Category Archives: Care planning and budgets

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.

Southampton’s consultation on capping budgets to £500 a week = personalisation is fine, but not if you’ve got needs at night!

Southampton is consulting the public about a policy to limit care packages in a client’s home to £500 a week, on the basis that a bed in a care home will be the same cost or cheaper. It will ‘assist’ those unable or unwilling to pay for their own care needs at home, above and beyond that limit, to move into a care home. It will also make exceptions having taken full account of the duty to place the person, their wishes, feelings and needs, at the centre of the process.

Clearly this policy proposal raises questions of legality, human rights, care planning discretion, the relevance of resources, and the interpretation of the duty to meet needs. I am going to explore what councils can and cannot do, if the old case law and approach to such questions is anything to go by, under the Care Act.

[nb on January 13th Southampton dropped this idea, apparently, but others will no doubt be thinking about it too: see here for the news: http://www.communitycare.co.uk/2016/01/13/council-drops-controversial-plans-limit-personal-budgets/

 

What’s legal under the Care Act?

It is legal for councils to take their resources into account in relation to HOW they meet needs, not whether they meet needs. Councils are also – despite the rhetoric about personalisation and user-led assessment – the final decision-makers about what is an appropriate way to meet needs in a person’s particular case. But in both cases, this discretion is subject to judicial review (legal proceedings challenging the validity of the decision) for unreasonableness, illegality, breach of the person’s article 3 or 8 human rights, or for what’s called fettering of discretion, if what is described as a general policy, is actually going to be implemented as a concrete rule.

The Guardian’s report about Southampton’s policy proposal doesn’t say how the 212 people who will be directly affected by the proposals, have been identified. If the trawl has been done by reference merely to the cost of their current care packages, and without regard to the professional viewpoint as to whether it would even be thought therapeutically appropriate to meet the person’s needs in a care home, in terms of a reasonable social care professional’s judgement, then the consultation is inevitably legally flawed.

The fact that the article says that the new guidance would also apply to all those who become eligible for a personal budget in the future might be taken to mean that this is going to be a blanket policy, regardless of the particular person’s particular needs – so that would be outside the Care Act legal framework. However, Southampton is clearly committed to doing proper needs assessment. It’s the relationship of the proposal to the staff’s approach to the care planning process that is unclear to me. Is it needs led, or is it budget led? The Act and the preceding law have always been clear: it must be NEEDS led, and the needs of the individual in question, not some hypothetical average person. More on that later.

The all-important care planning decision is the one by the staff member as to whether the person’s needs can even be appropriately met in a care home setting – ie therapeutically beneficially, and not in such a way as will de-skill them. That is the whole basis for not putting young people with learning disabilities, terminally ill young parents with children, and elderly persons who can still just recognise their home surroundings, and cope, into care homes, after all.

No doubt with a view to fending off the appearance of fettering, the council is reported as saying that funding would be limited to the personal budget, unless there are exceptional circumstances – but the article doesn’t say what those exceptional circumstances would be… and this may sound cynical, but the person’s having the gumption and the means to bring judicial review proceedings ought not to be the test of a council’s willingness to make exceptions, I would say!!

We should all be clear before challenging a care planning decisions: there is nothing legally wrong, if there are two alternative ADEQUATE settings, for meeting the particular needs of a person, in a council’s offering to fund the cheaper of the two. That is set out in paragraph 10.27 of the guidance, along with the prohibition on ‘arbitrary’ ceilings on care costs in particular settings. That’s always been the law since the Lancashire case, and the Care Act doesn’t change that principle.

Secondly, a person does not have a human right to live in their own home or in a non-care home environment, if living there with one’s needs being appropriately met would involve relying on the State to fund that care. Article 8 of the ECHR guarantees respect for private and family life and the home, but not a guarantee that one will always be able to be cared for, there, for ever, courtesy of the State; article 8 explicitly includes a reference to the economic wellbeing of the area as a qualification of the whole human right. A person has every right to refuse to accept what is offered, or to challenge the decision that the care home setting would be therapeutically appropriate, via a line manager’s review or judicial review proceedings, but in so doing, even if the judge agrees that the council has acted unlawfully – the person does not get to tell the State what he or she wants, instead. The council decides. That is why the Court of Protection can’t tell a council what to do – it can only refuse to declare that what is offered is in an incapacitous person’s best interests. This is all funded by public money, and until we vote to pay more taxes, this legal principle isn’t going to be changing, any time soon.

Lastly, there is nothing wrong in letting people VOLUNTEER to meet the first chunk of their own currently unmet needs, by offering informal help through friends, relatives, neighbours, or through the use of their own resources – councils are only obliged to meet UNMET need, just as under the old law. To make that offer, that choice, the eligible person needs sufficient mental capacity, to understand that he or she does not NEED to pay; it is a choice, and one’s needs will be met in any event, but just not necessarily in the setting of one’s choosing. And to be really clear on the choice, one needs to know what the consequences of refusing to take up the offered place in the care home would be: what WOULD the council provide instead – and is the offer, in that contingency, still generous enough to be lawful? The only case that has explored this is the KK case, in which the judge said that the council must be open about what it regards as a practicable offer – a euphemism, to my mind, for an offer that is lawful, albeit still cost effective. I don’t think it is lawful for a council to offer an actual delivered care package that is less than the known needs would require in order that they be met. So if the council chooses to say to a refuser ‘alright then you can stay at home’, I think it still needs to meet the needs; it can’t leave them unmet just because they cost more at night to meet than during the day – so it can’t cap the costs to a particular amount for that own home setting – if it chooses to make another offer….. It doesn’t have to make another offer; it could walk away from a capacitated person’s refusal of the offered care home place. But nobody knows of a council that would go that far…

What is not lawful under the Care Act?

A number of legal points arise from the thrust of the consultation and the proposals:

a)  Southampton would no doubt say that £500 a week is not an ‘arbitrary’ cap – it is the cost of the cheaper setting, they would assert – but there is no evidence as to how its usual rates with care homes have been established. Southampton has been found guilty of maladministration by the LGO in its approach to rate ‘setting’ in a top ups complaint from a couple of years ago, so the idea that £500 a week IS the cost of an appropriate setting for the full extent and range of needs being met in people’s own homes at a slightly higher cost is not evidenced. Dementia care, for instance, classically costs more than care of other presenting needs. The sector is rife with stories of toxic top ups whereby councils assert that the rate is £x when there is no actual home suitable to meet the needs with a vacancy at that rate on the day the duty is triggered: in that situation, the need to pay more to get the person cared for appropriately is not an aspect of choice at all; it’s an aspect of mandatory statutory duty on the part of the council, not a top-up for extra luxury or desirability of the care home place.

b)  There is no standard rate for people with learning disabilities because THEY have had the benefit of individuated care planning, (even if based on a core cost plus extra one to one hours), for a very long time. Nobody considers offering a flat rate 24 hour care package for people with learning disabilities, precisely because they present more risk to providers and to communities, through being mobile,  stronger, and not bed-bound, and lacking insight into the risk they pose to themselves and others, if unsupervised and unstimulated. In theory, the policy should apply to all a council’s clients, to be lawful and not discriminatory on the grounds of age, etc. – but whether this policy therefore could ever be applied to a person with learning disabilities being cared for at home, is another matter altogether.

c)  Whilst it is fine for people to meet their own needs, from choice, they have to have mental capacity to make that choice, as well as resources, human or financial. The real problem with this policy is what will happen to the people who don’t feel that a move to residential care IS appropriate but don’t have the means to challenge that prior essential careplanning decision, and don’t have the means to ‘top up’ through relatives or their own money, or lack capacity.

IN THAT CASE, A CAP OF £500 A WEEK WOULD AMOUNT TO A BLANKET DECISION THAT “PERSONALISATION IS A GREAT IDEA, BUT JUST NOT AT NIGHT, WHEN IT COSTS MORE” – ie a decision knowingly to leave assessed eligible needs unmet – which is clearly judicially reviewable on all sorts of grounds. Southampton appears to be saying that people without the means ‘will be assisted to move’, but without saying what Southampton will do if very needy (or stroppy) people just say “Hell No, I Won’t Go!”

 

Please feel free to question Southampton on the basis of this kind of query as to how this policy can possibly be regarded as lawful, without more detail about the evidence basis for the £500 fee rate, the relationship between the policy and care planning discretion, the requirement to do needs led care planning, not budget led care planning, and the grounds on which exceptions will be made!

Who are people with a learning disability and/or autism?

Who are “people with a learning disability and/or autism”?

The National Implementation Plan for Transforming Care, published recently, raises more questions than it answers about how the good intentions about closing hospital beds and improving community provision are going to be brought about in the real world. The jazzy PCP diagrams, co-produced “National Service Model” and graphs projecting falling inpatient numbers are aspirational, yes. But are they really going to produce change?

It seems to me that the key is whether community provision can be sufficiently improved to prevent admissions in the first place (as well as providing a viable discharge plan for those already there). So what’s the plan?

Mostly it seems to be founded on the solid ground of Positive Behaviour Support.

So long as this is truly rights-based and well implemented so far, so good.

But there, unfortunately, the good news comes to an abrupt end. Because all this good work is aimed at meeting the needs of “people with a learning disability and/or autism”. This term is used, without variation, throughout the report.

The report argues that “people with a learning disability and/or autism” are a “highly heterogeneous group” and that “Some will have a mental health problem which may result in them displaying behaviour that challenges. Some, often with severe learning disabilities, will display self-injurious or aggressive behaviour unrelated to any mental health condition. Some will display behaviour which can lead to contact with the criminal justice system.”

But never, not once, are autistic individuals referred to separately and distinctly. At no point is it considered which, if any, of the described issues or behaviours might be directly or indirectly related to autism itself and the relevance of that to effective behavioural prevention/management. At no point are autism and intellectual disability disentangled or dealt with separately.

Of course they can and do co-occur. But the behavioural issues which underlie the presence of these individuals in overly restrictive settings do not occur independently of whether or not an individual is autistic. Behaviour is communication. And autistic people communicate very differently.

It seems to me that no amount of person-centredness or positive approaches to behaviour are likely to make sustainable difference on the ground unless they are accompanied by vastly improved autism knowledge and understanding amongst those supporting those autistic individuals who make up a very substantial percentage of this group.

What percentage I hear you ask? I can’t tell you, because the statistics only count … yes, you guessed it … “people with a learning disability and/or autism”

The Red Herring RAS

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

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

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

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

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

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

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

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

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

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

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

 

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

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

 

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

An in-depth analysis of the first case under the Care Act…

R (SG) v London Borough of Haringey (decided in early August, as publicised by Community Care) (SO sorry for first saying it was Hackney! Am losing capacity from Care Act craziness….)

This case decided at least three important things:

  • Absence of Independent funded Advocacy where the right has been triggered, or could not reasonably be denied to have been triggered, renders an assessment invalid (see earlier post);
  • There is a legal need – at the care PLANNING stage under the Care Act – to consider (correctly, in terms of legal precedent) whether eligible needs are ‘accommodation-related’, in the case of someone who may be prohibited from such assistance by reason of immigration status;
  • The old law on what constitutes ‘accommodation-related’ eligible needs, should be regarded as still correct, and should be followed on the same principles as before.

Introduction

The claimant was an asylum seeker, both before and after the coming into force of the Care Act. By the time of the hearing, she had been granted asylum, but she challenged two decisions, one made in January 2015 and one made in May, ie one under the National Assistance Act and one made under the Care Act, that she had needs for care and attention (which counted as eligible needs under the Care Act) but was not entitled to accommodation through these social care functions.

An earlier post considers the significance of the advocacy part of the judgement but this posting analyses the harder part – the issue related to whether the woman needed to be provided with accommodation or just other non-accommodation services IN her NASS provided accommodation, whilst still an asylum seeker.

The judge declined to make a decision about the pre-Care Act January decision because as soon as a person has had a Care Act review, then they are to be provided for (if both eligible and owed a duty) under the latter Act, making looking back into the past generally a redundant exercise.

The post-Care Act May decision was firstly made on the basis that the claimant was not entitled to receive accommodation under the Care Act, because she had accommodation available to her (the NASS provided accommodation). The old law had always been that one had to ignore the accommodation provided by NASS when deciding whether care and attention was otherwise available under the NAA.

This judge held that that is STILL the law, under the Care Act. The council had conceded that point, however, at the hearing.

Haringey asserted that since this was a service provision dispute only the pre-action protocol at paragraph 3.1 suggested that there was  an adequate remedy for this under the Council’s complaints procedure. The judge said that ‘in my view, it is not adequate to deal with contested interpretation of legislation’, which has always been the preferred analysis by public lawyers.

The contested issue

The claimant had a wide range of signficant inabilities under the eligibility criteria, and she had Care Programme Approach needs as well. Although they described her as not eligible, the council seemingly accepted a clear duty to provide services, both before and after the May decision, but not by way of accommodation through its new Care Act powers.

The meaning of NAA ‘care and attention’ (and what needed to be considered for people potentially prohibited from receiving services by reason of their immigration status unless not solely needy through destitution)

The old case law under the National Assistance Act was to the effect that the need for care and attention had to be at least accommodation-related – not just a need for a fridge, or other physical assistance, for instance. It did not mean that the care and attention could ONLY be the kind that could be provided by a specialist setting such as a care home. But the old case law established that a need for ‘care and attention’ simply had to mean something more than ‘accommodation’ – section 21(1)(a) was not ever intended as a general power to provide housing.  The natural and ordinary meaning of the words ‘care and attention’ in this context was ‘looking after’, meaning doing something for the person being cared for which he could not or should not be expected to do for himself: it might be household tasks which an old person could no longer perform; it might be protection from risks which a mentally disabled person could not perceive; it might be personal care, such as feeding, washing or toileting…The input had at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or would be effectively useless if the claimant had no home.

Having summarised the old law, the judge said these principles continued to apply under the Care Act, in his opinion:

(a) the services provided by the council must be accommodation-related for accommodation to be potentially a duty;

(b) in most cases the matter is best left to the good judgment and common sense of the local authority;

(c) “accommodation-related care and attention” means care and attention of a sort which is normally provided in the home or will be “effectively useless” if the claimant has no home.

The public law mistake

The real failure on the part of Haringey was that it failed to ask itself the right questions. The judge found no evidence at all that the defendant ever asked itself whether, even if the necessary services could have been provided in a non-home environment, they would have been rendered effectively useless if the claimant were homeless and sleeping on the street. “This is so despite the fact that it was acknowledged that it was “agreed that [the claimant] would benefit from some structured activities to minimise her PTSD symptoms but before that she needs help with the very basic practical support before she can be referred for more structured activities.” I thus think that the care plan has to be redone.”

So, this is the first care plan struck down for failing to consider all relevant considerations or for error of law, as well as having been derived from an invalid assessment for want of mandatory advocacy….

The judge quashed the council’s decision such that it would have to re-assess and re-care plan. But he gave his view that only two of the various services being given to the woman were accommodation-related. All the other council provided services were to do with learning support, counselling, advice, escorting, language support, and management of appointments. However, she was already being

  • visited at home by an officer and her home environment was checked;

(b) assisted with domestic and practical tasks in the home by other women who lived there and by the officer;

Interestingly, notwithstanding those two aspects, the judge thought it could still be lawfully within the discretion of the local authority to decide that it was not appropriate to meet needs through the provision of accommodation.

He did not tell the council how to go about articulating that sort of conclusion, though!

The result

The judge ordered Haringey to accommodate the woman in suitable accommodation at least until a number of days after a decision would be re-taken by the Haringey Vulnerable Adults team, in respect of the woman as a legitimate asylum grantee (the idea being that she would in all probability now be accommodated in supported living services because of her mental health needs).

This would be done under Housing functions under the 1985 or 1996 legislation, as a vulnerable adult, (if she had capacity to make an application for public housing), or through the power to provide accommodation, pending a concluded s9 assessment, under the Care Act.

Finally, the judge ordered Haringey to pay 75% of the claimant’s costs so the legal aid she had been funded through, was paid back, in large part.

Important Postscript

The case of R (MT) v Oxford City Council [2015] EWHC 795 has been decided this summer too, and establishes that an incapacitated person with a deputy CANNOT apply for public housing, and can ONLY rely on the social services function of provision of accommodation (ie via a placement, not a tenancy signed by the deputy).

We are not sure, but we think that this must be seen by housing policy makers, as a judgement which drives a coach and horses through joint working between housing and social services – eg in relation to very many severely cognitively impaired young people who have been decanted from NHS accommodation and who now HAVE deputies, or single orders from the Court of Protection with regard to the signing of tenancies in housing association accommodation, to which they were directed through housing legislation.

If a deputy can sign an ordinary tenancy outside of housing legislation nomination or introduction, and an incapacitated person can get housing benefit, based on the doctrine of necessaries, (Wychavon) it seems to me to be essential for maximisation of income and normalised lifestyles, and minimisation of expenditure through LOCAL authority funds, as opposed to Housing Benefit, that a deputy CAN make an application for public housing, as homeless or by way of joining the ordinary housing list. Yet the judge refused leave to appeal.

 

NB Belinda won’t be blogging at this length on every case under the Care Act, please note. These sorts of notes go into the free legal database on www.careandhealthlaw.com, but she was so ecstatic that there’d even been one, that she could not stop herself, just this once.

Top Up trials – will somebody actually use their legal remedies, please?

The news this week has been featuring sums paid for care home care being characterised by councils as top-ups in situations where there is probably no right to treat them as such, or where they have been properly regarded as lawful top-ups but the charging of them has been beset by maladministration.

The Local Government Ombudsman issued a report highlighting all sorts of shenanigans by unnamed authorities and it can only be a matter of time until PPI recovery sorts of services set themselves up to reclaim the dosh on behalf of all the relatives who shouldn’t have had to pay these sums! Click here for the 2015 LGO top ups report

However, the online comments back by care home providers and social services leaders have been to the effect that it’s the government’s fault for underfunding social care.

I would like to be more explicit, if I may – from the perspective of the service user’s and their relatives’ legal rights under the Care Act!

A council’s characterising an element of the charge for care home services, as a top up, so that the relative pays that sum, on top of the basic charge for the council commissioned package – or getting a service user to promise to repay something called a top up, in the context of a deferred payment agreement, when there is no legal right to do so, constitutes the following legal wrongdoing:

  • If done innocently, because of top down ignorance of the legal framework on the part of the council’s staff – then that’s maladminstration, based on lack of awareness something that is essential to the proper discharge of the care home placement function. The remedy for the injustice sustained by that maladministration is via the local government ombudsman – where it appears a lot of people have been going recently, to get their money back.
  • If done with an awareness that the so-called going rate for care of the relevant degree and nature, in the local area, is not in fact even feasibly sufficient to pay for the care, then – potentially – misfeasance in public office – a wrong that should only have to be alleged very rarely indeed, against council officers, if the council’s senior management is competently supervising its staff. The remedy is a claim for damages against the officers and even sometimes the elected Members if they were made aware of the facts, in person, for which damages, no-one can be indemnified by their council, so exceptional and shocking is the wrongdoing regarded as being.

The best way of telling the Members, as a whole, what is going on, is to write a one paragraph letter with your evidence, to the council’s health and wellbeing Board and the council’s Monitoring Officer, usually the head lawyer, who owes independent governance duties under the 1989 Local Government and Housing Act.

  • If this practice is done or colluded in by a public authority Deputy managing the affairs of a self-funding incapacitated person, whilst being employed by the same council charging the top-up, there’s probably an inexcusable conflict of interest and a breach of fiduciary duty going on – the deputy may not know that the council’s rate is not the going rate, but a Deputy should know enough law to be able to check and once dubious, should not be helping the council stay financially afloat on the back of the client’s equity.  The remedy is an application to the Court of Protection to get the public authority deputy removed, and a claim for restitution of any money actually paid thus far, under a mistake of law, and rectification of the Deferred Payment agreement.

In all three cases, the practice is unlawful, in a public law sense, because of the Choice of Accommodation provisions in the Care Act and the content of the guidance in the statutory Care Act guidance. The remedy is judicial review proceedings for failure to abide by the law, and to accord Choice of Accommodation rights, in the course of which proceedings, the repayment can also be claimed.

Councils are only obliged to pay for appropriate care and accommodation, under the Care Act, and people can choose to pay for better than merely appropriate packages, if they or their relatives can afford it, even though still having council-funded services, rather than privately contracted for services – but councils do have to figure out what the going rate IS, for that concept, rationally, and only treat as a top up, fees that are above that rate.

It has always been the law that not all homes that are registered as fit, are necessarily suitable for person’s particular needs; and councils have to be prepared to say ‘Choose from these homes, all of which are open, but remember we only think that THESE ones are suitable for your relative.’

What councils have been pulled up for is telling people to go choose, when in fact on the day in question there is NO SINGLE AVAILABLE APPROPRIATE CARE HOME PLACE TO BE HAD, at the rate that the council asserts to the world is an evidence based going rate for a basic standard care home placment that will do the job adequately for the person in question. In that case, the law has always been that the council must find and pay for a bed, in full, unless or until it can move the needy person to a cheaper bed that is still appropriate.

What about care homes charging top ups that the council doesn’t know about?

Any care home doing business with a council should have a written contract for the package, made up of the provision of accommodation and the provision of the necessary care to deliver the person’s care plan.

The care home can set whatever price it likes for that package, but the council need only pay what it believes standard appropriate care together with accommodation should cost. It may have tendered for a fixed price, for instance, to get a feel for whether the market would provide enough placements at the fee asked for; and homes may have agreed to charge council clients ONLY that fixed price; or may have agreed to treat the fixed price as the council’s contribution to the fee, whilst transparently charging top ups for admission of council clients – thereby taking the commercial risk that there will not be enough demand from people with either sufficient equity or well-off enough relatives, to keep the home viably full.

Councils have a right to refuse to put a person in a care home where a top up is needed, if the topper upper is not apparently good for the money, for the foreseeable future, but they can’t require homes NOT to charge top ups if the home believes from its low vacancy rates that it is doing more than providing merely appropriate packages or clearly offers rooms (or services) of differing standards, albeit all are adequate.

What a care home is NOT legally able to do is to charge relatives, or the service user, privately, around the side of the council contract, as it were, any sum on top of what has been agreed in the contract as constituting the package contents – the accommodation and the care. That would be double charging, and fraudulent. So, in a basic room, there can be no top up in play. In a room that is agreed to attract a top up, there can be no EXTRA top up charged, IN the contract, or outside it. The only exception is a sum agreed with the service user or relatives for a purely personal extra, such as hairdressing, etc.

Who’s driving this within councils? Commissioners, I believe, under a duty to contract for quality, sustainability and diversity, and to keep the market functioning….

Some councils are using ‘dynamic purchasing systems’ whereby homecare service users get offered an indicative personal budget based on a RAS, but where the figure gets reduced after the person’s care needs have gone out for local bidding. In these areas, for those needing care home care, it’s done differently and they are not being given a personal budget by reference to a RAS. Pre-qualified providers (in terms of quality) all bid to be given upcoming placements, after Care Act care planning has commenced, and the council running the system says then that the cheapest willing provider’s offer constitutes the evidence of the going rate, and that any other placement offered and preferred by the person or their family, thereby constitutes a choice of more expensive care than the authority’s legal funding obligation, by way of the personal budget. I can’t wait for someone to challenge this as the most obvious dilution of what Choice of Accommodation Rights used to mean – when the home’s fees were compared to the usual rate, not that of the cheapest willing provider! The guidance may well say that councils MUST be able to show ONE home at the rate offered as the Personal Budget but SHOULD be able to show more – but what these systems mean, to my mind, is that no filter for person centred suitability is being made by way of care planning staff, and the person or the family is just being made to pay a top up, in most cases, to access any choice at all,  by dint of market forces, and how desperate care homes are, currently, to remain as full as possible.

What does the sector leadership say?

Ray James, president of the Association of Directors of Adult Social Services, said there were “probably colleagues in local authorities feeling between a rock and a hard place” as more people were needing care in the face of funding cuts.

“Even where that is the case, we should always make sure that individuals and their families are clear about the information that they need,” he apparently said.

When you actually read what he has said, he’s not even saying that councils should tell the legal truth or give clear answers about the evidence basis for their ‘sufficient, timely and transparent’ rate for the person’s personal budget. He may be being misquoted, but if you read it again, you will see that it’s people – the service users and their relatives – who should apparently be being supported to be ‘clear’ about the information they are asking for.

How much longer is this double-speak going to be allowed to go on for?  If social care is underfunded so massively, why don’t local councils simply say “We can’t do it for this amount of money”, and make it a political issue? The only reason I can think of is that the Local Government Association (a limited company, part funded by the Department of Health by way of a memorandum of understanding for its Care Act work) and ADASS (a charity, in part grant funded by the Department of Health) and SCIE (a charity, almost wholly grant funded by the Department of Health) have to lobby the government, for more money, within in the above-mentioned ‘purse strings control’ context – and within a political context where party politics, at local, as well as at central government levels, must inevitably constrain what is really being said behind closed doors – all under the auspices of ‘stakeholder consultation’.

I would make a plea to all political leaders, but particularly to Jeremy Corbyn – do you have the integrity to be honest about that, please? That would be a real vote winner, I feel!

 

 

 

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

I have had this enquiry in from an anxious parent:

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

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

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

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

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

This is my response:

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

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

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

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

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

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

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

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

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

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

The crucial significance of Housing and Homelessness law for social work practice

Housing law has seen a lot of action in the last year. There have been cases about which council is liable for social care when one council has placed a family out of area for what’s known as the Temporary Housing duty; and another one about the extent to which a council can even ‘post’ people a long way from their current setting, under the Housing Act.

But the most important case has been one which has changed the correct approach to a central concept in who is owed a housing duty: that of vulnerability and priority need. It’s called Hotak.

Housing officers had been encouraged to treat people with obvious needs in this manner, as being lawful: “You are not vulnerable, because you are no more vulnerable than the usual run of street homeless people in our locality”. They had been doing this so as to focus on housing the most vulnerable, locally, and the court in Hotak, has said no – in fact the council’s duty is to house any vulnerable person (subject to the other criteria of eligibility, homelessness and not being intentionally homeless, of course.) The long standing est in Pereira, decided in 1999 has been overridden, and the court has reiterated that the duty is not affected by the shortage of housing or other financial resources available to the council. A duty is a duty, after all.

That message will have a positive effect for Care Act duties are interpreted, and is a good sign of robustness in the judicial approach to duties as opposed to discretions.

It’s all the more important for people now working in First Contact roles or Advice and Information roles to be aware of (or ideally offering a co-ordinated steer in relation to) the interface between housing and social care rights – because securing housing in specialist but unregistered accommodation or ordinary housing association properties through nomination rights, can be something that the Housing department organises – by dint of an evidence basis about vulnerability, disability, priority need etc, by social work or care management staff.

Legal Aid lawyers with a Housing ticket from the Legal Aid Agency are permitted to assist people with Care Act issues, if the person is homeless or threatened with homelessness – through an amendment to the Legal Aid legislation found in the Care Act and Children and Families Act, which is a good way of ensuring that some more lawyers embrace community care law. So there is some hope for legal challenge!

What does the Hotak case say?

H and the other people in the cases heard together were all homeless and male.   The Housing Act defines as being in priority need, people who are vulnerable as a result of old age, mental illness or handicap, or physical disability or other special reason, and there is no comparator specified.

Merely being homeless does not constitute priority need, and nor does simply being old or ill or disabled. But if those issues put one at greater risk of harm than an ordinary person who was homeless, then that was enough. If a person was disabled or had some other protected characteristic under the Equality Act, then a housing authority bound by the public sector equality duty in that Act needed to give the case heightened scrutiny.

From now on, the comparator is to be an ordinary person, who is in need of accommodation, not ordinary homeless or street homeless people, or people in the particular locality.

Vulnerability connotes significantly more vulnerable than ordinarily vulnerable.

‘Significant’ connotes ‘more than minor or trivial’, or ‘substantial’.

If a person has a carer or family member to help them, that is relevant to vulnerability, but only if the existence of that person obviates the vulnerability altogether, not because the need centres upon something that the carer or relative can achieve for the person. if the vulnerability is not wiped out altogether by the help, the person’s supporter can then be housed with the individual deserving of being found to be vulnerable.

Which comes first, housing or social care, in terms of legal hierarchy? 

The answer to that is easy! it’s the housing duty. Section 23 of the Care Act makes that clear.

In practice, however, the courts have always allowed the notion of what is a reasonable time for discharging the homelessness duty to a vulnerable person in priority need, to be extended, massively, by reference to how very hard it is to find suitable accommodation for people.

It is that fact which means that in practice, integrated or singular adult social care teams may well have no option but to accept that they must use the Social Care department’s resources, and statutory powers or duties, temporarily, rather than those open to their local Housing colleagues, in order to manage the risk to the person’s wellbeing in the meantime.

There will therefore continue to be some people who need to be placed in care homes, or boosted into units in social housing, where Social Care holds the nomination rights, on account of the extremity of their needs. That question is no longer determined by FACS, but by the eligibility criteria regulations (inability to achieve two or more domains plus consequential significant impact). The fact that access to a roof over the head of the person may be the only way of meeting the need is not a question relevant to eligibility but only to care planning and commissioning!

The duty in the Care Act to co-operate with other councils or one’s own colleagues comes into play here, see s6 (4)(b) for specific reference to housing authorities and colleagues. Arrangements must be made for co-operation and all councils should have reviewed their relations in this sphere by now, for practicality and smoothness. This d should ensure that an embarrassing flow of case law about warring teams as to whose job someone’s situation really is, and whether Adult Social Care functions ARE the only way of meeting the need, is limited…

Impact on training and education

Someone (preferably more!) in a unitary or county and district council set-up needs to know about both adult social care law and housing law, it seems to me, in order to ensure that this interface operates fairly and is realistically manageable.

My training team provides specialist half days and whole days about the relationship and we are always up to date. (Sorry for advertising, but we have to make a living!). Email belinda@careandhealthlaw.com if you can see the sense of getting us in.

The Dilnot denouement

In my previous post I suggested that all the signs were there that Dilnot would be put on hold. Yesterday our suspicions were confirmed as a letter from the Care and Support Minister to the Conservative Chair of the Local Government Association’s Community Wellbeing Board, Cllr Izzi Seccombe, stated that Government would delay, until 2020, the implementation of the cap on care costs, the duty on local authorities under Section 18(3) of the Care Act to meet the eligible needs of self-funders in care homes and the appeals system which was proposed in the consultation earlier this year. It is important to note, however, that there was no mention of delaying the increase to the capital thresholds, above which people must pay the full cost of their care from their assets, to £118,000 for those in residential care and £27,000 for those in the community from April 2016. All bets are off about that!

The reasons set out by the Minister for this decision were that the cap should not be implemented in isolation, but in a way that ensured a sustainable health and care system, and that concerns expressed by Cllr Seccombe, on behalf of the LGA, which represents all England councils, and others, including the National Audit Office, had ultimately led to the postponement of Phase 2 of the reforms.

The news spread like wildfire as news outlets picked up on the story, and it was even announced on news bulletins – notable in my view because social care rarely hits the headlines – but this goes to demonstrate the high profile of this element of the reforms as stated in my previous post. Seccombe warned on the Today programme that councils were already struggling with budgetary pressures and the second phase of the Care Act would need to be fully funded, otherwise these pressures would begin to be shunted on to the NHS. This echoed the concerns she had expressed in a letter to the Health Secretary on 1 July, in which she suggested that the money allocated for implementing Dilnot should instead be used to plug the £700m shortfall councils were already facing in social care.

A collective sigh of relief will no doubt have been heard in councils across England, not because it was felt that the Dilnot reforms were a bad thing in principle, but because of the implementation issues councils have been grappling with, and uncertainties about the true costs of the cap. However, if the aim was to bury this controversial news on a quiet Friday afternoon (it was a Conservative manifesto pledge that people would not pay more than £72,000 towards their care from April 2016), Ministers will be disappointed. Former LibDem Health Minister Norman Lamb branded the announcement “an outrageous betrayal” of the electorate while Liz Kendall, the shadow care minister, called it “a shameful broken promise from David Cameron, and devastating news for older people and their families who have been trying to plan for the future”.

Putting back the Dilnot reforms indefinitely would have been a very brave thing to have done, considering it was the Conservative-led coalition government which had originally asked the Dilnot commission to review the funding of care and support in England, but putting the implementation back until the next Parliament (rather than the two-year delay the LGA had suggested) is for all intents and purposes the same thing.

In my next post I will be looking in more detail at the implications of the announcement for individuals who may need care and support, self-funding or otherwise, and their families, and the sector. Stay tuned!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Please read on for the wisdom of the judge:

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

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

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

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

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

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