Category Archives: Providers’ issues

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.

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.

 

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

Commentary on the legality of confinement of children and young persons in the light of Birmingham’s case for a 16 year old

Last week, in BIRMINGHAM CITY COUNCIL v (1) D (BY HIS LITIGATION FRIEND, THE OFFICIAL SOLICITOR) (2) W (2016) [2016] EWCOP 8, the judge who has been making waves in the children’s social care world, Mr Justice Keehan, gave a judgement that was the inevitable sequel to his consideration of the same facts last year, when the young man in question was just short of 16 years old – he then reached his 16th birthday, at which point the Mental Capacity Act became a regime which could be applied to his situation.

The following bullets are the important principles that I believe can be derived from the case, which are of importance to the world of special schools and homes for children, whether through s17 Children Act service provision for children in need, s20 agreed accommodation arrangements, (where parental responsibility remains with the parents) or s25 secure accommodation orders or Care Orders under the Children Act (where PR is shared with parents, at the discretion of the council in question).

  • It is settled law that parental responsibility continues up to and until a child’s 18th birthday; Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. The principle that parental responsibility extends to children aged 16 or 17 was accepted by the Court of Appeal in Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 4 All ER 627 but that doesn’t mean it extends in all regards.
  • “[T]he legal right of a parent to the custody of a child ends at the 18th birthday; and even up till then, it is a dwindling right which the Courts will hesitate to enforce against the wishes of the child, the older he is. It starts with a right of control and ends with little more than advice.”
  • Neither Nielsen nor Re K are actual authority for the proposition set out in the final sentence in paragraph 14 of [the first] RK [case] namely, “a parent may not lawfully detain or authorise the deprivation of liberty of a child”. There is no decision of the ECtHR or domestic authority directly and explicitly on the issue of parental consent to the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty and in particular asserting that a parent cannot consent to the same.
  • A Local Authority v D and others sets out the limitations of the circumstances in which a parent could give a valid consent, especially where the child was accommodated by a local authority pursuant to s 20 CA 1989 or was the subject of an interim, or final care order. The possibility of parental consent, now, sanctioning objective confinement based on agreement as to best interests would have to be limited to a child under 16, now, because of this later analysis in the instant case: Keehan J said this: “I am not persuaded that a parent can consent to the confinement of a child who has attained the age of 16. Such a consent falls outside the zone or scope of parental responsibility.“
  • In respect of the provisions of s8(1) Family Law Reform Act 1969 and s 20 Children Act 1989, giving any capacitated 16 or 17 year old rights to consent to treatment, or to accommodation by the local authority, the young person who still counts as a child cannot override the consent of a person with parental responsibility relating to treatment or accommodation.
  • However, the implication of this case is that if a capacitated child of 16 or 17 does not agree with the s20 confinement regime, and the regime or treatment amounts to, (or the proposed treatment would require) objective confinement amounting to deprivation of liberty, the arrangement would have to be authorised by the court as well. Putting this another way – the regime proposed under a s20 accommodation care plan needs to be consented to by any 16 or 17 year old if it satisfies the acid test: the parents cannot agree to the regime, as part and parcel of agreeing to the accommodation, obviating the need for an application to the Court – the CoP, or via reliance on the inherent jurisdiction of the High Court if it is unclear if the person retains the presumption of capacity for this specific issue. 
  • It is already decided that a local authority who had parental responsibility for a child, by virtue of an interim care order or a care order, could not consent to the confinement of a child (under 16) which would otherwise amount to a deprivation of liberty: see A Local Authority v D and others [2015] EWHC 3125 (Fam) at paragraphs 26-29.
  • Although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order under s25 of the CA does not represent normal parental control. But a secure accommodation order will have been granted after a judicial process, and hence will not be a breach of human rights.
  • In all cases, the local authorities responsible for care planning, commissioning and best interests decision making, as well as funding, need to be the ones getting the cases to Court.

 

Summary for schools and children’s homes:

Under 15s in any setting, capacitated or incapacitated: parental consent can suffice to legitimise a benign regime that amounts to confinement or the use of the inherent jurisdiction is possible for the council, if the legitimacy of the regime is disputed by parents.

16+ – accommodated or under a care order of a full or interim nature, in all cases for other than a capacitated young person, positively consenting to the regime – in schools and OFSTED homes or supported living: Court of Protection even if the parents are in agreement, or an application under the inherent jurisdiction, if unsure about the child’s capacity (UNLESS the placement in the setting has been authorised under s25 Children Act or the MHA)

18+ and lacking in capacity in a CQC registered care home or hospital: DoLS and ultimately an appeal in the CoP

18+ and lacking in capacity and not in a care home or hospital: a Single Order application in the CoP

If, in either of the last two situations, the person is confined against own wishes, and does not lack capacity, then the person’s supporters need to make a referral to safeguarding, and seek advice about seeking habeas corpus or using the inherent jurisdiction of the High Court.

Top Up trials – will somebody actually use their legal remedies, please?

The news this week has been featuring sums paid for care home care being characterised by councils as top-ups in situations where there is probably no right to treat them as such, or where they have been properly regarded as lawful top-ups but the charging of them has been beset by maladministration.

The Local Government Ombudsman issued a report highlighting all sorts of shenanigans by unnamed authorities and it can only be a matter of time until PPI recovery sorts of services set themselves up to reclaim the dosh on behalf of all the relatives who shouldn’t have had to pay these sums! Click here for the 2015 LGO top ups report

However, the online comments back by care home providers and social services leaders have been to the effect that it’s the government’s fault for underfunding social care.

I would like to be more explicit, if I may – from the perspective of the service user’s and their relatives’ legal rights under the Care Act!

A council’s characterising an element of the charge for care home services, as a top up, so that the relative pays that sum, on top of the basic charge for the council commissioned package – or getting a service user to promise to repay something called a top up, in the context of a deferred payment agreement, when there is no legal right to do so, constitutes the following legal wrongdoing:

  • If done innocently, because of top down ignorance of the legal framework on the part of the council’s staff – then that’s maladminstration, based on lack of awareness something that is essential to the proper discharge of the care home placement function. The remedy for the injustice sustained by that maladministration is via the local government ombudsman – where it appears a lot of people have been going recently, to get their money back.
  • If done with an awareness that the so-called going rate for care of the relevant degree and nature, in the local area, is not in fact even feasibly sufficient to pay for the care, then – potentially – misfeasance in public office – a wrong that should only have to be alleged very rarely indeed, against council officers, if the council’s senior management is competently supervising its staff. The remedy is a claim for damages against the officers and even sometimes the elected Members if they were made aware of the facts, in person, for which damages, no-one can be indemnified by their council, so exceptional and shocking is the wrongdoing regarded as being.

The best way of telling the Members, as a whole, what is going on, is to write a one paragraph letter with your evidence, to the council’s health and wellbeing Board and the council’s Monitoring Officer, usually the head lawyer, who owes independent governance duties under the 1989 Local Government and Housing Act.

  • If this practice is done or colluded in by a public authority Deputy managing the affairs of a self-funding incapacitated person, whilst being employed by the same council charging the top-up, there’s probably an inexcusable conflict of interest and a breach of fiduciary duty going on – the deputy may not know that the council’s rate is not the going rate, but a Deputy should know enough law to be able to check and once dubious, should not be helping the council stay financially afloat on the back of the client’s equity.  The remedy is an application to the Court of Protection to get the public authority deputy removed, and a claim for restitution of any money actually paid thus far, under a mistake of law, and rectification of the Deferred Payment agreement.

In all three cases, the practice is unlawful, in a public law sense, because of the Choice of Accommodation provisions in the Care Act and the content of the guidance in the statutory Care Act guidance. The remedy is judicial review proceedings for failure to abide by the law, and to accord Choice of Accommodation rights, in the course of which proceedings, the repayment can also be claimed.

Councils are only obliged to pay for appropriate care and accommodation, under the Care Act, and people can choose to pay for better than merely appropriate packages, if they or their relatives can afford it, even though still having council-funded services, rather than privately contracted for services – but councils do have to figure out what the going rate IS, for that concept, rationally, and only treat as a top up, fees that are above that rate.

It has always been the law that not all homes that are registered as fit, are necessarily suitable for person’s particular needs; and councils have to be prepared to say ‘Choose from these homes, all of which are open, but remember we only think that THESE ones are suitable for your relative.’

What councils have been pulled up for is telling people to go choose, when in fact on the day in question there is NO SINGLE AVAILABLE APPROPRIATE CARE HOME PLACE TO BE HAD, at the rate that the council asserts to the world is an evidence based going rate for a basic standard care home placment that will do the job adequately for the person in question. In that case, the law has always been that the council must find and pay for a bed, in full, unless or until it can move the needy person to a cheaper bed that is still appropriate.

What about care homes charging top ups that the council doesn’t know about?

Any care home doing business with a council should have a written contract for the package, made up of the provision of accommodation and the provision of the necessary care to deliver the person’s care plan.

The care home can set whatever price it likes for that package, but the council need only pay what it believes standard appropriate care together with accommodation should cost. It may have tendered for a fixed price, for instance, to get a feel for whether the market would provide enough placements at the fee asked for; and homes may have agreed to charge council clients ONLY that fixed price; or may have agreed to treat the fixed price as the council’s contribution to the fee, whilst transparently charging top ups for admission of council clients – thereby taking the commercial risk that there will not be enough demand from people with either sufficient equity or well-off enough relatives, to keep the home viably full.

Councils have a right to refuse to put a person in a care home where a top up is needed, if the topper upper is not apparently good for the money, for the foreseeable future, but they can’t require homes NOT to charge top ups if the home believes from its low vacancy rates that it is doing more than providing merely appropriate packages or clearly offers rooms (or services) of differing standards, albeit all are adequate.

What a care home is NOT legally able to do is to charge relatives, or the service user, privately, around the side of the council contract, as it were, any sum on top of what has been agreed in the contract as constituting the package contents – the accommodation and the care. That would be double charging, and fraudulent. So, in a basic room, there can be no top up in play. In a room that is agreed to attract a top up, there can be no EXTRA top up charged, IN the contract, or outside it. The only exception is a sum agreed with the service user or relatives for a purely personal extra, such as hairdressing, etc.

Who’s driving this within councils? Commissioners, I believe, under a duty to contract for quality, sustainability and diversity, and to keep the market functioning….

Some councils are using ‘dynamic purchasing systems’ whereby homecare service users get offered an indicative personal budget based on a RAS, but where the figure gets reduced after the person’s care needs have gone out for local bidding. In these areas, for those needing care home care, it’s done differently and they are not being given a personal budget by reference to a RAS. Pre-qualified providers (in terms of quality) all bid to be given upcoming placements, after Care Act care planning has commenced, and the council running the system says then that the cheapest willing provider’s offer constitutes the evidence of the going rate, and that any other placement offered and preferred by the person or their family, thereby constitutes a choice of more expensive care than the authority’s legal funding obligation, by way of the personal budget. I can’t wait for someone to challenge this as the most obvious dilution of what Choice of Accommodation Rights used to mean – when the home’s fees were compared to the usual rate, not that of the cheapest willing provider! The guidance may well say that councils MUST be able to show ONE home at the rate offered as the Personal Budget but SHOULD be able to show more – but what these systems mean, to my mind, is that no filter for person centred suitability is being made by way of care planning staff, and the person or the family is just being made to pay a top up, in most cases, to access any choice at all,  by dint of market forces, and how desperate care homes are, currently, to remain as full as possible.

What does the sector leadership say?

Ray James, president of the Association of Directors of Adult Social Services, said there were “probably colleagues in local authorities feeling between a rock and a hard place” as more people were needing care in the face of funding cuts.

“Even where that is the case, we should always make sure that individuals and their families are clear about the information that they need,” he apparently said.

When you actually read what he has said, he’s not even saying that councils should tell the legal truth or give clear answers about the evidence basis for their ‘sufficient, timely and transparent’ rate for the person’s personal budget. He may be being misquoted, but if you read it again, you will see that it’s people – the service users and their relatives – who should apparently be being supported to be ‘clear’ about the information they are asking for.

How much longer is this double-speak going to be allowed to go on for?  If social care is underfunded so massively, why don’t local councils simply say “We can’t do it for this amount of money”, and make it a political issue? The only reason I can think of is that the Local Government Association (a limited company, part funded by the Department of Health by way of a memorandum of understanding for its Care Act work) and ADASS (a charity, in part grant funded by the Department of Health) and SCIE (a charity, almost wholly grant funded by the Department of Health) have to lobby the government, for more money, within in the above-mentioned ‘purse strings control’ context – and within a political context where party politics, at local, as well as at central government levels, must inevitably constrain what is really being said behind closed doors – all under the auspices of ‘stakeholder consultation’.

I would make a plea to all political leaders, but particularly to Jeremy Corbyn – do you have the integrity to be honest about that, please? That would be a real vote winner, I feel!

 

 

 

The Dilnot denouement

In my previous post I suggested that all the signs were there that Dilnot would be put on hold. Yesterday our suspicions were confirmed as a letter from the Care and Support Minister to the Conservative Chair of the Local Government Association’s Community Wellbeing Board, Cllr Izzi Seccombe, stated that Government would delay, until 2020, the implementation of the cap on care costs, the duty on local authorities under Section 18(3) of the Care Act to meet the eligible needs of self-funders in care homes and the appeals system which was proposed in the consultation earlier this year. It is important to note, however, that there was no mention of delaying the increase to the capital thresholds, above which people must pay the full cost of their care from their assets, to £118,000 for those in residential care and £27,000 for those in the community from April 2016. All bets are off about that!

The reasons set out by the Minister for this decision were that the cap should not be implemented in isolation, but in a way that ensured a sustainable health and care system, and that concerns expressed by Cllr Seccombe, on behalf of the LGA, which represents all England councils, and others, including the National Audit Office, had ultimately led to the postponement of Phase 2 of the reforms.

The news spread like wildfire as news outlets picked up on the story, and it was even announced on news bulletins – notable in my view because social care rarely hits the headlines – but this goes to demonstrate the high profile of this element of the reforms as stated in my previous post. Seccombe warned on the Today programme that councils were already struggling with budgetary pressures and the second phase of the Care Act would need to be fully funded, otherwise these pressures would begin to be shunted on to the NHS. This echoed the concerns she had expressed in a letter to the Health Secretary on 1 July, in which she suggested that the money allocated for implementing Dilnot should instead be used to plug the £700m shortfall councils were already facing in social care.

A collective sigh of relief will no doubt have been heard in councils across England, not because it was felt that the Dilnot reforms were a bad thing in principle, but because of the implementation issues councils have been grappling with, and uncertainties about the true costs of the cap. However, if the aim was to bury this controversial news on a quiet Friday afternoon (it was a Conservative manifesto pledge that people would not pay more than £72,000 towards their care from April 2016), Ministers will be disappointed. Former LibDem Health Minister Norman Lamb branded the announcement “an outrageous betrayal” of the electorate while Liz Kendall, the shadow care minister, called it “a shameful broken promise from David Cameron, and devastating news for older people and their families who have been trying to plan for the future”.

Putting back the Dilnot reforms indefinitely would have been a very brave thing to have done, considering it was the Conservative-led coalition government which had originally asked the Dilnot commission to review the funding of care and support in England, but putting the implementation back until the next Parliament (rather than the two-year delay the LGA had suggested) is for all intents and purposes the same thing.

In my next post I will be looking in more detail at the implications of the announcement for individuals who may need care and support, self-funding or otherwise, and their families, and the sector. Stay tuned!

A great case I’ve just come across regarding specialist care, commissioners and care planners…

Some years ago I went to a council do some training on the legal framework and did not er, hold back. 

The feedback was that although everyone had enjoyed it, and got value from it, the view of senior management was that my visit “should have been risk managed”. I was pretty chuffed to have made such an impression at the time, I can tell you, but I haven’t been asked back since!

So I was very interested to see that warnings that legal difficulties would ensue, unless more attention was paid to public law legal principles by the management team, appear to have come true! Always great when that happens, methinks!  The case is called Clarke, and here is the link to the case.

By 2013 the claimant, a man in his 20s with severe epilepsy, mental health and behaviour that challenged, had become “ordinarily resident” in a tenancy where personal care was available to him in unregistered accommodation. So the new council where the tenancy was situated became responsible for the claimant’s care, in place of Enfield, which had funded the move into the supported living setting, and continued to pay, within its discretion, a specialist epilepsy provider registered to domiciliary care.

In fact the new council did not carry out an assessment until 5 months after Enfield withdrew its willingness to carry on paying, and when it did, it concluded that the claimant’s care could be provided in a non-specialist manner. A support plan costed this at £357 per week as compared with the care package Enfield had been content to pay for, costing £1,300 per week. The new council refused to continue to fund the package from the previously contracted provider, and the young man got an interim injunction to prevent cessation of the package.

Evidence from a specialist neurologist and an epilepsy nurse documented active epilepsy, night seizures and risk of status related to stress and any non-compliance with medication, and injury from falls and 1-2 unpredictable tonic clonic seizures a month.

The provider’s evidence about its provision included its bespoke alarm system, staff trained in all emergency medications administration, and highly skilled management of prolonged seizure activity with access to 24 hour support and monitoring, including waking night staff.

During the pre-trial period, the council raised the allocation amount a little and said that Mr Clarke needed “Waking night support for 3 nights per month, in anticipation that your client will have up to 3 seizures a month during the night”.

Instead of accepting that the provider’s business model of charging per week was valid in relation to the need for 24 hour support, the council purported to assess as an appropriate response to the above profile of need, the following TIMED services:

  • Support for 3 hours for 7 days a week to assist him with taking medication, meal preparation, eating/drinking and showering and bathing
  • Support for 3 hours a week to assist him with cleaning, budgeting and managing bills and correspondence.

The council purported to allocate money for these needs at a level of £661 a week as a direct payment. The council did not consult the claimant before producing the updated plan; nor had it explained how it evaluated the claimant’s needs to produce the weekly figure of £661.

The council did not call for its own independent evidence, from any consultant or other experts in the field of epilepsy treatment or care. Although it had available to it the opinions expressed by the claimant’s consultant, GP, epilepsy nurse and care provider it effectively relied on the judgement of a social worker who did not claim to have any medical skills or qualifications.

In evidence, Independence Homes, the provider, said this:

“A waking night’s staff allocation for three nights a month would put Mr C in danger as it is nonsensical to suggest that assistance with medication is only needed some of the time. Additionally, his seizures are not limited to nights. They are whilst sleeping. This puts him at risk of death. So, he could easily (and often does) have a seizure whilst sleeping in the morning or early afternoon. That is why he needs 24 hour care. Sleep in support would not be able to respond to a seizure in time.”

The council maintained that another provider from whom there was no evidence would be able to meet needs, if Mr C moved from his tenancy to another address. That is, the adequacy of the provision at the cost the council wanted to keep the package to, was dependent on the service user agreeing to move HOME to another house where he would receive services from the cheaper domiciliary provider.

The judge found in favour of the claimant, and quashed the decision of the council, ordering it to re-assess the man’s needs lawfully.

[an aside here: if people with disabilities, and advocates out there, cannot do some good with this fantastic precedent about the right – and the very wrong – approach taken in this case, in these difficult times of Care Act implementation, I do not know what to offer instead, I have to say!]

Please read on for the wisdom of the judge:

“It is important to keep in mind that this is a case in which the claimant has been in receipt of these services for a number of years in circumstances in which his medical team and care providers have made it clear that his needs have not decreased. It is to be distinguished from the type of case in which a claimant is seeking services which he has not had in the past.

In my judgment the assessment by the defendant demonstrates a failure to understand and address the claimant’s medical and support needs. This is most apparent in the approach adopted by the defendant to the provision of support to provide three nights waking care a month against a background of medical and other evidence which demonstrates the need for 24 hour care in circumstances in which seizures, including sleep related seizures are unpredictable and cannot be pre-determined. The explanation as to the basis upon which three waking nights care a month are included within the package as offered in the hearing before me simply does not make sense and does not address the needs identified in the reports from the medical and other professionals.

It is also the case that the claimant has a tenancy at his current placement which has been his home for more than four years and there has been no care plan produced from the proposed non-specialist care provider.

…Notwithstanding the high hurdle faced by the claimant [on judicial review], [I find that] that the decision by the defendant failed to give appropriate weight to obviously relevant material and relied excessively on the non-expert view of a social worker in a face of a wealth of evidence to the contrary from appropriately qualified and experienced experts. I find that those opinions have not been given sufficient weight in the decision-making process and that in those circumstances the defendant should re-assess the claimant’s needs and the extent of care that as a consequence is required.

It was accepted that article 8 [the human right to respect for one’s private and family life and one’s home] was engaged. … I am satisfied that the defendant’s decision that the claimant should be expected to move from his home at which he has a tenancy, to a placement of the defendant’s choosing in circumstances in which no care plan has been provided by the proposed non-specialist care provider does amount to an unlawful interference with the claimant’s rights to respect for home and private life.

Here is the link to the case once again. All review team staff and assessors and care planners in councils receiving people from elsewhere into their area into ordinary accommodation under the continuity provisions – please take account of the principle in this case. Those moving into supported living settings where their needs can only be met by virtue of the availability of personal care will retain continued ordinary residence rights with their OLD authority, under the Care Act, as long as the previous council writes the magic words on the care plan. See other blog posts on ‘ordinary residence’ on this Blog!

 

Dilnot or not? That is the question!

Until fairly recently, the parts of the Care Act that ultimately resulted from The Dilnot Commission recommendations, may not have been foremost in everyone’s minds. Some of us will have been so busy preparing for the implementation of elements of the reforms such as the new eligibility regulations, the independent advocacy duty and carers’ rights in April this year, that we have put the second tranche of the reforms to the bottom of our To Do lists.

Many people will have heard of the cap on care costs of course, due to come into force in April 2016, a year after the rest of the Act; after all, it’s been in the news a fair amount, and arguably has enjoyed a higher public profile than any other aspect of the Care Act – not having to sell one’s home in one’s lifetime is a major selling point, is it not? Well, like most marketing headlines, the detail is really in the small print: it is interesting to note that as far back as two years ago, the care Minister and Department of Health admitted that only a small minority of people will benefit from the cap.

Originally it was promised that the detail of how Dilnot would be implemented would be published last October or November. Finally in February this year, Government published another consultation, this time on draft guidance and regulations for the cap on care costs, and proposals for an appeals system, which finished eight weeks later on the same day Parliament was dissolved before the general election. One cannot help thinking that despite the undoubted hard work that has been done by the Dilnot Commission, the Law Commission, the Department of Health, and across the sector over several years to pave the way for the biggest reforms to adult social care in over 65 years, the end result has been something of a rushed job.

Ongoing concerns about the affordability of the reforms, voiced not only by councils, but by national charities and providers, serve to further dampen people’s optimism about what on the face of it is a fantastic, progressive piece of legislation. It was interesting to note then, that in the Summer Budget on Wednesday 8 July, there was not a single mention of the Care Act, but perhaps there WAS a clue about the Government’s intentions in the fact that the couple’s inheritance tax threshold will be increasing to £850,000 from 2017. In 2013, the Health Secretary told Parliament that the cost of implementing the cap would be met in part by freezing the inheritance tax threshold at £325,000 per person for a further three years from 2015-16.

Two days before the Summer Budget, on Monday 6 July, the Guardian ran a piece which said that senior figures in the social care sector say the idea of “pausing” the cost cap, due to be brought in next April, is being discussed urgently in Whitehall. According to journalists, we will know the outcome before Parliament rises for the Summer on 21 July – no doubt when journalists go away on holiday too.

For those Councils up and down the country, which have been grappling with issues such as how to manage an increase in needs assessments, or an influx of complaints about the sufficiency of someone’s Personal Budget, let alone how they are going to pay for it all, it will be a long few days.

Why we’re still nowhere on getting autistics out of Assessment and Treatment Units and back into the community (2)

Placements are often justified on the grounds that behaviour which challenges needs to be addressed before community living is possible. But for many autistics this is backwards! Behaviour is communicative. Common causes of behaviour which challenges, in autism, are frustration and distress, due to difficulties with:
• communication
• uncertainty and unpredictability
• sensory issues

Most staff working in care have had little or no good quality autism training. “Behaviour management” typically focusses on reactive management and restraint techniques! It is little wonder that autistics stuck in these situations display distress in such an adverse environment. In institutions individuals are typically subjected to:
• change with little or no warning
• little control over their environment
• a highly unsuitable sensory environment
• constant interaction and demands
• very limited access to people with whom they can communicate effectively (e.g. family) or appropriate support for communication (e.g. AAC technology)
It is hardly surprising if this results in behaviour which challenges.

Effective training of community-based staff to enable them to actually understand and anticipate an autistic perspective is essential. We need to move away from ineffective and damaging “reward and sanction” reactive approaches to behaviour management. Creating workable community support is possible. It isn’t always cheaper immediately, but it is in the long run and this should be very motivating to local authorities and trusts. A good starting point is to look for providers who take an autistic perspective seriously and make use of the autistic community as a source of knowledge about how seeing the world from an autistic point of view can help enormously. Most behaviour which challenges can be prevented and avoided – but institutions are completely the wrong place to do it.

Community provision can work but only if it is staffed by sufficiently well trained and supported staff who have a clear and deep understanding of autism on a practical level. “Awareness” courses are not enough. Learning about the triad of impairments is not much use when faced with a distressed autistic who can’t use speech to tell you what’s wrong. The latest “products” on sale from the autism industry are also of very dubious value – check out first whether they are really as evidence based as they sound – there is a lot of “neuro”-rubbish being talked out there. Exercises to retrain developmentally immature reflexes are little help when faced with an autistic adult head-banging to the point of bleeding. Creating an autistic friendly environment, addressing communication, autonomy and sensory needs can be a good start to proactive behaviour management. But community staff need to have confidence in their skills and knowledge to be able to do that. It isn’t going to happen more widely until the entire social care sector begins to learn enough about autism to really understand that autism is a fundamentally different way of being and approach the needs of autistics with fewer assumptions and an openness to those different ways of thinking and being.

I’m aware of a few providers doing some fine work in this area, but we need more. We also need more willingness from local authorities to think outside of the box and consider bespoke packages with sufficient funding and support for training to ensure good quality PAs equipped with real world autism skills.

Ensuring that your personal budget is legally sufficient…

The concept of just how much of anything, is sufficient, to achieve the meeting of assessed needs, is a vexed question in the Care Act.

Under the old law, references to a wide ambit of discretion, and to the need for an evidence-based rational decision about what ‘such and such’ inputs would feasibly achieve, and to the notions of adequacy and appropriateness, (benchmarked by whether an experienced professional would give cogent evidence explaining why they thought the package or budget would work, and notions of respecting established Human Rights as well), was the judges’ reaction in judicial review challenges by dissatisfied customers.

These principles were often used to limit the council sector’s tendency to want to fit the package to the length of a dodgy piece of string – the string around the remaining financial resources actually available at the time, to the council, to suit that year’s budget. But there was at least some legal principle that was hard won, and people only occasionally lost a case (like Elaine MacDonald in the incontinence pads vs mobility support at night case.)

Under the new law, there’s a definition of the minimum that a personal budget must contain, in a specific statutory provision. So we might see all that earlier case law being re-litigated, unless there is consensus as to what it really means; and this is where one would look to the Guidance, to find a steer.

So what does it say? I have highlighted the helpful and unhelpful parts, depending on one’s perspective, below!

    “The Act states the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs.

    In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.

    To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.

    Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs or ensure people are complying with legal requirements associated with becoming an employer.

    There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.”

I am thinking that it would be perfectly rational for a provider – even a really socially conscious one – to see individual purchasers, with their inevitable health and social care issues, as a bigger business risk – and less attractive, in a detached sense, than the council’s traditional big bulk order, for care and support services.

Personalisation of council commissioned care packages, clearly needs to be incentivised by a new and open commissioning style, not just imposed on providers, because it affects their MARGINS. But when a person is equipped to go out and buy in services with a direct payment, plus their own bit of money that was netted off the budget to represent the social care charge, the provider could be in a really difficult position, down the line.

If the direct payment rate to service users goes down, or more probably, does not go up, the following year, along with relevant inflationary measures, and the member of the public does not know how to challenge that stance on the part of the counicl, the poor provider has got to summon up real nerve to put up its own prices and have that ‘out’ with the needy person, instead of having an arm’s length dispute with the council’s commissioner or cost broker about its own fee.

Is this a deliberate aspect of making direct payments the preferred deployment route? (…the cynic in me is pondering?!)

Let’s keep this constructive, however. One answer to any council which offers a lower rate to direct payment clients than it does to its own commissioned providers is this:

     “Why is it less than you have to pay, please? I am not going to be a direct employer, thank you; I am going to go to the same agency as you did, and if anything, I expect it to cost me more than it costs you, not less. Shall we go and ask, so that we’ve all got a defensible evidence basis to go on?”

That would encourage providers to decide whether to charge direct payment clients less than other private clients, for one and the same thing, or whether to charge them at least a bit more than they would charge the council for a bulk order.

I think that if a person wants a direct payment and is otherwise within the conditions set out in the Act for getting one, and the provider market does not choose to peg its prices to direct payments funded customers, to the council’s contract rate for bulk purchases, the customer cannot be told to make do with the same amount as the council pays contractors. The amount would not pay for the same amount of care as the council had decided it would have to buy, in order to meet the needs. It would not be defensibly sufficient,

To my mind, the reference to the cost of ‘quality provision’ in the guidance only gets over this problem, if it implicitly means ‘Set the direct payment rate by reference to the cost of local “quality provision” EVEN IF THAT’S NOT WHAT the council actually contracts for, when directly commissioning services for the discharge of its own duties’! I think that the reference to ‘reasonable preferences‘ takes one no further towards an answer to this conundrum than the notion that the council’s own commissioning of services must be objectively reasonable – ie not stopping provision at 6 o’clock at night, just because the local market price goes up, at that point….

Conclusions on the law – what’s worth fighting about, if you are a customer, in legal terms?

I am not saying that a person has a right to be paid a personal budget in the sum of whatever they might demand. Nor that they are entitled to have their wants met for merely being able to articulate them. Nor that a massive difference in price, via different deployment routes for whatever market forces reasons applying in the area, would not be a legally relevant consideration to take into account, in finalising a hotly disputed care plan, with a service using customer.

However, I can’t wait for a council to be challenged for saying “Sorry, but you can’t actually have a direct payment, because it will cost us more that way, than it could cost us, if we only bought it in ourselves; we are saying that a direct payment is not an appropriate means for meeting your needs in this case, because of the cost implications”. I don’t think that cost can determine a question of judgement about what is an appropriate means to meet needs – it would mean that there was no real notion of a right to a direct payment at all!

Or for saying “Take this £x – or leave it” to a person who can show that the exact same quantity of the service response that the council would have had to budget for, will cost a small amount more, if bought with a direct payment, from a local provider….

Justifying how either of the stances criticised above, promotes someone’s wellbeing, when one of the s1 factors is control over services, and another is economic wellbeing, should be a challenge worthy of a very senior manager, I am hoping!

Bring it on!  – so that we all know what the law is supposed to be – is what I say!

Hopefully a helpful note for councils!

The example on p 193 of the guidance, in para 11.28, please note, involves paying a direct payment client some 35% more than it would have cost the council, but for a markedly DIFFERENT service from a different agency, and one with an element in it that no council could ever be required to buy.

So what that example is seeking to illustrate cannot conceivably be the USUAL every day approach to care planning in my view – merely one that is legally OPEN to a council, occasionally, if it is generous enough to dip into its reserves and call it ‘Best Value’! This is funding a want and not the meeting of an eligible need, in my analysis. But it’s still legally correct to say it’s important for councils to at least consider adopting this approach, sometimes, because they do have powers to meet needs that are not eligible – in s19 of the Act. But I bet it doesn’t happen too often in real life!

Apart from the fact that the money is getting tighter everywhere, and not more plentiful, I am really hoping too, that no council would pay out 35% more than was necessary, simply on a “He who Shouts Loudest” basis. If so, we would have taken a GIANT step back, towards anarchy and arbitrariness, and away from the Rule of Law – sorry to sound pompous!)

Points for providers

In the meantime, before case law starts to emerge, providers everywhere may be being asked to tender, or if selected, to sign up to council contract terms on the basis that they will not charge other clients (if council funded) more than they charge the actual council.

I don’t think that that works, in terms of the law of privity of contract, and I would encourage providers to think twice before agreeing to go that far. But I do think that providers might be asked to compete for tenders on the basis of VOLUNTEERING to self regulate in that way, as an aspect of social value, under the 2012 Act, and in light of the loosening up of procurement law, which occurred earlier on in 2015…