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Delayed discharges, people’s rights, the NHS’s and councils’ legal obligations, and a new case on evicting a patient from a hospital bed!

Whenever I go on about legal literacy to some of my NHS clients, the most excitement is always apparent when we discuss so-called bed-blocking. It seems to me that there are interim consultants working on projects to ease bed blocking, all over the country, when all that is really needed is some understanding of whose duty it is to do something, and what, when, and some grasp of how to make it happen!

There’s just been a new case reported in which the Hospital Trust was awarded possession of a bedroom in a hospital care unit that was being occupied by a person who refused to leave and had been there for a year. It was the Sussex Community NHS Trust Foundation hospital that won the case.

If you know your law, that wouldn’t even be a surprise. A similar case, decided MANY years ago, and which still astonishes readers, Barnet Primary Care Trust v X [2006] EWHC 787 (QB), (2006) 92 B.M.L.R. 17 was referred to. That was in 2006, I would emphasise.

The woman in this case was ordered to pay £8,000 in costs – but I bet that that is nothing compared to the aggravation caused for officers and managers over many many months of discussion. So let us engage brains, therefore, for a moment!

A patient is on hospital premises at the invitation of the Trust, and does not acquire any right to remain there beyond the purpose of their admission and take-up of the space. Thereafter they are a trespasser and not owed a duty of care, at least not one in relation to literally any situation; merely as to their safety with regard to the state of the premises, the duty that’s owed to all visitors and even to trespassers in hospitals.

The woman had suffered a broken femur and was operated on and admitted to the rehabilitation facility in August 2015 – a year ago. However, she no longer had any need to take up a bedroom in the unit. She was assessed as having the same mobility level as before the surgery, and as being able to live at home, albeit with some help from social services.

I suspect that the real argument was about what she should be getting in her own home and whether it should be charged for because there is other detail in the report about failure to engage with the council with her financial information. But she had never issued proceedings against the council and they were not part of the case.

She could not use stairs but with a walking frame could walk 40 metres. She had not required a nurse since November 2015 and had declined all therapy. And she didn’t turn up at the hearing.

As in the Barnet case, mind you, there is never any info about what became of the person when the bailiffs came to implement the possession order. My knowledge of law tells me that as soon as the person’s things have been put outside on the hospital steps and the person has been offered a wheelchair to the entrance, on pain of the bed being carried outside, the person realises that their situation has changed, and welcomes the attention of social services, which must then offer an assessment all over again.

People want to know whose duty it is, in various situations, because of arguments about harm arising during delays: so here is the answer, for free.

If a person is entitled to CHC status because a positive recommendation has been made by the MDT who did the DST, and the CCG has ratified it, or there’s a delay before the formal decision for a reason that is not the person’s fault – or if the person has merely been positively checklisted and is awaiting a DST, and should be out of the hospital, then their rights to have their needs met are as against the CCG – interim beds and the NHS’s duty to procure them are covered in the National Framework (albeit not mentioned in the discharge guidance in the Care Act Guidance???).

If a person has NOT been assessed as entitled to CHC, or positively checklisted, then their rights are for either local authority care or care through their own arrangements, depending on their financial resources.

If they are in need of a residential or nursing placement, and they lack mental capacity to make arrangements, they are indubitably the responsibility of the council, regardless of their personal wealth, (because they will be full cost payers, but placed by the council) with only two exceptions. The MCA allows for the laying on of hands on the person of an adult lacking mental capacity and provides legal protection if the MCA has been complied with. DoL Safeguards are available where necessary (as long as the person is properly regarded as lacking capacity).

One exception is where the person’s relatives are conscientiously and coherently (ie rationally, with evidence) suggesting that they are not fit for discharge – in which case the NHS should be bloomin’ grateful to them for pointing this out, because it will likely avoid a claim for negligent discharge if true. All possible investigations should be made – relatives are often correct.

The other exception, potentially, is where an appointed deputy or attorney with access to sufficient resources from the person’s assets, should be making arrangements and acting in the best interests of the person. In that situation, the council could legitimately say that the person is not owed a duty by the council, but cannot just wait for a deputy or attorney who – for whatever reason is doing absolutely nothing to sort the patient’s care needs out – that’s the representative’s ROLE, for goodness’ sake – and if they are not doing it, they are not fit to be the representative and then that’s a safeguarding issue.

It may well be down to the council’s market management failure that there is nowhere appropriate for the person to go to, through the representative’s arrangements, but the primary role of that representative is a best interests one, which should mean that FINDING somewhere and arguing about liability for the cost later, is what the representative does. Their responsibilities can be pointed out to them forcefully if necessary. The CoP will do so, in the end.

If a person in the bed  does NOT lack capacity, then, of course, if they are over the capital threshold, it is not the authority’s obligation to make the placement; but they do have to be given the benefit of the 12 week disregard rules before arriving at that ‘above threshold’ decision. Even then, however, the council should be seen conscientiously to exercise its discretion in SOME cases – at least to place people who are not eligible, because of the power in s19 so to do – for good reasons, for instance where the person is only slightly over the threshold and it makes no sense to make them self fund in a more expensive home that would be available to them for less money if only the council made the arrangements.

If they are NOT over the capital threshold, then their rights to have their needs met appropriately are as against the relevant council in every case, if they want the council to meet them – and if the council has nowhere to place the person which is suitable for all the assessed needs in the opinion of the council’s care planners, and available in the sense of having a vacancy, then that’s a commissioning failure and the council will have to make arrangements either at the full contractual cost of an available suitable placement, or place the person further afield and somehow manage the person’s emotional and psychological needs to see their relatives and be visited –  so as to avoid a judicial review or human rights claim or at the very least a complaint.

If a person who is entitled to council arrangements wishes to go to a particularly lovely home, despite being able to be accommodated by the council at the properly arrived at personal budget rate for that person, somewhere suitable, the person’s friends or relatives can choose to pay a top-up – and the person can do so themselves if they are entitled to the disregard or are on a deferred payment.

A person stuck in hospital who will need HOME care arrangements, not CARE HOME arrangements, is entitled to them regardless of their personal wealth and will merely be assessed to be a full cost payer.

If there is a lack of care worker capacity in the local market for provision of home care, that’s a commissioning failure and the council cannot simply stick to its tendered or local ‘going’ rate, then – it MUST procure suitable arrangements and thus exceed the budget set for home care, because a duty is a duty.

In circumstances where a person has relatives who’d be prepared to do the care if paid, the person may be able to have a direct payment with permission to pay their relatives.

There we go. I feel better now, and I hope you do too!

Please do call me if you want this sort of strategic legal input to your management of public services, or training for more legal literacy.

A considered and serious paper about what’s gone wrong in adult social care…

…which has now been published by the Centre for Welfare Reform. The content is referred to in its submission to the Communities and Local Government (CLG) Committee’s current inquiry into the financial sustainability of local authority adult social care and the quality of care provided, chaired by Clive Betts MP.

I hope people enjoy it, and use it in their academic and other work.

Legal Literacy in Adult Social Care

A new case with important practice points for homes, care planners GPs and regulators regarding covert medication for incapacitated service users

From a case decided by the Court of Protection last week:  AG (by her litigation friend the Official Solicitor) v BMBC

Important best practice guidance to the sector has been endorsed by the Court of Protection – because covert medication can be a need, a right and done compliantly with the MCA because it constitutes a decision for an incapacitated person, even though it is a serious impingement on a person’s article 8 human rights, and therefore needs to be justified and subject to scrutiny in a DoLS situation):-

(a) Where there is a covert medication policy in place or indeed anything similar there must be full consultation with healthcare professionals and family.

(b) The existence of such treatment must be clearly identified within the assessment and authorisation.

(c) If the standard authorisation is to be for a period of longer than six months there should be a clear provision for regular, possibly monthly, reviews of the care and support plan.

(d) There should at regular intervals be review involving family and healthcare professionals, all the more so if the standard authorisation is to be for the maximum twelve month period.

(e) Each case must be determined on its facts but I cannot see that it would be sensible for there to be an absolute policy that, in circumstances similar to this, standard authorisation should be limited to six months. It may be perfectly practical and proportionate provided there is a provision for reviews(or conditions attached) for the standard authorisation to be for the maximum period.

(f) Where appointed an RPR should be fully involved in those discussions and review so that if appropriate an application for part 8 review can be made.

(g) Any change of medication or treatment regime should also trigger a review where such medication is covertly administered.

(h) Such matters can be achieved by placing appropriate conditions to which the standard authorisation is subject and would of course accord with chapter 8 of the deprivation of liberty safeguard’s code of practice.

 

My top 20 cases from the old social services framework and why they’re essential knowledge in the Care Act world

  • Gloucestershire, 1997 – the case that says that a person is entitled to have their needs met – even if the council has run out of social services money – unless and until the person is lawfully reassessed as no longer being eligible for a service or funding – but also saying that the council could raise its local policy on eligibility (necessity for meeting needs), on account of being hard up…. Still useful today, in relation to rights pending reviews and revisions. Still really useful in relation to people for whom there is only ONE WAY to meet the need. Shortage of resources is no excuse. Not relevant any longer on raising the threshold, because we have the national minimum in the regulations.
  • Penfold – 1998 – the case that said that it is not lawful to exclude people from assessment based on a view that they could not feasibly qualify, and that shelter / ordinary accommodation could be a community care service. Useful when pointing out that it is not lawful to ration assessment by reference to short staffing etc. or by having screeners saying that there’d be no point…
  • Sefton – the case that said that there’s a duty, not a discretion, to provide residential accommodation when care and attention is needed that is not otherwise available. Up until then, self funders who’d depleted were regarded as not a priority, and they’d be left till they’d spent down to pretty well nothing, whilst councils ran monthly quotas. May still be an important principle these days, as austerity continues to be applied, and those who manage the budget best, are promoted.
  • Norton no. 1 and no. 2 – the cases that held that a community care assessment is invalid, if it doesn’t consider all the types of services comprised in the community care legislation, and that it’s highly probably illegal to cost cap domiciliary care. Of major importance today, because councils are looking to persuade people to minimise their needs using a strengths based approach, and reasonable people are often self-rationing and will rush over the domains or outcomes. Also, councils are once again beginning to consult over cost capping overtly (Medway, Bedfordshire, Southampton earlier this year). The guidance says councils must not, but the law is unclear until tested.
  • Lancashire, 1998 – the case that says that the authority can offer the cheaper of two alternative adequate services, to meet an assessed need. Clearly critically important in this particular era – but it only allows a comparison of adequate services, which means taking into account MCA issues, the law of choice, and the wishes and feelings and well-being of people as well as their human rights.
  • Coughlan, 1999 – the leading case on CHC rights instead of social care. Of enormous significance to both health and social care, whilst trying to work together. Widespread ignorance of the fact that primary health need can extend to a person’s care or aftercare and not just their medical, consultant or registered nurse nursing needs, is still skewing the system and meaning that people and councils are paying for care that the NHS should be funding. Legal challenge virtually dead now, because of the IRP and internal appeal stages offering chances to improve the decision-making to beyond the scope of judicial review.
  • Killigrew, 1999 – about cuts to care plans and how the council must articulate where the needs have gone off to if they say a cut should be made on account of a lessening of needs…clearly of enormous significance in this day and age.
  • Batantu, which says that a person can enforce a right to ordinary accommodation in an exceptional case, against social services, if it’s needed, under the NAA. Clearly important now, still, in relation to links between homelessness, hardship pending the discharge of the housing duty, and social services entitlement
  • Savva, 2011 – about the need for transparency of the Resource Allocation System and the client’s right to written reasons from the actual decision-maker, if they dispute the decision made. The ongoing basis of the Care Act Guidance approach to Resource Allocation Systems, but the Act is short on rights to written reasons for the finalised budget.
  • Croydon, 2011 – about parents’ and providers’ rights to be at the heart of a review/revision sort of a re-assessment, considering whether an incapacitated client is suitably placed – and the illegality of the reassessment, if MCA consultation is not properly done, as part of the process
  • Cambridgeshire v KM, 2012 – about how much money is lawfully ‘enough’, and how much reasoning, behind the amount, is lawfully ‘enough’ to be fair and transparent – see the points made above against the Savva case, for how the Care Act guidance sells clients a bit short on the value of that case law.
  • Kensington & Chelsea v McDonald, 2011 – about how the council is ultimately the decision-maker about whether a perceived need is a want or a need, or a need that necessitates intervention by the council – if the NHS is willing to provide what IT thinks is appropriate – subject only to judicial review – due to extreme or irrational unreasonableness, unfairness, illegality or a breach of human rights. A call to dignity was not enough.
  • Isle of Wight, 2011 – about the importance of following FACS guidance for the proper implementation of an eligibility policy, indicators and threshold. Of no more relevance, unless or until councils start trying to mess with or put a spin on the wording of the outcomes in the national regulations for eligibility….
  • Cornwall, 2010 – about charging policies, engagement with carers, and Disability Related Expenditure – of clear relevance today, still, although the basis of charging has been quite significantly altered.
  • Wychavon (housing benefit) 2011 – how a person can get Housing Benefit, even if they lack capacity to agree a tenancy on their own, based on the law of necessaries and the obligation to pay a reasonable fee for use of the space.
  • Buckinghamshire v Kingston on why a person does not need very much capacity to be able to set up ordinary residence rights in another area – and implicitly about why it has never been liable to refuse to assess people just because they want to move to your area, but haven’t quite arrived, as yet. Clearly of relevance to how councils will interpret the ‘genuine intention’ aspects of the continuity of care provision in the Act.
  • Hillingdon v Neary, 2011 up to an including Cheshire West and post Cheshire West cases: about the council sector’s obligation to take itself to the Court of Protection if a dispute about deprivation of liberty still rumbles on after the Safeguards have authorised the situation (and seek welfare orders for all the people in independent living outside of a DoLS setting).
  • CC v KK 2012 – how a capacitated person can choose to refuse residential care, and stay at home, even if it’s unwise, but only after a council has come off the fence about what they think is a lawful offer, first, to meet the needs that that person has or will have, in that setting, given that the other setting was not necessarily inappropriate in any real sense; just not wanted. Of enormous significance to councils trying to bring in cost capping policies in this era, but not a judicial review: it was a Court of Protection case, and the judge could not say whether an offer of a capped package would be lawful or not! He dodged the difficulty by referring to the need to offer all practicable support, in such situations! 🙂
  • All the provider JRs from 2012/13 – especially Newcastle and Northumberland, as to why councils’ commissioners cannot just offer providers less than last year’s fee, without listening to them carefully and remembering that councils have a duty to provide care, if they cannot actually purchase enough of it at the price they think they can get away with. Of enormous significance in light of several councils’ embracing of the use of top ups in a widespread way, to bridge the gap…

Commentary on what is currently known about Luke Davey’s application for judicial review

Community Care and Irwin Mitchell have reported that Luke Davey has obtained permission to bring judicial review proceedings against Oxfordshire in relation to a cut to a care package/personal budget. The social care world needs to understand what that means, in my view.

In this country, one has to get permission first, from the High Court, before being allowed to proceed to court, so that only arguable cases take up the court’s and public bodies’ time. For that reason, the threshold for permission is low, and one does not win the case just because one gets permission. But one is discouraged from even trying without a discussion first,  by rules of court which say that costs may be awarded against anyone who hasn’t complied with the pre-application protocol about giving the other side a good chance to mend its ways, by being explicit about what one’s allegation of illegality IS, in the first place.

Why do I say ‘illegality’, as opposed to one’s ‘grouse’, or ‘complaint’ or ‘disagreement’? Well, it’s because judicial review proceedings aren’t an appeal, or a process for getting the judge to agree with you about your care package or budget. These proceedings are called ‘review’ because they involve a judge scrutinising the legality of the decision, and the way it was made, not its exact correctness, in his or her eyes (let alone the service user’s!)

The proceedings are only for raising allegations of unreasonableness (which has a special really extreme meaning, in public law) or errors of LAW (not errors of fact), or unfairness (again, there are objective rules about this, not the customer’s own view) and acting outside the parameters of the Act or regulations (here the Care Act and Care Act regulations) or in breach of human rights.

If the judge agrees with the applicant that the public body has made an unlawful decision, then the person’s care package goes back to square one again, with the council merely being steered towards making a better decision second time around – but not necessarily a different substantive decision, in terms of the detail. So, if a decision has been made unfairly, and unlawfully, (say, without participation of the service user, and not assisted by an independent advocate although it should have been obvious that a right to having one was triggered) the SAME decision CAN be made second time around, as long as the process is put right… and the claimant is not compensated (as in a negligence claim) for what’s been going on. That’s one reason why so remarkably few law firms are interested in, let alone capable of taking on this kind of work: there’s not much money in it! Only the glory of doing something for the client and the wider good, or defending a council against an unmeritorious claim – because someone has to act for councils, too!

So Luke Davey’s application must be based on an argument that in finalising a care plan or his budget, the council has acted without due regard to the well-being principle, or has ignored the section about the definition of a personal budget or taken an indefensibly unreasonable or fettered view as to the ability of a small sum of money or amount of care, to meet Luke’s needs appropriately – or have determinedly proved unwilling or unable to engage with him, to give him the process rights in the Act and regs, or to explain the logic behind their figures – because of blind faith in or adherence to a resource allocation system, for example.

The claim could also look back to an earlier stage: that of assessment of his needs and the eligibility of those needs, given that some aspects of his independent lifestyle in the past would have been funded by way of ILF monies, and not all of what can no longer be paid for without that money, might be seen to be critical to preventing ‘significant’ impact to his well-being (in theory, or the council’s view, at least).

The trouble facing Luke and his lawyers is that the well-being duty is elaborated on in the Act, yes, but in ways that make it slippery, because the factors making up the statutory concept of well-being are immeasurable intangible things, like dignity and control and suitability of accommodation etc. My guess is that the focus on that section will not be the strongest point in his case.

Whenever judicial review is used to challenge a Care Act decision, the public body’s staff have to provide evidence (usually in writing) as to how they had taken account of all those factors – just as in the McDonald case involving leaving a woman to incontinence pads at night in the name of privacy and dignity (even though she was not incontinent). And the council won that case, it should be remembered. This is because (in legal terms) it is still even under the Care Act, the council which decides how to meet needs, and it is allowed to take resources into account – always, however, SUBJECT to those grounds for judicial review, above, in identifying a decision on the package or the budget that still deserves to be called appropriate. The fact that an independent OT thinks that the council’s offer is mean or overlooks risks is not the determinant of the issues in the case, unfortunately.

The relevance of ILF to this and other cases

Luke used to get ILF monies, and Community Care’s article refers to this arrangement as joint funding – a concept that requires a bit more unpicking, in my view.

In legal terms, although it was dependent in terms of the conditions for qualifying for it that one was eligible for support from a council, ILF was simply an extra source of income (not a benefit) for the individual to spend. Some very disabled people under 65 were awarded, as a matter of discretion through the trusteeship of the government’s charitable funding. It was always seen as a sort of top-up, over and above what councils were ‘willing’ to pay;  but community care law developed throughout the life of the IL Fund, to see councils’ input as meeting a shortfall, after all other sources of support have been accessed, including people’s voluntary contributions to meeting their own needs.

So, in legal terms, ILF money was the means by which people like Luke were able to meet some of their own needs, leaving councils with less of a shortfall to fill, than would otherwise have been the case, if – that is – these clients were to be supported to live independently, in the community, and not in a care home, where it might well have cost the public purse less. Living in the community outside of an institutional setting is seen by many in the sector as a right, or as a need, but in legal terms it is ‘a want’, for the vast majority of people, and hence some people used to see the ILF as paying for wants, without it impacting on the public purse in a discriminatory way for the benefit of those under 65.

The council sector decided as a whole to maintain this group’s packages until the individuals were up for review, it seems, which meant that there was less danger of an angry ARMY of capacitated and probably legally-aided ILF recipients all coming together to embarrass councils with a group action for the loss of their well-being.

BUT OF COURSE if a source of self-funding stops, for whatever reason, and this means that the amount of need which would then potentially compel the council’s meeting of it, increases to a significant extent, well then OF COURSE people’s well-being is going to suffer, in objective terms, rather than be promoted, IF the council applies exactly the same approach to these people as to others – others who never qualified for ILF perhaps in the first place. Managing to conclude that ANY services that a person has been used to being able to fund, for 20 years, are no longer needed to resolve significant impact to well-being,  withOUT getting legally challenged, would be the really challenging task here, it has to be said, for any council.

So this case will be the first of many, in my view. It will be a test of the extent to which Oxfordshire’s implementation of the Care Act, and the relevant regulations and guidance, was one of integrity or abject cynicism – in terms of its paperwork, training, recording, management bravery, legal literacy and flexibility.

The interim injunction awarded to continue his care package pending the end of the case, really underlines why it is that some people do HAVE to go to Court: the council will have been invited merely to undertake to keep it going, so as to avoid legal proceedings.

The fact that the court had to be asked for the injunction indicates that Oxfordshire’s management are either unfortunately and naively cavalier about saying enough is enough (nb on a package/plan that leaves him without 6 hours of care a day, when he had previously been assessed as needing 24 hour care) – or willing to admit and assert that their previous assessment was over-‘generous’ and inexplicably not spotted sooner despite proper care management – or maybe that they are justifiably confident in the legality of their stance, notwithstanding the unarguable shortage of monies, since the termination of the ILF-funded bottom slice of Luke’s arrangements.

All that can be said at this stage by an onlooker is that one would fervently hope that the solicitors have found a strong case to bring to make the point that it is law rather than the annual budget that governs social services’ obligations,, rather than one that makes it harder for anyone else to challenge their care plan ever again….

 

Slides from my Community Care presentation today – plus Questions and Answers arising out of the Wednesday Webinar on Carers’ Rights regarding Assessment and Eligibility and Advocacy

For Carers’ Week, I will be putting up all the questions and answers I can think of relevant to carers’ rights, using the material from the webinar I’ve just delivered as part of my basic series of 12 webinars.

Please add any questions here, by way of comments, if you can think up some unusual ones!

Meanwhile here are the slides from today’s session for Community Care Live in Birmingham – please do not use them as a substitute for live training or buying a few webinars!

Legal Risk for Community Care Live

 

A cunning stunt for a council to pull, by way of maximising Choice and Direct Payments….

I heard of an interesting managerial wheeze today, which Jeremy Hunt, SCIE and the LGA and ADASS might like to consider, when focusing on Equal Lives’ complaint about Norfolk’s ignoring the Care Act.

It’s another council, not Norfolk, but here goes:

The council re-tenders for all its homecare, looking for just a few providers organised geographically sensibly to take over large patches of the council’s area, rather than the many that they have previously contracted with. (That’s not unlawful, so long as they bear in mind diversity of provision and do the procurement lawfully, of course).

The council says to the existing providers (and to the clients on care plans) as follows:

“If existing providers don’t get on to the new framework there’ll be a period of grace for them to persuade the clients (our clients) that they’d prefer a direct payment from us in order to contract with the existing  company privately – that’s how we give citizens ‘choice’.  The existing providers might want to think about ways to make that attractive, like offering to run the client’s direct payment account for them – so it’d be a bit like an individual service fund but the company would be doing the admin work that so often puts people off of direct payments, and ensuring that they will get paid. After that period of grace, however, existing clients who don’t want a direct payment will be transferred to our chosen new providers.”

That’s not unlawful either: there is no right in the Care Act to insist on a provider of your own choice, through a council commissioned budget. The choice the council makes for these clients has to be appropriate and adequate to meet need in terms of skill etc, but if as the client, you want a choice, you can take a direct payment. There is a case from the 1990s that says clients should be consulted before a change of provider is foisted on them to identify those that should not be transferred by reference to impact and dependency, so a blanket policy of transferring all Direct Payment refuseniks by a set date, is dodgy, but never mind that, for the minute. Let’s get to the point: the direct payment rate being paid to the council’s Care Act clients!!

The companies that don’t make it on to the new framework are all believed to be charging less to the council anyway, for the packages for the existing council clients, at the present moment, than the new rates to be paid to the successful providers, which one might think is bizarre in any event – why weren’t they successful on the new framework? (But no doubt this is something to do with the living wage, commitments to quality that the successful ones have made, size of turnover criteria in the first place, or maybe a premium for providing for banking the client’s hours if they are not wanted and reasonable notice is given – who knows?)

The unsuccessful providers, however, are all assuming that they can at least charge the clients who go on to a direct payment the same as what they used to charge the council for bulk purchased homecare  – which – guess what – is now a bit MORE than the direct payment rate that the council has now announced to the public. It’s a rate that’s about a pound an hour, more, but still more. And yet these clients are not going to be getting their needs met through employing PAs, without overheads. They are going to be going to agencies, the same agencies, for the exact same services that they used to have through the council’s contract. Despite this, the money allocated to them for their personal budgets has now been reduced.

This is dodgy: you can’t cut a budget without a proportionate re-assessment under the Care Act – s 27. It’s no good saying that giving the client a DP is just a new WAY of meeting need: it is a change to that affects the plan, without a shadow of a doubt, if it is blind to the fact that the rate won’t now be enough, nothing else having changed.

What’s going on here? Well, the clients who are keen enough to keep their current providers to consider a direct payment, tend to be people who are open to the assertion that since that’s their choice, they need to pay the small extra per-hour cost, as a top-up for want, not need. They are often so happy to keep their current provider that it does not occur to them that there’s a legal framework governing what has to be paid, in the first place, by way of a direct payment, in order to make the payment lawful. The council, in addition, says it’s not an hourly rate: it’s an overall amount for the services we think you need, plus a contingency, but even then, we’ve assessed the needs in a very outcomes based way, using our Resource Allocation System, so it’s up to each client to decide how they want to spend it.

Is this lawful? No WAY! The council has to do a care plan (s25) even for people with direct payments. The care plan has to say how the response will meet assessed eligible unmet need – logically, referring back to the assessment and the domains in which people were unable to achieve, and experiencing significant impact.

We all agree that there’s no real answer to the question ‘How much fun is enough?’ for a person, but we are talking homecare here, not recreation: the kind of thing that Dispatches covered a while back. I think we would all agree that there are some aspects of homecare that can’t be described without identifying how long it will take to meet the basic need/outcome, and this is all the more so, given a market that still charges by the period, because the staff are PAID by the period (and paid a minimum wage by legally counted ‘time’, by law).

The lawful rate for the person’s budget has to be transparent and sufficient to meet need. So the rate for the Direct Payment has to be rationally evidence based (even though that doesn’t mean worked out to the last penny on evidence that would be needed in a civil court!).

It has to be based on what companies are looking to charge individual purchasers for the services, by way of individual contracts, rather than in bulk. Commissioners are supposed to know those rates, because that’s the only way that they can have populated the resource allocation system within the council, when setting the figures for the relationship between pounds and points and needs, if they wanted a RAS set on direct payment rates, as opposed to a rate for their own commissioned services.

There is therefore plenty of room for challenge here. But by the clients, not the companies. And the vulnerable do not bite the hand that feeds them, in general. Moreover, in an era where the home care providers know no public law either and just want to keep the clients, on almost any basis, before the period of grace is over and all the others are taken from them, they won’t want to rock the boat and tell any of those potential clients that those clients may need to challenge the council’s notion of budgeting for sufficiency, and they probably won’t be talking to each other about what they’re charging, for fear of being accused of forming a cartel.

Truly magic, eh? This is how the discussion would go within the commissioning team: “We will make the clients into our budget savers, on the basis of maximising their CHOICE. And we will shape the market by ensuring that businesses have no option but to go along with what we are doing, by making the most of the fact that they’ll now be the ones managing the relationship with the customer, and won’t want to say no to looking after them, even for less than it costs them to pay their staff. We won’t have to consult them about the actual cost of care, because they’re not our contractors any longer, and none of the clients will be able to find out what other clients are being charged, as it’s all personal data.”

The only solution to this is to go back to the law – public law.

The law says that the council must be satisfied that it is paying enough. The assessment needs to detail the needs; the care plan needs to detail how the needs will be met. The Cambridgeshire case says that there must be a nexus between the needs, the points, the pounds and the cost in the market. And that this has got to be transparent so that the client can see if the council has done its job. The Savva case, brought against Kensington & Chelsea council, shows that the reasons why a final offered budget IS a lawful discharge of the statutory duty to meet need MUST be the panel’s reasons, and that they must be evidenced based. There is nothing in the Care Act to have changed those principles of judicially developed adult social care law.

So this is what clients have to be helped by advocates, user groups, and providers, to contend, using the Monitoring Officer route if necessary, to force out of all such councils – their evidence basis for their rate being sufficient – otherwise social care will be non-existent by the time we all need it, other than for private purchase by the rich and well- organised.

That’s not what any spin doctor can describe as a social care safety net, in any civilised country, to my mind.

Pleasing customer reviews, and sector reaction to Belinda’s Wednesday Webinars

The first monthly webinar session (on assessment and eligibility for service users) ran last Wednesday. I am very excited to be doing this, and feel it is the only way to go, in very difficult times, for essential training for professionals, and essential knowledge for service users and carers and advocates.

Here’s a selection of the feedback received, from a range of signed-up customers:

From a London Borough Council:  The session went down well on Wednesday, so much so, that I have had to arrange a repeat performance of the recording at the end of the month to allow more staff access…

From a County Council: Thank you for your help with getting us set up yesterday, it was a success and everybody enjoyed the session!

From a provider:  Brilliant first session on the Care Act assessment – good for SWs, providers and people who use services – well worth it!

From a Best Interests Assessor: Really glad I signed up – first one was awesome! Loved the section about advocacy and the role of advocacy even when there are family members available.  Advocacy is often something seen as a last resort for those who have no-one, rather than a professional addition.

From an NHS partner: I would like to participate in as many live events as possible, as part of my current role – I would also like to refer back to the recording of the seminar, which has been fantastic!

From a parent carer:  Thank you for an informative, and dare I say it –  enjoyable – afternoon. Even as parent/carers – you could even call us professionals/experts! – we found a lot of awareness, which will always be helpful.

If you would like to subscribe, as an individual or organisational member, it’s still possible to get the full set, a recording substituting for any live event that has been and gone by the time you place your order. The option of paying for a recording of one past event will shortly be made available, but at a higher price than through membership as an individual or an organisation.

Any organisation wishing to join up, now, can still do so, for a full set of 12 or 18 sessions, by card or by invoice, the latter by emailing [email protected]

Any individual who makes the decision to purchase just one webinar as an individual is guaranteed a refund if they later upgrade to a series, or are subsumed into an organisations-based membership before the end of April 2016.

The tab below, called Technical and Admin, contains a test link so that you can check out that GoToWebinar data can get into your IT system without any issues.

Even if you’ve already signed up, it’s a good idea to use that same test link, for a more confident and smooth experience when the date for your first webinar arrives.

If you are struggling to register for a live seat or recording product, or to access your recording, (eg because you’ve registered with a landline rather than a mobile phone number or because your corporate lead purchaser is having difficulty with the instructions, or they’ve gone to Junk!), please just contact me on [email protected]

See you next month, May 4th, for assessment and eligibility issues for CARER, next time.

regards

Belinda

Challenging questions for those concerned with independent funded advocacy under the Care Act

See if you can answer these ticklish questions in advance of my new webinar series starting on Wednesday 6th April at 2pm. Access can be bought by the webinar or by the series, via the Webinars tab on this site.

Who gets independent funded Advocacy under the Care Act?

In what circumstances?

What’s its essence, ie what’s it for?

Does one still get this right to an advocate, if the person in question so clearly lacks capacity that they can’t conceivably be said to be involved, even with the help of an advocate?

How can the advocate really be independent, if the council is paying them?

Is it the same system, as operated for the advocacy that the council used to organise for me?

Who makes the decisions about entitlement to it, and about who should do the work?

‘Can I say No to having an advocate, if you think I need one?’

Who can be an appropriate person, thereby avoiding the need for an advocate?

‘Do I have to do this ‘involving’ business, for my loved one, if I don’t feel up to it?’

‘How can I possibly be expected to do it, if you don’t even know much about the Care Act in the council?’

‘Can there be a waiting list? There always used to be.’

What are the consequences of there not being an adequate supply?

‘I have a right to represent her, I’m the next of kin!’ Is that true?

Can a relative be refused the role of being the appropriate informal supporter?

Why am I regarded as inappropriate, as my loved one’s supporter?

‘What if there IS (polite) history between the council and us? I want to help and I am able to, but you know we fundamentally disagree about X’s best interests…’.

Can I choose my own advocate?

What if I am already paying for my own advocate, privately? Can I ask the LA to let them continue as the Care Act advocate?

‘If we can’t do the informal supporting of our relative, ourselves, can we at least choose his/her advocate?’

What if the council is already paying for an informal advocate for me? Can that person continue?

Who can be an independent funded advocate?

Why does the new guidance speak about Chinese Walls?

Can that nice person on First Contact be my advocate?

Can my council-funded Care Provider be my advocate? What about a privately paid provider of care or treatment?

What about the provider from which I want the council to commission my future services? Can they be my advocate or my informal supporter?

Can an employee from a council funded provider who’s not my provider, be my advocate?

Can a provider of care to ‘x’, be x’s carer’s advocate?

Can I sit in on my loved one’s meeting with the advocate?

Does an advocate need a criminal record check?

Do Care Act advocates have to be specially qualified as ‘advocates’?

Do they have to have some legal knowledge?

What should an advocate do if they think that a council is acting unlawfully?

The webinar shop is open – let’s see if we can make Care Act compliance a people’s movement!

My webinar shop is now open for business – from this site, on the Webinars tab, above right on the tool bar.

Many thanks, first of all, to Aidan Pollitt, John Peters, and to Mark Rattan, of Western Studios, in the States, who’s done the coding to make it really simple to get registered for the upcoming webinars.

I hope you’ll have a look and agree that the e-shop makes purchasing this kind of training easy, secure, and automated.

Of course I’m also hoping to see as many people online on April 6th for the first 2pm session, or collecting their Recording, later on that day.

Please feel free to send questions (on the topic of advocacy, assessment and eligibility for service users, that is!) in advance to [email protected]

For those of a nervous disposition, there is a tab about Technical Requirements on the bottom tool bar, with a test link to practise with. But whatever goes wrong with the internet or your own hardware, you WILL GET a recording, if you register! 

I will also be putting up registration details for a TRIAL run of your technology for Tuesday 29th April that will be up all day. I won’t be waving, but you will see a screen, if it’s working from your end!

thanks

Belinda