Category Archives: Advice and information

Pondering last week’s Sunday Times’ coverage of the Bryant family’s difficulties (resulting in the eviction of a war veteran from a care home, despite his being on CHC, by that time) over an alleged debt….

In last week’s Sunday Times’ Money section, there was a full page devoted to a story about a war veteran being turned out of a care home – even though he was by then a CHC patient, and was settled and well cared for in the home.

The article was quite difficult to follow, but the most important thing in my view to get over to the general public is that if one finds oneself in the position that this man was in, one needs competent advice from people who know some social care law. The daughters in the Bryant saga cannot have had that – and neither can the care home’s management, in my view, if the matter was not resolved before the man was asked to leave.

This man was Council-placed, at first, when he entered the care home. That means that he was eligible for local authority arrangements for a room in the care home, under a contract for a fee, in return for a service.

We all think of such people as ‘the client’, but actually the council is the purchaser and therefore the home’s client, by dint of its statutory duties to the citizen (now under the Care Act). The man was more properly seen as the beneficiary of the council’s contractual arrangements.

The contract was duly made for his care, and without a large council charge being levied on the man’s assets, at first, because he had a spouse continuing to live in the family home.

£550 a week was the rate agreed with the council by the home, for all its clients. The charge that the article speaks of the man having to pay for his care, was the local authority’s, levied by way of a financial assessment and governed by national regulations – this man being someone who had a small pension.

The article said that the home’s standard rate was £880. That is an ambiguous phrase because the sector generally thinks of the rate paid by councils as the standard rate, whilst most homes seek to charge a higher ‘private’ rate to people who are not the responsibility of the State – and different rates, usually lower, for volume purchase or for evidencing their charitable inclinations – to others. That is, they charge different purchasers differentiated prices, and this is perfectly legitimate, as the market is the determinant of what the bed is worth.

The gentleman’s wife died in December 2013. He remained in the home under the Council’s contract, while the daughters were dealing with the estate of the mother and selling the half of the home that was their father’s.

The rest of the article recites what the care home’s position was, as to the rate that it contended should then have been regarded as the rate for ongoing occupation of the room and receipt of the service. The home expected to be paid the private rate from then on in.

However, what is missing from this article is a straightforward principle of public law: any council in this position, could lawfully continue to contract for him – up to and even beyond the sale of his house, – in fact until September 2015, when he qualified for CHC.

The council is ALLOWED (indeed, obliged) to pay for incapacitated people’s placements, even if they are as rich as Rockerfeller. That has always been the law.

Just because someone has an attorney who COULD act on his behalf and make a fresh contract with the care home, does not mean that the council has to withdraw from funding.

I cannot think of any attorney or deputy who would volunteer to take over contracting in the best interests of their parent or relative – because it would only ever cost more, once that had happened.

It is a kindness, really, albeit one paid for out of tax payers’ money, for any council to continue to go on paying, because it makes the person’s money last longer. Whether it is fair to the care home market which might be working at marginal rates of profit is another matter, but this saga is just a sad illustration of lack of basic legal literacy about contract law, in my view.

The charge that the council would have been able to claim from the man’s assets, through the agency of the daughters’ holding joint power of attorney for him, would have been increased, legitimately, under the charging rules, once his half of the house was sold and he acquired the cash equivalent. it was invoiced for by the council, and duly paid to the council, once the sale of the house to the man’s own daughters was approved by the Court of Protection.

The purported debt claim that the care home was trying to make was the difference between £550 and £880, for the period December 2013 when the wife had died, to May 2015, when the house was sold.

After that point, the man does appear to have been freshly contracted for at a normal self-funding private fee (I am inferring that this was the case, and probably with the daughters acknowledging that they now had to sign as his attornies) until he acquired CHC rights in September.

But here’s the point: there was never any mileage at all in the care home’s claim, on the above facts. The daughters paid (retrospectively) the full rate for the council charge, on their father’s behalf, from the day the house was sold, but the rate paid – the full cost rate – was unavoidably and quite legitimately the rate that had already been agreed as between the purchaser (the council) and the care home (the seller).

This is a very straightforward matter not worthy of a full page, in my view. If Hertfordshire (the council in question) had actually chosen to terminate the contract, as of the date of the man’s wife’s death, then the full ‘private’ rate would have been payable from whenever that occurred. The daughters’ leaving the father in the bed could be at least the beginnings of an argument that the private rate was now being implicitly consented to, since there was no-one else paying the fees. If the council chose to go on paying, under contract, however, then the private rate was not payable.

Care homes should think about what it would mean for their cash flow if councils withdrew from contracting in such situations, long before the asset that makes the person a full cost payer has actually been sold – what would they pay the wages out of, then?

The home therefore had no right whatsoever to be paid the full ‘private’ rate on the above facts.

However, its discontent with the situation seems to stem from a Hertfordshire email to the home, informing it that the man was “self funding” from the date the wife died. If that was true, then Hertfordshire did mislead the home somewhat, by not referring to him properly as “a ‘full cost’ charge payer” – but the home should still have been legally literate enough at that point to know that in its own interests,  it had to regularise the contractual position with the daughters. The most maddening thing about the article is that it doesn’t say WHEN the home was told the information, however! It did not BILL the man for the difference between what it had been paid and what it thought it should have been paid, until May 2015 – so this might imply that it was only at that point that they grasped that the man was now in a different financial situation. I would have thought that the home would have picked up on the information that the daughters’ mother had died, just from normal courtesies when they visited. Councils don’t have the right, far less any obligation, to pass on sensitive personal data such as this…

 

What should the home have done, then, on the above facts, if it had grasped that there was a fog looming about who was liable for the fees from the date of the wife’s death? The fact that things got to the stage where it felt that it could and should evict a longstanding client, regardless of the bad press, suggests to me, that no advice was taken or that poor advice must have been given, somewhere along the way.

Even if the council wanted to carry on contracting, the are home was an equal contractual party. Any care home in this situation (apart from a home bound under a very unusually worded contract imposed on it by a very cunning council) would have a right to terminate the contract – if it did not want the resident to continue to take up – at the council rate – a room that a private client would have paid more for.

The home could have terminated the contract itself and re-offered the room to the daughters, on their father’s behalf, at its higher rate.

But of course, publicity such as this article gives the care home sector, would tend to discourage that sort of completely commercially foreseeable but invidious decision.  If we only had a better-informed sector and care consumer base, I can envisage that sort of an offer being able to be made perfectly cordially, however. People’s attorneys and ordinary relatives are not daft, and many know that private care home rates are often kept artificially high, by reason of the artificially low rates that councils impose on an often beleaguered and passive care home sector.

Rather than complain about the cruelty of the eviction, in my view, the family members just needed better legal advice at the time – as did the home’s management. The daughters should have responded to a demand for £16K in this manner: they should have been enabled to write to the home with one simply statement:

“The care that has been provided to our father has been provided under a contract for £550 per week, as between yourself and the council. The fact that our father is now a full charge payer under local authority law does not mean that he can be treated as a self funder; you would need to terminate the contract with the council and seek our agreement as attorneys to paying the full rate if that is what you wish to. We very much hope that you will not do that – because later on this year we expect him to qualify for CHC and then you can charge the Clinical Commissioning Group a higher fee;  but until then, we can only acknowledge that that is your option whilst reiterating that there is no current amount outstanding to the care home from our father’s personal assets. We have never agreed on his behalf (until May 2015) to place him privately in the home.”

The fact that the council told the care home that Mr Bryant was ‘no longer eligible for local authority funding’ does not mean, and never has meant, that he became a self funder. He remained placed under the council’s contract, unless or until it was terminated by either party to it, in accordance with its terms; and as such, he merely became a full cost payer, not a self-funder. Self-funding requires contractual AGREEMENT. End of saga.

Here are some discrete errors of wording in the wider article, that need to be publicised:

“The NHS pays for care if an individual is deemed ill enough to require constant support by healthcare professionals.”

This is a gross misstatement; the National Framework for CHC stipulates that the professional status of the care givers is not relevant, let alone determinative of whether one is deemed to deserve this status.

‘ill enough’ – CHC status leads to free care anyone who is deemed sufficiently dependent to count as having a primary health need, regardless of whether that situation comes about through illness, mental disorder, accident, injury or condition. The use of the word ‘ill’ is therefore seriously misleading.

“James Bryant was granted CHC funding after an assessment last September….The benefit was backdated to August 20th

CHC is not a benefit. It is a status which confers the right to have one’s needs met by the NHS. It affects one’s benefits, but it is not a sum of money that is provided, and it is not a benefit.

“There were 287 complaints about adult social care services in the year to April according to the LGO.”

The article did not clarify whether it meant 287 complaints about privately arranged social care – as to which the LGO has a form of jurisdiction. It might have meant 287 complaints that went ON to the LGO, from council clients or carers – all attempts resolution having failed at the end of the local authority complaints process – which would mean that there were probably thousands more of that sort, made and maybe even resolved.  Both types of complaints do go to the local government ombudsman but if there is ever a complaint about CHC, then the ombudsman in the frame for that sort of a complaint is the HSC – the central government ombudsman.

 

“Google it” – how NOT to do advice and information

Those local authorities working hard on implementing the Care Act know that section 4 says that
“A local authority must establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers.”
Those who have read a little further into section 4 know that this service must provide information and advice across an extensive range of areas, including of course essential information about how the social care system under the Care Act operates in that local authority’s area (s.4(2)).

Having been in the room when several local authorities were struggling with working out how they might go about collecting and co-ordinating all the necessary information I am well aware that this is a demanding new requirement on local authorities. Many authorities have worked hard on innovative ways of drawing together information and have been disseminating their shiny new leaflets, posters, websites and other resources since the beginning of this year.

Not so everywhere however.

Just last month (4 months after the Care Act came into force) a client of one local authority was told that her care package was going to be reviewed and that a new assessment would be carried out under the Care Act. She had the temerity to ask for details of that authority’s assessment process under the Care Act.

The response she received (now framed for posterity on my wall) would seem to me to fall a little short of what the Care Act had in mind. Attached to a copy of her previous assessment, on a compliments slip bearing the local authority’s letterhead were the handwritten words:

“Information re: the Care Act can be found via the internet.”

Confusion over health budgets and health direct payments for people lacking capacity

I have had this enquiry in from an anxious parent:

“Despite caring for my son for 31 years with no problems concerning receipt of payments from Social Services and the ILF I have now been told that a Power of Attorney or Court Protection Order is required by our Health Trust in connection with payment of a Personal Health Budget for his care.

A solicitor has informed me that the first option is a no-go as he does not consider my son to have mental capacity to complete this, leaving a Court of Protection Order as the only option.

I am absolutely flabbergasted at this situation, especially having been told this will cost around £3,000.

When benefits are paid on the basis that the claimant needs the amount paid to live on and doesn’t include extra to save, it seems that responsibility for payment falls on me, my son’s main carer, who is unable to work due to the complex care he needs.

I would be very interested to hear any comments regarding this situation, in particular from anyone who has been in this situation.”

This is my response:

The advice is fundamentally incorrect, in my view, but for complicated reasons.      So stick with it if you want to save £3000!

First of all there is no way that a person in a position of parent for a person with undoubted incapacity, should ever have been GETTING Direct Payments from social services if the person on whom they were going to need to be spent lacked capacity to consent to having one, knowing what it meant – which was that the person with needs was letting the council off the purchasing hook, and taking charge of their own purchasing, and all the liability that goes with it. There is not a parent in this country with a son or daughter with significant disabilities who would actually accept that the son or daughter him or herself is really IN CHARGE. That was what was so amusing, with all due respect, about the admittedly well-intentioned In Control movement being called ‘IN CONTROL’ – because the common law has always treated it as too obvious even for discussion that a person lacking capacity cannot conceivably be regarded as being or made to take the consequences, of being in control of complex purchasing, or an employment liability. It was the person’s circle of support who was put in control by the national policy of rolling out direct payments regardless of mental incapacity issues, albeit for the best possible motives! A direct payment ALWAYS – even back to 1996, involved a person having capacity to consent.

From 2009 it was appreciated that this was causing difficulties and the status of Suitable Person was invented by the 2009 Regulations. This development meant that a person could be chosen or put themselves forwards, and then authorised by the council to take a sum of money in their own name for the benefit of the needy person. NOT, please note, in legal terms, on behalf of them, as would be the proper analysis, if the ‘managing’ person was merely HELPING a person with reduced but still fundamentally functional cognitive decision making capacity –  or if the managing person was a statutory agent for a person accepted to lack capacity. The regulations never went that far. These regulations constituted a formal set of rules about that whole question, which most councils (in my experience as a trainer) never got round to using properly, despite the obvious safeguarding implications.

HOWEVER – now that the Care Act and Health Budgets and direct payments for CHC are in force, both systems enable a person to be given the budgets to spend on another person, without formally being a deputy or an attorney.

The whole point of these systems is that a person need not incur the expense of deputyship or pretend that a person has got capacity to grant a power of attorney) in order to spend this type of care related money.

Any CCG saying otherwise, with respect, needs to read the governing regulations and get proper legal advice.

Anyone given this sort of a brush-off needs to write to the Health Trust and say that they do not believe that there is any justification under the National Health Service legislative framework (or to the council, mentioning the Care Act instead, if the person is getting a direct payment for social care or a split package) for insisting that a person needs the formal status of deputyship to have a direct payment; and that they believe that the regulations enable a person to be a person’s recipient of the budget, if the CCG [or council] thinks after proper consideration that the person is suitable. If the paying organisation regards the applicant as unsuitable, however, the organisation needs to give the applicant evidence-based rational reasons that are defensible in public law terms – as their stance, requiring deputyship or power of attorney – whether deliberately adopted or not, risks defeating the very purpose of the health budget/social care direct payment regulations…

But – please note, for comprehensiveness, that Deputyship doesn’t cost THAT much money either, even if one did apply for it via the Court. The benefit of going in for it would be that the applicant would then be legally authorised to spend other assets belonging to the incapacitated person and also sign contracts or tenancies in their name which is not what happens when one is merely authorised to spend the person’s Health budget or Personal Budget – because in THAT situation, one always signs contracts as principal ie in the recipient’s OWN name and not legally “on behalf of” the incapacitated person, using the direct payment to discharge the liability. If such an authorised person does a runner or misuses the money, then the contracting provider of a service, or the landlord, and even the paying council or CCG has direct rights of recovery against the dodgy person the organisation authorised, which is SO much better than treating the needy person as responsible for what the authorised person has gone and done with the money.

We have seen the same sort of issues arising with regard to tenancies for people put into Supported Living, in the undoubted interests of normalising their lifestyles but also saving councils money too, on the housing element of care – no attention paid to the legal niceties of the difference between a council’s placement and an individual’s contract of tenure.

NB ILF was different, by the way, because it was a grant from the government’s trust fund, and it could always be paid to a person FOR someone else – which is why councils often applied for it, for incapacitated people – and then used it to arrange care – so as to save money on the unmet need bit of the package that the council had to pay for, even though it sometimes made the person worse off financially, because of the different operation of the ILF and Fairer Charging social care charging regimes! A really interesting notion of conflict of interest there, in relation to best interests decision-making, some would say THAT was, but not now!

Which council should be buying the advocacy input for “out of area” clients?

On my travels doing training, I am being told that when a council telephones an out of area advocacy provider, because the council has a client in that other area, who needs advocacy, the organisation is often saying “No, we are not allowed to do advocacy for you – we are tied to doing it for this council, the one who is paying us.” Then the council in need says “Well we would pay you, of course – but we need a local advocate” the organisation still says “No, it’s in our contract – we can only do it for the local council”.

Clearly this is madness in light of the Care Act policy. It isn’t co-operation as between councils; it ignores the freedom of the advocacy organisation – unless wholly in the financial control of the purchasing council (which would not be terribly impressive from the ‘independence’ perspective!) – to sell services to whomsoever wants to buy them; and it scuppers the provision of mandatory advocacy services  – or makes it cost twice as much, in times of austerity.

What does the guidance say?

Continuity of care and ordinary residence

7.29. The local authority which is carrying out the assessment, planning or review of the plan is responsible for considering whether an advocate is required. In the case of a person who is receiving care and support from one local authority and decides to move and live in another authority, the responsibility will move with the care and support assessment (see chapter 20).

[that bit of the guidance needs to say – we feel sure – “…if the person is simply moving to ordinary accommodation, of their own volition, and not taking up a place in specified accommodation as a resident or a tenant, through the auspices of care planning done by the council that USED to be responsible – for all of those people will be able to assert continuing links with their old council.”]

The guidance goes on:

For a person whose care and support is being provided out of area (in a type of accommodation set out in the section on ordinary residence) (see chapter 19) it will be the authority in which the person is ordinarily resident.

[my comment here is that that is at least consistent with the legislation, because it is underlining that living out of area under a care plan can mean that it is not the authority on the spot which will be liable to pay; and the advocacy obligation should of course go with the authority that is responsible.

But it is not so helpful to people wondering what should happen when a new setting elsewhere than in the place where they are currently living has been found or is going to need to be considered, due to care planning concerns or where a change of status needs to be acknowledged: for instance, from a long term rehabilitation placement, paid for by the NHS out of the person’s original area, not yet counting as CHC, and now perceived to be coming to an end.

My view, applying general, and Care Act principles, is this: when a person is provided for by the NHS – wherever that happens to be – it does not change their place of ordinary residence for social care purposes. When a rehab package is believed to have achieved its purpose, the person in question is entitled to a proper review of whether they NOW need CHC to be commissioned, by the CCG where they have been GP registered (the rehab area, for this example) or whether they are NOW merely eligible for social care purposes or a split health and social care package – and the council where the person was ordinarily resident before the rehab, on general principles, will be the relevant authority for liaising with, UNLESS the person in question is going to make a move to ordinary accommodation somewhere of their own choice because they are not interested in living in specified accommodation. So the OLD council needs to make the decision about whether specified accommodation is needed, in most cases, if there is ultimately no CHC status awarded, and the OLD authority will need to make provision for independent advocacy.]

The guidance goes on:

Understanding of local communities may be an important consideration, so the advocacy/advocate should wherever possible be from the area where the person is resident at the time of the assessment, planning or review.

[My comment is that this only makes sense if the advocate is needed in the context of a settled placement or care arrangement out of area, not a situation where a person needs to consider acquiescing in, or other people need to do best interests decision making about, a move to one of a range of options somewhere else, somewhere other than where the person is currently settled.]

Finally, the guidance says this:

Consequences for local authorities

The local authority should have local policies to clarify the appointing of advocates:

  • from advocacy services out of their area that they may not have a direct commissioning relationship with (as it currently is with Independent Mental Capacity Advocate (IMCA));
  • for people placed out of area temporarily;
  • for people who move from one area to another following an assessment and care and support planning in which an advocate is involved (the same advocate should be involved wherever practicable).

 

[In all cases, if councils have expanded their IMCA contracts to provide for Care Act advocacy, and think that by so doing they have in some way reserved those advocates for use only by themselves, then I would have to say that I think that the commissioning advice in the Guidance would produce a system that would not be fit for purpose. A council with out of area responsibilities needs to be able to commission Care Act independent advocacy from organisations or individuals on the spot where the client is, or in the area where the client is considering a range of options and needs local insights. Anyone who has worked in social care for a long time will know that charging for services provided by one council ON BEHALF OF ANOTHER which is properly liable, is a commonplace part of the system, based on the law of agency].

Comments about other ways round this hiccup in the thinking, would be most welcome.

Is there something extraordinary, about the new “ordinary residence” regime….?!

Ordinary residence is a concept that is used in social care law to tie a person to a particular council for the purposes of determining which council has to fund their assessed eligible care and support needs.

The legal meaning of the notion of ordinary residence has always been firmly tied to a person’s intention – their intention to live somewhere, for every day daily living purposes….

So, in order for a person’s ordinary residence to remain with one council, if they physically move to another, one needs to find a special reason in the rules – or some fact which negates their intentionality, which would otherwise be inferred from their upping sticks and moving.

For instance, an example of the latter is a person’s moving away for a specific work contract, whilst leaving all their stuff and status in place in the old area, like their possessions, their council tax payments, etc. Their move is temporary only. Of course a temporary move can become a permanent one, if their intentions change once they get there; and a person’s arrival on day ONE, somewhere new, can signal the most clearly permanent intention to move – there’s no fixed time in a place required, for setting up one’s shift in o/r, if one’s mind is made up.

An example of a special reason in the rules, however, is that of DEEMED continuing ordinary residence. That concept is the exact opposite of the ordinary rule – that is, one is deemed to remain o/r with one’s old authority DESPITE one’s intention to live elsewhere for ordinary every day purposes being categorically clear.

That’s always been the rule for those being PLACED (ie contracted for by a council) in a care home, or PLACED in supported living setting (unregistered accommodation) without a valid tenancy and agreement to pay the RENT, having been understood by the person him or herself (or by a lawfully authorised deputy or attorney if the occupant personally lacked capacity to understand the contractual obligations s/he was agreeing to be bound by).

The new Care Act regulations extend the application of this DEEMING concept to people moving to certain kinds of supported living, whether or not they have a tenancy which they are paying for themselves or through Housing Benefit – or have been formally placed there under a council contract for the accommodation fee as well as the care – and this is where it gets surreally difficult to follow the idea behind the changes.

The definition of the types of supported living within the regulations for deeming is not clear – one of the several formulations is that it has to be premises intended for people with care and support needs where personal care is available if required.

When one considers that personal care can be made available to anyone who’s eligible in relation to the three ‘outcome’ areas related to personal care inabilities, in the eligibility regulations, and wherever they live, if it is required, through an application for care services under the Act, and that the intention bit of the definition is unspecific as to whose intention we are supposed to focus on (- we think it can only mean the landowner’s intention) – you can see how continuity of specialist care funding and a person’s transition from one place to another is going to get HARDER to be clear about, not easier.

And what does ‘available if required’, really mean? Is personal care ‘available if required’ for instance, in one person units in a block, all occupied by people with learning disabilities and epilepsy, where there is no sleep in space and no registered provider of personal care on the premises? The regulations appear to be based on the belief that Supported Living is a concept that means one thing, all over England.

But it doesn’t. Supported Living is the euphemism we used for 30 years under the old law, since the ‘NHS decant’ projects first started in the 1980s, for home care services (non-residential packages) going INTO accommodation which counted as the person’s own home, through ownership, or rental (tenancies).

  • It includes settings owned and operated by both registered social AND private sector landlords
  • The only clear rule is that the basis of occupation must be legally and factually separate from the arrangement for care, even if the direct landlord is the same entity as the provider of the care.
  • If the arrangements are legally or factually integrated and mixed up (for instance, the tenancy obliges the person to have care, or pay for care even if they don’t accept it, or obliges the person to accept care from the landlord’s personal care business, or from any agent operating on their behalf) then the package is a package of care together with accommodation, and would count as a care home. If unregistered, CQC has to uphold the law and would have to prosecute the unregistered provider, who would blame the council, inevitably, for manoeuvring the provider into letting to people ‘nominated’ by the council.
  • That’s why there can never be any expectation of the landlord or their associated care provider inevitably being chosen to be the provider of care: the tenant may want a direct payment to purchase services from someone else, although logically, the provider entity on site or very close by should always be the cheapest and therefore the one the council WANTS the person to be happy with.
  • Where the arrangements are properly separate, then the landlord can be the same person as the care provider, so long as he, she or it is registered with CQC for the provision of personal care to a person in the place where they are living.
  • And that covers any provider of services if what they are doing involves personal care, defined in the Scope regulations as extending to prompting together with supervision, of personal care tasks.

And aggravation from all this behind the scenes legal stuff leaves out of account the other very ticklish problem that has been brought about by the wording of the regulations. Even if the premises you are moving to, ‘fit’ the defintion, you are only seen as deemed to be of continuing o/r, with your old authority, if you are a person who has been said in your care plan to have needs that can ONLY be met by moving to that particular kind of accommodation.

Not assessed in such manner, please note, because WE DON’T ASSESS FOR SERVICES, UNDER THE CARE ACT!!

No, the magic words arise at the care planning stage.

How hopeless is this, I have to ask (- and I did shout loudly about, to the DH, well before D-Day for the Care Act) – for the poor social care professional faced with a care plan document that doesn’t even have a space on it for that formulation?

  • If they put the magic words down, they lumber their council with deemed continuing ordinary residence responsibility for the foreseeable future!
  • Even harder, when the very week before the move, the person was happily living in a care home, and has not been the driver behind the move to supported living: how can a practitioner POSSIBLY say that supported living is the only type of accommodation that can meet the person’s needs?
  • Even harder, if the person hasn’t moved at all, but the building has just de-registered!!
  • Impossibly hard, I am thinking, if the person in question wants to move out of area where the only suitable provider is twice the price of a provider in the area – a provider who is arguably suitable, at least, to meet the assessed eligible needs, in borough. If the person is to move as a tenant, ie directly responsible for the tenancy obligations, they will not get Choice of Accommodation under the parallel and similarly though not identically worded regulations for that notion – because they will have GOT choice, by signing the tenancy for themselves or through a deputy. Without the magic words on the care plan, they will be stuck in limbo between two councils, neither of whom wishes to treat the person as their legal funding responsibility.

The trouble that this all points to, is lack of public debate about the purpose of the changes, in my view.

Sure, I understand absolutely that councils were fighting the building of bespoke supported living developments on their patch, because they magnetised people with extensive care needs to the area – and their o/r changed when they came as tenants. If the old council now remains responsible, then logically, it should all be fine, and the nation’s housebuilders can start building again….and care homes will need to look lively, and diversify…

But the pre-Act rhetoric behind ‘continuity’ policy was pretty non-specific – circling round the idea that people with disabilities should be able to live ‘wherever they want to’, just like the rest of us. That’s not even true, though, for the rest of us, is it?!! We all have to cut our cloth in proportion to our means, and living in Chelsea just ain’t the same as living in Blackpool, rent wise,even if we haven’t got care needs. If we have special circumstances in our lives, that compel some planning, before packing a suitcase, then of course we have to think about what we’d be entitled to get when we got there. And if the rent is going to be oddly low, because of HB being seen as the route for paying for it, and because the specialist provider is the only one in the area to be able to cope with specialist needs autistic, or personality disordered, or epileptic clients, then of course the CARE costs are going to be unusually high. This is not rocket science.

Conclusions for now!

In conclusion, the three most serious legal issues are these:

1. Can a council lawfully apply an In Borough provision policy, in general, and in particular, to an individual person who is eligible, given that the deeming rules exist and seem to enable a person to move whilst remaining tied to their old council, supposedly for the benefits that that brings?

Can the council KEEP them there, on grounds of cost, and still be said to be promoting their wellbeing? (that question is asked, leaving aside the separate and pre-Act Human Rights issues, and the links the person may have in the area where the council organised for them to be schooled until they were 25!)

We all know that best value and cost is legally relevant to HOW to meet needs, but that’s cost in relation to needs. What if the person WANTS to live in a particular area, as a tenant, but cannot actually hope to establish that they really need to?

2. And where is a person ordinarily resident, if they have got fed up of waiting for the old council’s commissioner to persuade/bully a provider, elsewhere, into accepting a bearably low care fee, and the person has just upped sticks and bloomin’ well gone, signed the tenancy, and moved in?

Remember, in those circumstances, they won’t have got a finalised care plan with the magic words on it, so “It’s not US”, the old council would say – but the new council won’t have thought to budget for people coming in these circumstances, and won’t want to start paying the fee of the provider that it has long loathed for having had the courage to take a business risk and build this kind of provision, on that council’s patch! In that situation, the continuity provisions in ss37 and 38 may be the only ones that can apply!

3.  The third one is too much for me before caffeine – it’s how these rules fit in with the status of a s117 Mental Health Act client, who might have been provided with this sort of specified accommodation before they were sectioned, and thus not need accommodation in their s117 Care Plan. Another day, another blog for that one, methinks!

The Care Act was supposed to simplify matters for people with disabilities and for councils too, remember!! I don’t quite know how it came to this, therefore, when we had 3 years to sort this out, before the Act came into force.

For me, though, the one good thing is that the statutory disputes resolution process in the Care Act for councils fighting each other will mean that the Secretary of State has to make the decisions, according to the rules and guidance that the Department of Health itself drafted! 

That should be interesting, then! The DH is committed to publishing its decisions, but they themselves can be judicially reviewed, if they don’t get the application of the law correct!

For now, the practical consequences are these:

  • RSL and other Housing Providers aiming to provider care in the setting will have to have contractual relationships with commissioners from all over the place, instead of just the one, on the spot;
  • Young persons’ transition workers will have to understand the law of ordinary residence much better (and we are still awaiting the Supreme Court’s decision in the Wiltshire v Cornwall v South Gloucestershire case, I think);
  • Very high cost specialist care providers will have to decide whether to let people into possession or not, without o/r being agreed – then getting one or the other council, somehow, to seek an interim injunction from the Administrative Court to enforce care funding from SOMEONE in the meantime!

 

 

What is your Advice and Information service doing differently, now that the Act is in force?

What sort of responses are people getting from their newly souped up Advice and Information services around the country, please?

It’s now a statutory duty under the Care Act for all councils to offer advice and information about the system, as a WHOLE, not just what there is ‘out there’ to offset needs.

So that means telling the general public that social care is there to meet the needs of people who either cannot afford to meet their own, or who cannot manage to organise it.

This might be, for instance, because the person has insufficient mental capacity to run their own finances or make contracts with care agencies or other providers, and have nobody else willing to help them do it or do it, in their place.

This legal right is a right that has long existed, but has been refreshed by the Care Act that’s just come into force. But the issue seems to be that none of us knows what we don’t in fact know – so the adults’ social care safety net is not something most of the population has even heard of, let alone utilised for themselves or their loved ones….

This new duty also means telling people that what one gets ultimately – after a lot of talking and exploring how you might also be helped to help yourself – comes down to what an assessor thinks is needed to meet one’s eligible assessed needs, and that that question – eligibility – is governed by regulations which look at what one can and can’t manage to do. And that for people who aren’t on benefits, there’s almost bound to be a charge for what one is finally offered, because social care is not like NHS care – it IS chargeable, but not for everyone.

The Care Act does offer more hope of getting something that suits the person much better than before though – because it requires – as a matter of law – person-centred and person-led exploration of what would be most effective for the promotion of the actual individual person’s well-being!

Is it better to use the council system, or just rely on the internet, word of mouth, and self-help, then? One might be forgiven for thinking that there’s no point in getting assessed, because one might as well go out and organise one’s own care – no nosey social worker to contend with, no bureaucracy, and the REAL choice from making up one’s own mind.

But remember who we’re talking about here: people who have never needed help before, or whose need for help is suddenly very expensive indeed.

Here are the advantages:

a) through assessment and care planning support, you get help and advice from people who are aware and experienced, and that’s important for families who live far apart, or for a person thrown suddenly into a care crisis.

b) You may get access to networks of other users, even if you are not internet savvy.

c) There is not allowed to be a waiting list for most services or funding, once one has been assessed and a care plan produced – even if the council’s social services coffers are bare. This is the value of living in a country which upholds an attachment to the rule of law, by the way – this duty to meet need is an enforceable duty, and not having the funds allocated for it is NOT a legal excuse. How civilised is that, then?

d) Also, unless one’s council has decided it can no longer afford to subsidise care for people with illness and disability at all, there will likely be a maximum charge within its charging system, which means that however well off one is, putting one’s needs through the local authority still nets some kind of a financial saving, which makes economic sense for most of us.

e) Those lacking sufficient mental capacity in relation to the management of their own finances can have it organised by a regulated vetted service, or have a relative appointed as an Authorised Person without the expense of registering formal Deputyship or the fudging that goes on with Lasting Power of Attorney when it is already too late for the person to understanding the power they are signing away. And when something goes wrong with the actual service, the local authority is the purchaser, unless one has taken a direct payment, so there is the local authority’s purchasing unit on the case, rather than one having to have an argument oneself.

e) And the service, even one that is purchased by the council, is still supposed to be able to be personalised, even if it has been bought in bulk, to save public money.

f) Lastly, if a person’s carer is getting towards the end of their tether, they are able to have their own assessment of eligibility for help (services or money or vouchers – a very wide range of things) to sustain the carer doing what they’re probably best at doing anyway.

Your local advice and information service is supposed to be able to tell you what the difference is between chargeable social care for adults, and NHS Continuing Health Care, which is free – a status applicable to people who would once have been cared for in hospital, and had their NHS services delivered without any charge at all. This can apply to people with terminal illness, even if they do not need a lot of what you and I would call traditional HEALTH care, ie attention from nurses. It can apply to people in nursing homes, even though they are already getting a contribution from the NHS by way of the Free Nursing Care component of their fees. It can apply to people with learning disabilities if for instance, their condition makes them behave in a way that challenges those caring for them.

The advice and information service is also supposed to tell you how the social care system can help people with a housing problem related to illness or disability or a need for supervision – because social services staff are often entitled by way of joint working arrangements with the Housing Authority to boost people’s points on the Housing Register or in the context of applications for homelessness. The service will be able to give advice about the difference between ‘local connection’ and ‘ordinary residence’ – legal concepts that can affect one’s status in the struggle for scarce housing that is suitable for people wiht special needs.

And of course one’s advice and information service OUGHT to be able to tell you whether some of the preventative and not for profit services independently available to ANYONE in the area – regardless of any special referral from the council – have even got vacancies, or would have to charge ‘on the door’, or have a waiting list, or special admission criteria, now that we have, as a nation, elected a government with a clear mandate for more austerity measures.

If nobody bothers to write to their councillors about that problem, to encourage investment spending, now, so as to save money for the future, and if we don’t have this sort of issue properly debated at the Health and Wellbeing Board, we will all have colluded, through apathy, in the mediavalisation of social care standards and capacity. And this, just when we’re going to need it most – when the numbers of dependent people are going to be at their highest for a century… and when most households’ wellbeing demands that every adult member, who possibly can, remains in the outward-facing world of work, at least part-time, rather than taking on an unpaid caring role.

Please post what you think about your local advice and information service, if you’ve had a post Care Act start date experience…