“We can decide whether your care and support needs are met or not, even if we don’t pay for anything…”

“….after the assessment in which we found you were eligible…!!”

It is true, in legal terms, that there are no duties to PROVIDE or ARRANGE to PROVIDE, any longer, on councils, under the Care Act.

That concept has been supposedly ‘modernised’ into a duty to MEET one’s NEEDS. As before, there are several ways to do this: providing, contracting to provide through a contractor’s work, taking other steps (we think that this means grants and Big Society promotion), delegating the meeting needs function to other bodies (such as Health, or to a private sector provider) and funding direct payments instead of the first two.

Look at the Guidance:

10.10    ‘Meeting needs’ is an important concept under the Act and moves away from the previous terminology of ‘providing services’. This provides a greater variety of approaches as to how needs can be met, developed through care and support planning as described in this chapter. The concept of “meeting needs” is intended to be broader than a duty to provide or arrange a particular service. Because a person’s needs are specific to them, there are many ways in which their needs can be met. The intention behind the legislation is to encourage this diversity, rather than point to a service or solution that may be neither what is best nor what the person wants.

The Law Commission found no mandate at all, though, when it did its consultation prior to the drafting of the legislation, for watering down the fundamental nature of the social care task, which had always been, by one or other of those means,  to meet assessed, eligible unmet needs.

The word out there though, it seems to us, among councils’ senior management is that it is possible to meet needs without spending any money or making any arrangement at all.

The pre Care Act case law had clearly established that the council only HAD to meet needs if it was necessary for it to do so; or if the needs ‘called for’ a response from the council; so whatever the Guidance says, nothing has really changed, and judicial review is still there to stop decisions that reach the ‘outrageous’ threshold.

Of course, at one end of the spectrum it would demonstrably be the case that needs were MET, if a council had put so much money and work into generating a preventative market – so that signposting to third parties out there, would generally offset people’s needs, by the time they came to be assessed.

The trouble is though, that that’s the Prevention and Reduction function in s2 of the Act, and there is no benchmark for how much of that is required to be done, in order to say that the duty is discharged. We all know that people do still have unmet need despite trying prevention and reduction services. And that they don’t HAVE to accept prevention offers, if they want to be assessed straight away.

So let’s go to the other end of this approach, taking it to its logical extreme: – “We can say your needs are met, just by asserting it, and leaving it to you to challenge us”, even though it’s nigh on impossible for a person with an eligible need to afford legal advice and find a lawyer who still does community care law on legal aid, AND prove that the stance is so extreme that it’s irrational in a public law sense.

Anyone think that that would be an ethical let along lawful stance to take?

We think that the adequate meeting of need must relate to reducing the impact of the inability of the person to achieve the tasks in the criteria to below the initial significant impact to wellbeing to something LESS than significant.  Logically, it cannot require the enabling of all people into newly ABLE to achieve, for that will be impossible in many cases.

This  emphasis on impact, is woolly and subjective but that’s nothing new, in public law.

The acid test is this though: if a CCG were to say the same thing, in the case of a CHC patient, asserting that there are no standards, no references to sufficiency, adequacy or anything in the NHS legislation, and only the National Framework as a sort of law, there to govern what the NHS is required to do, the judges would have to interpret the CHC policy of the DH in the context it is meant for.

That is, care planning for people who are SO dependent, that it’s not merely daily living tasks they need a bit of social care to help them with, but skilled, frequent, sustained or intense attention, in relation to management of symptoms, treatment and CARE, because of their having met the primary health need score on the DST.

The Admin court would then do to a CCG, what it always used to doing in social care cases: it would test the legitimacy of the offered services, in terms of nature, competence being planned for, and the amount or their financial equivalent, by reference to professional opinion and the procedural fairness with which it had been arrived at, quashing any offer that was choke-worthy or made in cynical disregard of basic legal principles.

We would be willing to bet (yep, bet our charitable funds!) that no CCG actually WANTS to be taken to judicial review proceedings over the inadequacy of a care plan for a qualifying CHC patient. Nor to test the notion in the Framework that disputes over the PLAN (not the status of the person for CHC itself) should go to the NHS complaints system.

Bring it on, is all we can say, if we are wrong about THAT assumption.

Our informed guess is that it still is necessary for councils (AND CCGs with CHC patients) to provide or arrange to provide services by way of actual expenditure – and that that is the meaning of the DUTY in s18 – the duty that is owed to a person AFTER assessment, and an eligibility decision, and not before.

When one considers that prevention and reduction will have been applied to minimising the needs BEFORE assessment, and that asset- and strength-based approaches, pulling in anything that is free, in the community, or from one’s willing and able network, INto the package during care planning, to reduce the amount of the eligible and unmet need, the bottom line is this: if there’s an unmet eligible need that still exists after all that, then social services will have to meet it. And – by that point – that’s going to involve spending money.

We are not saying that social care councils aren’t the decision-makers in relation to whether a need is met, please note, but just stressing that that role is subject to judicial review for ridiculous, indefensible, eyebrow-raising choke-worthy assertions (eg one toileting visit a week will do. We all have bladders and know that we have to go to the loo more often than once a week and can’t time it to suit a homecare agency’s visiting slot!).

More from the Guidance on the Care Act, regarding resource allocation and planning

  • Transparency: Authorities should make their allocation processes publicly available as part of their general information offer, or ideally provide this on a bespoke basis for each person the authority is supporting in a format accessible to them. This will ensure that people fully understand how the personal budget has been calculated, both in the indicative amount and the final personal budget allocation. Where a complex RAS process is used, local authorities should pay particular consideration to how they will meet this transparency principle, to ensure people are clear how the personal budget was derived.
  • Timeliness: It is crucial when calculating the personal budget to arrive at an upfront allocation which can be used to inform the start of the care and support planning process. This ‘indicative budget’ will enable the person to plan how the needs are met. After refinement during the planning process, this indicative amount is then adjusted to be the amount that is sufficient to meet the needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6). This adjusted amount then forms the personal budget recorded in the care plan.
  • Sufficiency: The amount that the local authority calculates as the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan.

What we are saying is that there are very few cases where a personal budget manager or a resource allocation scheme will be able to say £0 will be allocated for THAT eligible outcome – either at the indicative or the final stage of budget setting. It just wouldn’t be defensibly rational.

We’ve done a fair amount of thinking about this:

We think that the only situations where a budget can contain £0 for an assessed eligible need would be where:

  • carers are willing and able to carry on meeting those needs (no duty under s18 in that case).
  • The one off provision of equipment or use of technology is an acceptable solution (not if people have got good reasons for why it won’t work for them, nor if there is any expectation that the client has to pay someone else for the equipment or maintenance). The tech provider monitoring the use of the equipment presumably sometimes charges for that service, so that gets harder….but there’s DRE for that, later, if one is expected to pay for that ongoing service….
  • A capacitated client refuses a service geared to that domain
  • The NHS or another agency positively agrees to meet a need that would have overlapped with a social care entitlement, in a way which that other agency is willing to justify (incontinence pads for instance, in a McDonald situation)

See para 10.25 on this in the Guidance: “The duty to meet eligible needs is not discharged just because a person has another entitlement to a different service which could meet those needs, but which they are not availing themselves of. The needs remain ‘unmet’ (and so the local authority under a duty to meet them) until those needs are actually met by the relevant service bring provided or arranged.”

 

We do not think that councils can say any of the following, without thinking very carefully how to resist a challenge:

  • Zero allocations for needs for household help, on the footing that this must be paid for with disability related benefits. We think that that is wrong in principle: benefits are irrelevant to eligibility and eligibility precedes care planning: the needs must be costed The council can explore providing the service, and charging, using the person’s benefits as means but subject to the MIG, or take the client lower than the MIG if it’s a non-care service – OR treat it as DRE if left out of the plan, and paid for privately.
  • Zero for transport needs on the footing that mobility component will cover it: this would be illegal for deciding eligibility via the questionnaire as well, but not if what you are really doing is taking account of someone’s benefit status for their eligibility for other concessionary transport which would manage their needs-related transport needs…unless of course the concessionary transport is not suitable or the person is not suitable for IT.
  • Zero for the actual cost of leisure and recreation – while still putting in money for the support needs required to enable access to them. We don’t recommend this in a RAS, because some people will have needs that are not able to be met through ordinary leisure. Even if you are applying it flexibly, you still have to decide how much leisure is enough for an ordinary person, in a civilised society, and if you just let people’s means determine how much they get out, you risk ensuring that the disabled are specially discriminated against for being leisure-rich but pleasure poor, and by impoverishment through inability to work.
  • Zero for parenting – “because it’s for Children’s Services to help the child, even though they don’t agree with us in adults’ services that they should fund services for the parent for a child in need, and despite parenting difficulties regarding physical or mental impairments being an explicit domain in the eligibility criteria for adult services nationally…”!!
  • Zero for accessing and engaging in work, training, education or volunteering. A council might not need to put points in if there were Access to Work funds to rely on, or if there were voluntary organisations offering eg literacy support, mentoring in confidence, or travel assistance, friendship or chaperoning support in the area – but logically these inputs should be accessed prior to assessment: so – again, logically, more specialist support is bound to cost something, and so there would need to be an allocation.

 

Our conclusion is that it is a myth that there are no constraints on a council or CCG’s attitude to what’s required to meet a person’s needs, and that it can pay NOTHING on account of a domain that has been assessed to give rise to eligible umet need.

So we think that it is always best, if you dispute the adequacy of a care package’s content or amount, that you ask for reasons for the CCG’s or the council’s belief in the legitimacy of that offer, in relation to MCA and human rights considerations, as well as taking in the promotion of wellbeing if it’s the council.

Ask, in particular, for a written care plan showing how the commissioner would actually allocate the offered funds, on a day by day basis, to meet the needs that have been identified, in a defensible way.

Even if you want a direct payment, you are entitled to a s25 Care Plan, under the Care Act.

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