Category Archives: Carer rights and advice

Carers’ assessment legal framework questions – under the Care Act – for Carers’ Week 2016

Questions about carers’ Assessment rights under the Care Act (support planning issues to be covered on another day)

Are carers entitled to self-assess? Yes, but only in the same way as service users – it’s not self-assessment of eligibility, but supported self-analysis of one’s needs, followed by an assurance exercise. It is, however, likely to be much more welcome to carers, if they can do some form filling online or be asked on the phone, because they are likely to be busy. Para 6.38  says: “To help the adult with needs for care and support, or the carer, prepare for the assessment the local authority  should provide in advance, and in an accessible format, the list of questions to be covered in the assessment. This will help the individual or carer prepare for their assessment and think through what their needs are and the outcomes they want to achieve.”

Do people who are carers have a right to be assessed? Yes, virtually, at least, they do, if a person has been acknowledged as a carer. As with service users, assessment is triggered by the appearance of any needs – and case law makes it clear that one must not apply eligibility criteria to that question. Just as with service users however, the route TO an assessment may be obscured by a prevention and reduction effort; and that is usually a good thing, but will sometimes frustrate.

Do carers have to prove that they have needs? Well, they don’t have to provide proof, as such; for instance, they don’t have to get a doctor’s letter about their deteriorating mental health, but it will help if they have one. They have to satisfy a council of the existence of needs, so to that extent yes: but their account of their situation is in itself evidence. No diagnosis is needed and most people will be given the benefit of the doubt.

Can a carer force a council to do whatever they themselves have been doing? No. The council is the decision-maker about assessed eligible needs of the service user, and if the carer is willing and able to do anything, the council does not have to care plan for duplicating that input. If the carer ceases to be willing OR able, then the council has to reconsider the situation of the service user, and not all of what the carer will have been doing will overlap with eligible assessed needs. The carer may have been meeting what seem to the council to be wants, given the wording of the minimum eligibility criteria concept. So the carer can say what they are willing and able to do, but the council is only obliged to meet assessed eligible needs taking account of what the carer is not willing or able to do.

Are carers entitled to services from the council or its providers, or only to the money? It is very clear that if assessed as eligible, they are entitled to services or the money; they do not have to take their budget in the form of a direct payment. These services are supposed to be individuated to the carer, and not just a bunch of services provided for ALL carers….and understanding of that is very low in commissioning units across the country in my experience.

Are carers entitled to independent funded advocacy? Yes in the same sense as prospective and established service users – that is, if they meet the criteria. It is less likely that they will experience substantial difficulty than service users, but entirely possible. It is easy to imagine a cognitively impaired adult son or daughter becoming a carer to an elderly relative. The duty is the same because wherever there is a duty to involve a carer, there is potential for funded advocacy rights. It is unclear whether the duty to involve a carer in a service user’s assessment is one that can trigger a right to advocacy for the carer in that context; what is clear is that advocacy is intended primarily for supporting a person in an assessment or plan or revision or safeguarding issue that is about that person. The guidance appears to have been written deliberately ambiguously, as if the authors could see the difficult but didn’t know how to resolve it.

What is the criterion that the carer must be providing ‘necessary’ care, supposed to convey? The guidance is clear that the carer does not have to be providing care that would be regarded as meeting only eligible needs; so it must mean something else. The guidance seeks to explain this condition in terms of the support that is being provided being something that the person could not do for themselves. “If the carer is providing care and support for needs which the adult is capable of meeting themselves, the carer may not be providing necessary support. In such cases, local authorities should provide information and advice to the adult and carer about how the adult can use their own strengths or services available in the community to meet their needs.” That would have to mean that a task that was not mentioned in the eligibility regulations but which the carer was helping with, could still count and provide the basis on which the carer was within the scope of the carer support regulations. This could imply that if an adult is capable of meeting their own needs, through local services (free or even chargeable, maybe?) then the carer’s input may not be necessary – which seems to refer one back to the possibility that the assessor might take the view that services exist ‘out there’ that mean that the carer is just ‘choosing’ to dedicate themselves to the person cared for, and that the person cared for should just make do with whatever’s available, or pay, for respite. So we need case law about the meaning of this phrase, to my mind.

Does a carer’s assessment require a person’s positive consent in writing? No, but a person can refuse, and that excuses the council from doing one; I can see that a carer’s refusal to be assessed could lead to a safeguarding enquiry about the person cared for, if there is real concern about the carer’s own state of mind. There is no reference (unlike with service users) to the assessment duty still subsisting if the care manager thinks that the carer may be subject to abuse or neglect nor if the carer was thought to lack capacity  to refuse, interestingly.

Does the same ‘stretched’ definition of inability to achieve, that applies to service users, apply to carers? No, not quite. A carer’s needs could well be eligible, if they prevent the carer’s ability, on their own, without assistance and without significant pain, distress etc, to achieve the outcomes, considered to be the bare minimum for a tolerable life for a carer. But the difference is that the reference to the task taking longer than for ordinary people is omitted. So carers are not able to be regarded as eligible, just because it takes them much longer to keep their houses clean for instance, after doing the night sitting for 3 nights!

Do you think the carers’ criteria are easy to qualify under? Yes I do. There is scope for a carer to refer to children that they might be caring for; other people they care for; their interests in developing or maintaining relationships, and the desire to work, train, volunteer and pursue leisure. The difficulty experienced in doing those things, associated with caring, is a choice that the carer has made: the Care Act enables the carer to balance the choice with maximising the chances of fulfilling those other important aspects of well-being. Since the assessment should be carer-focused, the carer has the chance to explain the significance of the impact being suffered, and the carer need only credibly assert that their physical or mental health is likely to deteriorate, along with consequential significant impact, in order to be regarded as eligible. All this is clearly policy driven, since carers provide free care: what government would not want to maximise the number of eligible carers?

Do councils have to do support plans for eligible carers? Yes, it is mandatory, even if the carer is being given a direct payment to spend on meeting their own needs. See s25. If they are eligible, they are entitled to written reasons, and all the more so if they are deemed ineligible, and the duty to do a support plan follows on from a finding that ANY of the person’s identified needs meet the eligibility threshold.

Can a person’s friend or relative who is being paid for actual care, be seen as an appropriate person, so that they get to do the supporting and thus avoid the need for an advocate? No, the regulations about advocacy forbid it. Any such friend or relative, (indeed ANY current provider of care or treatment) should still be consulted as a best interests consultee, if the client is incapacitated, because of s7 Mental Capacity Act and the Croydon case, as interested in the person’s welfare; alternatively, if the client has capacity, then that person is entitled to insist upon any chosen person being involved, under s9 Care Act. Remember that for informal support to be deemed to be appropriate, the prospective supported person must be asked for their consent first.

Can a Carers’ Centre/Hub/Support Group ever be appointed as formal funded advocates? The regulations say that the ‘person’ who is providing the advocacy must not be employed by or otherwise working for the council. I take that to mean that the contracted advocate must not only not be employed, but must not be a contractor to the council – for what else could it mean? That would mean that no company with any other contract with the council, could be contracted to provide advocacy. That’s not how it’s happening, is it? Most advocacy companies have got other contracts for IMCA advocacy, or generic advocacy. But perhaps a carers’ hub might be grant funded for its other activities, and not, as such, ‘otherwise working for’ the council.

A phrase added to the amended statutory guidance in respect of who may be an advocate says that “the independent advocate must not be working for the local authority, or for an organisation that is commissioned to carry out assessments, care and support plans or reviews for the local authority unless the potential conflict of interests is adequately addressed within the organisation’s structure (for example a different group within a company or through an effective ‘firewall’, as in the banking industry)” That seems to be treating the advocate only ever as a human being, and then saying the advocate can’t be working for an organisation that is working for the council – unless there’s a firewall. So in a process of reverse reasoning, it seems to be saying that if you happen to be working for a company that is doing carers’ assessments for a council, you can still be an advocate – as long as there’s a firewall!!

I can see that although there is a specific regulation saying that you can’t be an advocate if you work for a delegate of the council doing social work functions, there is nothing saying ‘but it’s ok if there’s a firewall.’ This therefore seems to me to be guidance that is wrong in principle: The staff doing carers’ assessments or plans would be privy to how the local RAS really works, and what the approach of the council is to the meaning of significant impact. No person could be both an assessor, one week, and an independent advocate, the next week, to my mind. Imagine how that assessing body would set about the process of deciding whether funded advocacy was needed in the first place. It would want the work, (or maybe it wouldn’t, if it is having to carry the risk of having enough advocates, or has been given a block based fee!!) but would be doing the decision-making as to whether its own services are needed!!

 

 

 

 

 

 

 

 

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.

Where have all the short breaks gone?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This brings us on to:

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

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

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

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

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

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

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

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

Meeting carers’ needs – the right approach?

Much of the discussion in councils across the country about meeting carers’ needs seems to centre on the legitimacy or otherwise of their carers’ Resource Allocation System or whatever method used to set an indicative budget for carers.

I’m not saying that this isn’t important but if the indicative amount is the main focus of discussions, or even worse, of the assessment itself the point could be lost that a carer’s PB is not the only way to meet carers’ needs – and for many carers would not be the right approach at all. But before we go on to discuss ‘the right approach’, let’s think about what we are moving from and what we need to move to.

Until the Care Act, carers had no legal rights to services. The Carers and Disabled Children Act 2000 gave local authorities the power to provide services and at the same time local authorities were given a new Carers Grant allocation from central government.

When this system began, 95% of the Grant had to be spent on services which gave carers a break, and the remainder could be used for admin and back office support. There was also a 80%-20% split between monies for carers of adults and carers of children with disabilities. Local authorities used the grant to support carer specific in-house provision, to commission short break sitting services and, in most areas, to provide individual carers with a grant or direct payment to fund a breaks activity for themselves. Short breaks services and direct payments funded from this source were non chargeable under the Grant’s terms.

In due course, the ring fencing was removed and the government’s Grant incorporated into funding for general services or for services for those who’d been assessed (although there was no concept of eligibility, as such, for carers); however many authorities continued to fund the same provision (although I think children’s services may, in some cases, have had to fight harder for their 20 percent.)

Although local authorities used FACS guidance as best they could for measuring the extremity of carers’ needs, there was a wide variation in how the short breaks worked, the amount of the individual payments, how they were accessed and who was ‘eligible’. Often the allocation of carers’ payments was a completely separate process to the assessment of the adult, sometimes lawfully contracted out under carers’ legislation to a carers’ organisation – in many cases, leading to duplication and inequity of provision. Many carers may well have been supported in this way for over 10 years, with both services and grants being routinely agreed.

Now of course, with the advent of the Care Act, carers do have a right to services – or rather they have a right to have their unmet eligible needs, met.

Local Authorities are moving from having a power to provide services to carers based on their own eligibility criteria to having a duty to meet the assessed needs of carers based on the notion of inability to achieve outcomes. Although the Local Authority has to take the carer’s wishes into consideration, it is the final decision maker when deciding which of the carers’ own personal outcomes can be met along with the other statutory outcomes (subject to judicial review, of course, on the normal grounds of unreasonableness, illegality, unfairness or breach of human rights).

Many Local Authorities are looking carefully at current provision and in many cases reconfiguring support so that they have sufficient resources to ensure Care Act compliance.

I do think that some carers, thinking that their current services and grants will be translated into personal budgets, may find that councils, quite legally, reasonably and fairly will be determining that their needs can be met in other ways.

When that is a rational defensible judgement, based on the evidence, there may be no remaining unmet needs which require the provision of a personal budget.

So what is the right approach to determining a carer’s needs? And how these may be met?

First: Don’t get too hung up on the RAS and, where these exist, ‘bandings’ – consider which of the eligibility needs or outcomes in the regulations that the carer is unable to meet and which have a consequential significant impact on them (take a look at Lorna Easterbrook’s blog for some great stuff on CSI!) (not ever forgetting the catch-all for carers, that their mental or physical health is at risk or actually deteriorating, causing CSI…);

Second: Clearly identify the barriers caused by the caring role, which the carer faces in meeting these ‘outcomes’ and / or staying well;

Third: Think carefully about what you need to do to remove or reduce those barriers and whom you might need to support:

Fourth: Attempt to agree options such as
– Provision of a personal budget to the adult recipient of care, following their own assessment, to reduce the carer’s caring role;
– Refer adult and / or carer to a preventative, universal or community service;
– Refer adult and / or carer to another agency (such as housing or health) where that agency has a prior legal duty to support the person;
– Provide appropriate advice and information

Don’t forget that a good assessment can offer valuable assistance in its own right.

Fifth: Has the carer still got eligible needs which cannot be met in any of these ways?

Now it makes sense to think of a carer’s personal budget.

So how much is enough?

“The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role, and takes into account the outcomes that the carer wishes to achieve in their day to day life.” (Guidance 11.40)

Here is a suggested defensible process to determine how much is enough:

First: Which of the needs that the carer identified, remain(s) unmet?
Second: How does the carer think it / they could be met?
Third: Does this seem reasonable? You must take into account an objective view of ‘reasonable preferences’ but this is public money, so if the carer wants something that is not feasibly related to meeting an identified domain of need, they must fund it themselves. If they can meet some non-eligible needs whilst spending a reasonable amount of money on meeting an eligible one, then that is great, and clearly best value overall.
Fourth: How much will it cost? On the whole, carers will not want health and social care services for themselves so this will most likely be the cost to the general public in the local area, not the cost that the council would pay for buying the services in, in bulk; but where the person does not want a direct payment, the council will have to do the buying, because a direct payment can only be made when requested.
Fifth: If this is within your indicative budget – agree the payment. If not, refer to a higher decision-maker to decide if, in this particular set of circumstances, this is reasonable, explaining why or why not in your view – bearing in mind the consequences of not supporting the carer and the possible cost of supporting the adult if they are unable or unwilling to carry on caring.

I said don’t get hung up on the RAS, especially during assessment but the question cannot be avoided altogether. The Guidance (11.24) says that “It is crucial when calculating the personal budget to arrive at an upfront allocation which can be used to inform the start of the care and support planning process. This ‘indicative budget’ will enable the person to plan how the needs are met”.

Many Local Authorities seem to have set their indicative budget calculation systems at a level roughly equivalent to the level of their Carers’ payments.

This seems a reasonable place to start, although it is bound to be challenged on the basis that the nature of the function has changed from a discretion to a duty. If challenged, though, councils will be able to point to 10 years of evaluation showing how carers used these amounts, in many cases innovatively, to meet their needs and to support them to carry on.

If a council wants the nation’s carers to be willing to do more, however, councils will eventually need an evidence basis, either to the effect that people are willing to do more without being any further supported, apparently, or at the least that few are withdrawing their good will, in response to an offer based on the old system.

Less risk averse councils may well be trying the perspective that a carer might be willing to do a LOT more, if it keeps a friend or relative at home for a while longer, for just a little bit of money, (not the cost of respite) if the money is for a need that has not been seen as ‘mattering’ before, like the need for the carer’s own home to remain clean enough to be safe.

Less logical, I think, is the way some have linked their allocations to the number of outcomes unable to be achieved. If the one outcome which remains unmet is the carer’s inability to work, this may well need a regular service that will cost more than supporting a carer with more outcomes unmet, but whose needs could be met by a less frequent, or a one-off service.

This isn’t too much of a problem if there is an understanding of the proper process and flexibility in decision making and most importantly the notion of everyone’s right to have an individuated budget by the end of the planning process, not just a ‘take it or leave it’ offer of an “indicative” allocation that no-one ever challenges because it’s made too difficult.

But it will be a problem if assessors – and carers – go into the assessment process with their minds fixed on these amounts.

Do you have a question or a comment about this blog? Is there another issue related to carers that you would like me to blog about? If so, just ask…….

Next blog: The imprecise guidance around ‘replacement’ care…

Do carers have to take direct payments?

Here’s a query from a gentleman, which I need to turn into a blog post for now:

“Under the new Care Act, I filled out an assessment – but not with the council itself, as they have farmed it all out to Northamptonshire Carers. They came back to me with an offer of £5 pw to help my wellbeing as I met the criteria to help with housework and the garden as I am a 24/7 carer for my wife who is in the late stages of Alzheimer’s. I got back to them and they agreed to increase it to £15.75 pw, but only by direct payment. They said there was no other option. I don’t want a direct payment – I would rather they sort it out, as I have enough on my plate as it is. What I wanted to know under this Act, is do I have to accept the Direct Payment?

Here’s what I think about this question, in legal terms.

I think that what might have happened here is that the Carers’ organisation doing the assessments for th council maybe offered the man £5 a week as a preventive offer, without a formal finding of eligibility; and then, when the man went back to them, they found him to be ‘eligible’, (without telling him on the required bit of paper, maybe), and then worked out that £15.75 would meet his needs (again without necessarily being transparent about why that ought to be enough, in their view, maybe? – it’s impossible to tell, because I am only told what I am told at the time).

The simple answer to the question, however – does a person HAVE to have the help by way of a direct payment – is a completely clear NO.

If you are eligible, you have to be given a support plan, and no council is able to give you a direct payment as part of the plan as to how to support your needs, unless you request one, which this man clearly hadn’t done!

So a person in that situation should go back to the council’s assessment organisation, and check the following things out with them, showing them and the council this blog posting, too, maybe!

a) have I been found formally eligible on the basis of the carers’ eligibility criteria, please?

b) which aspect of the criteria have I been found eligible under? (I am guessing that it was the one about not being able to maintain a habitable home environment without help, and that is great. But there may have been others, and it is important to know, because whether an allocation of £15.75 for the needs is conceivably defensible as a decision about what is needed to MEET the needs, depends on what the difficulties and needs ARE, as I am sure you can see.)

c) where is the support plan to which I am legally entitled under s25 of the Care Act? (If that had been done, it would have been clearly recorded that this man had not requested a Direct Payment, and in fact had said that he didn’t want one. He wanted a service; not a sum of money.)

NO-ONE can be forced to take a direct payment and do the buying of the service for themselves, under the Care Act. The reality of the Care Act is that councils’ commissioners will have to go back to organising cleaning services for those whose area of ‘inability to achieve’, is with regard to their home environments, and providers should take note of that and ensure that they have some ordinary cleaning staff on their books.

Lots of people do buy a cleaning service for themselves, though, these days, without becoming an employer – the carer or service user might just lack the confidence because they’ve not done it before, but cleaners advertise in the small ads locally, and agencies will offer a service at a slightly higher rate, but it is not a complicated contract that the company would want a person to sign. The policy behind the Act is that the vast majority of carers would probably be glad of the money with which to pick their own cleaner.

If this sort of conversation doesn’t resolve things for people in this situation, the Council needs to know about it, as the carers’ organisation acts as the council’s formal delegate, and is thus bound to apply the Care Act properly – or get the council into legal difficulties…