“We don’t ‘do’ x, y or z, any longer… because …er… ” ???

People are often told by Advice and Information services, attached to councils, these days, ‘We don’t ‘do’ that any longer’ – the ‘that’ being, variously, shopping, cleaning, recreation, therapeutic input, meal preparation or night time care.

Often, some further form of explanation or reasoning then emerges, such as ‘Everyone needs to shop/eat/clean/… so we don’t see those as critical or substantial tasks any longer’, or ‘We don’t see those as social CARE tasks any longer’ or ‘We don’t pay for the cost of food, just like we don’t pay people’s rent or mortgages out of adult social care money’….

With recreation, the argument is a bit different – it’s ‘There are facilities for recreation and leisure where you live, so you need to use them, and we might (or might not) assist with escorting there or transporting you there…’ Or ‘We will pay for the escort, but not the cost of the actual leisure itself – that’s your choice, and you have benefits for spending, when it comes to pleasure’…

With ‘therapeutic’ input, such as speech and language therapy, counselling or physiotherapy or chiropody, the suggestion is always going to be ‘That’s Health’s job, and not for us to do. You can go to your GP and ask for that’.

With night time care, when care can cost more, if it’s specialist and task oriented, than it does in the day, because it’s anti-social hours – or ironically less than it would during the day because the contract for the staff’s work has treated the night shift to be treated as unmeasured time, and not measured hours for the counting rules under the Working Time Directive, the assertion might be as follows:

  • If it’s at night, we expect the family to do the input for free, and/or it counts as what the household is getting the Carer’s Allowance FOR (this may be true – there’s a minimum number of hours required for carers’ allowance, but at least it isn’t defined to exclude night time care or presence)
  • If it’s at night, we think technology will assist, because the person will generally be asleep and the sensor will warn staff that help will soon be needed
  • If it’s at night, well, the nation thinks that incontinence pads are sufficiently dignified for managing safe urination, even if the person is not yet incontinent, so that must be right then, or at least, not so unreasonable that a court will strike it down (McDonald)

The basics of the legal framework

The law is that a council is in charge under the Care Act of identifying needs in a person centred and holistic way, and then identifying inabilities to achieve without assistance, and without undue pain, distress, risk to self or others, or anxiety – across particular domains. Then the council has to decide – having had regard to the individual’s and others’ views – whether there is consequential significant impact on a list of features of a life, set out in the Care Act, all part and parcel of ‘wellbeing’.

IF there is, then the council has to meet the person’s needs – and is the decision-maker about that too, but always subject to judicial review, for error of law, irrationality, fettering of discretion, leaving out obviously relevant considerations, procedural unfairness or a breach of human rights.

If guilty of those legal wrongs, then the council has to have another go at the task in question (assessment or care planning or whatever), without repeating the same conceptual mistakes.

So are the stances above, unlawful, clearly, or arguably?

This is a subtle area of public law and it does all depend on how these things are presented.

It is really daft of any public body ever to say ‘We never…’ or ‘We don’t ever’ because the Care Act is very unlikely to justify that stance – it is so woolly and open textured – and saying Always or Never is a fetter on the discretion of the council and very often the judgement of the staff who are doing the work with the clients in the first place.

Drilling down a bit, particular services are not what is being assessed for any longer. It’s needs, deficits, inabilities to achieve, and impact on wellbeing, not ‘care home bed’ ‘supported living tenancy’ ‘meals on wheels’, ‘aids’ or ‘adaptations’ or ‘day care’ any longer’.

Secondly, Section 8 sets out examples of all the things that can be done to meet needs, and specifically lists very open textured concepts such as care, support, accommodation, advocacy and counselling.

It also says that goods and facilities are Care Act services, so we don’t think that the cost of meals and tickets are able to be excluded, as a mattter of LAW, from social care services.

IT IS VERY IMPORTANT TO NOTE, though, that that’s not the same as saying that the council can’t ever say no – it might be lawfully able to say no on different grounds than we are discussing here.

For instance, the specific inputs wanted might not be affordable in times of austerity.

The budget available to the council is not the determinant of a care package, but in practice, it must often feel as if it is.

So, in an era of cuts and savings, the law is that even if not provided, the package might still be legally adequate, although it was not ideal or what was wanted, or what had been enjoyed up til then, courtesy of a previous package. Going lower and lower with reductions from a package is not necessarily unlawful, especially if done slowly, over a phased period – but more likely to be, if done fast: because the test for judicial review turns on whether no other reasonable body would or could possibly think that making this cut was legitimate.

That is why CASCAIDr will not, and cannot tell you that you have a good case against your council, just because your package has been cut. That is not the law, not even if your needs have not changed. 

What about therapeutic input? The kind of stuff that makes your mind, body and soul better, for want of a definition?

The statute does not limit the scope of needs to be met under the Care Act, to personal care for daily living tasks or practical assistance in the home; it simply ties a social care response needing to be related to a mental or physical impairment giving rise to the inabilities to achieve success in the 10 specific eligibility domains (outcomes) listed.

The Guidance expands that notion of impairment to illness, injury, condition, disability and disorder, and even to substance abuse. So it is a myth that just because someone is ILL, the needs arising from it are inevitably the job of the Heath Service. Half of social care services and funding is probably going to meet needs that would once have been met by hospitals, cottage hospitals, rehab units, and longstay NHS institutions from which people never had a chance of moving on. This has meant that much more has become to be regarded as chargeable adult social care, than the 1948 design of the system, intended. Some of that stuff is definitely therapeutic, and yet it is still provided by way of social care.

There is no black and white line and nothing in the regulations to say which side of that non-existent line, any given thing is. There is only principle and case law, and logic, and custom.

Section 22 forbids the local authority world from providing services or things that the NHS is required to provide. The obvious example is when a person has qualified for CHC – at that point, everything they would have needed by way of social and personal care MUST be provided by the health service, alongside the health inputs.

But very few people qualify for this status and funding. And whilst the scope of NHS responsibilities is virtually unlimited, but there are not very many requirements that the NHS must do x, y, or z, or that social care MUST NOT, because it has no legal powers to do the thing in question.

IT IS VERY IMPORTANT TO NOTE though, that just because someone doesn’t qualify for CHC, it doesn’t mean that EVERYthing ELSE THEY NEED is automatically for the local authority to provide. Assistance with a ventilator or a trachy tube, for instance; administration of medicines that REQUIRE qualified nurse skills, there and then, on the day; management of contractures, tissue viability management, extremely challenging behaviour or altered states of consciousness, skilled handling for people who are very challenging to move, albeit even for personal care tasks; mental illness symptoms requiring registered nurse nursing, anything that requires registered nurse nursing to be done properly, etc – all that sort of thing may either be agreed locally or asserted by the client OR the council to be beyond what is incidental or ancillary to that which social services can be expected to provide.

In which case, it IS THE JOB OF THE NHS, even if it is the devil’s own job to make the CCG commission it. But the duty to co-operate, generally and specifically, in sections 6 and 7 of the Care Act, mutually applicable to health and social care, can be relied on to persuade, rather than just sending the client hither and thither in ever decreasing circles…

[That’s what Better Care Fund deals, or split package agreements for non qualifying CHC patients, or s256 grants from the NHS to social services are for, for those on the statutory side of the line!]

Shopping is implicitly brought in by reference to the domain relating to the managing nutrition and hydration. The Guidance elaborates on the bare words in the regulations and refers to accessing food and hydration and being able to consume it.

Cleaning is implicitly brought in by reference to the domain relating to the maintenance of a habitable home environment. The Guidance elaborates on the bare words which MIGHT be thought to conjure up hoarding and insanitariness problems only, and expands the notion, way beyond that, to maintaining an environment that is safe and provides necessities, and one where one’s tenancy related obligations are met. So THAT ONE DOMAIN covers a very wide range of issues indeed.

Recreation and leisure have been said in decided case law to be part and parcel of article 8 rights to respect for private and family life, because for people with disabilities, it may only be through leisure that such people can feasibly engage with a community and develop their personalities and quality of life. Some people’s disabilities will mean that services for the general public just aren’t accessible to all, whatever reasonable adjustments are made by the provider in the community.  So a policy that one’s needs can always be met by universally available services is not ever going to be lawful. On the other hand, there is no benchmark for judges to use, other than what is actually happening out there in the real world, for answering this question: ‘How much fun is enough, in order to meet one’s needs?’

And that’s why polite, courteous assertion that MORE is in fact needed, by clients, carers, families, and front line staff, for a half way decent quality of life and independence, is actually a critical part of the health of the social care system overall.

Whatever statutory staff are prepared to say in a witness statement, is adequate and enough for a decent quality of life, in their professional opinion, is the ultimate bottom line, in social care and health services.

So social work values, standards, aspirations and professional judgements, all need protection, and the best senior managers will recognise this and let them thrive – or else society will come to doubt that social work staff ARE professionals, in the end.

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