Care planning, if it is to lead to the ideal of ‘needs-led’ care packages, is a highly skilled task which involves professional judgment and imagination. But all the skill in the world cannot magic a service up out of nowhere if it has not been created or invented or if no-one has perceived any incentive to exist for providing it locally. Therefore it goes hand in hand with skilled commissioning and market management, and depends on good relations with contractors and an understanding of what makes business thrive in the private and voluntary sector, so that it can add depth and variety to the services able to be provided directly by in-house local authority teams.
Good care planning relies on good ‘people’ skills, professionalism and knowledge – knowledge about human nature, knowledge about the resources which are actually available, knowledge about the organisation for whom one works, and knowledge about the law and legal framework. In the current environment it also requires a fair amount of courage and determination.
In the old days when the only services were charitable ones or those provided in-house, people had to fit in with what is available, but the law and government guidance now work together, in theory, to require the planning of care packages to suit the client’s preferences as much as possible, (the meaning of the word ‘possible’ is key, here!) and keep people living independently in the community for as long as possible, whilst stimulating the private sector into moving into this area as a field of economic endeavour (and to compete with the public sector) to create cheaper, more efficient services).
In practice therefore, care planning will only be able to be done well if the authority has, as a whole, already been successful in working together with charitable and voluntary sector providers to create the availability of a comprehensive range of services, which meet need across the full range of constituents’ needs. In some areas this simply hasn’t happened; for instance there may be no specialist dementia care for miles around, or no day-care which can adequately manage severely challenging behaviour – those patients having formally been kept in long term institutions provided by the NHS. Another real problem is the contraction of the market in residential care homes, through difficulties in sustaining recruitment and occupancy rates at a realistic fee, coinciding with authorities’ own plans to transfer their own Homes because of higher Homes room size standards etc. coming in soon.
The ‘modern’ approach to support planning via resource allocation systems – the government’s 2010 ‘Putting People First’ guidance embraces Resource Allocation schemes, but only as an indicator – not as a substitute for competent assessment of what would be necessary to meet assessed eligible needs…
“Para 129. The aim of RAS should be to provide a transparent system for the allocation of resources, linking money to outcomes while taking account of the different levels of support people need to achieve their goals. It allows people to know how much money they have available to spend so that they can make choices and direct the way their support is provided.
Para 130. Calculating what resources should be made available to individuals should not detract from a council’s duty to determine eligibility following assessment and to meet eligible needs. Rather a RAS should be applied as a means of giving an approximate indication of what it may reasonably cost to meet a person’s particular needs according to their individual circumstance.
It is important for councils to ensure that their resource allocation process is sufficiently flexible to allow for someone’s individual circumstances to be taken into account when determining the amount of resources he or she is allocated in a personal budget.”
Procedural fairness – the newly explicit requirements in the government guidance when it comes to support planning and delivering what is prescribed: Para 106 of the FACS guidance from 2010:
“Where councils do not offer direct help following assessment, or where they feel able to withdraw the provision of support following review, they should put the reasons for such decisions in writing, and make a written record available to the individual.
Councils should tell individuals who are found ineligible for help that they should come back if their circumstances change, at which point their needs may be re-assessed. A contact number in the council should be given.” [this has been built on by case law, (Savva) to cover content, not just eligibility – whenever panels say NO….]
Running out of money – the English FACS guidance says ‘Tough’!
“124. Councils should plan with regards to outcomes, rather than specific services. They should consider the cost-effectiveness of support options on the merits of each case and may take their resources into account when deciding how best to achieve someone’s agreed outcomes. However, this does not mean that councils can take decisions on the basis of resources alone. Once a council has decided it is necessary to meet the eligible needs of an individual, it is under a duty to provide sufficient support to meet those needs. Councils should provide support promptly once they have agreed to do so, but where waiting is unavoidable, they should ensure that alternative support is in place to meet eligible needs.”
The first reported case on Resource Allocation systems – Mrs Savva’s case – Royal Borough of Kensington and Chelsea
Mrs Savva was a 70 year old client, who suffered from diabetes, heart and respiratory problems, and was arthritic with poor eyesight. She had had a stroke some 10 years ago, and she had been in receipt of care services from the Local Authority since that time.
The challenge related to the decision first made in December 2009, to provide the Claimant with a personal budget of £170.45p per week. It had started off at £82.91 when she was first put through the RAS. She had got 16 points on the RAS.
Later the points score was adjusted to 28 points and the funding was adjusted to £132.56p, and this was then finally increased to £140 odd, and then to £170.45p without any more points being given…..
How was the RAS presented?
6 months earlier, the Claimant had completed a Personal Budget Supported Self-Assessment Questionnaire (SAQ) with the support of her Social Worker. Page 1 of this document stated: “Once the form is completed we will let you know as soon as possible if you are eligible for support. If you are, we will tell you how much funding will be available to help meet your needs, taking into account any contribution you need to make. You can then use this information to help you to develop a support plan, with the help of a professional and/or those who are close to you. This plan will tell us how you wish to use this funding to meet your individual needs and objectives.”
There then followed an ‘N.B.’ “The supported self-assessment is a tool in continuous development and does not guarantee any particular allocation of funding.” It did not say that it was indicative only and might go up….
The arguments in Savva – about the legality of a resource allocation system, and reasons for the finalised amount
The council said as follows, at court (though not in its documentation, it seems to be implied in the case report): “The RAS tool is a mathematical tool which has been promoted by the DH and adapted for use by the Council. The rationale behind the tool is to ensure objective consistent needs-based decision making in the context of community care. The RAS tool is designed to help the Panel in its analysis. It generates an indicative budget only.”
The “indicative budget” generated by the Council’s November 2009 RAS, when translated from a points score of 28 points to a monetary value, amounted to £112.21p. This sum, of course, was an increase from the £82.91p generated subsequent to the July questionnaire. This sum was then adjusted to £142.02p per week.
“Analysing the claimant’s needs in the round, the panel considered that the ‘indicative budget’ of £142.02p per week was too low and did not properly meet the Claimant’s needs particularly in terms of meal preparation. Therefore, the panel increased the indicative figure and allocated a weekly budget of £170.45 to the Claimant.”
What sort of a RAS was it? Are RASs even legal?
It really doesn’t matter, so long as it’s only indicative – but it’s no substitute for a proper decision by the authority! The judge said this:
“The claimant argued that the decision of the panel does not constitute a discharge of their legal duty. He 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. I agree with Ms Sackman on this point. 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.”
On the need for reasons….the judge liked the work of the social care sector, in this regard:
The Directors of Adult Social Services in their document “Common Resource
Allocation Framework” dated October 2009 state that ‘up-front allocation’ means that the person is told, before a support plan is agreed, roughly how much money is likely to be required to fund such support.
The same document emphasises ‘Transparency.’ It says that the RAS should be transparent, which means being clear how decisions are made and making the system public. This guidance from the senior social workers in this field provides support for the view that policy in this area favours a transparent approach which provides service users with clarity on how decisions are made, prior to a support and care plan being agreed.
Thus, although there is no statutory duty to give the reasons why a Panel arrives at a particular monetary personal budget, all of the documents produced by the Government Departments and by the Association of Directors of Social Services point to transparency, openness, and consultation, prior to the drawing up of an agreed Care and Support plan.
Reasons for funding sign off
“The personal budget must be sufficient to purchase the services, and is needs-led, and it seems to me that the only way in which a service user can be satisfied that the personal budget has been correctly assessed by the Panel is by a reasoned decision letter.
The observation of Carnwath J in Radar that service users cannot be assumed to be capable of looking after their own affairs in the context of assessment issues identified in that case, is equally of relevance in the present context. The Court decided that in this situation, the consultee “is left making shots in the dark, in circumstances where the light could so easily be switched on.”
Mr Butler, correctly in my view, draws an analogy with Eisai to this case. In Eisai, an intelligent response is limited because of the failure to release the fully executable version of the model. Likewise, in this case, without being able to properly understand the use made of the RAS, the service user and anyone acting on her behalf, is left totally in the dark as to whether the monetary value of £170.45 is adequate to meet the assessed need of a 28 point score. The process of conversion made by the Panel is not explained to the service user. It should have been underpinned by an evidential base, and it was not.”
The weakness in any RAS…- the judge’s comments were firm:
“I do not accept Ms Sackman’s submission that just because the direct payment scheme is an ongoing process requiring a continuing dialogue, that it is sufficient for the reasons to be reflected in the Care Plan, and communicated to the service user via the social worker and the support broker. The stage of production of the support plan and the care plan, in my view, is too late for the Claimant to be provided with reasons for the [last offered] budget. If Ms Sackman is correct, then the reasons for the July decision do not appear in print until the Support plan made available in December. That cannot represent an adequate discharge of the obligation on a local authority to explain the reasons for its decision in this area in a transparent manner.”
Both sides appealed :-
The Court of Appeal dismissed both the appeal challenge to the use of the RAS and the appeal challenge to the need to give reasons. Both sides lost again on the respective points.
The Court specifically refused to decide whether it would be enough to discharge the duty of fairness to hand the money over, merely leaving the reasons as ‘You can always ask us for reasons, if you want them’…! It is therefore not unlawful, yet, to do this.
But in relation to the reasons needing to be the panel’s reasons, this case has set a precedent, now, which must be followed!
So, the judgment in Savva suggests that councils need to be able to offer two things:
- a) a rational articulation of why the scoring underpinning to the Resource Allocation system deserves to be seen as a sensible guesstimate of the cost of meeting particular levels of needs in particular domains.
This could be done through a basic explanation, in leaflet or website format, of the council’s decision to rely on a ‘comparable current cost’ approach, but indicative resource allocation could equally be based on a calculation of how much a person could feasibly be awarded, in principle, given an overall sum of money available, in relation to their comparative position on a continuum of need compared to all other service users’ anticipated eligible need.
However, neither of these explanations of approach or policy, would suffice in themselves, in cases of disagreement, without something focusing on the individual service user’s situation, at the final sign-off of the content of a Plan, the size of the budget, or the size of a direct payment.
So the second thing needed, in cases of dispute, would be
- b) a reasoned decision as to why the final offered allocation is then thought to be adequate, to achieve the meeting of the assessed needs in the manner agreed in the Support Plan.
The decision would have to address the service user’s reasons and evidence for saying that it would not be sufficient, with the council’s reasons for deciding that it would in fact suffice, or have to suffice, despite not fully enabling the service user’s preferred outcomes, in terms of the manner of, or setting for, the meeting of the need.
Cambridgeshire – the Supreme Court tries to reconcile choice and control, with accountability of the funding council!
A later case, KM v Cambridgeshire County Council, is difficult to reconcile with this case until one appreciates that the Savva case is about reasons for a personal budget allocation, and this one is about the extent to which rationality must be evidenced when setting out a guestimate as to how much money a person who is going to have a direct payment, will need.
Cambridgeshire’s RA Scheme was based on direct payments that had been accepted. It had a ‘higher costs’ table for higher cost care packages but only when people hit the top of the ordinary table, or disputed the indicative amount….
- The triggers were night time care, 2:1 care, specialist care and specialist AND 2:1 care.
The council worked out a man’s package, using an independent social worker, who recommended £120K a year. The council accepted the assessment of need, but not the extent of the services he’d recommended to meet need, and offered £75K instead, using the higher cost table, and the expertise of a senior manager, in order to figure out how much was needed. The remainder, after personal care and support had been accounted for, was an unexplained sum just drawn from the council’s mainstream RAS.
The decision was upheld, with the court saying that there was no need in a direct payment personal budget to explain exactly how the money would even theoretically be enough. That was the whole point of direct payments – choice and control for the client.
However, the judge stressed that the approach taken to the vast bulk of the funding and its adequacy was clearly not irrational, even if it was not spelt out exactly. He didn’t say anything about the need for reasoning about the remaining chunk of the money for leisure and recreation.
The council later survived further scrutiny in the Court of Appeal and the Supreme Court … gaining the unanimous support of the Court of Appeal and then a seven judge Supreme Court. (May 31st 2012) – but one when reads the case, one realises that the unanimity was not a ringing endorsement, by any means, of Cambridgeshire’s approach:
First and foremost, Gloucestershire ex p Barry, from 1997, is still good law – ie councils can use their financial resources difficulties to
- a) justify setting a council-wide threshold, below which it will not be regarded as necessary to meet need by way of care plan arrangements –
- b) and for deciding what is an appropriateway to meet eligible needs –
…but in both cases, subject to challenge based on grounds of unreasonableness, etc..
- Once an individual’s needs have been identified above the threshold, the only relevance of resources is as to the manner and setting of and for meeting these needs, not the issue of whether the need should be met….
- The Savva case, on the need to give coherent written decision-makers’ reasons for the amount of service thought appropriate, or for the funding in the budget, when disputed, is still good law, too.
- Support plans for personal budgets should generally contain at least the following: the required services and assumed timings… together with the assumed hourly or other periodic cost.
- In a direct payment case, where there is a dispute, more detailed presentation of how in a council’s opinion a person might reasonably choose to deploy the offered sum should be offered.
- A council should explain its own assessment of the reasonable cost of the services necessitated by the eligible needs – in this case, of the principal item of the appellant’s future expenditure, namely the cost of paying for carers for his personal care – the leisure element could be a flat rate.
- It may be enough for the authority, as here, to attribute a compendious cost to a group of requisite services of similar character where that broad approach works in the person’s favour.
Councils have therefore been warned: don’t ignore duties of transparency and reasoning! The Courts are there for service users, through which to enforce lawfulness and accountability.
The substantive social care legal duty, under the CSDPA, was re-stated once again, by the Supreme Court:
- When a local authority is required to consider whetherit is “necessary in order to meet the needs of that person for that authority to make arrangements for” the provision of any of the matters on the service list, it is required to ask itself three questions and should do so in three separate stages:
(i) What are the needs of the disabled person? (IN PROSE, not POINTS!)
(ii) In order to meet the needs identified at (i), is it necessary for the authority to make arrangements for the provision of any of the listed services? (Ie WILL ANYONE ELSE DO SO? This is the eligibility decision, to be taken by reference to the locally set threshold so long as interpretation of it is compliant with FACS guidance)
(iii) If the answer to question (ii) is affirmative, what are the nature and extent of the listed services for the provision of which it is necessary for the authority to make arrangements?
There is a fourth potential stage of the inquiry where a direct payment is sought by the service user….
- …Once it is satisfied that the person’s need for the relevant service canbe met by securing the provision of it by means of a direct payment, the authority is in many cases under a duty, with that person’s consent, to make such a payment, the amount of which must equate to the reasonable cost of securing the provision: see regulations 7(1)(c) and (2) and 9(1), together with section 57(4)(a) of the 2001 Act.
- So, in cases like the present in which a disabled person qualifies for a direct payment in lieu of its own provision of services to him, the local authority is required to proceed to the fourth stage as follows:
(iv) What is the reasonable cost of securing provision of the services which have been identified at (iii) as being those for the provision of which it is necessary for the authority to make arrangements?
What the court had to say about the notion of a RAS, and the RAS in this case:
- …a mechanism had been devised in order to give the exercise a kick-start. It was called a Resource Allocation System (a “RAS”); and many authorities, including Cambridgeshire, have developed one for their own use.
- Under a RAS the local authority ascribes a number of points, within a prescribed band, to each of the eligible needs in the particular case. It then calculates the total points and consults a table within the RAS which ascribes an annual sum to the total points. For example, under the model adopted by Cambridgeshire, one point equated to £455 and 55 points (being the maximum under its model) equated to £61k.
Crucial to a RAS is a realistic nexus both between needs and points and between points and costs. Cambridgeshire developed its nexus by taking a group of 260 of its service-users who were in receipt of a direct payment, by analysing each of the eligible needs for which the payment was made and by seeking to make a realistic attribution of part of the payment to each need. It conducted various counter-checks in order to test the robustness of the model.
- Some service-users have eligible needs which require so high a level of services that under Cambridgeshire’s RAS they score total points beyond its maximum of 55.
The appellant is a case in point: he scored 62. In order to cater for such cases Cambridgeshire has developed a second indicative tool. It is called an Upper Banding Calculator (a “UBC”). It reflects in effect three factors which, in Cambridgeshire’s experience, often greatly elevate the requisite level of services, namely a requirement for a carer to remain awake at night, for two carers to operate simultaneously and for a carer to have specialist expertise.
In a case in which its RAS has identified a figure above the maximum, Cambridgeshire asks whether any of these three factors is present and, if so, it calculates, by reference to them, an appropriate annual sum for addition to the principal sum of £61k identified by the RAS.
What is crucial is that, once the starting-point (or indicative sum) has finally been identified, the requisite services in the particular case should be costed in a reasonable degree of detail so that a judgement can be made whether the indicative sum is too high, too low or about right. Such is an exercise which, in accordance with the Guidance at para 121, Cambridgeshire carries out, usually and preferably in conjunction with the service-user himself, and it is called the making of a “support plan”.
The court’s attitude to the unfortunate mother and what the paperwork had driven her to state:
“In the completion of the questionnaire the mother did co-operate. But her co-operation had a negative feature.
This related to her own contribution to the appellant’s care, which she was then providing at a very substantial level and for which she was in receipt of an annual carer’s allowance of £5k designed to enable her to purchase limited respite from caring for him.
No doubt she reasonably considered that the level of her care of the appellant should be reduced: she claimed in answer to the questionnaire that it was having a critical impact on her lifestyle and could not continue.
Yet it seems extraordinary that she should have caused the officer to record, in relation to all of the seven areas of need identified in the questionnaire, that the “unpaid support… offered by families” was “none”.
No other evidence in the proceedings suggests that the mother has refused to continue to play any role in the care of the appellant – living, as he does, within her home; on the contrary, see para 32 below. It is hard to avoid concern about the motives of the mother in having made such representations.”
Cambridgeshire’s three mistakes
“30. …Cambridgeshire made three significant mistakes in its analysis, and presentation to the appellant, of the extent of its duty to him under section 2 of the 1970 Act.
The first was in its treatment of the mother’s representations, through the answers to the questionnaire, that in the future he would receive no natural support. Inevitably it did not accept the [truth of the] representations; but it never stated, whether in writing to the mother or orally to the appellant or otherwise, that it did not accept them. It lulled the appellant and the mother into thinking that, for some extraordinary reason, it did accept them. Even if, in the interests of co-operation, Cambridgeshire was prepared to proceed on that basis, it should have put down a marker that it did not accept them.
But when, in May 2009, by reference to the questionnaire, it performed its RAS and UBC calculations, it made no allowance for natural support. The RAS figure was £61k and the UBC addition was £6k: the total was thus £67k. Had allowance been made for a reasonable level of future support by the mother, the RAS figure would have been about £46k and so there would have been no UBC addition at all.
Mr C’s report, dated 10 December 2009, was a most unhelpful document. It was not an expert’s report: it was a presentation of what the appellant and his mother wanted. Mr C’s costings totalled £157k. Into his figures he brought forward the suggestion that paid care for the appellant was required to be purchased for 14 hours (thus, for example, from 8:00 am to 10:00 pm) on each day of the year, at £18 per hour, i.e. £92k.
Mr C did not suggest that, in his expert view, paid care of that magnitude was necessary, still less did he explain why such should be. He said only that it was “reported” that it was necessary: the “report”, of course, had come from the family and no doubt in particular from the mother.
Mr C also identified 13 different educational, therapeutic and leisure activities in which the appellant might engage for a total of 32 hours each week (while the paid carer was presumably expected to sit and wait, as also during the substantial periods to be spent by the appellant in his music room) at a cost of £40k; and, among his remaining provisions, Mr C included two two-week holidays each year for the appellant, his mother and a paid carer, at a cost of £19k.
- Unfortunately the uncritical endorsement of the wishes of the appellant and of the mother by Mr C in his addendum report led them to believe that he had become entitled to provision of such magnitude. Even more unfortunately, Cambridgeshire’s response to the report fortified their belief.
The authority considered that, in relation in particular to the level of paid care but also to the suggested activities and holidays, Mr C’s presentation of the requisite services and their cost was manifestly excessive. But it did not say so; and such was its second significant mistake.
No doubt allowance falls to be made for the need for an authority to try to co-operate harmoniously with the service-user in the future and thus for it to avoid any unnecessary injection of conflict.
But to the appellant, Cambridgeshire gave the impression, in particular, that it was putting forward calculations on the basis of a requirement for 14 hours of paid care on each day of the year, not just for the sake of argument, but because it considered such a requirement to be reasonable. Thus, again on the curious footing that no natural support would be available to the appellant, it re-conducted its RAS calculation, which again, of course, produced the maximum of £61k. Then it re-conducted its UBC calculation but, on this occasion, it did so on the premise that there should be an uplift referable to the cost of specialist, paid care for the appellant for 14 hours on each day of the year: the calculation produced an extra £24k. Thus it was that, by letter to the appellant’s solicitors dated 5 January 2010, Cambridgeshire, by then acting through its legal department, made the offer of £85k which became the subject of challenge in the proceedings. It pointed out that specialist paid care for 14 hours on each day of the year, at (so it suggested) just under £15 per hour, would cost £75k and that on that basis £10k would remain for educational, therapeutic and leisure activities.
Such may therefore just about be characterised as ‘a support plan’, albeit of an extremely general character….
What happened next?
- By its letter dated 5 January 2010, Cambridgeshire had thus explained how the offered £85k might be deployed; but it had not explained how it had been computed. Contrary, … to appearances, the offered figure, being the product of the RAS and the UBC, was not, of course, the result of any detailed costing of the services which Cambridgeshire regarded as requisite for the meeting of the appellant’s eligible needs.
But, as Cambridgeshire accepts, the different basis of the two elements of the computation should, in broad terms, have been explained; and such was its third significant mistake. Even a session of mediation which took place in May 2010 proved abortive for want of the explanation; but at least the mediator facilitated the extraction from Cambridgeshire of a commitment to provide it within 14 days.
In the event Cambridgeshire finally provided a full explanation under cover of a letter dated 3 June 2010; and it described the offer of £85k as an “envelope” within which any reasonable support plan might be accommodated. But the process of its arrival at an intelligible explanation of the offer had been, as the Court of Appeal observed, tortuous.
Meanwhile, in April 2010, it had provided another, rather more detailed, support plan in order to reflect the fact that, by then (albeit, as it was to transpire, not for long), the appellant was attending the college so needed less paid care. On that basis, as the plan indicated, a very substantial sum, namely £28k, would remain available to the appellant for application to other outside activities.
How much reasoning is required then? The Cambridgeshire judges said this:
- In the Savva case, cited above, Maurice Kay LJ gave helpful guidance as to the proper approach to the provision of reasons in this class of case as follows:
“21. In many cases, the provision of adequate reasons could be achieved with reasonable brevity. In the present case, I would consider it adequate to list the required services and assumed timings… together with the assumed hourly cost. That would not be unduly onerous. I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done.”
“The appellant [in this Cambridgeshire case] does indeed require more complicated arrangements than did Mrs Savva. Even in a more complicated case, however, it may be enough for the authority, as here, to attribute a compendious cost to a group of requisite services of similar character, particularly if there are reasons for concluding that general assumptions have been made which, if reflective of error, would reflect error in the service-user’s favour.”
“It was rational for Cambridgeshire to use the RAS and the UBC, provided that the result was cross-checked in the manner to which I have referred.”
“Indeed, …the false premise behind the RAS calculation that the appellant would not continue to receive any natural support, taken together with the arresting premise behind the UBC calculation that he required no less than 14 hours of paid care on each day of the year, generates a provisional conclusion, which there is no evidence to dislodge, that any flaw in the computation is likely to have been in his favour….”
Summary of the implications of the Cambridgeshire case
- When finalising the amount of a budget or allocation, social care decision-making panels/staff are only obliged to convey a rational justification for believing that the funds awarded are broadly equivalent to the reasonable cost of securing the provision of the service concerned. A resource allocation scheme which gives an indicative amount is neither a necessity, nor sufficient, in and of itself.
- The ‘arrangement’ for meeting need that must be put into the support plan might well be a Direct Payment – if that’s what’s been agreed, in which case the client can choose, ultimately, how to spend it, so that the amount allocated need only be broadly justified, not explicitly calculated by reference to identified services.
- When finalising the resource allocation for a direct payment form of personal budget, the broad justification must be rational and based on competent staff’s opinion, as to how much of a generic type of service would actually be required to meet need, and how often, in order to be able to explain why the amount finally allocated deserves to be seen as not arbitrary, and as reasonable.
- A resource allocation calculation cannot ‘drive’ the assessment of need, which must still be needs driven, and not budget driven – and the final amount must focus on the individual, even if final costing is underpinned by reference to the average cost of meeting the needs of the client group of which he or she is a member.
- Councils are the ultimate decision-makers on support planning, in terms of appropriateness. Councils can even take resources into account, in relation to what’s ‘appropriate’ – within certain legal and procedural boundaries.
- So long as they pay respect to the client’s views on what’s appropriate, they do not have to agree, but they do need to explain their position, and it must be rational.
- The need can be identified in general terms, so long as the support/care plan identifies how it will be met – a direct payment election can be an arrangement that satisfies this requirement, and the recipient gains flexibility as to how to spend the money in meeting the assessed need.
- A guestimate of the cost of meeting the need has got to be made, and must be evidence based, and not arbitrary. A RAS is a lawful starting point, but not a finishing point.
- The council’s decision makers’ opinion as to ‘appropriateness’ can only be challenged by way of judicial review for unreasonableness, unlawfulness, breach of human rights allegations, disability discrimination, procedural unfairness, lack of consultation and absence of reasons.
What sort of cuts can be made to a person’s support/care plan?
After a lawful re-assessment … these cuts can be made without much risk of successful challenge:
- If the local eligibility threshold has been lawfully raised after proper consultation and the previously met need falls out of eligibility – but providers could be left coping with that need;
- If the need has been met by something new in the person’s life, like a new carer, spouse, adaptation, a new skill, a new neighbour, an inheritance that the person wants to put to meeting their own needs privately….etc – the need has diminished;
- If the need has genuinely gone away – like when a person recuperates to a level of independence which no longer necessitates the authority’s arrangements – but the council must articulate where it’s gone to – see Birmingham
- If the need was over-generously or arbitrarily assessed for, last time round, although this is an embarrassing thing for a council to have to admit;
- If the council thinks that there is a different way of meeting the same need appropriately, but more cheaply, and is prepared to explain why, so that it can be seen whether it is purely finance-driven, or more broadly based and genuinely considered to offer advantages.
- If the council thinks that what it is doing or funding has become positively inappropriate – ie de-skilling someone or keeping them dependent.
What would NOT be lawful care or support planning:
- Cutting the funding, without articulating where the previously acknowledged needs have evaporated to – the needs may well have resolved, lessened, or become better managed, but it does have to be explained, even if it amounts to the council saying “We were in a hurry last time and so we over-assessed or we allowed flat rates and now we can’t afford to give people more than they need now.
- Changing the means by which to meet need, without considering and articulating why the new offer is still lawful by the standards set out in this topic…
- Forcing a change of provider on every domiciliary care client without considering that at least some of them deserve to be consulted about the impact on them, by reason of their vulnerability or dependency.
- Writing to everyone and just saying “Now no-one is eligible any longer for the meeting of moderate need, your services will be cut automatically in 4 weeks’ time”.
- Taking a blanket approach to support planning for a particular group on re-assessment: “We will bring everyone out of area back to their home county, regardless of their local roots and relationships established over many years.”
- Taking the view that the person’s friends and relatives must provide accommodation or care – regardless of whether they are willing or able, this is not the case for an over 18 year old – it may be an unmet need.
- Support planning that broke some other law
- “You can choose from these two homes in the area, as they are the cheapest available. That’s your Choice Rights”.
- “You will be provided with this food, even though it is against your religious and cultural sensibilities;
- “We will only pay for the care home to feed you via a PEG tube, even though you are capacitated to decide whether or not to take food by mouth after having considered the advice of your doctor. Other homes would charge too much because of the risk of your choking.”
- “We will bandage your daughter’s hands rather than pay for more stimulation to stop her biting them, because it is the cheapest possible way of keeping her safe”.
- Support planning that ignored mental incapacity (ie “We will put you in this tenancy even though you can’t understand it, and don’t have a deputy, and it saves us money.”)
- Support planning that was only resources-led – ie in Bromley’s case some years ago they said no to a great but high-cost placement found by the client’s mother, before finding any other options with which to compare it.
Misconceptions that people have about Resource Allocation schemes
“We will change the number of points per answer, if we run out of money or have to make cuts” – This will eventually mean that neighbours get different offers with identical scores and will amount to a covert change of policy on what constitutes critical or substantial risk.
“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 top up people’s allocations if the RAS works out lower for them than this year’s spend – that should keep them happy…” It is the law that you have to meet eligible assessed need, so that’s a good idea but it makes the notion of the RAS being a rational basis for costing, completely indefensible.
“We won’t have to allow anything for inflation if we don’t want to.” That amounts to cutting care packages in real terms, so this cannot be seen as very sensible.
“We will simply put an inflation indexation on people’s RAS amounts, each year, unless they want re-assessment.” Government guidance binds councils to doing annual reassessment – people’s needs change!
Negotiating the actual deployment route is an important part of support planning:
There are essentially two ways to take a personal budget – as a direct payment, or as a ‘managed’ personal budget.
- A ‘real’ direct payment is a cash sum which is given to the client and which s/he then spends on people, services and things that are chosen by the client, not by the council.
- A managed personal budget may (or may not) be exactly the same amount as a person’s direct payment. The question of who’s going to be buying what, with that budget, is different from the situation of a direct payment – and it might affect the price of what’s provided.
- Managed’ – in this context – means the money doesn’t leave the council’s own bank account, other than under a contract – and that the council concludes a contract for the service with a provider, in as personalised a way and on as personalised terms, as providers will allow themselves to be pushed to. They will be thinking of the greater cost to them of delivering flexibility, and weighing it against being able to obtain market share, or retain a good reputation.
- Some services cost more for private individual payers than they would for big bulk council purchasers. Some cost less. It’s market forces…. And VAT will make an obvious difference on certain types of services, as councils can reclaim it, but ordinary people can’t, although most social care services don’t carry VAT in the first place.
- In a direct payment the client decides who to contract with and how to carve up their own budget, subject only to the constraints of the direct payment agreement they will have signed with the council.
- In a managed personal budget, the council is the contractually liable party in terms of payment. The contract is ‘for’ the client in one sense, but does not lumber the client with any formal contractual obligations.
- When contracting, the council is bound by its own standing orders, procurement law, and the state aid rules.
- It does not have to offer choice of provider to the client, in legal terms, but the performance targets from central government require and most councils accept that if they are to use these routes to delivering services, that the client is happy that they have been able to control the manner and timing of the services.
- Note that performance targets do not say that the definition of Choice includes choosing the identity of the provider, for managed personal budgets!
- Electing a direct payment means that the provider can’t go to the council for payment, if the client doesn’t pay, for instance.
- The provider cannot be told by the council what quality of service to provide, or how much to charge.
- The provider doesn’t have to be an approved provider of the council. Or even regulated, if it’s an individual buying the service for themselves or a family member, from another individual.
- The council can tell providers how much it proposes to offer to clients to fund various types of care, but that is not binding on the provider, who may well say that that rate is no use at all to them. Market forces will ultimately determine who is right.
- The client is liable for employment law wrongs, not the council (unless the council has behaved wrongly at an earlier stage….)
- The client owns the equipment bought with a DP and must be responsible for taking care of it…