Category Archives: Direct payments

What’s SCIE going to do with this complaint?

Equal Lives and Norfolk’s implementation of the Care Act

Equal Lives’ Users’ complaints about Norfolk’s alleged illegality under the Care Act can be found on the group’s website. I’ve had a look at them (for free!) to see whether there’s evidence of flagrant breaches of the Care Act and the public law principles that underpin all local government functions. You can do so here: https://equallives.org.uk/?attachment_id=13293

When SCIE starts its LGA funded review it will need to probe the relatively brief details that were put together by the Group, in fairness to Norfolk, but also ask some more questions of the people who came forwards.

Problem no. 1 for SCIE is that to do this probe in a proper way, one needs to know some public law principles, because with law, and especially with public law and open texture of much of the Care Act, there’s a lot of scope for disagreement, without a lack of an agreed care plan or budget, automatically meaning there’s been illegality. An investigator can’t hope to ask the right questions of staff, management or complainants, unless s/he knows the legal principles, it seems to me.

With statutory duties and discretions, the most likely risks of being challenged for acting unlawfully will arise from a council’s

  • Not doing its duties at all, or taking unfeasibly long about it – eg
    • Not providing formal funded independent advocacy where it is acknowledged to be necessary and an entitlement, within the regulations;
    • Not providing written reasons, when the law or the regulations say that these must be given (ie as in s13 for any decision about eligibility);
    • Stretching the assessment phase out, by offering ‘prevention’ again and again, without coming off the fence about the eligibility question;
    • Never finalising a care plan, for want of agreement about the size or content of a proposed care plan – just offering ‘reconsideration’, again and again, and never actually saying ‘This is our decision – we think we’ve done our job now’.
  • Not exercising powers, or not making decisions about duties that turn on professional judgement, sensibly, or ignoring the statutorily underpinned guidance, without a very good reason!
    • Failing to consider the power in s19 to meet need even if the person is not eligible – the Guidance refers to why doing so might be best value or good for prevention or simply to promote well-being;
    • Running a lawful waiting list for a scarce resource – but based on alphabetical order, instead of need;
    • Not giving reasons for why an offered package or budget is considered to be enough…when the guidance clearly says that reasons should be stated, and the pre-existing case law such as Savva and KM makes it unarguably unlawful not to;
    • Leaving an eligible person without services, whilst their package is argued about, contrary to the Guidance!
  • Not discharging council duties within the words used in the Act or Regulations – or ignoring the statutory purpose – eg
    • Failing to allow a person to require the involvement of a nominated person, such as their existing advocate, in a social services decision, where this is required by the person – see s9;
    • Imposing a condition on a direct payment recipient, as allowed, but where the content of the condition actually negates the whole point of the offer – choice and control.
  • Fettering the discretion of the council or its staff, or not doing decision-making fairly, so far as the implicit rules of procedural fairness are concerned…
    • Failing to consider giving a person direct payments to spend on care services from a close relative in the same household, by having a rule internally that says ‘We never do that…’;
    • Not allowing a person to make representations or provide evidence, about what they say is wrong with the suggestion that a service available for free, locally, could and should be seen, as able, appropriately, to meet a person’s needs.

With a new piece of legislation, in an era of unprecedented central government cuts, the real risk to a council comes from its senior and middle management and front line staff not understanding what’s changing, or where to check that out – through lack of training or motivation – because if staff don’t know what they don’t know, or when they are on a legal wobble…they will openly say to members of the public things like ‘We have to bring the package in on budget, we’ve been told that there’s no question of raising it’ – which in itself is enough to get a council judicially reviewed. Or ‘You have to rely on your neighbour/friend/relative – regardless of what you think of that or of each other – because there is no more money since the cuts’. Ditto.

The Equal Lives users’ complaints

All of the complaints have cuts in common – and not just small cuts, but massive ones – the sort that a judge MIGHT regard as so surprising, that the threshold for at least permission for judicial review would be met. Whether or not the cuts would be justifiable, however, would be a matter for the judge, depending on the council’s recording, or evidence. If the evidence that what’s been allocated is not enough, objectively, in credible professional terms, to meet the assessed eligible unmet needs, then that’s unlawful.

Taken at face value, from the website, all of the complaint examples have an absence of defensible reasons in common – either in writing, or even, in some cases, even verbally, and this is very likely to be unlawful, given the Care Act requires reasons or even written reasons for findings of non-eligibility, and for refusing or removing direct payments  – and the Guidance requires transparency about sufficiency and for reasons to be ‘stated’ if a person is not agreeing with their care plan or budget being enough.

Some of the complaints mention exchanges with staff who have either seemingly not been trained to deliver unpalatable messages in language that properly reflects the legal truth of the governing framework – ie explaining that the council is the decision-maker and can take its resources into account in relation to care planning, (subject always to not going over the judicial review line of unreasonableness, illegality or unfairness, that is) but must strive to promote well-being, be person-centred, and respect the private and family life of the client and carer. Instead, the staff appear to have been saying that ‘It’s the cuts and that there’s nothing that can be done about it’, which suggests, sadly, that either this is the truth, as they have been told by management, which would not be lawful – because a duty is a duty, regardless of available resources (if one can only be legally literate in the first place, about what that duty IS precisely!) and reserves have to be spent if a duty has been triggered – or that they’ve not been taught that however unpleasant the news is that cuts can be lawful, even if a person’s needs haven’t changed, there is a way of explaining what is going on that IS lawful, and which IS defensible. Much as I admire their honesty, it doesn’t bode well for morale if they do not know, or believe any longer, that the rule of law runs as far as Norfolk!

When cutting a care plan’s content, or the amount for a direct payment, to meet eligible needs, councils are not able lawfully to ignore a deterioration in condition or an increase in dependency. They don’t have to believe or adopt everything they’re told, by doctors or other people, but they must have an evidence-based reason for not doing so – not just the impact on the budget!

They ARE able to make cuts, but only by explaining either how the needs have been managed away for good, or how the impact has lessened so that it is not significant any longer, OR how a new way of meeting needs, even if it isn’t wanted, isn’t just being imposed to save money, regardless of what the person says, but only because despite what the person thinks of it, it is still conscientiously regarded by staff as adequate and appropriate.

One gets the strong impression from the complaint document that the staff concerned with the clients in question would not agree that they think that what’s being offered would amount to an appropriate response, in terms of social work values and consensus. That is, that they have been told what they have to say and do, because of the cuts that the Elected Members have passed on to the directorates tasked with discharging the council’s functions.

That is bad news for Norfolk, because once a management team’s views, and the real view of their staff, part company, the council itself lacks the all-important thing for defending itself in court, which is a rational, reputable evidence basis, for its decisions. The pre-Act case law says that if a council’s allocation panel wants to stick to a disputed budget, it must be the panel that grapples with the reasoning, and prepares to be cross-examined or scrutinised, because they could well be overriding the competent, trained and experienced professional who’s actually seen the client, the carer and the situation….and made their recommendation based on relevant considerations. Whilst having less money than a council had previously, is legally relevant to HOW to meet the need, the people allocating the money still have to be able to explain how it will meet need, not just that it ‘has’ to! The case law says it is the panel’s reasons that have to be given to the client, even if it’s the social worker who has to pass them on!

The Care Act guidance is referred to a good deal, in the complaint about what Norfolk has been doing ‘wrong’, and of course it must be recognised that the Guidance is not law. It makes a clear distinction between what must be done and what should be done, and what might be done by a council, reflecting the legal framework about the difference between duties and powers, and between ‘target’ duties to the public or to individuals, and legally enforceable duties owed to individuals. What most people don’t get, because they are not legally literate, is that all government guidance has to be written with an awareness of public law principles in mind, by people who know the relevant case law and what it has already established. So it’s a sort of manual for managing legal risk, passing on principles, but without flagging up that judicial review is there for people who need to challenge what’s been decided or offered.

So SCIE will have to say that where it appears that the Guidance has not been followed, it will give a chance to the staff and management in question to explain what their reasons were for departing from it. Whether the records will contain any defensible reasons that were actually in the minds of the staff at the time, remains to be seen.  I am intrigued, though, personally, to learn whether SCIE – the Social Care Institute of Excellence, after all, will publicise the legal principle that DH Guidance does not actually have to be followed if the council has a very good reason, and whether SCIE’s audit team think that lack of money from central government was a good reason for the particular departures that have been instanced by the complainants.

One of the complaints is about a person whose budget is removed on the footing that her partner and child can do the care. In the particular example, the parent is opposed to relying on her family members for care; it is unclear from the complaint whether they were willing, but it IS clear that the mother is capacitated to be refusing consent to their doing the personal care that she needs.

Of course it is correct that a willing and able carer can obviate the need for expenditure on meeting needs, but the stance that a child of 13 should be regarded as the means to meet needs without a Children Act assessment about being a child in need, as a young carer, and in the face of dissent from the person needing the care, is clearly sufficient to get a person through the permission stage into the judicial review court, in my view.

One case involves a client who has already been to the Ombudsman, which is interesting; her complaint was upheld, but Norfolk has not changed its position. The appropriateness or legitimacy of the findings of the Ombudsman are only able to be challenged if the council itself bothers to bring proceedings against the Ombudsman; simply doing nothing reflects a worrying trend taking shape in the sector (Tameside has just done the same thing), which is certainly unedifying, to say the least.

Whatever the position on illegality, several of Equal Lives’ examples needed to go to the Ombudsman as complaints of maladministration. The Ombudsman rarely forces people to use the legal route, even if their complaint reeks of illegality or irrationality or unfairness, because of the expense, the perceived risk of damage to the relationship with the council, and the state of health of the individuals concerned. One cannot go to the Ombudsman however, unless one has already complained, and it is not clear from the Equal Lives documentation whether this was ever done in the cases of the people whose stories on which the Complaint is based. It is correct, however, that the unusual referral route that the group took instead, to the CQC, for a special review, is well suited to User Led Peer or Support groups, and this remedy does NOT require one to complain first. Neither does use of the Monitoring Officer, the free and dedicated legal governance route that I have been highlighting on this site, as a better use of anyone’s resources – in any matter based on a coherent allegation of public law unlawfulness, rather than a mere complaint.

One of the most telling features of the Complaint is the effect on the mood, perceptions and well-being of the complainants, that the struggle with the Council has had. Take this one excerpt, for instance:

“So we spent the next few weeks and months going back and forth with amendments, arguments and counter-arguments. There has been absolutely no ‘personal’ aspect to this budget. It has taken far too long to process, communication from the team at the Council has been notable by its absence – the onus being on us to chase them up – and I feel like I’ve been left to fend for myself. I’ve still not had the budget signed off. I was absolutely devastated when Social Services told me what I eventually could have, with my Personal Budget – basically only a PA and a contingency. I told her that my college course was my only opportunity to socialise – she didn’t even realise that it had been okay-ed previously….  Cutting the remedial massage element (I was directed to my GP to find out possible NHS funding – a complete waste of both of our times) has been the worst thing they could have done. Before, I felt my health was manageable, my mood was better, I felt better able to cope with my chronic pain. But now I have gone downhill pain-wise, which in turn has greatly exacerbated my depression.  Working in tandem, my college course, massage, activities and short breaks made me feel more in control of my life and health. Now they have cut short breaks, we don’t have the ability to do anything that can get us out of these four walls. Cutting my travel allowance has made me struggle to socialise and relax. This has affected my health and well-being, my partner (who is also my carer) and our relationship. My days are spent in my home because my health has deteriorated. I don’t see anyone, I have nothing to look forward to, I feel isolated and like a non-person who has been left to make do.  I feel we have been misled and lied to from the very beginning by the very people who are meant to be there to help people like me, and I actually felt like stopping the whole process because of the inordinate stress it has caused… Why weren’t we given the courtesy of honesty from the very beginning? If the money wasn’t available, tell us – don’t string us along with empty talk of ‘well-being’, it’s insulting.’

I don’t know what SCIE will make of all this, but it must be of concern to the whole of ADASS and the LGA, I believe, if this sort of experience and impact is as widespread as my own, as a writer, trainer and campaigner, suggests.

You can alwasys tweet to SCIE and Equal Lives, using @equallives_org and @SCIE_socialcare and @1adass if you feel the need.

A cunning stunt for a council to pull, by way of maximising Choice and Direct Payments….

I heard of an interesting managerial wheeze today, which Jeremy Hunt, SCIE and the LGA and ADASS might like to consider, when focusing on Equal Lives’ complaint about Norfolk’s ignoring the Care Act.

It’s another council, not Norfolk, but here goes:

The council re-tenders for all its homecare, looking for just a few providers organised geographically sensibly to take over large patches of the council’s area, rather than the many that they have previously contracted with. (That’s not unlawful, so long as they bear in mind diversity of provision and do the procurement lawfully, of course).

The council says to the existing providers (and to the clients on care plans) as follows:

“If existing providers don’t get on to the new framework there’ll be a period of grace for them to persuade the clients (our clients) that they’d prefer a direct payment from us in order to contract with the existing  company privately – that’s how we give citizens ‘choice’.  The existing providers might want to think about ways to make that attractive, like offering to run the client’s direct payment account for them – so it’d be a bit like an individual service fund but the company would be doing the admin work that so often puts people off of direct payments, and ensuring that they will get paid. After that period of grace, however, existing clients who don’t want a direct payment will be transferred to our chosen new providers.”

That’s not unlawful either: there is no right in the Care Act to insist on a provider of your own choice, through a council commissioned budget. The choice the council makes for these clients has to be appropriate and adequate to meet need in terms of skill etc, but if as the client, you want a choice, you can take a direct payment. There is a case from the 1990s that says clients should be consulted before a change of provider is foisted on them to identify those that should not be transferred by reference to impact and dependency, so a blanket policy of transferring all Direct Payment refuseniks by a set date, is dodgy, but never mind that, for the minute. Let’s get to the point: the direct payment rate being paid to the council’s Care Act clients!!

The companies that don’t make it on to the new framework are all believed to be charging less to the council anyway, for the packages for the existing council clients, at the present moment, than the new rates to be paid to the successful providers, which one might think is bizarre in any event – why weren’t they successful on the new framework? (But no doubt this is something to do with the living wage, commitments to quality that the successful ones have made, size of turnover criteria in the first place, or maybe a premium for providing for banking the client’s hours if they are not wanted and reasonable notice is given – who knows?)

The unsuccessful providers, however, are all assuming that they can at least charge the clients who go on to a direct payment the same as what they used to charge the council for bulk purchased homecare  – which – guess what – is now a bit MORE than the direct payment rate that the council has now announced to the public. It’s a rate that’s about a pound an hour, more, but still more. And yet these clients are not going to be getting their needs met through employing PAs, without overheads. They are going to be going to agencies, the same agencies, for the exact same services that they used to have through the council’s contract. Despite this, the money allocated to them for their personal budgets has now been reduced.

This is dodgy: you can’t cut a budget without a proportionate re-assessment under the Care Act – s 27. It’s no good saying that giving the client a DP is just a new WAY of meeting need: it is a change to that affects the plan, without a shadow of a doubt, if it is blind to the fact that the rate won’t now be enough, nothing else having changed.

What’s going on here? Well, the clients who are keen enough to keep their current providers to consider a direct payment, tend to be people who are open to the assertion that since that’s their choice, they need to pay the small extra per-hour cost, as a top-up for want, not need. They are often so happy to keep their current provider that it does not occur to them that there’s a legal framework governing what has to be paid, in the first place, by way of a direct payment, in order to make the payment lawful. The council, in addition, says it’s not an hourly rate: it’s an overall amount for the services we think you need, plus a contingency, but even then, we’ve assessed the needs in a very outcomes based way, using our Resource Allocation System, so it’s up to each client to decide how they want to spend it.

Is this lawful? No WAY! The council has to do a care plan (s25) even for people with direct payments. The care plan has to say how the response will meet assessed eligible unmet need – logically, referring back to the assessment and the domains in which people were unable to achieve, and experiencing significant impact.

We all agree that there’s no real answer to the question ‘How much fun is enough?’ for a person, but we are talking homecare here, not recreation: the kind of thing that Dispatches covered a while back. I think we would all agree that there are some aspects of homecare that can’t be described without identifying how long it will take to meet the basic need/outcome, and this is all the more so, given a market that still charges by the period, because the staff are PAID by the period (and paid a minimum wage by legally counted ‘time’, by law).

The lawful rate for the person’s budget has to be transparent and sufficient to meet need. So the rate for the Direct Payment has to be rationally evidence based (even though that doesn’t mean worked out to the last penny on evidence that would be needed in a civil court!).

It has to be based on what companies are looking to charge individual purchasers for the services, by way of individual contracts, rather than in bulk. Commissioners are supposed to know those rates, because that’s the only way that they can have populated the resource allocation system within the council, when setting the figures for the relationship between pounds and points and needs, if they wanted a RAS set on direct payment rates, as opposed to a rate for their own commissioned services.

There is therefore plenty of room for challenge here. But by the clients, not the companies. And the vulnerable do not bite the hand that feeds them, in general. Moreover, in an era where the home care providers know no public law either and just want to keep the clients, on almost any basis, before the period of grace is over and all the others are taken from them, they won’t want to rock the boat and tell any of those potential clients that those clients may need to challenge the council’s notion of budgeting for sufficiency, and they probably won’t be talking to each other about what they’re charging, for fear of being accused of forming a cartel.

Truly magic, eh? This is how the discussion would go within the commissioning team: “We will make the clients into our budget savers, on the basis of maximising their CHOICE. And we will shape the market by ensuring that businesses have no option but to go along with what we are doing, by making the most of the fact that they’ll now be the ones managing the relationship with the customer, and won’t want to say no to looking after them, even for less than it costs them to pay their staff. We won’t have to consult them about the actual cost of care, because they’re not our contractors any longer, and none of the clients will be able to find out what other clients are being charged, as it’s all personal data.”

The only solution to this is to go back to the law – public law.

The law says that the council must be satisfied that it is paying enough. The assessment needs to detail the needs; the care plan needs to detail how the needs will be met. The Cambridgeshire case says that there must be a nexus between the needs, the points, the pounds and the cost in the market. And that this has got to be transparent so that the client can see if the council has done its job. The Savva case, brought against Kensington & Chelsea council, shows that the reasons why a final offered budget IS a lawful discharge of the statutory duty to meet need MUST be the panel’s reasons, and that they must be evidenced based. There is nothing in the Care Act to have changed those principles of judicially developed adult social care law.

So this is what clients have to be helped by advocates, user groups, and providers, to contend, using the Monitoring Officer route if necessary, to force out of all such councils – their evidence basis for their rate being sufficient – otherwise social care will be non-existent by the time we all need it, other than for private purchase by the rich and well- organised.

That’s not what any spin doctor can describe as a social care safety net, in any civilised country, to my mind.

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

I have had this enquiry in from an anxious parent:

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

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

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

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

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

This is my response:

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

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

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

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

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

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

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

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

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

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

Do carers have to take direct payments?

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

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

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

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

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

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

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

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

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

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

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

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

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