a) … WITHOUT ANY re-view or re-assessment having taken place:
- I am certain that it’s not lawful to cut a person’s care package without doing a review, and then a re-assessment using Care Act criteria if a cut is proposed, for whatever reason.
- I am sure that your senior management team have not meant to give the impression that it’s ok to suggest that the council / CCG can just DO that, but it does leave us all in difficult position….
- By telling me in advance that there’s going to be or that there’s got to be a cut, you’ve effectively
- pre-judged my needs, or what’s required to meet them, without any of the facts to hand, and without all the relevant considerations in your mind
- made me think that you think that the state of the council’s/CCG’s finances can actually determine what you have to do to meet your duties towards me, as if your finances were the only relevant consideration
- made me think that the organisation’s needs are driving professional judgements, such that your professional thinking is being fettered.
- I need you to ask for some supervision or guidance from your line manager, because he or she will need to ensure that you have legal advice from the council’s lawyer or CCG’s governance lead in order to be on a safer legal footing when the review is done.
- I will not complain, right now, now that you and I are on the same page, but if there’s anything unlawful or Guidance non-compliant with the processes now required to be followed, I will have to mention that you’ve said what you’ve said, when getting further advice about the legality of any cut that the organisation might try to impose.
b) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment but no explanation as to what has changed
- I am certain that it’s not lawful to cut a package or a personal budget without explaining what justifies the change in position as to what is required to meet my needs
- Is it that my needs have lessened? If so, in what way? A well-managed need is still a need unless you have reason to believe it has gone away for good. The Birmingham ex p Killigrew case does say that you are supposed to be able to articulate how the needs have supposedly lessened.
- Is it that I have got better at coping, even though my needs haven’t changed? What is the evidence you are going on, please, when taking that view?
- Are you saying that what this organisation allocated for my needs last year/2 years ago, was in some way MORE than was really needed? In what way was it too generous, please? Which of the inputs that is now regarded as not needed, was really to be regarded as having met a want last time round, then, instead of a need?
- Then seek advice from CASCAIDr.
c) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment AND there’s a suggestion that what has changed is:
- that your needs have lessened because (for example) your skills, robustness, mental health etc have improved
- What is the evidence for that improvement, please?
- If you haven’t got any, you can’t assume that my needs have got less, just because you think that they should have, or must have done, by now.
- Just because there hasn’t been an incident/crisis recently, doesn’t mean that you can reasonably assume that there’ll never be another one
- My provider doesn’t agree, as it happens.
- that your needs have lessened because you have more informal care available to you which it is reasonable for you to use
- just because I’ve got a new partner/my son has come home/my neighbour has changed – I’m certain that these things don’t mean you can assume that a person involved with me is willing or able to provide care inputs of a level that meet social / NHS care needs, appropriately or adequately
- Then seek advice from CASCAIDr.
d) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment AND there’s a suggestion that the new WAY of meeting need, which is cheaper than the old, will just have to DO (eg you need only generalist care, not specialist care OR technology will have to be used to achieve the same as people did, before….or that you no longer need access to a specialist team ?)
- I have had specialist care based on the nature of my condition for the last x years – so please would you address what the likely implications are going to be with making the changes you are proposing
- Why is it that you think I no longer NEED what you have been funding what’s been in my package please?
- Then seek advice from CASCAIDr.
After that: EITHER say this:
- the risks associated with giving it a go and agreeing to cuts to see what would happen, are too high in the opinion of people who are my best interests consultees, who think this because (give details)
- and even though you will be the decision maker regarding imposing this change on me, as an incapacitated person, we know that your BEING a best interests decision maker means that you should state your reasons for disagreeing with the my best interests consultees / my advocates.
OR say this:
- I (or my best interests consultees / appointed welfare decision makers am/are willing to give it a go, if you want to take some of the inputs out of the package,
- …as long as we are all aware that it’s your professional opinion that is influencing this change and not my/our choice or opinion – along with the liability risk that goes hand in hand with that care planning role and responsibility, if anything goes wrong
- …because the bottom line still has to be that the council is doing what its competent professionals think will adequately meet my needs, lawfully, safely, appropriately and adequately.
- so we will be needing to know your reasons why you think that the change there’s been, or that is proposed, means that less care inputs, as proposed, WILL still meet my needs.
e) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment but on the footing that you will be better off without the old level of service or funding…
- Could you please identify what harm you think I am exposed to by the current profile of services or funding, and what your evidence basis is for that view?
- I am sure that the Care Act requires you to take a person-centred approach to assessment and what’s needed to meet my needs appropriately and adequately – I know that you have to take account of how I see my well-being and what matters most to me, so that you can make a sensible decision about the way you think best to meet my needs.
- I know that s1(3) of the Act says that a local authority must have regard to the following matters in particular—
- (a) the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being;
- (b) the individual’s views, wishes, feelings and beliefs; and
- (h) the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
- I am NOT sure that you can possibly have done that at this stage, and would like to be satisfied that the thought process has taken all the well-being factors in the Act, into account, as well as the input from my carers, proper respect for my private and family life, in light of my human rights, and any views of my best interests consultees (if I am lacking in capacity)
AND IN ALL CASES of assessment or re-assessment being done too fast and too incoherently:
“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”
(the same principle must also apply to any re-assessment, when a cut is proposed)
(click on this link here for the full judgement: http://bit.ly/2sDY7QK )
The judge said:
- An assessment is invalid if it doesn’t address impact on wellbeing, and 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 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.