The concept of just how much of anything, is sufficient, to achieve the meeting of assessed needs, is a vexed question in the Care Act.
Under the old law, references to a wide ambit of discretion, and to the need for an evidence-based rational decision about what ‘such and such’ inputs would feasibly achieve, and to the notions of adequacy and appropriateness, (benchmarked by whether an experienced professional would give cogent evidence explaining why they thought the package or budget would work, and notions of respecting established Human Rights as well), was the judges’ reaction in judicial review challenges by dissatisfied customers.
These principles were often used to limit the council sector’s tendency to want to fit the package to the length of a dodgy piece of string – the string around the remaining financial resources actually available at the time, to the council, to suit that year’s budget. But there was at least some legal principle that was hard won, and people only occasionally lost a case (like Elaine MacDonald in the incontinence pads vs mobility support at night case.)
Under the new law, there’s a definition of the minimum that a personal budget must contain, in a specific statutory provision. So we might see all that earlier case law being re-litigated, unless there is consensus as to what it really means; and this is where one would look to the Guidance, to find a steer.
So what does it say? I have highlighted the helpful and unhelpful parts, depending on one’s perspective, below!
“The Act states the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs.
In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.
To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.
Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs or ensure people are complying with legal requirements associated with becoming an employer.
There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.”
I am thinking that it would be perfectly rational for a provider – even a really socially conscious one – to see individual purchasers, with their inevitable health and social care issues, as a bigger business risk – and less attractive, in a detached sense, than the council’s traditional big bulk order, for care and support services.
Personalisation of council commissioned care packages, clearly needs to be incentivised by a new and open commissioning style, not just imposed on providers, because it affects their MARGINS. But when a person is equipped to go out and buy in services with a direct payment, plus their own bit of money that was netted off the budget to represent the social care charge, the provider could be in a really difficult position, down the line.
If the direct payment rate to service users goes down, or more probably, does not go up, the following year, along with relevant inflationary measures, and the member of the public does not know how to challenge that stance on the part of the counicl, the poor provider has got to summon up real nerve to put up its own prices and have that ‘out’ with the needy person, instead of having an arm’s length dispute with the council’s commissioner or cost broker about its own fee.
Is this a deliberate aspect of making direct payments the preferred deployment route? (…the cynic in me is pondering?!)
Let’s keep this constructive, however. One answer to any council which offers a lower rate to direct payment clients than it does to its own commissioned providers is this:
“Why is it less than you have to pay, please? I am not going to be a direct employer, thank you; I am going to go to the same agency as you did, and if anything, I expect it to cost me more than it costs you, not less. Shall we go and ask, so that we’ve all got a defensible evidence basis to go on?”
That would encourage providers to decide whether to charge direct payment clients less than other private clients, for one and the same thing, or whether to charge them at least a bit more than they would charge the council for a bulk order.
I think that if a person wants a direct payment and is otherwise within the conditions set out in the Act for getting one, and the provider market does not choose to peg its prices to direct payments funded customers, to the council’s contract rate for bulk purchases, the customer cannot be told to make do with the same amount as the council pays contractors. The amount would not pay for the same amount of care as the council had decided it would have to buy, in order to meet the needs. It would not be defensibly sufficient,
To my mind, the reference to the cost of ‘quality provision’ in the guidance only gets over this problem, if it implicitly means ‘Set the direct payment rate by reference to the cost of local “quality provision” EVEN IF THAT’S NOT WHAT the council actually contracts for, when directly commissioning services for the discharge of its own duties’! I think that the reference to ‘reasonable preferences‘ takes one no further towards an answer to this conundrum than the notion that the council’s own commissioning of services must be objectively reasonable – ie not stopping provision at 6 o’clock at night, just because the local market price goes up, at that point….
Conclusions on the law – what’s worth fighting about, if you are a customer, in legal terms?
I am not saying that a person has a right to be paid a personal budget in the sum of whatever they might demand. Nor that they are entitled to have their wants met for merely being able to articulate them. Nor that a massive difference in price, via different deployment routes for whatever market forces reasons applying in the area, would not be a legally relevant consideration to take into account, in finalising a hotly disputed care plan, with a service using customer.
However, I can’t wait for a council to be challenged for saying “Sorry, but you can’t actually have a direct payment, because it will cost us more that way, than it could cost us, if we only bought it in ourselves; we are saying that a direct payment is not an appropriate means for meeting your needs in this case, because of the cost implications”. I don’t think that cost can determine a question of judgement about what is an appropriate means to meet needs – it would mean that there was no real notion of a right to a direct payment at all!
Or for saying “Take this £x – or leave it” to a person who can show that the exact same quantity of the service response that the council would have had to budget for, will cost a small amount more, if bought with a direct payment, from a local provider….
Justifying how either of the stances criticised above, promotes someone’s wellbeing, when one of the s1 factors is control over services, and another is economic wellbeing, should be a challenge worthy of a very senior manager, I am hoping!
Bring it on! – so that we all know what the law is supposed to be – is what I say!
Hopefully a helpful note for councils!
The example on p 193 of the guidance, in para 11.28, please note, involves paying a direct payment client some 35% more than it would have cost the council, but for a markedly DIFFERENT service from a different agency, and one with an element in it that no council could ever be required to buy.
So what that example is seeking to illustrate cannot conceivably be the USUAL every day approach to care planning in my view – merely one that is legally OPEN to a council, occasionally, if it is generous enough to dip into its reserves and call it ‘Best Value’! This is funding a want and not the meeting of an eligible need, in my analysis. But it’s still legally correct to say it’s important for councils to at least consider adopting this approach, sometimes, because they do have powers to meet needs that are not eligible – in s19 of the Act. But I bet it doesn’t happen too often in real life!
Apart from the fact that the money is getting tighter everywhere, and not more plentiful, I am really hoping too, that no council would pay out 35% more than was necessary, simply on a “He who Shouts Loudest” basis. If so, we would have taken a GIANT step back, towards anarchy and arbitrariness, and away from the Rule of Law – sorry to sound pompous!)
Points for providers
In the meantime, before case law starts to emerge, providers everywhere may be being asked to tender, or if selected, to sign up to council contract terms on the basis that they will not charge other clients (if council funded) more than they charge the actual council.
I don’t think that that works, in terms of the law of privity of contract, and I would encourage providers to think twice before agreeing to go that far. But I do think that providers might be asked to compete for tenders on the basis of VOLUNTEERING to self regulate in that way, as an aspect of social value, under the 2012 Act, and in light of the loosening up of procurement law, which occurred earlier on in 2015…