Choice and Control

Whether or not one takes the position that choice should be given more headway in social care – or that it is better to restrain it in order that the whole client body of persons not able to provide or fund care for themselves, can be assured of an acceptable level of service, is ultimately a political issue. The appetite for personalisation of social care has unfortunately coincided with the credit crunch and global economic difficulties, and is being used in some places as the vehicle through which to deliver the very cuts that must be found by councils, because they in turn depend on central government for the money for social care.

The enhancement of choice is one of the main aims of social care policy. The ideal is that the client will be able to exercise choice in relation to the care package which is provided to meet his or her needs – choice as to the setting, choice as to a particular home, if care is to be provided in a care home; choice as to timing, priorities, objectives and outcomes of a care package, and choice as to risks that the person wants to take. The theory has it that service development should be needs-led, and existing arrangements should not be what shapes or drives people’s realistic options.

These values provide a fine underpinning to social work and commissioning. However, the main planks of the legal framework do not necessarily support these aims. The Care and Support Bill – due to become law in 2015, does not actually bring in any right to independent living (in the sense of a right to have one’s needs met in a non-care home setting); nor as currently drafted, any fundamental significance for the concept of dignity. It brings in a right to a personal budget, but that is just a concept describing a sum of money allocated after an assessment of unmet eligible needs for social care services, which has always existed since 1970 for anyone with a disability or chronic illness.

Choice and Control in the current legal framework

We acknowledge that the Carers & Disabled Children Act makes great strides in helping carers and their loved ones exercise choice and autonomy; and that Direct Payments enable service users to feel like consumers again, rather than beneficiaries of inflexible state provision. We even agree that the Single Assessment domains and sub-domains, and guidance to the effect that the exploration of needs should start out with the client’s perception of the situation, had the potential for bringing about further valuable change in this regard.

But the legal fundamentals of the system of community care do not prioritise choice at all. That is why the personalisation movement has become popular, and has become government policy over the last few years.

When personalisation of social care first became a fashionable topic, its proponents took the view that the whole system was ‘broken’, and that was this was why few people felt satisfied with their services.

This site’s position has long been that the system is not broken, but that it is not understood either by those who need to use it OR those who run it. Two things prove that this is not just a person in love with the law saying this – one is the CSCI critique of the use of Fair Access to Care Services which said as much, some years ago, and the other is that the Law Commission’s review of Adults’ Social Care law found that the law is regarded as central to the rights of people with disabilities having been supported to get what they are now entitled to get, if ony they understand how to use the law. The consultation responses to the review did not suggest that the law should be changed, as such, or the functions revolutionised – they just suggested that the law needed to be streamlined, and that people needed to be helped to understand it and USE it.

This dire state of affairs in the sector, is partly to do with education of social workers, which although degree based, no longer focuses on the notion of law or legality in the discharge of public functions; and partly, we think, to do with the culture of managerialism that has been embraced in local authorities since 1993 (as opposed to professionalisation of assessment and provision functions).

For instance, there is no reason why contracts staff within council commissioning units should not have worked with service users since 1993 to personalise the profile and flexibility of services that they were commissioning for councils to provide onwards to service users.

But a culture of disconnect between contracts staff, the finance staff who organise the money and the assessment staff who notice how people’s needs are changing, as society changes; a culture of resentment in some quarters at the loss of a direct provision role, and a culture of ‘Best Value’ not generally allowing for person-centredness to count towards the overall quality of the service – all these issues have prevented contracts officers from developing into knowledgeable but also outward-facing brokers, capable of liaising between service users and providers.

That is of course, until the government appreciated that whatever one does to Direct Payments, one cannot remove the hassle and legal responsibilities that go with them, such that many people will never want them, in preference to having a service organised for them – at which point, by sleight of hand, managed personal budgets started to count for NI130, even though the question of whether they allowed for choice and control could be answered by the councils operating them, and not by the customers!!

In short, there has been a surreal and fantastical undertone to much of what is said about choice and control in the sector, both before, during and after Putting People First became national policy, and as the demographic timebomb of the older persons’ explosion in dependency coincided with global economic volatility.

Social care through council funding is bought with public money, to which we all contribute, and a nation that does not want to pay more tax, will never be able to afford aspirational levels of care and quality for the people for whom social care is intended. If it were otherwise, no-one would ever be bothered to save money for their own futures – choice and control come from who is in control of the money, and no amount of letting the customer go shopping for their care with their ‘personal budget’ will deliver it whilst the remit of social care services is set by statute; whilst councils remain in charge of the allocation of funding FOR these services, or whilst the market struggles to deliver what is wanted for the price that the council will pay for everyone else who declines a direct payment. There is no getting round these facts of life, in our view, although making sure that the system does not deprive people of flexibility to spend a lawfully allocated sum of money on what works best for them, is a value with which no-one could disagree.

So if that much is accepted, we think that it is at least a respectable position to take, that limitation of choice, and honesty about it, is is not such a bad thing in the end. The legal framework has always made choice a factor which must be weighed and weighed heavily in the balance, in so far as it is ‘possible’. But that concept inevitably carries with it the risk that other things might outweigh the client’s choices – things like the rights and freedoms of others, and fulfilling duties to them, at the same time (eg through observance of the manual handling regulations). Expectations might not be so high if staff and users understood that it has to be so, when public money is being used to provide for people who cannot provide everything that they need for themselves.

The current legal framework:

  • mandates the arrangement of services which are thought by professionals to be suitable to meet the needs of the client, without unacceptable risks to other people;
  • allows an authority to intervene in someone’s private life if they are putting others at risk;
  • allows an authority to use a hoist rather than provide two lifters, in order to protect its staff from risk of injury in the course of social care provision – in most cases, but not every single one, because some people NEED to be lifted – it is not just that they don’t fancy being hoisted…;
  • enables an authority to choose the cheaper of two alternative adequate means of meeting need, in the interests of the wider client body and tax-paying public;
  • properly prevents authorities from acceding to a person’s racist and sexist insistence on receiving care from a particular description of person;
  • allows clients to choose to refuse to accept services, but not to hold authorities to ransom over what they will provide instead, for fear of the consequences..
  • does not allow people to take a direct payment (calculated, remember, by reference to what a social worker or care manager competently thinks a person needs to remain only at a level of risk below the local Fair Access threshold), to spend it on something else entirely, no matter how good it might be for their overall level of happiness or well-being!
  • does not allow a person to take a direct payment and spend it on formally employing their own relatives living in the same household, unless the local authority is willing to admit that it is, exceptionally, necessary for it to permit that to happen.

The law does not provide any right to stay at home no matter what the cost (see Southwark LBC ex p Khana); to live in an alternative manner, no matter what the effects on other people (see s47 NAA); to cause havoc in a group social care setting, with no risk of exclusion and a guarantee of repeated re-provision (see Kensington & Chelsea ex p Muriqi Kujtim). Social care values require sensitivity and understanding of the reasons for all the above situations having come to pass, and sensible management of the consequences, but no more than that.

The only choice which the law does support, at the moment, in terms of making it a right, is the right to choose particular accommodation – this right is given to proposed residents of a care home, subject to three or four conditions. See Choice of Accommodation for more detail.



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