“We can change your care plan and cut the funding whenever our own funding gets cuts from central government or our own budget looks wobbly”

Councils can change a care plan to save money. How they do it though, is the all important question, because there’s judicial review for decisions that have been driven by one thing only, or which have taken irrelevant considerations into account or been arrived at unfairly.

The desire to save money, can only be one relevant consideration, not the whole point of the change to the care plan. There is no necessary precondition for a change that the clients’ needs have changed. What was adequate before may have become unaffordable now, but not all changes are lawful.

Resource Allocation Systems – the computer based costing models which can be changed by the click of a key – when the council realises it’s got an overspend or a deficit even if it sticks to its budget, for instance, aren’t actually mentioned in the Care Act itself.

They aren’t mentioned in the Regulations. Ie there is no such thing as an interim personal budget mentioned: only a definition of a finalised one!

Indicative budgets do get lots of attention in the Guidance. It says that it is critical – crucial – essential – important – etc that a person is given an upfront indicative allocation, apparently, before care planning.

There is case law, from a point before the date the Act came into force. That case law is about what a RAS has to be AND do, so that it does NOT ITSELF become something positively unlawful – ie, something that messes with the structural design of who decides what, in the Care Act, or which breaches the pre-existing laws about fairness. And the Guidance itself had to be constructed in lawful wording – so that pre-existing case law has been assumed to be of ongoing application and has thus informed the writing of the Guidance.

How a council or the NHS figures out how to give someone an upfront allocation can a) affect how the person feels about the process and the outcome and b) be used covertly or subtly to manage the overall budget and minimise (or attract!) risk of legal challenge and c) skew the market, where both providers and clients and advocates are unaware of people’s ACTUAL legal rights.

The Guidance says that ‘These principles [transparency, sufficiency and timeliness] apply to both the indicative upfront budget and the final signed off personal budget that forms part of the care and support plan.’

In Savva, the pre-Act case, the judge said this:

“The claimant argued that the decision of the panel does not constitute a discharge of their legal duty. She submits that the manner in which the Defendant used the RAS tool is  impermissible and cannot be used as a starting point, because it imposes an unlawful cap on the budget. I do not accept this submission.

As I understand  the Defendant’s case, if the use of a non-linear RAS tool had been the sole basis for the decision, then there would at least be a persuasive argument that the decision was unlawful. However, Ms Sackman submits that the RAS tool is not the sole basis for the decision, but it is simply a starting point in the assessment process. The RAS has been championed by the Department of Health, and certain local authorities, so I understand, have been encouraged to develop RAS schemes as indicative tools in order to discharge their duty so as to meet all of the service users’ assessed needs. The Defendant has not taken the indicative budget and said that that is the final figure.”

What should a person do with a take it or leave it approach, during ongoing austerity measures?

Faced with the council’s position that the client ‘should’ be able to make do with £x, the client, their involver, or their independent advocates should ask – because they are entitled to know the basis for the council’s opinion – in order to address it fairly. The debate can be to the weighting of the need (points) or the pounds attributed to points or the overall values (FACE) or the types of service used for an evidence base as to the cost, or to the commissioning assumptions behind the unit cost for a timed service (ie shared care deductions, informal care deductions, availability or suitability of universal services).

  • Why do you think that that’s enough to be adequate and appropriate, please? Eg: given the unit cost of that sort of a service, how is it that you have concluded that the money you’ve offered me would enable you (or me) to buy sufficient services for my particular needs, given my needs are specialist or high cost because of [fill in the blanks]?
  • Who do you envisage that I can get that …. from, please?
  • Shall we ask that provider if they’ve even got a vacancy or capacity to take ME on?

Or, the fed-up client could just say No, if it looks too hard for them to be worth it: “I don’t think that I fancy my personal budget in the form of a direct payment at all, thanks. I’d rather you lot had to commission an appropriate service for me, and invoice me for my contribution, but I would still like it personalised as to the timing and manner of its provision, like the government guidance always said it should be”…….

One RAS or several RAs?

When Lucy Series did her FOI experiment to get to the bottom of the way RASs work,

  • Five authorities indicated that they used different RASs for different client groups, varying either the questionnaire itself, the way points were allocated for each group, or different allocation tables to match ‘indicative amounts’ to points for different client groups.
  • One authority had a generic RAS, and a separate one for adults with learning disabilities, another had a separate RAS for older people.
  • Another had four separate RASs for older adults, people with learning disabilities, people with physical disabilities and people with mental health issues.
  • One authority explained its decision to use different allocation tables for different client groups on the basis that it ‘had hugely different costs of care in each area’ and if one allocation table was used it would be ‘constantly changing/overriding allocations that came out of the RAS’
  • We don’t know any lawyer who thinks this is wrong or unjustified discrimination. It HAS to be this way, because the market charges different amounts for the level of risk transferred and the amount of input required to keep a person and other people around them, safe.

Is the highest sum you can get from our RAS, a cost CEILING – above which nobody can expect funding?

Any mathematics-driven approach to average costings in relation to managing people’s dependency is bound to have a maximum, a top amount produced by multiplying the max points by the max pounds for any service suited to that need.

That level cannot be a legal maximum, however, because there is no such thing in legal principle as a cost capped care package – the principle being that if there is only one way to meet need, and the council itself believes that that is the case, then it must be funded, regardless of the cost – that’s what the consequence of there being a duty to meet need means. That is very rare, in real life.

The better and more innovative one’s care planners are, and the more funding put into regenerating employment through the care sector, the rarer it will be! But that requires Members with long term vision and officers who are legally literate….

Reaching the top of the RAS in terms of pounds and points is a certain indicator that one’s needs are massively complex. It’s probably an indicator that one should at least be having some free input supplied or commissioned by from the NHS even if one is not likely to qualify for CHC. But again, that needs managers to know to push for it.

The actual maximum product of pounds vs points is not a determinant of the right size of the care package or budget.

RA schemes with regard to points pounds or values, are every council’s translation of what they think it is appropriate to do to meet need, into a sum of money. They should be consulting publicly about that, in our view, because it’s POLICY, if they are changing the policy about levels of care needed for typical situations, because of hard economic times. The law requires that much.

There is debate about whether it is better to deflate the whole scheme by a flat rate percentage, or to consider tweaking the elements that make up the total, to reflect rational reasons for cutting funding for some types of input rather than others. We could not gainsay a piecemeal approach given that we believe in public law principles: a piecemeal approach is likely to be less irrational.  

What is clear is that a resources driven deflator cannot be used to cut existing service plans, without proportionate re-assessment.

Even applying a cut to NEW clients is still controversial  though, because any obvious differences between the way incoming and current clients are treated, aren’t good for citizen satisfaction.

To finish with, here are some RAS no-nos….in our view

  • “We will change the number of points per answer, if we run out of money or have to make cuts” – This will eventually – over time – mean that neighbours get differentiated decisions on eligibility or offers on budgets, although they had objectively similar needs. This will amount to a covert change of policy on what constitutes an appropriate response to need.
  • “We will change the number of pounds, per point, from the answers, if we run out of money” – likewise – this will amount to a covert in-year change of policy on what it is appropriate to provide in order to meet need.
  • ‘We will cut the points or pounds within the RAS without consulting with providers about the cost to them, of doing what we now need them to do for us’. That would be unlawful under the public sector equality duty and the duty to consult, under the Care Act guidance.
  • “We will top up people’s allocations if the RAS works out lower for them than this last year’s spend – that should keep them happy…” It is the law that councils have to meet eligible assessed need, so that’s a good idea, but we would disagree that that can be seen as just a choice to top up by the authority. And it makes the notion of the RAS being a rational basis for costing, harder to proselytise about!!
  • “We will simply put an inflation indexation on people’s RAS amounts, each year, unless they want re-assessment.” Great, but Government guidance expects a proper review not less than annually, because people’s needs change.
  • “We won’t have to allow anything for inflation if we don’t want to.” Er – that amounts to cutting care packages in real terms, annually, unless inflation is zero – so we don’t think that this is very sensible.