The Care Act Easements – which side of the line is your council operating on?

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We’ve done this post, because the number of Ombudsman’s findings of non-compliance with the Care Act, as we know and love it, over the last year, suggests to us that it’s surprising that more councils in this country haven’t used Covid-19, for claiming the legal protection from findings of public law unlawfulness, that has been provided to councils, effectively, by the Easements, for a maximum of 2 years, under the Coronavirus Act.

7 councils have announced adoption, as of May 12, but here’s our analysis of what can be done lawfully under the Care Act in the ‘good’ times – and would only count as stage 2 and not needing the Easements – and what can’t – and what sort of a system for assessment and care planning therefore compels adoption of the Easements, assuming it can be justified by depletion of staff, increased demand or logistics or provider issues…

There’s a list of behaviours at the end which we don’t think could ever be defensible, even if a council HAS adopted the Easements, because public law and human rights principles do still govern all adults’ social care services!

1.  Stage 2 – ‘flexing’ on the Care Act ‘proper’ side of the Easements line

Use of a competent third party to carry out needs assessments as trusted assessors /delegates /contractors

Assessments using the telephone or video calls – because the Covid-19 context is a very good reason for departing from the normal Care and Support Guidance

Deferring assessment, whilst feasibly suitable, available and appropriate prevention and reduction services or help from willing community resources are investigated and considered

Pausing assessment once commenced and deferring any outcome to assessment, whilst trying out reablement services, equipment, counselling, prevention and reduction services, or carers’ hub or volunteer services

Offering supported Self-Assessment to those able to engage with it, before finalisation through corroboration with others – providing Care Act advocacy if that’s what ability to take part would require

Suspending face to face needs assessments, including people thought to be less than fully mentally capacitated (Care Act ‘proper’ Guidance requires that that be done but the virus may constitute a very good reason for departure), as long as a video call were still offered as a viable alternative – and exceptions are genuinely considered

Persuading, by way of accurate information to capacitated people (or their formally authorised welfare LPA holders) that Assessment would not be the best way for the needy person to proceed, given their wealth or a waiting list for provision of services based on actual scarcity

Paying genuine regard to the wishes of the individual for the manner of the assessments even if those wishes cannot be complied with

Taking account of an individual’s fluctuating needs and providing for the minimum, but assuring of immediate uplift or providing for a contingency if there is evidenced deterioration, later on

Suspending “non-essential homecare services” for people who have current support from family or friends, as long as they agree that they are willing to do it, for now

Raising the delegated authority of front-line staff to cut down delay on implementation of packages

Dropping a Resource Allocation Tool, or Panel Process for authorising spend to make support provision faster – management accounting tools and panel process are not a statutory or even recommended by Care Act ‘proper’ Guidance

Ceasing to give people an up front allocation or an indicative budget – this has never been required by the Act, and Covid-19 is a rational moment to depart from this recommended essential step in Care Act ‘proper’ Guidance, which is only guidance

Putting off charging until later, as long as basic information about likely charges and charging periods are given and the fact of financial assessment at a later point is made clear

Limiting the choice of providers – that’s legal under the Care Act other than where Choice of Accommodation rules forbid it – i.e. for home care, day care, any service where there is no right of choice other than by the means of a capacitated person choosing a direct payment to do their own commissioning, or an incapacitated person’s Authorised Person coming forwards

Choosing to regard a person as having ‘been’ financially assessed after a ‘light touch assessment’ (after they’ve refused to be assessed or have refused co-operation, or after the council has acted on evidence, with the person’s consent (e.g. as to their benefits status) regarding the person’s relative poverty)

Rescheduling reviews or otherwise failing to meet the recommended target of review ‘no less than annually’ – it’s not statutory under the Care Act ‘proper’

2.  Examples of activities which mean that councils DO NEED to claim the cover of the Care Act Easements – or else risk misleading the public, as to the current state of their rights

Screening people for the decision as to who ‘should’ be assessed under the Care Act, using criteria related to the apparent urgency or imminence of people’s problems related to health or social care issues, rather than a mere appearance of need for care and support

Applying a notion of ‘regular and substantial support’ to the question whether a person counts as a carer who could even qualify for a carer’s assessment of their support needs

Running a waiting list for assessment, based on shortage of assessment staff – that approach treats the function as a power rather than a duty, and there’s case law on that!

Using staff who are appreciably less familiar with the Care Act or social work functions for delivering assessments than those who would ordinarily be doing that task – that might be ok under Easement, as long as they are supervised by skilled and experienced staff

Omitting to provide information to those seeking assessment, as to the nature and scope of the assessment process, in advance of doing an assessment of whatever extent is now on offer

Even if your council justifies using ‘Conversations’-based approaches, normally, (e.g. by offering them up front but reverting to full Care Act assessment for those who know that they can insist on it), now – during Covid-19 times – using a risk- and emergency-based approach with new clients, or those requesting reviews: for example

What needs to change to make you safe and regain control?

– if Conversation ONE has met prevention and reduction obligations, then this next Conversation does not meet the Care Act’s approach to eligibility or to the essential equivalence of all the factors on the s1 list of wellbeing features in the Care Act. Depending on how this question were to be fleshed out, it does not seem to address all of the Care Act domains. So, it can’t be an assessment under the Care Act ‘proper’

And how can we help make that happen? What offers do I have at my disposal, including small amounts of money and using my knowledge of the community to support you?

–  this requires the Easements because it implies that there are limits, borne of what is available through that particular officer’s spending authority, to what will be allocated, and that any such small sums, or whatever is known to exist in the community will be offset for any later identification of a sum of money to be offered, regardless of sufficiency or its suitability, which is not compliant with public law principles, and therefore not compliant with the Care Act ‘proper’

How can I pull them together in an ‘emergency plan’ and stick with you (like glue) to make sure it works?

“… rather than assessing them for services, we must stick with them and not even think about eligibility or longer-term support until the immediate crisis is over

–  this needs the Easements because it risks being a more short-term approach than the Act allows at the stage of care planning and sign off, forever driving a person round and round the council’s Contact or Duty systems, instead of ensuring that the person’s assessed eligible needs are met, and the impact reduced to something less than significant, for the foreseeable future

– if the person has not even been assessed as eligible before this ‘emergency’ plan is created, then there would logically need to be a frequent reconsideration of whether there ‘now’ needed to be a ‘proper’ assessment and eligibility decision – and the lack of continuity inherent in speaking to a new person every time the person called the council would very quickly alienate those seeking help, we think…

– the emergency plan can’t be regarded as a Care Act care plan, in the absence of an eligibility decision, so the Easements are necessary here: the Care Act (as established in public law) provides for the significant impact generated by a person’s condition and their deficits in daily living, to constitute a legal status (eligibility) and – thereafter – for their eligible assessed needs to be managed down by a care or support plan which allocates sufficient resources for meeting unmet needs appropriately – and for some time into the future – at least until a scheduled review, which would normally be in one year’s time, after an initial review to check that the funded input is working

Refusing a person’s request to do a supported self-assessment – this is a right, normally, for anyone with capacity to take part in such a process – or not providing Care Act advocacy to assist a person to achieve that capacity – one would be outside the normal regulations if taking this stance

Competently assessing by some or other adequate means, but going back to the use of thresholds such as Critical or Substantial, for eligibility decision-making, from the concept of Fair Access to Care Services guidance, pre-Care Act

Scoring domestic, leisure, recreation or community inclusion aspects of daily living as less important, somehow, than keeping an obviously dependent person safe and hygienically managed

No longer following the original Care and Support Guidance, without anyparticularly good reason – the Act allows it to be disregarded, if it is merely inconsistent with the new Easements specific Guidance, but that must mean for those councils who have adopted the Easements

Taking a person’s access to willing informal support as relevant to the IMPACT of their condition or difficulties, and therefore to their eligibility for a budget – and not merely relevant to the evaluation of what is needed to meet the shortfall in means available to that person to meet their needs – Care Act ‘proper’ Guidance forbids that approach at the assessment stage

Not providing a written reason for an eligibility decision, one way or the other – that’s a duty, normally, under s13

Not involving an informal carer in the assessment of a person asking for services – that’s a duty, normally, under s9

Making a written record of whatever new form of assessment is in current use, but not sharing a copy with the client – that’s a duty, normally under s12

Departing from Choice of Accommodation rights – those are a duty-based part of ‘business as usual’

Writing up a care plan without complying with s25 of the Care Act ‘proper’, as to contents – Easements Guidance says that’s acceptable as long as the provider knows what is required of it

Leaving charges out of a Care Plan under s25 – Easements Guidance says that’s acceptable, as long as the council’s stance on whether it will be retrospectively financially assessing is made clear

Letting people without a welfare power of attorney make decisions about what is best for their incapacitated relatives, and for example to refuse services for the needy person on the basis of cost – we doubt that even the Easements can make this acceptable, but that’s what has been put into the Coronavirus Act!

Blanket suspension of Transition Assessments of children approaching adulthood – normally a duty under the Care Act ‘proper’ unless a council explains why not

3. Practices or policies that even adopting the Easements could not conceivably legitimise, because public law and human rights principles will not permit it!

Disregarding the original Care and Support Guidance without formally adopting the Easements and then following the specific Easements Guidance issued under the Coronavirus Act.

Trusting people with no knowledge, experience of social services or the Care Act, or human rights, to do assessments, and without supervision – incompetent assessment would defeat the statutory purpose

Refusing assessments altogether, in terms of new requests – this would defeat the statutory purpose altogether and fetter the exercise of the remaining power to assess, which is unlawful

Refusing requested reviews, regardless of the strength of the evidence regarding a change of circumstances – this would defeat the statutory purpose altogether and fetter the exercise of the remaining power to review

Refusing assessments when requested, on the footing that the council is only assessing people if they meet criteria of a blanket nature – e.g.  have no-one at home with them’ or have an IQ under 70, or are ‘known to be severely mentally unwell’, or have ‘a formal diagnosis’ of a condition on a locally drawn up list – or ‘is ordinarily resident’ – or only if they ‘have NRPF’ as part of their immigration status; all these approaches would all be a fetter of the remaining power to assess

Assuming that mental incapacity is not relevant to the manner of assessment that should be offered – this would be irrational in a public law sense, as it is a self-evidently relevant consideration

Treating wealth above the upper capital threshold as a reason for refusing an assessment – this is not permitted by the original Care Act OR the Easements

Running a waiting list for assessment based on shortage of assessment staff and ordering this list irrationally, according to features of the person or client group, in the context of the statutory purpose (e.g. hair colour, alphabetical order) – this would be unlawful in a public law sense

Leaving a person waiting for whatever form of assessment IS being offered, for an unconscionable period, given the evidence as to the urgency of their unmet needs, or imminence of serious impact to their wellbeing – this would defeat the statutory purpose or be regarded as irrational or as unfair OR as a breach of human rights

Suspending Care Act independent advocacy rights – this is not permitted by the Easements for REVISIONS and may not be permitted by public law or human rights if a council is CHOOSING to assess/care plan, because involvement is part of underlying legal principles anyway

Systematically excluding or completely ignoring domestic, leisure, recreation or community inclusion aspects of daily living from scoring systems for who gets help and how much help – the power to apply a human rights based approach to needs does not permit the blanket exclusion of these aspects of need – article 8 and article 3 are relevant here and people must be allowed to assert that assumptions about what matters to most people should not be applied to them; also the help must still be rationally sufficient and appropriate to the needs, in order to meet public law requirements, regardless of the Easements

Using a computerised resource allocation system as the only determinant of what people should get by way of a finalised budget – public law does not allow the use of a resource allocation system for the determination of what would appropriately meet needs of an individual, after those needs regarded as eligible for meeting have been identified – the most relevant consideration for a finalised budget is a reasonable evidence base for the going market rate for services of the amount, skill factor and character in question

Suspending direct payments as a route for deploying a personal budget – direct payments conditions for the choice of that deployment route have not been affected by the Easements

Imposing direct payments as a route for deploying a personal budget – the requirement of a person’s capacitated request for a direct payment has not been affected by the Easements and provision is still the default method

Revising people’s care packages by standard letter, simply informing them of a change – this is still a breach of s27(2) (service users) or s27(3) (carers) and changes without involvement and compliance with these sections of the Care Act is specifically forbidden IN the Easements guidance

Refusing to ‘involve’ service users or carers in any revision of a care or support plan – see the last example

Cutting a care plan simply because particularly vital services have closed, due to social distancing – the fact that the services are no longer available, is of no legal relevance to the existence of the needs (i.e. the deficits in daily living activities, generated by the person’s condition) or the impact to wellbeing being sustained through not having access to the services, so the council must identify a realistic alternative in the interim, if a breach of human rights would otherwise arise. We do not think it is acceptable to force carers into unpaid service, just because they are at home, but the council is still the decision-maker as to the needs

Suspending Safeguarding functions or preventing anyone who has been assessed or care planned for, from suggesting that the outcome of the process constitutes a safeguarding concern – this is not permitted by the Easements and safeguarding is a duty that cannot be delegated, and such referrals are a backstop way of managing legal risks, anyway

Making a written record of whatever new form of assessment is in use, but not sharing a copy with the needy person – this would be a breach of public law and human rights principles for involvement and participation, even if the Care Act had never existed (unless psychological harm to the person was apprehended)

Not writing down the assessor’s thinking on assessment, at all – this would simply be evidence of incompetence and make getting a service organised, impossible, defeating the statutory purpose

Taking the view that the willingness of an informal carer (or otherwise) to provide care or support is not an essential conversation to conduct, when evaluating the situation of the needy person – we think that this contravenes the carer’s human rights and would be contrary to public policy, because it would create disproportionate risks as between vulnerable adults and unwilling stressed-out relatives

Taking a blanket approach and deciding that there were no circumstances in which a close relative in the same household should be permitted to be paid to meet the needs of an eligible cared for person, regardless of the circumstances and consequences – a fetter of discretion on an aspect of the Care Act not affected by the Easements; a potential breach of human rights; and ignores the fact that the person’s close relative may be the only feasible way of meeting the needs regarded as eligible by the council, and that nobody can be made to work for free in this country (yet)

Putting down the hourly rate for direct payments clients for paying PAs, during a time of scarcity of care staff, without an actual evidence base for believing that people will work for less – this ignores the most obviously relevant consideration for the determination of what amounts to a sufficient budget to meet the needs, and ignores s26 of the Act which is unaffected by the Easements

Using anything other than a rational evidence basis regarding the current market rate for securing services with which to meet whatever needs of the individual have been regarded as compelling the use of the s19 power to meet needs – this would be a breach of public law case law that was established long before the Care Act (the key principles being rationality and transparency)

Applying an arbitrary financial limit to any individual’s finalised budget – this amounts to an institutionalised, systemic constraint on professionals’ evaluation of what is needed to meet the needs selected for being met

Applying an arbitrary / fettered / blanket approach to any decision as to what sort of setting would be appropriate for an individual, whether by reference to cost, registration status or the age of the individual – see above, and it’s a policy that can amount to disregarding the obvious fact that it cannot ever be said that all people in every area CAN feasibly be regarded in professional terms as ABLE to get their needs met appropriately in given settings

Disregarding the Mental Capacity Act – the Act is unaffected by the Easements during Covid-19

Ignoring the duty to promote wellbeing in relation to any assessments, reviews, care planning, sign offs of any packages or revisions that ARE done – section 1 is unaffected by the Easements

Ignoring case law on human rights in the context of social services, when discharging assessment and care planning functions – this is clearly indefensible in legal terms because of the way in which the Easements specifically make Human Rights into ‘the’ bottom line criterion for the continuing s18 the duty to meet needs

Ignoring professional concerns in the face of obstruction by any third parties who do not seem to have the best interests of an incapacitated or vulnerable needy person in mind – this would be abdicating professional responsibility in the face of evidence that would alert any ordinary reasonably competent professional to the need to consider intervention over the top of those third parties, through safeguarding or recourse to the Court of Protection or the inherent jurisdiction of the High Court

Not providing a clear and transparent route for people with care and support needs, carers and providers to quickly raise concerns should they believe either the decision or the care package is in breach of the European Convention on Human Rights – this would be disregarding an edict in the Easements guidance which is expressed in mandatory terms – we recommend the PSW, the Director or the Monitoring Officer, not Complaints

Refusing to take contractual responsibility for clients in respect of whom there is no willing and able provider to take or keep the person into a care home, in order to care for them for the remainder of the required isolation period, post Covid-19 illness – this would be ignoring human rights, and the fundamental notion in the Care Act that there is a social services safety net in this country and ignoring the fact that the NHS has been committed to paying for every single person’s post-hospital stay follow-on care, by the Hospital Discharge guidance.

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