Category Archives: Care planning and budgets

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.

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

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

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

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

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

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

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

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

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

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

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

Comment

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

Would you believe it?

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

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

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

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

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

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

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

Original post

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

 

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

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

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

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

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

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

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

(1) to ask itself the right questions,

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

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

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

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

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

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

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

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

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

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

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

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

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

Commentary

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

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

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

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

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

Authorising Deprivations of Liberty: Can we safely ignore “private” situations?

As those working in social care will know, care providers and councils are already overwhelmed and struggling to ensure lawful authorisation of all care situations involving Deprivations of Liberty following the broadening of the definition of ‘Deprivation of Liberty’ by the decision of the Supreme Court in Cheshire West. The current situation is so bad that four councils are seeking a judicial review of Government funding  for DoLS.

The Cheshire West decision was important and revolutionary for disability equality, establishing that disabled people are entitled to the same rights as everyone else and should not have their liberty infringed without careful, independent review and legal recourse, no matter how ‘normal’ and pleasant the circumstances of their care. Legally speaking (Storck 43 EHRR 96) there are 3 components which are required for a situation to require formal legal authorisation in order to comply with Article 5 ECHR. These are: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.

In situations involving those who lack capacity to consent, requirement (b) is satisfied. Cheshire West widened the scope of situations which now meet (a). And now, in a recent case, the scope of (c) has been called into question.

In Staffordshire County Council v SRK & Anor [2016], Mr. Justice Charles considered whether, when someone’s liberty is removed in the course of a privately funded care package in the client’s own home (in circumstances which met the criteria for (a) and (b)) the Deprivation of Liberty is imputable to the state. The full judgement is extremely complex and examines the issue in depth. For practitioners and councils, the important information is that he concluded that, under certain circumstances such “private” situations are imputable to the state. This means that providers should be informing councils of the situation and either or both of the provider or the council should be applying to the Court of Protection for a welfare order.

In this case it was held that the involvement of the courts in awarding Personal Injury damages and the Court of Protection itself in appointing a deputy to administer those damages was a sufficiently active form of state involvement to create a responsibility on the state (through its positive duty to seek to uphold the Right to Liberty) to require the state to seek legal authority for the detention.

He clearly indicated that this judgement would apply to all future cases in this class and that future personal injury damages awards should take account of the additional costs involved in seeking Welfare Orders in similar cases.

In coming to this conclusion, he pointed out that “in a number of such cases P may well may not have the support of family or friends who take an active role and interest in P’s care and life.” (paras 71 & 72) and, therefore, it falls to the state to ensure that the rights of the individual are protected.

This case widens still further the circumstances under which a deprivation of liberty is imputable to the state and, thus, outside of a Care Home or Hospital, requires authorisation by the Court of Protection. Estimates contained in the judgement suggest that the result will be at least an additional 250-300 cases requiring welfare orders.

However, this is unlikely to be an end to knock-on consequences of the application of the Cheshire West decision in practice.

In pre-Cheshire West case law, Re A and Re C [2010] EWHC 978 (Fam) 64, it had been established that care circumstances created by a family within their own home were not imputable to the state. However, it is difficult to see how this case does not raise the possibility or even probability that the ultimate result in an equivalent case might now be different. The continuing application of Cheshire West in practice seems destined to reduce to the level of mere awareness the role of the state which is sufficient to render objective circumstances which deprive someone of their liberty imputable to the state and thus a potential breach of Article 5 which can only be remedied by means of formal legal authorisation (the only option for which is currently by means of a welfare order from the Court of Protection for situations which fall outside of the DoLS framework).

According to one strand of Charles J’s reasoning in this judgement, mere knowledge through safeguarding and/or regulatory processes is not sufficient to render an objective deprivation of liberty imputable to the state and thus an Article 5 Deprivation of Liberty. However, if we follow the other strand of reasoning, that of the Bournewood gap, it is difficult to see how arbitrary detention can be protected against in cases where mere awareness is the limit of state involvement, and thus there is at least the potential for a future ruling that, as a result of the widened definition of deprivation of liberty created by Cheshire West, the positive obligation under Article 5 requires the state to provide a domestic regime of law, supervision and regulation to authorise even entirely private deprivation of liberty situations such as that in Re A & Re C [2010].

Councils and care providers would, therefore, be well advised to err on the side of caution and avoid assuming that they do not have to take steps to seek legal authorisation of a deprivation of liberty in even the most apparently “private” of circumstances once they are aware of their existence. Under the current circumstances of a massively overstretched system, this will not be immediately welcome news. However, the fundamental principle that all detention of those who lack the capacity to consent should be subject to independent scrutiny and review is very much to be welcomed. It can only be hoped that additional cases will add further to the pressure to resolve the current legislative and funding provisions to catch up to the modernisation of the law in this area by the courts.

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.

 

Extraordinary positions being taken about supporting parenting – by children’s and adult services directorates within the same council, who should be co-operating under the Care Act!

A query received recently from someone who understands the power of legal literacy is worthy of wider circulation, to my mind.

A council’s senior manager has said that Adult Services won’t help a person with a disability with parenting, because that’s a service for the child, and should be paid for by the Children’s departmental budget.

Oh dear. That manager clearly hasn’t had Care Act training, or nodded off during the bit on the eligibility regulations. Ability to achieve, in relation to the outcome (or domain) of:

(j) carrying out any caring responsibilities the adult has for a child (- ie parenting or even less informal responsibilities, given that it doesn’t actually SAY parenting) is now, explicitly, one of the 10 regulations-based criteria for eligibility for adults’ services.

If one is eligible by reason of not achieving in two or more of those domains, and consequential significant impact is acknowledged then there is no option: the council must fund the need.

HOW it funds the need – through children’s or adults’ budgets – is down to internal decision-making, because the duty is a corporate one – but the Care Act requires co-operation between internal budget holders and concrete silos around budgets are the antithesis of co-operation.

In terms of deciding internally which budget SHOULD take the hit, I don’t think that the manager in questions ‘gets’ the legal concept that given it’s been put explicitly into the eligibility regulations for adult social care under the Care Act – and given that the Care Act is ONLY about adult social care (please note, other than in exceptional circumstances) – it virtually MUST be for adult services to pay to meet the need. Saying it should come out of the children’s budget is a bit like saying ‘managing toileting’ and managing nutrition’ isn’t for adults services to pay for – it’s for the public health budget or the tourism catering budget!!

Yes, the Care Act is about funding care and support for over 18 year olds, but support with parenting IS  precisely that – care and support for over 18 year olds who are parents, and thus have parental responsibilities which their condition might make them less able to shoulder – even though the child is the ultimate beneficiary.

One way of making sense of this is to consider the policy idea behind this: I think that it is that the council will co-operate as a whole, and work together to minimise the need to use care proceedings in relation to children, since that will only cause more mayhem than is proportionately necessary, in the lives of children whose welfare is affected by parents with less than ideal parenting capacity.

Behind the scenes the council could agree any basis it likes for how to fund this sort of input, but in legal terms, from the perspective of the customer’s legal rights, the Adult Services Director has no option but to regard the directorate as under a Care Act duty, if inability to achieve in relation to that specific domain (plus one other) and consequential significant impact have been assessed.

Indeed, if only that one eligibility domain has been assessed as one where there’s inability to achieve, adult services professionals should be aware of the residual power that exists to meet needs even if they are not formally eligible.

All anyone needs to do here is to write and explain the stance being taken to the council’s Monitoring Officer (the head lawyer in charge of governance) and it would inevitably be sorted out immediately because the stance being taken that the children’s department should pay, would involve their exercising a power, by dint of adults’ services failing to discharge a duty, and so it’s not even arguably defensible.

There ARE powers to help children in the Children Act, if, for instance, the child is a child in need, under s17.  That provision enables services to be provided to the parent, for the benefit of the child, but this provision is a power only. The use of this power is usually reserved for financing support for children with disabilities, and even that usage is unfamiliar to some children’s teams, who think of a child in need as being a child ‘at risk’, and thus don’t even want to consider using s17, separately, to spend money – through ingrained fear of triggering aggravation about child protection, when in fact there are just much more obvious needs on the part of the child, that could be met and which should be being funded. A child with a disabled PARENT could be treated as a child in need, OR a child ‘at risk’, if there was evidence of risk, but avoiding that situation is why supporting the parent has been put into the Care Act, instead.

Finally, in s62 of the Care Act, there is a residual power to provide services to the carer of a child who is still a child, in the context of a transition assessment having been done – but only after considering usage of s17 of the Children Act in any event – which is a hint that the child who is in need should look to children’s services first.

 

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

What’s SCIE going to do with this complaint?

Equal Lives and Norfolk’s implementation of the Care Act

Equal Lives’ Users’ complaints about Norfolk’s alleged illegality under the Care Act can be found on the group’s website. I’ve had a look at them (for free!) to see whether there’s evidence of flagrant breaches of the Care Act and the public law principles that underpin all local government functions. You can do so here: https://equallives.org.uk/?attachment_id=13293

When SCIE starts its LGA funded review it will need to probe the relatively brief details that were put together by the Group, in fairness to Norfolk, but also ask some more questions of the people who came forwards.

Problem no. 1 for SCIE is that to do this probe in a proper way, one needs to know some public law principles, because with law, and especially with public law and open texture of much of the Care Act, there’s a lot of scope for disagreement, without a lack of an agreed care plan or budget, automatically meaning there’s been illegality. An investigator can’t hope to ask the right questions of staff, management or complainants, unless s/he knows the legal principles, it seems to me.

With statutory duties and discretions, the most likely risks of being challenged for acting unlawfully will arise from a council’s

  • Not doing its duties at all, or taking unfeasibly long about it – eg
    • Not providing formal funded independent advocacy where it is acknowledged to be necessary and an entitlement, within the regulations;
    • Not providing written reasons, when the law or the regulations say that these must be given (ie as in s13 for any decision about eligibility);
    • Stretching the assessment phase out, by offering ‘prevention’ again and again, without coming off the fence about the eligibility question;
    • Never finalising a care plan, for want of agreement about the size or content of a proposed care plan – just offering ‘reconsideration’, again and again, and never actually saying ‘This is our decision – we think we’ve done our job now’.
  • Not exercising powers, or not making decisions about duties that turn on professional judgement, sensibly, or ignoring the statutorily underpinned guidance, without a very good reason!
    • Failing to consider the power in s19 to meet need even if the person is not eligible – the Guidance refers to why doing so might be best value or good for prevention or simply to promote well-being;
    • Running a lawful waiting list for a scarce resource – but based on alphabetical order, instead of need;
    • Not giving reasons for why an offered package or budget is considered to be enough…when the guidance clearly says that reasons should be stated, and the pre-existing case law such as Savva and KM makes it unarguably unlawful not to;
    • Leaving an eligible person without services, whilst their package is argued about, contrary to the Guidance!
  • Not discharging council duties within the words used in the Act or Regulations – or ignoring the statutory purpose – eg
    • Failing to allow a person to require the involvement of a nominated person, such as their existing advocate, in a social services decision, where this is required by the person – see s9;
    • Imposing a condition on a direct payment recipient, as allowed, but where the content of the condition actually negates the whole point of the offer – choice and control.
  • Fettering the discretion of the council or its staff, or not doing decision-making fairly, so far as the implicit rules of procedural fairness are concerned…
    • Failing to consider giving a person direct payments to spend on care services from a close relative in the same household, by having a rule internally that says ‘We never do that…’;
    • Not allowing a person to make representations or provide evidence, about what they say is wrong with the suggestion that a service available for free, locally, could and should be seen, as able, appropriately, to meet a person’s needs.

With a new piece of legislation, in an era of unprecedented central government cuts, the real risk to a council comes from its senior and middle management and front line staff not understanding what’s changing, or where to check that out – through lack of training or motivation – because if staff don’t know what they don’t know, or when they are on a legal wobble…they will openly say to members of the public things like ‘We have to bring the package in on budget, we’ve been told that there’s no question of raising it’ – which in itself is enough to get a council judicially reviewed. Or ‘You have to rely on your neighbour/friend/relative – regardless of what you think of that or of each other – because there is no more money since the cuts’. Ditto.

The Equal Lives users’ complaints

All of the complaints have cuts in common – and not just small cuts, but massive ones – the sort that a judge MIGHT regard as so surprising, that the threshold for at least permission for judicial review would be met. Whether or not the cuts would be justifiable, however, would be a matter for the judge, depending on the council’s recording, or evidence. If the evidence that what’s been allocated is not enough, objectively, in credible professional terms, to meet the assessed eligible unmet needs, then that’s unlawful.

Taken at face value, from the website, all of the complaint examples have an absence of defensible reasons in common – either in writing, or even, in some cases, even verbally, and this is very likely to be unlawful, given the Care Act requires reasons or even written reasons for findings of non-eligibility, and for refusing or removing direct payments  – and the Guidance requires transparency about sufficiency and for reasons to be ‘stated’ if a person is not agreeing with their care plan or budget being enough.

Some of the complaints mention exchanges with staff who have either seemingly not been trained to deliver unpalatable messages in language that properly reflects the legal truth of the governing framework – ie explaining that the council is the decision-maker and can take its resources into account in relation to care planning, (subject always to not going over the judicial review line of unreasonableness, illegality or unfairness, that is) but must strive to promote well-being, be person-centred, and respect the private and family life of the client and carer. Instead, the staff appear to have been saying that ‘It’s the cuts and that there’s nothing that can be done about it’, which suggests, sadly, that either this is the truth, as they have been told by management, which would not be lawful – because a duty is a duty, regardless of available resources (if one can only be legally literate in the first place, about what that duty IS precisely!) and reserves have to be spent if a duty has been triggered – or that they’ve not been taught that however unpleasant the news is that cuts can be lawful, even if a person’s needs haven’t changed, there is a way of explaining what is going on that IS lawful, and which IS defensible. Much as I admire their honesty, it doesn’t bode well for morale if they do not know, or believe any longer, that the rule of law runs as far as Norfolk!

When cutting a care plan’s content, or the amount for a direct payment, to meet eligible needs, councils are not able lawfully to ignore a deterioration in condition or an increase in dependency. They don’t have to believe or adopt everything they’re told, by doctors or other people, but they must have an evidence-based reason for not doing so – not just the impact on the budget!

They ARE able to make cuts, but only by explaining either how the needs have been managed away for good, or how the impact has lessened so that it is not significant any longer, OR how a new way of meeting needs, even if it isn’t wanted, isn’t just being imposed to save money, regardless of what the person says, but only because despite what the person thinks of it, it is still conscientiously regarded by staff as adequate and appropriate.

One gets the strong impression from the complaint document that the staff concerned with the clients in question would not agree that they think that what’s being offered would amount to an appropriate response, in terms of social work values and consensus. That is, that they have been told what they have to say and do, because of the cuts that the Elected Members have passed on to the directorates tasked with discharging the council’s functions.

That is bad news for Norfolk, because once a management team’s views, and the real view of their staff, part company, the council itself lacks the all-important thing for defending itself in court, which is a rational, reputable evidence basis, for its decisions. The pre-Act case law says that if a council’s allocation panel wants to stick to a disputed budget, it must be the panel that grapples with the reasoning, and prepares to be cross-examined or scrutinised, because they could well be overriding the competent, trained and experienced professional who’s actually seen the client, the carer and the situation….and made their recommendation based on relevant considerations. Whilst having less money than a council had previously, is legally relevant to HOW to meet the need, the people allocating the money still have to be able to explain how it will meet need, not just that it ‘has’ to! The case law says it is the panel’s reasons that have to be given to the client, even if it’s the social worker who has to pass them on!

The Care Act guidance is referred to a good deal, in the complaint about what Norfolk has been doing ‘wrong’, and of course it must be recognised that the Guidance is not law. It makes a clear distinction between what must be done and what should be done, and what might be done by a council, reflecting the legal framework about the difference between duties and powers, and between ‘target’ duties to the public or to individuals, and legally enforceable duties owed to individuals. What most people don’t get, because they are not legally literate, is that all government guidance has to be written with an awareness of public law principles in mind, by people who know the relevant case law and what it has already established. So it’s a sort of manual for managing legal risk, passing on principles, but without flagging up that judicial review is there for people who need to challenge what’s been decided or offered.

So SCIE will have to say that where it appears that the Guidance has not been followed, it will give a chance to the staff and management in question to explain what their reasons were for departing from it. Whether the records will contain any defensible reasons that were actually in the minds of the staff at the time, remains to be seen.  I am intrigued, though, personally, to learn whether SCIE – the Social Care Institute of Excellence, after all, will publicise the legal principle that DH Guidance does not actually have to be followed if the council has a very good reason, and whether SCIE’s audit team think that lack of money from central government was a good reason for the particular departures that have been instanced by the complainants.

One of the complaints is about a person whose budget is removed on the footing that her partner and child can do the care. In the particular example, the parent is opposed to relying on her family members for care; it is unclear from the complaint whether they were willing, but it IS clear that the mother is capacitated to be refusing consent to their doing the personal care that she needs.

Of course it is correct that a willing and able carer can obviate the need for expenditure on meeting needs, but the stance that a child of 13 should be regarded as the means to meet needs without a Children Act assessment about being a child in need, as a young carer, and in the face of dissent from the person needing the care, is clearly sufficient to get a person through the permission stage into the judicial review court, in my view.

One case involves a client who has already been to the Ombudsman, which is interesting; her complaint was upheld, but Norfolk has not changed its position. The appropriateness or legitimacy of the findings of the Ombudsman are only able to be challenged if the council itself bothers to bring proceedings against the Ombudsman; simply doing nothing reflects a worrying trend taking shape in the sector (Tameside has just done the same thing), which is certainly unedifying, to say the least.

Whatever the position on illegality, several of Equal Lives’ examples needed to go to the Ombudsman as complaints of maladministration. The Ombudsman rarely forces people to use the legal route, even if their complaint reeks of illegality or irrationality or unfairness, because of the expense, the perceived risk of damage to the relationship with the council, and the state of health of the individuals concerned. One cannot go to the Ombudsman however, unless one has already complained, and it is not clear from the Equal Lives documentation whether this was ever done in the cases of the people whose stories on which the Complaint is based. It is correct, however, that the unusual referral route that the group took instead, to the CQC, for a special review, is well suited to User Led Peer or Support groups, and this remedy does NOT require one to complain first. Neither does use of the Monitoring Officer, the free and dedicated legal governance route that I have been highlighting on this site, as a better use of anyone’s resources – in any matter based on a coherent allegation of public law unlawfulness, rather than a mere complaint.

One of the most telling features of the Complaint is the effect on the mood, perceptions and well-being of the complainants, that the struggle with the Council has had. Take this one excerpt, for instance:

“So we spent the next few weeks and months going back and forth with amendments, arguments and counter-arguments. There has been absolutely no ‘personal’ aspect to this budget. It has taken far too long to process, communication from the team at the Council has been notable by its absence – the onus being on us to chase them up – and I feel like I’ve been left to fend for myself. I’ve still not had the budget signed off. I was absolutely devastated when Social Services told me what I eventually could have, with my Personal Budget – basically only a PA and a contingency. I told her that my college course was my only opportunity to socialise – she didn’t even realise that it had been okay-ed previously….  Cutting the remedial massage element (I was directed to my GP to find out possible NHS funding – a complete waste of both of our times) has been the worst thing they could have done. Before, I felt my health was manageable, my mood was better, I felt better able to cope with my chronic pain. But now I have gone downhill pain-wise, which in turn has greatly exacerbated my depression.  Working in tandem, my college course, massage, activities and short breaks made me feel more in control of my life and health. Now they have cut short breaks, we don’t have the ability to do anything that can get us out of these four walls. Cutting my travel allowance has made me struggle to socialise and relax. This has affected my health and well-being, my partner (who is also my carer) and our relationship. My days are spent in my home because my health has deteriorated. I don’t see anyone, I have nothing to look forward to, I feel isolated and like a non-person who has been left to make do.  I feel we have been misled and lied to from the very beginning by the very people who are meant to be there to help people like me, and I actually felt like stopping the whole process because of the inordinate stress it has caused… Why weren’t we given the courtesy of honesty from the very beginning? If the money wasn’t available, tell us – don’t string us along with empty talk of ‘well-being’, it’s insulting.’

I don’t know what SCIE will make of all this, but it must be of concern to the whole of ADASS and the LGA, I believe, if this sort of experience and impact is as widespread as my own, as a writer, trainer and campaigner, suggests.

You can alwasys tweet to SCIE and Equal Lives, using @equallives_org and @SCIE_socialcare and @1adass if you feel the need.

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.