Author Archive for belindaschwehr

“People’s relatives aren’t allowed to be paid out of a direct payment”

This is not a myth – not a complete one, anyway.

But if that is what one is told by a council’s member of staff, one needs to think quite hard and check out the regulations.

If one looks at the Care Act Direct Payment regulations, one finds that there is a particular condition that is applicable to all direct payments – that is, one that the council must apply: it is that the payment not be used to pay anyone for care and support from specified categories of people, listed in the regulations.

It is thought that the rules are most likely based on the public policy that there’s no need to pay relatives for that which they would willingly do for free, out of ordinary love and affection.

The point here though is that no relative’s willing and capable informal care can be assumed 24 hours a day; people have to take difficult economic decisions in this day and age, and a carer’s interest in working is a statutory part of any carer’s assessment.

Who is presumed forbidden?

Spouses and cohabitees, for instance, are not able to be paid to do the care. The rules do not distinguish between that relationship and a separated spousal relationship, and the rule applies regardless of where one’s spouse or cohabitee lives.

Parents living in the same household aren’t allowed to be paid for care, either.

Stepsons and daughters are prohibited, but not the step parents of anyone, where the step parent has taken over from the natural parent, now deceased.

We think that that reflects the position that one is not in fact a step parent, once the step child is over 18.

If one is married to or living with the parent of an adult on a direct payment however, one is prohibited then as a step-parent.

If one is living in the same household as a friend, there’s no rule against that being a commercial arrangement out of the direct payment, in the council based system, although it is different for a personal health budget, oddly enough.

If you are a relative on the list but NOT living in the same household, there is no rule against that sort of a paid arrangement, either.

In all cases where the prohibition applies, however, a discretion may be exercised to permit it, if it is necessary. The council is the judge of that, subject to judicial review, eg for taking an extreme view of what necessary should mean.

Public law principles require a council refusing permission to a person to spend the DP on a prohibited person, to state its reasons, and to make sure that they are rational reasons, after taking all relevant considerations into account.

It owes human rights in relation to that thinking, too, and must promote the well-being of the client.

Health budget rules are a little different

When the regulations on direct payments in the NHS (for CHC and some other services) were issued in 2013, there were, at first, NO rules about close relatives doing the work at all, and being paid out of the budget, but this was by mistake.

The regulations were then amended in the same year to say that a health body may only permit an individual living in the same household as the patient, a family member or friend being paid out of the budget, if this was necessary. However, this was interpreted by some clinical commissioning groups as placing a restriction on paying family members or friends who were not living in the same household as the patient, contrary to the government’s intention.

So the regulations were amended again in 2017 to ban paying a connected person to meet the needs, unless it is necessary.

However, a presumptively banned connected person is defined ONLY as one who is living in the same household, meaning that if a person is not living in the same household, it does not matter that they are close relatives, (just as with council direct payments) or even spouses (unlike direct payments from councils).

 

 

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“We can tell you that you have to use an agency from our preferred provider list for your direct payment funded services”

There are essentially two ways to take a personal budget – as a direct payment or as a ‘managed’ personal budget.

‘Managed’ – in this context – means the council’s officers making a contract for the service, in as personalised a way as a suitable provider will allow, or feel it would be necessary or feasible to offer.

With a Direct Payment form of a PB, the client is the purchaser, the employer, the contractor – (even if they have someone helping them, as long as that person has not been appointed the Authorised Person on the basis of lack of capacity on the part of the service user) and thus owes the normal legal obligations associated with all those roles…and has the rights too, that go with the roles, including who to hire or fire.

The council can attach wide ranging conditions to direct payments, but the conditions have to be reasonable. The money is public money, yes, but once it has been paid into the hands of a client, it becomes private money subject only to the conditions on which it was granted.

That’s one of the reasons one has to have a modicum of cognitive capacity, to be able to agree to these conditions.

It is highly unlikely to be lawful to demand that a Direct Payment be spent only on the council’s  preferred providers of care and support. That would risk challenge as a condition negating choice – the whole point of the direct payment scheme.

It is not so controversial, in legal terms to insist that a person deemed to require help to manage the payment, has it from a particular organisation. Councils will have either commissioned or grant funded such an organisation, and the management support is not provided under s18-20, in the same way as services to meet Care Act needs

The regulations provide for the making of conditions, but public law will constrain the scope of those conditions in light of the purpose of direct payments in the first place.

 4.—(1) A local authority may make a direct payment subject to other conditions.

(2) The conditions referred to in paragraph (1) may, in particular, require that—

  1. a) the needs may not be met by a particular person;

[a person can be an organisation or an individual – there is this backstop power to make a direct payment conditional upon NOT using a named provider, and it would be impossible to name all providers not on the approved list!]

  1. b) the adult or authorised person (in the case of direct payments made under section 32 of the Act) must provide information to the authority.

(3) The conditions referred to in paragraph (1) may not require—

  1. a) the needs of the adult to be met by any particular person;

[so the use of the condition to eliminate all but one preferred by the council for whatever reason, is prevented]

So it is a reasonably safe predication that whilst the council can ask for information so as to be alerted to the possible choice of a supplier that may be considered inappropriate, the council is not allowed to ‘prescribe’ who the provider or employee is to be, or what steps the employer must take in relation to that relationship.

A council is allowed to withhold direct payments, however, unless conditions are met, so it has the upper hand, in that sense, unless a condition is challenged.

In one other sense there is constraint as to the choice of provider – not a condition, but a complete bar on particular usages. A person cannot spend a direct payment, on something which it is simply not allowed to be spent on – such as a nursing service that only a registered nurse would be qualified to do, in one’s own home. And one cannot be spent on long term residential care other than in pilot scheme areas.

         

 

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“You can only have a direct payment for your services, if it saves US money…or doesn’t cost us MORE”

Direct payments were supposedly “the Government’s preferred mechanism for personalised care and support…

“They provide independence, choice and control by enabling people to commission their own care and support in order to meet their eligible needs” … making people “free to choose how their needs are met, whether through local authority or third-party provision, by direct payments, or a combination of the three approaches.”

But as we know – “People must not be forced to take a direct payment against their will, but instead be informed of the choices available to them”

Some basics here, then first:

You can’t have a direct payment, unless you have been allocated a personal budget.

You won’t have been allocated one of those, unless or until you have been found eligible for something. You may ALSO have persuaded the council to fund for some non-eligible need or ongoing preventive input, if you were fortunate, however.

The size of the budget will depend on what your assessed eligible unmet needs were found to be, and on what the council reasonably thought it would cost the council to meet those needs in an objectively appropriate manner.

You must have persuaded the council that a direct payment is an appropriate way of meeting the needs for which it is proposed to allocate the relevant amount of funding.

Appropriate is a woolly word – and no-one knows whether a council may lawfully take the economic impact of giving you one for your needs, on the rest of its functions, into account, as part of that consideration. I would say not.

In some parts of the Guidance, economic viability and value for money have crept back in to the ‘right’ to have a direct payment. One analysis is that this is deliberate, to match the references in the personal health budgets regs to the issues of both clinical and economic viability, on the basis of which a Health DP can be refused (‘value for money’).

The DH says not though – they knew that the Regs themselves say that a direct payment is mandatory, if the conditions in the regulations are met… so it all comes down the interpretation of the word ‘appropriate’ in the DP regulations.

You would need to have persuaded the council that even if it would cost the council more to meet the same need with the same outcomes, via a direct payment, than it would for them to just buy in the service and provide it to you, it’s still better value to give you a sufficiently funded personal budget as a direct payment, rather than directly provide for a want – eg in order to promote your control over day to day care and support – part of your well-being – according to s1 of the Act.

Otherwise, you would have to pay the difference, not the council – if it was a want, and not a need.

But if it is a need, and just costs more by way of a direct payment, can the council say NO?

Let’s assume that it is agreed that the service user’s needs can be met by a response that does x, y and z

The service user would prefer x, y and z with bells on, or x, y and z squared….or cubed, or in pink or blue….  And all with good reason – it’s part of their subjectively desired outcomes.

This is generally a ‘want’ vs a ‘need’ situation, a trigger for a self-funded top up.

Albeit that the person has a subjective reasonable preference for it, as a human being……

In that situation, the client/advocate needs either –

  • To spend more of their own money
  • To persuade the council that the preferred option really would be better value, albeit not necessary.

 

Now let’s assume (without thinking of it in terms of a direct payment vs a council contract at all at this point) that there are two alternative DIFFERENT objectively adequate ways of meeting a need: the council need only fund the cheaper of the two. This is because it is public money.

It should however ensure that it doesn’t allow cost to be the driving determinant, and engages with human rights and abides by MCA process and the Care Act Guidance.

The Council can fund the more expensive package, for better short or long term value, and should do either by calling it the meeting of a non eligible need, at Panel stage, or accepting that it is clear that it is in the best interests of the person, or that it would make a big difference to the person’s outcomes. It may also do so for reasons of compassion, for meeting a government target, etc

Now assume that there are two different DEPLOYMENT routes (one, a direct payment, the other with the council buying the response) for achieving the EXACT same service response or outcome, but a direct payment will cost more than it will if the council does the buying.

In CASCAIDr’s view the council needs either to

  • Fund for sufficiency – on the basis that the direct payment deployment route is itself a part of promoting well-being BECAUSE it enhances control over day to day life: see s1
  • Or – refuse a direct payment on the grounds that a direct payment would not be an appropriate way of meeting need – and risk judicial review
  • If it did this where the difference is LARGE, or the benefit of having a direct payment was not articulated as being important in itself not important to the individual, a council might get away with it, we think.
  • We do not think that it can say ‘you can only have what it would cost US’ if it cannot articulate why the item or service wanted is a mere want and not a need.

We don’t feel confident in saying this myth has been busted as yet, because there’s no case on it, but we do think that a council arguing that the cost of a Direct Payment is relevant to its appropriateness, such that it can say no to one when all the other conditions have been met, would be taking a legal risk, where the difference was not great.

We say that because the Personal Health Budgets regulations specifically mention financial non-viability – whereas the council Direct Payment regulations DON’T! A lawyer would make a lot of mileage out of that difference, because draftsmen don’t just leave things out for no good reason.

 

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“We can change your care plan and cut the funding whenever our own funding gets cuts from central government or our own budget looks wobbly”

Councils can change a care plan to save money. How they do it though, is the all important question, because there’s judicial review for decisions that have been driven by one thing only, or which have taken irrelevant considerations into account or been arrived at unfairly.

The desire to save money, can only be one relevant consideration, not the whole point of the change to the care plan. There is no necessary precondition for a change that the clients’ needs have changed. What was adequate before may have become unaffordable now, but not all changes are lawful.

Resource Allocation Systems – the computer based costing models which can be changed by the click of a key – when the council realises it’s got an overspend or a deficit even if it sticks to its budget, for instance, aren’t actually mentioned in the Care Act itself.

They aren’t mentioned in the Regulations. Ie there is no such thing as an interim personal budget mentioned: only a definition of a finalised one!

Indicative budgets do get lots of attention in the Guidance. It says that it is critical – crucial – essential – important – etc that a person is given an upfront indicative allocation, apparently, before care planning.

There is case law, from a point before the date the Act came into force. That case law is about what a RAS has to be AND do, so that it does NOT ITSELF become something positively unlawful – ie, something that messes with the structural design of who decides what, in the Care Act, or which breaches the pre-existing laws about fairness. And the Guidance itself had to be constructed in lawful wording – so that pre-existing case law has been assumed to be of ongoing application and has thus informed the writing of the Guidance.

How a council or the NHS figures out how to give someone an upfront allocation can a) affect how the person feels about the process and the outcome and b) be used covertly or subtly to manage the overall budget and minimise (or attract!) risk of legal challenge and c) skew the market, where both providers and clients and advocates are unaware of people’s ACTUAL legal rights.

The Guidance says that ‘These principles [transparency, sufficiency and timeliness] apply to both the indicative upfront budget and the final signed off personal budget that forms part of the care and support plan.’

In Savva, the pre-Act case, the judge said this:

“The claimant argued that the decision of the panel does not constitute a discharge of their legal duty. She submits that the manner in which the Defendant used the RAS tool is  impermissible and cannot be used as a starting point, because it imposes an unlawful cap on the budget. I do not accept this submission.

As I understand  the Defendant’s case, if the use of a non-linear RAS tool had been the sole basis for the decision, then there would at least be a persuasive argument that the decision was unlawful. However, Ms Sackman submits that the RAS tool is not the sole basis for the decision, but it is simply a starting point in the assessment process. The RAS has been championed by the Department of Health, and certain local authorities, so I understand, have been encouraged to develop RAS schemes as indicative tools in order to discharge their duty so as to meet all of the service users’ assessed needs. The Defendant has not taken the indicative budget and said that that is the final figure.”

What should a person do with a take it or leave it approach, during ongoing austerity measures?

Faced with the council’s position that the client ‘should’ be able to make do with £x, the client, their involver, or their independent advocates should ask – because they are entitled to know the basis for the council’s opinion – in order to address it fairly. The debate can be to the weighting of the need (points) or the pounds attributed to points or the overall values (FACE) or the types of service used for an evidence base as to the cost, or to the commissioning assumptions behind the unit cost for a timed service (ie shared care deductions, informal care deductions, availability or suitability of universal services).

  • Why do you think that that’s enough to be adequate and appropriate, please? Eg: given the unit cost of that sort of a service, how is it that you have concluded that the money you’ve offered me would enable you (or me) to buy sufficient services for my particular needs, given my needs are specialist or high cost because of [fill in the blanks]?
  • Who do you envisage that I can get that …. from, please?
  • Shall we ask that provider if they’ve even got a vacancy or capacity to take ME on?

Or, the fed-up client could just say No, if it looks too hard for them to be worth it: “I don’t think that I fancy my personal budget in the form of a direct payment at all, thanks. I’d rather you lot had to commission an appropriate service for me, and invoice me for my contribution, but I would still like it personalised as to the timing and manner of its provision, like the government guidance always said it should be”…….

One RAS or several RAs?

When Lucy Series did her FOI experiment to get to the bottom of the way RASs work,

  • Five authorities indicated that they used different RASs for different client groups, varying either the questionnaire itself, the way points were allocated for each group, or different allocation tables to match ‘indicative amounts’ to points for different client groups.
  • One authority had a generic RAS, and a separate one for adults with learning disabilities, another had a separate RAS for older people.
  • Another had four separate RASs for older adults, people with learning disabilities, people with physical disabilities and people with mental health issues.
  • One authority explained its decision to use different allocation tables for different client groups on the basis that it ‘had hugely different costs of care in each area’ and if one allocation table was used it would be ‘constantly changing/overriding allocations that came out of the RAS’
  • We don’t know any lawyer who thinks this is wrong or unjustified discrimination. It HAS to be this way, because the market charges different amounts for the level of risk transferred and the amount of input required to keep a person and other people around them, safe.

Is the highest sum you can get from our RAS, a cost CEILING – above which nobody can expect funding?

Any mathematics-driven approach to average costings in relation to managing people’s dependency is bound to have a maximum, a top amount produced by multiplying the max points by the max pounds for any service suited to that need.

That level cannot be a legal maximum, however, because there is no such thing in legal principle as a cost capped care package – the principle being that if there is only one way to meet need, and the council itself believes that that is the case, then it must be funded, regardless of the cost – that’s what the consequence of there being a duty to meet need means. That is very rare, in real life.

The better and more innovative one’s care planners are, and the more funding put into regenerating employment through the care sector, the rarer it will be! But that requires Members with long term vision and officers who are legally literate….

Reaching the top of the RAS in terms of pounds and points is a certain indicator that one’s needs are massively complex. It’s probably an indicator that one should at least be having some free input supplied or commissioned by from the NHS even if one is not likely to qualify for CHC. But again, that needs managers to know to push for it.

The actual maximum product of pounds vs points is not a determinant of the right size of the care package or budget.

RA schemes with regard to points pounds or values, are every council’s translation of what they think it is appropriate to do to meet need, into a sum of money. They should be consulting publicly about that, in our view, because it’s POLICY, if they are changing the policy about levels of care needed for typical situations, because of hard economic times. The law requires that much.

There is debate about whether it is better to deflate the whole scheme by a flat rate percentage, or to consider tweaking the elements that make up the total, to reflect rational reasons for cutting funding for some types of input rather than others. We could not gainsay a piecemeal approach given that we believe in public law principles: a piecemeal approach is likely to be less irrational.  

What is clear is that a resources driven deflator cannot be used to cut existing service plans, without proportionate re-assessment.

Even applying a cut to NEW clients is still controversial  though, because any obvious differences between the way incoming and current clients are treated, aren’t good for citizen satisfaction.

To finish with, here are some RAS no-nos….in our view

  • “We will change the number of points per answer, if we run out of money or have to make cuts” – This will eventually – over time – mean that neighbours get differentiated decisions on eligibility or offers on budgets, although they had objectively similar needs. This will amount to a covert change of policy on what constitutes an appropriate response to need.
  • “We will change the number of pounds, per point, from the answers, if we run out of money” – likewise – this will amount to a covert in-year change of policy on what it is appropriate to provide in order to meet need.
  • ‘We will cut the points or pounds within the RAS without consulting with providers about the cost to them, of doing what we now need them to do for us’. That would be unlawful under the public sector equality duty and the duty to consult, under the Care Act guidance.
  • “We will top up people’s allocations if the RAS works out lower for them than this last year’s spend – that should keep them happy…” It is the law that councils have to meet eligible assessed need, so that’s a good idea, but we would disagree that that can be seen as just a choice to top up by the authority. And it makes the notion of the RAS being a rational basis for costing, harder to proselytise about!!
  • “We will simply put an inflation indexation on people’s RAS amounts, each year, unless they want re-assessment.” Great, but Government guidance expects a proper review not less than annually, because people’s needs change.
  • “We won’t have to allow anything for inflation if we don’t want to.” Er – that amounts to cutting care packages in real terms, annually, unless inflation is zero – so we don’t think that this is very sensible.
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“We tell you, the provider, what the price of care is, and you have to accept our prices!”

Social care and health providers – care homes or personal care agencies, are, in the main, regulated activity providers, providing services for a fee, as a business or as a means of delivering public benefit, in support of a charitable purpose

They are doing it from choice, not a duty.

Having chosen to take on a client as a matter of contract, a provider does or course owe him or her a duty, a duty of care, but that doesn’t mean that the provider is then forever bound to go bust, in order to honour it!

Providers admit clients to their services, it being assumed that they are all professional enough to take on only so many with such needs as they expect to be able to cope with, at a price they are actually willing to bear to take – for a commercially sensible reason.

So, as long as they are willing, however reluctantly, to continue to honour the end user’s care plan that the council has used to flesh out the agreement for services, they are the key to the council’s own performance of its own public law duties toward the client.

They evidence their ‘willingness’ by signing up to prices that are unfeasibly low.

The sector has been used by councils to cut the cost of meeting their duty, because the provder market often proves to be more amenable than central government!

If a provider agrees to cut prices, without cutting the service, the client is not actually suffering, nor are their rights to a decent care plan being ignored – so long as it was good enough to start with, that is!

The provider’s margin, its profits, though, will suffer.

And the provider’s peace of mind, in terms of cutting the cloth forever more thinly, with ongoing worries about risk management.

If a provider is able to cut the price because the council also turns a blind eye to its also watering down the service – in a way which the woolliness of an ONLY  ‘outcomes based’ care plan has cleverly allowed – then the provider gets to keep the client, the council stays lawful, in public law terms because the plan has not been changed, but the service user gets less of something, or a lower quality of something. That’s the ‘horsemeat’ issue, in the care world, or the cream being watered down to skimmed milk or even WATER! Yikes!

If providers drop  the price, though, and so do all of their competitors, the sector will have handed the council sector the very evidence it needed in order to say that the cost of care has gone down….or could go down, yet further.

So providers, individually, are the bastions of the quality of adequate social care services, if only they have the guts, individually, and not ever as a cartel, to say ‘Hell No, We Won’t Go That Low!

If councils want cuts to care plans, they must be accountable for taking the risk, and must make those cuts lawfully!!

 

With regard to negotiations – on a re-tender, or on a fees review: do councils have a right to decide what they want to pay?

Only if providers have given it to them! The law of community care services – enforced by judicial review – is that if there is only one appropriate way to meet need, then the cost is irrelevant – the client is entitled. That’s how important Parliament actually deemed social care services for adults to be!

There is no inherent room within contract law for the idea that councils can manage the price of public services simply by offering to pay what they want to pay – not in private law, if they have already made binding contracts on different terms; and not in public law, because they have statutory duties to meet eligible assessed needs, if they can’t buy at the price they want, by going back to being a provider – however much it costs.

So the way they have to try to achieve their desired savings is by making the most of a local market where providers have been naïve, unaware or desperate enough to have already signed up to provide services for whatever the council can afford to pay, or where they all concede on fees reduction, out of a sense of there being no alternative option, if they want to remain open.

Of course providers should be generous to decent partners, in times of economic hardship, for commercial reasons – but it’s time to grow up as business people, even if one is a voluntary organisation, in CASCAIDr’s view.

And that means clients and their advocates need understanding of the cost of what is provided, and the public and private law legal frameworks under which it’s been agreed to provide it – and who can enforce those rights, and what to do about that, when it’s not the provider with standing to take that issue forward.

 

The recent Care England case against Essex County Council

Section 5(1) imposed a duty on the Defendant to promote the efficient and effective operation of a market in services for meeting care and support needs.

It was common ground that such a duty did not confer specific rights on individuals (or, a fortiori, individual care home providers).

Although the duty imposed by subsection 5(1) is general in character, it was common ground that it is capable of being enforced in an appropriate case, albeit only as a general duty, rather than one conferring individual rights.

The question to be asked is this:

“Did the Defendant, when it was making the July 2016 decision, have regard to the importance of ensuring the sustainability of the market for residential and nursing care?”

“The answer to this question has to be “Yes”. This is apparent from the terms of the Pricing Report, and was confirmed by Councillor Madden’s evidence.

The July 2016 decision was a decision to increase the fees paid to care home providers (despite the absence of any contractual obligation to do so).

The Claimant’s case was that an increase in rates was a good thing from the point of view of promoting the sustainability of the market, but that the increase decided on in July 2016 was too small.

The Claimant’s case, therefore, must be that there was a certain level of increase which was necessary if the section 5 duty was to be met.

What that level was (assuming there was one), and, in particular, whether it was more or less than the level of the increases decided on in July 2016, is not a judgment which this court could easily make on an application for judicial review, and certainly not on the evidence in this case.

It does not follow that, because some increase in fees was considered appropriate, the increase had to be one which addressed in financial terms each of the sources of financial pressure experienced by care home providers. That is not a necessary consequence of having regard to the sustainability factor.

The promotion of competition is inherent in the duty to promote an efficient and effective market.”

Care England submitted that it was incumbent on the Defendant, in order to comply with its obligation to have regard to the sustainability factor, to conduct sufficient enquiries.

“There is no doubt that the Defendant did obtain information about the care home market in Essex. That is apparent from the Pricing Report, the Confidential Appendix, the Costs of Care Report and Councillor Madden’s statement.”

“I am not persuaded that the Defendant did so little to inform itself about the market that it cannot say that it had regard to the sustainability factor.”

“Councillor Madden stated that, when making the July 2016 decision, his consideration was not limited to the matters set out in the Pricing Report.

He also said that, when he made the decision, he was confident that the new fees would ensure the efficient and effective operation of the care home market, would ensure that it remained sustainable in the long term and would enable the various care homes to deliver the agreed care packages at the required quality of care.

It is obvious that, if he had considered that option 2 was insufficient for these purposes, he could have explored alternatives between option 2 and option 3.

The Claimant contended that, contrary to paragraph 4.31 of the Guidance, the Defendant did not seek and/or have “evidence that fee levels for care and support services are appropriate to provide the delivery of the agreed care packages with agreed quality of care.”

I do not accept this contention. The Defendant’s day-to-day dealings with care home providers and the recent New Framework tender exercise provided ample evidence of this kind….

The fact that seven years without fee increases under the Old Framework Agreements had, according to Councillor Madden’s evidence, resulted in few care home closures, and even fewer for financial reasons, is a potentially relevant consideration.

There was no evidence that individuals’ care and support needs were not being met as a result of the rates paid by the Defendant.

The Claimants did not provide any evidence as to the actual costs to any actual care home provider of providing residential or nursing care.

The evidence before the Court does not justify a conclusion that the only rational way of having regard to the sustainability factor was to increase fees (which the Defendant was under no contractual obligation to increase) by more than the increases decided on in the July 2016 decision.”

 

If there is any doubt left in the mind of any provider, having read this, that things can carry on as they are, without legal literacy, we would want to just give up, quite honestly.

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“Top-Ups aren’t lawful, so you can’t do business with us, (the council or the CCG), or ever charge the client or other people anything extra…”

Hyperventilating here…. What unbelievable flannel, in legal terms, from commissioners!

First of all – any extras, in the sense of personal extras, like the glass of wine at night or the cost of hairdressing, etc, are matter of contract, based on offer and acceptance, and completely outside the governance of the local authority. The fact that the council is in contract for the care (and sometimes together with accommodation) does not mean that it is able to forbid the sale of extras by any provider (unless the contract so provided, and the provider was daft enough to agree, as the price of getting onto the framework, we have to say….)

Secondly, even the National Framework allows CHC patients to make Additional Payments, even though they aren’t called top-ups and they have to be separately contracted for by the person willing to do the paying – that is, in a private arrangement – the exact opposite of what the law is in SOCIAL care care home situations. We think that that is to avoid any impression that the NHS ever has to send out an INVOICE in respect of a British person’s NHS entitlements…but the DH is seeking input on whether even that should now change…as part of a CHC overhaul.

Thirdly, if we for a moment consider top-ups in a domiciliary context, a top up is nothing more than a person choosing to meet their or their loved one’s needs out of disregarded capital (their most usual main capital asset being their home, which is not currently counted) or out of the payer’s own money…. and no public body can STOP someone spending their own money how they choose.

Fourthly – as to social care care home top-ups, Councils are told in the Care Act and the regulations and the guidance that there MUST be provision for top-ups within council contracts with care homes, because it is the person’s legal right, if they have someone else willing to pay the extra for a more luxurious service than would be adequate to meet need, (or even fund it themselves in the special situations where this is allowed, eg during the disregard or out of disregarded assets) to have the council make the contract with the home of their preference, subject only to

  • suitability, (stands to reason, since this is the council’s placement, after all)
  • availability (stands to reason as you can’t put two people in one bed)
  • and willingness on the part of the provider to enter into the council’s terms (we believe this means terms other than as to price, ie the rest of the normal terms and conditions the council believes it should use)
  • AND finally, the price being no more than the council has allocated to the person’s budget.

Lawfully allocated, that is!

The price above which the person must pay a top up, is the personal budget finalised for the person, ie the cost that the council would incur in meeting the needs in a person-centred but not necessarily ideal way, but a merely adequate, acceptable way.

In return for a top up undertaking from the person or another person, the council will then commit its contractual agreement to placing a person in a more expensive home than it would have otherwise regarded as good enough. But only if the council regards the topper upper as someone who’s good for the money for the foreseeable future.

The power on the part of the local authority to permit or refuse the payment of a top up, is not new, nor is it the introduction of any new measure of control over what providers charge.

The power to refuse is to refuse the offer to pay the top-up, not the charging of the top up.

Providers are free to charge what they like, unless they’ve contracted already to charge a fixed price for council clients – for instance as the condition for getting onto a framework, or through having to do spot bidding on an ad hoc basis.

It is control over what councils expose themselves to, by way of the ‘extra’ liability, which it is not their statutory duty to pay for.

Councils have not tended to financially assess third parties, in the past, preferring instead to leap upon the notion of a top-up as a sort of bridge which keeps homes viable, at minimum cost to the public sector.

Homes’ owners have been no purer, agreeing to treat chunks of the service as a want rather than as a need, so as to scurry towards consensus with the local council as to what the core cost should be.

The legal risk of getting into top-ups for both parties is that it imposes an inappropriate burden on relatives, if the top-up frequency or amount rate proves that the council’s usual cost is arbitrarily and indefensibly low, for supposedly ‘standard’ care, and thus this ultimately de-stabilises the market.

One little known aspect of the Choice regulations is a provision which gives a council the power, in any case where it is making the placement, to make the top-up smaller than it would appear to have to be at first glance – that is, in plain English, to SETTLE a legal challenge from a disgruntled client or their relative, faced by an unaffordable top up, by meeting MORE of the so-called excess than it was first willing to. How about that for forward planning on the part of those who drafted the legislation. There is a brain at work in those dark corridors, somewhere!

In terms of the news of the Competition and Market Authority’s concerns about the private subsidy of council clients’ fees, the current government’s choice has been to leave s18(3) dormant in the Care Act. This was the section which obliged councils to say yes to full cost payers who wanted to be bought FOR, at the council’s bulk care home rates; that (the Dilnot provisions underpinning that notion) has not been brought into force and the abandonment of the plan to do so in 2020 has just been announced.

Whatever may have been wrong with the detail of the Dilnot proposals, the abandonment of any scheme for capping costs in the way he suggested, and the non-application of the Competition Act to the purchase of care home placement by organs of the State, effectively ensures the continuation of the private client subsidy and the skewing of the market.

Another Green Paper will be batting the options back and forth, apparently, from now until summer 2018, whilst Rome just burns.

 

Good practice if you are a care home manager:

The Ombudsman has set out that the minimum for good lawful practice on the part of councils regarding Top Ups, is this, albeit directed to care homes’ management, please note:

  • Do you ensure that a proper contract with the council is in place before offering a placement?
  • Communications about changes to contracts are made directly with the council and not through the resident (or their family) only?
  • Proper consideration is given to individual’s circumstances before any changes are made to care arrangements?
  • Residents (and their families) are fully aware of how to complain about fees and charging?

See Counting the Cost of Care – Focus Report 2015 from the LGO

 

What about incapacitated people?

Anyone who’s interested in a person’s welfare can express a view about best interests, but those doing so do not inherit the choice rights of the client who is incapacitated, in legal terms.

If the client can’t MAKE a choice, the council will be making the decision and taking on board all the needs, as well as the best interests consultees’ or advocate’s views and expressed wishes of the client in any event.

The guidance says this: (Annex A)

“People who are unable to make their own choice

40) There will be cases where a person lacks capacity to express a choice for themselves. Local authorities should therefore act on the choices expressed by the person’s advocate, carer or legal guardian in the same way they would on the person’s own wishes, unless in the local authority’s opinion it would be against the best interests of the person.”

It’s not, then, the client or family making the choice, but the council, in the normal way, and no doubt done to maximise income – councils thinking that if there’s someone willing to pay, then they can simply treat the willingness as triggering a top-up.

However, the choice condition (the basis of the legal right to choose) is that the client chooses, so incapacitated people’s care should not really be funded by top-ups without an authorised welfare decision maker’s choice (PoA or welfare deputy) even if the person does have ordinary friends or relatives who are keen to pay formal top ups.

Imagine what that would do to councils’ care home budgets, if that was fully appreciated or treating the regs as applying was declared to be maladministrative or illegal!!

We expect that a court would say that if a best interests consultee had agreed, then a council WOULD still be justified in putting a person in a better than necessary setting, and could accept a contractual agreement to pay the top up from the third party, in any event.

They might then be taking a top up outside of the Care Act and regulations, but within their lawful discretion under s19.

Phew!! So we can all stay calm and carry on…!

 

What is the law about the payment arrangements for top ups? Can there be a slice which is not part of the council’s contract, but a private arrangement instead?

Only for purely personal extras – ie things that are not part of the meeting of assessed eligible needs at all.  A glass of wine is good

See the Guidance:

“28) When entering into a contract to provide care in a setting that is more expensive than the amount identified in the personal budget, the local authority is responsible for the total cost of that placement

This means that if there is a break down in the arrangement of a ‘top-up’, for instance if the person making the ‘top-up’ ceases to make the agreed payments, then the local authority would be liable for the fees until it has either recovered the additional costs it incurs or made alternative arrangements to meet the cared for person’s needs.

Please note that the mere agreement by the topper upper to transmit the monies for convenience directly to the provider, is not inappropriate if all parties agree.  

However, that sort of a payment mechanism cannot be imposed, and it is not at all the same thing as a contractual liability for the payer to pay the council, please note, nor the same as a contractual liability on the part of the council to pay the provider!!

 

What if the money dries up?

“The local authority must make clear in writing the consequences should there be a  break down in the arrangement to meet the cost of the ‘top-up’. This should include that the person may be moved to an alternative accommodation where this would be suitable to meet their needs and affordable within the personal budget  or local mental health after-care limit.  As with any change of circumstance, a local authority must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to the person’s wellbeing.”

The Guidance can only say ‘‘may be moved’, because, of course, choice can harden up into a need, in relation to what would or would not be suitable for the person at that later stage – eg if the person had deteriorated in a way that would make a move therapeutically indefensible. However, that is a hard argument to make out, in practice: one needs expert evidence that it would be indefensible. The case law has proven that even when people have died on being moved, it was not logically inevitable that it was the move that caused the death.

The guidance goes on: 25) ‘Ultimately, if the arrangements for a ‘top-up’ were to fail for any reason, the local authority would need to meet the cost or make alternative arrangements, subject to a needs assessment. Further details are set out below in the consequences of ceasing to make payments. Local authorities should therefore maintain an overview of all ‘top-up’ agreements and should deter arrangements for ‘top-up’ payments to be paid directly to a provider.’

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“We can decide whether your care and support needs are met or not, even if we don’t pay for anything…”

“….after the assessment in which we found you were eligible…!!”

It is true, in legal terms, that there are no duties to PROVIDE or ARRANGE to PROVIDE, any longer, on councils, under the Care Act.

That concept has been supposedly ‘modernised’ into a duty to MEET one’s NEEDS. As before, there are several ways to do this: providing, contracting to provide through a contractor’s work, taking other steps (we think that this means grants and Big Society promotion), delegating the meeting needs function to other bodies (such as Health, or to a private sector provider) and funding direct payments instead of the first two.

Look at the Guidance:

10.10    ‘Meeting needs’ is an important concept under the Act and moves away from the previous terminology of ‘providing services’. This provides a greater variety of approaches as to how needs can be met, developed through care and support planning as described in this chapter. The concept of “meeting needs” is intended to be broader than a duty to provide or arrange a particular service. Because a person’s needs are specific to them, there are many ways in which their needs can be met. The intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants.

The Law Commission found no mandate at all, though, when it did its consultation prior to the drafting of the legislation, for watering down the fundamental nature of the social care task, which had always been, by one or other of those means,  to meet assessed, eligible unmet needs.

The word out there though, it seems to us, among councils’ senior management is that it is possible to meet needs without spending any money or making any arrangement at all.

The pre Care Act case law had clearly established that the council only HAD to meet needs if it was necessary for it to do so; or if the needs ‘called for’ a response from the council; so whatever the Guidance says, nothing has really changed, and judicial review is still there to stop decisions that reach the ‘outrageous’ threshold.

Of course, at one end of the spectrum it would demonstrably be the case that needs were MET, if a council had put so much money and work into generating a preventative market – so that signposting to third parties out there, would generally offset people’s needs, by the time they came to be assessed.

The trouble is though, that that’s the Prevention and Reduction function in s2 of the Act, and there is no benchmark for how much of that is required to be done, in order to say that the duty is discharged. We all know that people do still have unmet need despite trying prevention and reduction services. And that they don’t HAVE to accept prevention offers, if they want to be assessed straight away.

So let’s go to the other end of this approach, taking it to its logical extreme: – “We can say your needs are met, just by asserting it, and leaving it to you to challenge us”, even though it’s nigh on impossible for a person with an eligible need to afford legal advice and find a lawyer who still does community care law on legal aid, AND prove that the stance is so extreme that it’s irrational in a public law sense.

Anyone think that that would be an ethical let along lawful stance to take?

We think that the adequate meeting of need must relate to reducing the impact of the inability of the person to achieve the tasks in the criteria to below the initial significant impact to wellbeing to something LESS than significant.  Logically, it cannot require the enabling of all people into newly ABLE to achieve, for that will be impossible in many cases.

This  emphasis on impact, is woolly and subjective but that’s nothing new, in public law.

The acid test is this though: if a CCG were to say the same thing, in the case of a CHC patient, asserting that there are no standards, no references to sufficiency, adequacy or anything in the NHS legislation, and only the National Framework as a sort of law, there to govern what the NHS is required to do, the judges would have to interpret the CHC policy of the DH in the context it is meant for.

That is, care planning for people who are SO dependent, that it’s not merely daily living tasks they need a bit of social care to help them with, but skilled, frequent, sustained or intense attention, in relation to management of symptoms, treatment and CARE, because of their having met the primary health need score on the DST.

The Admin court would then do to a CCG, what it always used to doing in social care cases: it would test the legitimacy of the offered services, in terms of nature, competence being planned for, and the amount or their financial equivalent, by reference to professional opinion and the procedural fairness with which it had been arrived at, quashing any offer that was choke-worthy or made in cynical disregard of basic legal principles.

We would be willing to bet (yep, bet our charitable funds!) that no CCG actually WANTS to be taken to judicial review proceedings over the inadequacy of a care plan for a qualifying CHC patient. Nor to test the notion in the Framework that disputes over the PLAN (not the status of the person for CHC itself) should go to the NHS complaints system.

Bring it on, is all we can say, if we are wrong about THAT assumption.

Our informed guess is that it still is necessary for councils (AND CCGs with CHC patients) to provide or arrange to provide services by way of actual expenditure – and that that is the meaning of the DUTY in s18 – the duty that is owed to a person AFTER assessment, and an eligibility decision, and not before.

When one considers that prevention and reduction will have been applied to minimising the needs BEFORE assessment, and that asset- and strength-based approaches, pulling in anything that is free, in the community, or from one’s willing and able network, INto the package during care planning, to reduce the amount of the eligible and unmet need, the bottom line is this: if there’s an unmet eligible need that still exists after all that, then social services will have to meet it. And – by that point – that’s going to involve spending money.

We are not saying that social care councils aren’t the decision-makers in relation to whether a need is met, please note, but just stressing that that role is subject to judicial review for ridiculous, indefensible, eyebrow-raising choke-worthy assertions (eg one toileting visit a week will do. We all have bladders and know that we have to go to the loo more often than once a week and can’t time it to suit a homecare agency’s visiting slot!).

More from the Guidance on the Care Act, regarding resource allocation and planning

  • Transparency: Authorities should make their allocation processes publicly available as part of their general information offer, or ideally provide this on a bespoke basis for each person the authority is supporting in a format accessible to them. This will ensure that people fully understand how the personal budget has been calculated, both in the indicative amount and the final personal budget allocation. Where a complex RAS process is used, local authorities should pay particular consideration to how they will meet this transparency principle, to ensure people are clear how the personal budget was derived.
  • Timeliness: It is crucial when calculating the personal budget to arrive at an upfront allocation which can be used to inform the start of the care and support planning process. This ‘indicative budget’ will enable the person to plan how the needs are met. After refinement during the planning process, this indicative amount is then adjusted to be the amount that is sufficient to meet the needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6). This adjusted amount then forms the personal budget recorded in the care plan.
  • Sufficiency: The amount that the local authority calculates as the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan.

What we are saying is that there are very few cases where a personal budget manager or a resource allocation scheme will be able to say £0 will be allocated for THAT eligible outcome – either at the indicative or the final stage of budget setting. It just wouldn’t be defensibly rational.

We’ve done a fair amount of thinking about this:

We think that the only situations where a budget can contain £0 for an assessed eligible need would be where:

  • carers are willing and able to carry on meeting those needs (no duty under s18 in that case).
  • The one off provision of equipment or use of technology is an acceptable solution (not if people have got good reasons for why it won’t work for them, nor if there is any expectation that the client has to pay someone else for the equipment or maintenance). The tech provider monitoring the use of the equipment presumably sometimes charges for that service, so that gets harder….but there’s DRE for that, later, if one is expected to pay for that ongoing service….
  • A capacitated client refuses a service geared to that domain
  • The NHS or another agency positively agrees to meet a need that would have overlapped with a social care entitlement, in a way which that other agency is willing to justify (incontinence pads for instance, in a McDonald situation)

See para 10.25 on this in the Guidance: “The duty to meet eligible needs is not discharged just because a person has another entitlement to a different service which could meet those needs, but which they are not availing themselves of. The needs remain ‘unmet’ (and so the local authority under a duty to meet them) until those needs are actually met by the relevant service bring provided or arranged.”

 

We do not think that councils can say any of the following, without thinking very carefully how to resist a challenge:

  • Zero allocations for needs for household help, on the footing that this must be paid for with disability related benefits. We think that that is wrong in principle: benefits are irrelevant to eligibility and eligibility precedes care planning: the needs must be costed The council can explore providing the service, and charging, using the person’s benefits as means but subject to the MIG, or take the client lower than the MIG if it’s a non-care service – OR treat it as DRE if left out of the plan, and paid for privately.
  • Zero for transport needs on the footing that mobility component will cover it: this would be illegal for deciding eligibility via the questionnaire as well, but not if what you are really doing is taking account of someone’s benefit status for their eligibility for other concessionary transport which would manage their needs-related transport needs…unless of course the concessionary transport is not suitable or the person is not suitable for IT.
  • Zero for the actual cost of leisure and recreation – while still putting in money for the support needs required to enable access to them. We don’t recommend this in a RAS, because some people will have needs that are not able to be met through ordinary leisure. Even if you are applying it flexibly, you still have to decide how much leisure is enough for an ordinary person, in a civilised society, and if you just let people’s means determine how much they get out, you risk ensuring that the disabled are specially discriminated against for being leisure-rich but pleasure poor, and by impoverishment through inability to work.
  • Zero for parenting – “because it’s for Children’s Services to help the child, even though they don’t agree with us in adults’ services that they should fund services for the parent for a child in need, and despite parenting difficulties regarding physical or mental impairments being an explicit domain in the eligibility criteria for adult services nationally…”!!
  • Zero for accessing and engaging in work, training, education or volunteering. A council might not need to put points in if there were Access to Work funds to rely on, or if there were voluntary organisations offering eg literacy support, mentoring in confidence, or travel assistance, friendship or chaperoning support in the area – but logically these inputs should be accessed prior to assessment: so – again, logically, more specialist support is bound to cost something, and so there would need to be an allocation.

 

Our conclusion is that it is a myth that there are no constraints on a council or CCG’s attitude to what’s required to meet a person’s needs, and that it can pay NOTHING on account of a domain that has been assessed to give rise to eligible umet need.

So we think that it is always best, if you dispute the adequacy of a care package’s content or amount, that you ask for reasons for the CCG’s or the council’s belief in the legitimacy of that offer, in relation to MCA and human rights considerations, as well as taking in the promotion of wellbeing if it’s the council.

Ask, in particular, for a written care plan showing how the commissioner would actually allocate the offered funds, on a day by day basis, to meet the needs that have been identified, in a defensible way.

Even if you want a direct payment, you are entitled to a s25 Care Plan, under the Care Act.

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“We can cap the level of services provided in your own home to whatever the cost of any other way of meeting your needs would be, any alternative that we can think of…”

The decided cases with any bearing on this topic go back a long, way, back into the 1990s, in our view, and stem from the legal principle that cost is relevant to any public body as to HOW it meets needs, not WHETHER. And from the principle that where there is a duty, there must be a bottom line below which one cannot go, in terms of reasonableness, appropriateness and adequacy. These words do not have to be stated in any Act in order to be read ‘in’, and our own Human Rights Act requires the reading ‘down’ of any statute that is ambiguous where that would save the Act in question from being in breach of human rights….

That raises the question, are the old cases all still good law, post-Care Act? and has the recent pillorying from the UN Committee on human rights, and this country’s specific record on those rights in relation to people with disabilities, made any difference?

Nobody knows. No council or CCG seems to be wanting to be JR’d about these issues. That means that if they HAVE a cost capping policy it is being applied only to the people who do not know to challenge it.

The indications are that the principles for which the old case law stood, would be re-established in any test case that was brought under the Care Act, so long as it was the right one. The NHS might fare better or worse, depending on the judge, because ordinary public law principles could be sufficient to lead to the same result, under the much woollier NHS legislation, as under the Care Act.

 

CASCAIDr starts from the principle that if a person has a NEED that everyone agrees can only be MET in one way, or one setting, that is what the council must pay for, and the cost of any other way is legally irrelevant. But that it all comes out of public money, which the council does not have the power to print, and must meet all its other duties out of, as well.

Next, that whilst there is no human right to stay in your own home, and not even to die at home, if you need care funded by the State, reference to resources can only be ONE consideration to be balanced in the thinking about whether the cost outweighs the person’s undoubted Article 8 human right to respect for his or her right to respect for one’s “private and family life, his home and his correspondence”.

What about the Convention on the Rights of People with Disabilities (CRPD) then, which envisages a right to ‘Independent Living’?

By ratifying CRPD in 2009, the UK is committed to promoting and protecting the full enjoyment of human rights by disabled people and ensuring they have full equality under the law. But that Convention has not been given specific legal effect in the UK and the meaning of independent living is capable of different meanings to different people. After all, Pamela Coughlan’s independence was promoted by the type of self contained unit she was given a home for life in, when she had her accident, and she brought proceedings to protect her right to stay in that setting on CHC, even though it now counts as a hospital such that she does not NEED to qualify.

The Care Act guidance translates all this law into one important paragraph:

“10.27  In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties.

This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population.

The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met).

However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles.

The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs.

This does not mean choosing the cheapest option; but the one which delivers the outcomes desired, for the best value.”

Although JR proceedings are being avoided at the moment, so that there is no precedent on warehousing and cost capping, there’s already been case law in the Court of Protection that makes it clear that the system we have at the moment of a social worker saying ‘we’ll see what we can do, but it’s the panel that decides’ doesn’t really work with the legal obligation to maximise a person’s capacitated decision-making with explicit information – at the right moment – especially when the only way to get them TO a care home would be against their will, and need a DoLS authorisation, such that one would be NEEDING to have the evidence that they were reasonably regarded by the decision-maker as lacking in capacity!

Case law holds that capacity assessors should not start with a blank canvas: The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed  KK was found to be clear, articulate, and betrayed relatively few signs of the dementia which afflicted her. She understood that she needed total support and carers visiting four times a day. Whilst she may have underestimated or minimised some of her needs, she did not do so to an extent that suggests that she lacked capacity to weigh up information.

The judge on a DoLS challenge said this, in that case:

  1. I find that the local authority has not identified a complete package of support that would or might be available should KK return home, and that this has undermined the experts’ assessment of her capacity. …The statute requires that, before a person can be treated as lacking capacity to make a decision, it must be shown that all practicable steps have been taken to help her to do so. As the Code of Practice makes clear, each person whose capacity is under scrutiny must be given ‘relevant information’ including ‘what the likely consequences of a decision would be (the possible effects of deciding one way or another)’. …That requires a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which option would be supported…..In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support.  ,,,I am not satisfied that KK was given full details of all practicable support that would or might be available should she return home to her bungalow.”

This principle is capable of use in the right sort of a case to make a council or a CCG come off the fence and IDENTIFY what they think is legal as a means of meeting needs in a person’s own home. If they want to cost-cap in a particular case, they might now do it, and see if that is challenged – but they’d be knowingly providing less than is assessed to be sufficient to meet the known needs, given that the person is going to be in a known home setting and not in a care home.

Put like that, it doesn’t sound like such a good idea, does it?

Recently in A Local Authority v X – Holman J invited the council, with the client’s blessing and indeed, his request, openly to determine whether it would like to cost-cap the man by giving him a direct payment of about a third of what home care had been costed out to cost, in order to keep him and others safe.

Not surprisingly the council declined to do so, and would not even spend double the amount he wanted, on meeting his needs at home, because of unaffordability. That is, a bed in a hospital that cost £x, and could meet his need, in their view, would be their only offer, whereas another option of twice £x that could also meet his needs, it declined to fund. There were potential risks to a single carer caring for this particular patient alone and that the wellbeing of the carers required at least two to be present at all times.

It would not OFFER to meet need in any other setting than the hospital it had the contract with, because of the cost. In its view, the needs of the man established him as someone whose needs COULD NOT be met in his own home, practicably.

A council can say that, but it must act lawfully in relation to a view on practicability. The question of what it can offer then, becomes important to that question.

It was arguably not UNlawful here, in our view, to offer the hospital setting for the longer term, for the following reasons:

The council didn’t need to walk away from  its duty, and just say no altogether, because it did have a willing NHS provider offering a private space, even if no care home would say yes.

It could not ‘force’ him to stay in the hospital bed, because he was deemed not to lack capacity. But if he did not lack capacity, his choice to say yes or no would be HIS choice, not the council’s, and a refusal by a capacitated person actually discharges any duty to care, under the Care Act.

Lastly he was found to be entitled to CHC, all of a sudden by the local CCG.

We suspect an intervention from the DH or NHS England there, because if CHC is NOT available for that sort of benign containment, it would be hard to imagine how anyone ELSE would ever reach Priority levels of challenging behaviour, would it not.

 

On that footing, the man can now either refuse CHC care arrangements, when offered by the NHS, and flounder, as a risk to himself and society, and risk being sectioned under the Mental Health Act or criminalised by the criminal justice system, if he cannot cope – or accept care, and hopefully other services, as part of a CHC package, to cover his social and personal care as well.

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

It can be seen that this approach is consistent with KK, where in fact the judge there said there that an authority MUST make their view of the offer that it would be prepared to make, in any other setting, clear, before it can decide that someone in refusing, lacks capacity to do so, thereby justifying a DoLS finding of lack of capacity about the decision where to live.

The judge there referred to a practicable offer – which in our  view has always been a euphemism for an offer that was lawful, or at least one that was not likely to be so unlawful as to be judicially reviewable, not a figure out of the blue.

We think that the judge was coming as close as he could possibly come, as a CoP judge and not an Admin Court judge, to making the council realise that IF the council is not prepared JUST TO WALK AWAY, and continues to act under statute, then the budget cannot simply be derived mathematically from the alternative cost of A.N. Other setting, where greater staff ratios would be always present, when the needs in the preferred setting cost a different amount to meet.

Even if the cost of an alternative is not merely arbitrary, because it WOULD meet need, it still doesn’t get one over the significance of the commissioner knowing because of professional judgement and knowledge of the market rate that the person’s needs would still cost MORE to meet, in their own home!

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

A council or a CCG can undoubtedly have a policy to meet needs in a cost effective way, ie what is practicable, as long as that notion includes legality as a pre-condition. That means not allowing cost to be the only driver or determinant of care planners’ professional discretion as to what is an appropriate way to meet need, in the individual case, and as long as human rights and mental capacity considerations are properly grappled with, en route.

To our mind, that means no POLICY that ‘this is what will always be done or decided’ can ever be lawful, because it must all be subject to a professional decision on the person’s needs at the outset – and what would be therapeutically effective and not deleterious or harmful, as a means of meeting needs (and promoting wellbeing in the specific ways mentioned in the Care Act, if this is the council rather than a CCG that we are considering…)

JUST having a general policy that it will usually or normally be the body’s expectation that the cheaper setting will be the one offered, is not safe, in our view. Not without examples of exceptions, and some proof that exceptions ARE in fact made – and that the staff know that they have a critical role in determining whether a person is even one who can be regarded as able to be cared for other than in their own home.

Having any kind of a clear cost cap, as a policy, whatever it had been set by reference to, would mean undermining the care planners’ view about managing impact to wellbeing, or even a best interests decision about an appropriate service setting.

It would also be an over-rigid fetter of discretion, a quick way to getting JR’d.

But a potentially lawful policy about planning, and having a guideline cost as being as far as the organisation aims to go, in order to be fair to all its clients, subject to legal discharge of all relevant duties, could, we think, extend to adding in the cost of supporting the carer, formally, so as to signal that sustaining carers of course matters and is valued but that the robustness and willingness, and the cost of keeping them on the job, are crucial to real choice for the client or patient.

 

Finally, if there is insufficient capacity in the local care home sector, anyway, in which to place people when this is deemed to be the practicable choice – or capacity of available beds but insufficient suitable placements, that situation points to other problems for the commissioners. A care home has to a) be suitable for the individual’s needs and wellbeing and b) have an actual vacancy before the cost of the care home package can feasibly be relevant to anything a purchasing body needs to decide!

And if the going rate for care home care in the has been suppressed by dominant commissioning practices and the market has capitulated, whilst grumbling, on the footing that top ups will bridge the gap between what they want and what they can get and still stay in contract with the council, and nobody has yet challenged that, it will mean that these so-called top-ups for luxury are the norm, despite the state of the majority of care homes being only just acceptable to CQC.

This means that relatives (and all those people in council beds, but paying full cost plus a top-up, after the disregard has ended), are subsidising the cost of standard care and attention, which is illegal.

And that creates the additional risk of challenge to the level of the fee being taken as the equivalent for the cost-capping policy – not just the policy itself!

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Questions for the CASCAIDr #HosDisChat 8pm 12 Dec

Please use the hashtag in every tweet (copy and paste for speed) and A1, A 4, A10 etc, to tie your thoughts to the relevant question. 

Advice on how to set up streams on your twitter tool is here:

For a stream for the whole chat, use #HosDisChat for the search instruction within Hootsuite:

For separate streams for each Q and A put this type of SEARCH instruction into a new stream that you can set up on eg hootsuite, for each of the 10 questions,

  • for Q1 and all the answers to Q1, excluding retweets,  enter: #HosDisChat AND (q1 OR a1) -RT

 

Fitness for hospital discharge and ‘clinical optimisation’ – who is accountable for these decisions?

Q1    Premature discharge is a breach of a duty of care, foreseeably likely to cause physical or mental harm to the person – and no doubt a serious incident and something that triggers the duty of candour. What stops that happening, in current discharge systems designed to get people out as fast as possible?

Q2    Does your local system actively consider NHS rehabilitation, NHS funded intermediate care and split packages of health and social care, before it considers checklisting someone for CHC and discharging those who don’t get positive checklists?

 

Options for integration of health and social work inputs, in the context of hospital discharge

Q3        Social workers in hospitals, used to be the norm – but an integration-based alternative is funding a social work, equipment, adaptations and homelessness rights service as part of a hospital’s system (or a joint ‘discharge to assess’ system) is  – is anything like that happening in your area?

Q4        Care Act functions can be delegated to NHS discharge staff – if they can be taught how public law works and trained to apply a carer blind approach and the Care Act criteria to an assessment. Why isn’t this being done as much as it could, do you think?

 

Checklisting for CHC – not mentioned in the Care Act’s hospital discharge schedule, and on its way out?

Q5    Does your local hospital discharge system checklist ALL its patients with complex needs, including self funders, or only the ones who’ve come to the attention of the local council, for assessment of a council funded placement or package?

Q6   What do you think of plans to raise the threshold for positive Checklisting, so that fewer people go on to get full MDT consideration of the mapping of their needs, as proposed by the Department of Health in a recent consultation here?

 

Choice rights, top-ups and arbitrarily low council/CCG rates for placements

Q7    What percentage of care homes in your area are now asking for top-ups before they will admit an elderly hospital discharge patient to a room, via a council placement? Does anyone know the difference between a top-up want and a need that’s just part of proper care planning?

Q8    What steps does your local council take to make a professional judgement on the suitability of available vacancies for the individual’s specific needs, before asking relatives to help the council decide, or consider paying a top-up?

 

Transparency regarding a home care offer, and cost-capping culture amongst councils and CCGs

Q9    Does the council or the hospital discharge social worker explicitly identify what would be funded at home, before offering a care home placement, or after any refusal to accept one by the patient or their family?

Q10    Is any home care package that might be offered to a person not wanting to go to a care home, capped, in policy or in practice to the council’s expected cost of placing the person in a care home, BEFORE the individual’s needs have been assessed under the Care Act?

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“We the purchasers can tell you whether someone needs specialist skilled staff”

For any provider management, where pride is taken in staff training, the notion that their great skills are particularly suited to the care of people with a specific condition, is natural, and of course the more skill they have, the more likely a good outcome is going to be.

But for a purchaser, the devil is in the detail – who decides whether a person NEEDS specialist care? And for the care home market dealing with common problems like dementia, just how good does the service have to be, to be adequate? Aspirational levels of care are not what the statute requires, and deliberately so, or else why would anyone ever save up money to make their OWN choices?

If that is a reality in terms of the culture, who’s going to say that dementia care is always specialist care? People will recall that in the old days, one used to walk into a care home on one’s own legs, and not be stretchered in – and yet as the market got more sophisticated, and people were supported at home for longer, councils did not volunteer to pay nursing home rates to residential care homes: previous attention characterised as basic nursing in a nursing home, before FNC, started to be redrawn as residential care, albeit as a higher band, if one was lucky, as a provider.

As between a purchaser and a provider, there will be a contract, in writing, or based on fact. In return for £x, the provider will do or deliver, a set of inputs and outcomes. If that provider wants to charge a fee based on specialist staff skills, it will be making itself more expensive to the purchaser, than organisations who say that their staff have been on a short course in that specialism – and on that footing, can charge a lower fee for a semblance of skill, but without purporting to be offering the moon.

If there’s a fee band for ‘standard’ clients’ core fees, and an enhanced fee for those who ‘need’ specialist skills, and a provider has tendered for that contract, and signed up to that sort of a term, you can bet your bottom dollar that the decision-maker as to that need will be the purchaser, and hat at some stage, someone will purport to decide that nobody from that client group NEEDS a specialist service any longer.

The provider’s only recourse, in that situation, which requires GREAT strength and integrity in hard times, is to refuse to TAKE the client’s care ON, unless and until the purchaser sees things the same way.

Or give notice to someone, if the purchaser really thinks that the skilled input has not merely MANAGED the need, but managed it into evaporation, justifying a cut in the contractual fee.

One thing a purchaser will say is that since the council or CCG is the care planner, the care plan should be reviewed and revised down, and if less input is needed, then a fee reduction should be given. The trouble with that is that the costing model of most specialist providers is not that each person is charged for wholly individually, but that core costs are divided up between the number of residents or clients – in a unit, a county or even country wide, for the bigger companies. That means that the fee per person is not merely the sum total of the cost of the inputs, plus profit – it is not dependent on exactly what is provided, and the care provider can’t remain viable if each person’s care plan only generates a personal budget on some other more highly individualised footing.

A bit of contract law comes in handy here then, for providers. Who decides what is needed? The council or CCG. But who decides what is provided, or sold, and what the price is? The provider. The provider is in charge of how he or she packages up his offering, and sets that out, on the stall. That is the invitation to treat in contract terms. The purchaser makes an offer, and the provider, ultimately, accepts the offer.

Public law duties owed to the service user actually support the provider and service user in this regard: in this year’s Merton case the court decided that it was not possible to say, after years of making the most of the provider’s specialist services, for physio, SALT and sensory stimulation, that they were no longer needed, just because there were now other models of care for less money, where those services would not be available, in house. There was no justification for terminating the package, as the stance emanated from the panel and not from a proper assessment of the client, the court said.

This is not new law – the Killigrew case, in 2000, said the same thing, regarding a woman who’d had 12 hours of company a day, by dint of a package that had met her needs which included unpredictable seizures. The package was reviewed, and it was proposed to be chopped up into chunks with big gaps between inputs, just because it was becoming a two person staffed package, as the woman’s husband had developed a back problem. The maths involved in trying not to spend any more money, whilst having to put in two people, could not determine the professionals’ view of need, in that case, any more than the panel’s desire to save money could count as a rational justification for something not being needed, any longer.

The judge said this, upholding Mrs Killigrew’s challenge to the rationality of the plan

26. What was needed was a very careful assessment of why, if that was the case, 12 hours care was no longer needed. The importance of the respondent satisfying itself that this was the case is obvious. The applicant and her husband were asking for at least the 12 hours care to continue. Her condition was inevitably and steadily deteriorating. Not continuing the 12 hours care could, it was being said, have serious consequences for the applicant, and was certainly likely to cause deep distress to the applicant …On the evidence available before me, the reduction could only be justified if there was no continuing need for 12 hours care and not simply because two carers were needed when only one had sufficed earlier.

There is no proper analysis of why the 12 hour Care Plan had been originally adopted. What were the perceived advantages of that plan at the time of its implementation? Why are those perceived advantages no longer seen as advantages, if such be the case? If, to quote the earlier plan, the 12 hours care was chosen to help with the tasks of “supervision” and “of appropriate stimulation”, it is likely that in the event (for example) of no emergency, other things will be done.

What is important is not to assess what happens if there is no emergency, but what will happen if there is an emergency and no one is supervising her.

“The care manager concludes by saying that “social services would not normally provide carers ‘in case’ someone had a seizure and ‘could not be expected to do so'”. That, in my judgment, is an overly simplified approach to the problem. It may be that in preparing a Care Plan the author could reach a conclusion that given the infrequency of a person’s epileptic fits it would not be right to provide continuous supervision, but before that conclusion can be reached, a great deal more has to be done by way of examining the condition in which the person finds himself or herself.”

 

So this myth is a myth in part: it’s not untrue to say that the council or CCG can assert that specialist care is not needed, but that has to be done on a proper evidence basis, to be lawful, and the longer it’s been provided, the harder that will be, unless there’s been a real evaporation of need.

It’s not true either, that this feature of care law has any consequences for a provider, other than in so far as the fear of competition may be enough to make a provider suspend all rational business good sense.

 

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