A considered riposte to the question posed by Peter Feldon “If unmet need is so rife, why are there so few complaints about it?”

Having taken some time off from managing the flood of referrals received weekly about dodgy practice in adults’ social work, to read Mr Feldon’s article, in Community Care, my jaw dropped.

It doesn’t feel as if nobody’s complaining, HERE!

However, on a more careful reading, it may just be that it’d been inappropriately edited with a title that didn’t QUITE fit the content.

Whatever the reason, though, I have some suggestions to make as to why there might well be fewer complaints than one would expect, given the current national outpouring about unmet need, the further delay to the Green Paper and examples everywhere of the funding crisis, now highlighted by Panorama’s 2 part TV documentary.

Mr Feldon cites the slew of articles and sources, referencing massive unmet need, and then says this:

            “Yet, very few people actually complain about decisions not to meet their needs where these do not meet the eligibility criteria.”

Unmet needs that do not meet the eligibility criteria are not needs that there’s a duty to meet anyway – they are a social problem, not a legal problem, and that’s always been the law. And it’s quite hard to assess someone as INeligible, if one is doing assessment properly, these days (and not just using a 3 conversations model!) – because the criteria are based in law and not mere Guidance, and the Guidance exhorts councils to read the criteria in an expansive and inclusive way.

However, for most people, the devil lies in the detail of the care plan; Mr Feldon went on to say this:

“However, there are a significant number of people who complain about their needs being under-met; this occurs when a person – judged to meet the eligibility criteria – believes their personal budget is insufficient to meet their needs.”

He cites 315 complaints made to the LGSCO where the investigation appeared in the ombudsman’s category of assessment and care planning. The yearly figures have gone down a bit from that level, since 2016, but say approximately 300 a year, in that category. There was ONE example out of 23 cases actually mentioning “unmet need”, where the decision was overturned regarding ineligibility of need. In the other cases, “The most frequent reason for needs being unmet was as a result of delays, most commonly in assessment/reassessment or putting in place elements of the care and support plan.” Delay in and of itself is usually explained in reasonable terms, and is not usually what lawyers would call unconscionable, but just unfortunate. Mr Feldon did not say whether these complaints had been successful or not but it would not be surprising if the LGSCO tended to give councils the benefit of the doubt in most cases of delay.

However, Mr Feldon went on to say –

There were nearly 300 upheld complaints in this three-year period that include reference to personal budgets and, of these, one of the main complaints was about reductions in the personal budget, resulting in some of the individual’s eligible needs not being met or being under-met.”

To my mind, that is one third of all social care complaints about assessment and care planning over three years, where the complaint was upheld that some eligible needs had not been met.

That is surely not a small proportion or a small tally, on any footing.

The case law says (and always has said) that unmet eligible need is unlawful. The LGSCO’s remit, however, is maladministration (now called ‘fault’), not legality.

Moreover, if something is alleged to be positively unlawful, the LGSCO may refuse jurisdiction altogether and refer the complainant to the court system – although the possibility of using legal proceedings is not conventionally regarded as feasible by the LGSCO for most people, in terms of financing them, or the relationship of dependency that may be affected for the worse.

So – our reasoning is that if the LGSCO regularly said that council conduct was in ‘breach’ of the Care Act, or ‘unlawful’, the LGSCO would be criticised for usurping the role of the courts, undermining the protections for councils (ie the need for formal permission for judicial review proceedings from the Administrative Court; the three month time limit; and the practical hurdle presented by the qualification requirements for legal aid funding) that are legitimately and lawfully enjoyed by social care departments.

These days the LGSCO reports use the euphemism ‘not in line with the Care Act’ – see for example the most recent successful complaint against Barking and Dagenham, where a catalogue of incompetence is set out, for all to wince at, because the behaviour regarding top-ups is so widespread.

Secondly, the LGSCO can’t proceed with a complaint without being satisfied that the complainant has given a chance to the council to resolve the matter. The ombudsman has conventionally expected a complaint to be made via the formal social services complaints service, but this is not what the law actually says.

Rather, the law requires that the matter has been brought to the attention of the council with an opportunity to investigate and respond, and there is another way of achieving this, which is using the Monitoring Officer remedy.

We mention this because Mr Feldon’s article does not explore how many first level complaints or referrals to the Monitoring Officer about unmet need may have been successful in the same period.

CASCAIDr has been using the MO remedy for over a year now – so all those cases should be added to the tally as well, where councils have shifted their position and seen the error of their ways – the ILLEGAL error of their ways.

In order to work out whether unmet need is defensible in a given case, or not, one needs to be well enough informed to be able to pinpoint the bit of the Care Act where the council has maybe gone wrong, in legal terms.

It’s not hard to do that, if you know how public law works (the law regulating the behaviour of public bodies). One simply needs to have recourse to the wording of the Care Act and Regulations to sort out the things that a council is legally OBLIGED to do from the things that the council MAY or should do – the latter are powers, and not obligations. It is by having done that exercise that CASCAIDr has produced a Care Act questionnaire with section numbers and case law included, for our own caseworkers to go through, with our clients. It provides a framework for the sort of probing of the facts, and the contents of the letter that must then be written, if one is going to access either the management review that one is entitled to expect in the case of a disputed care package or budget, (see para 10.86 of the guidance recommending this process and REASONS being stated, before a person should even be asked to complain) or the Monitoring Officer’s attention (no mention of that governance officer’s duty is even made in the Guidance!).

Whatever one thinks of the editing, however, there’s a problem in the content of Mr Feldon’s commentary, itself, in our view:  

“It is understandable that addressing unmet need per se is not at the forefront of complaints because there is no statutory definition of the term. In fact, there is no reference at all to individual unmet need in the Care Act and the accompanying Guidance. The legislation recognises that individuals will have care and support needs that are not eligible, which local authorities will mostly not meet, and these are described as ‘non-eligible needs’. There is a duty to explain the decision not to meet needs and provide information and advice to individuals to assist them in preventing, reducing and delaying needs that have been determined as non-eligible, and this must be done in writing. But there is no obligation to determine or record whether non-eligible needs are met or unmet.”

We have to disagree with Mr Feldon as to that analysis of the legal framework.

In public law terms, the requirement of identification of any needs for care and support, and then of the needs which are Care Act eligible needs, and then of the eligible needs that are going to be met by the council – means that any eligible needs that are NOT intended to be met will all be able to be derived from the process laid down in the statute by a process of elimination. If there is a good reason for not meeting eligible needs, then that is not unlawful, but if there is no such justification, its existence is unlawful. Simple, really, we think.

Here are some obviously valid legal reasons for not meeting eligible unmet need:

  • It is someone else’s duty although two agencies are empowered to provide the same sort of service. Eg health inputs when the person’s eligible needs are in fact enough to amount to the CHC construct of ‘primary health need’; housing needs when the person’s need for accommodation is not essentially associated with the practicability of delivering the care and support that is needed; education needs when the person needs the education in order to fulfil educational potential and not merely to access it as an aspect of wellbeing;
  • It is someone else’s choice to meet the need: eg an agency that is not bound to do so, but is willing – such as a CCG willing to make a health contribution to the council in recognition of needs at night being objectively health-related, or its funded input representing health-related deterioration prevention, or something like that;
  • Or, alternatively, the clear, capacitated choice, and most usually, the choice of a willing and able informal carer, or someone who wishes to contribute funding to meet the need, such as a charity, the ILF (when it existed) or the person themselves, or their finance deputy if they lack capacity. Anyone can of course, choose, still, to spend their own money or benefits on meeting their own needs, and may well appreciate that they or their loved one will get a whole lot more choice and control, if they do so;
  • The fact that the person is not ordinarily resident in the area;
  • The fact that the person has needs for a placement in a residential or nursing home and is above the financial threshold and not also lacking in mental capacity to contract for themselves (or if capacity is lacking, that person has nobody lawfully authorised and / or willing to arrange the necessary care for that person, in their own or anyone else’s contractual name).
  • The fact that the person in question, having heard what they might be able to be provided with, says ‘Thanks, but er, no thanks’.

That legal analysis is derived from the fact that s13 of the Act says this must be done, after an eligibility decision is taken: 

(1) Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2) Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

(3) Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority’s area.

This has been the law since 1995, when the 1990 legislation was first interpreted in the Gloucestershire case to turn on the council sector’s judgment as to

  • what sort of situation necessitated (under the CSDPA 1970) or ‘called for’ (under the 1990 Act) any council to meet needs determined to be eligible;
  • what constituted a rational and lawful approach to the concept of eligibility
  • what constituted a lawful approach to allowing resources difficulties to move the line (when councils could themselves MOVE that line, locally),
  • how MUCH of a service to provide to meet needs – a decision that must be based on a competent lawful judgement in the first place, not driven by a departmental limited budget.

This sort of writing was available then to anyone with the internet: (I know because I wrote it!)

“In Gloucestershire, ‘unmet need’ finally received judicial attention.  It need no longer be a matter for anxiety, for fear that acknowledging a need creates absolute liability to provide for it, such that unmet need is necessarily unlawful.  Unmet “human” need may now be openly acknowledged to arise, in fact, but it will now be unlawful in only one situation.  Unmet need outside the eligibility criteria will exist lawfully within what is contemplated by statute.  It is only if a need has been acknowledged, as such, and the authority has also acknowledged that it must intervene to provide something, but then run out of money, or otherwise failed to meet need appropriately, that the need will be ‘unmet’ in both human and in legal terms, and also unlawful. 

If this clarification encourages recording of actual unmet need, then the planning process will eventually benefit. The whole idea of recording unmet human need is to encourage service responsiveness and strategic planning for the future.”

It’s true that a lot of effort is made these days by councils to avoid even identifying that need may not really be thought of as met by what is being offered, and even more so, where the need has been deemed to be eligible. Here are some examples of how they try to get away with that:

  • Councils don’t assess needs, or eligibility, in terms of services into which the client will then be squished, just because they’ve been bought by the council in advance, any longer (in theory, at least but try telling that to a commissioner of respite or reablement services that are going spare!): the Guidance tells them not to, but this makes it even easier to be vague about the amount of any particular service that is actually regarded as needed to meet the need;
  • Councils don’t specify inputs as much as they used to in care plans, because sector leaders and think-tanks have told them that outcomes-based specification is much better for ‘flexibility’ and person-centredness. It’s true, but it also enables fudging by providers and commissioners, and reduction of one-to-one hours and other expensive elements of a package without the outcome of ‘a happy safe client’ actually being noticeably lacking – if they’re photographed on a good day, for the review!
  • Councils don’t like to record any view as to how many HOURS of need, their weekly rate is actually supposed to cover, for live-in care clients, Shared Lives clients, or for an individual in supported living or under a block contract arrangement.
  • Councils don’t evidence their reasons for setting the rate for DP clients to employ their PAs at (the law says it must be sufficient to reflect the local market and half of Europe has gone home, so it can only be going up, logically?). The guidance says it must reflect appropriate quality provision as well!
  • Councils allow providers to put unregulated workers onto tasks that have been subtly re-worded so as to avoid even counting as ‘personal care’ tasks for regulated workers only (eg by changing ‘prompting together with supervision’ in a contract or a plan, to prompting … and prompting and er, just prompting….) so even if the company is still CQC registered, many of its staff are not regulated and so are cheaper to employ.

The legal truth is that anyone who knows what they’re doing with the law can FORCE a council to acknowledge unmet eligible need. When one factors in the CP v NE Lincs case it’s even easier. That case assured all informal unpaid carers that they can actually expect the bit that they are going to carry on doing, to be recorded in the s25 Care Plan, so that the personal budget being offered, inclusive of their charging contribution, can actually be seen to cover all the rest of whatever has been identified as eligible! Or more often these days, NOT to cover the rest, rationally and feasibly adequately!

“…The duty is a clear one derived from section 26 of CA 2014 and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which … would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected.” 

Councils have been trying out prioritisation for years, out of desperation or sheer ignorant collusion with an ideology of austerity, regardless of the rule of law, and leaving it unclear as to when a priority is so low that it won’t ever be met. Here’s an example from Community Care’s back catalogue in this vein:

            “The terms of reference for Derby council’s resource panel revealed a prioritisation system is in place “to target available resources at those in the greatest need”. The system has three categories, with the lowest priority being people in the community who require a “personal budget to develop their independence, confidence and community inclusion”. The document states that the available budget will be “allocated according to these priorities” and where the budget is not available, “some requests may be held in date order and reviewed on a regular basis to consider the risks” in delaying the start of support.”

The lawyer’s comment on that at the time was this:

“It is not unlawful to use a prioritisation approach, however the wording of the policy suggests that in cases where the budget is not available, eligible needs are potentially being left unmet.”

To be clear: waiting lists within reason and when lawfully ordered, are not ever going to be easy to prove to be unlawful in public law terms – even where there is a duty to meet need – because there is also a reasonable time allowed for discharging any legal duty. So the context, the urgency and the impact of leaving the need unmet for even a short while are all necessarily relevant considerations for professional judgement, and these really pressing cases are resolved as soon as one sends a letter to the Monitoring Officer in councils where senior management has preserved any notion of ethics. It has never been legal to downgrade a duty to a discretion by treating financial difficulties as an excuse for not discharging the duty, say, unless or simply until it suits the authority better. This was established in 1997 in the Sefton case, and in the South Lanarkshire case in Scotland in 2002, where the duty to place people in residential care was emphasised to be a duty, regardless of available resources.

So it is all there, for those who want to fight back.

A third factor in complaints being low, though, is this. Faced with a county-wide ‘blanket’ cut to service levels or funds, or a ‘Take It or Leave It’ approach to indicative budgets – one would need to get over all the natural tendencies that vulnerable and dependent people invariably struggle with – eg fear of loss of current funding, or hostilities, given the power balance is hugely uneven; suspicion or even paranoia and absolute certainty that it will only go badly for them if they raise their heads above the parapet to challenge what has been done; even resigned stoicism if they read the newspapers and see it’s happening everywhere, but don’t actually know that a council is not allowed to use its budget position as a reason for not discharging the statutory duty, and that there is a LINE, under which a council cannot go, just because it is hard up!

The identification of that line, we do absolutely grant Mr Feldon, is a matter for the courts, not the ombudsman, who concentrates on poor process rather than the sufficiency or unreasonableness of the outcome – but when the process is set out in statute and regulations, and councils ignore the law, or the outcome is so choke-worthy as to suggest that no rational decision- maker could have arrived at it, if they understood how the interpretation and governance of law works, the LGSCO really has no option but to castigate authorities for maladministration – or what is now called ‘fault’. Those thinking of going to that organisation, should take heart from the statistics, and not delay.

Those natural tendencies – all deterrents to saying to a social worker’s manager, in writing: ‘Do you really mean that? That’s what’s supposed to meet my needs, then, is it?’ led us to set up CASCAIDr. Someone has to point out that all this is wrong: not just a little bit wrong, but the very antithesis of social work professionalism and values. Those values should not be able to be destroyed by austerity; they should have been able to survive councils being squeezed by central governments – of any political persuasion. In fact the profession has allowed the value of the social care safety net to be diluted by ignoring the legal truth that care planning MUST be individuated and needs-led and turn upon professional judgment, not managerial edict. If sector leaders had pointed that out to government, the Care Act might not have been passed into law in its current form, but it was, thankfully.

However, instead of delivering on its promise, its open-textured references to discretion and sufficiency and transparency have been exploited to the maximum; the discomfiture should be that some Adults Services Directors and Monitoring Officers have been very well paid for participating in that systemic dilution, whilst their employing councils still owe statutory duties to the public, of which their elected Members may be blissfully unaware.  

Our conclusion is that whilst one can lead horses to water (make legal literacy more accessible) one cannot make them drink (ie use law to enforce their rights) if the poor horse is afraid of the gate (ie of the social worker, care manager or Panel) or can’t see what’s over the other side (concerns about conflict, victimisation, etc), or is worried about whether a shoe will come off (withdrawal of the current offering) or has a rider (advocates? brokers? family member?) who just doesn’t know how to get the best out of the track (the Care Act ‘customer journey’) or the horse itself (the service user’s own views and comments).

Belinda Schwehr

CASCAIDr

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