“We can tell you how much we’re going to cut your budget by, without any other process or negotiation”

Oh dear, do people really think that this is the law? Where shall we start?

Once a person has got public money going into a care package, they have legal rights under the legal framework for health or social care, under common law principles of fairness, and under Human Rights still current in this country (although not for much longer, we gather).

The legal principle pre Care Act had been settled for nearly 20 years, since the Gloucestershire case: although a person’s care package CAN be cut – legally and for all sorts of good reasons – including the council being harder up than it was last time around – always subject to the lawful meeting of ongoing eligible assessed unmet need (that is, adequately and appropriately by reference to competent professional judgement)  – IT CANNOT BE DONE WITHOUT DUE PROCESS.

Under the old law, that concept of due process was tied to something called a review. There was no mention of review in the legal framework, pre-Care Act, but it was expected, by government guidance to be done annually for each person. The notion of a review meant looking to see if what had been put in had worked, and whether it was still needed, to meet the needs that had been identified last time round on assessment, or if the needs had gone away or lessened. The notion of a lawful cut involved then, as a minimum, a review that focused on needs and whether they had changed or whether (in the days of Fair Access to Care Services criteria) the eligibility threshold applied locally had changed.

Putting it simply, IF a care package was cut, or bits dropped out of it for whatever reason (eg provider staff changes etc) the rule was that if it was IN the care package, and it stopped flowing, that was a breach of statutory duty, unless there had been a lawful process for changing the care plan.

You can perhaps see, now, why CASCAIDr’s founder was not much enamoured, ever, of the idea of OUTCOMES based care planning, rather than an approach that specified INPUTS as well. Explicit inputs and requirements are the bedrock of a client HAVING any enforceable legal rights, so it was disingenuous for the commissioning world ever to suggest that the flexibility that comes from outcomes only care planning was an unadulterated good. Flexibility is wonderful if you have a direct payment and have been assured you can use it for meeting outcomes, but no good at all if you have a care plan where the council can bully the provider into a lower and lower fee behind the back of the care plan, because there’s nothing specific IN the care plan to treat as an irreducible minimum!

The law under the Care Act is now found in s27 which puts review and revision on to a statutory footing. Review is not the same as re-assessment, and nor is it the same as revision of a care plan. A review is a look to see if what had been provided has worked and whether anything has changed. That will only very very exceptionally now, ever be the eligibility threshold and criteria themselves – because they are laid down in regulations that won’t be able to be changed very often, by government. Not without uproar. The evidence as to any change of needs, whether up or down, explicitly triggers a proportionate re-assessment if anyone is going to change the PLAN as a consequence – not necessarily one that goes back to square one, but which focuses on the aspect that is thought to have changed. If a care plan is to be changed not because of a change in needs, but because of a system driven change, like the market price, or a new commissioning strategy or a re-tendering exercise, or Health agreeing to go back to medicines administration, or whatever, a proportionate re-assessment and re-planning process is also required.

So it can still be said to be the law that it is illegal, in public law terms, to cut a person’s plan without due process or to tell someone ON A REVIEW under the Care Act, that they ‘will be getting less of this that or the other’ regardless of, or without, due process and fresh, rational, lawful, fair decision making.

Phew!

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