Category Archives: Uncategorized

The first ever proper plan to pay for sustainable social care? Hmmm. Cap it a Little? Or Cap it a Lot?

Warning: this is serious, informed commentary – not politics!

The Conservative Party’s proposals on social care [DID!] revolve around aligning the means testing rules for domiciliary and residential care charging.

Firstly this will mean that one’s share in the value of one’s house will be counted in the calculation of one’s means, even though one is still living in it – and needing to spend money on it, and despite living there alongside a partner and other family members. This will increase, markedly, the number of home owning and needy people, more of them elderly than any other kind of client, being charged significant or full cost for their care for the first time. It will make it much less sensible to pay off one’s mortgage, too!

The manifesto does not say anything about disregards of the house, or even about the State waiting for repayment where surviving partners or other family members living in the house are concerned. Jeremy Hunt must have said something about that in trailing the proposals the night before on TV, so he may know better – but if there is no provision for that disregard and deferral until other people’s later deaths, it stores up a tremendously divisive issue for the consultation that would have to be conducted first (well, AFTER the election, no doubt).

Secondly, it is proposed that everyone will be left with as much as £100,000 and receive care ‘for free’, after depletion of one’s assets to that much higher level than the current minimum threshold of £14,250, below which care is not paid for out of one’s capital at all.

The £100,000 referred to is to be ‘the floor’, according to the manifesto – not the ceiling, meaning that nobody will be paying for services out of capital with less than that sum. This section is replete with confusion.

Nothing was said about paying out of ongoing received income, as happens in a care home setting: Mrs May said ‘NOTHING will be paid [by elderly people] whilst they are still alive’ when launching the manifesto – so that aspect of the proposals will need careful attention at consultation.

The absence of any detail about an upper ceiling (if this is the floor) is puzzling: Mrs May referred to the new threshold as quadrupling the current one – seemingly referring to the UPPER threshold of £23,250. But that is not the point at which care becomes FREE at all (whatever journalists insist on writing in so-called ‘briefings’); it is the point above which one pays the FULL cost of one’s care in a care home, instead of getting ANY local authority subsidy, via a charge from the arranging council, for LESS than the full cost – and above which, one CAN lawfully be told to go off and buy it for oneself (unless one is mentally incapacitated).

So, either there has been a mistake there in the manifesto writing, and the new threshold is meant as a ceiling, below which one’s capital will still be counted as tariff income and thus relevant for ongoing charges for at least a further period, until one reaches a MINIMUM threshold – or it really is meant as a floor, and no ceiling is planned. That would make no sense.

Thirdly, the manifesto suggests the option of extending deferred payments for care, to cover home care costs – so that one can consent to placing a legal charge on one’s house for securing the loan to cover the cost but still stay at home and receive chargeable services, there.

However, these schemes can already be extended to home care, under the Care Act 2014 – in the discretion of the council, for that purpose, as well as for residential care, albeit that the value of the house is not currently counted. It is thought that the reason they are not used in this way, in practice, is because councils cannot afford to pay for care up front, at the low level of interest that the deferral is allowed to attract. We have heard more this week from various finance bodies saying local government would have to be allowed to borrow in order to finance this level of contracting up front for people for ALL that care – care home AND home care. It is hard enough for them to meet the demand for deferred payment schemes for residential care clients, and nothing has been said about the funding for local government of this new proposed level of loan under-writing obligations.

Fuelling deprivation of assets disputes?

The alignment of the two charging schemes immediately presents a strong incentive to pass the equity in one’s house ON to one’s closest relatives, before or very early on in one’s deterioration or concern about the future, and a nationwide crossing of one’s fingers that one’s offspring will ‘do the right thing’, if one becomes needy. The way in which a trend in that direction would fit with rules on tax on discretionary trusts set up during one’s lifetime is also a very difficult topic – a field day for lawyers.

The alternative is having faith in the idea that the State will still provide what could still be described as a decent safety net. If no changes to funding going INTO the sector are made alongside these proposals, that would be a risky bet for middle-aged Middle Englanders, of whom I am one!

Getting rid of one’s lifetime security, in order to preserve it for one’s offspring, will also give rise to more widespread accusations of deliberate deprivation of assets – and legal difficulties – because aligning the two charging systems would mean extending the current residential only ‘deliberate deprivation of assets’ provisions into the lives of less dependent people who are still trying to live normal lives in the community – where their money remains, in theory, their own, to spend as they like.

When people do choose to rely on the council for home care, they must still be able to spend their own money on their less pressing needs, or wants, and contend that it should be counted as disability related expenditure and thus get their charging assessments reduced – a point not covered in the manifesto, and one that will fuel much controversy, in practice.

The proposals would necessarily entail two further changes: regular revision of one’s financial assessment by reference to how much one actually has left, instead of notionally left – meaning many more charging officers need to be employed – and a proper national policy on the extent to which one can legitimately carry on treating oneself or one’s relatives to nice things and experiences, once one needs care.

This doesn’t sit well with the duty in the Care Act to promote well-being in all that a council does!! It doesn’t sit well either, with the Conservative ethos of ‘small government’!

This focus on who’s disposing of, or spending money, and how, and why, all the time, will likely turn councils into the enemy of many MORE of the people whom they are trying to support with care – the antithesis of the intentions of people who framed the Care Act to encourage people to look at the Council as an expert friend when in need, for everyone, no matter what their asset base.

A journalist asked Mrs May what the justification was for different financial consequences for people with parents suffering from dementia as opposed to those whose parents die suddenly of a heart attack, and she did not actually reply. That is where the reference in the press to a dementia tax comes from.

Another irony is that the well-off, with any chance of leaving £100,000, will probably take actual note of these provisions, whereas when the threshold was a very low one, the thought of turning to the State was probably not on their radar at all. The provisions and the very public debate about them, NOW, may well alert the better off to the financial advantages of claiming NHS Continuing Health Care, as a means of scotching the social care charges altogether – especially in cases of chronic long term degenerative diseases such as dementia.
That is not what any health and social care integration project really needs right now, as conflicts over a bright line between the two statuses are the very quickest way to personality-driven hostilities between generally poorly informed staff at that interface, in CCGs, CSUs and councils.

Deferred payment schemes and the absence of financial services products through which to finance alternative options for buying care

Nobody has to sell their property even NOW, under the current legal framework, to fund their care.

Deferred Payment Schemes

There are already deferred payment schemes in operation, secured by a charge on the property, when a person needs to pay for care in a care home. Stephen Webb has FOI’d councils this week and found vast differences in the extent to which a deferred payment would seem to be available in the real world, although it is a mandatory option for someone who wants one and qualifies with regard to sufficient equity in their property. So the legislation already makes councils the behind-the-scenes owners of properties with low interest rates, and makes them have to pay the costs of care up front. For people preferring to stay in their own home, the sad fact is that insurance or bond-based products have not been forthcoming from the financial services and equity release market for people to buy into.

I think that that is partly because of the impossibility of distinguishing between a want and a need, let alone between what should be free response by community health care services to an NHS health care need, and what should be chargeable as social care if provided by the State. The insurance market doesn’t have the public law legal acumen to become embroiled in that sort of debate, especially not if replicated in hundreds of distressed households up and down the country.

No detail has been given about how the commercial attractiveness of the notion can actually be increased for the market’s providers; and without that, people won’t be able to avoid lumbering their partners and families with the cost of care.

Carers’ Unpaid Leave…

Finally, a new statutory entitlement to carers’ leave – unpaid – is promised – so that one can be assured of a return to work when compassionate leave is no longer needed, will be seen to hurt business in terms of skills loss. It will force more people on to Carers’ Allowance, too, as they have to live on something, and put up assessment and personal budget numbers for carers under the Care Act.

But the greater concern is surely the disproportionate impact on women, and gender equality in society generally?

It is still the position in this country that women are more often carers than men, and women are often the lower paid of a couple, making it make sense for the woman to be the one who gives up work.

I think that the underlying economic reality is that carers, in the main, women, will be persuaded for the good of their families they must go back to being the heart of the home and provide the care, or even stay with a partner whom they no longer wish to be with, in order to preserve the assets for the children.

What was not mentioned in the manifesto?

No commitments with regard to clarifying the ambiguity as to the sleep-in time counting rules, for national minimum wage levels – which are crippling the sector at the moment, and embarrassing HMRC inspectors; no commitment to banning councils from commissioning from agencies that use zero hours contractors or agencies that don’t pay the living wage. And no mention of putting back any of the funding that has been taken out over the last 5 years, and contributed to the crisis that the sector is in, so far as insufficient money even to meet statutory duties is concerned. No reference to THE CAP, until we were later told it was there all the time, in the backs of the authors’ minds…


Further comments

Post code differentials

Local Authorities use national guidance with minimal underpinning in regulations, for charging for home care services. They are allowed to use their discretion and local charging schemes vary. Aligning the approach to the counting of one’s house towards the means assessment, is not going to change local variations in other respects so care costs will still depend on where one lives and the politics of one’s local area.


Is this a resurrection of the Dilnot proposals?

The Care Act Dilnot provisions, deferred until 2020 after the last elections, involved a different kind of a concept to a floor below which your money would be left in your hands: it advised a cap on the maximum amount of notional spend a council’s client (OR a privately contracting ‘above threshold’ person needed to have spent on them, in relation to their needs, before care would become free (the cap having been settled last time round at £72,000). So the rich did well out of that, and could do even better if they accepted coming through the council’s arrangements after getting the meter ticking, by benefiting from the council’s bulk purchasing power to obtain a lower fee for care.

Before the U-turn, under the Conservative proposals, a person who was rich but ill for a very long time would not have got the benefit of any cap on their care costs – not even notionally through a local authority objectively assessed rate, nor in real terms.

Now, after the U-turn, it appears that the Conservatives have been reminded that even deferring the Dilnot lifetime cap until 2020 had already attracted much criticism first time round, and that it is an essential feature to offer to UPPER Middle England – to people who might like to keep £100,000 of equity, and not risk their spouse having to downsize if surviving them, AND wish to spread the cost of what will otherwise be insurance across the whole population. Even though the ‘upper threshold’ was going to be £118,000 under Dilnot, and the cap on a person’s spend, £72,000. It seems that there is no prospect of the population being told WHAT the spend might be – Mrs May even mentioned £10K to Andrew Neill, which CANNOT possibly be correct!! So I wonder who is making this stuff up, personally.

A problem for the Conservative dogmatist however, is this.

The Dilnot provisions would have impacted on the care home market and got rid of the private client subsidy – by giving everyone, however rich, an irresistibly economically rational incentive to use the local authority route into social care.

That would have meant central government would have had to have provided more funding to local authorities to meet the overall ‘bubble-up’ costs of the policy. This would have been needed to keep the sector afloat once the private subsidy evaporated – although in that one-off measure, one of the greatest iniquities operating in the sector could have been got rid of. That was its genius. And that was why it was almost bound to be dropped – no political party, let alone the one last elected, was willing to put up taxes for the ‘Cinderella’ service of social care.

A £100,000 ‘floor’ will not achieve that effect – there was no mention of a meter for one’s notional costs, or maximum SPEND – so there would have been no need or reason to entrust the shopping for one’s care, to one’s council, in order to start any meter towards a cap, running. It would have left better off people – culturally disdainful of social services perhaps – with more reason to make the choice of buying care in privately – if they wanted to spend their own money – rather than having the council control the question of whether they are eligible at all, and the size of their care packages, subject only to judicial review.

I guess that would have kept the numbers down for social services, and would have fitted with the fact that they are all severely under-staffed after 8 years of austerity, even now.

But if we ARE now having a cap, and it is going to be a sort of Dilnot cap, the idea of Upper Middle and Middle England submitting to social services assessment, and a notional spend, without anyone ever challenging the local authority view through public law proceedings, is about as likely as the Conservatives losing the election. The 4.5 billion taken out of social care would HAVE to be put back into it for more staff, more training, and an appeal system, if not a tribunal.

For extreme anoraks, that’s a really interesting prospect whilst the Government has STILL got to come off the fence about a Tribunal for all the Liberty Protection Safeguards challenges that might be better off dealt with there rather than in the Court of Protection. Isn’t life interesting?

The conclusions from the Warehousing and Cost-Capping webinar

Here is a reduced size powerpoint with the conclusions, in legal terms, about the dodginess or otherwise of warehousing and cost capping

Warehousing and Cost Capping Legal Principles – conclusions

And for those who want to purchase the full length recording, and reasoning behind the conclusions, all you need to do is to write to me at belinda@careandhealthlaw.com for a coupon code which will discount the price of a recording of the event (opens 6 times) to £50 + VAT.

Purchasing the recording keeps the materials private, and protected, given the effort it’s taken me to get good at this topic, and the absence of any government funding! It also enables you to pause the recording and see the materials.

All proceeds from this particular webinar are going to CASCAIDr, my new venture, launching soon, as a free legal advice charity, to try to stop the rot in legal literacy! 🙂

Is ‘warehousing’ in Care Homes actually unlawful?

I’ve been surprised at the furore going on in the HSJ and Guardian, this last week, about the most juicy and important test case issue of our time: the question of the rights and wrongs – in legal terms – of a public body’s offering someone a care home place because it is cheaper than keeping them at home. And then offering them the lower sum of money of the two settings, if the person is intransigent enough to say no, because they’d prefer to stay at home and be cared for there….

I say I’m surprised because it’s been going on for at least 15 years, in local authority land, for people who used to be referred to as ‘the elderly’ – but never scrutinised in the Administrative Court, on a judicial review that’s been allowed to go to judgement. No precedent has ever been set, therefore.

I have been punting around the possibility of my airing a reasoned and legally well-informed answer amongst all the interested journalistic parties – for one thing only, in return, if they can’t PAY for what is a proper analysis: publicity for the charity that I am about to launch – a charity that will provide free legal advice to a specific group of people, and get funds raised for them through crowd-funding so that they don’t need legal aid, and then even front their cases with them from time to time, so that they can’t be bought off at the last minute.

I haven’t had any offers yet, mind you! Is that because proper legal analysis is considered boring, or puts an end to the column inches one can generate by emoting? Goodness knows.

So I am thinking of doing a webinar about it. Not for a customer with an agenda, but for the sheer faith I have, that people working in the sector will actually be interested.

I will say this about the issue though: the legality or otherwise of ‘warehousing’, as it’s being somewhat emotively called – would be a big ask for the charity to take up, as its first ‘public’ cause for actual litigation, because it’s a genuinely moot point, in legal terms. It depends on oh so very many of the specific circumstances of the person on the receiving end of such largesse from a council or a CCG – and it could go either way, depending on the specific case that is chosen for a challenge.

The funny thing is that it’s been going on in social care for at least 15 years. No council has ever allowed itself to be judicially reviewed, for doing it, and that suggests to me that they’ve had legal advice that has convinced them that they were probably on a sticky wicket.

But that was under the pre-Care Act law, and times is tough, now: LAs AND CCGs are getting closer to the edge, and someone is bound to think it’s worth the fight, and the risk of setting a precedent, sooner or later.

Being very comfortable with public law principles, I think that I know what the answer is, and why. And I can identify the case law to back it up.

So here is an offer, and only slightly tongue in cheek, given the way England seems to work these days:

Given that even legally literate people need to eat, I’m wondering whether anyone would anyone like to BID for the story, in terms of money or publicity for the charity? As a sort of friendly start-up donation? 🙂

It would be a completely neutrally written piece, because the answer would only be a set of thoughts about public law, defensible decision-making and legal literacy, not a real case. It might save thousands of pounds of court fees, and who knows what it would do for the people affected by such policies, and the reputations of the managers espousing them?

I am hoping that this RANT by me, has got the sector interested in what needs to be done about the sector-wide lack of legal literacy fogging up strategic thinking! And that a webinar has got to be a better idea for getting the word out there….

So here it is: 16th Feb, 2pm for just over an hour. Please send me questions or thoughts in advance, by commenting on this post, below, Here is the link: IS warehousing in a care home actually unlawful? Free webinar 16 Feb 2pm

Please Tweet to me @BelindaSchwehr or message me on belinda@careandhealthlaw.com as to whether it should be free or not – maybe free if you just want to listen, but chargeable if you want the recording? Or should it just go up on YouTube, and we’ll see whether any LA or CCG changes its plans? I gather one has done so already, since Fleur Perry’s FOI question revealed the facts about the extent of the practice. And then I’d be happy to send you stuff about the charity too.

The charity is going to be called CASCAIDr – standing for the Centre for Adult Social Care – Advice, Information and Dispute Resolution – and I am looking forward to prising those legal floodgates open soon! #CASCAIDr, naturally.

CASCAIDr will write letters before action in proper Pre Action Protocol Form, to councils and CCGs thought to be breaking the law, in many more ways than just in terms of cost-capping. It will support people to crowdfund on CrowdJustice if these letters make no difference. It will not accept service contracts from any public body, because we all know what can happen to a body’s independence and assertiveness, when service provision becomes the means of remaining viable. It will be a hub for preserving what is good for citizens in the legal framework, and reinvigorate some sort of respect for the rule of law, perhaps, which is something that we ALL need, in extremely difficult times.

Important survey – identifying the worst Care Act practices, for CASC-AIDr, the new advice charity launching in 2017

There’s a separate post on this site, about my latest cunning plan to preserve some notion of law mattering in adult social care – a post about a new charity, which I am launching in early 2017.

It going to be called CASC-AIDr from now on – the Centre for Adult Social Care Advice, Information and Dispute resolution.

And that is just what it is going to provide, and some of it for free, for those who need it the most.

I intend to focus its work on stopping the 5 most obviously unlawful things going on in Adult Social Care during this dreadful period of disrespect for legal principles and duties – while councils everywhere are budget obsessed, despite their applying regardless of lack of money (clue as to the solution for the disbelieving: look in Reserves, for funding statutory duties: it’s illegal not to consider reserves, as the West Berks case proved earlier this year!!)

So here’s a short survey which I have put together – it should take about 10 minutes, unless you find it so entertaining and instructive en route that you just have to slow down and take a few deep breaths.

Survey to identify what people think are the worst practices that need legal scrutiny

There’s a call for help at the end, and I’d be delighted to hear from people, separately, or from within that survey, on belinda@careandhealthlaw.com, if you think you’d like to be involved in any of the following ways:

Volunteering to get someone’s problem out of them, or to support them to get it, down onto a contact form, so that it’s in a shaken down state which can be analysed – over the phone or by email?

Selling the charity your advice, if you are Care Act confident and competent, and happy to do it for a self-employed reasonable flat rate?

Liaising informally (paid as self-employed, or unpaid) between the person with a problem, and a barrister or solicitor where the law is not so clear?

Admin, Fund-Raising, Marketing or specialist services such as managing a WordPress website for the charity (paid as self-employed, or unpaid)

My hope is that even fed-up social work staff will be able to refer their disgruntled customers to this service, which will cheer a lot of them up, I am thinking! Seriously, we all need social work staff to know that know they are struggling, and that we need them to continue to be true professionals in a very difficult period.

I am assuming that anyone who has ever had advice from me, will happily make a small donation, and I can’t wait to get started!

If you are an advocacy organisation, please get in touch, to collaborate, even though the charity won’t be providing free advice to everyone!

And if you are a provider, seeing your own organisation going down the plughole because of local authority cuts to care packages, this charity is the way ahead for you – you can refer clients without fear of embarrassment – but providers everywhere will need to make a donation, if it is ever going to work!

Belinda’s direct action response to the government’s Autumn Statement – which effectively ignored the crisis in social care

After the New Year, Care and Health Law will no longer be offering half an hour of completely free advice about adult social care rights, to any and all individuals who ask for it, because Belinda is on her knees from doing so, and a girl has got to make a living somehow!

However, Belinda and other experts in the field will be selling their services to a new Charity, at a charitably low flat rate – a rate that enables advisers to sustain their expertise, whilst responding to the widespread evaporation in legal literacy in Adult Social Care.

The Charity will be called CASC-AIDr – the Centre for Adult Social Care Advice, Information and Dispute Resolution, to be precise. It will be online, virtual, and have no employees at all – just trustee directors, volunteers and relationships with self-employed advisers, lawyers or companies.

CASC-AIDr will work tirelessly for the furtherance of fairness and legal principle, in adult social services.

The service will commence in January 2017. The Charity will be funded by members of the public and housing and social care providers. Service users, family members and carers – even social workers! That is, anyone who thinks it’s better that there are some actual principles underpinning who gets what…

Enlightened business-savvy housing and social care providers will contribute, too.

Their financial security and sustainability is directly related to local authorities’ awareness (or otherwise) of people’s rights to a decent care package, and yet they are naturally uncomfortable about paying for their customers to have get advice about having a go at their purchaser.

One day, though, prospective customers may well ask providers if they support CASC-AIDr, before making a decision about the provider’s offer, so there’ll be a logo for a provider to add to its paperwork, acknowledging its contribution.

The suggested level of donation is £1 per client per year for companies, from any sector.

There are some 673,000 people having a state funded care package, at this moment.

MyDonate will be the platform for giving through – ensuring the maximisation of the value of donations.

Donations will of course be able to be made tax deductibly for companies, whilst the Treasury generously contributes GiftAid as well, for taxpayers’ contributions.

The logic is that housing and social care providers will be happy to make a donation that is tax deductible, to the running of a fund which their clients can access, without any visible link between them and the problem – with no connection between the timing and size of the payment, and the need for the advice or the size of the problem – all below the radar, so far as the local authority commissioner is concerned.

Why would anyone want to contribute?

CASC-AIDr will thrive, it is suggested, because the advocacy and advice sector, and even access to formal legal advice, have all been squeezed out of funding over the last few years.

The Treasury’s grip over austerity, and the dismantling of a senior policy team for social care in the Department of Health have meant that councils have been encouraged to ignore the new law that was supposed to modernise social services provision. Those councils have even been incapable of persuading their party political mates in government to put their money where their mouths were, when the Care Act was passed – no more money for social care in today’s autumn statement, despite widespread calls for action.

The Charity will fund the provision of expert analysis and consultancy about the legal framework – and ultimately access to direct public access barristers, skilled in this area of law.

The output for members of the public will be a succinct statement of why a council is in the wrong, if it is indeed in the wrong, and acting indefensibly, in terms of public law, regarding a person’s assessment of needs, eligibility, their care plan, their package or a review.

The advice will enable ordinary people to set out for councils’ management and Members why they will be successfully judicially reviewed, if they don’t apply the Care Act, defensibly and in good faith.

The advice output will be geared to the resolution of disputes rather than the generation of litigation, but over time, its existence will re-invigorate regard for legal principle amongst the workforce, management, legal staff and Members. And it will mean that legal framework training will be a necessary part of showing that a public sector body with statutory duties has got at least halfway competent knowledgeable staff!

Those council clients with the most intransigent and legally illiterate councils will get the most benefit from the Charity.

And those members of the public affected by the most strongly arguably illegal council decisions will be able to be supported to CROWDFUND, on a related site, for an application for permission for judicial review, regardless of their means.

This means that the systematic cuts to the Legal Aid system, and any government’s inevitable control of the central money supply for supporting the enforcement of people’s legal rights, won’t matter quite so much, in future.

 

Please contact me, Belinda Schwehr, on belinda@careandhealthlaw.com, if you would like to assure me of your support, or make suggestions, or ask me a question. PLEASE put the name ‘CASC-AIDr’ into the email header.

Here’s a survey monkey survey to help me focus the charity’s work!

Survey to identify what people think are the worst practices that need legal scrutiny

Belinda’s Alternative Autumn Statement!

Nobody seems to disagree, as such,  with the assertion that Adult Social Services and Care are in crisis.

The adult social care budget constitutes the biggest area of duty-based and discretionary spend for councils, and supports some of the most vulnerable people in society. Ensuring sustainable levels of funding is critical – but no party is promising (rather than threatening) to raise tax to make up for a decade’s disastrous economic policy in this field.

The winter A&E pressures, lonely older people, caring families unable to work, and disabled people struggling to live independently are all urgent, challenging issues for any Government, but the current sector and departmental leadership has seemed worryingly incapable of making the Treasury LISTEN.

Analysis by the LGA estimates there to be a potential funding gap of at least £2.6 billion, including £1.3 billion by the end of the decade and a gap in the region of £1.3 billion now, that reflects the difference between what providers say they need and what councils are able to afford.

A raft of organisations agree that short term interests of any party in power are a poor guarantee that decent care and social work will exist when our own relatives need it.

These include the local government ombudsman, the Care Quality Commission, ADASS and the LGA (representing local government), the Care Providers’ Alliance, representing at least 6 national associations of care providers, The Independent Care Group, The Kings Fund/Nuffield Trust and Joseph Rowntree Association and the Centre for Welfare Reform.

The Association of Directors of Adult Social Services (ADASS) warned earlier this year in its annual budget survey report: “Financial risks are rapidly increasing … the quality of care is compromised.”

The King’s Fund/Nuffield Trust 2016 report, Home Truths, concluded that councils were struggling to meet basic statutory duties.

Independent Age commissioned an analysis of a range of migration scenarios pre- and post-Brexit. It found that the workforce gap could grow to anything from an optimistic 750,000 workers to a pessimistic 1.1 million by 2037.

In 2016 its annual state of care report  the CQC issued its starkest warning yet. The “fragile” social care system is approaching a “tipping point”, it says. Far fewer people are being supported than those who actually need help. Steady attrition of provision is becoming more likely. Providers are (at last), handing back contracts, selling up and exiting the market. Investors considering the returns on care sector investment are also walking away, choosing to finance up market provision for those who can pay.

In adult social care complaints investigation the ombudsman (the LGO) upholds around 58% of complaints related to social work and care home and home care. The ombudsman has seen a 25% rise in complaints about home care alone. There’s been a 6% rise in complaints and enquiries about all areas of Adult Social Care in the last year; and 70% of detailed investigations were upheld about care planning – which taking into account complaints about assessment, as well, generated 600 local authority conduct-related complaints to the LGO.

And responding to a Public Accounts Committee report on the financial sustainability of local authorities, Cllr Claire Kober, Chair of the Local Government Association’s Resources Board, said: “Councils experienced a 40 per cent reduction in core central government funding over the last Parliament and funding pressures will continue over the next few years. This means difficult decisions continue to have to be made about which services are scaled back or stopped altogether to plug funding gaps.

The current funding settlement entirely disregards demographic change, the pressure on the market, and the impact on people receiving care. The Treasury thinks it has fixed the problem with the social care precept, a regressive tax that raises funding where it is needed least.

We need a government that will take heed and action to reverse a trend of gradual but definite erosion of this sector, a lifeline for many vulnerable people. The sector is a vital connector to other public, private and voluntary sector services. And it contributes some £43 billion to our national economy (see the LGA’s report: state of the nation: adult social care.) Allowing the axe to fall on social care, in the context of an ageing population, is ECONOMIC  and LEGAL illiteracy, piling greater pressure on an already overstretched NHS. 

The Chancellor’s own Autumn Statement will hopefully take some notice of all these warnings and calls for action, for fear of making the Conservatives appear determined to go down in history as dismantling what should be the residual safety net in any civilised society. That is, the right to be cared for, if one has insufficient money or support or capacity to meet one’s own needs.

Ros Altmann has today suggested that we are sleepwalking into a care funding crisis, in terms of pensions inadequacy – so let us hope that she is not ignored too.

Adult social care should be everyone’s concern, now, not just at times of personal crises, when need strikes one’s own family….

 

 

 

Court Skills Training – geared to adult safeguarding, capacity disputes and deprivation of liberty challenges

I have a trainer on my books who’s skilled in local authority adults and children’s law, and well-versed in court skills, related to adult safeguarding, capacity disputes and deprivation of liberty challenges.

She’s created a course for me, that’s getting universally strong feedback.

It uses a drawn-from-life scenario which gives actual practice in both questioning and being questioned by opposing parties’ advocates. The roles provided are local authority staff roles, in a scenario where the OS and the client’s relatives take a different view to the council. The scenario can be adapted to involve considerations of continuing health care status as well, so works for CCG staff, not just local authority’s officers.

The structure of the 2-day course gives half a day of the theory and preparation of evidence, for up to 18 members of staff, and half a day’s practice in dealing with questions, for 4-6 learners at a time, (so on the same day as the theory is delivered, or over the next day for the other 2 groups of learners).

This area of work is never going to get less legally complex, so we hope it’s timely and cost-effective for maximising staff’s confidence in advance of Court appearances – and therefore supporting delivery of Care Act implementation.

Details from debbie@careandhealthlaw.com or belinda@careandhealthlaw.com

 

 

An important new case on use of the Localism Act General Power to accommodate adults with no other recourse to help, not even under a human rights driven assessment for Care Act duties or powers!

The Queen (on the application of GS by her LF the OS) v Camden LBC has just been decided in the High Court, on 21 Oct. Here is the link http://www.bailii.org/ew/cases/EWHC/Admin/2016/1762.html [2016] EWHC 1762 (Admin)

 

It has held that the General Power under the Localism Act can be the basis for delivery of a human rights driven service in the shape of accommodation for even non-eligible needs under the Care Act!

 

I take this to be a significant development of the state of care and support law, firstly in the PSIC/NRPF field, but also beyond cases in which immigration status is relevant, beyond that which has previously been settled.

 

I take it to mean that accommodation that’s been provided to an adult, temporarily, by a council, for the meeting of urgent needs, pending consideration of social care needs, and human rights considerations, cannot be withdrawn just because there is ultimately a conclusion that a person is not in fact eligible under the Care Act for accommodation, and not in line for a consideration of any s19 Care Act power (because of not having any needs for care or support) if in fact that withdrawal would be a breach of Convention rights.

 

To my mind that changes the face of local authority obligations and constitutes a very large new burden – because it could apply to anyone street homeless and in a dire situation, regardless of their immigration status, or their eligibility for adult social care, once denied an accommodation related service under the Care Act, even if they were also not able to access Housing or Homelessness help.

 

This new obligation would be a LOCAL AUTHORITY obligation, rather than a Housing or Social Services obligation (as it is when the person’s situation justifies using the legislation despite the prohibition on help to people with a certain immigration status, since social services is the agency of last resort).

 

If it is a new burden, then surely central government needs to fund until it no doubt finds time to legislate to override the effect of the decision?

 

My next specialist webinar on Wednesday morning 2nd November is about NRPF clients’ rights, in any event.

Please contact me on belinda@careandhealthlaw.com if you would like to be given a free seat in that webinar (no access to recording without a purchase however!)

 

What if supported living set-ups were turned back into residential care homes? Or even made ‘better’?

Rob Greig has written in the Guardian that proposals to meet people’s needs in care homes rather than in supported living turn the clock back, and others have agreed it would be a return to the Dark Ages.

My position (wincing at the flak it is bound to generate – so please read to the end before outpouring on Twitter, and remember that my AIM is true and that I campaign for properly funded adult social care and am not the enemy of the people….!) is simply that this is not necessarily the case.

Before it could possibly be true, one would have to consider some of the NOT so great things that have been done in the name of normalisation of the lives of people with learning disabilities, in supported living – when really, policy has always been driven by accessing alternative income streams, the fit with the Housing Benefit system – and held back by the completely legally illiterate assumption of policy makers that one didn’t need to understand a contract in order to sign it, or take up its benefit…

This piece is not an exercise in ‘bigging up’ care homes or what the current residential model tends to offer, or could offer. It’s just a focus on the legal facts about the system-wide disingenuousness in the Supported Living sector – that’s there for anyone to think about, if they didn’t all have an organisational or sectoral agenda to serve.

Readers with grey hair will remember that care homes were de-registered en masse over the last 15 years,  in order to enable the owners to turn themselves into landlords, and keep the residents on as tenants – tenants who could get Housing Benefit and Transitional Housing Benefit for non-care tenancy related ‘support’ services (and then THB became Supporting People grant, for that type of lower level input – which was not regulated by CQC at the time).

Older readers will also remember all of the manoeuvring of services into that concept that had to be done – and then undone – when Supporting People Grant was terminated, and the services had to be regarded as re-commissioned under the still pre-Care Act legislation, and now the Care Act. These sorts of services are now referred to as part of the response to ‘inability to achieve maintaining a habitable home environment’, courtesy of the Care Act Guidance!

SOME readers may recall that the Alternative Futures saga established that the predecessor of CQC had rightly regarded an establishment as continuing to be registrable when it was shown that the arrangements for the care together with the accommodation were integrated, in legal form, in the tenancy, as well as through the real life relationship between the landlord and the provider, and thus constituting the provision of care together with accommodation.

Readers will now also perhaps grasp why we have had 5+ years of the Court of Protection needing to make single orders and deputyship orders to regularise the tenancy arrangements of all those people externalised by government edict from NHS long stay hospitals and PUT into supported living tenancies without mental capacity. Valuing People’s original vision was that it didn’t matter because as long as rent was paid, the tenancy would be voidable only when someone on the client’s side needed it to be. But loads of those tenancies had never even been signed or signed by the occupant at all: the sector thought that people’s mums, dads, vicars, circles of support, sometimes the care manager or even the bloomin’ landlord could just do the signing for the incapacitated person. And this was done to further their RIGHTS, mind you. I despaired at the time, and will therefore still bang on about legal literacy, even if I do sound like David Brent by now…

Human Rights and the UN Convention

Proponents of supported living often contend that article 8 ECHR and the UN Convention on the rights of people with disabilities entitle everyone to a home that they are the owner or tenant of, ‘in the community’.

But this is not the interpretation that any other signatory country’s courts have put on the rights mentioned. Residential care homes ARE in the community: they are lawful responses to the duty to meet need in national law, and people have rights to choose which care home they want to go to if they have capacity and are the clients of the State; if they can’t exercise those rights, a best interests decision has to be made (and no deputyship is needed). None of this means that an old-fashioned residential care home would ever be suitable for a young person with complex needs, but an appropriate one would need proper funding!

Under the ECHR, Article 8 rights are to respect for one’s home, not a right TO a home, let alone a home of an unregistered status regardless of one’s needs.

In discharging  the duties under the Care Act of course the council has got to abide by Human Rights, but it does so by weighing up all the other considerations, including whether it is even feasibly possible for a person to BE CARED FOR suitably in their own home, even if money were no object. The NHS can’t be made to care for people in their own home, regardless of the cost, and councils are no different, it seems to me.

The right to accommodation in the Care Act is to eligible needs related accommodation, not to housing. I am not saying that housing cannot be provided, only that there needs to be a very pressing reason why the needs can only be met if housing is secured, before Housing Act functions are superseded by Care Act duties. The only reference to suitability of accommodation in the Care Act is part of the list of features of an individual’s wellbeing that must merely be promoted; it does not constitute an absolute duty to house in ordinary housing, where Housing owes a duty or even where Housing does not or will not; not even if one is otherwise eligible for care and support services – for instance, there are plenty of people with an immigration status who are not able to be housed by social services.

Looking ahead:

Rob Greig’s article features news on Rochdale’s proposal to recommission services for about 260 people costing on average about £872 a week, in supported living, potentially but not exclusively in residential care homes.

I don’t think that Rochdale will be the only council thinking that a solution to slashed budgets is to return the status of premises to that of registered residential care, whilst trying to preserve the concept as a personalised model for independence.

Look at the response to the Law Commission’s consultation on reforming DoLS:

  • “Many felt that the distinction between supportive and restrictive care was without meaning given the apparent lowering of the threshold for deprivation of liberty following the Cheshire West In other words, it was argued by some that almost all people who lack capacity and who were living in a care home or some other form of care environment will satisfy the acid test.

There’s a bigger elephant in the room however, in this debate, to my mind: 

What about the ticklish problem that the whole notion of supported living is based on the received wisdom that there is something out there CALLED ‘supported living’ that exists to be bought, by councils, as such, as a Care Act response to needs, and that it is not residential care?

In legal terms, there is no such thing as ‘Supported Living’ in the Care Act’s s8 list of things that can be bought in order to meet assessed eligible needs.

There is care, support and accommodation, and facilities – perhaps as a mop-up term for anything even remotely unusual.

Accommodation as a Care Act response is either the purchase by the council of appropriate care together with the accommodation, where the care is such as to constitute personal care as defined in regulations, in which case it must be in CQC registered accommodation – OR a placement in unregistered accommodation, such as specialist mental health rehab supported living where the occupants have no tenancies, as such, because the council is paying the whole cost to the provider. In some such places, I think that some occupants do still get HB, because the premises aren’t registered, and because they can show that they will ultimately be charged something by the council, in respect of the accommodation as well as the services, which is the test for HB – not that the benefit applicant is charged rent by the actual landowner.

Supported living packages, as the sector thinks of them, are actually completely different: they are the purchase of personal care, care or support, or a mixture of the three, for delivery “in the place where the person is living”.

Councils do not tend to own, lease or buy the accommodation rights in these arrangements. They access the tenure within the premises for those needing introduction to a landlord, through the nomination rights that they have acquired previously, through freeing up land for development or transferring ownership to a company that wants to be a registered social landlord.

The council’s social services commissioners then purchase the services needed, often from the same entity, but in separately underpinned contracts, the tenancy invariably, now, being for the client or their Mental Capacity Act authorised representative to sign, so that the care and the accommodation are never purchased from the same entities, and hence (the sector believes) never provided ‘together’, even if both strands are delivered by the same company.

If – when our policy makers dreamt up supported living as a model, they had had any idea of the impact of incapacity law on contract tenancies (ancient common law), the process rights underpinning the cessation of what had been a person’s continuing NHS health care status whilst in long stay hospital (Coughlan, 1999),  and the extent of the implications of the late 1990s’ Bournewood case for our commitment to article 5 of the European Convention – in other words, if policy makers had ever recognised that you have to be legally literate to think, strategically, – they might have thought to change the HB and benefits rules so as to cover people in specified types of residential care homes, instead of triggering the wide scale de-registration of establishments offering care together with accommodation.

[Oops, I may just be talking here about Preserved Rights sorts of rules but these were canned in the early 2000s….]

That would have had the following impact:

  1. Councils would have been able to make offers of modernised and properly resourced residential care placements that at least LOOKED like what some of the best supported living has to offer nowadays;
  2. HB could have been used to pay for charges that would have been, then, in legal form, National Assistance Act charges, rather than rent.
  3. There might have come about a separate registration category for people with lower levels of dependency who would be accessing colleges and other facilities and who hence needed income support – so that they could get that, too;
  4. The Deprivation of Liberty Safeguards would been available to make legitimate the proportionate and essential benign supervision and control of anyone with more than moderate cognitive impairment, and we would not have needed deputyship to justify the signing of tenancies;
  5. We would not be having to use the Law Commission to re-think the Safeguards so as to expand them to fit a structure that never fitted into the DoLS vision. That is, a structure where the premises landlord/owner is not, and never could be the entity doing the deprivation, but where the entity which is being paid under contract by the council to do it, will be in the invidious position of being merely permitted guests in the person’s tenured or owned property – a hopeless position from which to manage a setting well enough to be able to cope with a duty of care arising from whatever might happen when staff are on duty there.

Such is life. It didn’t happen that way, and now we have many people with learning disabilities cared for in tenancies with 2-24 hour support going in or located there in the premises themselves. But it is done disingenuously, so as to get AROUND the law, in my experience:

  • How honest is the sector to the CQC on the integration of the care and accommodation arrangements? Different regional offices within CQC interpret the law differently and some offices change their expectations of providers as soon as the inspector vacancy is re-filled with a new broom, in my personal experience as an adviser.
  • How many landlords have got managing agents under contract, providing support or care so as to get around the rules on capped housing benefit, whilst making it look as if the care or support comes in to the person quite separately from the premises owner? If it’s the care, and the provider is an agent of the premises owner, that means that in law, the owner IS providing the care AND the accommodation – so is it together, or is it separate, then? Alternative Futures said that the forbidden integration of the care and the tenure, could just be de facto, and still trigger the need for registration.
  • How many prosecutions have ever been brought by CQC since Alternative Futures, regarding the de facto integration of arrangements made for tenure and personal care?
  • How many landlords of supported living have given their nomination rights for tenancies, either in entirety to just one council’s social services’ team, or even to just one support agency – so that no-one gets IN who does not need special care from the council’s LD team, or doesn’t get in unless the care agency has accepted a contract for the care of the person wanting a tenancy from one council or another?
  • Even though we now have continuing ordinary residence applicable to people moving into specified accommodation as tenants, how many RSLs offer accommodation for occupation by say 4 tenants all with different commissioners, such that NO SAVINGS to any one council have been able to be extracted – in comparison with what each of those people would need for their individual personal budget? I would bet – very few indeed.
  • Did you ever see an advert for a spare room on an ordinary mainstream lettings site that says: “applicants must have assessed eligible Adult Social Care needs and be ordinarily resident in this county”?
  • How many councils offer everyone they possibly can, a direct payment for care, OTHER than to the people in supported living, in case they decide not to use the in-house on site provider, and then ask for a higher DP rate?
  • An IMCA is not required when moving an incapacitated person OUT of a care home but only when moving a person into one. But the best interests consultation rules would still be applying to any decision to be made by a person lacking capacity about where to live; yet how many local authorities’ review teams have been encouraged to review people out of care home care, without ever involving the person’s significant others, just by taking a person on an outing and showing them a bright room with a TV on the wall and saying ‘it would be cool to live here, wouldn’t it’? Are they getting clued up Care Act advocacy now, I am wondering, on review?
  • How many councils get people’s mums and dads to sign the tenancies, still, even after 10 years’ worth of the Mental Capacity Act making it clear that best interests decisions cannot be used to validate contracts by signing ‘FOR’ someone?

And most importantly, how many councils’ Resource Allocation Systems are based (for the LD client group, that is) on the premise that a person WILL live in shared care arrangements, thereby artificially deflating everyone’s anticipated personal budgets?

At an extreme, where this is done not just for night time care but as a solution to the shutting down of day care or the unsuitability of local universal services for day time occupation of the client group – this would mean requiring people do things that their housemates were doing, just because of staff ratios, even if it didn’t make the person happy.

How is that normalising a person’s life or personalising and de-institutionalising the model of care?

 

Legal issues that matter, if we’re going to talk about ‘turning the clock back’.

Rob Greig cites current policy but Valuing people 2009 was set to last until 2012 only.

The 2009 version of the strategy made one reference to tenancies and none to the mental capacity act related aspects of holding a tenancy.

It said this: “Many people with learning disabilities do not choose where they live or with whom. More than half live with their families, and most of the remainder live in residential care. The Government will deliver a programme of work to ensure that mainstream housing policies are inclusive of people with learning disabilities.”

And yet housing law says that if you lack capacity to make a contract for your accommodation you cannot be an applicant for housing through the homelessness provisions of the Housing Act, and that has not been changed or even ‘explained’ so as to cover those who have an appointed Deputy!!

The 2009 strategy said this on human rights: adults with learning disabilities have, and should be able to enjoy on an equal basis, the same human rights as everyone else. It sets out the further steps that are needed for people with learning disabilities to achieve freedom, respect, equality, dignity and autonomy in their everyday lives.’

We are all treated equally: the Human Rights Act does not provide a right to a home, let alone a home of one’s choosing, if one needs state support to pay for the care, to cope.  A person without a disability is not guaranteed enough Housing Benefit to live wherever they want, are they?

Rob says that the supported living model ‘provides people with more certainty about where they live, greater control over their lives, ….’

In theory, yes, but if one lacks capacity, and an issue of incompatibility arises in the setting, one tenant or the other WILL be moved on best interests grounds and one’s deputy persuaded to surrender the tenancy meanwhile, because of the ongoing rental commitment, which is contractual, and the tenant’s own.

He goes on ‘….and enables them to change support provider without the need to move house.’

Again, right in theory, but not if the council won’t acknowledge that the direct payment rate may well need to go up in order to enable that change of provider – not many will want to set foot on another provider’s turf and the person receiving services  may need extra support for administration of the payment.

Rob refers to Rochdale’s proposal for its Cabinet to the effect that it could save £1.4 million in 3 years by reviewing and commissioning specialist care home care and other options such as Shared Lives, for people currently in supported living.

In its report, Rochdale has noted that

  • “Some people may not be able to benefit from having a tenancy or be able to access local community services, for others this model of care may provide more support than the person actually needs….. Living in close proximity to 2 or 3 other people can be difficult and achieving a ‘match’ of residents is regularly an issue. This can either lead to people sharing a home with others whose needs are not necessarily similar to their own, or voids in homes which leads to increased costs as 24/7 care still needs to be provided for the remaining residents…. People with learning disabilities are living longer and as a consequence are developing age related conditions such as dementia in addition to their learning disability. For some forms of learning disability there is an increased risk of developing dementia and the condition also develops at an earlier age. Remaining in a small group home with other service users who do not have similar needs is not always the best option for older people, or for the people that are living with them. A placement in a residential care home specifically designed to meet the needs of people with learning disabilities may be a more suitable setting for some, for others supported housing or an extra care housing setting may be a positive option. There are now more alternative options for people with moderate learning disabilities e.g. core and cluster models of support, extra care housing and shared lives placements.”

Rochdale’s plans do recognise that some people will resist moving from homes where they have secure tenancies. That, together with the pre-Act Perry Clarke case, holding that it would be a disproportionate infringement of article 8 rights to respect for one’s home to expect a person to move to another tenancy represents some actual progress legal awareness in the sector, to my mind, rather than a turning back of the clock.

I could not agree more with Rob that the answer is certainly not a return to a large-group, residential care model where rights are taken away and lower staffing ratios lead to reduced life chances. Evidence based commissioning to provide people with just enough, would help, but people do not all want to live with others with the same degree of difficulty, or need for support, so there will always be ‘inefficiencies’.

The real solution is the social care sector standing up to government and making the inadequacy of funding a political issue, which I can only think that ADASS and the LGA do not seem to think is a necessity. If it won’t happen through the leadership, it will only happen through judicial review, and legal literacy being spread through advocates, families, providers and social workers. 

One particularly noteworthy irony, if Rochdale is serious, is this: the cost capping policy approach that we are seeing emerging from CCGs and some brave or deluded councils across the country now, [1] may well end up actually first being tested in the courts, in relation to a person with a learning disability, lacking in capacity to fight back, through the courts, despite a hugely more generous sum of money always having been spent on the individuals in the LD client group, than on older people’s care budgets, in the first place.

The wheel represented by what’s the currently most fashionable model for care, is bound to keep on turning, if the questions being asked about the actual sufficiency, appropriateness and person-centredness of the content of a care plan, are just not legally literate ones, in my view.

[1] largely intended for determining the offer to be made in a capacitated older person’s situation (‘Our offer is residential care or you could always choose to stay at home here, with what it would have cost us to meet your needs, there’)

Implications for Shared Lives Carers

The Shared Lives community of Carers, have long been being pushed into doing more and more for increasing needs clients, for a flat rate, just in return for self employed status and absence of regulation in person.

Not a great deal to swallow, I am thinking, when every person’s right is to a sufficient personal budget for the meeting of their needs. The Shared Lives carers’ community is going to need a HELL of a lot of legal literacy if they are to resist being the next sector after the housing sector to be expected to shoulder the cost of the statutory duties of councils, chronically underfunded by successive government.