTS, mind you. I despaired at the time, and will therefore still bang on about legal literacy, even if I do sound like David Brent by now…

Human Rights and the UN Convention

Proponents of supported living often contend that article 8 ECHR and the UN Convention on the rights of people with disabilities entitle everyone to a home that they are the owner or tenant of, ‘in the community’.

But this is not the interpretation that any other signatory country’s courts have put on the rights mentioned. Residential care homes ARE in the community: they are lawful responses to the duty to meet need in national law, and people have rights to choose which care home they want to go to if they have capacity and are the clients of the State; if they can’t exercise those rights, a best interests decision has to be made (and no deputyship is needed). None of this means that an old-fashioned residential care home would ever be suitable for a young person with complex needs, but an appropriate one would need proper funding!

Under the ECHR, Article 8 rights are to respect for one’s home, not a right TO a home, let alone a home of an unregistered status regardless of one’s needs.

In discharging  the duties under the Care Act of course the council has got to abide by Human Rights, but it does so by weighing up all the other considerations, including whether it is even feasibly possible for a person to BE CARED FOR suitably in their own home, even if money were no object. The NHS can’t be made to care for people in their own home, regardless of the cost, and councils are no different, it seems to me.

The right to accommodation in the Care Act is to eligible needs related accommodation, not to housing. I am not saying that housing cannot be provided, only that there needs to be a very pressing reason why the needs can only be met if housing is secured, before Housing Act functions are superseded by Care Act duties. The only reference to suitability of accommodation in the Care Act is part of the list of features of an individual’s wellbeing that must merely be promoted; it does not constitute an absolute duty to house in ordinary housing, where Housing owes a duty or even where Housing does not or will not; not even if one is otherwise eligible for care and support services – for instance, there are plenty of people with an immigration status who are not able to be housed by social services.

Looking ahead:

Rob Greig’s article features news on Rochdale’s proposal to recommission services for about 260 people costing on average about £872 a week, in supported living, potentially but not exclusively in residential care homes.

I don’t think that Rochdale will be the only council thinking that a solution to slashed budgets is to return the status of premises to that of registered residential care, whilst trying to preserve the concept as a personalised model for independence.

Look at the response to the Law Commission’s consultation on reforming DoLS:

  • “Many felt that the distinction between supportive and restrictive care was without meaning given the apparent lowering of the threshold for deprivation of liberty following the Cheshire West In other words, it was argued by some that almost all people who lack capacity and who were living in a care home or some other form of care environment will satisfy the acid test.

There’s a bigger elephant in the room however, in this debate, to my mind: 

What about the ticklish problem that the whole notion of supported living is based on the received wisdom that there is something out there CALLED ‘supported living’ that exists to be bought, by councils, as such, as a Care Act response to needs, and that it is not residential care?

In legal terms, there is no such thing as ‘Supported Living’ in the Care Act’s s8 list of things that can be bought in order to meet assessed eligible needs.

There is care, support and accommodation, and facilities – perhaps as a mop-up term for anything even remotely unusual.

Accommodation as a Care Act response is either the purchase by the council of appropriate care together with the accommodation, where the care is such as to constitute personal care as defined in regulations, in which case it must be in CQC registered accommodation – OR a placement in unregistered accommodation, such as specialist mental health rehab supported living where the occupants have no tenancies, as such, because the council is paying the whole cost to the provider. In some such places, I think that some occupants do still get HB, because the premises aren’t registered, and because they can show that they will ultimately be charged something by the council, in respect of the accommodation as well as the services, which is the test for HB – not that the benefit applicant is charged rent by the actual landowner.

Supported living packages, as the sector thinks of them, are actually completely different: they are the purchase of personal care, care or support, or a mixture of the three, for delivery “in the place where the person is living”.

Councils do not tend to own, lease or buy the accommodation rights in these arrangements. They access the tenure within the premises for those needing introduction to a landlord, through the nomination rights that they have acquired previously, through freeing up land for development or transferring ownership to a company that wants to be a registered social landlord.

The council’s social services commissioners then purchase the services needed, often from the same entity, but in separately underpinned contracts, the tenancy invariably, now, being for the client or their Mental Capacity Act authorised representative to sign, so that the care and the accommodation are never purchased from the same entities, and hence (the sector believes) never provided ‘together’, even if both strands are delivered by the same company.

If – when our policy makers dreamt up supported living as a model, they had had any idea of the impact of incapacity law on contract tenancies (ancient common law), the process rights underpinning the cessation of what had been a person’s continuing NHS health care status whilst in long stay hospital (Coughlan, 1999),  and the extent of the implications of the late 1990s’ Bournewood case for our commitment to article 5 of the European Convention – in other words, if policy makers had ever recognised that you have to be legally literate to think, strategically, – they might have thought to change the HB and benefits rules so as to cover people in specified types of residential care homes, instead of triggering the wide scale de-registration of establishments offering care together with accommodation.

[Oops, I may just be talking here about Preserved Rights sorts of rules but these were canned in the early 2000s….]

That would have had the following impact:

  1. Councils would have been able to make offers of modernised and properly resourced residential care placements that at least LOOKED like what some of the best supported living has to offer nowadays;
  2. HB could have been used to pay for charges that would have been, then, in legal form, National Assistance Act charges, rather than rent.
  3. There might have come about a separate registration category for people with lower levels of dependency who would be accessing colleges and other facilities and who hence needed income support – so that they could get that, too;
  4. The Deprivation of Liberty Safeguards would been available to make legitimate the proportionate and essential benign supervision and control of anyone with more than moderate cognitive impairment, and we would not have needed deputyship to justify the signing of tenancies;
  5. We would not be having to use the Law Commission to re-think the Safeguards so as to expand them to fit a structure that never fitted into the DoLS vision. That is, a structure where the premises landlord/owner is not, and never could be the entity doing the deprivation, but where the entity which is being paid under contract by the council to do it, will be in the invidious position of being merely permitted guests in the person’s tenured or owned property – a hopeless position from which to manage a setting well enough to be able to cope with a duty of care arising from whatever might happen when staff are on duty there.

Such is life. It didn’t happen that way, and now we have many people with learning disabilities cared for in tenancies with 2-24 hour support going in or located there in the premises themselves. But it is done disingenuously, so as to get AROUND the law, in my experience:

  • How honest is the sector to the CQC on the integration of the care and accommodation arrangements? Different regional offices within CQC interpret the law differently and some offices change their expectations of providers as soon as the inspector vacancy is re-filled with a new broom, in my personal experience as an adviser.
  • How many landlords have got managing agents under contract, providing support or care so as to get around the rules on capped housing benefit, whilst making it look as if the care or support comes in to the person quite separately from the premises owner? If it’s the care, and the provider is an agent of the premises owner, that means that in law, the owner IS providing the care AND the accommodation – so is it together, or is it separate, then? Alternative Futures said that the forbidden integration of the care and the tenure, could just be de facto, and still trigger the need for registration.
  • How many prosecutions have ever been brought by CQC since Alternative Futures, regarding the de facto integration of arrangements made for tenure and personal care?
  • How many landlords of supported living have given their nomination rights for tenancies, either in entirety to just one council’s social services’ team, or even to just one support agency – so that no-one gets IN who does not need special care from the council’s LD team, or doesn’t get in unless the care agency has accepted a contract for the care of the person wanting a tenancy from one council or another?
  • Even though we now have continuing ordinary residence applicable to people moving into specified accommodation as tenants, how many RSLs offer accommodation for occupation by say 4 tenants all with different commissioners, such that NO SAVINGS to any one council have been able to be extracted – in comparison with what each of those people would need for their individual personal budget? I would bet – very few indeed.
  • Did you ever see an advert for a spare room on an ordinary mainstream lettings site that says: “applicants must have assessed eligible Adult Social Care needs and be ordinarily resident in this county”?
  • How many councils offer everyone they possibly can, a direct payment for care, OTHER than to the people in supported living, in case they decide not to use the in-house on site provider, and then ask for a higher DP rate?
  • An IMCA is not required when moving an incapacitated person OUT of a care home but only when moving a person into one. But the best interests consultation rules would still be applying to any decision to be made by a person lacking capacity about where to live; yet how many local authorities’ review teams have been encouraged to review people out of care home care, without ever involving the person’s significant others, just by taking a person on an outing and showing them a bright room with a TV on the wall and saying ‘it would be cool to live here, wouldn’t it’? Are they getting clued up Care Act advocacy now, I am wondering, on review?
  • How many councils get people’s mums and dads to sign the tenancies, still, even after 10 years’ worth of the Mental Capacity Act making it clear that best interests decisions cannot be used to validate contracts by signing ‘FOR’ someone?

And most importantly, how many councils’ Resource Allocation Systems are based (for the LD client group, that is) on the premise that a person WILL live in shared care arrangements, thereby artificially deflating everyone’s anticipated personal budgets?

At an extreme, where this is done not just for night time care but as a solution to the shutting down of day care or the unsuitability of local universal services for day time occupation of the client group – this would mean requiring people do things that their housemates were doing, just because of staff ratios, even if it didn’t make the person happy.

How is that normalising a person’s life or personalising and de-institutionalising the model of care?

 

Legal issues that matter, if we’re going to talk about ‘turning the clock back’.

Rob Greig cites current policy but Valuing people 2009 was set to last until 2012 only.

The 2009 version of the strategy made one reference to tenancies and none to the mental capacity act related aspects of holding a tenancy.

It said this: “Many people with learning disabilities do not choose where they live or with whom. More than half live with their families, and most of the remainder live in residential care. The Government will deliver a programme of work to ensure that mainstream housing policies are inclusive of people with learning disabilities.”

And yet housing law says that if you lack capacity to make a contract for your accommodation you cannot be an applicant for housing through the homelessness provisions of the Housing Act, and that has not been changed or even ‘explained’ so as to cover those who have an appointed Deputy!!

The 2009 strategy said this on human rights: adults with learning disabilities have, and should be able to enjoy on an equal basis, the same human rights as everyone else. It sets out the further steps that are needed for people with learning disabilities to achieve freedom, respect, equality, dignity and autonomy in their everyday lives.’

We are all treated equally: the Human Rights Act does not provide a right to a home, let alone a home of one’s choosing, if one needs state support to pay for the care, to cope.  A person without a disability is not guaranteed enough Housing Benefit to live wherever they want, are they?

Rob says that the supported living model ‘provides people with more certainty about where they live, greater control over their lives, ….’

In theory, yes, but if one lacks capacity, and an issue of incompatibility arises in the setting, one tenant or the other WILL be moved on best interests grounds and one’s deputy persuaded to surrender the tenancy meanwhile, because of the ongoing rental commitment, which is contractual, and the tenant’s own.

He goes on ‘….and enables them to change support provider without the need to move house.’

Again, right in theory, but not if the council won’t acknowledge that the direct payment rate may well need to go up in order to enable that change of provider – not many will want to set foot on another provider’s turf and the person receiving services  may need extra support for administration of the payment.

Rob refers to Rochdale’s proposal for its Cabinet to the effect that it could save £1.4 million in 3 years by reviewing and commissioning specialist care home care and other options such as Shared Lives, for people currently in supported living.

In its report, Rochdale has noted that

  • “Some people may not be able to benefit from having a tenancy or be able to access local community services, for others this model of care may provide more support than the person actually needs….. Living in close proximity to 2 or 3 other people can be difficult and achieving a ‘match’ of residents is regularly an issue. This can either lead to people sharing a home with others whose needs are not necessarily similar to their own, or voids in homes which leads to increased costs as 24/7 care still needs to be provided for the remaining residents…. People with learning disabilities are living longer and as a consequence are developing age related conditions such as dementia in addition to their learning disability. For some forms of learning disability there is an increased risk of developing dementia and the condition also develops at an earlier age. Remaining in a small group home with other service users who do not have similar needs is not always the best option for older people, or for the people that are living with them. A placement in a residential care home specifically designed to meet the needs of people with learning disabilities may be a more suitable setting for some, for others supported housing or an extra care housing setting may be a positive option. There are now more alternative options for people with moderate learning disabilities e.g. core and cluster models of support, extra care housing and shared lives placements.”

Rochdale’s plans do recognise that some people will resist moving from homes where they have secure tenancies. That, together with the pre-Act Perry Clarke case, holding that it would be a disproportionate infringement of article 8 rights to respect for one’s home to expect a person to move to another tenancy represents some actual progress legal awareness in the sector, to my mind, rather than a turning back of the clock.

I could not agree more with Rob that the answer is certainly not a return to a large-group, residential care model where rights are taken away and lower staffing ratios lead to reduced life chances. Evidence based commissioning to provide people with just enough, would help, but people do not all want to live with others with the same degree of difficulty, or need for support, so there will always be ‘inefficiencies’.

The real solution is the social care sector standing up to government and making the inadequacy of funding a political issue, which I can only think that ADASS and the LGA do not seem to think is a necessity. If it won’t happen through the leadership, it will only happen through judicial review, and legal literacy being spread through advocates, families, providers and social workers. 

One particularly noteworthy irony, if Rochdale is serious, is this: the cost capping policy approach that we are seeing emerging from CCGs and some brave or deluded councils across the country now, [1] may well end up actually first being tested in the courts, in relation to a person with a learning disability, lacking in capacity to fight back, through the courts, despite a hugely more generous sum of money always having been spent on the individuals in the LD client group, than on older people’s care budgets, in the first place.

The wheel represented by what’s the currently most fashionable model for care, is bound to keep on turning, if the questions being asked about the actual sufficiency, appropriateness and person-centredness of the content of a care plan, are just not legally literate ones, in my view.

[1] largely intended for determining the offer to be made in a capacitated older person’s situation (‘Our offer is residential care or you could always choose to stay at home here, with what it would have cost us to meet your needs, there’)

Implications for Shared Lives Carers

The Shared Lives community of Carers, have long been being pushed into doing more and more for increasing needs clients, for a flat rate, just in return for self employed status and absence of regulation in person.

Not a great deal to swallow, I am thinking, when every person’s right is to a sufficient personal budget for the meeting of their needs. The Shared Lives carers’ community is going to need a HELL of a lot of legal literacy if they are to resist being the next sector after the housing sector to be expected to shoulder the cost of the statutory duties of councils, chronically underfunded by successive government. 

 

Delayed discharges, people’s rights, the NHS’s and councils’ legal obligations, and a new case on evicting a patient from a hospital bed!

Whenever I go on about legal literacy to some of my NHS clients, the most excitement is always apparent when we discuss so-called bed-blocking. It seems to me that there are interim consultants working on projects to ease bed blocking, all over the country, when all that is really needed is some understanding of whose duty it is to do something, and what, when, and some grasp of how to make it happen!

There’s just been a new case reported in which the Hospital Trust was awarded possession of a bedroom in a hospital care unit that was being occupied by a person who refused to leave and had been there for a year. It was the Sussex Community NHS Trust Foundation hospital that won the case.

If you know your law, that wouldn’t even be a surprise. A similar case, decided MANY years ago, and which still astonishes readers, Barnet Primary Care Trust v X [2006] EWHC 787 (QB), (2006) 92 B.M.L.R. 17 was referred to. That was in 2006, I would emphasise.

The woman in this case was ordered to pay £8,000 in costs – but I bet that that is nothing compared to the aggravation caused for officers and managers over many many months of discussion. So let us engage brains, therefore, for a moment!

A patient is on hospital premises at the invitation of the Trust, and does not acquire any right to remain there beyond the purpose of their admission and take-up of the space. Thereafter they are a trespasser and not owed a duty of care, at least not one in relation to literally any situation; merely as to their safety with regard to the state of the premises, the duty that’s owed to all visitors and even to trespassers in hospitals.

The woman had suffered a broken femur and was operated on and admitted to the rehabilitation facility in August 2015 – a year ago. However, she no longer had any need to take up a bedroom in the unit. She was assessed as having the same mobility level as before the surgery, and as being able to live at home, albeit with some help from social services.

I suspect that the real argument was about what she should be getting in her own home and whether it should be charged for because there is other detail in the report about failure to engage with the council with her financial information. But she had never issued proceedings against the council and they were not part of the case.

She could not use stairs but with a walking frame could walk 40 metres. She had not required a nurse since November 2015 and had declined all therapy. And she didn’t turn up at the hearing.

As in the Barnet case, mind you, there is never any info about what became of the person when the bailiffs came to implement the possession order. My knowledge of law tells me that as soon as the person’s things have been put outside on the hospital steps and the person has been offered a wheelchair to the entrance, on pain of the bed being carried outside, the person realises that their situation has changed, and welcomes the attention of social services, which must then offer an assessment all over again.

People want to know whose duty it is, in various situations, because of arguments about harm arising during delays: so here is the answer, for free.

If a person is entitled to CHC status because a positive recommendation has been made by the MDT who did the DST, and the CCG has ratified it, or there’s a delay before the formal decision for a reason that is not the person’s fault – or if the person has merely been positively checklisted and is awaiting a DST, and should be out of the hospital, then their rights to have their needs met are as against the CCG – interim beds and the NHS’s duty to procure them are covered in the National Framework (albeit not mentioned in the discharge guidance in the Care Act Guidance???).

If a person has NOT been assessed as entitled to CHC, or positively checklisted, then their rights are for either local authority care or care through their own arrangements, depending on their financial resources.

If they are in need of a residential or nursing placement, and they lack mental capacity to make arrangements, they are indubitably the responsibility of the council, regardless of their personal wealth, (because they will be full cost payers, but placed by the council) with only two exceptions. The MCA allows for the laying on of hands on the person of an adult lacking mental capacity and provides legal protection if the MCA has been complied with. DoL Safeguards are available where necessary (as long as the person is properly regarded as lacking capacity).

One exception is where the person’s relatives are conscientiously and coherently (ie rationally, with evidence) suggesting that they are not fit for discharge – in which case the NHS should be bloomin’ grateful to them for pointing this out, because it will likely avoid a claim for negligent discharge if true. All possible investigations should be made – relatives are often correct.

The other exception, potentially, is where an appointed deputy or attorney with access to sufficient resources from the person’s assets, should be making arrangements and acting in the best interests of the person. In that situation, the council could legitimately say that the person is not owed a duty by the council, but cannot just wait for a deputy or attorney who – for whatever reason is doing absolutely nothing to sort the patient’s care needs out – that’s the representative’s ROLE, for goodness’ sake – and if they are not doing it, they are not fit to be the representative and then that’s a safeguarding issue.

It may well be down to the council’s market management failure that there is nowhere appropriate for the person to go to, through the representative’s arrangements, but the primary role of that representative is a best interests one, which should mean that FINDING somewhere and arguing about liability for the cost later, is what the representative does. Their responsibilities can be pointed out to them forcefully if necessary. The CoP will do so, in the end.

If a person in the bed  does NOT lack capacity, then, of course, if they are over the capital threshold, it is not the authority’s obligation to make the placement; but they do have to be given the benefit of the 12 week disregard rules before arriving at that ‘above threshold’ decision. Even then, however, the council should be seen conscientiously to exercise its discretion in SOME cases – at least to place people who are not eligible, because of the power in s19 so to do – for good reasons, for instance where the person is only slightly over the threshold and it makes no sense to make them self fund in a more expensive home that would be available to them for less money if only the council made the arrangements.

If they are NOT over the capital threshold, then their rights to have their needs met appropriately are as against the relevant council in every case, if they want the council to meet them – and if the council has nowhere to place the person which is suitable for all the assessed needs in the opinion of the council’s care planners, and available in the sense of having a vacancy, then that’s a commissioning failure and the council will have to make arrangements either at the full contractual cost of an available suitable placement, or place the person further afield and somehow manage the person’s emotional and psychological needs to see their relatives and be visited –  so as to avoid a judicial review or human rights claim or at the very least a complaint.

If a person who is entitled to council arrangements wishes to go to a particularly lovely home, despite being able to be accommodated by the council at the properly arrived at personal budget rate for that person, somewhere suitable, the person’s friends or relatives can choose to pay a top-up – and the person can do so themselves if they are entitled to the disregard or are on a deferred payment.

A person stuck in hospital who will need HOME care arrangements, not CARE HOME arrangements, is entitled to them regardless of their personal wealth and will merely be assessed to be a full cost payer.

If there is a lack of care worker capacity in the local market for provision of home care, that’s a commissioning failure and the council cannot simply stick to its tendered or local ‘going’ rate, then – it MUST procure suitable arrangements and thus exceed the budget set for home care, because a duty is a duty.

In circumstances where a person has relatives who’d be prepared to do the care if paid, the person may be able to have a direct payment with permission to pay their relatives.

There we go. I feel better now, and I hope you do too!

Please do call me if you want this sort of strategic legal input to your management of public services, or training for more legal literacy.

A considered and serious paper about what’s gone wrong in adult social care…

…which has now been published by the Centre for Welfare Reform. The content is referred to in its submission to the Communities and Local Government (CLG) Committee’s current inquiry into the financial sustainability of local authority adult social care and the quality of care provided, chaired by Clive Betts MP.

I hope people enjoy it, and use it in their academic and other work.

Legal Literacy in Adult Social Care

A great new case on the benefits of legal literacy: a successful judicial review of cuts to short breaks (for children)

West Berkshire’s disabled children’s short breaks budget cut, is quashed…

In a case that underlines the need for legal literacy on the part of MEMBERS as well as officers, in relation to fundamentally important decisions such as budget setting, the Administrative Court has quashed West Berkshire’s decisions to reduce the funding given to voluntary sector organisations to provide short breaks support to families with disabled children, by 52%.

There is an exceptional public interest in ensuring that when local authorities cut spending in a way which affects vulnerable children, they are seen to observe the relevant legal provisions, particularly where, as here, the amounts at stake are, in relation to the budget as whole, not large, and where there was flexibility in the money available to accommodate a smaller cut.”  Elisabeth Laing DBE  J

The judge’s decision was based on the omission to state for Members faced with the decision – properly – the public sector equality duty or the full extent of the duties in relevant legislation (the Children Act and regulations or guidance regarding best value and sufficiency).

A second decision to re-affirm the first decision was also flawed, by having been pre-determined – the council’s constitution precluded its rescission. And even though it was based on much better information about the legal framework, it did not flag up the possibility, or the pros and cons, of spending some of the council’s General Reserves to put the first decision right.

The asserted illegality of the first decision related to the council having failed

(1) to ask itself the right questions,

(2) to take into account mandatory relevant considerations (that is, the questions posed by, and/or the requirements of the statutory provisions which apply to short breaks)

(3) to give ‘due regard’ to the statutory equality needs described in section 149 of the Equality Act 2010

The Council faced an exceptionally difficult financial position late last year; and that position got worse in March 2016. It had already made savings of £36m over the last six years. Two thirds of its income comes from council tax. The Council had anticipated a 25% cut in revenue support grant (‘RSG’) but the provisional settlement for the next four years (received on 15 December 2015) was worse. The Council was to receive 44% less money from the Government in 2016-17, the third largest cut for any English unitary authority. In effect, the Government has introduced, without warning, a new formula for funding councils and this council was one of the worst affected. The Care Act 2014 had obliged the Council to expand its eligibility criteria for adult social care (it had been at Critical under FACS; and the provisional figure for savings which needed to be made went up from £10.8 to £19m as a result of those unexpected changes by Government.

There was comprehensive consultation done by West Berkshire, in relation to 47 areas of council functions and proposed cuts.

A large amount of factual information was provided to Members about the impact of the proposed cuts, but it was still alleged that because of the missing legal information the Council could not establish it had paid due regard to all the factors in the Equality Act.

While Members were given the text of section 149 Equality Act, they were directed, in four places in the documents, to a summary which did not accurately encapsulate, for the purposes of the decision about short breaks, the effect of section 149. Had the report only included the text of section 149(1), it might not have made councillors’ lives easy, but the judge said she could have been satisfied that they had considered the right question. The ‘summary’ way of presenting the equality issues unavoidably suggested that the approach was equivalent to, or a substitute for, the statutory considerations, and it was not good enough because it included some, but not all, relevant matters.

There was no trace in the materials given to members of any reference to the express language, or to the substance, of regulations 3 and 4 of the 2011 Breaks for Carers of Disabled Children Regulations, or of section 27(2) of the 2014 Children and Families Act (which requires councils to consider the extent to which that provision is sufficient to meet the social care needs of the young people concerned). There was no reference, either, to the duty imposed by section 11 of the 2004 Children Act to make arrangements for ensuring that the functions of the bodies to which that Act applies are discharged having regard to the need to safeguard and promote the welfare of children, or to the best value guidance, to which the Council was required to have regard.

That guidance is aimed specifically at, and ‘sets out clear expectations for’ councils which are ‘considering changing funding to local voluntary or community groups’. Paragraph 7 says that ‘Authorities should seek to avoid passing on disproportionate reductions – by not passing on larger reductions to the voluntary and community sector and small businesses as a whole than they take on’.

Had the preparation been done properly, it would have been open to the Council to conclude that, important as the impact considerations were, it was necessary to do less for disabled children, than the Council would otherwise wish to; but Members had to be satisfied that the proposed cut was proportionate, and that no other measures, such as increasing fees or reducing other budgets, could be used.

That was why, even though by the time of the second decision, when Members were properly equipped, to take into account the legal factors about duties to children which were relevant to a lawful decision, the later decision was still quashed. The Members were still not in a position fully to reconsider the proposed cut because they could not, under the Council’s constitution, rescind that decision.

The General Reserve is ‘expected to cover any of the following risks should they arise …risks in relation to litigation’. The claimant’s barrister contended that the risk of being required to reconsider these decisions is such a risk, and the Council could properly now draw on its reserves to meet that risk, and its consequences.

The judge was not satisfied by the terms of the new reports prepared for the later decision…

“that the Council was invited to consider the use of reserves, or, if it did, why it decided not to use them, since apart from the allusion to ‘difficulty’, the report does not explain whether or not it would be proper to draw on the reserves, and does not tell members what the ‘difficulty’ is; whether it is insuperable, or could be overcome. The Council has the reserves. The risk of losing this case, and of being required to reconsider the decision is arguably a risk the reserves are held to meet. I have heard no argument from the Council that it is not.”

Commentary

I hope readers can see that knowing the legal framework under which day to day work is done is an essential skill or attribute for senior management and lawyers working in local government. That means the Care Act, Guidance and Regulations and public law principles, for adults’ services decision-making, of course.

I hope also that readers can see that the Best Value guidance – applying as much to the need for proportionality in proposed cuts to voluntary sector adults services providers, as it did to children’s sector providers here – must be essential reading for any future decision-making regarding adult social care budget setting.

The best bit, for me, though, is judicial reiteration of the principle that the reserves are not sacrosanct. Indeed, one of the reasons for reserves, is management of risk, and that includes legal risk.

So – anyone feeling the need to challenge an apparently inadequate personal budget should say this to the Panel, loud and proud, please:

“Reserves surely do need to be formally considered as available to resolve this dispute, because I have a good strong case on illegality, which I shall gladly set out for your Monitoring Officer’s consideration and potential legal challenge.”

A new case with important practice points for homes, care planners GPs and regulators regarding covert medication for incapacitated service users

From a case decided by the Court of Protection last week:  AG (by her litigation friend the Official Solicitor) v BMBC

Important best practice guidance to the sector has been endorsed by the Court of Protection – because covert medication can be a need, a right and done compliantly with the MCA because it constitutes a decision for an incapacitated person, even though it is a serious impingement on a person’s article 8 human rights, and therefore needs to be justified and subject to scrutiny in a DoLS situation):-

(a) Where there is a covert medication policy in place or indeed anything similar there must be full consultation with healthcare professionals and family.

(b) The existence of such treatment must be clearly identified within the assessment and authorisation.

(c) If the standard authorisation is to be for a period of longer than six months there should be a clear provision for regular, possibly monthly, reviews of the care and support plan.

(d) There should at regular intervals be review involving family and healthcare professionals, all the more so if the standard authorisation is to be for the maximum twelve month period.

(e) Each case must be determined on its facts but I cannot see that it would be sensible for there to be an absolute policy that, in circumstances similar to this, standard authorisation should be limited to six months. It may be perfectly practical and proportionate provided there is a provision for reviews(or conditions attached) for the standard authorisation to be for the maximum period.

(f) Where appointed an RPR should be fully involved in those discussions and review so that if appropriate an application for part 8 review can be made.

(g) Any change of medication or treatment regime should also trigger a review where such medication is covertly administered.

(h) Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and would of course accord with chapter 8 of the deprivation of liberty safeguard’s code of practice.

 

My top 20 cases from the old social services framework and why they’re essential knowledge in the Care Act world

  • Gloucestershire, 1997 – the case that says that a person is entitled to have their needs met – even if the council has run out of social services money – unless and until the person is lawfully reassessed as no longer being eligible for a service or funding – but also saying that the council could raise its local policy on eligibility (necessity for meeting needs), on account of being hard up…. Still useful today, in relation to rights pending reviews and revisions. Still really useful in relation to people for whom there is only ONE WAY to meet the need. Shortage of resources is no excuse. Not relevant any longer on raising the threshold, because we have the national minimum in the regulations.
  • Penfold – 1998 – the case that said that it is not lawful to exclude people from assessment based on a view that they could not feasibly qualify, and that shelter / ordinary accommodation could be a community care service. Useful when pointing out that it is not lawful to ration assessment by reference to short staffing etc. or by having screeners saying that there’d be no point…
  • Sefton – the case that said that there’s a duty, not a discretion, to provide residential accommodation when care and attention is needed that is not otherwise available. Up until then, self funders who’d depleted were regarded as not a priority, and they’d be left till they’d spent down to pretty well nothing, whilst councils ran monthly quotas. May still be an important principle these days, as austerity continues to be applied, and those who manage the budget best, are promoted.
  • Norton no. 1 and no. 2 – the cases that held that a community care assessment is invalid, if it doesn’t consider all the types of services comprised in the community care legislation, and that it’s highly probably illegal to cost cap domiciliary care. Of major importance today, because councils are looking to persuade people to minimise their needs using a strengths based approach, and reasonable people are often self-rationing and will rush over the domains or outcomes. Also, councils are once again beginning to consult over cost capping overtly (Medway, Bedfordshire, Southampton earlier this year). The guidance says councils must not, but the law is unclear until tested.
  • Lancashire, 1998 – the case that says that the authority can offer the cheaper of two alternative adequate services, to meet an assessed need. Clearly critically important in this particular era – but it only allows a comparison of adequate services, which means taking into account MCA issues, the law of choice, and the wishes and feelings and well-being of people as well as their human rights.
  • Coughlan, 1999 – the leading case on CHC rights instead of social care. Of enormous significance to both health and social care, whilst trying to work together. Widespread ignorance of the fact that primary health need can extend to a person’s care or aftercare and not just their medical, consultant or registered nurse nursing needs, is still skewing the system and meaning that people and councils are paying for care that the NHS should be funding. Legal challenge virtually dead now, because of the IRP and internal appeal stages offering chances to improve the decision-making to beyond the scope of judicial review.
  • Killigrew, 1999 – about cuts to care plans and how the council must articulate where the needs have gone off to if they say a cut should be made on account of a lessening of needs…clearly of enormous significance in this day and age.
  • Batantu, which says that a person can enforce a right to ordinary accommodation in an exceptional case, against social services, if it’s needed, under the NAA. Clearly important now, still, in relation to links between homelessness, hardship pending the discharge of the housing duty, and social services entitlement
  • Savva, 2011 – about the need for transparency of the Resource Allocation System and the client’s right to written reasons from the actual decision-maker, if they dispute the decision made. The ongoing basis of the Care Act Guidance approach to Resource Allocation Systems, but the Act is short on rights to written reasons for the finalised budget.
  • Croydon, 2011 – about parents’ and providers’ rights to be at the heart of a review/revision sort of a re-assessment, considering whether an incapacitated client is suitably placed – and the illegality of the reassessment, if MCA consultation is not properly done, as part of the process
  • Cambridgeshire v KM, 2012 – about how much money is lawfully ‘enough’, and how much reasoning, behind the amount, is lawfully ‘enough’ to be fair and transparent – see the points made above against the Savva case, for how the Care Act guidance sells clients a bit short on the value of that case law.
  • Kensington & Chelsea v McDonald, 2011 – about how the council is ultimately the decision-maker about whether a perceived need is a want or a need, or a need that necessitates intervention by the council – if the NHS is willing to provide what IT thinks is appropriate – subject only to judicial review – due to extreme or irrational unreasonableness, unfairness, illegality or a breach of human rights. A call to dignity was not enough.
  • Isle of Wight, 2011 – about the importance of following FACS guidance for the proper implementation of an eligibility policy, indicators and threshold. Of no more relevance, unless or until councils start trying to mess with or put a spin on the wording of the outcomes in the national regulations for eligibility….
  • Cornwall, 2010 – about charging policies, engagement with carers, and Disability Related Expenditure – of clear relevance today, still, although the basis of charging has been quite significantly altered.
  • Wychavon (housing benefit) 2011 – how a person can get Housing Benefit, even if they lack capacity to agree a tenancy on their own, based on the law of necessaries and the obligation to pay a reasonable fee for use of the space.
  • Buckinghamshire v Kingston on why a person does not need very much capacity to be able to set up ordinary residence rights in another area – and implicitly about why it has never been liable to refuse to assess people just because they want to move to your area, but haven’t quite arrived, as yet. Clearly of relevance to how councils will interpret the ‘genuine intention’ aspects of the continuity of care provision in the Act.
  • Hillingdon v Neary, 2011 up to an including Cheshire West and post Cheshire West cases: about the council sector’s obligation to take itself to the Court of Protection if a dispute about deprivation of liberty still rumbles on after the Safeguards have authorised the situation (and seek welfare orders for all the people in independent living outside of a DoLS setting).
  • CC v KK 2012 – how a capacitated person can choose to refuse residential care, and stay at home, even if it’s unwise, but only after a council has come off the fence about what they think is a lawful offer, first, to meet the needs that that person has or will have, in that setting, given that the other setting was not necessarily inappropriate in any real sense; just not wanted. Of enormous significance to councils trying to bring in cost capping policies in this era, but not a judicial review: it was a Court of Protection case, and the judge could not say whether an offer of a capped package would be lawful or not! He dodged the difficulty by referring to the need to offer all practicable support, in such situations! 🙂
  • All the provider JRs from 2012/13 – especially Newcastle and Northumberland, as to why councils’ commissioners cannot just offer providers less than last year’s fee, without listening to them carefully and remembering that councils have a duty to provide care, if they cannot actually purchase enough of it at the price they think they can get away with. Of enormous significance in light of several councils’ embracing of the use of top ups in a widespread way, to bridge the gap…

Commentary on what is currently known about Luke Davey’s application for judicial review

Community Care and Irwin Mitchell have reported that Luke Davey has obtained permission to bring judicial review proceedings against Oxfordshire in relation to a cut to a care package/personal budget. The social care world needs to understand what that means, in my view.

In this country, one has to get permission first, from the High Court, before being allowed to proceed to court, so that only arguable cases take up the court’s and public bodies’ time. For that reason, the threshold for permission is low, and one does not win the case just because one gets permission. But one is discouraged from even trying without a discussion first,  by rules of court which say that costs may be awarded against anyone who hasn’t complied with the pre-application protocol about giving the other side a good chance to mend its ways, by being explicit about what one’s allegation of illegality IS, in the first place.

Why do I say ‘illegality’, as opposed to one’s ‘grouse’, or ‘complaint’ or ‘disagreement’? Well, it’s because judicial review proceedings aren’t an appeal, or a process for getting the judge to agree with you about your care package or budget. These proceedings are called ‘review’ because they involve a judge scrutinising the legality of the decision, and the way it was made, not its exact correctness, in his or her eyes (let alone the service user’s!)

The proceedings are only for raising allegations of unreasonableness (which has a special really extreme meaning, in public law) or errors of LAW (not errors of fact), or unfairness (again, there are objective rules about this, not the customer’s own view) and acting outside the parameters of the Act or regulations (here the Care Act and Care Act regulations) or in breach of human rights.

If the judge agrees with the applicant that the public body has made an unlawful decision, then the person’s care package goes back to square one again, with the council merely being steered towards making a better decision second time around – but not necessarily a different substantive decision, in terms of the detail. So, if a decision has been made unfairly, and unlawfully, (say, without participation of the service user, and not assisted by an independent advocate although it should have been obvious that a right to having one was triggered) the SAME decision CAN be made second time around, as long as the process is put right… and the claimant is not compensated (as in a negligence claim) for what’s been going on. That’s one reason why so remarkably few law firms are interested in, let alone capable of taking on this kind of work: there’s not much money in it! Only the glory of doing something for the client and the wider good, or defending a council against an unmeritorious claim – because someone has to act for councils, too!

So Luke Davey’s application must be based on an argument that in finalising a care plan or his budget, the council has acted without due regard to the well-being principle, or has ignored the section about the definition of a personal budget or taken an indefensibly unreasonable or fettered view as to the ability of a small sum of money or amount of care, to meet Luke’s needs appropriately – or have determinedly proved unwilling or unable to engage with him, to give him the process rights in the Act and regs, or to explain the logic behind their figures – because of blind faith in or adherence to a resource allocation system, for example.

The claim could also look back to an earlier stage: that of assessment of his needs and the eligibility of those needs, given that some aspects of his independent lifestyle in the past would have been funded by way of ILF monies, and not all of what can no longer be paid for without that money, might be seen to be critical to preventing ‘significant’ impact to his well-being (in theory, or the council’s view, at least).

The trouble facing Luke and his lawyers is that the well-being duty is elaborated on in the Act, yes, but in ways that make it slippery, because the factors making up the statutory concept of well-being are immeasurable intangible things, like dignity and control and suitability of accommodation etc. My guess is that the focus on that section will not be the strongest point in his case.

Whenever judicial review is used to challenge a Care Act decision, the public body’s staff have to provide evidence (usually in writing) as to how they had taken account of all those factors – just as in the McDonald case involving leaving a woman to incontinence pads at night in the name of privacy and dignity (even though she was not incontinent). And the council won that case, it should be remembered. This is because (in legal terms) it is still even under the Care Act, the council which decides how to meet needs, and it is allowed to take resources into account – always, however, SUBJECT to those grounds for judicial review, above, in identifying a decision on the package or the budget that still deserves to be called appropriate. The fact that an independent OT thinks that the council’s offer is mean or overlooks risks is not the determinant of the issues in the case, unfortunately.

The relevance of ILF to this and other cases

Luke used to get ILF monies, and Community Care’s article refers to this arrangement as joint funding – a concept that requires a bit more unpicking, in my view.

In legal terms, although it was dependent in terms of the conditions for qualifying for it that one was eligible for support from a council, ILF was simply an extra source of income (not a benefit) for the individual to spend. Some very disabled people under 65 were awarded, as a matter of discretion through the trusteeship of the government’s charitable funding. It was always seen as a sort of top-up, over and above what councils were ‘willing’ to pay;  but community care law developed throughout the life of the IL Fund, to see councils’ input as meeting a shortfall, after all other sources of support have been accessed, including people’s voluntary contributions to meeting their own needs.

So, in legal terms, ILF money was the means by which people like Luke were able to meet some of their own needs, leaving councils with less of a shortfall to fill, than would otherwise have been the case, if – that is – these clients were to be supported to live independently, in the community, and not in a care home, where it might well have cost the public purse less. Living in the community outside of an institutional setting is seen by many in the sector as a right, or as a need, but in legal terms it is ‘a want’, for the vast majority of people, and hence some people used to see the ILF as paying for wants, without it impacting on the public purse in a discriminatory way for the benefit of those under 65.

The council sector decided as a whole to maintain this group’s packages until the individuals were up for review, it seems, which meant that there was less danger of an angry ARMY of capacitated and probably legally-aided ILF recipients all coming together to embarrass councils with a group action for the loss of their well-being.

BUT OF COURSE if a source of self-funding stops, for whatever reason, and this means that the amount of need which would then potentially compel the council’s meeting of it, increases to a significant extent, well then OF COURSE people’s well-being is going to suffer, in objective terms, rather than be promoted, IF the council applies exactly the same approach to these people as to others – others who never qualified for ILF perhaps in the first place. Managing to conclude that ANY services that a person has been used to being able to fund, for 20 years, are no longer needed to resolve significant impact to well-being,  withOUT getting legally challenged, would be the really challenging task here, it has to be said, for any council.

So this case will be the first of many, in my view. It will be a test of the extent to which Oxfordshire’s implementation of the Care Act, and the relevant regulations and guidance, was one of integrity or abject cynicism – in terms of its paperwork, training, recording, management bravery, legal literacy and flexibility.

The interim injunction awarded to continue his care package pending the end of the case, really underlines why it is that some people do HAVE to go to Court: the council will have been invited merely to undertake to keep it going, so as to avoid legal proceedings.

The fact that the court had to be asked for the injunction indicates that Oxfordshire’s management are either unfortunately and naively cavalier about saying enough is enough (nb on a package/plan that leaves him without 6 hours of care a day, when he had previously been assessed as needing 24 hour care) – or willing to admit and assert that their previous assessment was over-‘generous’ and inexplicably not spotted sooner despite proper care management – or maybe that they are justifiably confident in the legality of their stance, notwithstanding the unarguable shortage of monies, since the termination of the ILF-funded bottom slice of Luke’s arrangements.

All that can be said at this stage by an onlooker is that one would fervently hope that the solicitors have found a strong case to bring to make the point that it is law rather than the annual budget that governs social services’ obligations,, rather than one that makes it harder for anyone else to challenge their care plan ever again….