“We can cap the level of services provided in your own home to whatever the cost of any other way of meeting your needs would be, any alternative that we can think of…”

The decided cases with any bearing on this topic go back a long, way, back into the 1990s, in our view, and stem from the legal principle that cost is relevant to any public body as to HOW it meets needs, not WHETHER. And from the principle that where there is a duty, there must be a bottom line below which one cannot go, in terms of reasonableness, appropriateness and adequacy. These words do not have to be stated in any Act in order to be read ‘in’, and our own Human Rights Act requires the reading ‘down’ of any statute that is ambiguous where that would save the Act in question from being in breach of human rights….

That raises the question, are the old cases all still good law, post-Care Act? and has the recent pillorying from the UN Committee on human rights, and this country’s specific record on those rights in relation to people with disabilities, made any difference?

Nobody knows. No council or CCG seems to be wanting to be JR’d about these issues. That means that if they HAVE a cost capping policy it is being applied only to the people who do not know to challenge it.

The indications are that the principles for which the old case law stood, would be re-established in any test case that was brought under the Care Act, so long as it was the right one. The NHS might fare better or worse, depending on the judge, because ordinary public law principles could be sufficient to lead to the same result, under the much woollier NHS legislation, as under the Care Act.

 

CASCAIDr starts from the principle that if a person has a NEED that everyone agrees can only be MET in one way, or one setting, that is what the council must pay for, and the cost of any other way is legally irrelevant. But that it all comes out of public money, which the council does not have the power to print, and must meet all its other duties out of, as well.

Next, that whilst there is no human right to stay in your own home, and not even to die at home, if you need care funded by the State, reference to resources can only be ONE consideration to be balanced in the thinking about whether the cost outweighs the person’s undoubted Article 8 human right to respect for his or her right to respect for one’s “private and family life, his home and his correspondence”.

What about the Convention on the Rights of People with Disabilities (CRPD) then, which envisages a right to ‘Independent Living’?

By ratifying CRPD in 2009, the UK is committed to promoting and protecting the full enjoyment of human rights by disabled people and ensuring they have full equality under the law. But that Convention has not been given specific legal effect in the UK and the meaning of independent living is capable of different meanings to different people. After all, Pamela Coughlan’s independence was promoted by the type of self contained unit she was given a home for life in, when she had her accident, and she brought proceedings to protect her right to stay in that setting on CHC, even though it now counts as a hospital such that she does not NEED to qualify.

The Care Act guidance translates all this law into one important paragraph:

“10.27  In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties.

This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population.

The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met).

However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles.

The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs.

This does not mean choosing the cheapest option; but the one which delivers the outcomes desired, for the best value.”

Although JR proceedings are being avoided at the moment, so that there is no precedent on warehousing and cost capping, there’s already been case law in the Court of Protection that makes it clear that the system we have at the moment of a social worker saying ‘we’ll see what we can do, but it’s the panel that decides’ doesn’t really work with the legal obligation to maximise a person’s capacitated decision-making with explicit information – at the right moment – especially when the only way to get them TO a care home would be against their will, and need a DoLS authorisation, such that one would be NEEDING to have the evidence that they were reasonably regarded by the decision-maker as lacking in capacity!

Case law holds that capacity assessors should not start with a blank canvas: The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed  KK was found to be clear, articulate, and betrayed relatively few signs of the dementia which afflicted her. She understood that she needed total support and carers visiting four times a day. Whilst she may have underestimated or minimised some of her needs, she did not do so to an extent that suggests that she lacked capacity to weigh up information.

The judge on a DoLS challenge said this, in that case:

  1. I find that the local authority has not identified a complete package of support that would or might be available should KK return home, and that this has undermined the experts’ assessment of her capacity. …The statute requires that, before a person can be treated as lacking capacity to make a decision, it must be shown that all practicable steps have been taken to help her to do so. As the Code of Practice makes clear, each person whose capacity is under scrutiny must be given ‘relevant information’ including ‘what the likely consequences of a decision would be (the possible effects of deciding one way or another)’. …That requires a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which option would be supported…..In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support.  ,,,I am not satisfied that KK was given full details of all practicable support that would or might be available should she return home to her bungalow.”

This principle is capable of use in the right sort of a case to make a council or a CCG come off the fence and IDENTIFY what they think is legal as a means of meeting needs in a person’s own home. If they want to cost-cap in a particular case, they might now do it, and see if that is challenged – but they’d be knowingly providing less than is assessed to be sufficient to meet the known needs, given that the person is going to be in a known home setting and not in a care home.

Put like that, it doesn’t sound like such a good idea, does it?

Recently in A Local Authority v X – Holman J invited the council, with the client’s blessing and indeed, his request, openly to determine whether it would like to cost-cap the man by giving him a direct payment of about a third of what home care had been costed out to cost, in order to keep him and others safe.

Not surprisingly the council declined to do so, and would not even spend double the amount he wanted, on meeting his needs at home, because of unaffordability. That is, a bed in a hospital that cost £x, and could meet his need, in their view, would be their only offer, whereas another option of twice £x that could also meet his needs, it declined to fund. There were potential risks to a single carer caring for this particular patient alone and that the wellbeing of the carers required at least two to be present at all times.

It would not OFFER to meet need in any other setting than the hospital it had the contract with, because of the cost. In its view, the needs of the man established him as someone whose needs COULD NOT be met in his own home, practicably.

A council can say that, but it must act lawfully in relation to a view on practicability. The question of what it can offer then, becomes important to that question.

It was arguably not UNlawful here, in our view, to offer the hospital setting for the longer term, for the following reasons:

The council didn’t need to walk away from  its duty, and just say no altogether, because it did have a willing NHS provider offering a private space, even if no care home would say yes.

It could not ‘force’ him to stay in the hospital bed, because he was deemed not to lack capacity. But if he did not lack capacity, his choice to say yes or no would be HIS choice, not the council’s, and a refusal by a capacitated person actually discharges any duty to care, under the Care Act.

Lastly he was found to be entitled to CHC, all of a sudden by the local CCG.

We suspect an intervention from the DH or NHS England there, because if CHC is NOT available for that sort of benign containment, it would be hard to imagine how anyone ELSE would ever reach Priority levels of challenging behaviour, would it not.

 

On that footing, the man can now either refuse CHC care arrangements, when offered by the NHS, and flounder, as a risk to himself and society, and risk being sectioned under the Mental Health Act or criminalised by the criminal justice system, if he cannot cope – or accept care, and hopefully other services, as part of a CHC package, to cover his social and personal care as well.

In our view, the council in this case was probably given and accepted some firm legal advice that it was not open to it, lawfully, to abandon its professional judgement on some misguided altar of ‘choice’(not even in the case of a person with capacity), and just give the person a direct payment of some lesser amount than is needed at home, or the alternative equivalent cost of the only available form of residential care available, in the hospital.

It can be seen that this approach is consistent with KK, where in fact the judge there said there that an authority MUST make their view of the offer that it would be prepared to make, in any other setting, clear, before it can decide that someone in refusing, lacks capacity to do so, thereby justifying a DoLS finding of lack of capacity about the decision where to live.

The judge there referred to a practicable offer – which in our  view has always been a euphemism for an offer that was lawful, or at least one that was not likely to be so unlawful as to be judicially reviewable, not a figure out of the blue.

We think that the judge was coming as close as he could possibly come, as a CoP judge and not an Admin Court judge, to making the council realise that IF the council is not prepared JUST TO WALK AWAY, and continues to act under statute, then the budget cannot simply be derived mathematically from the alternative cost of A.N. Other setting, where greater staff ratios would be always present, when the needs in the preferred setting cost a different amount to meet.

Even if the cost of an alternative is not merely arbitrary, because it WOULD meet need, it still doesn’t get one over the significance of the commissioner knowing because of professional judgement and knowledge of the market rate that the person’s needs would still cost MORE to meet, in their own home!

This sends a very loud warning shot out to the health and social care world, that it could only ever be feasible to offer the price of another setting, to someone determined to stay at home or GO home, to capacitated people (or incapacitated people with a welfare deputy or attorney, or other best interests decision makers) to whom a properly calculated, reasoned and defensible offer in relation to the cost of meeting needs in the actual anticipated setting, has been made.

A council or a CCG can undoubtedly have a policy to meet needs in a cost effective way, ie what is practicable, as long as that notion includes legality as a pre-condition. That means not allowing cost to be the only driver or determinant of care planners’ professional discretion as to what is an appropriate way to meet need, in the individual case, and as long as human rights and mental capacity considerations are properly grappled with, en route.

To our mind, that means no POLICY that ‘this is what will always be done or decided’ can ever be lawful, because it must all be subject to a professional decision on the person’s needs at the outset – and what would be therapeutically effective and not deleterious or harmful, as a means of meeting needs (and promoting wellbeing in the specific ways mentioned in the Care Act, if this is the council rather than a CCG that we are considering…)

JUST having a general policy that it will usually or normally be the body’s expectation that the cheaper setting will be the one offered, is not safe, in our view. Not without examples of exceptions, and some proof that exceptions ARE in fact made – and that the staff know that they have a critical role in determining whether a person is even one who can be regarded as able to be cared for other than in their own home.

Having any kind of a clear cost cap, as a policy, whatever it had been set by reference to, would mean undermining the care planners’ view about managing impact to wellbeing, or even a best interests decision about an appropriate service setting.

It would also be an over-rigid fetter of discretion, a quick way to getting JR’d.

But a potentially lawful policy about planning, and having a guideline cost as being as far as the organisation aims to go, in order to be fair to all its clients, subject to legal discharge of all relevant duties, could, we think, extend to adding in the cost of supporting the carer, formally, so as to signal that sustaining carers of course matters and is valued but that the robustness and willingness, and the cost of keeping them on the job, are crucial to real choice for the client or patient.

 

Finally, if there is insufficient capacity in the local care home sector, anyway, in which to place people when this is deemed to be the practicable choice – or capacity of available beds but insufficient suitable placements, that situation points to other problems for the commissioners. A care home has to a) be suitable for the individual’s needs and wellbeing and b) have an actual vacancy before the cost of the care home package can feasibly be relevant to anything a purchasing body needs to decide!

And if the going rate for care home care in the has been suppressed by dominant commissioning practices and the market has capitulated, whilst grumbling, on the footing that top ups will bridge the gap between what they want and what they can get and still stay in contract with the council, and nobody has yet challenged that, it will mean that these so-called top-ups for luxury are the norm, despite the state of the majority of care homes being only just acceptable to CQC.

This means that relatives (and all those people in council beds, but paying full cost plus a top-up, after the disregard has ended), are subsidising the cost of standard care and attention, which is illegal.

And that creates the additional risk of challenge to the level of the fee being taken as the equivalent for the cost-capping policy – not just the policy itself!

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