Category Archives: Commissioning

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

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

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

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

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

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

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

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

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

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

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

Comment

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

Would you believe it?

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

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

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

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

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

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

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

Original post

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusions

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

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

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

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

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

 

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

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

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

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

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

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

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

(1) to ask itself the right questions,

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

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

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

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

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

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

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

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

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

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

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

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

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

Commentary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

This is what has been defended as lawful by Tameside.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tameside and top-ups, dissected in detail

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

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.

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!

 

 

 

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

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

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

What does the guidance say?

Continuity of care and ordinary residence

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

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

The guidance goes on:

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

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

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

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

The guidance goes on:

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

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

Finally, the guidance says this:

Consequences for local authorities

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

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

 

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

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

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!

 

Wiltshire responsible, by a 4:1 majority, in the Supreme Court – the outcome, analysed….in Care Act terms

For those following the law of ordinary residence, it will be appreciated that the government’s guidance about the subject, for the Care Act, had to be written in somewhat opaque terms, because of the progress up the judicial system, of the Cornwall case: a case where three councils were slugging it out over some years, about ongoing responsibility for adult services for a young man born in Wiltshire, fostered to South Gloucestershire and visiting Cornwall at his natural parents and siblings’ home, twice a year.

The Secretary of State had said Cornwall was where PH, the young man was to be regarded as o/r, not on the basis of his intention, because he lacked capacity, but on the basis that this was where his real ‘base’ was. Cornwall used judicial review to challenge that decision; the care was costing £80K a year. The High Court found that the Secretary of State was at least not WRONG about it being Cornwall.  The Court of Appeal said ‘Rubbish!’ however, and that it was in fact South Gloucestershire.

The Supreme Court has now said it is and was Wiltshire, all along – restoring, in my opinion, some sanity, intellectual coherence and consistency into the interpretation of the law, in such a way as to make it hopefully much easier to predict the ordinary residence of people with care and support needs when they transition into adult services.

Here are the important bits in the judgement, to my mind – do read them, it’s really worth it, for understanding the issues. I have added emphasis where I think it helps.

“Allthough the choice of South Gloucestershire may fit the language of the statute, it runs directly counter to its policy. The present residence in Somerset is ignored because there is no connection with that county, other than a placement under the 1948 Act. By the same policy reasoning, South Gloucestershire’s case for exclusion would seem even stronger. There is no present connection of any kind with that county, the only connection being a historic placement under a statute which specifically excluded it from consideration as the place of ordinary residence for the purposes of that Act (the Children Act).

54. The question therefore arises whether, despite the broad similarity and obvious underlying purpose of these provisions (namely that an authority should not be able to export its responsibility for providing the necessary accommodation by exporting the person who is in need of it), there is a hiatus in the legislation such that a person who was placed by X in the area of Y under the 1989 Act, and remained until his 18th birthday ordinarily resident in the area of X under the 1989 Act, is to be regarded on reaching that age as ordinarily resident in the area of Y for the purposes of the 1948 Act, with the result that responsibility for his care as an adult is then transferred to Y as a result of X having arranged for his accommodation as a child in the area of Y. 55.

….It is highly undesirable that this should be so. It would run counter to the policy discernable in both Acts that the ordinary residence of a person provided with accommodation should not be affected for the purposes of an authority’s responsibilities by the location of that person’s placement. It would also have potentially adverse consequences. For some needy children with particular disabilities the most suitable placement may be outside the boundaries of their local authority, and the people who are cared for in some specialist settings may come from all over the country. It would be highly regrettable if those who provide specialist care under the auspices of a local authority were constrained in their willingness to receive children from the area of another authority through considerations of the long term financial burden which would potentially follow.

58. Section 24(5) poses the question: in which authority’s area was PH ordinarily resident immediately before his placement in Somerset under the 1948 Act? In a case where the person concerned was at the relevant time living in accommodation in which he had been placed by a local authority under the 1989 Act, it would be artificial to ignore the nature of such a placement in that parallel statutory context. He was living for the time being in a place determined, not by his own settled intention, but by the responsible local authority solely for the purpose of fulfilling its statutory duties.

59. In other words, it would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are to be found in the provisions of the 1989 Act. Since one of the characteristics of that placement is that it did not affect his ordinary residence under the statutory scheme, it would create an unnecessary and avoidable mismatch to treat the placement as having had that effect, when it came to the transition in his care arrangements on his 18th birthday. [emphasis from Belinda]

60. On this analysis it follows that PH’s placement in South Gloucestershire by Wiltshire is not to be regarded as bringing about a change in his ordinary residence. Throughout the period until he reached 18 he remained continuously where he was placed by Wiltshire, under an arrangement made and paid for by them. For fiscal and administrative purposes his ordinary residence continued to be in their area, regardless of where they determined that he should live. It may seem harsh to Wiltshire to have to retain indefinite responsibility for a person who left the area many years ago. But against that there are advantages for the subject in continuity of planning and financial responsibility. As between different authorities, an element of arbitrariness and “swings and roundabouts” may be unavoidable.

 

What are the implications for the new Act equivalent provisions?

Anyone who has had training from the Care and Health Law team will recall that my team members have been teaching that absent a decision from a person to take a tenancy in another area, on leaving children’s services or a foster placement, the authority that WAS responsible, remains responsible. We have been teaching that because we are capable of critical legal thinking, and have thus applied such thinking to the Guidance, and been prepared to stick our necks out. That was the whole point of extolling the benefits of Legally Literate training, before the Care Act came into force.

The new Act allows for the concept of deemed continuing ordinary residence to arise not merely in relation to council arranged and paid for placements but also in respect of tenancies, so the ability to move into supported living out of area, through a capacitated or lawfully authorised deputy’s decision cannot any longer signal a shift in o/r. But the importance of this decision lies in the determination of the court to limit the influence of the Vale 2 test, particularly at the point of transition, and to set a general principle that barring exceptional circumstances, the authority that was responsible for the child, will also be responsible for the adult. Thank goodness for that!

Where a person has

a) either the capacity to move into a tenancy in their own name but clearly ongoing needs for personal care (however much may be required)

or

b) their lacking capacity to make that decision, it is nevertheless in their best interests to do so, it having been carefully assessed for, planned for, and properly resourced, and valid tenure having been secured,

then the new rules on specified accommodation and ordinary residence continuing, DESPITE it being a tenancy, and not a placement, will apply, and the old council will remain liable.

This should should stop councils being keen to export people into supported living for no really good reason other than divesting themselves of ordinary residence responsibility.

But in a case where a young person is conscientiously believed to need to be in a care home, for reasons of the need for access to care and supervision (or DoLS?) together with the accommodation in a fully managed environment, and is incapable of expressing a choice, by reason of mental incapacity, it will be the authority that was previously responsible for the person when they were a child – wherever the appropriate placement happens to be.

If the young person needs to go into a care home and IS capable of expressing a choice, he or she will have choice of accommodation rights, because an arrangement to pay for a care home will be a placement, and Choice rights apply to all such arrangements, albeit that there are limitations to do with the budget, and the suitability of the preferred accommodation, of course.

When will the old authority NOT be responsible on transition to adult services?

One example is this: if the young person can move into non-specified accommodation, or makes their own arrangements for a tenancy without that being part of a care plan based on personal care, as defined, being regarded as necessary in the place where the person is going to live, in order that the assessed eligible needs can be met, then the person’s ordinary residence WILL SHIFT, and the Continuity Provisions (about being assessed by the new authority before the move is made) will apply.

What about people who are not transitioning? For instance, elderly incapacitated people, moved to an area by loved ones, despite the person not having positively chosen, in the sense of voluntariness, or even knowing acquiescence, to have made the move?

I don’t think that the Vale 2 test is completely obsolete, in relation to incapacitated people’s rights to care – despite this decision limiting its effect, or rather, explaining its central reasoning, much more carefully than the previous case law has bothered to do, before now.

I think that where people benignly move their relatives without input from a council, and then find that they can’t cope, so need adult social care, it will still be the authority on the spot that has to pick up the pieces, even though the person has not chosen to come, and has been PUT there by loved ones, in effect.

Section 117 Mental Health Act care planning

And what about the implications for mental health patients needing s117 care plans? Those familiar with the legal literacy materials from Cornerstone Chambers and the Government’s own guidance will know what the issue is here. The old s117 provisions based on responsibility tied merely to where one was physically resident, were amended by the Care Act to refer to ordinary residence, but there was no clarification of what that meant when the person sectioned and in need of s117 aftercare, happened to be a person who was living somewhere they had been placed, by a council from their OLD place of ordinary residence, and hence another council than the one on the spot was the authority of ordinary residence before the person was sectioned.

The question that now arises under the Care Act is whether ‘ordinarily’ resident in the amended form of s117 now means where they were factually ordinarily resident, or legally ordinarily resident.

My legal instincts, during the run up to the Care Act coming into force, have openly and controversially been to the effect that whatever the words say, strictly speaking, in s117 as amended, the courts might well find a way ot lean in favour of consistency and continuity, and stretch the s117 notion of ‘ordinary residence’ to include the fact that the place where the person was physically living was on account of the care management decisions of the council which was previously in charge of arranging and paying for the care – even though that was not the area where the person has been physically and potentially capacitatedly willing to accept a care home placement, and thus living, for ordinary settled purposes.

Yes, I know that the reference to ordinary residence in the amended s117 does not say or deemed to be ordinarily resident in respect of a Care Act care package….”

Yes, I know, too, that the deeming provision in the Care Act, only apparently applies for the purposes of responsibility for Care Act services, not MHA services…

And yes, this judgement in the Wiltshire case does not – as a matter of precedent, – determine whether that is a correct gut feeling.

But it does show that the Supreme Court is willing to take policy considerations into account – even if they are not what the Secretary of State’s officials believed them to be, so far as advice in Guidance, or even formal Determinations, were concerned!

So, it’s all to play for now, in a case where a capacitated person has been placed out of area in a care home or has taken up a tenancy where personal care is available if required, under the new specified accommodation rules, since April 1st 2015, and is then sectioned. Who’s going to get the issue to court?

If you want consultancy about the implications of this case, of course I provide it for money!

Also, whether you are a purchasing council, or a provider, needing to know who on earth should be paying your fees – if you want to organise legally astute training on ordinary residence, for s117, learning disability or transition teams, please get in touch with Debbie, my administrator, on debbie@careandhealthlaw.com…