What to Say IF: the council or CCG says that they believe they could meet your needs for £xxx – because that is what they pay to care HOMES in the area

If a council or a CCG says that it is using the cost of a care home locally as a measure of what it should offer, the cost is not an unlawful consideration in and of itself, but it cannot be the ONLY determinant of its care planning function (regardless of whether one’s purchaser is the council or the CCG).

There is a case from 2004 involving the London Borough of Bromley (Alloway) saying that cost cannot be the only determinant of what would meet a person’s needs. Since then, the Care Act has made some of the obviously relevant considerations for any such decision, into explicit, mandatory factors that must now be considered/addressed by any care planner (and by implication, any assessor).

So IF an assessor or a care planner appears to be assuming that a care home would be capable of meeting virtually anyone’s needs, because a care home is a way of ensuring access to supervision around the clock, but you don’t want that sort of care, then you need to say this: 

“It surely can’t be your professional opinion that every single person in this county / council area / CCG area can be said to have needs that can adequately and appropriately  be met in a care home, can it? There must be some who NEED to be in their own home, and some who NEED to be in a care home. I might be in the middle category of ‘could be cared for in either sort of setting, therapeutically  beneficially’ but you don’t know enough about me yet, to my mind, to do the thinking properly under the Care Act.”

“I’m worried that the fact that the council has been extraordinarily successful at persuading local homes to provide a package of care in a care home for an extraordinarily low price might be what’s driving the position that all my needs require is a care home placement. That would be a fetter of your discretion as a care planner.”

“I know I’m entitled to be told what you would provide as a lawful and practicable alternative if I were to say no thank you to a care home, if you ultimately offer to make that placement.”

“I know that all councils have to abide by the Merton judgement about the necessary elements of a lawful assessment, so unless you’re prepared to do that, I’m afraid you’ll be getting the organisation into legal difficulties – so please speak to your manager before we go any further and make sure that you are familiar with that judgement.”

(click on this link here for the full judgement: http://bit.ly/2sDY7QK )

The judge said this in the Merton case: 

  • An assessment is invalid if it doesn’t address impact of a person’s problems/needs/deficits on their wellbeing, or doesn’t have regard to a person’s preferred outcomes.
  • Well-being includes mental and physical health and emotional wellbeing and the suitability of accommodation. This means that the assessment must determine how the person’s assessed needs impact upon his or her mental and physical and emotional wellbeing and the type of suitable accommodation s/he therefore requires.
  • A council must have regard to the individual’s wishes and to the need to ensure that decisions about the service user are made having regard to all his circumstances.
  • The suitability of accommodation being considered, and the accommodation presently occupied, in relation to a proposed move is an essential relevant consideration for a lawful Care Act process.
  • The professional judgement of the assessor is the essential evidence basis as to what is a need, and an eligible need, but that judgement needs to be evidence based in and of itself.
  • Asking another provider for a price, on the basis that a person has been ‘deemed’ organisationally no longer to need an aspect of the care provided by the current provider as part of its costing model, is not the right way to go about re-assessing needs.
  • A new provider, favoured by the commissioning organisation, cannot simply find itself capable of meeting needs and have that stand as a statutory assessment under the Care Act
  • It’s no good saying that something is no longer needed because a council doesn’t want to pay for it any longer.
  • A High Cost Funding Panel that has no minutes is not going to be able to explain the basis on which IT has decided something is no longer needed.
  • It is difficult to categorise a decision to reverse such a long standing provision (based presumably on need) as rational when I am not told who made it and I am not told the basis for it.”
  • If the local authority decides that it is required to meet needs, it must, pursuant to section 24 (1)(a) of the Act, prepare a care and support plan or a support plan for the adult concerned. 

The listed factors in the wellbeing section 1(2) in the Care Act that must be considered in order to identify the needs properly (there are more in s1(3) mentioned above) include:

(a) personal dignity (including treatment of the individual with respect);

(b) physical and mental health and emotional well-being;

(c) protection from abuse and neglect;

(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

(e) participation in work, education, training or recreation;

(f) social and economic well-being;

(g) domestic, family and personal relationships;

(h) suitability of living accommodation;

(i) the individual’s contribution to society.

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