Category Archives: Due process

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The main points from the Interim Statement on the DoLS, now available 

http://www.lawcom.gov.uk/wp-content/uploads/2016/05/mental_capacity_interim_statement.pdf

Excerpts from the Law Commission’s Mental Capacity and Deprivation of Liberty Interim Statement

We have therefore concluded that the new scheme should focus solely on ensuring that those deprived of their liberty have appropriate and proportionate safeguards, and should not seek to go as widely as the protective care scheme.

The responsibility for establishing the case for a deprivation of liberty will be shifted onto the commissioning body (such as the NHS or local authority) that is arranging the relevant care or treatment, and away from the care provider.

The required evidence would include a capacity assessment and objective medical evidence of the need for a deprivation of liberty on account of the person’s mental health condition. The commissioning body would also be required to undertake certain steps such as arranging for the provision of advocacy (or assistance from an appropriate person) and consulting with family members and others.

By way of amendments to the rest of the Mental Capacity Act, we will also seek to maintain, as much as possible, the article 8 ECHR protections that were contained in the supportive care elements of the scheme, but in such a way as to minimise the demand upon services. These amendments will be aimed primarily at ensuring that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their own home and placing 9 them in institutional care in the name of their best interests.

We are considering whether a defined group of people should receive additional independent oversight of the deprivation of their liberty, which would be undertaken by an Approved Mental Capacity Professional. Owing to the vast number of people now considered to be deprived of their liberty following Cheshire West, it would not be proportionate or affordable to provide such oversight to all those caught by article 5 of the ECHR. Whilst we are still working to develop the precise criteria that would operate to identify this group, we envisage that this group would consist of those who are subject to greater infringement of their rights, including, in particular, their rights to private and family life under article 8 of the ECHR.

We do not consider that there is the same necessity to establish a bespoke general hospital scheme. We consider that our new system is sufficiently clear and straightforward to apply in any setting where a deprivation of liberty for the purposes of article 5 of the ECHR may occur, including hospitals, care homes, supported living and shared lives accommodation, and domestic and private settings.

We are persuaded that there should be no additional mechanism inserted into the Mental Health Act to cater for compliant incapacitated patients. The underlying policy aim of the provisional proposal can, instead, be achieved by providing that, if such patients are to be admitted to hospital (general or psychiatric) for purposes of assessment and treatment for mental disorder, their admission should be on the basis of the existing powers of the Mental Health Act.

In conjunction with the Department of Health’s proposals for a medical examiner system, this will mean that deaths of people subject to our new scheme are reported to medical examiners, who will be under a duty to make enquiries and refer the death to a coroner if the medical examiner forms the opinion that the death was attributable, amongst other matters, to a failure of care. The coroner will have the power to conduct an inquest in an appropriate case but will not be obliged to do so.

We were told that the advantages of a tribunal system included its accessibility, informality and speedy decision-making. But others pointed to the existing levels of knowledge and expertise in the Court of Protection and the difficulties of demarcation or overlap with the remainder of the Mental Capacity Act if a tribunal jurisdiction was introduced. We have not yet reached a final decision and will be considering our position further over the coming months.

Finally, they want a new name for the safeguards (suggestions to Olivia.Bird@lawcommission.gsi.gov.uk).

I have suggested Best Interests Custody Safeguards – BICS 🙂

 

Two Secretaries of State and a good deal of the Civil Service – writhing, but not very anxiously, before the Courts!

Analysis of the JM case

The attachment here is a report on what the Court has had to say about the Government’s continuing failure to do anything to restore the rule of law to the DoLS arena, with regard to its stance on not finding any new money for councils to use to abide by the due process implications of article 5 of the European Convention.  It makes grim reading for all but a few – advocates and trainers, that is, for whom a role as a Relevant Person’s Representative, or in supporting RPRs, clearly beckons!

In a previous age, members of the government whose behaviour had attracted such polite but acerbic criticism from the judiciary would surely have felt the need to resign. In previous case law concerning responsibility for unlawful backlogs in the Mental Health Tribunal system, the money was found to put it right. I do not know how such cynicism or arrogance on the part of government, such that upholding the rule of law is not a good enough reason to fight the Treasury, has managed to insinuate itself, since then, but we will all be the poorer for it.

In a baleful irony, this judgement was handed down in the same week as the Care Act Statutory Guidance was reissued, including a re-written Safeguarding Chapter, with not a single word in it, on the impasse over RPRs and litigation friends, and the backlog in the Court of Protection – or on what any of it means for the value of the “Making Safeguarding Personal” initiative!

 

Why we’re still nowhere on getting autistics out of Assessment and Treatment Units and back into the community (1)

Welcome to my new guest blog on Belinda Schwehr’s ‘Schwehr on CARE’ and thanks to Belinda for inviting me.

I have to focus my first posts on what I see as the most pressing human rights issue in social care: the approximately 3,000 individuals (many and perhaps most of them autistic) still stuck inappropriately in long-stay inpatient care 4 years after Winterbourne View.

The Justice for LB campaign is seeking further legislation in an attempt to resolve the issue. Whilst I wholeheartedly support their aims, I can’t see the approach of passing more legislation working. Here’s why. We already have law which addresses many of the issues, but it is simply being ignored.

(1) There is still widespread failure properly to implement the Mental Capacity Act. Capacity is frequently assessed wrongly because:
(a) unwise decisions made by someone with a learning disability or autism are used as a basis to assume or evidence lack of capacity;
(b) insufficient information and support are provided. All practicable steps to help the individual make the decision themselves are not actually taken. This is particularly true in autism, where it is often due to ignorance of steps which could help;
(c) incapacity is assumed, based on one-off assessments, sometimes years previously;
(d) incapacity is assumed for one decision on the basis of incapacity in relation to another very different type of decision, without proper analysis of similarities or otherwise;
(e) assessments are too often based on the outcome of language-based IQ tests and in ignorance of the evidence that these may well not be a reliable approach to measuring cognitive ability in autistics.

(2) The Care Act already provides strong rights to be involved for adults themselves and for family (either in the form of those the adult asks to be involved or in the form of best interests consultees). There are rights to communication support/interpreters and provision for this to be a familiar person where this is the only way to achieve communication in the case of bespoke methods of communication (including behaviour only). The statutory advocacy duties are right there and properly qualified, independent advocates are the best possible support that people could have. So what’s the problem?

In far too many areas it just isn’t being implemented. It’s hard not to conclude that either local authorities are (a) ignorant of the law; or (b) simply hoping like mad that nobody else noticed.
What can we do about it?

(1) Know the law and push for independent advocacy when someone is entitled to it. Councils cannot lawfully assume that family members are suitable informal supporters and use their presence to avoid providing an independent advocate UNLESS both the adult needing support AND the family member CONSENT. Nor can they avoid advocacy by using family members or friends as informal support without THINKING about whether the informal person is actually able to carry out the role of supporting the adult’s involvement appropriately.

(2) Know the law and push for the provision of a communication specialist (as WELL as an advocate) where an individual communicates in a way that the assessor does not understand. This means those who communicate only through their behaviour, those who have echolalia, those who use PECS, AAC or bespoke systems. And THIS MEANS adults who may lack capacity – they have a legal right to be heard and to be involved too!

(3) Know the law and push for PROPER capacity assessments: decision specific and with all practicable assistance, including communication support, full information about all options and processing time.

(4) Know the law and push for fully lawful decision making where someone does lack capacity – in full compliance with the MCA. IMCAs, DOLS, best interests consultees (including family members and providers), proper respect for human rights and all the principles.

Why you should ask for a review of your assessed needs and your care plan, sooner rather than later!

Under the Care Act, there’s a specific section all about monitoring of care and support plans, and the rules that apply to changing them. It’s section 27, and it’s the first time that the concepts of review and revision and re-assessment have been put into the statutory framework.

You may be an existing service user in a council where the threshold of neediness, applied by the council before the new law came into effect, was tighter or stricter than it is now, under the regulations which contain the mandatory approach to the concept of a level of need that no person should be left in, nationally, without social care funding or services. The criteria, when taken with the stretched definition of eligibility, and the focus on the person leading the exploration of consequential significant impact on their wellbeing, and interpreted as required by the Government’s Guidance, make the chances of being found to have eligible needs, greater, in my view. So the sooner you get yourself reviewed, the better.

Any such council would inevitably prefer that you leave it as long as possible, before you push for a reconsideration of your needs and rights, under the new system.

The reverse is true, of course, if a council used to operate on a more generous basis than the new criteria: in that case, a person would (him or herself) want to put off their review for as long as possible! And given the focus on cuts, which may mean that there is pressure to accept a smaller package even if one’s needs haven’t changed, and even if the eligibility regulations make no real difference to assessment outcomes locally, people might feel that they’d be better off holding out against being reviewed, for as long as possible. It is impossible to advise on a strategy, but necessary to think it through, in my view.

How long is as long as possible, then? On the one hand, you can’t refuse to be reviewed. It’s not the same as assessment first time round: you’re in receipt of public money and you cannot refuse to be reviewed. Getting anything at all, turns upon satisfying the council that a whole set of facts exists, and if you withhold your co-operation, it will mean that you might lose your services on the footing that the council is no longer satisfied you need any….

On the other hand, in theory, you might well hold out until April 1st 2016. The expectation under the old law (no more than an expectation) was for review at least annually, and the new law came into force on 1st April 2015. Therefore, the expectation is that everyone should have a scheduled review before April 1st 2016, at which point the old law can be repealed in full.

What matters is that when you ARE reviewed, your know your rights under the Care Act.

But for now, the old law subsists, and that means that your current services are provided under the old law, unless and until you are reviewed. (I haven’t seen anyone writing about what that means for charging law – logically, if you are receiving services under the old law, you are receiving services which cannot be charged for under the Care Act, but would still be chargeable under the old charging legal framework. But it is too late at night to think about that right now!)

Under the new law, a person has a right to be reviewed, upon making a reasonable request. You don’t have to prove that your circumstances have changed. You don’t have to do anything more than explain why you want one.

If your circumstances HAVE changed as a matter of fact (your condition has worsened, or your dependency has increased because something in your environment or your relationships has changed) you will be entitled to re-assessment because you will be presenting the appearance of need, in any event. But if your circumstances haven’t changed and you are thinking that you are eligible already, in more respects relating to inability to achieve outcomes than you were before, there is no obvious right on the part of the council to refuse to review your situation just because it’s not yet supposed to be your ‘turn’. ‘Nothing ventured, nothing gained’, should be the motto here, I think.

Under the new law, the council can revise a care plan without doing a full re-assessment to identify all the needs all over again from square one; that is, it can come up with new ways of meeting needs that haven’t changed, without that automatically being unlawful just because there’s been no s9 re-assessment. But the situations in which that will be possible, in practice, are limited.

For instance, if there is an argument about whether new needs need to be counted in, because of a change in the domains covered by the criteria, or factual new needs due to a change, there’s no way a person could be lawfully refused a proper re-assessment. The last one done may have focused only on unmet need, and now the Care Act guidance says that all needs, even met needs, must be considered for recording as eligible, regardless of informal free care and help from one’s own family. That doesn’t mean that the State has to pay your relatives, or provide for what they are willing and able to keep on doing for your benefit, because there is no legal duty to provide for what a carer is willing and able to do themselves – but it does mean that the WHOLE picture, and not just the shortfall, has to be recorded, and measured against the eligibility criteria.

If the council thinks (see s27 of the Act) that “circumstances have changed in a way that affects a care and support plan” (or a support plan for a carer) then it must do a proportionate re-assessment, whatever one of those might be!

I think that this means that a council can actually change the way in which it offers to meet need, without going back all the way to assessing needs from square one. It bothers me, during this initial period (coinciding with further cuts) when many people will be having their care plans reviewed, that many will not know that the criteria have changed, or not know that they are now entitled to written reasons as to why they are or are not regarded as eligible.

To be explicit, my concern is that if a council is reviewing people and offering new ways of meeting unchanged needs, and people don’t know that the criteria have changed, and don’t push for a proper re-assessment, it could be ages before anyone actually applies the new approach in the regulations to them; and it might be some years before they get a proper Care Act compliant care plan, if no-one is thinking ANYTHING does need to be changed in the current plan.

What is happening out there, in practice, please? Please share the local practice, and raise the profile of the review and revision provisions in the Care Act.