Category Archives: Commissioning

Ensuring that your personal budget is legally sufficient…

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…

 

Is there something extraordinary, about the new “ordinary residence” regime….?!

Ordinary residence is a concept that is used in social care law to tie a person to a particular council for the purposes of determining which council has to fund their assessed eligible care and support needs.

The legal meaning of the notion of ordinary residence has always been firmly tied to a person’s intention – their intention to live somewhere, for every day daily living purposes….

So, in order for a person’s ordinary residence to remain with one council, if they physically move to another, one needs to find a special reason in the rules – or some fact which negates their intentionality, which would otherwise be inferred from their upping sticks and moving.

For instance, an example of the latter is a person’s moving away for a specific work contract, whilst leaving all their stuff and status in place in the old area, like their possessions, their council tax payments, etc. Their move is temporary only. Of course a temporary move can become a permanent one, if their intentions change once they get there; and a person’s arrival on day ONE, somewhere new, can signal the most clearly permanent intention to move – there’s no fixed time in a place required, for setting up one’s shift in o/r, if one’s mind is made up.

An example of a special reason in the rules, however, is that of DEEMED continuing ordinary residence. That concept is the exact opposite of the ordinary rule – that is, one is deemed to remain o/r with one’s old authority DESPITE one’s intention to live elsewhere for ordinary every day purposes being categorically clear.

That’s always been the rule for those being PLACED (ie contracted for by a council) in a care home, or PLACED in supported living setting (unregistered accommodation) without a valid tenancy and agreement to pay the RENT, having been understood by the person him or herself (or by a lawfully authorised deputy or attorney if the occupant personally lacked capacity to understand the contractual obligations s/he was agreeing to be bound by).

The new Care Act regulations extend the application of this DEEMING concept to people moving to certain kinds of supported living, whether or not they have a tenancy which they are paying for themselves or through Housing Benefit – or have been formally placed there under a council contract for the accommodation fee as well as the care – and this is where it gets surreally difficult to follow the idea behind the changes.

The definition of the types of supported living within the regulations for deeming is not clear – one of the several formulations is that it has to be premises intended for people with care and support needs where personal care is available if required.

When one considers that personal care can be made available to anyone who’s eligible in relation to the three ‘outcome’ areas related to personal care inabilities, in the eligibility regulations, and wherever they live, if it is required, through an application for care services under the Act, and that the intention bit of the definition is unspecific as to whose intention we are supposed to focus on (- we think it can only mean the landowner’s intention) – you can see how continuity of specialist care funding and a person’s transition from one place to another is going to get HARDER to be clear about, not easier.

And what does ‘available if required’, really mean? Is personal care ‘available if required’ for instance, in one person units in a block, all occupied by people with learning disabilities and epilepsy, where there is no sleep in space and no registered provider of personal care on the premises? The regulations appear to be based on the belief that Supported Living is a concept that means one thing, all over England.

But it doesn’t. Supported Living is the euphemism we used for 30 years under the old law, since the ‘NHS decant’ projects first started in the 1980s, for home care services (non-residential packages) going INTO accommodation which counted as the person’s own home, through ownership, or rental (tenancies).

  • It includes settings owned and operated by both registered social AND private sector landlords
  • The only clear rule is that the basis of occupation must be legally and factually separate from the arrangement for care, even if the direct landlord is the same entity as the provider of the care.
  • If the arrangements are legally or factually integrated and mixed up (for instance, the tenancy obliges the person to have care, or pay for care even if they don’t accept it, or obliges the person to accept care from the landlord’s personal care business, or from any agent operating on their behalf) then the package is a package of care together with accommodation, and would count as a care home. If unregistered, CQC has to uphold the law and would have to prosecute the unregistered provider, who would blame the council, inevitably, for manoeuvring the provider into letting to people ‘nominated’ by the council.
  • That’s why there can never be any expectation of the landlord or their associated care provider inevitably being chosen to be the provider of care: the tenant may want a direct payment to purchase services from someone else, although logically, the provider entity on site or very close by should always be the cheapest and therefore the one the council WANTS the person to be happy with.
  • Where the arrangements are properly separate, then the landlord can be the same person as the care provider, so long as he, she or it is registered with CQC for the provision of personal care to a person in the place where they are living.
  • And that covers any provider of services if what they are doing involves personal care, defined in the Scope regulations as extending to prompting together with supervision, of personal care tasks.

And aggravation from all this behind the scenes legal stuff leaves out of account the other very ticklish problem that has been brought about by the wording of the regulations. Even if the premises you are moving to, ‘fit’ the defintion, you are only seen as deemed to be of continuing o/r, with your old authority, if you are a person who has been said in your care plan to have needs that can ONLY be met by moving to that particular kind of accommodation.

Not assessed in such manner, please note, because WE DON’T ASSESS FOR SERVICES, UNDER THE CARE ACT!!

No, the magic words arise at the care planning stage.

How hopeless is this, I have to ask (- and I did shout loudly about, to the DH, well before D-Day for the Care Act) – for the poor social care professional faced with a care plan document that doesn’t even have a space on it for that formulation?

  • If they put the magic words down, they lumber their council with deemed continuing ordinary residence responsibility for the foreseeable future!
  • Even harder, when the very week before the move, the person was happily living in a care home, and has not been the driver behind the move to supported living: how can a practitioner POSSIBLY say that supported living is the only type of accommodation that can meet the person’s needs?
  • Even harder, if the person hasn’t moved at all, but the building has just de-registered!!
  • Impossibly hard, I am thinking, if the person in question wants to move out of area where the only suitable provider is twice the price of a provider in the area – a provider who is arguably suitable, at least, to meet the assessed eligible needs, in borough. If the person is to move as a tenant, ie directly responsible for the tenancy obligations, they will not get Choice of Accommodation under the parallel and similarly though not identically worded regulations for that notion – because they will have GOT choice, by signing the tenancy for themselves or through a deputy. Without the magic words on the care plan, they will be stuck in limbo between two councils, neither of whom wishes to treat the person as their legal funding responsibility.

The trouble that this all points to, is lack of public debate about the purpose of the changes, in my view.

Sure, I understand absolutely that councils were fighting the building of bespoke supported living developments on their patch, because they magnetised people with extensive care needs to the area – and their o/r changed when they came as tenants. If the old council now remains responsible, then logically, it should all be fine, and the nation’s housebuilders can start building again….and care homes will need to look lively, and diversify…

But the pre-Act rhetoric behind ‘continuity’ policy was pretty non-specific – circling round the idea that people with disabilities should be able to live ‘wherever they want to’, just like the rest of us. That’s not even true, though, for the rest of us, is it?!! We all have to cut our cloth in proportion to our means, and living in Chelsea just ain’t the same as living in Blackpool, rent wise,even if we haven’t got care needs. If we have special circumstances in our lives, that compel some planning, before packing a suitcase, then of course we have to think about what we’d be entitled to get when we got there. And if the rent is going to be oddly low, because of HB being seen as the route for paying for it, and because the specialist provider is the only one in the area to be able to cope with specialist needs autistic, or personality disordered, or epileptic clients, then of course the CARE costs are going to be unusually high. This is not rocket science.

Conclusions for now!

In conclusion, the three most serious legal issues are these:

1. Can a council lawfully apply an In Borough provision policy, in general, and in particular, to an individual person who is eligible, given that the deeming rules exist and seem to enable a person to move whilst remaining tied to their old council, supposedly for the benefits that that brings?

Can the council KEEP them there, on grounds of cost, and still be said to be promoting their wellbeing? (that question is asked, leaving aside the separate and pre-Act Human Rights issues, and the links the person may have in the area where the council organised for them to be schooled until they were 25!)

We all know that best value and cost is legally relevant to HOW to meet needs, but that’s cost in relation to needs. What if the person WANTS to live in a particular area, as a tenant, but cannot actually hope to establish that they really need to?

2. And where is a person ordinarily resident, if they have got fed up of waiting for the old council’s commissioner to persuade/bully a provider, elsewhere, into accepting a bearably low care fee, and the person has just upped sticks and bloomin’ well gone, signed the tenancy, and moved in?

Remember, in those circumstances, they won’t have got a finalised care plan with the magic words on it, so “It’s not US”, the old council would say – but the new council won’t have thought to budget for people coming in these circumstances, and won’t want to start paying the fee of the provider that it has long loathed for having had the courage to take a business risk and build this kind of provision, on that council’s patch! In that situation, the continuity provisions in ss37 and 38 may be the only ones that can apply!

3.  The third one is too much for me before caffeine – it’s how these rules fit in with the status of a s117 Mental Health Act client, who might have been provided with this sort of specified accommodation before they were sectioned, and thus not need accommodation in their s117 Care Plan. Another day, another blog for that one, methinks!

The Care Act was supposed to simplify matters for people with disabilities and for councils too, remember!! I don’t quite know how it came to this, therefore, when we had 3 years to sort this out, before the Act came into force.

For me, though, the one good thing is that the statutory disputes resolution process in the Care Act for councils fighting each other will mean that the Secretary of State has to make the decisions, according to the rules and guidance that the Department of Health itself drafted! 

That should be interesting, then! The DH is committed to publishing its decisions, but they themselves can be judicially reviewed, if they don’t get the application of the law correct!

For now, the practical consequences are these:

  • RSL and other Housing Providers aiming to provider care in the setting will have to have contractual relationships with commissioners from all over the place, instead of just the one, on the spot;
  • Young persons’ transition workers will have to understand the law of ordinary residence much better (and we are still awaiting the Supreme Court’s decision in the Wiltshire v Cornwall v South Gloucestershire case, I think);
  • Very high cost specialist care providers will have to decide whether to let people into possession or not, without o/r being agreed – then getting one or the other council, somehow, to seek an interim injunction from the Administrative Court to enforce care funding from SOMEONE in the meantime!