Local authorities have statutory duties to provide residential or nursing home placements for people assessed to be in need. It is no longer a favoured means of discharging this duty to run such homes in-house. Local authorities are entitled by s26 National Assistance Act (see Wandsworth LBC ex p Beckwith no. 1) to contract for all the care they need to access, from the private sector. Most authorities now commission the larger part of the care they need to purchase, from the private, voluntary and housing association sectors, and the market is diverse and well developed.
Local authorities have lists of approved providers with whom they have made over-arching arrangements for a fixed price for the forthcoming year, and of whose standards of care they are confident. If care homes are expensive in a particular area, it may happen that most actually charge more than the authority is willing to pay. This can happen because of demand exceeding supply, or because of a high level of privately funded persons in the area accessing care if and when they need it. It might also be because some homes have chosen to invest in higher staffing ratios than are required, bigger rooms, more options for entertainment, wider choices for food, activities and outings, better decoration and facilities, etc.
The inevitable ebb and flow of market forces in the private sector does not mean that the authority can sit back and not make any arrangements for those who have met their criteria, just because what is provided is more than is adequate for the needs of those assessed as being owed a duty. Standards would never rise, if that were the case.
In order to give people a chance to choose a private sector home, over a local authority home which is already ‘paid for’, through ongoing staffing and maintenance funding for that year, the Government made Directions as long ago as 1992, which have the force of law, under s7B LASSA 1970, requiring that a person’s particular choice of home be honoured, subject to 3 conditions, even if they are reliant on the local authority for funding.
Those conditions are suitability for the person’s needs, availability at the time when the place is needed, and a fee level for the placement which is no more than the authority normally expects to have to pay for someone with that level of need.
In this way, the opportunity to choose something ‘better’ than that which is merely adequate, for those who are lucky enough to be able to access extra funds from a source independent of their own means is preserved, whilst at the same time the system protects tax payers from an obligation to fund the purchase of Rolls Royce packages of care for those who need the help of the public sector for the funding of their care arrangements….
In these times of new care standards making it objectively harder for both independent and public sector residential care homes to operate within the law, and a consequential rapid increase in home closures, it may be that there is literally nowhere available at the price the authority has said that it normally expects to have to pay, within a reasonable distance of the client’s home and social network.
In this situation, the lovely home, close by, with the space available, no matter what its price is, is not being chosen, as such – the authority must contract at more than the usual rate, because there is no other way of meeting the need which has triggered the entitlement to a placement. See the Choice of Accommodation Guidance, accompanying the Directions for confirmation of this outcome.
There are complex rules now on who can pay a top-up, and when a top-up should not be seen as such – for instance when there is only one specialist provider in an area, with no other provider to compare prices with, or where someone needs, rather than chooses, to be placed in a more expensive part of the country for meeting an aspect of their needs.
Specialism in this regard ought to be understood by the private sector market as the way forward, in carving out a more stable place in a volatile market. Once someone provides some proper dementia care in the middle of a rural area, for instance, the authorities around the area will have to use the facility to meet assessed need, and will not be able to point to any evidence of a usual rate’.
On the other hand, authorities could do well to follow Cumbria’s example – when investigated by the Ombudsman in relation to an allegation that choice had not been offered, no maladministration was found. The staff had documented every case to show that the clients had recorded their understanding of their right to choose. One of the reason why people chose Cumbria’s own home rather than the posher ones up the road was that someone had had the foresight to develop very good day care facilities within that home – so people using day care became familiar with the home long before they needed a place there. That is Best Value in-house provision, to our minds.
The Choice Directions and Guidance have been pivotal in 2011 and 2012 in a series of judgments which have shaken up commissioning practice in England and Wales. Pembrokeshire, Sefton, Neath Port Talbot, Leicester and Newcastle councils have all been judicially reviewed for failure to take account of the exhortations in the guidance to factor in the cost to the providers of providing care, when identifying the councils’ usual rate for the purposes of asking for top-ups. In the Newcastle judgment, in October 2012, the judge said it ‘mjust’ be unlawful for a council to refuse to place any more people with homes who will not capitulate on price. Whereas that would be any normal purchaser’s prerogative, if not offered acceptable terms, it is different for councils, because they owe a statutory duty to provide (ie arrange and pay for, if not using an in-house home) adequate care and attention in a residential or nursing setting, for any eligible person, who cannot afford to pay for him or herself. That is a duty – not a discretion to do so only if relatives come forward to subsidise the basic cost of adequate care under the guise of paying a premium for something especially lovely or unique! And the Local Government Ombudsman found Southampton guilty of maladministration when requiring a top up from a family, when the home the council said they should agree to their relative being placed in was not one that was available at the usual rate, but the cheapest one in the area!