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

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

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

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

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

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

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

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

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

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

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

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

This is what has been defended as lawful by Tameside.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tameside and top-ups, dissected in detail

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

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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