What to Say If: the council or a CCG says that you can’t have a bigger budget for care needs at HOME than it would cost that body to meet your needs in a care home

If a council or a CCG says this, they are treading on very thin ice, these days.

They’d be thinking that the definition of a personal budget, in legal terms, is the cost to the council of meeting the needs, and inferring from that that no council need offer anyone any more than it would cost for the council to pay to get the needs met.

The Equality and Human Rights Commission has threatened 13 CCGs with judicial review of published policies to this effect, policies which those CCGs have been foolhardy enough to put up on their websites without – it would seem – a care for long established public law principles. 

Councils have been pursuing such policies for at least 20 years but no single council has ever allowed itself to be taken all the way to a judge about the above position. 

CASCAIDr does not think it is lawful, as a published ‘blanket’ policy for how a person’s needs will be met, to make this sort of an announcement under the National Health Service Act (or under the Care Act) because it would operate as an inappropriate fetter on professionals’ judgements about individual people’s needs, wellbeing and impact on them, of a move to a care home.

CASCAIDr has no doubt that the 13 CCGs will be taking those policies down or amending their wording.

But that does not mean to say that a council or a CCG is obliged to keep someone at home, for meeting their care needs, no matter what the cost. CASCAIDr thinks that that is inherently unlikely to be said to be the law, by any Administrative Law Court judge. 

A person denied the chance to have care at home when it would only cost a little bit more than a care home would have a strong case for contending that their human rights had not been balanced properly against the economic impact on the area. The bigger the gap, though, the riskier the challenge would be, for the individual, because resources aren’t irrelevant to the public body’s choice of how to meet a person’s needs – unless the need is actually a need that could only be met by the person’s living at home and NOT in a care home, according to relevant professionals’ opinions.

A person’s mental capacity must also be relevant, we think, because of the ugly truth that a person with capacity is going to be able to make a stronger case out about the value of their own home environment to their emotional and psychological wellbeing than an incapacitated person would be able to express. 

So the real question is WHAT WOULD NOT BE A LAWFUL POSITION for a public body to take, with regard to comparing costs of two alternative settings in which care inputs could be arranged, so as to meet eligible assessed needs? What would be indefensible, in terms of public law? 

It’s likely that no public body will actually want to risk sticking to a position of openly cost capping if the people affected by its attempts to do so, seem well tooled up for fighting the legitimacy of that position. So knowing what to say is crucially important.

If anyone says any of the following (all of which amount to a cost capping policy, although they don’t immediately refer to the cost of a care home), you need to probe further and get some more reasons out of the assessor or care planner, to see where their position comes from:

  • We only ever do 4 visits a day by way of home care
  • If you need double handed care at night, you’ll have to top up
  • We don’t do care at night
  • The cost of live in care (a weekly sum for an employed person on an unmeasured hours contract) is all that we would ever provide by way of home care.

Here are some things that you can say, to generate debate and the potential for shots to own foot by the staff in question:

  • I know that you can, as the funder and care planner, compare alternative settings, and if they are both adequate in your professional judgement, that you can offer me the cheaper, if you have taken all relevant considerations into account. But I don’t know how you could possibly have taken account all of the features of my wellbeing, and my wishes and feelings, as you are bound to do, by this point, so I am worried that nobody’s actually even thought about whether a care home WOULD meet my needs appropriately. Here are the reasons why I think that it would not: [give reasons]
  • I don’t believe that the rate you pay for your publicly funded clients is sufficient, in reality, to pay for adequate appropriate care and support to meet needs such as mine. I would want to know how many care homes in the area will even take your rate as the full cost of the care that you are legally obliged to provide for me in light of the assessment. Not as a contribution plus a top up, from someone else, please note. I believe that the number of care homes asking for a top-up on top of what you pay as your contribution (including the charge that you would make to me) is now so great that it suggests that the apparent cost of a care home has been manipulated to a figure that is arbitrarily low. 
  • If the council’s / CCG’s rate was a more accurate one, that would then make the cost of care in my own home appear to be less unaffordable in your Member’s/Finance officer’s eyes, would it not?
  • If I am someone whom you could rationally regard as having needs that could be adequately met by a placement in a care home, I assume that you will offer me a placement. That placement has to be suitable – I know that much – not just any old care home that happens to be open. I know that ‘suitable’ has to be in light of my needs, deficits and problems: the Care Act and the Merton case say so. But I am going to say no, and I need to know what you will then do, in order to make an informed decision.
  • I don’t think that you can knowingly give me less than the council professionally assesses my needs AT home to cost, if we agree that you are not going to force me into a care home against my wishes, just because the council COULD have ‘got away’ with paying for me to go to a care home. 
  • You’re saying that the offer of the cost of a care home for me to spend on home care would be great for me because it would give my my ‘choice’ to stay at home, but that’s not really fair, is it, when in fact it’d be down to YOUR organisation’s choice not to walk away from me and give me nothing, if I were to say no to having my care needs met in a care home.
  • In order to give me that reduced budget by way of a direct payment, you’d have to deem it to be an appropriate way for my needs to be met, and you’d know that it wasn’t enough. So I don’t think that that’s a way forward, unless you are prepared to set out a care plan, under s25, showing how either YOU as commissioner, or I, as someone who could be given a direct payment, could, on that so called lower cost comparison amount, adequately meet my needs. 

 

CASCAIDr can help identify lawful and unlawful thinking with regard to cost capping. In all cases the most important thing we would need you to work out is what the real cost of meeting your needs in your own home would really be, after all informal help that you could tolerate having from friends, relatives and neighbours has been drawn into the equation.

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