“We the purchasers can tell you whether someone needs specialist skilled staff”

For any provider management, where pride is taken in staff training, the notion that their great skills are particularly suited to the care of people with a specific condition, is natural, and of course the more skill they have, the more likely a good outcome is going to be.

But for a purchaser, the devil is in the detail – who decides whether a person NEEDS specialist care? And for the care home market dealing with common problems like dementia, just how good does the service have to be, to be adequate? Aspirational levels of care are not what the statute requires, and deliberately so, or else why would anyone ever save up money to make their OWN choices?

If that is a reality in terms of the culture, who’s going to say that dementia care is always specialist care? People will recall that in the old days, one used to walk into a care home on one’s own legs, and not be stretchered in – and yet as the market got more sophisticated, and people were supported at home for longer, councils did not volunteer to pay nursing home rates to residential care homes: previous attention characterised as basic nursing in a nursing home, before FNC, started to be redrawn as residential care, albeit as a higher band, if one was lucky, as a provider.

As between a purchaser and a provider, there will be a contract, in writing, or based on fact. In return for £x, the provider will do or deliver, a set of inputs and outcomes. If that provider wants to charge a fee based on specialist staff skills, it will be making itself more expensive to the purchaser, than organisations who say that their staff have been on a short course in that specialism – and on that footing, can charge a lower fee for a semblance of skill, but without purporting to be offering the moon.

If there’s a fee band for ‘standard’ clients’ core fees, and an enhanced fee for those who ‘need’ specialist skills, and a provider has tendered for that contract, and signed up to that sort of a term, you can bet your bottom dollar that the decision-maker as to that need will be the purchaser, and hat at some stage, someone will purport to decide that nobody from that client group NEEDS a specialist service any longer.

The provider’s only recourse, in that situation, which requires GREAT strength and integrity in hard times, is to refuse to TAKE the client’s care ON, unless and until the purchaser sees things the same way.

Or give notice to someone, if the purchaser really thinks that the skilled input has not merely MANAGED the need, but managed it into evaporation, justifying a cut in the contractual fee.

One thing a purchaser will say is that since the council or CCG is the care planner, the care plan should be reviewed and revised down, and if less input is needed, then a fee reduction should be given. The trouble with that is that the costing model of most specialist providers is not that each person is charged for wholly individually, but that core costs are divided up between the number of residents or clients – in a unit, a county or even country wide, for the bigger companies. That means that the fee per person is not merely the sum total of the cost of the inputs, plus profit – it is not dependent on exactly what is provided, and the care provider can’t remain viable if each person’s care plan only generates a personal budget on some other more highly individualised footing.

A bit of contract law comes in handy here then, for providers. Who decides what is needed? The council or CCG. But who decides what is provided, or sold, and what the price is? The provider. The provider is in charge of how he or she packages up his offering, and sets that out, on the stall. That is the invitation to treat in contract terms. The purchaser makes an offer, and the provider, ultimately, accepts the offer.

Public law duties owed to the service user actually support the provider and service user in this regard: in this year’s Merton case the court decided that it was not possible to say, after years of making the most of the provider’s specialist services, for physio, SALT and sensory stimulation, that they were no longer needed, just because there were now other models of care for less money, where those services would not be available, in house. There was no justification for terminating the package, as the stance emanated from the panel and not from a proper assessment of the client, the court said.

This is not new law – the Killigrew case, in 2000, said the same thing, regarding a woman who’d had 12 hours of company a day, by dint of a package that had met her needs which included unpredictable seizures. The package was reviewed, and it was proposed to be chopped up into chunks with big gaps between inputs, just because it was becoming a two person staffed package, as the woman’s husband had developed a back problem. The maths involved in trying not to spend any more money, whilst having to put in two people, could not determine the professionals’ view of need, in that case, any more than the panel’s desire to save money could count as a rational justification for something not being needed, any longer.

The judge said this, upholding Mrs Killigrew’s challenge to the rationality of the plan

26. What was needed was a very careful assessment of why, if that was the case, 12 hours care was no longer needed. The importance of the respondent satisfying itself that this was the case is obvious. The applicant and her husband were asking for at least the 12 hours care to continue. Her condition was inevitably and steadily deteriorating. Not continuing the 12 hours care could, it was being said, have serious consequences for the applicant, and was certainly likely to cause deep distress to the applicant …On the evidence available before me, the reduction could only be justified if there was no continuing need for 12 hours care and not simply because two carers were needed when only one had sufficed earlier.

There is no proper analysis of why the 12 hour Care Plan had been originally adopted. What were the perceived advantages of that plan at the time of its implementation? Why are those perceived advantages no longer seen as advantages, if such be the case? If, to quote the earlier plan, the 12 hours care was chosen to help with the tasks of “supervision” and “of appropriate stimulation”, it is likely that in the event (for example) of no emergency, other things will be done.

What is important is not to assess what happens if there is no emergency, but what will happen if there is an emergency and no one is supervising her.

“The care manager concludes by saying that “social services would not normally provide carers ‘in case’ someone had a seizure and ‘could not be expected to do so'”. That, in my judgment, is an overly simplified approach to the problem. It may be that in preparing a Care Plan the author could reach a conclusion that given the infrequency of a person’s epileptic fits it would not be right to provide continuous supervision, but before that conclusion can be reached, a great deal more has to be done by way of examining the condition in which the person finds himself or herself.”


So this myth is a myth in part: it’s not untrue to say that the council or CCG can assert that specialist care is not needed, but that has to be done on a proper evidence basis, to be lawful, and the longer it’s been provided, the harder that will be, unless there’s been a real evaporation of need.

It’s not true either, that this feature of care law has any consequences for a provider, other than in so far as the fear of competition may be enough to make a provider suspend all rational business good sense.