“We can cap respite to a set amount per year, AND charge carers for it”

Respite is not a carer’s service, any longer, in any situation.

Respite is a service that enables a carer to stop caring for a while, and thus it clearly benefits the carer.

But the law says that the right place for respite, conceptually, in the system, is as a service for a client.

That must be right, we think, because if the client is owed a duty, on account of eligible needs, and that duty has been reduced by willing and able care from a carer, then for the times when that carer is not willing or able, then the unmet eligible assessed need is still part and parcel of the assessed needs, and part of the council’s duty under s18 – ie., part of what has to be MET.

So, respite is a client service.

That means that however much is provided, it is the client’s means, and not the carer’s means, that are relevant for financial assessment.

NB Carers CAN be charged for carers’ services, but few councils feel able to do it, because it doesn’t send out a very appreciative message!

The cost of the respite service (if it is to be charged for at all – and some councils are NOT charging for it) is added to the cost of the client’s other services and then the financial assessment process is applied, with the caveat that the client cannot be charged more for any service, than the service has in fact cost the council.

Where the person being cared for is not an adult social care services service user, and refuses to be assessed, with mental capacity to do so, regardless of the strain on their carer, (that is up to them) then the council is not able to provide respite as a service direct to the person in need of the care without the consent of that person AND their agreement to being financially assessed. So that is a situation where a non-service user gets to be charged independently of their status, legally, so as to enable the carer to keep on caring.

An incapacitated non-service user in need of the input, cannot consent, of course, but in that situation they would not have been empowered to refuse assessment, and would have most probably have been constituted as a service user in his or her own right. Then the respite care inputs would have been applied through the Mental Capacity Act s5 route, and the carer would be able to have a rest.

Secondly, can the AMOUNT of respite that a council or a CCG funds, be capped?

Well it all depends what you mean by capped, does it not?

If the council wants to set out a general policy that in most cases, it is willing to provide carers who are doing more than a certain amount of care per year, with respite up to a particular number of days, so as to support them to remain willing to go on caring, we doubt that that would be seen as a bad idea or unlawful. It assumes that people who DO the most should get the MOST, or that people doing over a certain amount will all sustain similar levels of input – and so is directed towards equity and treating like cases alike.

The trouble is though that people wider circumstances and obligations or situations will probably mean that x hours of input has a different impact on many of them. So as a starting point, a general policy, no problem, but this approach must not firm up into a rule.

A council could even say ‘Other than in exceptional circumstances (and in light of our duty to the entire community that we serve, and for which we must stretch our scarce resources, to cover, equitably) –  we aim to provide a maximum of 4 weeks per year’.

CASCAIDr wouldn’t say that this is worth a legal challenge, if a council with such a policy conscientiously and genuinely considered the individual’s claim for more support as a carer, to see if it was an exceptional case.

But if the policy states that say ‘4 weeks respite is the most that will be funded, end of!’ – it’s like saying that there is no case in the community, in the whole area, where the care manager is even to be allowed to try to persuade senior management that 4 weeks is just not going to make the situation sustainable. And that is a fetter of discretion, which is unlawful.

Two notes of caution here. It may be that an apparent cap is not in fact a cap; it may be that there is a practice instruction to staff that where a person wants more than the target maximum then the case must go to a Panel. That is not a cap. That is a limitation of delegated authority to make a decision, binding on the council, above a certain amount or cost, for front line members of staff, and reserving the difficult decisions for more senior staff, who are accountable, ultimately, by way of their reasoning for saying yes or no in the end.

Secondly, a person does not possess a right to care or someone else, even as part of their human rights, and being related to that person, just because if money were no object, the person they are caring for could be sustained, long term, and the carer sustained as well. Austerity is relevant to the question of HOW to meet need, although not an excuse for offering to meet it in an unlawful, unfair, irrational or human rights non-compliant way.

The point is that at some point, the combined cost of meeting a person’s needs AND the carer’s needs, in the person’s own home, MAY for whatever reason, start to look disproportionately expensive when compared to what the cost would be in a care home. This is all public money, and nobody has a right, (unless they also have that rare thing, a NEED that can only be met in an own home setting, adequately and appropriately) under the current legal framework, to stay in their own home regardless of the cost or to tell the State how to meet needs, if the person needs State funding or State arranged services.

THAT is the difficult conversation that has to be had, in complex cases. Not a job for junior or unsupervised or legally unaware staff!

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