This topic is all about making the arrangements for what the council assesses as necessary by way of a service to meet eligible assessed need.
For many years, meeting need was all about council run care homes and in-house domiciliary care agencies providing the services assessed by another arm of the council as necessary, but national policy shifted over the last 15 years to a system where the presumption was that it would be better value overall to buy services from the market, rather than deliver them directly.
Competition and rhetoric about ever improving quality was supposed to ensure that public money paid for services which anyone would have been glad to buy out of their own money.
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 commissioning relies on good ‘people’ skills, innovation and risk-taking, absolute professionalism in negotiations and knowledge – knowledge about business, finance and statistics; knowledge about the resources which are actually available, and knowledge about not only contract, employment and competition law but also the public law legal framework governing health and social services…
In practice therefore, commissioning 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.
Very often the private sector fails to realise that if it offers something innovative and specialist, for which there is a local need, or which could be publicised on a national basis, the commissioning authority will have to pay the price asked, because there will be no alternative means available for meeting the need for price comparison purposes, and no excuse for not meeting it through use of the new service, once the service is available.
As councils have the job of charging for care home placements, at least charge those who are deemed to be able to afford to pay, and they also charge for care AT home, if organized by the council, it is perhaps not surprising that a market model would strike people as likely to be best.
But that would be overlooking some unfortunate truths about what inevitably arises from a mixed public purchaser/private provider system – the people who use services can very easily get squeezed in the middle of the competing interests and pressures that both sides are under. And then the full fat cream of a great service can so easily get watered down and down until it is worse than skimmed milk! That is, unless there’s some law churning around as well – and some lines beyond which neither purchaser nor provider can go, without risking trouble. It is in that area that there has been the most interesting legal progress, involving providers bringing legal proceedings against councils for treating them badly, even though of course, a disgruntled provider could simply walk away, give notice, and go find some other business elsewhere, in theory.
This development raises an issue of great interest to good lawyers, that of the ‘public / private law divide’, or, to the layperson, the interface between the two different systems of law that are engaged here – one called public law, which is at the heart of the relationship between the client and the council (the law of community care assessment and provision, and who must do what, for whom, and when) and the other, called private law – governing the relationship between the council and the provider, in contract.
Up until recently (2012) it was accepted legal principle that one cannot use public law to make a fuss about something covered by a contract; one should use private law proceedings, or arbitration, if the contract provided for it. But – perhaps because judges can see that cuts are being made without regard to the consequences, by people whose officers are completely unaware of legal principle – service users have been winning cases that compel council decision makers to justify their decisions about packages or budgets, and providers of social care have managed to engage the sympathy of the courts to this extent too – they have been allowed to bring and win public law proceedings to require the councils to listen conscientiously to what they are saying about costs and inflationary pressures, in a time of nil percent increase offers, and even ‘take-it-or-leave-it’ reductions below previous years’ fees. The legal principle being pushed in these cases is this: if the reason the council is contracting is because it owes the client a public law duty, then its attitude to how it contracts, and on what terms is not a subject that is totally excluded from the scope of a public law challenge on traditional grounds – unreasonableness, unfairness, illegality or bad faith – and that is making a big difference to the amount of clout that well-informed providers can now bring to bear on how the market for personalized social care, really develops…
So it is not enough for contracts officers to know about competition and public procurement law any longer. They have to be sufficiently in touch with the finance team to understand that their evidence will underpin or bring down the council’s position on the legitimacy of any resource allocation system in use, for calculating indicative personal budgets; and they have to be sufficiently in touch with social workers and care manager teams to know what sort of things that are being assessed as necessary. Hopefully, it will never again be good enough, in public law legal terms, for a person to be assessed as needing x, y and z, just because x, y and z is what has already been bought in bulk, and which must be used up.
Service users now have rights under the Contracts (Rights of Third Parties) Act, from the year 2000 onwards, at least, and this means that they can enforce the terms of the contract made for their benefit, as between the provider and the authority (unless those parties have excluded the users’ rights to do so, as is the practice across the whole of local govenment). It is worth noting that in the absence of those rights, or a direct payment arrangement no service user has an enforceable contractual relationship with either the provider or the authority for the services in question. The service is provided to the client under a statutory duty, even though the user may be charged for ‘availing’ him or herself of it.
A quick personalisation class for non-social workers!
The resource allocation that clients will be told about, at an early point in their relations with Social Services, is not able to be a take-it-or-leave-it final offer – it’s indicative only.
Care planning is needs-led, not budget-led (believe it or not, this is what the law says how great is that, for the clients?)…so the Resource Allocation system is just a management tool.
That means the money allocation can logically go up or down, after support planning, depending on a number of things…and one of them is the state of the local market … another is the means by which the people concerned see it as best to meet their assessed needs. The budget has to be signed off in relation to a concluded support plan, ie adopted by the council after it has approved the plan – and that can only happen if the council’s decision-makers are happy that the cost of meeting the need amounts to best value, but also that the amount given will feasibly secure the rough type and amount of services planned for….
Councils need not fund more than they reasonably believe would be adequate to meet need in an appropriate setting. But they cannot take the cost of care in some other inappropriate setting, or a setting that the person is not actually going to be living in, because that would be knowingly not meeting assessed eligible needs appropriately. They have to have a rational reason for believing that they know what the care and support they’ve said are needed, actually costs. So if a person needs 2:1 care, realistic funding for two workers, has to be built in. This is where commissioners’ and contractors’ evidence is likely to be crucial in future legal challenges.
What else is going on due to personalisation and self directed support trends?
Councils are being driven by the cut in the money supply from central government, to close their own in-house care homes and day care centres and to seek reductions in fees (sometimes improperly, in relation to the contractual terms already agreed) in order to free up as much money as possible for the pot which underpins the resource allocation calculation system.
Councils are also re-tendering contracts for home care so as to:
- a) stop block contracting – because it can appear to prevent choice –
- b) and so as to save money, as new providers who can be persuaded to enter the market can be reasonably assured of acquiring a ready-made and qualified workforce under TUPE, so as to be able to deliver the contract hours.
- c) meet the targets from government, which required – for those on managed budgets, rather than direct payments, that the client has had an opportunity to control the use of the funding in ways and at times of their own choosing.
- d) stimulate the emerging or current general market to compete with specialist providers, and residential care providers, through innovative use of technology and a wider cross-section of staff, social capital, etc.
There are essentially two ways to take a personal budget – as a direct payment or as a ‘managed’ or notional / virtual personal budget.
‘Managed’ – in this context – means the council’s officers negotiating and concluding the contract for the service, albeit in as personalised a way as providers will allow, or feel it would be necessary or feasible to offer…
This council-managed PB route is always subject to public procurement rules and standing orders of the council (self imposed rules for prudent and lawful contracting). The council is the decision-maker, the actual customer of the provider, the purchaser, and the payer. If the council changes providers, TUPE will or at least MAY apply on the basis of the service provision change rules.
NB – If the client agrees to take a full direct payment, and gives it to someone else to manage, the client will obviously think of that as a “managed” personal budget as well, so we all need to be careful here with the language being used. It is best to call that sort of an arrangement, a managed direct payment, it is suggested. With a Direct Payment form of PB, the client is the purchaser, the employer, the contractor – and is bound by any legal rules governing direct payments.
Direct payment clients’ purchases are not subject to public procurement. They are individual private purchases, even though the money came from local government. TUPE can apply, but is much less likely too, for several reasons.
It could be that the Direct Payment client would positively like the council to manage the payroll or the payment system for purchases associated with the direct payment. That is legally possible, because the council has the power to take on the role of agent of any legal or natural person to whom it might wish to provide that sort of help. But what is then done by any such council is NOT a managed personal budget, or public procurement at all – that’s the council choosing to act as the client’s agent – under the old s2 of the Local Government Act 2000 until it was repealed, and now under the Localism Act, in all probability – lawyers must be consulted about this, as it is a complex area of law.
The differences in the two routes
- With a Direct Payment form of a PB, precisely because the client is the purchaser, the employer, the contractor – (even if they have someone helping them to manage) the client thus owes all the normal legal obligations associated with all those roles – to a worker, for instance, or to the provider.
- Because direct payments are statutory grants, the client is also bound by any legal rules governing direct payments, such as what they can be spent on… what triggers their recovery for misuse, etc.
- Under the regulations for direct payments, the council has power to attach conditions to direct payments, but the conditions have to be reasonable and not defeat the object of a DP.
- It is unlikely that a Direct Payment client can be forced to employ someone rather than go to an agency, by means of giving them only enough to employ an individual directly.
- And it is certain to be unlawful to demand that the money be spent only on one of the council’s own preferred providers for its own public procurement. That would court challenge as a condition negating choice – the whole point of the direct payment scheme.
Does a pre-paid card, amount to giving a client a direct payment?
Some councils are using pre-paid cards loaded with a person’s resource allocation, so as to maximise the choice and control of their clients whilst making it easy for everyone to keep good records. Some are calling this a direct payment, but it may be that when one investigates, the money might still actually belong to the council, in legal form – i.e. the bank account in which it is deposited, is the council’s bank account, not an account in the name of the person.
A direct payment has to be a payment, and it is an interesting legal question whether control over someone else’s money is enough to constitute a payment. It is likely that this sort of a technologically underpinned arrangement for choice and control is actually a managed personal budget, with the client given the effective role of deciding how to spend the council’s money, within their allocation. If that is a correct characterization of what is going on, then the purchase, the contract, or the employment relationship paid for out of this account via such a card, is, in reality, between the council – and the vendor, or the employee, and that won’t be consistent with standing orders or public procurement expectations – or the council’s own insurance policy, in all probability.
Who is the purchaser?
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 conditions that they will have signed with the council on a document often called a contract, but in reality, a protocol making the conditions of the payment explicit.
Those conditions and the framework under which Direct Payments actually exist, imply that the individual can only spend the money on meeting assessed eligible needs. The conditions make the individual holder, liable for misuse, to the council, if the money is mis-spent.
In a managed personal budget, the council is the contractually liable party in terms of payment. The council’s contract is ‘for’ the client in one sense, – for the client’s benefit – but does not lumber the client with any formal contractual obligations.
It does not have to offer choice of provider for non-residential services to the client, in legal terms, at all; but most councils accept that if they are to use the traditional route to delivering services, the performance targets from central government require that the client is happy that they have been able to control the manner and timing of the services. Note that the performance framework never required full choice of provider to be seen a defining element of a personal budget!
Can the client choose their own domiciliary care provider without accepting a direct payment?
No. The council’s duty, when arranging to meet need, is to meet need appropriately, after properly engaging with the client – that is all. There is no equivalent to the Choice of Accommodation Directions, in the domiciliary care and support legal framework.
Whilst there is a public law rule that says any change in the content of the care plan must be done through proper lawful re-assessment, there is no case applying that principle to the mere identity of the service provider, rather than the nature or amount of the service.
Can the client at least insist that they be informed before their provider is changed?
It depends: there is case law saying that the person deserves to be consulted, the more significant the provider and the service are, to him or her. Some councils ignore this case law all the time, because it is not well known about. The case is Essex CC ex p Bucke.
That would mean that changes in providers, of complex or extensive packages of intimate personal care, rather than ones about social inclusion or domestic support, I expect, could compel proper consultation, even if there was not intended to be any change of content. In practice this is unlikely to be tested, because any change of provider these days is usually predicated on the assumption that the content of the package will have to change, to achieve savings, although it will of course still meet needs….
Can the provider facing the loss of many home care clients in this particular era, do anything about it?
Some care providing companies are saying to the clients: “You will lose your carer if there is a change of provider, so ask for a direct payment and carry on with us.” This is not wholly fair, as the care workers could conceivably TUPE over to any new provider, depending on whether there is acceptance that TUPE applies to a particular group of workers constituting an economic entity. Some councils are trying to stop this by saying that it would be ‘misuse of personal data’ if the provider used the name and address of the client in order to market to them. There may be terms in the existing contract stopping that sort of approach, but if not, the provider is not really ‘using’ the name and address for the purposes of marketing, but is using the relationship that its workers have developed with the client, to help inform the choices open to the client. But if a provider takes this course it must be honest and say whether they have actually been told that TUPE will or will not apply, because it depends on whether the contract is being fractured, split up geographically, changed in terms of its nature, etc. – and the purchasing council is supposed to say one way or the other, when re-tendering, so that there is transparency about the labour costs.
What does the personal responsibility of the client mean under a direct payment as opposed to the situation in a managed personal budget?
- It means that the provider can’t go to the council for payment, if the client doesn’t pay, for instance.
- The client is liable for employment law wrongs, not the council (unless the council has behaved wrongly at an earlier stage….)
- 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 it. Market forces will ultimately determine who is right, and whether there is a culture of challenge in any given area….but if no-one uses law, and the market just capitulates, and sells services for less than they cost to provide, in order to keep market share, the cream will have been turned into milk, and ultimately to water, just because of the shortage in the money supply.
What other consequences flow from the question whether it is the client or the council that is the contractual party?
Any provider is liable for their own staff’s health and safety, so if an agency is contracting with a client directly, on a direct payment basis, the client’s home becomes the workplace. If the client is using a direct payment to employ an individual, however, the home is the place where the work is done, but it does not count for Health and Safety purposes because the worker is believed to count as a ‘domestic servant’!
Where the council is the purchaser, the contractor is entitled to expect that the council will have done a risk assessment as to the risk associated with the client and their home, so as to inform its approach to resource allocation. But often the sum is standardised by councils, so it is really down to the provider to say whether or not they will accept the risk, at the price being offered. Providers often fudge this consideration, out of desperation over vacancies and voids and the fear of loss of business.
In either case, if the provider’s staff are affected by something to do with the client or the home that the provider could not have been expected to find out, the purchaser could be made liable for failing to provide sufficient information in advance. But to a certain extent, the provider is supposed to be canny enough to ask the right questions before accepting the contract – the regulatory system run by CQC makes that a requirement of fitness to offer services.
Individual Service Funds
An Individual Service Fund is meant to be a trendy way of organising the meeting of need. The expression was made higher profile, by the Care Services Improvement Partnership, whilst it was in existence, in its toolkit for personalisation, but it was also in usage by those advocating an ‘In Control’ approach to personalisation.
In legal terms an ISF is always one thing or the other, out of these 2 deployment routes discussed above – it is not a distinct ‘third way’….
An ISF is an arrangement where someone, say ‘X’, manages the budget for someone else – say ‘Y’ – but the legal analysis of whether this is a managed personal budget or a managed direct payment is directly dependent on the actual identities of X and Y….
The budget may be a managed budget which has been left by the customer, X, in this example the council, with Y, the provider, in which case it’s a council contracted package, concluded with the provider in the traditional way.
It might be a contract which says to the provider here’s the contract for 100% of the services for this client, BUT, if there are things the client would like but which you can’t afford to offer in-house; or if client or the client’s family wants, you can or must contract out however much or little of the package you agree is best. At one extreme the whole fund will go into the provider’s coffers, as payment for services; at the other, only a small percentage of the actual money may end up with the provider who will have done brokerage, of a sort – and other providers will have earned some money too. But the council and the main contractor will have been legally responsible for the delivery of the care plan to the service user. The trouble is that the provider’s inevitable commercial preference will be to provide the largest possible percentage of the services itself. The contract monies belong to the provider, in this situation, presumptively, once the services start.
The budget may alternatively be a budget taken in the form of a direct payment, in which case the client might then have decided to create their own ISF, with a provider, who may then fulfil two or three roles: as a broker or agent, in relation to the spending of the money , on other providers with whom the direct payment client wishes to form contracts, AND as a service provider in his own right, AND maybe sub–contracting out services, after discussion with the client. So instead of 12 service providers each saying it’s not my job, the one service provider could organise whose job it positively IS, between the other 11, for the client; BE a service provider too, alongside the other 11, and then sub-contract a bit of the service in question, to one of the other 11.
So in any ISF, the manager of the money – X – might well be the main service provider – the master vendor, as it were. The actual owner of the fund – Y- might be the local authority purchaser, in a managed personal budget model. Or Y might be the client, once the client has taken a direct payment, understanding the implications, properly.
In this model, Y the service user, needs to have capacity, or a Suitable Person, if incapacitated, to make a contract with anyone.
If the person lacks capacity, they need a Suitable Person to be appointed, who is at the very least, an appointee or joint bank account holder, so that the Direct Payment money AND the client’s own contribution by way of assessed charges can be passed onto the provider.
There are implications for where the money should be kept too – because it’s not necessarily all going to be earned by the service provider acting as broker, for a direct payment client, ie it is not all going to be spent on services from him or her at some future point, if some of it might be spent on other providers, later on. In this sort of an individual service fund, the provider needs to keep his different ‘hats’ or roles, and the money, very safely separated ..
Is a managed personal budget the same as Councils ‘managing’ a direct payment?
Some authorities are letting Y, the client, choose the council, to be X – i.e. as the manager of the Direct Payment, or the service user’s ‘broker’ and this can have market shaping advantages.
For instance, some councils are providing payroll services for clients who are employing people, or payment services to providers whose goods or services the clients have chosen, from online directories, so that the client doesn’t have to handle the money or keep it safe. But anything then bought by the council officers wearing that hat, is a privately purchased service, purchased legally for and on behalf of the client, not a publicly procured service bought by the council.
Taking on this role is a matter of choice and agreement for the council and the client, and it carries liability risks and involves strategic questions, such as whether or not it could be legal to charge for the administration.
It’s also very dangerous for councils to do it for clients who have not got mental capacity, because it risks that any direct payment supposedly being used in this way, is not really a direct payment. The knock-on risk of that situation is that any employment of an individual, is quite possibly employment by the local authority, not the service user.
The lesson here has an impact on the customer ‘journey’ and the question of sign off of support plans and the deployment route.
A council’s not clearly recording whether the client is having a managed personal budget, or is taking a direct payment but choosing the council to manage their direct payment for them, is causing confusion. Much legal risk turns on that distinction, so it should be clearly signed off as part of support planning.
Potential Liability to the client, for any providers who act as brokers for service users – including councils who choose to have their officers act as such:
- Breach of Contract (doing something not authorised at all, or doing something authorised, but doing it so badly, so that a loss is suffered)
- Negligence liability for recommending a service provider who was objectively able to be seen as not right for the needs, or the client’s situation, at the time, but is now itself not worth suing, or not insured for what’s actually happened…..
- Negligence liability for inadequate advice on rights, eg about free NHS continuing health care not being worth applying for, or insurance cover and/or health and safety or on the liability implications of the client’s owing a health and safety liability to their own worker…
- Concerns about independence and competition, if the same one or two providers are consistently recommended….or negatively evaluated, particularly if they are the council’s formal preferred providers … or providers who refuse to play ball with the council over fees, respectively.
Can a managed personal budget or a direct payment be ‘spent’, on calling off services from a block contract?
The client who says a firm no to a direct payment is effectively requiring the council to make arrangements in the ordinary way – this is a managed personal budget. The council is free to conclude contracts of a volume which procure a discount for bulk, or enable it to have a long lasting relationship with a particular group of providers, if that is what it thinks is best for the council.
The client’s personal budget can be used against contracted services, though, without any problem, and it may make their budget go further. It may mean less choice and control, because terms in block contracts will be a compromise between both sides’ interests, in order to achieve savings or to guarantee the existence of a service which would otherwise not be created. Clients do not have a legal right to choose a provider of non-residential care.
However, a client who HAS SAID YES to a direct payment is a private purchaser who cannot be ‘let into’ a council’s block contract. That would be a resale of a service that has been bought by the council, to a private person. Even when the Local Government Act s2 was in force, there were few lawyers who would stick their necks out and say that this was permitted. The power of general competence in the new Localism Act may mean that there is a power of direct sale, but it is not clear as yet.
If all clients were to chooses a direct payment, the tying up of council money in a block contract (guaranteeing any number of hours, that might not then be used), clearly becomes an imprudent use of public funds. So the tide is moving against block contracts, if councils are really backing a wholesale move to treating direct payments, as the default option and as a good strategic choice.
…On the other hand, some councils may not, now, be encouraging direct payments, in the credit crunch, since they would have much more control over the market if they retain dominant purchaser contracts departments and a contractual relationship with local providers – because they would be controlling the majority of the money supply.
So a good compromise is block and volume contracts for services that are being offered as universally available for the whole community, or for particular setting-based communities, such as housing associations, and a portion of such contracts for assessed eligible needs for the majority who do not want direct payments as yet, and who may never want them – but with break clauses, to allow for developments in that direction. That is, it would be good for councils to have more than one SMALL block contract per area, to offer ‘choice’ to the customer, albeit through a commissioned basis. Councils can do this with framework agreements, as long as they explain the basis on which the later mini-competition between framework providers will be run – e.g., price, quality, speed of response, etc.
Can councils pay for voids, on top of the funding for managed personal budgets or direct payment clients’ own deals?
Providers who have clients with care packages and direct payments, or council contracts for within-resource allocation amounts, or with TUPE obligations inherited from a PCT, may well need ‘voids’ contracts on top to enable them to function viably. Councils can use non RAS funds for ensuring that market failure is minimized by buying these non-taken up services under their general social care powers, or for the well-being of the community, or simply because they have to, in order to develop the market.
Councils have long enjoyed statutory power to make arrangements for social care services, whether or not there are clients who are formally eligible for them. Their community care powers enable them to procure blocks of service for whoever is then sent in that direction. Also they can give grants to not for profit providers, to ensure that certain things happen in the community.
The Public Services (Social Value) Act has now been passed – 2012 – commentary thanks to TPP law –
The Act’s aims are:
- To require Central and Local Government to publish strategies outlining how they will promote social enterprise, and to involve local communities and other interested parties in drawing up and implementing these strategies (a key principle of the Big Society agenda).
- To require public bodies, when they are purchasing goods or services, to factor in social outcomes in the contract award process which measure, for instance, how the contract can promote the economic, social or environmental wellbeing of an area.
- A Social Enterprise is defined by the Government as “a business or service with primarily social objectives, whose surpluses are principally reinvested for that purpose in the community, rather than being driven by the need to maximise profit for shareholders and owners”.
- The Government supported the Act, which complements the Big Society agenda and could help to lessen the impact of public sector spending cuts by ensuring Government gets more for its money from its contractors.
- At a local level, the Act requires that every local authority’s Sustainable Community Strategy (which all authorities are under a statutory duty to produce) must include their proposals for promoting Social Enterprise engagement. This will involve amending s.4 of the Local Government Act 2000 which sets out the requirement for authorities to prepare Sustainable Community Strategies.
Implications of this Act
Under the Act, if a public body wants to advertise a contract for goods, works or services to which EU procurement rules apply, then they must consider how they can use that contract to promote or improve the economic, social or environmental well-being of their area.
Any suggestions for promotion or improvements must be (a) proportionate and (b) relevant to the subject matter of the contract. The public body should consider whether to consult with the group of people (if any) that the contract is intended to benefit. This ‘social clause’ could effectively require all bidders to set out what positive social outcomes they could create when delivering the contract, meaning that it is awarded not just on value for money or experience but also on ‘social value’.
Chris White intended this term to mean “seeking to maximise the additional benefit that can be created by procuring or commissioning goods and services, above and beyond the benefit of merely the goods and services themselves”. It is likely it could encompass benefits such as local job creation, carbon reduction or improving health and well-being.
This is likely to have a twofold effect – it should improve the chances of charities and social enterprises, who have an impressive record for adding social value, and in the nature of competition will also lead private sector bidders to increase the amount of social value they commit to deliver as part of the contract. It could also help to stimulate new partnerships between larger private sector partners and social enterprises, which can help them deliver this added value.