Category Archives: Legal Risk, Complaint and Appeals

Are we creeping closer to emergence of solid LEGAL PRINCIPLE on cost-capping for home care packages, by reference to the cost of a package in a cheaper setting?

The end of this important case, A local authority v X (Holman J)

After the interim hearing, at which the LA had refused to trial the man out with a package in his own home for a month, given the long term financial unsustainability of the cost, the LA was required to serve a commissioning decision letter setting out what packages of care, if any, they would commission for the patient if the patient had capacity to decide to return to his home and chose to do so.

The letter was required to include consideration of direct payments to the patient.

The jointly instructed independent expert in this case, and also the treating psychiatrist at the hospital where the patient currently resides, were both required to file and serve updated reports as to capacity.

The Head of Adult Safeguarding and Learning Difficulties in the local authority wrote a further decision letter dated 31 October 2016.

The gist and effect of that letter is that the local authority remain unwilling to fund a package of care in the patient’s home with two carers present around the clock at a cost of a little under £500,000 per annum.

The decision maker did also consider a further quote that they had obtained from an alternative provider at the lower sum of £338,000 per annum, but he decided that even that cost “is unsustainable in the long-term. For similar reasons [to the earlier quote at just under £500,000] the local authority would also decline to commission a care package at this lower rate.”

The decision maker went on in his letter to consider whether the local authority would be willing to fund less expensive packages, essentially involving less intensive provision of carers. He concluded that they would not, essentially for two reasons. One reason was that they considered that there were potential risks to a single carer caring for this particular patient alone and that the wellbeing of the carers required at least two to be present at all times.

The other reason was that, in any event, the local authority considered that the needs of this patient are so great and that he so frequently needs two people present to turn him or assist him in other ways that, realistically, two people would have to be funded and present at all times.

The decision maker also decided that they were not willing, in this case, to make direct payments to the patient himself, which he considered “an inappropriate way to meet his needs”.

Comment

So would the council be walking away, if he were to leave hospital and go home, refusing the alternative placement in the hospital or elsewhere?

Would you believe it?

On 10 October 2016 there was consideration by the Independent Local Resolution Panel of a longstanding dispute in this case about the customer’s NHS CHC rights.

The court was told that the opinion of that panel will be that the care needs of this patient should be funded by the NHS through the local CCG. It turns out that the CCG was discharged as a party much earlier in the case, to be reinstated as a party in just this event. The poor old CCG!!

The judge then declared, once and for all, despite the council’s disagreement, interestingly, that the service user has capacity to make up his own mind about what he is to be offered (this will challenge the CCG, of course).

So, the CCG will have to decide whether it is appropriate to place this man in a care home or hospital or pay for his care in the community, and any challenge to that determination will likely proceed not in the Court of Protection but in the judicial review court, if anywhere!

Properly understood, the case establishes no new principle: it’s always been possible for a public body to decide that where two places CAN meet needs, there is only one practicable place to meet them, and choosing the cheaper of the two. It’s not a breach of human rights or of any Care Act principle to make that invidious decision. If people don’t like that, they need to lobby Parliament to change the law.

What the case hints at though, is that the council was probably given and accepted some firm legal advice that it was not open to abandon its professional judgement on some misguided altar of ‘choice’, (not even in the case of a person with capacity), and just give the person a direct payment of some lesser amount than is needed at home, or the alternative equivalent cost of residential care.

And that is what all CCGs and councils toying with such policies need to factor into their decision-making now, before they risk embarrassing themselves further and setting precedents that the sector has managed to avoid for over 20 years since the Lancashire case.

Original post

In the week that the Health Foundation, The King’s Fund and the Nuffield Trust have reported evidence of a £1.9 billion gap in funding in the sector, (see https://www.kingsfund.org.uk/blog/2016/11/listening-to-chorus-of-concern-around-social-care) where its authors have anticipated that legal challenges will inevitably arise, soon –  an important judicial decision has been released from Holman J., in the Court of Protection.

Readers will appreciate that in that Court, the judge has no judicial review jurisdiction to determine whether a council’s offer of a care package is lawful, irrational or unfair.

The CoP judges do have a limited Human Rights role, because they could find that a package being offered, which involved disproportionate deprivation of liberty or inadequate respect for a person’s article 8 rights, would not be in the Best Interests of the person concerned in the proceedings. That’s not quite the same as saying it’s unlawful; but it comes quite close. .

This decision, however, because of the heavy and articulate hints in it, should be seen as taking the adult social care world one step nearer to the holy grail of community care law: a position on the circumstances in which it could ever be lawful to offer a person a lower-than-known-to-be-necessary sum, to meet eligible needs, based on there being an alternative appropriate and lawful setting that would cost the council much less, but which the client wishes to refuse.

Here is a free reference to the case online: http://www.bailii.org/ew/cases/EWCOP/2016/44.html

The client in this case was the victim of an accident for which no-one was to blame; his care costs are astronomical. He is currently in a specialist hospital, in which the council has commissioned care, although it is not medical care, or the responsibility of the Health Service. The client may or may not lack capacity to decide whether to refuse a care package offered by the council – that issue has not been decided as yet, and may never be, because of the academic nature of the question, if in effect there IS only one choice for the man to make – the only choice that the council is prepared to pay for, for the foreseeable future, which is care in the current setting, on account of the costs were he to go home to his own home, an adapted rented house.

The difference between care in his own home and care in the specialist setting is £468K to £156K per year. The council had made a firm decision that it will not offer to meet his needs in his own home, but that it would meet them in the current setting, even though it is not the man’s preference or wish to accept living there for the rest of his life.

The cost of the care is on account of his behaviour as well as his needs, ie for the safety of staff, although no-one is suggesting that he should be able to stop himself from behaving unacceptably (so the Muriqi Kujtim doctrine could not apply).

CHC status (free NHS care) does not appear to ave been in the offing, despite his challenging behaviour, perhaps because although his injury was serious, rendering him tetraplegic, the needs that are exacerbating the inputs are in domains related to daily living rather than treatment, diagnosis medication or care, as such, and/or possibly because they arose from his prior personality disorder, and prior abuse of drugs and alcohol, and not from his injury.

The judge has masterfully managed to give his view, in 4 important excerpts from the report, without exceeding his jurisdiction in the Court of Protection:

“He has, I think, suggested that the local authority might consider paying to him the weekly sum that they pay the hospital so that he, with that funding, could organise his own care. That suggestion is, I am afraid, completely unrealistic.”

This suggests that in the judge’s view,  the council would not be likely to agree to this and could not be made to offer something that could not work.

….”one possibility is that they [the council] will say that they cannot fund any care on that basis, for the situation would be so unsafe for him that they would not be willing to participate in it.”

This is consistent with the Judge’s analysis being that it is legal and legally safe for the authority to say that “if he has capacity he can refuse a service but we do have to do anything further.” And that is consistent with existing case law and legal principle.

“He can fairly ask through the Official Solicitor what minimum and lesser level of care the local authority would be willing to fund if he does have capacity to decide to return home and does, in fact, choose to return home.”

This is a principle which emerged from an earlier case, KK, where in fact the judge there said there that an authority MUST make their view of the maximum offer that it would be prepared to make, in any other setting clear, before it can decide that someone in refusing lacks capacity to do so, thereby justifying a DoLS finding of lack of capacity. The judge there referred to a practicable offer – which in my view has always been a euphemism for an offer that was lawful, or at least one that was not likely to be so unlawful as to be judicially reviewable, not a figure out of the blue.

On one footing of course it’s possible to say that the other setting’s cost is not an arbitrary figure – it is rational, it would be argued, given the other option would have had to have been appropriate even to be a lawful offer in the first place. But that still doesn’t get one over the significance of the council’s knowing that the person’s needs would still cost MORE in their own home!  The judge is hypothesising here, In a case where the person’s own presentation requires the staff to be properly protected, the cost could not simply be derived mathematically from the alternative cost of another setting, where greater staff ratios would be always present.

This sends a very loud warning shot out to the social care world, that it could only ever be feasible to offer the price of another setting, to someone determined to stay at home or GO home, to capacitated people (or incapacitated people with a welfare deputy or attorney) to whom a properly defensible offer in relation to the cost of meeting needs in the actual anticipated setting, has been made.

Those needs may well have been re-drawn, on the second ‘go’ once an apparent refusal of care home care has been made, because the assessor may have been able, justifiably, to say this: “in your own home, your view of risk and the value or running it – together with your agreeing with us that you will not do x y or z, so as to minimise risk, (and any freshly volunteered informal input from friends, relatives, etc) has given us a lawful reason to fund you to the tune of less than we first thought would be needed” – but that’s not necessarily as low as the cost of residential care!

Where someone lacks capacity, in relation to refusing the offer of a care home, DoLS will still be available, obviating the need for consideration of a package at home, unless relatives threaten a judicial review.

“Frankly, if the local authority are unwilling or unable to fund a safe package of care within his own home, there is no other person or body who can, or will do so. Subject only to any possible judicial review of the decision of the local authority, the required safe level of care simply will not be available for him in his home.”

This suggests that his human rights and his rights to independent living under the Convention on the Rights of Disabled Persons cannot be used in the UK courts to establish a positive enforceable right to live in a non-institutional setting, if one needs State funded care. I would suggest that such care, in a care home, is still to be seen as IN the community, albeit more restrictive; further, the human rights in article 8 refer to the economic interests of the area and the rights and freedoms of others, as qualifying the human right in question – and in UN Convention terms, independence is a matter of degree and affordability for all of us.

Conclusions

All these points come from a legally literate approach to adult social care, without which, in my view, it is impossible for councils to function properly, whether that be strategically, managerially, or in front line operational terms.

All these points have been the subject matter of my training courses for over 15 years, because cost-capping first came before the court in a case in the late 1990s, involving Haringey – called ex p Norton no. 2, which was settled just before trial, and therefore no precedent ever set.

So how about this for a suggestion: isn’t it time that councils either allowed themselves to be judicially reviewed for doing it, so that we can all be clearer on the legal position?

Carrying on just settling cases if one looks really likely to go to court means that the vulnerable and the uninformed and the anxious get the least choice and freedom, and underfunded care packages – which must be the absolute antithesis of social work based on non-discrimination, anti-oppression, human rights and ethical practice.

If you want to be prepared for the legal challenges, don’t skimp on legal framework training, and get some in soon, by way of my webinar series via the Webinars page above,  or through my face to face training options on the Training page of http://www.careandhealthlaw.com

 

A great new case on the benefits of legal literacy: a successful judicial review of cuts to short breaks (for children)

West Berkshire’s disabled children’s short breaks budget cut, is quashed…

In a case that underlines the need for legal literacy on the part of MEMBERS as well as officers, in relation to fundamentally important decisions such as budget setting, the Administrative Court has quashed West Berkshire’s decisions to reduce the funding given to voluntary sector organisations to provide short breaks support to families with disabled children, by 52%.

There is an exceptional public interest in ensuring that when local authorities cut spending in a way which affects vulnerable children, they are seen to observe the relevant legal provisions, particularly where, as here, the amounts at stake are, in relation to the budget as whole, not large, and where there was flexibility in the money available to accommodate a smaller cut.”  Elisabeth Laing DBE  J

The judge’s decision was based on the omission to state for Members faced with the decision – properly – the public sector equality duty or the full extent of the duties in relevant legislation (the Children Act and regulations or guidance regarding best value and sufficiency).

A second decision to re-affirm the first decision was also flawed, by having been pre-determined – the council’s constitution precluded its rescission. And even though it was based on much better information about the legal framework, it did not flag up the possibility, or the pros and cons, of spending some of the council’s General Reserves to put the first decision right.

The asserted illegality of the first decision related to the council having failed

(1) to ask itself the right questions,

(2) to take into account mandatory relevant considerations (that is, the questions posed by, and/or the requirements of the statutory provisions which apply to short breaks)

(3) to give ‘due regard’ to the statutory equality needs described in section 149 of the Equality Act 2010

The Council faced an exceptionally difficult financial position late last year; and that position got worse in March 2016. It had already made savings of £36m over the last six years. Two thirds of its income comes from council tax. The Council had anticipated a 25% cut in revenue support grant (‘RSG’) but the provisional settlement for the next four years (received on 15 December 2015) was worse. The Council was to receive 44% less money from the Government in 2016-17, the third largest cut for any English unitary authority. In effect, the Government has introduced, without warning, a new formula for funding councils and this council was one of the worst affected. The Care Act 2014 had obliged the Council to expand its eligibility criteria for adult social care (it had been at Critical under FACS; and the provisional figure for savings which needed to be made went up from £10.8 to £19m as a result of those unexpected changes by Government.

There was comprehensive consultation done by West Berkshire, in relation to 47 areas of council functions and proposed cuts.

A large amount of factual information was provided to Members about the impact of the proposed cuts, but it was still alleged that because of the missing legal information the Council could not establish it had paid due regard to all the factors in the Equality Act.

While Members were given the text of section 149 Equality Act, they were directed, in four places in the documents, to a summary which did not accurately encapsulate, for the purposes of the decision about short breaks, the effect of section 149. Had the report only included the text of section 149(1), it might not have made councillors’ lives easy, but the judge said she could have been satisfied that they had considered the right question. The ‘summary’ way of presenting the equality issues unavoidably suggested that the approach was equivalent to, or a substitute for, the statutory considerations, and it was not good enough because it included some, but not all, relevant matters.

There was no trace in the materials given to members of any reference to the express language, or to the substance, of regulations 3 and 4 of the 2011 Breaks for Carers of Disabled Children Regulations, or of section 27(2) of the 2014 Children and Families Act (which requires councils to consider the extent to which that provision is sufficient to meet the social care needs of the young people concerned). There was no reference, either, to the duty imposed by section 11 of the 2004 Children Act to make arrangements for ensuring that the functions of the bodies to which that Act applies are discharged having regard to the need to safeguard and promote the welfare of children, or to the best value guidance, to which the Council was required to have regard.

That guidance is aimed specifically at, and ‘sets out clear expectations for’ councils which are ‘considering changing funding to local voluntary or community groups’. Paragraph 7 says that ‘Authorities should seek to avoid passing on disproportionate reductions – by not passing on larger reductions to the voluntary and community sector and small businesses as a whole than they take on’.

Had the preparation been done properly, it would have been open to the Council to conclude that, important as the impact considerations were, it was necessary to do less for disabled children, than the Council would otherwise wish to; but Members had to be satisfied that the proposed cut was proportionate, and that no other measures, such as increasing fees or reducing other budgets, could be used.

That was why, even though by the time of the second decision, when Members were properly equipped, to take into account the legal factors about duties to children which were relevant to a lawful decision, the later decision was still quashed. The Members were still not in a position fully to reconsider the proposed cut because they could not, under the Council’s constitution, rescind that decision.

The General Reserve is ‘expected to cover any of the following risks should they arise …risks in relation to litigation’. The claimant’s barrister contended that the risk of being required to reconsider these decisions is such a risk, and the Council could properly now draw on its reserves to meet that risk, and its consequences.

The judge was not satisfied by the terms of the new reports prepared for the later decision…

“that the Council was invited to consider the use of reserves, or, if it did, why it decided not to use them, since apart from the allusion to ‘difficulty’, the report does not explain whether or not it would be proper to draw on the reserves, and does not tell members what the ‘difficulty’ is; whether it is insuperable, or could be overcome. The Council has the reserves. The risk of losing this case, and of being required to reconsider the decision is arguably a risk the reserves are held to meet. I have heard no argument from the Council that it is not.”

Commentary

I hope readers can see that knowing the legal framework under which day to day work is done is an essential skill or attribute for senior management and lawyers working in local government. That means the Care Act, Guidance and Regulations and public law principles, for adults’ services decision-making, of course.

I hope also that readers can see that the Best Value guidance – applying as much to the need for proportionality in proposed cuts to voluntary sector adults services providers, as it did to children’s sector providers here – must be essential reading for any future decision-making regarding adult social care budget setting.

The best bit, for me, though, is judicial reiteration of the principle that the reserves are not sacrosanct. Indeed, one of the reasons for reserves, is management of risk, and that includes legal risk.

So – anyone feeling the need to challenge an apparently inadequate personal budget should say this to the Panel, loud and proud, please:

“Reserves surely do need to be formally considered as available to resolve this dispute, because I have a good strong case on illegality, which I shall gladly set out for your Monitoring Officer’s consideration and potential legal challenge.”

Authorising Deprivations of Liberty: Can we safely ignore “private” situations?

As those working in social care will know, care providers and councils are already overwhelmed and struggling to ensure lawful authorisation of all care situations involving Deprivations of Liberty following the broadening of the definition of ‘Deprivation of Liberty’ by the decision of the Supreme Court in Cheshire West. The current situation is so bad that four councils are seeking a judicial review of Government funding  for DoLS.

The Cheshire West decision was important and revolutionary for disability equality, establishing that disabled people are entitled to the same rights as everyone else and should not have their liberty infringed without careful, independent review and legal recourse, no matter how ‘normal’ and pleasant the circumstances of their care. Legally speaking (Storck 43 EHRR 96) there are 3 components which are required for a situation to require formal legal authorisation in order to comply with Article 5 ECHR. These are: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state.

In situations involving those who lack capacity to consent, requirement (b) is satisfied. Cheshire West widened the scope of situations which now meet (a). And now, in a recent case, the scope of (c) has been called into question.

In Staffordshire County Council v SRK & Anor [2016], Mr. Justice Charles considered whether, when someone’s liberty is removed in the course of a privately funded care package in the client’s own home (in circumstances which met the criteria for (a) and (b)) the Deprivation of Liberty is imputable to the state. The full judgement is extremely complex and examines the issue in depth. For practitioners and councils, the important information is that he concluded that, under certain circumstances such “private” situations are imputable to the state. This means that providers should be informing councils of the situation and either or both of the provider or the council should be applying to the Court of Protection for a welfare order.

In this case it was held that the involvement of the courts in awarding Personal Injury damages and the Court of Protection itself in appointing a deputy to administer those damages was a sufficiently active form of state involvement to create a responsibility on the state (through its positive duty to seek to uphold the Right to Liberty) to require the state to seek legal authority for the detention.

He clearly indicated that this judgement would apply to all future cases in this class and that future personal injury damages awards should take account of the additional costs involved in seeking Welfare Orders in similar cases.

In coming to this conclusion, he pointed out that “in a number of such cases P may well may not have the support of family or friends who take an active role and interest in P’s care and life.” (paras 71 & 72) and, therefore, it falls to the state to ensure that the rights of the individual are protected.

This case widens still further the circumstances under which a deprivation of liberty is imputable to the state and, thus, outside of a Care Home or Hospital, requires authorisation by the Court of Protection. Estimates contained in the judgement suggest that the result will be at least an additional 250-300 cases requiring welfare orders.

However, this is unlikely to be an end to knock-on consequences of the application of the Cheshire West decision in practice.

In pre-Cheshire West case law, Re A and Re C [2010] EWHC 978 (Fam) 64, it had been established that care circumstances created by a family within their own home were not imputable to the state. However, it is difficult to see how this case does not raise the possibility or even probability that the ultimate result in an equivalent case might now be different. The continuing application of Cheshire West in practice seems destined to reduce to the level of mere awareness the role of the state which is sufficient to render objective circumstances which deprive someone of their liberty imputable to the state and thus a potential breach of Article 5 which can only be remedied by means of formal legal authorisation (the only option for which is currently by means of a welfare order from the Court of Protection for situations which fall outside of the DoLS framework).

According to one strand of Charles J’s reasoning in this judgement, mere knowledge through safeguarding and/or regulatory processes is not sufficient to render an objective deprivation of liberty imputable to the state and thus an Article 5 Deprivation of Liberty. However, if we follow the other strand of reasoning, that of the Bournewood gap, it is difficult to see how arbitrary detention can be protected against in cases where mere awareness is the limit of state involvement, and thus there is at least the potential for a future ruling that, as a result of the widened definition of deprivation of liberty created by Cheshire West, the positive obligation under Article 5 requires the state to provide a domestic regime of law, supervision and regulation to authorise even entirely private deprivation of liberty situations such as that in Re A & Re C [2010].

Councils and care providers would, therefore, be well advised to err on the side of caution and avoid assuming that they do not have to take steps to seek legal authorisation of a deprivation of liberty in even the most apparently “private” of circumstances once they are aware of their existence. Under the current circumstances of a massively overstretched system, this will not be immediately welcome news. However, the fundamental principle that all detention of those who lack the capacity to consent should be subject to independent scrutiny and review is very much to be welcomed. It can only be hoped that additional cases will add further to the pressure to resolve the current legislative and funding provisions to catch up to the modernisation of the law in this area by the courts.

Taking Tameside Apart: its defence of the indefensible, regarding top-ups and the LGO’s findings

Tameside Council has announced its refusal to accept the LGO’s findings or recommendations, in a complaint about top-ups. It is obliged to publicise this fact, and its reasons, and this is a rare event. So it is worthy of study, for what it says about legal literacy and the culture of good governance, to my mind, albeit the events all involved pre-Care Act law.

As the rest of this piece is critical of the council I feel that it ought to be recorded that Tameside responded to a Freedom of Information request for its barrister’s legal advice within 24 hours, providing a link to where it can be found online in any event.

Mr X’s complaint to the LGO’s office, about the fact that he felt he had no option but to spend his mother’s own money on a top-up, to keep her in a home where none had been needed, arose out of the effect of a re-procurement exercise carried out by Tameside, to improve the quality and value for money of adult residential care homes across its borough. Prices were not being forced down, but input was being forced up.

The lady had been placed and was settled in a care home where no top-up was necessary. Tameside had already chosen to pay so-called quality premiums to the home, under its old framework .agreement, as part of the price.

One is not told what the lady’s level of capacity was when she first entered the home but it is clear that she entered as a Council client, not as a self-funder.

At the time of the new procurement exercise there was an over-supply of homes, at the time; so even if homes met all the quality requirements in principle, it was not enough: a home had to get 70% or above to make it onto the new framework.

Mr X’s mother was one of those homes that did not score enough points to get invited on to the new framework.

The contractual position seems to be that the old Framework was terminated by the Council, along with any individual service contract covering Mr X’s mother. Then, all such non-qualifying homes were put on to a new and different ‘off’ Framework contract. No doubt because of the problem of the beds in such homes being occupied by their currently eligible clients, Tameside was willing to continue in a new contract with such homes, but not pay them the new price being offered to those on the new Framework.

Even though we don’t know under what form of contract the new price was set out, we do know that the element of the overall fee paid by the Council, was significantly less in the new contract. Tameside simply took off the old quality premiums that it had been willing to pay, before. The difference was £88.70 a week.

This meant that even without charging any more than it ever had charged for the care package for this lady, before that point, there was now a shortfall, between what Tameside would now be willing to pay, under its ongoing statutory duty to meet need, and the full fee that it had been the home’s contractual right to charge the council, in return for the care of that person.

Existing residents had two ‘options’ as far as Tameside was concerned, in this situation. Either they, or their relatives, could pay what was throughout called a top-up, or the resident could be re-assessed to see if they could be moved to an alternative home, on the new framework. If not, then Tameside would pay “the top-ups.”

This is what has been defended as lawful by Tameside.

I think it is so plainly not lawful, as to make it fair, and in the public interest to say that defending it requires so much economy with the truth, or disingenuousness, or management delusion, that the matter should be re-opened by the Overview and Scrutiny Committee. And I agree, for what it is worth, with the LGO, that it was maladministration, in light of the guidance and the law. I just don’t think that the LGO went far enough, in highlighting what else was unlawful about what Tameside had done.

And please note, I say this, whilst fully endorsing the Council’s use of its dominant position in the area, to force up standards and to terminate its old framework contract. Much as I might find it disdainful, if a Council only needs x beds for its throughput of residential care clients, and x beds can be secured for the same fee but with a better quality service from a fewer number of care homes than before, a Council would be corporately mad to keep other homes on its framework.

But that is a different question of what it needs to do then for people still in those beds, and that is a matter of public law and the law of community care.

In this situation, the resident had been a Council-funded client, and remained as such, in terms of her public law rights as against the Council.

The home in which she was placed, became, overnight, effectively, one in which she could not ‘choose’ to stay, because once it was clear that the home would not get onto the new Framework, there was no Council contract covering her care – so the placement would not have been accessible on the Council’s reasonable terms. That is what required a review of her care plan, whether she or her son liked it, or not.

Given that care homes and Councils are all public authorities for the purposes of the Human Rights Act, I heartily applaud the parties attempting to solve the problem by developing a new contract to cover the people affected. But even if the home was prepared to enter into a new contract with the Council, and made a commercial decision to charge what it had always charged, and hope for the best for the shortfall, I am not sure that the Council was able, lawfully, to set a fee for standard care that was £88.70 less than it had been willing – for whatever reason – to pay – the week before. The home had been providing standard care and attention for the client, and the quality premiums paid previously were not for wants, as opposed to needs, or anything outside what it regarded as needed. It didn’t suddenly water down the milk for the clients left in the beds! The old quality premiums were simply a Council’s way of formulating a price that it found, in practice, was sufficiently attractive to get someone over the threshold, so that the Council’s public law duty could be met.

In theory, on one day, the home was suitable. It was being paid £x on the basis that it was meeting quality criteria. The next day, it was not doing anything any differently, but the quality criteria had changed, meaning that £x was perceived by the purchaser as too much to pay.

For a Council to say ‘now we have changed the goalposts for what we regard as suitable and standard, by increasing the quality threshold, we are not prepared to pay you what we did pay before’, is understandable, but the Council needed to take account of the cost of providing care, before announcing their view of the right rate to contribute, and there is no reason to think that the cost of care went down for that user.  Effectively, the home did a deal with the Council to take less from the Council than it needed for the placement, but on the footing that there would be relatives who could pay, when none had been needed before, or else the clients would be moved. That’s not a proper approach to costing for standard care and attention, on the part of either party, to my mind. It’s a sort of collusive bridge as a means to supporting a person to stay where they had been settled.

Neither side seems to have understood that it wasn’t open to residents themselves to pay the top-up.

And neither side seems to have known that given the change in circumstances, even if the option for staying on under the new contract had been organised in advance, the first thing that should have happened once it was found that there was no relative to pay the shortfall, was a re-assessment of the client, because of the need to consider if she could be moved, consistently with the duties of the Council.

The law is that only the relatives can pay a top-up in a situation where the person in question is not on a disregard or a deferred payment. If the son was not willing to pay a top-up, and no-one else wanted to either, then the Council – as the body owing the lady the duty, could potentially have moved her, but could not move her without a re-assessment.

That is because it is settled community care law that a person’s plan must be maintained by the Council, regardless of available resources, until the person has been lawfully re-assessed.

That re-assessment would either conclude that she could be moved, without an inappropriate degree of detriment to the meeting of her needs, or that she could not.

If she could not be moved, then in effect the only place where it would be appropriate and suitable to place the person would have been her existing home. Then, a new placement would not have been on the basis of the lady’s choice, but because that was the only place that would do. And the Council would then have had to have paid the full amount of the full contract fee charged by the home, itself.

That has been the law since around 1995. If it is agreed by the decision-maker (the entity next in line to do its duty for the person) that there is only one way of meeting an assessed eligible need then the Council must pay that sum, without regard to its budgetary difficulties.

If the person was assessed as being able to move, appropriately, then that is when a choice would have to be made, but only if there was someone to pay a top-up, and only if the lady had capacity to make a choice to remain in the particular home. We have already been told that there was no such person willing and legally able to pay a top-up.

It has also long been top-ups law that a person can only pay their own top-up out of their own resources if they are on the 12 week disregard or on a deferred payment, so the minute the Council knew that the resident’s resources were being used for the £88 odd a week that the son paid up, it was in trouble.

Since it was the Council that was liable on the full cost of the contract (it is clear that this must always be the case) it would have been open to the son simply to pay nothing, and leave the Council to its liability.

The Council would then have been forced to make a decision, to move the lady or not. It appears that it had neither the energy to apply for deputyship, nor the appetite for the fight about moving the lady, perhaps; but the path of least resistance was not open to the Council if it involved misleading the son, and misrepresenting the law.

The Council hid behind the son’s refusal to allow the Council to re-assess his mother.

That perturbs me because of course not even the client can refuse a re-assessment; it’s the Council’s duty, in a change of circumstances, even when it’s a change of circumstances that the Council’s procurement exercise had brought about, ie a shortfall leading to the termination of a contract, and a need to make a decision about what to do about it. Of course the client can refuse to co-operate, but not even a capacitated client can refuse a re-assessment – let alone an incapacitated one with a son who was not her welfare LPA, or in any sense anything other than a best interests consultee.

One should always remember here who the contractual parties to this placement were: the Council and the home – not the son. He appears to have been paying his mother’s charges (and the top-up, in the end) through de facto control of her bank account (not power of attorney) and although a top-up from another person is treated, once it is agreed by the Council, as part of a resident’s income, the law is clear – the Council must contract for the full contractual rate, inclusive of the agreed top-up and neither the charge nor the top-up can be paid direct to the home unless everyone is in agreement that this should happen – there was no evidence that the resident agreed to have the charge element of the fee paid direct, in this case.

We are not told whether the mother had ever had capacity to make that agreement, or whether the son was simply acting de facto, ie just because he could, through having a joint bank account, or knowledge of an account password or a PIN number. But anyone who understands incapacity law (and the Council is supposed to, by now) would know that informal authority, given in the person’s capacitated past, to a loved one, to effect the spending of one’s money as necessary, evaporates, once the person has lost capacity. With regard to the so-called top-up, the lady could not authorise payment, even if she had wanted to, of something that would not have been open to her under the rules, even had she had full capacity.

Furthermore, in terms of adult protection, a Council cannot just sit there and let a son use his mother’s own money for a top-up that is not a legitimate one, just because it suits the Council. I am not impugning the son’s personal reasons for thinking that he was doing the right thing; but it cannot be acting in a person’s best interests, however right one thinks it is, to use the money up in this way, if Parliament has said that it cannot be done.

The irony of all this is that the Council’s failure to do anything about all this, would have been justified – no doubt – on the basis of person-centredness and bloomin’ CHOICE.

If you can stand any more, you are welcome to click on this further link for an even more painful analysis of why what was done should not be regarded as defensible, and consider the evidence as to whether the public officers in question even thought that it was, when reviewing the LGO’s recommendations.

Tameside and top-ups, dissected in detail

Also, here is a link to a website about top-ups elsewhere: Toxic Top-Ups site

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.

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?

 

 

 

The Care Act – Another New Dawn?

As a Social Worker who once felt inspired and excited when ‘self-directed support’ was implemented, I have grappled with feelings of disappointment and genuine sadness at what I felt to be the demise of a real opportunity.

I was a relatively new social worker when SDS was first mooted around 9 years ago. I was whole-heartedly engaged with making it work and became immersed in promoting and celebrating the ‘personalisation agenda’.

I then began to watch, with dismay, as the ideology and philosophy of this was gradually dismantled. It felt like all that was left of this amazing opportunity was the RAS (Resource Allocation System). I have nothing against the concept of the RAS in itself but what saddened me was the way it had turned into something solely being used to monitor and control spending. It grew into a monster through no fault of its own. I understand the very real and difficult job of managing a short supply of money, but my perception was that this was being muddied with the RAS and the philosophy of SDS and I found that difficult to watch.

I began to drift towards the cynicism that so many within social work begin to feel. I admit to having a healthy dose of cynicism and a potentially unhealthy dose of sarcastic humour, but this other feeling was something I didn’t enjoy and I didn’t want it to overtake my passion for social justice and equality; the very reasons why I went into social work in the first place.

When I became aware of the impending Care Act, I decided to take any opportunity to understand this new legislation. I started to read around it, tried to keep up to date with people who tweet and blog about social care law, as well as gaining as much information from training. I have an increasing belief that understanding the law is the way for people to appreciate what their rights are. I see law and social work as natural partners; it is the opportunity for social workers to have half a chance of ensuring people get what they need.  It also provides practitioners with an understanding of what Local Authorities don’t need to provide, which in itself is far more liberating than having a funding panel telling you!

As my understanding of the Care Act has deepened I again find myself inspired and excited about what this means for the culture of social care and social work. In so many ways, my lack of legal knowledge made the policies around personalisation seem weak. But if I had been equipped with the knowledge that I have now, even in respect to the laws that have now been repealed, I wouldn’t have felt so helpless.

I appreciate it will take time for culture to change. I know that for advocacy to have any real impact the people who do it need be to legally literate and there needs to be enough of them. I know that in order to be truly preventative we need to tackle the culture of only being able to firefight and manage crises. I know there needs to be a change in how we view the importance of carers’ assessments, as this is where prevention starts. I know we need to put our most qualified and experienced workers right at the first point of contact, rather than at the end of a convoluted pathway. I know money is tight and spending is going to be reined in even more. All these topics are for consideration in subsequent blogs.

However, amongst all these tricky issues there is the glint of what could be possible. It’s there, in actual law; true personalisation, real involvement for the people we support, and an end to fitting people into the same old services.

The Care Act could be the way we change things for the better. But only if we open our minds and dare to be hopeful, all over again.