“If you disagree with the budget we offer you, we don’t have to give you any service in the meantime”

On one way of looking at the Care Act, no duty to provide arises, until a care plan is signed off.

That’s not right,  however, in terms of what the Act says:

18 Duty to meet needs for care and support

(1) A local authority, having made a determination under section 13(1) [that’s the eligibility determination] must meet the adult’s needs for care and support which meet the eligibility criteria if—

(a) the adult is ordinarily resident in the authority’s area, or is present in its area but of no settled residence,

[and then a whole lot of things to do with the charging framework, not relevant for these purposes]

Management may well say ‘Until we’ve had the panel discussion as to what it’s appropriate to provide, there’s no personal budget.’ That overlooks the whole purpose of the Act, and it’s not even the full picture: emergency provision under the Act is specifically authorised before even an assessment has been started or finished, let alone a care plan.

And the Guidance specifically says that a dispute as to provision cannot be used to avoid meeting needs.

See here:

10.86 In the event that the plan cannot be agreed with the person, or any other person involved, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. This may require going back to earlier elements of the planning process. People must not be left without support while a dispute is resolved.

The whole point of the care plan is to record the authority’s reasoning behind  why it thinks that x, y and z are ‘enough’ to meet a person’s eligible assessed needs, appropriately and adequately. 

And there’s the clue. The person awaiting their care plan will be someone who by definition has already been assessed as having eligible, assessed needs – needs based on the concept of not being able to achieve 2 or more domains from the list in the eligibility regulations.  Could it conceivably be lawful (or sensible, even), to leave assessed eligible unmet needs – just sat there, unmet, and continuing to have a consequential significant impact on the client – and no doubt, the wider family?

It certainly seems ‘sensible’ to management in plenty of councils, if our pre-launch postbag is anything to go by.

Sensible, in this regard: in so far as if there IS a family member or partner shoring up the situation, then every day that that situation continues just like that, without public sector input,  goes to save public money.

And since most carers do not know that they could stop or reduce their inputs, because they don’t understand that they’re not responsible for their loved ones’ care, and that the STATE is responsible, (because that’s what a democratically elected legislature has bothered to put in place, even if it is not funded adequately) – they probably won’t stop, and they won’t give up and they will carry that load for a while longer.

Never mind if that is for longer than is humanly tolerable, leads to mental and physical breakdown, causes relationship difficulties for extended families and even in rare situations, safeguarding crises, when somebody finally snaps.

It is not consistent with social work values or human rights, in the context of the legal framework for the State’ liability for adults, in the sphere of eligible assessed need, beyond the willing and able input of other human help, to exploit this kind of ignorance or reluctance to give up.

And it’s not sensible, at the same time as there is a nationwide recruitment crisis in the care sector, not ever to pay people who ARE on the spot and willing and able, but struggling financially because of shouldering a caring role, for doing the job.

We are not saying that carers SHOULD down tools, but merely that they MAY – even if they have not had a carer’s assessment – because this decision is for them, and not for the council. A carer’s assessment is just for deciding whether the council would be bound to provide some form of money or support to keep the carer minded to continue. Once one knows that, it tends to focus the debate.

If a carer gives reasonable notice to the council, the council is legally obliged to assess the needs of the person without regard to what it was that the carer was doing, and to identify the global extent of the need of that person, and then decide which of those needs are eligible under the regulations, and what it must then do to meet them, within a reasonable timeframe. That is not ever lawfully going to be able to be months or years. It might be 6 weeks before it starts, whilst re-ablement services are tried, and it might be a further few weeks, before assessment has been completed to a competent standard, with all necessary inputs gathered in and crunched – and even beyond that, allowing for negotiation and final agreement as to response, but not, please, months. 

Once a council has said what it will provide in place of a carer’s input, a carer can then make an informed decision as to whether some parts of what’s offered would still be best done by him or her, in terms of the outcome for the loved one.

Please do note that a carer cannot say that they are not going to do the input, get the budget set, and then go back to doing it and spend the money on something else. That would be fraud and misuse of a budget, because it wouldn’t be meeting the needs of the client, and wouldn’t have been needed in the first place, if the carer was not actually about to give up the care role.

If there is a dispute about what is needed, to constitute a lawful care package against that benchmark, it is not rational or lawful to fail to meet the undisputed portion of the person’s needs in the meantime, and it will then give both sides to the argument an evidence basis for resolving the dispute, in the longer term. If the nature of what IS agreed is something that honestly can’t be put in place, if it might not be the long term solution, that still obliges the council to find some OTHER reasonable way of meeting the needs in the meantime and obstruction of an interim plan, by family menbers determined to hold out for what is really thought to be necessary, is understandable, but an adult safeguarding issue, in most situations.

Many years ago, Sutton took 2 years and 3 months to fail to finalise a care plan, but the young woman in that case was being cared for by the NHS in the meantime. Those days have long since gone!  But at least she was cared for in the meantime. The 8 interim care plans that they’d worked on and presented to the mother in that case, had all been comprehensively trashed as unsuitable, and the council had ended up agreeing.

The judge was astonished to discover that the council thought that its job was to achieve consensus, when trying for that left the woman in an institutional health setting – he said a decision, almost any decision about any one of the previous plans which could then have been challenged, was the proper role of the authority. 2 years and 3 months was beyond the pale he said: no reasonable authority could possibly consider taking that long to be legitimate.

 

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