Category Archives: Dodgy v Defensible?

Look at how bad the workforce feels – PLEASE let’s change this and turn knowledge into power!

Community Care has quoted in full a letter from a worker in the statutory sector – from Norfolk, currently under scrutiny for disregarding the Care Act (NOT the worker, the council!!)

“Senior managers and councillors are not standing up for us and challenging government decisions. They are not making a stand against the attacks on our services. They are not being supportive of us as frontline workers. I can’t remember the last time we saw a senior manager in our office, asking if we are okay and listening to us.

Instead, we are told to find more cost-effective solutions, which are usually dressed up in fancy names. We have the ‘Re-imagining Norfolk’ strategy, which is about bringing the private and voluntary sectors in and looking for more ‘creative’ ways of meeting need. They dress these projects up in policy decisions, but we know they are just providing a smokescreen for the cuts.

This is causing demoralisation. Social workers are frustrated. We are professionals who every morning go to work determined to do the best we can for our service users and arrive to find our hands are tied. We are overworked and our caseloads are too high.”

 

This is the reason that I am launching webinars that are so cheap that no council or social work degree provider will really have an excuse not to introduce them.

There is a legal obligation to keep public sector staff competent.

Yes, I know that if they are competent in the Care Act they might actually end up promoting the odd person’s well-being in a person-centred way, and funding a care package for sufficiency – and that that risks making good training into an unpalatable thing to organise for one’s staff – but guess what, it has to be done!!

That’s why I am offering to do it for the whole of a council’s workforce for £1500 + VAT over bite-sized 2 hour chunks of training, building up, digestibly, over a year. They can even extend it to the whole local provider sector for between £3-5K, if they are really committed to delivering on the Act’s promise.

My workaround for it not being something that councils’ management would actually WANT its staff to have, is this: £10 per webinar per person, and 12 for £90 – on the footing that one’s responsibility for ensuring one’s knowledge base is up-to-date IS a responsibility one owes to oneself – as well as the clients, even if your employers won’t pay you back for it. You can buy them online at www.SchwehrOnCare very soon, and pay with a card, and listen to the recording, in the privacy of your own home or even in the car!

And my advice to the poor public sector workforce, is this: get just a bit better at being legally literate, follow your commitment to the HCPC requirement to flag up breaches of the law, and move ON, on to a council that bothers to take a stand, before you lose your will to live.

The wonderful world of Wednesday webinars…..at £10.00 a go!

As a trainer, I’ve got a bit fed up with councils wanting to buy half days for training, instead of full days – given that I talk fast at the best of times, let alone when the same amount of material has to be squished into half the time, for half the fee!

And I’ve got tired of waiting for new Care Act case law to start flowing, to remind councils that law is what governs what they do, not just how much money, or how many employees, they’ve actually got left.

So I’ve decided to turn to the people, and the providers (in all sectors) to spread this message, instead of the purchasers (the councils) whom I have hectored for 15 years about managing legal risk by doing things properly. The mechanism is going to be via Belinda’s Wednesday Webinars….

Webinars are interactive lectures, where you can see the materials, hear the lecturer, and either speak or type a question – and get an answer in real time.

The first is on 2nd March, at 10.00 a.m. for Community Care, to kick off in a timely way – looking at Care Act reviews and advocacy rights.

NB folks: Here, after the event is the webinar recording: Webinar Recording and here is a link to the prices, terms, logistics, scope and general details of the webinar series: Belinda’s Wednesday Webinar Details.

Looking at Reviews was timely because every existing social services client (and those on direct payments) is supposed to have had a review that considered eligibility against the new Care Act criteria, by April 1st 2016; and because formal independent funded advocacy rights can easily be triggered for revisions to people’s care plans! Another word for ‘revisions’, at this point, is cuts!

There will then be 12 more paid-for webinars over the coming year, all 2 hours long, on hot topics; and you get to access the recording via a protected log-in, afterwards. They will run on Wednesday afternoons, to encourage students to build them into their schedules as well. The recording can be accessed at any time in the following month – on any device that you like – and away from disapproving eyes or ears – as long as you also have a smartphone to get past the security protection.

I am hoping that this will limber up hundreds of people for a radical solution to the chronic lack of understanding of the legal framework, that holds the sector back.

That first webinar is going to be FREE to all Community Care registrantsRegister for 2nd March webinar –  but after that, on the first Wednesday afternoon of every month for a year, I will be selling webinars and the recordings, to anyone who wants one, for £10.00 + VAT.

Of course there will be corporate subscriptions too, which will include access to the Q&A part of my ‘serious’ legal framework site, www.careandhealthlaw.com – but just for now, please think about the implications for individuals….

Even if your college doesn’t teach the Care Act in any depth, or your statutory sector employers think it would be better if staff didn’t understand it; or your advocates don’t really know how law works, so can’t challenge dubious decisions – or your poor care home or agency managers are so stretched that they just give in to cuts being imposed on care packages, YOU’LL BE ABLE TO AFFORD TO LEARN, FOR YOURSELF, FOR THE SAKE OF YOUR OWN CONSCIENTIOUSNESS, AND FOR FUELLING YOUR OWN CAREER DEVELOPMENT

The idea is that the more people who know the full extent of their real legal rights, and the council sector’s obligations, (regardless of the state of the council budget) then the more inevitable it will become that councils will simply have to comply with the law, even if there is no further interest in using judicial review to challenge positively eyebrow-raising decisions or policies….

Please spread the word, and register for the first FREE webinar, where I will be making the details of how the new service will ultimately work, much clearer. 

Go to this link here for the webinar recording: Webinar Recording and here is a link to the prices, terms, logistics, scope and general details of the webinar series: Belinda’s Wednesday Webinar Details

 

 

A great way to raise awareness of social care meltdown!

People who followed the passage of the Care Bill through Parliament in 2014 may not remember the small hoo-ha about the proper role of CQC, in relation to inspecting council direct provision and the commissioning side of their functions. That is, the social work decision-making and funding side – the statutory side that used to be inspected, by the Social Services Inspectorate and then by various Great and Good People and then by CQC, at the height of the Performance Management era (the ratings era).

CQC’s inspection coverage still extends to direct provision of services by those few councils who still retain in-house services. But the debate in 2014 was about whether CQC should inspect the council’s discharge of its statutory functions, as a regular part of its role.

It was decided that that was not ‘necessary’; and instead, section 91 of the Care Act substituted a new section 46 (periodic reviews) in the Health and Social Care Act 2008, and amended section 48 (special reviews).

Those changes in the regime for accountability must have come to the notice of Equal Lives, a collective of user-led groups in Norfolk. They are fed up, to say the least, with the way the Care Act has been delivered in that county, from their perspective, at least.

They have called upon CQC to use its power to conduct a special review into Norfolk’s alleged disregard for the law, citing unexplained cuts to people’s personal budgets, and processes and attitudes that have been embedded, which they believe to be unlawful, under the new Act. See here for the article in Community Care Article on Equal Lives’ referral to CQC

Whilst use of this route is a welcome addition to other steps that can be taken by organisations as well as individuals (ombudsman referrals, referral to Healthwatch and the local Health and Wellbeing Boards, referral to the Safeguarding Adults Board, and a public interest application for judicial review, to name but a few) the changes to section 48 make it clear that CQC’s powers to inspect councils’ performance are  subject to the approval of the Secretary of State. 

The Director of Norfolk’s adult services directorate has said that he will commission external review; CQC is considering its position. I think that people may need to press their MPs to ensure that the Secretary of State, the beleagured Jeremy Hunt, makes a decision on this referral that is consistent with all that has been said by him and his department about saving adult social care. I shall certainly be doing so: he happens to be my MP! 🙂

 

20120511 02 Big Society Belinda Schwehr Jeremy Hunt

“Google it” – how NOT to do advice and information

Those local authorities working hard on implementing the Care Act know that section 4 says that
“A local authority must establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers.”
Those who have read a little further into section 4 know that this service must provide information and advice across an extensive range of areas, including of course essential information about how the social care system under the Care Act operates in that local authority’s area (s.4(2)).

Having been in the room when several local authorities were struggling with working out how they might go about collecting and co-ordinating all the necessary information I am well aware that this is a demanding new requirement on local authorities. Many authorities have worked hard on innovative ways of drawing together information and have been disseminating their shiny new leaflets, posters, websites and other resources since the beginning of this year.

Not so everywhere however.

Just last month (4 months after the Care Act came into force) a client of one local authority was told that her care package was going to be reviewed and that a new assessment would be carried out under the Care Act. She had the temerity to ask for details of that authority’s assessment process under the Care Act.

The response she received (now framed for posterity on my wall) would seem to me to fall a little short of what the Care Act had in mind. Attached to a copy of her previous assessment, on a compliments slip bearing the local authority’s letterhead were the handwritten words:

“Information re: the Care Act can be found via the internet.”

An in-depth analysis of the first case under the Care Act…

R (SG) v London Borough of Haringey (decided in early August, as publicised by Community Care) (SO sorry for first saying it was Hackney! Am losing capacity from Care Act craziness….)

This case decided at least three important things:

  • Absence of Independent funded Advocacy where the right has been triggered, or could not reasonably be denied to have been triggered, renders an assessment invalid (see earlier post);
  • There is a legal need – at the care PLANNING stage under the Care Act – to consider (correctly, in terms of legal precedent) whether eligible needs are ‘accommodation-related’, in the case of someone who may be prohibited from such assistance by reason of immigration status;
  • The old law on what constitutes ‘accommodation-related’ eligible needs, should be regarded as still correct, and should be followed on the same principles as before.

Introduction

The claimant was an asylum seeker, both before and after the coming into force of the Care Act. By the time of the hearing, she had been granted asylum, but she challenged two decisions, one made in January 2015 and one made in May, ie one under the National Assistance Act and one made under the Care Act, that she had needs for care and attention (which counted as eligible needs under the Care Act) but was not entitled to accommodation through these social care functions.

An earlier post considers the significance of the advocacy part of the judgement but this posting analyses the harder part – the issue related to whether the woman needed to be provided with accommodation or just other non-accommodation services IN her NASS provided accommodation, whilst still an asylum seeker.

The judge declined to make a decision about the pre-Care Act January decision because as soon as a person has had a Care Act review, then they are to be provided for (if both eligible and owed a duty) under the latter Act, making looking back into the past generally a redundant exercise.

The post-Care Act May decision was firstly made on the basis that the claimant was not entitled to receive accommodation under the Care Act, because she had accommodation available to her (the NASS provided accommodation). The old law had always been that one had to ignore the accommodation provided by NASS when deciding whether care and attention was otherwise available under the NAA.

This judge held that that is STILL the law, under the Care Act. The council had conceded that point, however, at the hearing.

Haringey asserted that since this was a service provision dispute only the pre-action protocol at paragraph 3.1 suggested that there was  an adequate remedy for this under the Council’s complaints procedure. The judge said that ‘in my view, it is not adequate to deal with contested interpretation of legislation’, which has always been the preferred analysis by public lawyers.

The contested issue

The claimant had a wide range of signficant inabilities under the eligibility criteria, and she had Care Programme Approach needs as well. Although they described her as not eligible, the council seemingly accepted a clear duty to provide services, both before and after the May decision, but not by way of accommodation through its new Care Act powers.

The meaning of NAA ‘care and attention’ (and what needed to be considered for people potentially prohibited from receiving services by reason of their immigration status unless not solely needy through destitution)

The old case law under the National Assistance Act was to the effect that the need for care and attention had to be at least accommodation-related – not just a need for a fridge, or other physical assistance, for instance. It did not mean that the care and attention could ONLY be the kind that could be provided by a specialist setting such as a care home. But the old case law established that a need for ‘care and attention’ simply had to mean something more than ‘accommodation’ – section 21(1)(a) was not ever intended as a general power to provide housing.  The natural and ordinary meaning of the words ‘care and attention’ in this context was ‘looking after’, meaning doing something for the person being cared for which he could not or should not be expected to do for himself: it might be household tasks which an old person could no longer perform; it might be protection from risks which a mentally disabled person could not perceive; it might be personal care, such as feeding, washing or toileting…The input had at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or would be effectively useless if the claimant had no home.

Having summarised the old law, the judge said these principles continued to apply under the Care Act, in his opinion:

(a) the services provided by the council must be accommodation-related for accommodation to be potentially a duty;

(b) in most cases the matter is best left to the good judgment and common sense of the local authority;

(c) “accommodation-related care and attention” means care and attention of a sort which is normally provided in the home or will be “effectively useless” if the claimant has no home.

The public law mistake

The real failure on the part of Haringey was that it failed to ask itself the right questions. The judge found no evidence at all that the defendant ever asked itself whether, even if the necessary services could have been provided in a non-home environment, they would have been rendered effectively useless if the claimant were homeless and sleeping on the street. “This is so despite the fact that it was acknowledged that it was “agreed that [the claimant] would benefit from some structured activities to minimise her PTSD symptoms but before that she needs help with the very basic practical support before she can be referred for more structured activities.” I thus think that the care plan has to be redone.”

So, this is the first care plan struck down for failing to consider all relevant considerations or for error of law, as well as having been derived from an invalid assessment for want of mandatory advocacy….

The judge quashed the council’s decision such that it would have to re-assess and re-care plan. But he gave his view that only two of the various services being given to the woman were accommodation-related. All the other council provided services were to do with learning support, counselling, advice, escorting, language support, and management of appointments. However, she was already being

  • visited at home by an officer and her home environment was checked;

(b) assisted with domestic and practical tasks in the home by other women who lived there and by the officer;

Interestingly, notwithstanding those two aspects, the judge thought it could still be lawfully within the discretion of the local authority to decide that it was not appropriate to meet needs through the provision of accommodation.

He did not tell the council how to go about articulating that sort of conclusion, though!

The result

The judge ordered Haringey to accommodate the woman in suitable accommodation at least until a number of days after a decision would be re-taken by the Haringey Vulnerable Adults team, in respect of the woman as a legitimate asylum grantee (the idea being that she would in all probability now be accommodated in supported living services because of her mental health needs).

This would be done under Housing functions under the 1985 or 1996 legislation, as a vulnerable adult, (if she had capacity to make an application for public housing), or through the power to provide accommodation, pending a concluded s9 assessment, under the Care Act.

Finally, the judge ordered Haringey to pay 75% of the claimant’s costs so the legal aid she had been funded through, was paid back, in large part.

Important Postscript

The case of R (MT) v Oxford City Council [2015] EWHC 795 has been decided this summer too, and establishes that an incapacitated person with a deputy CANNOT apply for public housing, and can ONLY rely on the social services function of provision of accommodation (ie via a placement, not a tenancy signed by the deputy).

We are not sure, but we think that this must be seen by housing policy makers, as a judgement which drives a coach and horses through joint working between housing and social services – eg in relation to very many severely cognitively impaired young people who have been decanted from NHS accommodation and who now HAVE deputies, or single orders from the Court of Protection with regard to the signing of tenancies in housing association accommodation, to which they were directed through housing legislation.

If a deputy can sign an ordinary tenancy outside of housing legislation nomination or introduction, and an incapacitated person can get housing benefit, based on the doctrine of necessaries, (Wychavon) it seems to me to be essential for maximisation of income and normalised lifestyles, and minimisation of expenditure through LOCAL authority funds, as opposed to Housing Benefit, that a deputy CAN make an application for public housing, as homeless or by way of joining the ordinary housing list. Yet the judge refused leave to appeal.

 

NB Belinda won’t be blogging at this length on every case under the Care Act, please note. These sorts of notes go into the free legal database on www.careandhealthlaw.com, but she was so ecstatic that there’d even been one, that she could not stop herself, just this once.

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!

 

 

 

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!

Parallel universes

Somewhere out there is a parallel universe. In that universe (let’s call it Universe B), laws work rather differently.

The Care Act is passed and councils are given information and some (admittedly limited) lead time to prepare to implement this new law before it comes into effect on 1st April 2015. Anyborough council is vaguely aware of these developments. But, in Universe B, where Anyborough council is located, laws are merely interesting suggestions and not really laws at all.

Anyborough council decides that it will review its ways of doing things, its policies and its forms in its own time and at a leisurely pace. After all, “coming into effect” just means that they could consider doing things differently at some time after April 2015. If they fancy it. When the right staff are in place. When policies come up for review on their internal rolling schedule. When someone digs the right piece of paper out of the bottom of the filing cabinet.

When clients mention the Care Act, Anyborough council staff look carefully at the council policies to see whether their council has decided to opt for that particular provision in their latest policy draft. Or not. Because, here in Universe B, Anyborough policies are absolute and must be abided by in all situations. So if an Anyborough policy and the Care Act should disagree, then clearly the law was merely an aspirational suggestion and not to be taken seriously. Whereas of course, council policy is the way the world works. Period.

Unfortunately for Anyborough council, the courts which judicially review the decisions of councils in Universe B exist in Universe A. In Universe A there is this rather funny idea called the Rule of Law. In Universe A, local councils have to abide by laws passed by the national parliament whether they like them or not. In Universe A, local councils are free to make policies and to exercise their discretion only as far as the law says they can. And in Universe A, laws come into effect when parliament decides they do.

Sooner or later, I fear, Anyborough council may have a rather traumatic experience when it finds Universe B colliding with the reality of Universe A. Perhaps it would be less traumatic for Anyborough Council to consider taking up ordinary residence, voluntarily, in Universe A, before that happens?

 

 

 

Charging before a financial assessment is carried out?

I have come across a case of a client being sent an invoice (and a demand for immediate payment) before the care planning process has been completed and before a financial assessment has been undertaken. This appears to be the usual practice of the council in question. The amount seems to be quite moderate. It could be argued that this is a nominal amount. And I can understand the rationale. Presumably, and understandably, the council’s intent is to make it clear to the client as early as possible that social care is a chargeable service and get them acquainted wth the idea of paying for it.

So far, so good. The difficulty is I can’t find a lawful basis for this under the Care Act!

If services are already in place at this pre-completion of the care plan stage (and they are in the case in point) then I can only see two potential scenarios.

(1) The services are being provided under s.19 powers to meet ‘urgent needs’. This is the most plausible legal basis for the service currently in place in this case since a positive eligibility determination has already been made. If this view is correct, then the power to charge for them comes from s.14. But the s.14 power is dependent on a financial assessment under s.17 and it is clear from the wording of s.17 (“thinks that it would charge“) that the financial assessment must be carried out in order to determine the level of charges before charges can actually be levied.

(2) The other possible view (though with less basis I think) would be to argue that the services are being provided as preventive services under s.2. There is a separate power under s.2 to charge for these services and use of this power does not require a financial assessment under s.17. So fine then? Well the problem is that Reg. 3(2) of the Prevention Regs requires that “(2) A charge must not reduce the income of the adult concerned below the amount specified in regulation 7 of the Care and Support (Charging and Assessment of Resources) Regulations 2014(A) (minimum income guaranteed amount).”. Given that no financial assessment has been carried out and no financial questions of any kind have been asked of the client to date, how can the council possibly know that the charges it is demanding would not reduce the adult’s income below the minimum income guarantee level? I cannot see how a council can get around this without carrying out some sort of financial assessment even to levy charges for a preventive service.

So, I sympathise with the rationale, but I think this approach may need some reworking. The trouble with invoicing people for charges without a statutory basis for making the charge is that there aren’t going to be any options, if clued-up people decline to pay.

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!