Consultation in adult social care policy decision making

There are both general and specific statutory and purely public law reasons why councils must consult the public.

Sometimes it is mandatory and explicit (eg equality promotion duties) or recommended and general (eg consulting before changing the charging policy, because it is recommended in government guidance); at other times it is implied by the public law of fairness, or human rights (eg closing care homes – duty to residents, because it is their home); sometimes it is a duty owed to a group (equalities groups), and at other times to particular individuals (existing service users); and sometimes it will be necessary purely because the authority has promised to do it (consulting grant recipients before cutting grants).

When councils or PCTs cease to fund others’ services, (ie terminate a contract or withdraw grant), that is not the same as a closure of in-house services – but it can trigger a duty to consult.

Termination of a contract does not require consultation – it simply requires contractual notice as per the agreed terms. Councils do not owe even ‘preferred’ providers a living…

Council grants to the voluntary sector are also discretionary and can be cut off when the going gets tough, financially. They are not contracts.

However, if councils decide to terminate grants to local voluntary bodies, and the impact is sufficient as to be likely to close the service down, councils are now obliged to consider discrimination and equality promotion obligations in the community before doing that, and this will mean consultation, via a roundabout route. See the Southall Black Sisters and Boyejo cases.

Adequacy of Consultation when it IS required

Consultation needs to be done whilst the proposals are still at a formative stage in order for a LA to show it has conducted a fair procedure in reaching a decision which is reasonable.

Where in the course of the consultation, a new option emerges, which the LA wishes to consider, it will generally be appropriate to consult afresh on the option before proceeding to publish the proposal.

The body doing the consulting must allow adequate time for interested parties to consider the proposal and formulate their response and ensure that all the results from interested parties are conscientiously taken into account when the ultimate decision is taken.

The body doing the consulting may have a preferred option and, provided it consults on all possible options and not merely its preferred option, the LA should not fall foul of not consulting at the formative stage.

It is important that LAs make a record of all discussions or meetings, which consider those representations in order to show that the LA has taken these into account in reaching a subsequent decision. This is information that members of the public may be able to access through a request under the Freedom of Information Act.

Practical guide to consultation

As part of its consultation procedure, a public body should consider undertaking any or all of the following:

  • Assemble information and set out aims and principles for changes:
  • Identify options; including doing nothing;
  • Complete an Equality Impact Assessment;
  • Involve key partners, for example planning and environment departments, social services or transport authorities who are involved in strategy development and implementation for proposed changes to particular services;
  • Produce publications such as newsletters which raise awareness and request that responses are left at public places such as town halls and libraries;
  • Hold meetings targeted at particular groups;
  • Use councillors to engage with local communities;
  • Use local media;
  • Establish websites or forums to discuss the proposals and online questionnaires;
  • Develop recommended strategy after careful consideration of consultation responses from interested parties;
  • Keep records of the views expressed during consultation and an audit trail of how these were taken into account by the decision-makers;
  • Take action after the process has been completed.

In the context of how much consultation is enough, the courts have considered the nature of public authorities’ amended public sector equality duties, in particular the meaning of the term “have due regard to…”.

Councils should note the case of Chavda v Harrow LBC [2007] EWHC 3064 (Admin) in which the council’s decision to restrict adult care services to people with critical needs was challenged for want of proper consultation.

A summary of an equality impact assessment simply stating that implementing the proposal ‘could result in potential conflict with the Disability Discrimination Act 1995’ had been submitted to the council in preparation for its decision.

The court found that this was insufficient to enable the council to comply with the duties in the 1995 Act and that the decision was therefore unlawful. There was no evidence that the legal duty and its implications had been brought to the attention of the decision-makers, who should have been informed not just that the decision raised implications for equality, but of the particular obligations imposed by the law in relation to those issues.

In a more recent decision on consultation prior to the making of cuts in social care services, (Birmingham, 2011) the judge held that the Council had failed to comply with s49A of the Disability Discrimination Act and the requirements of common law consultation obligations.

The context of the decision was Birmingham’s resolution to raise the Fair Access to Care Services eligibility threshold from ‘substantial’ to ‘critical’. It was already established by legal precedents that such a decision constitutes a policy decision, which attracts mandatory and onerous obligations to consider the equalities impact on various sorts of groups in society, and in particular – given the context – the impact on people with disabilities.

Under the Equality Act 2010 a unified and extended public sector duty has replaced s49A of the Disability Discrimination Act 1995. The relevant provisions, however, were not in force at the time of events giving rise to these proceedings. Councils considering cuts, now, will need to take advice on whether the new duty imposes more or less of a burden of consultation upon them.

Successful legal challenges to consultation processes usually lead to a reconsideration of the decision, via an improved process. It is not necessarily the case that a different decision will ultimately be taken – the improved process may well remove the prior impediment to implementing the decision, even though it is still unpopular.

However, the Birmingham judgment held out at least a prospect that this and any other councils considering drawing the line under ‘critical’, instead of ‘substantial’, for social care eligibility purposes, may have to conclude that it simply can’t be done, consistently with the reality of the impact on real ‘live’ vulnerable adults, in light of the full weight of the equalities duties imposed on the public sector.

The decision’s emphasis on identifying adverse impacts to real people, and the pros and cons of any feasible alternatives to mitigate the impacts, may be of great use to other challengers around the country, and authorities will need to take care to heed legal advice, in its wake.

As the judge summed up:

  • There was a failure in the material prepared for consideration to address the questions which arose when considering whether the impact on the disabled of the move to ‘critical only’ was so serious that an alternative which was not so draconian should be identified and funded to the extent necessary by savings elsewhere…
  • There was a failure by the Council and Cabinet … to focus on the questions which the law required to be asked…

This case highlights two relevant principles that should inform all decisions related to cuts to adults’ social care: firstly, of course, councils can use their reserves and divert funds from other less important services, if the political pressure is strong enough, and they would be prudent to be seen at least to have considered so doing, when making cuts.

Secondly, the content of all existing care packages cannot be lawfully altered without lawful needs-led assessment of needs, whether this is done in the context of a move to personal budgets, an election for a direct payment, or simply an annual review.

“It is difficult to see how, in the circumstances of the present case, ‘due regard’ could be paid to the matters identified in s 49A without some attempt at assessment of the practical impact on those whose needs in a particular respect fell into the ‘substantial’ band but not into the ‘critical’ band.”

The judge accepted that the director had a strong belief that no one with ‘substantial’ needs would go unheeded or unassisted. “That belief, however, was not made apparent to members, nor – even in the light of what is said in his witness statements – is it clear what this would mean in practical terms for those affected.”

The judge believed that the decision to consult ‘on broad options’ required consideration of a subsidiary question: whether to go beyond generalities in assessing the likely impact of the proposed course upon individuals with ‘substantial’ needs. “At the very least … in order to pay ‘due regard’ the Council when deciding to consult ‘on broad options’ needed to consider whether its answer to the subsidiary question was consistent with its duty under s 49A. The submission now made by the Council is that it would have been impossible to do so: but that was not a feature of the analysis put to members.”

“Giving consideration to how to address the needs of the disabled…is relevant to the council’s performance of the s 49A duty …but not the same thing, however, as doing what s 49A seeks to ensure: namely to consider the impact of a proposed decision and ask whether a decision with that potential impact would be consistent with the need to pay due regard to the principles of disability equality.”

But having said all that, it is important to note the Lancashire County Council then won their case, about exactly the same thing:

Two severely disabled women failed in their attempt to get Lancashire County Council to review its decision to change its FACS criteria to exclude those with ‘moderate needs’ and its proposed amendments to their charging policy. Mr Justice Kenneth Parker dismissed the application for judicial review on the grounds that the Council had undertaken a detailed and comprehensive analysis of the probable impact on service users before changing the FACS criteria and amending the charging policy. In particular, they had considered the impact on disabled people affected by these changes.

The Council had clearly considered how any adverse effects might be mitigated. For example, that all service users currently in the moderate band would be reassessed and it would be expected that a large portion would then come into the higher band.

Furthermore, users whose needs were assessed as being moderate would have access to the Council’s Help Direct signposting service in which the Council had invested significant resources to ensure that it was able to refer members of the community with needs outside of the FACS eligibility criteria to appropriate services.

Those assessed as having moderate needs would also have access to the Council’s Telecare Services which were being expanded. Those services consist of the continuous automatic and remote monitoring of real-time emergencies and lifestyle changes over time in order to manage the risks associated with independent living. There would be further investment in those services as well as in re-ablement services intended to promote independent living and help avoid the need for services arising in the first place.

For the full judgment go to: www.bailii.org/ew/cases/EWHC/Admin/2011/2295.html

In the more recent Isle of Wight case, the primary challenge was that what had been done to the FACS descriptors was contrary to government guidance – it ignored fluctuating need by focusing on seriousness, particular types of risk, and likelihood or frequency. Mrs Justice Lang held that there is not allowed to be a hierarchy of types of risk – they are all equal as per the guidance apart from life-threatening situations and safeguarding. Secondly, though, inadequate consultation had been done – there had been a failure to focus on real people, the detriment to be suffered, etc, so the mitigation plans were not evidence-based.

 

Consultation in the context of contracting – where it is required because the government’s calls for a partnership approach, are a relevant consideration and where judicial review is now open to providers to use as a threat:

The Neath Port Talbot case is another case which councils, health service and providers all need to understand properly, and it turns on the meaning of consultation.

After successful challenges by providers, in Sefton and Pembrokeshire, Neath Port Talbot was sued for want of consultation in late 2011, and an irrational approach to what they were told, when they held out for offering £426 instead of £457 mandated under the Laing & Buisson tool, or the £499 that the providers wanted.

The council won, and that is because they were able to prove that their project manager did listen, and did address the providers’ concerns, so far as it was reasonable to expect him to do so on the council’s behalf.

The providers won to this extent: it was confirmed after proper argument that such a negotiating stance, even within an existing contract, was amenable to challenge within judicial proceedings, even though it was about actions within a private contract with the care homes. The purpose of the contract was the discharge of public functions to eligible people and that was enough. The previous case law was explained and distinguished in terms of what was actually being challenged or argued in those cases.

The council has won in terms of its stance not being unlawful, but what does it mean? It means that councils will be able to say that it’s not unfair or unreasonable for them to offer less than what is asked for, but the case says nothing about what will happen if providers actually start to terminate or Just Say No. The consultant’s approach in this case was text-book perfect and can be copied.

The market clearly also needs to take account of what is said about openness in this case, and in the Pembrokeshire and Sefton cases.

Private sector companies can feasibly choose to cross-subsidise across their homes portfolio, for commercial reasons, or take short term losses for the sake of the long term, but smaller not-for-profit and charitable organisations do have to aim for full cost recovery, because of charities law, and they may be more willing to show the commissioners what the impact of freezes or cuts will be on their bottom lines, it is suggested; and if they are willing to be more transparent, then the mood in the provider market about ‘commercial sensitivity’ may well shift a little.

It is unlikely that large private sector providers will ever open their specific homes’ management accounts to scrutiny by the public sector, but the emphasis in this case is that if one expects to be listened to, one has to speak openly to the council, at the relevant moment.

The Public Sector (Social Value) Act will make providers HAVE to add back ‘gain’ in order to be able to compete with charitable and not for profits organisations, in relation to social and economic benefit…

Overall, it is likely that this litigation will mean that Councils will be more inclined to offer what they want to pay, rather than what the provider market tells them that they should have been paying, and ought to be paying, for the future.

A bullish approach, by councils, now, in the light of this commissioning victory, may mean, however, that the market faces a heightened risk of collapse, as more home operators decide to get out of the sector, and sell off their properties as buildings, rather than as going concerns.

Another alternative is a new round of hostilities, because care home businesses start to think about the longer term, feel unsupported by the courts, and begin to Just Say No.

That is, providers may start to refuse to respond to tenders which admit of no differential pricing for levels of dependency, or which use e-auctions to bid the price down; or even choose to terminate existing contracts with the public sector, who are, after all, bound by a duty to provide, if they cannot purchase.

  • No’ to framework contracts that are only tendered at a flat rate in the first place;
  • No’ to bidding down from the framework price, or lower than they can feasibly afford, if no price has been set, and only the terms, in the framework;
  • No’ to spots, where the terms mean that next year’s fee will be reviewed and probably decreased;
  • No’ to contracts with unilateral variation clauses running through them, potentially changing the spec to something that transfers more and more risk, and yet which still expect to ‘gain share’;
  • No’ to contracts where the home is expected to do the actual statutory work of the public body for it, for free – eg doing the assessments of needs, doing the reviews, doing the contract monitoring, collecting top-ups, collecting statutory charges from the clients, acting as appointee, doing the paperwork for FNC and CHC assessments, and carrying all the financial risk in relation to cash flow. …
  • No’ to ‘evergreen’ clauses, which provide that should the contract ever come to an end, whether through expiration or termination, the provider agrees at the outset that the clients in the beds at that point should be able to stay on, at the most recently agreed rate, for as long as the purchaser likes – thereby preventing the provider from ever suing for a quantum meruit (fair rate) for the services that the home continues to deliver, to the council’s or NHS’s clients, feeling itself forever bound by a duty of care…

Implications for the NHS

The judgment must have very important implications for the NHS, and any other public body, purchasing services of a welfare nature whose procurement is regarded as outside of the EU and domestic Competition law framework, and despite all the rhetoric about the so-called efficiency of mixed public/private partnerships for the securing of these services from the market…

The context of the contracting is what made this decision open to judicial review in the first place, and open to it on conventional public law grounds. The Co-operation and Competition panel that operates within the NHS commissioning framework needs to take on board that it will not be the only remedy open to disgruntled providers, in light of this decision.

If the two principles – that commissioning for public services, the necessity for which derives from statutory functions, attracts judicial review, and that all relevant considerations must be taken into account in contracting, apply across the board, then the NHS’s wider approach to contracting for CHC must also be susceptible to JR. How can it be reasonable to pay less for CHC, than for a council funded nursing home bed, when one has be very dependent indeed, to qualify and to keep one’s CHC eligibility – and when it means that the council sector, and not just private clients, are subsidising the cost of the NHS’s statutory duty to secure CHC services?

 

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