Theme no. 5: Legal requirements regarding a ‘practicable’ home care offer, and cost-capping culture among councils and CCGs

Councils will often agree with a hospital that people with needs for a placement or services involving any kind of double handling, or a need for more than 3 visits a day, ought to be checklisted by the nursing staff.

That is to ensure that people who might qualify for CHC, get a DST, and although we don’t approve of those rough and ready triggers, they are better at least than ones that just focus on condition, diagnosis, or necessary next setting being a registered setting.

When those people get negatively checklisted, so that the council knows that care will be down to them, and not the NHS, the same approach is often used with the patient for care planning purposes (and any family) as a guide to the likely setting that the council would regard as meeting the person’s needs.

This is done on the footing (logical to management but not necessarily to social workers) that the cost of a care home is the minimum the council would have to provide. The thinking goes on from there that if the person or the family says ‘No, thank you’, then because it would have been lawful to meet needs via the care home route, the most that the person can be entitled to, at home, if that is what they prefer, is that same cost, or that same cost with an extra percentage on top of it, to show that independence is still being promoted.

This is called cost capping, and the assumption that everyone can be appropriately cared for in a care home, is called warehousing, in the media.

Both are unlawful, we would venture to suggest;

  • warehousing because it is a fetter on professional opinion and a negation of personalisation and the duty to promote wellbeing, before care planning even starts
    • there is someone in every single geographical council area, of whom no professional would ever say ‘a care home can adequately meet your needs’ or a person of whom it would be agreed NEEDED to be in their own home, not merely wanted it.
    • If that is the case, then it is not even relevant to consider the cost of the care home setting, for any budget sign off purpose, is it?; if it isn’t suitable in the first place, the notion of adequacy and suitability is the irreducible minimum that an offer to meet needs, must comprise.
    • That is why it has always been understood in legal terms that the maximum figure in the council’s RAS is not a cap, but merely the product of a mathematical calculation based on pounds and points, derived in the first place from the council’s preferred maximum spend on meeting all its adult social care provision duties.
  • and cost-capping because if a council itself changes its mind and ignores someone’s refusal to accept the offered care home, and reconsiders its offer and then agrees to meet the person’s needs at home, with either services or a direct payment, the needs present differently in that setting, and still must be met, appropriately and sufficiently.
  • with cost capping too, there is the added complication that where the person in question lacks capacity,
    • the council cannot implement a decision to move the person into a care home, without doing best interests consultation of the relatives.
    • Moreover, nobody likely to object to being ‘parked’ in a care home can be DoLS’d without being assessed to lack capacity in that specific regard; case law already establishes that the obligation to maximise capacity makes it a legal requirement that the council makes it explicitly clear what it would offer in the person’s own home, were the person to refuse the offer of the care home place.
    • The case law (KK) says that that offer must be a practicable offer. Whilst that neatly begs the question whether that means it must be a lawful offer that sufficiently meets need, CASCAIDr is of the opinion that that offer must not be an unlawful offer in the first place, in terms of rationality, sufficiency, and due regard to human rights issues and promotion of wellbeing.
  • Holman J’s recent decision in the Re X case where the brain injured man himself begged to be cost-capped, so that he could arrange his own care in his own home, rather than have his social care needs met in a hospital, on grounds of the non-availability of any willing care home provider and the non-affordability of any other package in his own home, led the council concerned, ultimately, to decline to accept the suggestion.
  • It can be inferred from a reading of that case (which ended up with the man being found to be entitled to CHC!) that that was because
    • it would not be appropriate to leave the unmet need unmet, with an inadequate direct payment paid over to the man to spend on himself – and
    • any right-thinking public body would expect to be sued in negligence if it commissioned cost-capped services itself, without any evidence basis that the limited service, referencing the lower cost of another setting entirely, would feasibly meet the needs in the person’s own home, if harm was then sustained, either to the client or to others.