The implications of the English Experience for Scotland’s Self Directed Support Strategy
The law of social care – in Scotland, as well as in England – is as follows:
- Local Authorities have an enforceable absolute statutory duty to meet individuals’ assessed eligible needs regardless of available resources (ie needs, unmet by others that are of a nature, which, in the council’s opinion, necessitate the council’s intervention or funding, in order that they be met).
- If embracing SDS (self directed support) the council must be able to show that a personal budget has been worked out rationally on the basis of a proper needs-led assessment, and that it is sufficient to meet the needs identified by that assessment, appropriately, whether it is met through in-house services, a commissioned package, or a direct payment.
- The law of procedural fairness demands written reasons where requested personal budget finalised amounts are refused by panel decision-makers – the Scots Councils’ chief lawyers, in their Monitoring Officer role, would have no option but to agree, because the law is the same in both countries.
On the other hand, the UK’s Supreme Court has upheld a council’s chaotic and unprincipled approach (KM v Cambridgeshire CC) – (but only because they thought it had given the man being funded, far too much money, in reality!) – so the case holds lessons for us all…
It is suggested that there are positions being taken by the Scots government, councils and providers that are clearly not being informed by the decisions of the English administrative court and all the way up to the Supreme Court – as if law was literally irrelevant to social care and SDS… and advocacy groups and SDS support organisations don’t know how to challenge, and feel that their grant funding will be threatened. Scots lawyers just aren’t seeking out test cases on which to make their reputations…
Popular but uninformed positions in Scotland – on the part of councils
- You can’t have SDS until we say so, you can’t have it if you’re over 65
- You can’t have a direct payment unless it’s for less than it would cost us to meet your needs
- We don’t have to provide anything, however long it takes us, to guinea pig your SDS assessment, until we think we’ve finished the job
- No-one can have more than the cost of residential care
- We only do life and limb stuff, not the fluffy stuff
- We can tell carers that they have to go on caring, i.e. that we will not do what they have been doing, and that they must do more, in fact
- We can tell providers to do all the work, under a provider pathway – i.e. do the SEQ, and then force their professional discretion down a support plan that comes in on budget – all for nothing, so we can cease to rely on professional staff ourselves!
- We can cherry pick from government guidance
- We can mess about with the RAS figures with impunity
- We can send cost-brokers round to put the frighteners on the providers – they’ll think it’s a care review…
- A short break is only eligible for funding if it provides respite for an unpaid carer
- The estimated budget is the maximum amount but not ever the minimum
- We can use your money to determine eligibility – i.e. say you are not eligible, because you have got means – for example, because you are on the ILF extension fund.
Mistaken assumptions by some providers, too, unaware of the law –
- We are owed a continuing existence, in our current form
- Our contracts can’t be varied
- If we just keep our heads down, personalisation will go away
- Why should we advertise, think about marketing, or our unique selling points? We are not like any other business – we are just an extension of the public sector…
- A contract for ‘24 hour care’ does not mean 24 hour care for older people…
- Scottish Care will sort it all out for us…
- A client’s package can’t be cut, unless the client has ‘got better’…
- What’s the point of knowing how much it actually costs us to provide care?
- People have a human right to stay in their own homes, regardless of the cost of meeting their needs there…so we can just increase our charges for home care…
- People have rights to care, from the State, regardless of how difficult they might be to care for…
Mistaken assumptions on the part of some service users and proponents of SDS:
- We can spend the direct payment on whatever we like…
- Once I’ve got something in my care plan, it can’t ever be taken away
- We can employ our friends informally, and pay less than the minimum wage, tax free…
- We can refuse to agree a support plan and they will just have to give in…
- We can take lawyers and advocates and insist on appearing in front of the resource allocation panel, in every situation we can think of…
- We can give our money away so that we don’t have to pay for care…
- We can tell the State where we will accept care services, for instance, I can make an advance decision never to go into a care home…
- Cost is irrelevant to how a council offers to meet my assessed eligible needs appropriately – it’s my need, and it’s eligible….
The elephant in the room: Scotland comprehensively ignores its very own MacGregor judgment from 2000 – so how is that ever going to work for SDS, regardless of the training arising from the passage of the Bill into law?
MacGregor is a case that says that once a statutory duty has been triggered, it must be discharged, regardless of resources, because that’s what it means for there to be a duty, in local government law. The duty in this case was to provide residential accommodation, because the man had not got it otherwise available to him, and he could not lawfully be told he’d have to wait for 8 months until the funding became available…
This case holds good for any other social care statutory duty too, and means that in Scotland, as in England, the law is that once a person has been found eligible, the State must provide for their needs. The rest of the law says councils ‘need not provide what the client wants’, and ‘need not provide very much’, and that they can even ‘decide where to meet the person’s needs, so long as it not positively inappropriate and is the offer of an adequate alternative albeit cheaper service’. But the MacGregor case says that a duty is a duty, and does not depend on the state of the council’s budget at the time.
How do Scots in-house councils’ lawyers explain this case away? Are they not asked, ever, perhaps? It is inconceivable that it would be allowed to be ignored, in England.
The Scottish Executive is partly responsible: it wrote to councils with suggestions as to how to work around the judgment: no doubt this is code for ‘We won’t be making a fuss about it, if you do it this way….’ – but it is extraordinary to see this coming from a governmental body – because LAW is LAW, and cannot be gainsaid by government, however inconvenient it is. The covering letter said this:
“The purpose of drawing up a Protocol which appears to meet the requirements of the Hardie judgment, is to ensure that those who have had needs assessed are not simply placed in a date order queue for services. The Protocol says that they must be systematically reviewed, and when resources become available these must be used for those in greatest need.
– this implies that Scots councils can use the budget as a factor in whether they meet the need or not, which is completely contrary to the whole of community care law focus on whether a duty or merely a discretion has been triggered.
“We are of the view that the Hardie judgment could be seen as rather contradictory. We are also of the view that the Protocol is a satisfactory document and that it makes any similar case in future less likely to succeed because if it is followed, it ensures the systematic review of those assessed as in need. It should ensure that people’s needs are at the forefront of considerations by the local authority in allocating resources, and that date order queuing without ongoing needs reassessment should no longer be considered an acceptable practice.”
– this implies that waiting lists are acceptable, despite the duty having been triggered, and waiting lists driven by budget quotas and monthly neatness, at that – so long as the waiting lists are on the basis of urgency of needs! The judgment actually indicated that the only kind of waiting list that would be acceptable, even assuming it was on the basis of urgency, was if there were no appropriate beds, and said that that would be the fault of the commissioners, and the need would have to be met anyway, by some other means in whatever setting WAS available, thereby saving no money overall, and often actually at an increased cost. So how can the above advice be reconciled with this analysis, in the very same letter from the Scottish Executive – advice which WAS true to the legal principle in the case?
“This case appeared to have crucial implications for local authorities in that it suggested that if someone had a need assessed under S12A, then the local authority had a duty to meet that need regardless of available local authority resources. Lord Hardie ruled that the resources available to a Council were irrelevant in coming to a judgment about an individual’s needs. They were relevant however, in coming to a decision about how to meet these needs. He made clear however, that it was not an option for a local authority to do nothing if resources were not available.”
This is what your own Scots’ advocate Scott Blair says about this case in his 2007 and 2012 papers on community care on the internet (see http://www.murraystable.com/news-articles/articles/event-papers-the-law-and-care) :
“Lord Hardie held that
(1) the effect of section 12 was to impose a duty on the local authority to provide a place in a residential nursing home where this was required to satisfy an individual’s needs, and the imposition of such an obligation upon local authorities conferred on these individuals a right to enforce that obligation (pp 504G-505F);
(2) having decided that the petitioner was unable to care for himself and had insufficient funds to pay for residential care, the local authority was under a duty to make some provision for his care. The nature of that care was a matter for the local authority but the decision to do nothing and place him on a waiting list was ultra vires (p 507F);
(3) once a local authority determines that an individual’s needs call for a particular provision the local authority was obliged to make that provision. In particular, having decided that an individual required the provision of a permanent place in a nursing home, the local authority could not refuse to make such a provision simply because it did not have the necessary resources, and declarator that the respondents had acted ultra vires pronounced and case remitted back to the respondents to make the necessary provision of residential nursing home care.”
So it is evident to all the powers that be, in Scotland’s social care organisation, from the MacGregor case, that if an authority has identified an assessed need and has decided to provide a particular service to meet that need, it is unlawful for it to fail to provide that service, or to take budget into account in determining when the duty will be met. The fact that there have been no more cases ironically proves that this is known – councils will have been compromising any claims that have been made, in all likelihood, and no further precedent exists.
Scottish national guidance on eligibility criteria – for older people – is it even followed – or is the culture one of cherry picking? Is the guidance even lawful?
Your guidance says this: “This document is issued by Ministers as guidance under section 5(1) of the Social Work (Scotland) Act 1968”. That section says this:
s5. Powers of Secretary of State.
— (1) Local authorities shall perform their functions under this Act … under the general guidance of the Secretary of State.
That means in Scotland what it means in England, if there were any judicial reviews – it cannot be departed from without a very good reason….! See the Rixon case involving Islington, for the inappropriateness in legal terms, of any council purporting to cherry pick from the guidance if it has this sort of a status….
Your guidance for eligibility for services for older people says as follows:
“2.1 Councils are expected to ensure by 1 December 2009 that their local eligibility criteria and definitions for adult social care and the timescales for accessing personal and nursing care services are compatible with the national definitions and standards set out in this document.”
“5.1 Lord Sutherland’s independent review acknowledged that it is an accepted principle of social care policy that local authorities will manage their resources to focus first on supporting those people who are in most urgent need. [NB there is no mention of the Macgregor case in the Sutherland review – I have searched it, electronically!] …
“Those clients are entitled to receive such services and it is expected that they will receive them as soon as reasonably practicable and, in the case of personal or nursing care services, not later than six weeks from the confirmation of need for the service. This is the minimum expectation on local partnerships.” OOPS that would seem to be non-compliant with MacGregor, and guidance cannot override Law. But nobody has ever challenged this in Scotland….
[In Fair Access guidance in England, there is no provision for ‘target’ timescales because it is accepted that the duty is triggered, as soon as the need is assessed as eligible, and must be discharged within a reasonable time. The state of the budget is not relevant in determining what is reasonable, in principle, and particularly not in cases of a person being found to be eligible for care and attention not otherwise available – logically, those people are the most in need!]
“7.6 It is for the Chief Social Work Officer / Director of Social Work to consider the extent to which the local authority’s existing eligibility criteria already meet the requirements of the standard national eligibility framework, or require revision. Each local authority should ensure that their local eligibility criteria are compatible with the national eligibility framework and definitions set out above, as well as ensuring that their arrangements for accessing care services are lawful and have been the subject of an equality impact assessment.”
What are the clients’ rights, then, if English Social Care law applies in Scotland?
- To be assessed within a reasonable time, for eligibility, against FACS in England, but in Scotland, by reference to the Social Work Scotland Act, the CSDPA and professional opinion –or – for older people, for some reason, against locally applicable criteria, based on the national criteria for eligibility for community care services…(2009).
- In England, the assessment to have been done in accordance with the Assessment Directions of 2004, with regard to carers’ input, and in accordance with the Mental Capacity Act, if the person lacks capacity to participate and to consent to the outcome – i.e. involving Best Interests Consultation of anyone feasibly interested in the person’s welfare. S1 of the Scots AWI says the same thing, for any intervention in an incapacitated person’s life.
- To have a support plan drawn up by a competent council employee or lawful delegate; one which complies with the general law in this country, such as race and sex discrimination, the duty of care that would be owed by anyone doing the services, the person’s human rights, properly understood, and in accordance with the Choice Directions if it is care in a care home that is offered. These directions exist in Scotland.
- That support plan to have been properly signed off by the council with written reasons (if there is a disagreement by the end of the process) articulating the justification for its stance that the arrangements mentioned in the plan (or the sum of money, if it is a direct payment that has been agreed) will meet the person’s assessed eligible needs. Savva – persuasive English precedent for Scotland on personal budgets, – and Cambridgeshire likewise, regarding direct payments.
- To have their eligible assessed needs met, appropriately, in the opinion of the council, by way of provided or arranged services. To have a money sum in lieu, by way of a direct payment, if the council agrees it could work. This extends to incapacitated people, if they have a guardian or attorney, under your direct payment regulations. In England the council considers appointing a third party formally, as a Suitable Person.
- To have the contents of the support plan delivered, regardless of available financial resources, until the person has been lawfully re-assessed with a different outcome. This is true in Scotland as well – MacGregor, 2000 – as we have seen.
- To be charged no more for the service or direct payment than the law allows, depending on whether the service is residential or non-residential, according to the person’s means.
- To have their situation reviewed at least once a year in a lawful manner, or whenever there is a significant change in the person’s situation.
But please note – there is no appeal against a care plan – only acceptance, or re-negotiation, refusal, a complaint, or judicial review for unreasonableness, illegality, unfairness or a breach of human rights.
Wrongs currently being done to service users – based on English law, to date:
- Point-blank refusals of assessment, review or direct payments – Bristol (1998)
- Leaving out whole swathes of potential needs from needs questionnaires when considering eligibility – Haringey (1997)
- Cuts to current care plans without any re-assessment – Gloucestershire (1997)
- Changes to plans after purported re-assessments, but without proper consultation of the incapacitated client’s Best Interests consultees… Croydon, (2011)
- Changes to plans, on consideration ONLY of cost – Bromley (2004)
- Completely unexplained savage cuts to existing care plans or direct payment values after re-assessment – Birmingham (1999)
- Unfeasibly greater expectations of carers, universal services and ‘social capital’… Regardless of their adequacy or ability…
- Messing around with the local FACS threshold, non-compliantly with the FACS guidance – IoW, (2011) – or without proper consultation – Birmingham, (2011)
- System slow-down, panel re-referrals for want of enough evidence…. and the use of waiting lists – see Sutton (1998), Sefton (1997), South Lanarkshire (2000) and the 2010 FACS guidance about doing something, at least, in the interim, after a finding of eligibility…
- Resource Allocation related issues: systemic cuts and cost ceilings vs the concept of a genuinely ‘indicative’ amount – Haringey no. 2 (1998), K&C (2010)
- Requirements of the client to move house (i.e. to buy or take a tenancy somewhere) to make services cheaper or easier to manage, as a pre-condition of getting anything…
- Cuts to core underlying services in Supported Living or Extra Care, without re-assessment of the heightened unmet need above the threshold.
- Improper fees negotiations without transparent changes in the client’s care plan, or without adequate consultation with providers – Pembrokeshire, (2011), Sefton (2011), etc.
- Allegedly ignoring Human Rights and dignity with regard to assessment of need or determination of response – it’s whoever dares, wins, here… – see K&C, McDonald (2010)
- Preventing involvement of the client and carers at Panel – see Wandsworth (2004)
- Refusal at panel of particular items, services, arrangements, or funds – without any rational basis and without written reasons – see K&C, Savva (2010) and Cambridgeshire (2012).
A new legal consideration for purchasers and providers…
In the last year, during the cuts, the Administrative Court has held that the approach of English councils’ commissioners, when commissioning to discharge public functions, such as the delivery of services to meet assessed eligible needs, is open to scrutiny by the judicial review court – on normal grounds. Those grounds include want of proper consultation beforehand, since this is mandated by government guidance, for the taking into account of all relevant considerations – see Pembrokeshire, Sefton, Leicestershire (all of whom lost their cases) and Neath Port Talbot (which won its case). And (although much less likely) there could be challenges for pure public law unreasonableness, illegality, bad faith, and breach of human rights.
Croydon lost a judicial review case in 2011 about a reassessment, on the grounds that it failed to consult the parents at a timely point in the review process, which made the new care plan, moving the man, void. You have the same principle, in your Adults with Incapacity legislation.
In the last month, (2012) West Sussex has lost a case for unfair safeguarding, brought by the provider, who suffered a contractual loss of income of £150,000, on termination.
So any commissioning team that does not know the underlying public law of community care functions, cannot be sure that it is commissioning lawfully any longer, just because it knows public procurement law….
Contractual and other commercial pressures on providers – around the back of the clients and families:
- Re-tenders of domiciliary care services to save money – providers know that they could lose a percentage of their staff through TUPE. And the rest to direct payment clients taking them on as personal assistants…
- Refusals to pay contracted-for sums by way of increase, or to pay sums already due, because of a dispute over another – even a newly offered new prospective client’s fee.
- Imposition of cost-brokering negotiations and fair price tools with a veiled threat to move the client – usually by private sector cost brokers, in sharp suits, on performance related pay, who know not the first thing about community care law or the legal rights of the people who use services.
- Cutting-off of grants, and de-commissioning of services – community consultation is usually required but may not be genuine or adequate.
- Stopping funding of certain services – like wardens in assisted housing – the question whether consultation will be necessary all depends on who is funding the warden – the landlord or the council?
- Reliance on historical or imagined safeguarding issues for de-commissioning.
- New additional requirements of providers under old contracts – NB only if providers agree! And even then, these changes could make it a new public procurement!
- New terms in new contracts without the proper time to understand the implications, risk transfer, and new difficulties produced. But providers don’t have to sign-up sooner than they want to.
Procedural fairness – the explicit requirements in the virtually mandatory government guidance in England, underpinning our journey towards self directed support:
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.
…coinciding nicely with the Savva case, 2010:
Mrs Savva was given an indicative budget. She argued and kept pressing for a review, and it was put up 5 times to nearly double, in the end. She still wasn’t happy and brought JR proceedings.
She lost on the first contention that use of the RAS was illegal, in and of itself. The council was lucky to be able to persuade the court that they had only treated the RAS figure as a starting point, and had not suggested that it could be treated as determinative, or as a substitute for a proper professional decision about need and response….
But she won on the submission that the Panel needed to give her reasons for being satisfied that the amount being allocated in the end, would meet her assessed eligible needs.
Both sides appealed:
The Court of Appeal dismissed both the appeal challenge to the RAS and the appeal challenge to the need to give reasons. So there is a legal duty to give reasons for the finalised amount – and they have to be lawful reasons for believing the amount to be adequate. ‘We can’t afford what is necessary’, won’t do – but ‘we think that such and such will still do, because…..’ IS often legal and good enough an answer.
The Court refused to decide whether it would be enough to discharge the duty of fairness to hand the money over, just saying ‘You can always ask us for reasons if you want them’…! The council has done a wonderful thing for disabled clients by appealing, because it has set a precedent, now, which must be followed!
The judgment in Savva suggests that councils need to be able to offer two things:
1) A rational articulation of why the Resource Allocation system deserves to be seen as a sensible guesstimate of the cost of meeting particular levels of needs in particular domains – in the first place, even in theory.
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 allocations 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 policy, would suffice in themselves, without something focusing on the individual service user’s situation, at the final sign-off of a Plan, the size of the budget or the size of a direct payment. So the second thing needed would be:
2) in a disputed case, a reasoned decision as to why the final 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.
KM v Cambridgeshire CC – a no score draw?
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 (just) survived legal scrutiny as to its RAS-based reasoning for its final (final, final!) offer of a direct payment at the next level up, and then finally a seven judge Supreme Court (May 31st 2012):
First and foremost, the Gloucestershire case is still good law – i.e. councils can use 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 appropriate way to meet eligible needs – it can be the cheaper of those options which are rationally and feasibly adequate alternatives
…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 your duties of transparency and reasoning! If they do, the Courts are there for service users, through which to enforce lawfulness and accountability.
The substantive social care duty, under the CSDPA, re-stated once again, by the Supreme Court:
- When a local authority is required to consider whether it 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? i.e. WILL ANYONE ELSE DO SO? (This is the eligibility decision, as to which the state of resources, on the day of assessment, are not legally relevant at all, Panels should note!)
(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….
The fourth stage of discharging the function lawfully, in cases of direct payments
- …Once it is satisfied that the person’s need for the relevant service can be 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?
The relevance of the RAS
- …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.
Cambridgeshire’s higher points RAS for high cost cases – rational, if evidenced by actual facts….
- 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 absolute need to get the carer’s position straight at the outset
“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 3 mistakes: (despite winning the case, remember…)
“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.
The independent social worker’s ‘contribution’ – take note, anyone thinking that ‘independence’ for a contracted social worker means that one can just report back whatever is wanted!
“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.”
Why this was disastrous:
“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.
So, how much reasoning is required?
“37. 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 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.”
Why was the decision defensible, as not irrational, overall?
“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….”
“In the light of the conflict as to the sufficiency of the offer, Cambridgeshire could not produce a support plan … in conjunction with the appellant…[but] Cambridgeshire should have made a more detailed presentation to him of how in its opinion he might reasonably choose to deploy the offered sum than in the plans put forward in January and April 2010.
In particular, Cambridgeshire should have made a presentation of its own assessment of the reasonable cost of the principal item of the appellant’s future expenditure, namely the cost of paying for carers for him. Its belated explanation in June 2010 of the different basis of the indicative calculation, though necessary, did not repair that deficit.
Nevertheless, in the light of the amplification of Cambridgeshire’s reasoning in the mass of evidence filed, which has enabled the appellant, by Mr Wise, to lead a fully informed inquiry into its determination in courts at three different levels, the result of which leaves no real doubt about its lawfulness, it would be a pointless exercise of discretion to order that it should be quashed so that the appellant’s entitlement might be considered again, perhaps even to his disadvantage….”
The implications of the Cambridgeshire case summarised, then:
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 no 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.
Summing up the effect of the rest if the case law on who is the ultimate decision maker about amounts…..
Councils are the ultimate decision-makers on support planning, in terms of appropriateness. Councils can even take resources into account, in relation to what is ‘appropriate’ – within certain legal and procedural boundaries. So long as they pay respect to the client’s views on what is 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 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 a judicial review foe unreasonableness, unlawfulness, breach of human rights, lack of consultation and absence of reasons.
The Chronically Sick and Disabled Persons Act 1970 – the things Councils have always been able to arrange, if they feasibly came within the following highlighted words – but they don’t have to, if they don’t want to, if they don’t think it’s appropriate for a person with a managed personal budget – the same law as applies in Scotland.
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone
Running out of money – the modern current English FACS guidance says ‘Tough’!
- 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 thoseneeds. 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 placeto meet eligible needs.
So how does the self directed support strategy look, now?
Provider relations are different in Scotland – you don’t scream ‘Competition Act Cartel’ at them – in fact you encourage them to join together because you can contract with them on national terms and manage their demands as if they were a union, even funding them for Away Days…
- Staff culture is very different – social workers are used to exercising judgment and being allowed to do so – and are better educated, and the ratio of qualified staff to non qualified staff is higher, still….
- Acceptance levels of the Scots public are different – because of ignorance, or a fondness for low taxation?
However, Scots lawyers may be gearing up, because there’s nothing like a new Act to stimulate interest in legal analysis. The irony is, though, that Scotland is not changing the underlying law or approach to who gets care, and it is that bit that lawyers have ignored, until now. So this could be a growth area…
The citizenry probably needs a national advocacy service – or providers need to fund advocacy, indirectly, through a levy, for their sake and the clients’…
A special note on the position of providers…because they set the cost of care, by being able to take a line about they will or will not sell, even if councils would like to buy less, FOR less money:
Providers are, in the main, regulated activity providers, providing services for a fee. They are doing it from choice, not a duty – even if they are not-for-profit organisations. They choose to admit clients to their services, it being assumed that they are all professional enough to take on only so many with such needs as they expect to be able to cope with, at the price they have agreed to be willing to take from the purchaser.
So, as long as they are willing to continue to honour the content of the client’s support plan, they are the key to the council’s own adequate performance of its own public law duties toward the client.
If providers agree to cut their price, without cutting the service, the client is not actually suffering, nor are their rights being ignored. The provider’s profits, or reserves, if they are not-for-profit – will suffer. And their peace of mind, in terms of cutting the cloth forever more thinly, with ongoing worries about risk management.
Do councils have a legal right to decide what they want to pay, however little that might be?
Only if service users and providers give it to them! The law of community care services – enforced by judicial review – is that if there is only one appropriate way to meet need, in light of professional and objectively rational opinion, then the cost is irrelevant – the client is entitled. That’s how important Parliament actually deemed social care services for adults to be!
There is no room within contract law for the idea that councils can manage the price of public services simply by offering to pay what they want to pay – not in private law, if they have already made binding contracts on different terms, or need to make new ones, on expiry or when new terms are needed; and not in public law, because they have statutory duties to meet eligible assessed needs even if they can’t buy at the price they want, by going back to being a provider – however much it costs.
So the way they achieve their desired savings is by making the most of a local market where providers have been naïve, unaware or desperate enough to have already signed up to provide services for whatever the council can afford to pay, or where they all concede on fees reduction, out of a sense of there being no alternative option, if they want to remain open – and where service users let that happen, through ignorance or lack of legal advice.
Battles that service users can’t win
If providers cut the price, AND cut the services, because the plan has been cut by the council, too, the client is affected – but let’s explore how, exactly, for a moment:
Let’s assume that…
- the person has been re-assessed as genuinely needing less of a service, because of other things that have changed in their lives;
- or that the council has dared to raise its threshold for regarding services as essential, and the person is no longer eligible, in certain areas of their lives.
- or that the council has openly and honestly said to all existing and future clients that it needs to take a new view, in light of its financial difficulties, about what can count as appropriate to meet assessed needs, and that it knows it will be hard at first, but will everyone ‘give it a go’ – with a promise of re-instatement of the original service contract if the client deteriorates?
None of these reasons for a cut to the client’s package, is likely to amount to strong grounds for a successful judicial review by the service user – if they have been re-assessed properly.
Some of us may not like it, but that is the law.
What do you mean, it’s the law?
Social care provision is a safety net only, for people who cannot manage to help themselves to meet their own needs, either for want of sufficient money, want of sufficient informal support or want of capacity to make the arrangements – and no guardian or attorney, in Scotland….
The council does not have to meet all needs; only eligible ones. It does not have to give a person what they want, but only what the council thinks they need. Councils are allowed to treat social care as a low priority in their spending plans, so long as they consult properly on the equality and diversity impact of raising the threshold – the only remedy is the ballot box, and social care tends to be of little political interest, until one has family members who need it. And so long as it’s careful and open-minded, and articulate, a council can take its financial position into account when determining what is an appropriate means or an appropriate setting to offer to meet an individual’s needs with – because it’s all public money, after all, and councils have to be fair to everyone.
Acceptable standards of independence and dignity in a care package are prone to shift, in the minds of any society according to its affluence. It’s not illegal for the council to reflect that inevitable ‘truth’ in its policies….
Who is the decision-maker for the question of the acceptability of others meeting need, or the manner of support to be provided?
Elaine McDonald v Kensington & Chelsea London BC
Where a local authority was obliged to meet the re- assessed needs of a lady who had a neurogenic bladder as a result of a stroke, they were entitled to meet the re-formulated need in a more economic manner – they could rely on the NHS to provide incontinence pads, rather than pay, themselves, for a night time carer to take her to the toilet, as before, when that was what her need had been stated to be. The court said that the National Health Service and Community Care Act 1990 gave the Local Authority some flexibility as to how the needs could be met (and the same is certainly true in Scotland).
On appeal – there had been no Disability Discrimination or breach of human rights, or breach of public law, after her needs were re-formulated more generally than before, as the authority had conscientiously sought to treat her the same as everyone else – lawfully.
Appropriateness – the crucial concept
Councils have massive discretion over what it is appropriate to do to meet need, so long as they abide by any relevant legal rules, have competent professional consensus and an evidence basis behind their conclusions, and pay proper attention, in terms of decision-making, to human rights, and fair process, and the giving of reasons to service users and families.
Affordability and cost-effectiveness between two legitimate options, and councils’ other duties of equity to all potential clients, in terms of quality or standard, are legally relevant to appropriateness.
So, yes, what they were happy to fund 2 years ago, may no longer be what they can afford to regard as appropriate, now, and they can pass the pain on to clients, within reason. Social care service users are just like the rest of us, in this regard, not in a better position.
So on ‘soft’ things like leisure, and holidays, which add to a person’s quality of life but which are not essential to most people’s dignified survival, councils have both an obligation and a power to come off the fence and say, even though they find someone eligible for help, just how much of a service they think is appropriate, in terms of society’s views as to what’s tolerable. If they are giving roughly the same as other councils, it is unlikely to strike a judge as unreasonable.
Respite and transport services are not quite so soft in these terms, because respite levels go to a carer’s willingness and ability to carry on meeting needs; and transport to services that themselves have been acknowledged as a must, would seem to be an irrational thing to cut.
Are the council’s inevitable resources difficulties relevant to what’s appropriate in the first place?
If the authority agrees that the need can only be met in one way, appropriately, then the cost of any other inappropriate way is completely legally irrelevant – because it would not be lawful in the first place to use that other method.
Local authorities cannot therefore assume that everyone ‘can’ have their needs met for the cost of a residential care place. For some at least, albeit only the exceptional few, it would never be appropriate, in terms of professional judgment. Ie some people have a need to stay where they are, not a want.
A lack of resources (money in the social services coffers) is legally irrelevant to the doing of the duty to meet eligible need appropriately, once it has been assessed. It is a corporate (a council’s, not just social services) absolute duty until the person has been legally re-assessed and either found ineligible or the support plan legally altered. But there’s no case or a law that says it’s completely irrelevant as to how one meets need appropriately.
A lack of resources – in the wider sense, of non-existence of any appropriate service to buy – is not something that law can change, of course, but the law says that something must be done or arranged in the interim, i.e. the next best thing, (see MacGregor, from the Scots courts!) even if it costs more than was expected for the level of need concerned, in the short term.
But in times of economic hardship, judges will be bound to be sympathetic to the contention that less than perfect ways of doing things, are at least not inappropriate, such that it will probably be seen to be lawful to offer the not so perfect means of meeting need, even though no-one thinks it’s that wonderful. That is the harsh truth for clients, deriving from the fact that all this money is public money – tax payers’ money, ultimately.
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, for free;
- 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 – i.e. de-skilling someone or keeping them dependent.
Complaints and challenges and letters to the Monitoring Officer of a council
If a person has got access to someone who can write an assertive letter to the council’s Monitoring Officer, identifying what’s going on that’s clearly arguably unlawful, the Monitoring Officer (usually the Head Lawyer and definitely not the contracts or quality or complaints officer!) has an independent duty to ‘engage brain’ and decide whether the person is making a reasonable point.
If so, the Monitoring Officer has to intervene to ensure that the decision is suspended or the conduct stops or changes. This is a free ‘service’ – it’s part of this country’s commitment to governance of the public sector.
Councils also owe duties to the community in general, when changing things. They are accountable if they do not do proper consultation. The Monitoring Officer can be written to about that sort of thing, as well.
The council’s complaint system is not designed to solve legal disputes. It is there for matters related to incompetence or rudeness, or delay which should not have happened. It is a good remedy for people in a long-standing relationship of provider and client, but not good if what needs to be changed is a policy or practice that no-one thinks can change. But of course, complaints are free to the user.
Judicial review is the only way to get an injunction in an emergency, if the council’s Monitoring Officer won’t support you with an investigation. To commence proceedings, in reality, a person tends to need a lawyer, but there IS funding for people below certain financial thresholds, if one can find a firm who’s interested and one which is authorised to provide legally aided specialist advice services in this field.
Providers – on the other hand, are not generally owed statutory duties, by councils. Councils don’t have to keep providers in business; they don’t have to make providers rich. Providers will either be in a contractual relationship with councils, or be recipients of grants. Despite this, recent cases in public law – some successful – have been brought by providers about
- Failure to consult before cutting grants
- Failure to engage properly with care homes before offering a nil per cent increase
- Failure to consult tenants properly when withdrawing a live warden service
- Failure to consult before closing day centres and care homes or raising the eligibility threshold or changing the charging structure
- Failure to abide by government guidance when conducting safeguarding, associated with the termination of a contract which had a massive impact on users and the provider.
Providers are, at one and the same time, the most natural supporters of, and also the least well-placed to stand up for service users, because of the conflict of interest between them and the client – providers earn an income stream from the status quo. So any advocacy they might pay for can appear to be tainted by their own commercial interests. Providers find it’s often more effective to make sure the client or family knows their rights.
So if the Scots’ social worker work force is to be bullied or driven into giving up its professional integrity, because it needs the job more, over the next few years of economic austerity, the provider sector may need to get together with those who support service users, in order to prevent the dilution of dignified care services and quality over time, point by point, pound by pound.
One could take the view that it would be better not to let what has happened in England happen up in Scotland.
All councils need staff on whose professional judgment they can rely, to give a coherent, reasonable, credible, articulate explanation (potentially in the Court of Session) as to why a particular package should be enough, should be adequate, to meet assessed eligible needs and deliver person-centred outcomes – so it is at councils’ peril that they should dumb down their staff and simply tell them to tick the boxes, in the end.