Category Archives: Assessment and eligibility

The Queen (on the application of JF acting through his mother and litigation friend KF) v Merton LBC

Well, what do you know? It seems as if community care law is still in existence, and needed, even – as a measure of accountability, in very difficult times! Councils have a legal obligation to keep up staff’s competence, and will thus have to ensure that the message is properly conveyed, to both senior and front line staff. Does anyone want a webinar? 🙂

Merton – in a decision of Anne Whyte QC, sitting as a Deputy High Court Judge – has apparently ignored many long-established pre Care Act principles and has consequently lost a case about assessment under the Care Act, setting a precedent about what makes for a lawful assessment. Here is the link to the judgment, and analysis follows below: Merton judgment about Well-Being and Assessment

The case holds no real surprises but is a useful precedent for anyone looking to write to a council’s Monitoring Officer about poor practice regarding assessment duties. The old cases of Killigrew, against Birmingham, and Savva, against Kensington & Chelsea, could have been relied upon without going to Court, perhaps.

Lessons for funding panels, and review team assessors

The case also underlines the ‘building block’ approach to a lawful assessment, with recording of views about x, y and z, under the Care Act, all being a necessary part of delivering a proper assessment to care planners, and proving that one has had regard to and taken account of all the necessary features of a person-centred assessment.

So a decision to terminate a placement and move a man from his current placement to a setting where there was no specialist multi-disciplinary team, after years of his being able to access such a service, without any evidence basis identified for a decision that one was no longer needed, was clearly unreasonable. The Killigrew case had settled that as a principle, before the end of the last century!

I think that the most important lesson emerging is for Funding Panels, harking back to the Savva decision, pre-Act.

That case established that the Panel’s written reasons for regarding its job as done, when it signs off a disputed budget and plan, are necessary as an aspect of procedural fairness. Neither the Care Act, regulations, guidance nor even this case goes quite so far. However, the judge used the absence of any clarity about the Funding Panel’s personnel, scope of delegated authority, policy or processes, as going directly to the unlawfulness and unreasonableness of the decision.

The facts

The man in this case, JF, is in his early twenties, and has Autism Spectrum Disorder and severe learning difficulties. He is non-verbal and requires alternative communication techniques to assist with his basic communication. He is highly anxious and this is exacerbated by any change to his routine or environment, however minor. His emotions and behaviour can be disinhibited and he regularly tries to abscond. He is at risk of self-harm. As a result, he requires adult residential care with specialist support.

A specialist college had appropriately met his needs to date, and the council had funded his access to an on-site multi-disciplinary team for some 15 years, including occupational therapists, SALT therapists etc.

This was what the council decided would not be needed, and thus why it was necessary to move the young man, as the cost of maintaining that team was no doubt part and parcel of the provider’s costing model.

Merton prevailed upon a care home provider candidate which it had somehow identified BEFORE any Care Act process, to do a Pre-Admission Assessment. The provider’s document was supposedly designed to identify the needs of each service user at the pre-admission stage. The provider had concluded that it was suitable and could adequately meet the man’s needs.

This was of course a decision that any provider has to make in some shape or form, to meet CQC expectations that providers don’t take on people they are not competent or sufficiently staffed to manage; it may also be useful as part of the first stage of a tendering process, to ascertain capability, but it is not a Care Act assessment.

His parents were concerned that any transition to another accommodation and in particular to the provider favoured by the council would not only risk a serious reversal of the slow progress that their son had made at the College but that it would also harm his emotional, physical and psychological well-being and place him at a higher risk of being made subject to a MHA detention order. The family visited the proposed placement and came to the conclusion that it could not meet their son’s needs. From their perspective (and the College’s), their son was doing fine and should have been able to stay at the College because it also had adult provision to offer.

By June 2016 the situation appears to have been that
i) LBM had said that JF’s placement would terminate;
ii) LBM planned to move JF;
iii) an alternative service provider had deemed itself by 26 February 2016 a suitable provider to meet JF’s needs;
iv) LBM agreed that that provider could meet those needs; but
v) LBM had not yet authorised funding for the new placement.

Matters (i) to (iv) all occurred before the completion of any Care Act Needs Assessment.

Some thought was given to a short residential assessment – ie moving him to the potential placement for a trial. The parents considered that it would not be in his best interests to have his routine dramatically disrupted for the sake of such a short-term transition and in circumstances where his likely disturbance would affect the quality of the assessment. They therefore declined this offer. It is not submitted that this was unreasonable.

The parents suggested that the provider’s staff re-visit their son at the College and conduct a fuller assessment in order to establish whether or not they rally could meet his needs; Merton refused, because it was considered that an adequate assessment on site had already taken place as reflected by the provider’s pre-admission report.

The arguments

The man’s lawyer asserted that the process followed was a wholly inadequate basis for moving someone from their current accommodation.

The council predictably contended that no final decision had yet been taken about the man’s future placement, because such decisions were made at a funding panel level.

They also tried to argue that an assessment was not even a judicially reviewable decision!

The barrister for the council suggested that ‘it had been assessed that he did not need on-site multidisciplinary access’ but there was no evidence of an assessment of that question ever having taken place; nor was the judge told when or who had decided that.

In my view that starting point for re-commissioning is bound to have been a budget-led edict, when management last looked at the state of its departmental budget. It is commonplace for review teams to be given ceilings or targets in advance of care planning, but that trend cannot translate into a wiping out of previously assessed needs without a new evidence basis. This judgment says that that sort of question can’t be concluded, formally, without a lawful Care Act assessment.

The findings of the judge:

The judge referred to the findings in the Davey case earlier this year:
Section 1(1) and (2) impose a distinct duty upon a local authority, in each individual case, to promote the individual’s well-being, including for example physical and mental and emotional well-being (or, as here, access to suitable accommodation).

Section 1(3) contains a separate “have regard to” duty to a further set of matters listed therein.

If the relevant local authority does not assess the matters specified in section 9(4), including the impact on “well-being” (as defined), then there is a breach of the statutory duty.
This means that the assessment must determine how those assessed needs impact upon one’s mental and physical and emotional wellbeing and the implications of that impact on the suitability of accommodation that may be required. (See section 13, too, for a duty to consider what COULD be done to meet needs, before care planning commences).

Councils have a mandatory duty to identify and record a person’s desired outcomes in the context of the section 1(1) duty to promote “well-being”. There is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes.

This judge, here, also adopted and summarised the Davey Court’s conclusions as follows:-

First, where there are specifically factors required by law to be taken into account, a failure to take account of such obligatory factors will necessarily invalidate the decision.

Secondly, where there are other factors which may be taken into account (or indeed which others or the court itself would have taken into account) a failure to take such factors into account will not vitiate the decision.

Thirdly, there is a class of factors which ought to be taken into account. Here a failure to take account will vitiate. Such factors have variously been described as “relevant” or “clearly relevant” or “so obviously material” to the exercise of the particular discretion such that they ought to be taken into account.

She reiterated (as is already well established) that the proof required to show unreasonableness must be convincing. The claimant must demonstrate an error, or errors, of reasoning which rob the decision of its logic. Given this man’s permanent vulnerability and dependency upon care and support workers, however, the intensity of review required in this case is high level review, not arm’s length.

The judge regarded it as clear legal principle that:
• If the Assessment failed to assess the impact of the client’s needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act, then it is an unlawful assessment.
• Likewise, if it failed to assess the outcomes that the man wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful.
• If it fails to have regard to the matters specified in Regulation 3(2) of the assessment regulations, it is unlawful.
• If the assessor fails to have regard to the wishes and preferences of the individual (expressed here to a degree by his parents), then it is unlawful.
• And if the Assessment is neither appropriate nor proportionate then it is unlawful.

The judge did allow the submission that an Assessor is not under any explicit duty to explain in a Care Act Assessment document, why he or she disagrees with anything contained in such reports or with the views of parents etc. The conclusions reached were set out, and the material on which they are based was identified, and that is a legally sufficient approach to an assessment, but, the judge said, always subject to the conclusions being rationally based on the material.

The decision to terminate

The judge concluded that despite the fact that the Funding Panel had not met, the council had formally decided to terminate the man’s current placement at the College.

The combined effect of the language used in the statements for court, and the late care plan, and the steps taken was one of decision rather than undecided planning, implementation of which had merely been deferred.

As to that decision, the judge said that the decision to terminate the placement could not be said to be rational. It had been made before his needs had been conclusively assessed under the Act and on any view, before the preparation of the Care and Support Plan. In those circumstances, it was difficult to see how the decision could have been made in compliance with any of the statutory duties contained in section 1 and 9(4) of the Act and in Regulation 3 of the Assessment Regulations.

There was no evidence before the Court justifying the decision to terminate. No reasonable local authority would terminate the placement of someone with such complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs.

Looking forward from the identification of needs, to actual care planning:

In relation to the arrangements for any future move, the judge found that an Assessment under section 9 is not required to deal with the detail: the Care Act Assessment is designed to be a statement of static current needs, not how such needs should be met or changes in the response. It must consider the effect of his care and support needs on the suitability of his accommodation, not how he might move to and from any such accommodation.

But the judge confirmed that that would be part of care planning: because then, the council would need to promote his well-being under section 1 and would have to manage any transition in a way which complies with section 1.

Where a duty to meet needs arises, councils must, under s24 (1)(a) of the Act, actually prepare a care and support plan – here the plan was not prepared until well after the proceedings were commenced. The plan was not actually the focus of the case, but the detail was relevant to the adequacy of the prior assessment and the rationality of the assessment conclusions – pre-cursors to care planning, many would say.

When Merton’s barrister was asked if Merton had already decided that its preferred provider could suitably meet the man’s assessed needs, he acknowledged the ‘impression’ that such a decision had been taken (in particular by the social worker/s responsible for the Assessment), but said that no decision about the provider’s suitability had been taken at “corporate” level because no decision had yet been made about funding the placement. This meant, he contended, that the provider placement was merely “on the table”.

The judge at trial had been shown various independent reports which she thought supported the contention that this man NEEDS an on-site MDT, total communication environment and detailed and long term planning for any change in placement.

The care plan may well not have been signed off, but the work of care planning had certainly been done by the social worker: her statement, however, just stated that the local authority had decided that its client did not need an on-site MDT or a TCE. The only evidence about the decision concerning these potential needs came from Ms Singer; she stated that there was consultation and advice about this and the outcome was that the “local authority” decided that he did not require an on-site MDT and a TCE. It was therefore not stated that it was HER professional view.

The judge was not provided with any evidence about how the funding panel operated or any written policy and procedure distinguishing between the significance of decisions by social workers and decisions at a corporate level about placements of this nature. The decision-making process behind the conclusion no MDT/TCE was needed, was not particularised and the decision maker/s not identified.

The judge said that the council might well be entitled to conclude that he did not need MDT or TCE, but only on a lawful and rational basis. As it is not possible to tell when the decision was made that he did not have these particular needs nor by whom, it was not possible for the Court to be satisfied that the parents’ views (and the client’s wishes) were taken into account. In this assessment, omission to deal with the subject prevented any reader from understanding whether need for an on-site MDT/TCE was actually considered and rejected, or simply not considered at all.

It was also impossible to know whether in this respect, the defendant had regard as required to the desired outcomes for the man, or whether it assessed the impact of his MDT needs in the context of his well-being and suitable accommodation. But if he didn’t have those needs, it would be a departure in the type of service provided to the man for the last 15 years….

In legal terms, care managers either make recommendations to panel, who are the decision-makers, or they make decisions which a panel might audit but not overturn, perhaps thinking it better to save the panel process for dispute resolution if someone challenges the adequacy or legality of the package. My long-held view that Panels should be asking staff to come to panel with TWO recommendations, and not merely one, so that Panels can do what they were born to do, which is exercise discretion, in their own senior professional names, for rational reasons, chimes nicely with this case, I feel.

The wondrous conclusions of the court for this client, on these facts – even though a council COULD make the same decision, second time around, please note:

“I am satisfied that the defendant failed to comply with its duties under sections 1(1) and (3) and section 9(4) of the Act. The decision was not reasonable in the Wednesbury sense. Accordingly the Assessment was not lawful. Any re-assessment of JF’s needs must be based on his current situation and not conducted from the position that his placement is no longer available to him.”

Luke Davey’s unsuccessful Judicial Review case against Oxfordshire – analysed from a legal perspective

Luke Davey has lost his judicial review against Oxfordshire’s revised care plan in light of the cessation of the ILF.

Luke Davey – High Court judgment in full

What issues did this case raise?

– The problem of dealing with clients who had been able to supplement the council’s care packages with ILF money, once that source of additional funding for people dried up: ILF was effectively a grant that enabled a large number of younger people to meet a large slice of their own needs, thereby purchasing a better quality of life and more well-being than those who were not eligible for the grant could ever have hoped for by way of social care. Inevitably when the fund closed, a loss of wellbeing was going to be experienced whenever a council decided that it could not and would not continue to pay for everything that the individual had previously had the means to buy.

– Whether a council must be able to show in detail whether it considered all of the statutory wellbeing features set out both in section 1(2) and had regard to those in 1(3) of the Care Act (to which the answer was yes, and the essence of s.1(3)(d) is a duty, when taking decisions, “have regard to each person’s particular individual circumstances.”

– Who is the decision-maker on what a person needs, after they have been found at least eligible? (the council), and to what extent are the client’s personally desired outcomes a necessary or determining factor for care planning? “There is no warrant for a conclusion that [the] balance is weighted more in favour of the service user, than it would otherwise be under the Act, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration.”

– The extent to which a reduction in social activities on account of a reduced budget would invalidate a care plan’s legal validity: “It is possible that there might be less opportunity to go on day trips accompanied by his PAs. This very limited curtailment does not amount to a breach of s.1 of the Act.”

– How far a council has to go, in taking all reasonable steps to agree a care plan with the client before saying “No, we are not paying any more, and this is why.” – to which the answer was quite far, and conscientiously, but consent is not a necessary constituent of a signed off care plan.

– How minutely or not a council needs to be able to justify its mathematics in relation to its stance that what it is offering will conceivably and defensibly meet need: not down to the penny, and the evidence basis might in certain cases need only to be based on the staff’s opinion based on experience. With regard to carers’ terms and conditions, the higher DP agency rate was irrelevant because the client preferred to employ carers. And the Defendant said that there was no evidence that carers would leave, as the two main carers had withdrawn their resignations and the minimum wage of £7.20 “and the £40 night shift rate were compatible with rates many other service users were paying.”

– The extent to which a person’s emotional and psychological health and wellbeing are factors which are so obviously material to a proper assessment or care plan that a failure to take them into account would constitute grounds to vitiate any relevant decision: the judge found in favour of the Claimant’s position on this issue.

– The meaning of the concept of ‘independent living’, as a right in article 19 of the UN Convention on the Rights of People with Disabilities. It is not going to be of any real use to a disabled person, where the domestic legal framework presents as more detailed in relation to domains of daily life and wellbeing: in particular, no specific ambiguity in the Care Act was identified, in respect of which Article 19 might serve as an interpretive tool.

– The extent to which a council can say to a direct payment claimant “even if this sum isn’t enough for what we accept is an appropriate way for you to meet, it’s enough for something else that would do” (with regard to the notional cost of live in care). The council did not succeed in contending that the cost of something that they had not ever seriously suggested that Mr Davey could be offered (live in care in his own home) should be a benchmark proving that the greater cost offered was automatically enough – and that is not surprising: no council cannot offer a budget for something that would depend on a contract between a third party and the client about the use of a room belonging to the client!) The judge said this: “The purpose of the Personal Budget in the October 2015 Support Plan is a budget to cover the cost of a team of PAs. In this regard, whether alternative live-in care could be paid for within this budget is not relevant.”


Is it an end to litigation and the promise of the Care Act?

It’s the first proper case on care planning and wellbeing under the Care Act in a period of extreme austerity in adult social care, so it is very helpful for everyone; and there are no surprises in the judgement for anyone who appreciated that the Law Commission’s vision for the Care Act was based on continuing the substance of the pre-Act case law built up over 15 years.

But it is not an indication that a 42% cut in what has been spent overall, (eg in a mixed package with Health, and supplemented by ILF) is always going to be a safe bet for a council. There was a cut in what had been spent, but it was not a cut in what the local authority had contributed: it was an increase – and one in respect of which the judge said this: “The Defendant did put in a very substantial amount of effort, over an extended period of time, to seek to assuage the concerns of the Claimant and his mother.” There is no explanation as to what happened to the NHS contribution, interestingly enough, when the ILF ceased.

The legality of a cut to a care plan all depends on adherence to due process as well as to rational defensible substantive thinking on the matters that the Care Act and guidance require to be considered.

For legal framework commentators who like to assert that ‘need’ can be a subjective concept for the client’s determination under the Care Act, this part of the judgment would finally appear to make such a stance untenable: “there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on wellbeing matters set out in s.1(2)) then there is a breach of the statutory duty. There is, thus, a duty on the part of the local authority to assess these factors.”

The implications for practitioners:

Legal practitioners need to refresh their memories of the public law that they learned once: procedural impropriety, illegality, irrationality and breach of human rights are the grounds for judicial review; and to remember that judicial review is not an appeal – a high threshold of irrationality has to be reached to shift the position that a public body’s decision, particularly as to the use of scarce resources, is valid – it remains that way until quashed, even if people don’t agree with it. “The result may impose change or even strictures upon the Claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.”

When reading assessments it is important to focus on whether the issues facing the client are reported speech by him/her, or a carer – or a professional’s opinion, whether or not consistent with what they the staff, have been told.

Social workers and advocates need more legal literacy elements in their professional training – difficult conversations training, effectively, by people with legal acumen.

The funding (and thus the PA hours) had been sensibly tapered down over a period. An experienced social worker was brave enough to assert in this case that being alone for longer periods of each day would improve Mr Davey’s independence and confidence, and that changes in the Claimant’s current care team would be positive for the Claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers. This reminds me that the position of Kensington & Chelsea was that not providing mobility assistance at night would improve Ms McDonald’s privacy and safety. “That was a social worker’s assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment…. I am satisfied that Ms Lovelock and Ms Collins did genuinely believe both that developing the Claimant’s independence was a need and that spending more time alone was a way in which to achieve this end.”

One may not aspire to be the person who has to say such things, as a social work trainee, but one needs to bite the bullet, if it can be done conscientiously and consistently with social work professional ethics, if one chooses to work in the public sector. A position on the part of a client, carer and advocate that it is essential that there are no changes to a plan, although understandable in human terms, cannot be allowed to fetter the judgement and probing for an evidence base by review staff who are spending public money.

Any council or CCG can offer a re-assessment, once challenged about a proposed revision – and many do, once someone is well informed enough to point out that the public body has blatantly failed to comply with the Act somewhere along the customer journey. Judicial review could achieve no more, after all. But the re-assessment won’t be of any use to the client if the council’s instructions to staff about re-assessment amount to a continuing illegality under the Act: for example – “Make sure that the indicative budget comes out at what it came out at before, even if you have written down more of the client’s outcomes”; or “Do not let the carer even begin to think of withdrawing from caring informally – we can’t afford that”.

Given the risk above, practitioners MUST elicit sufficient information from a council or CCG as to their approach to the statutory thinking stages, prior to being able to give the client an idea whether or not there are grounds for judicial review – and accept or refuse a re-assessment as part of pre-action protocol correspondence, dependent on whether the public body is prepared to shift any indefensible approach that would still infect any new process.

On the question of pay rates for PAs in the area, where the evidence from the council was weak and based on the practitioner’s opinion, contracts teams can help with evidence; with regard to any cuts, and public bodies’ lawyers should note that it is always best to add to a care plan words such as this: “if problems do arise from the trialled changes, we will revisit the issue.”

This openness to the need to reconsider the situation soon, helped Oxfordshire on pay rates but it was also clear that Mr Davey had in the past and recently himself recruited external non-family carers at the minimum wage. The council provided a cogent explanation why the Claimant’s evidence of a lack of response to his own recent advert for carers, did not establish that it was difficult to recruit at the rate provided for.

It’s not surprising that Mr Davey lost, on the facts of the case. His carers withdrew their resignations and he very honestly acknowledged that as long as he didn’t have to have more than 2 hours alone, he could stand more than one period a day of being alone, without suffering from depression or anxiety, and he had refused counselling.

But I don’t think that the case sends any particular message out that this is a field that will be shutting down.

It was just not the best case to take to court on wellbeing if one wanted to set a precedent that would be good for disabled people – in the same way that Elaine McDonald’s and KM’s cases were not the best cases to take about the concept of dignity in care, or about justification for the sum allocated.

What are the practical implications of this case?

For Oxfordshire, satisfaction that their conscientiousness and experience of senior staff won the day within the judicial review jurisdiction and relief that they were allowed to get their case in order during the run up to the hearing…

For the gentleman’s PAs, a choice as to whether to take less money by way of salary or leave…

For the rest of us – whoever we may be advising – the need to balance the desire to stand up for someone, against keeping in full sight the risk that there need to be some rock solid un-loseable cases brought to court under the Care Act – if things are really so very grim out there – which is why I am promoting the launch of a charity for free legal advice to try to encourage those cases out of the woodwork.

CASCAIDr will launch soon, once it has been approved for registration by the Charity Commission.

SEN transport for 19 to 25 year olds: do councils have more responsibility than they think?

Any law firm representing a local authority at SEN tribunal who might feel inclined to gloat over yet another recent win against parents in the field of SEN law might want to think twice. Not only because the SEN system should not be about ‘winning’ and ‘losing’ (see the storm of condemnation that Baker Small attracted following its recent inappropriate tweet), but also because of the Care Act.

At first sight the case of Staffordshire County Council v JM [2016] seems like a potential money saver for local authorities and very depressing for young adults with Special Educational Needs, their parents and advocates. The parents of H, a 21 year old young woman with an EHC Plan, had won their appeal at the First Tier Tribunal (SENDIST) who had required the council to provide transport to and from the educational placement named in the plan. However, the council appealed to the Upper Tribunal and the Upper Tribunal’s judgement makes quite devastating reading from the parent’s point of view.

Firstly, it was held that SEN tribunals can’t find transport (for those of any age) to be either a special educational need (on the basis of the wording of the statute which specifies that these must ‘arise from a learning difficulty’) or special educational provision (since extensive previous case law had established that a journey cannot be part of educational provision).

Now this isn’t too much of a problem for young people of compulsory school age since there is an extensive separate transport duty under Schedule 35 of the Education Act 1996. Despite the ‘raising of the school leaving age’, those of sixth form age form yet another category of their own which I will not address here.

However, for adult learners (those beyond sixth form age) the situation is entirely different from that of both the younger two groups. The Education Act duty regarding transport for this group is to be found in s.508F Education Act 1996 (as amended by Children and Families Act 2014). But, as the upper tribunal pointed out in its second blow for parents, this is outside the jurisdiction of SENDIST anyway so cannot be challenged through the tribunal system and remedy in respect of issues around transport can only be sought through judicial review.

To further compound the depression of parents, the upper tribunal nevertheless went on to consider whether a council was compelled by the s.508F duty to provide transport for those with EHC Plans in this age group. They concluded that it does not create a free standing rule that transport for those with exceptional needs must be included in an EHC Plan. They also pointed out that the duty itself is very weak in terms of specific duties owed to an individual. This is because it is a general duty. It doesn’t say “if they consider it necessary in the particular case” , it says that councils must make such arrangements for transport “as they consider necessary” “to facilitate the attendance of adults receiving education” …

So far so depressing for parents, and, potentially, money saving for councils. However, this is the point at which all those concerned with Education Law would do well to stand back and consider adult social care law.

We can only speculate as to the detailed facts underlying this case (as the full judgement does not contain any details of H’s needs). However, under the Care Act, it seems very likely that a young person in this position would meet at least two eligibility criteria: of being “unable” (remembering the broad definition of “unable”) to achieve the outcomes of “accessing and engaging in work, training, education or volunteering” and “making use of necessary facilities or services in the local community including public transport, and recreational facilities or services”. These would be having a consequential significant impact on the young person’s wellbeing, at the very least in terms of “participation in work, education, training or recreation” (s.1 Wellbeing definition). Therefore, councils with young people aged 19 to 25 with EHC Plans should be assessing their social care needs under s.9 Care Act and considering carefully whether they need to provide transport under s.18 Care Act in order to meet a young person’s eligible social care needs. This would seem to offer a more fruitful option for resolving what would otherwise be a startling and problematic gap in the legal framework around meeting the needs of those of this age group accessing educational placements named in EHC Plans.

The main points from the Interim Statement on the DoLS, now available 

http://www.lawcom.gov.uk/wp-content/uploads/2016/05/mental_capacity_interim_statement.pdf

Excerpts from the Law Commission’s Mental Capacity and Deprivation of Liberty Interim Statement

We have therefore concluded that the new scheme should focus solely on ensuring that those deprived of their liberty have appropriate and proportionate safeguards, and should not seek to go as widely as the protective care scheme.

The responsibility for establishing the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or treatment, and away from the care provider.

The required evidence would include a capacity assessment and objective medical evidence of the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.

By way of amendments to the rest of the Mental Capacity Act, we will also seek to maintain, as much as possible, the article 8 ECHR protections that were contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services. These amendments will be aimed primarily at ensuring that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing 9 them in institutional care in the name of their best interests.

We are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.

We do not consider that there is the same necessity to establish a bespoke general hospital scheme. We consider that our new system is sufficiently clear and straightforward to apply in any setting where a deprivation of liberty for the purposes of article 5 of the ECHR may occur, including hospitals, care homes, supported living and shared lives accommodation, and domestic and private settings.

We are persuaded that there should be no additional mechanism inserted into the Mental Health Act to cater for compliant incapacitated patients. The underlying policy aim of the provisional proposal can, instead, be achieved by providing that, if such patients are to be admitted to hospital (general or psychiatric) for purposes of assessment and treatment for mental disorder, their admission should be on the basis of the existing powers of the Mental Health Act.

In conjunction with the Department of Health’s proposals for a medical examiner system, this will mean that deaths of people subject to our new scheme are reported to medical examiners, who will be under a duty to make enquiries and refer the death to a coroner if the medical examiner forms the opinion that the death was attributable, amongst other matters, to a failure of care. The coroner will have the power to conduct an inquest in an appropriate case but will not be obliged to do so.

We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal jurisdiction was introduced. We have not yet reached a final decision and will be considering our position further over the coming months.

Finally, they want a new name for the safeguards (suggestions to Olivia.Bird@lawcommission.gsi.gov.uk).

I have suggested Best Interests Custody Safeguards – BICS 🙂

 

Taking Tameside Apart: its defence of the indefensible, regarding top-ups and the LGO’s findings

Tameside Council has announced its refusal to accept the LGO’s findings or recommendations, in a complaint about top-ups. It is obliged to publicise this fact, and its reasons, and this is a rare event. So it is worthy of study, for what it says about legal literacy and the culture of good governance, to my mind, albeit the events all involved pre-Care Act law.

As the rest of this piece is critical of the council I feel that it ought to be recorded that Tameside responded to a Freedom of Information request for its barrister’s legal advice within 24 hours, providing a link to where it can be found online in any event.

Mr X’s complaint to the LGO’s office, about the fact that he felt he had no option but to spend his mother’s own money on a top-up, to keep her in a home where none had been needed, arose out of the effect of a re-procurement exercise carried out by Tameside, to improve the quality and value for money of adult residential care homes across its borough. Prices were not being forced down, but input was being forced up.

The lady had been placed and was settled in a care home where no top-up was necessary. Tameside had already chosen to pay so-called quality premiums to the home, under its old framework .agreement, as part of the price.

One is not told what the lady’s level of capacity was when she first entered the home but it is clear that she entered as a Council client, not as a self-funder.

At the time of the new procurement exercise there was an over-supply of homes, at the time; so even if homes met all the quality requirements in principle, it was not enough: a home had to get 70% or above to make it onto the new framework.

Mr X’s mother was one of those homes that did not score enough points to get invited on to the new framework.

The contractual position seems to be that the old Framework was terminated by the Council, along with any individual service contract covering Mr X’s mother. Then, all such non-qualifying homes were put on to a new and different ‘off’ Framework contract. No doubt because of the problem of the beds in such homes being occupied by their currently eligible clients, Tameside was willing to continue in a new contract with such homes, but not pay them the new price being offered to those on the new Framework.

Even though we don’t know under what form of contract the new price was set out, we do know that the element of the overall fee paid by the Council, was significantly less in the new contract. Tameside simply took off the old quality premiums that it had been willing to pay, before. The difference was £88.70 a week.

This meant that even without charging any more than it ever had charged for the care package for this lady, before that point, there was now a shortfall, between what Tameside would now be willing to pay, under its ongoing statutory duty to meet need, and the full fee that it had been the home’s contractual right to charge the council, in return for the care of that person.

Existing residents had two ‘options’ as far as Tameside was concerned, in this situation. Either they, or their relatives, could pay what was throughout called a top-up, or the resident could be re-assessed to see if they could be moved to an alternative home, on the new framework. If not, then Tameside would pay “the top-ups.”

This is what has been defended as lawful by Tameside.

I think it is so plainly not lawful, as to make it fair, and in the public interest to say that defending it requires so much economy with the truth, or disingenuousness, or management delusion, that the matter should be re-opened by the Overview and Scrutiny Committee. And I agree, for what it is worth, with the LGO, that it was maladministration, in light of the guidance and the law. I just don’t think that the LGO went far enough, in highlighting what else was unlawful about what Tameside had done.

And please note, I say this, whilst fully endorsing the Council’s use of its dominant position in the area, to force up standards and to terminate its old framework contract. Much as I might find it disdainful, if a Council only needs x beds for its throughput of residential care clients, and x beds can be secured for the same fee but with a better quality service from a fewer number of care homes than before, a Council would be corporately mad to keep other homes on its framework.

But that is a different question of what it needs to do then for people still in those beds, and that is a matter of public law and the law of community care.

In this situation, the resident had been a Council-funded client, and remained as such, in terms of her public law rights as against the Council.

The home in which she was placed, became, overnight, effectively, one in which she could not ‘choose’ to stay, because once it was clear that the home would not get onto the new Framework, there was no Council contract covering her care – so the placement would not have been accessible on the Council’s reasonable terms. That is what required a review of her care plan, whether she or her son liked it, or not.

Given that care homes and Councils are all public authorities for the purposes of the Human Rights Act, I heartily applaud the parties attempting to solve the problem by developing a new contract to cover the people affected. But even if the home was prepared to enter into a new contract with the Council, and made a commercial decision to charge what it had always charged, and hope for the best for the shortfall, I am not sure that the Council was able, lawfully, to set a fee for standard care that was £88.70 less than it had been willing – for whatever reason – to pay – the week before. The home had been providing standard care and attention for the client, and the quality premiums paid previously were not for wants, as opposed to needs, or anything outside what it regarded as needed. It didn’t suddenly water down the milk for the clients left in the beds! The old quality premiums were simply a Council’s way of formulating a price that it found, in practice, was sufficiently attractive to get someone over the threshold, so that the Council’s public law duty could be met.

In theory, on one day, the home was suitable. It was being paid £x on the basis that it was meeting quality criteria. The next day, it was not doing anything any differently, but the quality criteria had changed, meaning that £x was perceived by the purchaser as too much to pay.

For a Council to say ‘now we have changed the goalposts for what we regard as suitable and standard, by increasing the quality threshold, we are not prepared to pay you what we did pay before’, is understandable, but the Council needed to take account of the cost of providing care, before announcing their view of the right rate to contribute, and there is no reason to think that the cost of care went down for that user.  Effectively, the home did a deal with the Council to take less from the Council than it needed for the placement, but on the footing that there would be relatives who could pay, when none had been needed before, or else the clients would be moved. That’s not a proper approach to costing for standard care and attention, on the part of either party, to my mind. It’s a sort of collusive bridge as a means to supporting a person to stay where they had been settled.

Neither side seems to have understood that it wasn’t open to residents themselves to pay the top-up.

And neither side seems to have known that given the change in circumstances, even if the option for staying on under the new contract had been organised in advance, the first thing that should have happened once it was found that there was no relative to pay the shortfall, was a re-assessment of the client, because of the need to consider if she could be moved, consistently with the duties of the Council.

The law is that only the relatives can pay a top-up in a situation where the person in question is not on a disregard or a deferred payment. If the son was not willing to pay a top-up, and no-one else wanted to either, then the Council – as the body owing the lady the duty, could potentially have moved her, but could not move her without a re-assessment.

That is because it is settled community care law that a person’s plan must be maintained by the Council, regardless of available resources, until the person has been lawfully re-assessed.

That re-assessment would either conclude that she could be moved, without an inappropriate degree of detriment to the meeting of her needs, or that she could not.

If she could not be moved, then in effect the only place where it would be appropriate and suitable to place the person would have been her existing home. Then, a new placement would not have been on the basis of the lady’s choice, but because that was the only place that would do. And the Council would then have had to have paid the full amount of the full contract fee charged by the home, itself.

That has been the law since around 1995. If it is agreed by the decision-maker (the entity next in line to do its duty for the person) that there is only one way of meeting an assessed eligible need then the Council must pay that sum, without regard to its budgetary difficulties.

If the person was assessed as being able to move, appropriately, then that is when a choice would have to be made, but only if there was someone to pay a top-up, and only if the lady had capacity to make a choice to remain in the particular home. We have already been told that there was no such person willing and legally able to pay a top-up.

It has also long been top-ups law that a person can only pay their own top-up out of their own resources if they are on the 12 week disregard or on a deferred payment, so the minute the Council knew that the resident’s resources were being used for the £88 odd a week that the son paid up, it was in trouble.

Since it was the Council that was liable on the full cost of the contract (it is clear that this must always be the case) it would have been open to the son simply to pay nothing, and leave the Council to its liability.

The Council would then have been forced to make a decision, to move the lady or not. It appears that it had neither the energy to apply for deputyship, nor the appetite for the fight about moving the lady, perhaps; but the path of least resistance was not open to the Council if it involved misleading the son, and misrepresenting the law.

The Council hid behind the son’s refusal to allow the Council to re-assess his mother.

That perturbs me because of course not even the client can refuse a re-assessment; it’s the Council’s duty, in a change of circumstances, even when it’s a change of circumstances that the Council’s procurement exercise had brought about, ie a shortfall leading to the termination of a contract, and a need to make a decision about what to do about it. Of course the client can refuse to co-operate, but not even a capacitated client can refuse a re-assessment – let alone an incapacitated one with a son who was not her welfare LPA, or in any sense anything other than a best interests consultee.

One should always remember here who the contractual parties to this placement were: the Council and the home – not the son. He appears to have been paying his mother’s charges (and the top-up, in the end) through de facto control of her bank account (not power of attorney) and although a top-up from another person is treated, once it is agreed by the Council, as part of a resident’s income, the law is clear – the Council must contract for the full contractual rate, inclusive of the agreed top-up and neither the charge nor the top-up can be paid direct to the home unless everyone is in agreement that this should happen – there was no evidence that the resident agreed to have the charge element of the fee paid direct, in this case.

We are not told whether the mother had ever had capacity to make that agreement, or whether the son was simply acting de facto, ie just because he could, through having a joint bank account, or knowledge of an account password or a PIN number. But anyone who understands incapacity law (and the Council is supposed to, by now) would know that informal authority, given in the person’s capacitated past, to a loved one, to effect the spending of one’s money as necessary, evaporates, once the person has lost capacity. With regard to the so-called top-up, the lady could not authorise payment, even if she had wanted to, of something that would not have been open to her under the rules, even had she had full capacity.

Furthermore, in terms of adult protection, a Council cannot just sit there and let a son use his mother’s own money for a top-up that is not a legitimate one, just because it suits the Council. I am not impugning the son’s personal reasons for thinking that he was doing the right thing; but it cannot be acting in a person’s best interests, however right one thinks it is, to use the money up in this way, if Parliament has said that it cannot be done.

The irony of all this is that the Council’s failure to do anything about all this, would have been justified – no doubt – on the basis of person-centredness and bloomin’ CHOICE.

If you can stand any more, you are welcome to click on this further link for an even more painful analysis of why what was done should not be regarded as defensible, and consider the evidence as to whether the public officers in question even thought that it was, when reviewing the LGO’s recommendations.

Tameside and top-ups, dissected in detail

Also, here is a link to a website about top-ups elsewhere: Toxic Top-Ups site

Your chance to add questions for the first of the Webinar Series on April 6th 

Here are some I’ve been sent already. The topics are advocacy and assessment and eligibility for service users. Please add yours in the comments box below and tweet it around if you’re intending to join in or access the recordings. Go to the Webinars link above right, if you want to sign up – it’s cheaper to buy the series than access past webinars on a one-off Pay to View basis.

Advocacy

  1. Can a local authority say (whether or not in the name of person centred-ness) “Yes, you should have an advocate – and we will give you one, but they’ve got a waiting list. So it will hold up your assessment if you don’t mind waiting – or we could go ahead without, and get your assessment done now – which would you prefer?”

 

  1. You’ve said in your Community Care webinar that a person has no choice in whether or not they get an advocate. Could you say more about that please because it sounds like the opposite of what the Care Act was supposed to do for social care.

 

  1. The friend who is being paid by an adult, through the adult’s direct payments, to help and support them in the community, could be a legitimate source of support during an assessment, so as to avoid the need for an independent advocate, yes? What about volunteers who don’t know the person, but to whom the person makes no objection?

 

 

Assessment and Eligibility

 

  1. If an adult with needs for care and support just fills out the supported self-assessment form they’ve been given, and doesn’t really understand how it works and struggles with getting the form done at all because of the effects of their disability, can the local authority just consider their eligibility on the basis of the contents of that form alone, and decide they aren’t eligible?

 

  1. I’ve heard that an authority can say: “Yes you have got needs on several Outcomes and they are having an impact on your wellbeing but the impact isn’t significant as far as we are concerned, so you aren’t eligible.” If the prospective client thinks the impact on their wellbeing is very significant, who gets to judge and how do we know where this threshold is, and what can they do about it, if the disagreement continues?

 

 

Two Secretaries of State and a good deal of the Civil Service – writhing, but not very anxiously, before the Courts!

Analysis of the JM case

The attachment here is a report on what the Court has had to say about the Government’s continuing failure to do anything to restore the rule of law to the DoLS arena, with regard to its stance on not finding any new money for councils to use to abide by the due process implications of article 5 of the European Convention.  It makes grim reading for all but a few – advocates and trainers, that is, for whom a role as a Relevant Person’s Representative, or in supporting RPRs, clearly beckons!

In a previous age, members of the government whose behaviour had attracted such polite but acerbic criticism from the judiciary would surely have felt the need to resign. In previous case law concerning responsibility for unlawful backlogs in the Mental Health Tribunal system, the money was found to put it right. I do not know how such cynicism or arrogance on the part of government, such that upholding the rule of law is not a good enough reason to fight the Treasury, has managed to insinuate itself, since then, but we will all be the poorer for it.

In a baleful irony, this judgement was handed down in the same week as the Care Act Statutory Guidance was reissued, including a re-written Safeguarding Chapter, with not a single word in it, on the impasse over RPRs and litigation friends, and the backlog in the Court of Protection – or on what any of it means for the value of the “Making Safeguarding Personal” initiative!

 

Commentary on the legality of confinement of children and young persons in the light of Birmingham’s case for a 16 year old

Last week, in BIRMINGHAM CITY COUNCIL v (1) D (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) W (2016) [2016] EWCOP 8, the judge who has been making waves in the children’s social care world, Mr Justice Keehan, gave a judgement that was the inevitable sequel to his consideration of the same facts last year, when the young man in question was just short of 16 years old – he then reached his 16th birthday, at which point the Mental Capacity Act became a regime which could be applied to his situation.

The following bullets are the important principles that I believe can be derived from the case, which are of importance to the world of special schools and homes for children, whether through s17 Children Act service provision for children in need, s20 agreed accommodation arrangements, (where parental responsibility remains with the parents) or s25 secure accommodation orders or Care Orders under the Children Act (where PR is shared with parents, at the discretion of the council in question).

  • It is settled law that parental responsibility continues up to and until a child’s 18th birthday; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The principle that parental responsibility extends to children aged 16 or 17 was accepted by the Court of Appeal in Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All ER 627 but that doesn’t mean it extends in all regards.
  • “[T]he legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the Courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”
  • Neither Nielsen nor Re K are actual authority for the proposition set out in the final sentence in paragraph 14 of [the first] RK [case] namely, “a parent may not lawfully detain or authorise the deprivation of liberty of a child”. There is no decision of the ECtHR or domestic authority directly and explicitly on the issue of parental consent to the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty and in particular asserting that a parent cannot consent to the same.
  • A Local Authority v D and others sets out the limitations of the circumstances in which a parent could give a valid consent, especially where the child was accommodated by a local authority pursuant to s 20 CA 1989 or was the subject of an interim, or final care order. The possibility of parental consent, now, sanctioning objective confinement based on agreement as to best interests would have to be limited to a child under 16, now, because of this later analysis in the instant case: Keehan J said this: “I am not persuaded that a parent can consent to the confinement of a child who has attained the age of 16. Such a consent falls outside the zone or scope of parental responsibility.“
  • In respect of the provisions of s8(1) Family Law Reform Act 1969 and s 20 Children Act 1989, giving any capacitated 16 or 17 year old rights to consent to treatment, or to accommodation by the local authority, the young person who still counts as a child cannot override the consent of a person with parental responsibility relating to treatment or accommodation.
  • However, the implication of this case is that if a capacitated child of 16 or 17 does not agree with the s20 confinement regime, and the regime or treatment amounts to, (or the proposed treatment would require) objective confinement amounting to deprivation of liberty, the arrangement would have to be authorised by the court as well. Putting this another way – the regime proposed under a s20 accommodation care plan needs to be consented to by any 16 or 17 year old if it satisfies the acid test: the parents cannot agree to the regime, as part and parcel of agreeing to the accommodation, obviating the need for an application to the Court – the CoP, or via reliance on the inherent jurisdiction of the High Court if it is unclear if the person retains the presumption of capacity for this specific issue. 
  • It is already decided that a local authority who had parental responsibility for a child, by virtue of an interim care order or a care order, could not consent to the confinement of a child (under 16) which would otherwise amount to a deprivation of liberty: see A Local Authority v D and others [2015] EWHC 3125 (Fam) at paragraphs 26-29.
  • Although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order under s25 of the CA does not represent normal parental control. But a secure accommodation order will have been granted after a judicial process, and hence will not be a breach of human rights.
  • In all cases, the local authorities responsible for care planning, commissioning and best interests decision making, as well as funding, need to be the ones getting the cases to Court.

 

Summary for schools and children’s homes:

Under 15s in any setting, capacitated or incapacitated: parental consent can suffice to legitimise a benign regime that amounts to confinement or the use of the inherent jurisdiction is possible for the council, if the legitimacy of the regime is disputed by parents.

16+ – accommodated or under a care order of a full or interim nature, in all cases for other than a capacitated young person, positively consenting to the regime – in schools and OFSTED homes or supported living: Court of Protection even if the parents are in agreement, or an application under the inherent jurisdiction, if unsure about the child’s capacity (UNLESS the placement in the setting has been authorised under s25 Children Act or the MHA)

18+ and lacking in capacity in a CQC registered care home or hospital: DoLS and ultimately an appeal in the CoP

18+ and lacking in capacity and not in a care home or hospital: a Single Order application in the CoP

If, in either of the last two situations, the person is confined against own wishes, and does not lack capacity, then the person’s supporters need to make a referral to safeguarding, and seek advice about seeking habeas corpus or using the inherent jurisdiction of the High Court.

Where have all the short breaks gone?

On my travels around the country, whenever carers are mentioned, the main question seems to be what has happened to carers’ short breaks?
It’s not really surprising, given that carers’ breaks were provided in most (if not all) authorities for 15 years or so, whether delivered as weekly sitting services, vouchers for flexible breaks or as rudimentary direct payments made directly to carers. Their origins were discussed in more detail in my previous blog.
Although eligibility criteria and provision differed between authorities, within authorities most schemes remained fairly consistent for long periods. This meant that many carers became accustomed to a service which was often routinely agreed, year upon year.

The Care Act replaced the power to provide services to anyone who counted as a carer with the duty to do so if the carer is eligible. It set out National Eligibility Criteria for carers for the first time. The focus now is not on providing a fixed and often quite arbitrary sum of money but on meeting specific outcomes – none of which include the concept of the relief provided by a ‘short break’.
Carers and workers therefore feel that something has been lost. I would argue that it ain’t necessarily so….’short breaks’ may have gone, but the duty to provide, where appropriate, ‘replacement care’ is still alive and well.

If Care Act procedures are followed then there is no reason why those families, whose needs can still best be met by the existing support, should not continue to receive it.
This may not be true, however, where needs may have changed, or where more appropriate provision is available, or where people just do not fall within the new criteria. A change in national eligibility criteria is one occasion where a service may be lawfully withdrawn: but only after the person has been individually assessed under those new criteria. The Act’s guidance [10.27] also says that local authorities have to ensure that they have enough money available to comply with legal duties towards the whole population. They can therefore take funding into account when deciding how eligible needs are met – but not whether they are met.
A second issue is that the Care Act makes it clear that care and support provided to the adult is a service to that adult, not to the carer. Therefore where an adult has eligible needs and the carer’s needs can be met by providing support to the adult then the funding for this should be included in the adult’s personal budget [Guidance 11.38]
The previous legislative framework was less than explicit about that, given that services for carers could be anything at all, rather than defined types of input. The Department of Health was happy for ‘sitting services’ to be recorded in performance indicators as ‘carers’ services’ so that Local Authorities could demonstrate support for carers. The only stipulation was that this type of service could not be turned into a direct payment, if it included intimate care, without the person’s consent (or an emergency as a backstop justification).

When short breaks were introduced, they were funded by a new National Carers Grant allocation and were non-chargeable services, whatever the resources of the recipient. Even when the grant ceased to be ring-fenced and authorities could charge, most continued not to do so.

The Care Act makes it clear that carers must not be charged for any service provided to the adult, even if it is provided with the aim of supporting the carer. [Guidance 11.3]. Only the adult can be charged for a service provided directly to him or her. Although they may choose not to, it appears that most authorities are financially assessing and charging the adult for ‘replacement care’. ie: any care provided to replace that which a carer is unwilling or unable to provide (more on ‘unwilling or unable’ below).
Although it is not they who may be charged, many carers feel that no-one should pay for what they see as a small recompense for, or acknowledgement of, their caring role. They point out that the costs of providing care, if they didn’t provide it, would far outweigh the cost of a ‘short break’ and many workers would agree. But I am afraid that the only response to this is to point out tactfully that, as discussed above, local authorities have to ensure that they have sufficient money to meet their legal duties and this means charging those who can afford to pay, as long as it’s legal. Legally speaking, it is the carer’s choice whether to care and just how much to care, not a duty. Although of course I recognise that many carers, due to a variety of circumstances, don’t feel that they do have any real choice.

This approach is also equitable. Consider the situation of a person requiring care and support who has no carer with that of a person with identical needs who does have a carer. The former may have to pay for all their care, the latter for a small proportion….because of their carer’s choice. Of course some carers will welcome the discussion that they need to have with the person they care for and some will not, but that is inevitable in the variety of caring relationships that arise in the real world.

Just as an aside: although most, if not all, authorities are charging for replacement care, currently the majority of authorities are not planning to charge carers for services provided directly to them meet their own needs, although they have the power to do so.
So where are the ‘short breaks’ then?
Here is a reminder of the assessment and care planning process discussed in my last blog:
Firstly – consider which of the eligibility criteria the carer comes within, as being a domain that they are unable to achieve, or putting themselves at a risk to their health, and in either case, the situation having a consequential significant impact on their wellbeing.
Most carers are unlikely to think of things in these terms – they will be thinking of the most useful response to their needs, not the description of the need itself. They might say that they would like a rest, or they might be more specific; they might say that they would like to spend time with friends, or see their grandchildren, get more exercise, do their housework, go on holiday, tinker with their car, spend time gardening, read a book or just do absolutely nothing at all. It will be for the worker to match what they say against the relevant criterion (which might be the overarching one that they feel that their health will deteriorate without the time ‘off’.)
Second: Clearly identify the barriers the carer faces in meeting these outcomes.
Once the carer has identified something they cannot do, it will then be time to ask them – what is stopping you and what is the impact on you? Not exactly in those words I would hope…this is about what you need to ask carers; I am assuming that people know how you should ask! For guidance on deciding what impact the problem has or will have, on the person, I refer you again to Lorna’s blog on Consequential Significant Impact.
Third: Think carefully about what you need to do to remove those barriers and who you might need to support

There are a number of ways of meeting carers’ eligible needs and these will entirely depend on the nature of the barriers to achieving outcomes, or maintaining health; and the carer’s views (and where relevant, those of the adult).

Who gets the support and whose needs are being met?
To reiterate, support provided to the adult (at home or in a residential setting whilst the carer rests) is a service to that adult, because rather than MEETING the carer’s needs, the provision of the care relieves the carer of the caring input – and/or reduces the impact accordingly. The guidance [at 11.37] says that consideration may have to be given as to whose needs are being met and offers the possibility of joint budgets when support is being provided to meet the needs of the adult and the carer.
Consider this example:
A carer providing a large amount of care and support says that she wants to continue caring but tells you that what upsets her most is becoming isolated from a group of long-term friends. She wants to be able to join them each Wednesday when they go out for lunch, shop, go to a matinée or a film. She feels that this break will help her to carry on providing care. She says that she cannot leave her husband and would like someone to support him, so that she can go out.
The carer is identifying needs against the outcome ‘maintaining significant personal relationships’. She has made it clear that her needs can be met by providing support for her husband for a particular period. Are the needs hers, or her husband’s?

The needs are her husband’s as he is facing a shortfall in his care for this period: a period for which she is effectively ‘unwilling’ and ‘unable’ to provide care, given her concerns.

She hasn’t put it like that; she would probably never put it like that, nor should she have to – but thinking of it that way helps to clarify that the focus should now be on meeting the adult’s unmet needs during this period.
It is perfectly possible that having looked at the adult’s needs and how they want them met that this is an occasion when a ‘sitting service’ may be appropriate – although I would argue that in this case the traditional 3 hour period wouldn’t be sufficient. It could be however, that a community alarm or a day activity for the adult would provide better outcomes. In this example the carer may have no eligible unmet needs of her own if the appropriate support is provided to her husband.
However had she also said that even if his needs were met she could not afford theatre tickets and she would not like her friends to know that her finances are so poor, then it may well be determined that she met the criteria for a personal budget of her own to enable her to maintain the relationship with friends. That could be money, on top of the replacement care, with which to pursue a recreational activity.

The decision about what percentage of the cost of accessing a desired recreational activity to fund lies with the Local Authority – who will consider the issue of consumption vs support to access the theatre, ‘wants’ and preferences versus needs. However a rational way (and best value way) of looking at it would be to consider what the costs of providing care and support would be if the carer ceased to provide care at all, either from exhaustion or discouragement.

There are of course many variations on this scenario and they cannot all be explored here. I am just trying to make the point that there are many ways of meeting need. If a sitting service is the most appropriate way to support the adult while the carer has time to meet their own needs, then it is still a perfectly acceptable response, but that is not always going to be the case.

The issue of consent
An adult with eligible needs and mental capacity may of course refuse a service – although there is nothing in the Act which requires them explicitly to accept one. Refusal discharges the council from its duty to provide that service.  A person who lacks capacity could still be provided with services in their own right despite a refusal, under ‘best interests’ guidance. But if a person with capacity does refuse a replacement care service then some other way must be found to support the carer who would have benefited, as consent is a mandatory requirement before the service can be put in via the alternative route of a carer’s service – for instance if the adult is ineligible or refusing assessment.

This brings us on to:

“Carers’ personal budgets where the adult being cared for does not have eligible needs”

This section of the guidance [11.42-11.46] explains that there may be situations where a carer’s needs may be eligible without regard to whether the cared for adult has any eligible needs. It says that a local authority may meet those needs by providing a service directly to the adult and suggests that the carer might be given a direct payment to buy replacement care. It requires some thought to conceive of when this might be an appropriate response:

Eligibility guidance [6.124] says “the carer must also be providing ‘necessary’ care. If the carer is providing care and support for needs which the adult is capable of meeting themselves, the carer may not be providing necessary support. In such cases, local authorities should provide information and advice to the adult and carer about how the adult can use their own strengths or services available in the community to meet their needs.”

If the person is providing care that the person is capable of doing for themselves or related to a deficit that could be managed through mainstream services, the care probably won’t be regarded as ‘necessary’, so the carer won’t be eligible.

But given the definition of eligibility for the adult, ‘necessary’ care could be being given to an adult experiencing difficulty in ONLY one area of the service user regulations; or difficulty in two or more, but without consequential significant impact for the adult as yet, thus rendering them ineligible.

There are also carers providing support for several people, none of whom have eligible needs. However taken together the support they require places significant stress or limitations on the carer. These carers need to be supported but:

– Would this be by providing replacement care for a person assessed as having no needs for such care or would there be a better way of supporting them?
– And would a council be justified in charging them – or is this an instance where “it may not be” [Guidance 11.45] (since all charging is discretionary)?
– Would you ever put in such care without having a care and support plan for the adult, as the guidance suggests would be the case?
Just returning to the issue of consent at this point: if such a course of action were agreed, the adult would need explicitly to consent to having such a service, (which may well be chargeable), provided to them, as a service to support the carer.
I would welcome anyone else’s thoughts on any of these issues and do please share any examples where you have agreed such provision.

But hopefully this blog does explain where all the short breaks have gone…… ………..they’re supporting outcomes, every one.

The Red Herring RAS

When talking to social workers and community care assessors/workers, nowadays, the RAS is often part of their everyday language. RAS stands for ‘resource allocation system’ whereby an assessment document produces a monetary amount, depending on the answers about ‘needs’ which the assessor puts in. Most RAS tools are based on the local cost of service provision for different service user groups. This varies across the country, and therefore each RAS calculator is going to be different based on the costs of services in that area.

Some companies who design RASs believe their model to be extremely accurate at predicting an adequate sum of money, IF the correct costings for services are entered and IF the workers input the correct answers, having interpreted the questions within the assessment correctly. Quite a lot of ‘Ifs’, one might think, in this current culture.

The RAS is a hangover from the implementation of SDS (self-directed-support). This was brought in amongst lots of excitement, ‘blue sky thinking’, and talk of personalised services and person-centred support plans. My first blog post talks more about this era but for now we have what we have; many councils use a RAS on a day to day basis. The acronym has become a standardised piece of jargon that workers have to explain to often perplexed individuals who don’t have the knowledge or understanding of the original concept.

Many councils tell their workers that ANYTHING (even £1) contended for over and above a RAS-modelled sum needs to go to a panel for approval. Funding panels are another issue generating a lot of emotion in workers and managers alike, and are a topic for another posting. However, often workers want to try to keep a package within a RAS to negate the need to go to panel, what with all the additional paperwork and emotional energy generally required to evidence one’s case for additional funding.

The RAS is a delicate instrument and can so easily become completely unworkable. For example, if a finance manager within a council realises they need to make 20% savings from the social care budget, it would seem a simple solution to write a 20% deflater into a RAS calculator. The effect is to constrain practitioners to attempt to design or co-produce a plan within a budget that is logically far less likely to meet an assessed need. Inevitably this results in perplexed workers fiddling and adjusting the assessment to try and make the money fit the needs they know that the person in front of them has.

Companies who sell RAS products are often despairing at such tweaking behind the scenes, because it makes their product look bad; and service users are in the middle of a whirlwind of discussions and strife, whilst the workers cannot fathom why they cannot make a budget fit the need.

There are obvious risks with an approach that sees the RAS as more than merely one factor in the process. Under the Care Act, a service or a budget offered to meet an assessed eligible unmet need, MUST be sufficient to meet that need. It doesn’t matter whether a RAS tool tells you there is £50 a week available, if you, the professional, know and have assessed that person as needing a package that you know to cost £100. If it costs £100, then this is the service which the council MUST provide, in order to remain lawful. This principle remains the same as it was pre-Care Act; if a worker decides, maybe because of the desire not to go to panel, that they will only put in a package that meets some of the needs, even with the agreement of a service user who knows no different,or decides to describe some of the need as a want, they will be wittingly or unwittingly exposing themselves and the council to the risk of judicial review. These basic legal principles are so often lost within cultures where it is processes that lead and where workers use automated systems and databases as their guide, rather than an awareness of the law.

The Care Act Guidance gives some warning about an unthinking reliance on a RAS:

There are many variations of systems used to arrive at personal budget amounts, ranging from complex algorithmic-based resource allocation systems (RAS), to more ‘ready reckoner’ approaches. Complex RAS models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as deaf- blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS model is being used, local authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs.(11.23)”

There are then three requirements for funding within the Care Act Guidance:

  • Transparency – you must be able to explain to people how your RAS works. Eeks! This doesn’t mean the PhD level maths about the algorithm that’s driving the end result, but the basic factual and rational link between the needs, the points, the pounds, and the market rate for the proposed response for meeting the need!
  • Timeliness – the guidance talks about how important it is to give people their indicative budget UP FRONT so the person knows how much there might be to meet their needs (and their reasonable preferences). Eeks! This is awkward isn’t it? Lots of councils don’t tell people what their indicative budget is for a number of reasons: setting people’s expectations too high when they see a large monetary amount written down and then having to re-educate them into realising that the indicative budget isn’t the final budget, for one! For this reason, some councils have stopped the indicative budget figures being printed onto the assessment document. This creates a mystery around the indicative budget because people don’t know how much is in their ‘purse’ to begin with and therefore can’t possibly begin to shop for themselves! Another reason why some councils don’t provide the indicative budget amount is a general belief amongst workers that the RAS is NEVER accurate and therefore they don’t want to worry someone by telling them their indicative budget comes out at £50 for a package that will, and always has – cost £300. (Maybe that indication is because someone somewhere has had the brainwave of writing in an automated deflater?!)
  • The final requirement for funding is Sufficiency – the amount of budget that the council makes available for someone HAS to be enough to meet their needs. As explained earlier, this is a longstanding legal principle that is simply reinforced under the Care Act. So don’t plan solely with the RAS amount – you need to be confident that the final package is sufficient to meet the person’s needs.

 

Confused? Yes, it’s baffling. The RAS has unwittingly morphed into an entity with more power than it should ever really have had.

However, it needn’t be this way. The RAS can be a useful tool if councils trust their model enough to make service users aware of the indicative budget, which in turn will allow them to genuinely be involved in spending this in a way that promotes control by the individual over their life and their care (the 4th of the Section 1 areas of Wellbeing). It will also require workers to appreciate that the RAS is there, but it’s really just a red herring – a tool there to help them, as well as management. The risk is that using one can divert attention away from the requirement to provide a care package which is sufficient to meet the assessed eligible unmet needs of service users. One way of understanding how to view the RAS is to remember, when care-planning, that the staff are professionals exercising skilled judgement and that without their authentic opinions and reasoning as to why £x is enough, to meet a particular need, councils would have no evidence basis for backing up the view that the statutory function has been lawfully discharged in the first place, if challenged via the legal process. They can and should use a decent RAS as a guide, but not a determinant of the cost of a package of care.

 

With understanding of the question of sufficiency, balanced with respect for reasonable preferences for people, balanced with a notion of achieving Best Value which is not solely financially driven, we can, as staff, navigate our way through the requirements of the Care Act, whilst freeing ourselves up from being driven purely by process. When we assess people and work with them to meet needs, we can regain control of our practice if we can see the opportunities that the Care Act gives us. They are there for the taking; we just need to be brave enough to pick them up, work towards understanding them, and be mindful of the red herrings that can divert our attention along the way.