CASCAIDr’s Q & A fund-raising campaign for 2020

Every year we raise money for the London Legal Support Trust – which supports voluntary sector organisations which provide legal advice about welfare law.

And that includes us, of course – so helping the LLST, helps us – and we really appreciate whatever you can donate this year.

Normally we walk a long, long way, but this year, we’re doing 10 days of answering 10 challenging LEGAL questions, instead.

These will be put up on social media, and as replies to questions posted, roughly one an hour between 9am and 7pm, for two weeks, with time off at the weekends!

They can be about the System in General and Advocacy (MON 28); Assessment and Eligibility (TUES 29); Budget Sign-Off and Care Planning (WEDS 30); Cuts and Revisions (THURS 1) and Supported Living, Ordinary Residence, and Housing Issues (FRI 2).

The second week, on the day the LLST  Walk would have happened, we’ll be doing Covid-related questions, Easements and Carers’ issues (MON 5); Mental Capacity and Choice (TUES 6); Direct Payments, “Managed Accounts” and Health Budgets (WEDS 7), Continuing Health Care and s117 aftercare (THURS 8) and Charging and Financial Assessment (FRI 9). Oh yes – and Human Rights, at any time!

They’re all drawn from the work we do daily (and we’d soooo love to be asked one that’s new! – if you’re up for that personal challenge!?)

Every day, at 1pm, the 3 juiciest questions in the subject areas above, will be answered and discussed, and the video made available on YouTube.

We want to get the sector talking about law again, in this era of ‘anything goes’, and we will do whatever it takes to make it interesting!

The ground rules are as follows:

No question can be more than 100 words long.

It can be made up of several parts, but that’s the limit.

You can post a question HERE below, in the Comment box, anonymously, or you can leave your name on it – it’s up to you.

We want you to anonymise the name of the council or CCG, or care provider, AND the name of the person it’s about.

We won’t feature your question if you’re really asking for legal advice via this route, about a specific problem. We want you to make your question a GENERAL one, in terms of the wording please, and we have to trust you to do that.

We’re doing this because even though we can’t walk during social distancing, we can use what we know, to spread the word even further, about people’s rights – right to something that most people had hardly heard of, before Covid – whilst others have always had to depend upon it, and local authority’s grasp of the legal framework underpinning it, for a decent quality of life, independence and dignity.

The law needs to matter! Otherwise, who gets what is just arbitrary, and able to be manipulated.

That is not fair to the fearful, the uninformed, or to incapacitated people

and nor is it fair to the tax paying public, either.

We want questions from service users, family carers, care providers and social workers please – from advocates, care and support brokers, direct payment support staff, peer support groups, other charities and from any activist law firms or campaigners.

No holds barred, as long as it’s on one of the topics set out above!

Our aim is to inspire 1000 people to give £10 each.

If we succeed, we can become a proper law firm, acting through authorised solicitors, with a regular crowd-funding capacity – and therefore extend our support into the issue of judicial review proceedings, without recourse to the legal aid system.

We think that that will have an impact on the local authority and CCG world of resource allocation and commissioning. More than that, though, we hope to revive interest in legal principle, as a strategic tool for ensuring that we do all GET what Parliament intended, even if no political party in living memory has ever fully funded what it collaborated over legislating for.


HERE, please, not our usual button on our website, please – CASCAIDr’s Virgin Money Giving fundraising page link for this campaign can be found, here:

Here is an example of the sort of question we mean, below, where one would normally put a Comment:


  1. Can councils lawfully offer flat-rated levels of respite to family carers of adults being cared for at home?

    What if the council announced that service users or the family would be able to evidence WHY they think they needed more than that, when seeking a Care Act assessment or a revision of the care or the support plan?

    Would it make any difference if the amount being offered was banded but determined by something bizarre, like the age or weight of the person in need?

    • Respite is what we call filling in for when a family or otherwise free carer simply isn’t available. So no council can make a flat rated off the FINAL Be All and End All offer, because everyone’s family is in a different situation as to what anyone is willing and able, objectively, to DO. Councils DO make such offers as a means of appearing to treat people fairly, but it isn’t within the Care Act and it tends to obscure the fact that care plans have to be individuated for the service user in question.

      A council that wants to be transparent and not exploit people’s general unawareness of their Care Act rights SHOULD make it clear that it knows that it has to take all relevant considerations into account and engage with why a person needs more inputs to give the carer a break for sustaining the care in the long term, or otherwise cover gaps – but only to meet ELIGIBLE necessary care needs, not simply EVERYTHING the carer WAS doing.

      Banding of flat rate general offers is better geared to different levels of stress that carers will be sustaining, so is better in public law terms than a bald flat rate, but of course if the banding for who gets what is bizarre and irrationally structured, the system is much more clearly unlawful and can be challenged via judicial review.

  2. In what way does the Mental Capacity Act matter for carers who are all related to a person who they are touching for personal care purposes?

    Also, does it apply to them in the same way as it does to people who are paid?


    • Yes the Mental Capacity Act applies to everyone in one important sense: it protects against legal action for having done the right thing, when someone else disagrees. Anyone can find themselves in the position of feeling that they need to lay hands on a person for the person’s own good, when they think that the person isn’t fully ‘with it’ for whatever reason to do with impaired cognitive functioning. Touching people without their consent, IS an assault, so the Mental Capacity Act solves that problem by OFFERING a cloak of legal protection to those who bother to follow it properly.

      We all have the right to take action and touch someone without their consent, if we are conscientious about following the Act and the Code, and therefore we all have the need to understand the building blocks that the presumption of capacity for all of us in all our decisions, rests upon – because we all need to be able to explain, if challenged, why we thought we were acting in the best interests of a person lacking capacity, and why we thought that they did lack it at the time, on the issue in question.

      A son who bundles his mum into a car to take her to hospital when delirious from a UTI is acting under the MCA. A Dad who does the ritual shaving of his adult son for religious purposes and whose relatives help with restraint MAY be acting under the MCA. A sister who agrees that a key safe should be put on the door of her Dad’s house so that the social services commissioned carers can go in to the house without disturbing him, is acting under the MCA. Doing so, provides a defence to any claim for assault or trespass or other civil law wrong (other than negligence) or a crime.

      The only way a person who is not being paid would know about how to do this is by reading the code that goes with the Act. The Code ITSELF this: “… the Act applies more generally to everyone who looks after, or cares for, someone who lacks capacity to make particular decisions for themselves. This includes family carers or other carers. Although these carers are not legally required to have regard to the Code of Practice, the guidance given in the Code will help them to understand the Act and apply it. They should follow the guidance in the Code as far as they are aware of it.” [AND IF THEY DON’T, well it’s very unlikely that their loved one is going to sue them, it could have said!]

      What is different for paid professionals is that they are legally required to follow the code by the Act itself. So, for them, failing to follow the code is not just daft, in terms of opening them up to legal redress but something that can be laid at their door in professional regulation enquiries.

      It’s true too that professionals are more likely to be sued BY a family member who disagrees with what was done, because they are insured in their roles, than is a family member BY the incapacitated person, if there’s nobody else to take an interest.

      However, family members who are deputies and attorneys, or being paid at all to care, through the direct payment are also included in the list of people who are legally obliged to follow the code.

  3. There was a decision in the Supreme Court – Poole v CN and GN. Councils and Claimants say this case means opposite things about liability for failing to do anything about children being abused at home and by third parties. So, others with histories of abuse don’t know whether they are coming or going. What do you think of the results of that case? People don’t understand the time limits that apply to an action in negligence for harm or failure to confer the benefit of safeguarding or removal from the home – or whether it’s better to go to the LG Ombudsman, either. Really happy to donate.

    • We don’t do that kind of law I am afraid – liability for negligent failure to provide proper scrutiny of children, whether the abuse be from their own parent(s) or a third party. However, the Poole case has implications for, and drew on, a far wider body of law that has always made it hard for people to turn statutory duties into actionable causes of action for damages/compensation/redress. So for instance, housing authorities, adult social care authorities, the police, the NHS have all been sued in cases that have then contributed to the development of the case law. Councils’ lawyers were happy that in the end, the children’s case was determined against them (there was no assumption of risk, such as to provide the groundwork for a duty of care to be said to have arisen) but claimants’ lawyers were actually happy about it as well because the Supreme Court decided that it was not the case that a council or public body DOES NOT EVER owe a duty of care within the context of its statutory duties owed to groups of people, and that means progress for claimants in general.

      The court agreed that it would be more likely that a case would be allowed to proceed where a body has created or added to the harm by what it’s done arguably negligently, rather than where it’s simply made a decision under the statute that the person doesn’t qualify for this that or the other (even if that is safeguarding intervention which would not necessarily have been welcome). Where a social worker has failed to identify the facts of a situation, negligently, or made a judgement as to the rights and wrongs of a situation, which is professionally negligent, or the council has bodged the response to a judgement, it is therefore POSSIBLE that a child may have a cause of action, but we cannot and do not advise on that area of law. What we can say is that a child is not affected by the limitation period that would normally apply to personal injury actions unless and until they are 18, in which case it’s then 3 years unless they are THEN still under a cognitive disability. We can also say that we would be astonished if the LGSCO ever accepted jurisdiction for this sort of matter; that office does not have to if legal proceedings are available, and an ambiguous state of the law would be a very good reason for not exercising the discretion to accept the responsibility in the first place.

      We ARE interested in the Poole case regarding the impact of these legal developments on ADULTS’ services. The current position in adult social care is that a person cannot bring proceedings against a council for negligent social work – negligent decision making under the Care Act, or for safeguarding omissions either. So all that waffle about a duty of care that one hears in social work is just rubbish. There is a duty TO MEET NEEDS appropriately but it sounds in PUBLIC law, not private law. However, we think that it might be possible after Poole, to contend that the person IS owed a duty of care, and that in a really bad case, of inadequate inappropriate services, based on assessments or care planning that was negligent, and not just unlawful, or where for instance, stuff that councils CAN do in safeguarding was just not considered because the staff were completely legally illiterate, the courts would drive the law forwards. However, it’s not necessary for them to do so, given the development of the law of restitution, which we would love someone to ask us a question about! Thank you for this one, and your donation.

  4. Orders are often sought, and made (often uncontested) for DoL in the community in so-called supported living houses for clients with ASD that permit use of frequent and forcible physical restraint on a regular basis in someone’s own home, often with three staff working with the person at once. The housing is outside of CQC’s regulatory remit; a deputy has signed the tenancy. Can this be challenged? And during Covid, care providers are using ‘best interests’ for disallowing visits from family, or expecting curfews to be complied with by the tenants. What is the law here please?

    • We will answer this one on Friday, when our topic is Supported Living, Housing and Ordinary Residence issues, if that’s ok?!

  5. Hi there, I have 3 questions that are all somewhat related. Hope it’s ok:

    Does a person have to consent before an assessment can be done?

    Does assessment under the Care Act have to be done by a social worker with a specific qualification?

    Does assessment under the Care Act actually have to be someone working for the council?

    • We will answer these questions tomorrow Julia when the topic is Assessment and Eligibility, if that’s ok?

  6. What do councils have to do in terms of the care and support decisions that they have to make under the Care Act in order to be successfully taken to judicial review?

    • Thanks Rob! I have spent my life thinking about that but from the opposite angle, funnily enough! ie what do they have to do in order to avoid judicial review, because if they know that, then they’re practising lawfully!

      In this country, the rule is that public bodies’ decisions are assumed to be valid and proper, unless challenged, but they do have to act competently, transparently, rationally, with an evidence base, lawfully, fairly and compliantly with human rights, to stay on the right side of the law. Those are the areas on which anyone challenging a decision needs to focus.

      Councils are also obliged to have regard to and act under the Guidance unless there’s a very good reason not to, and for instance the Guidance says they must be person-centred and needs led, and not avoid difficult conversations or avoid addressing relevant material put to them en route to finalising a care plan. They have to try HARD to secure agreement but they don’t have to actually get it, and there is no appeal. They are however, always subject to the law of judicial review, fortunately. That happens in the Administrative Court, a court that isn’t an appeal court, but which scrutinises the way in which a body with a duty to decide something, under statute, has actually discharged that responsibility, holding it up to well established principles decided over many years.

      To win a case a person has to point to something CHOKE-WORTHY, EYEBROW RAISING so far as the judge is concerned, or to an error of LAW or other daft mistake like a policy having been allowed to firm up into a rule, which is called FETTERING. Judges interpret legislation too, when it’s woolly, and decide whether woolly statutes can be read so as to incorporate human rights, or simply can’t, because in fact our Parliament’s intention was sovereign, and it’s clear that acting contrary to Human Rights was what Parliament thought was required.

      During Covid, the Care Act has been suspended and modified, but Human Rights are still the bottom line.

  7. Is it legal for a Council or a CCG to refuse to meet someone’s eligible unmet needs whilst a dispute is still grinding on about the final budget or a complaint is being considered?

    • Nope, of course it’s not legal – not for councils under the Care Act, see para 10.86 of the Guidance – and it’s a moot point for CCGs, where if the person’s STATUS for CHC is at least acknowledged, and the dispute is about the care plan, we find we can generally reason them into action, rather than have to engage lawyers.
      But this needs unpicking a bit.
      A public body does not need AGREEMENT to finalise a budget. It can name one and say ‘there you go, judicially review us if you don’t think it’s lawful, but this is it – that’s our final offer’. However, the guidance for both the Care Act and the National Framework for CHC decries arbitrariness and requires a degree of engagement over the rationale for the amount being offered, and that’s because public law requires there to be a rational, coherent justification for any stance that £x will meet the relevant needs appropriately and sufficiently. The judges are ultimately the decision-makers about THAT.
      So, during the dispute or the complaint, the undisputed bit of any budget MUST be implemented – the assessed eligible need must be met in the interim, if it is unmet and the impact is still significant. Even if a dispute has arisen even prior to an eligibility decision being made, or before a re-assessment is finished, s19 always provides legal underpinning for meeting urgent needs in the interim, and sometimes the facts may amount so obviously to eligible needs that the power may turn into a duty, in reality, because there’s only one way to meet that need and everyone agrees that that is the case. If the dispute is about a package that can’t be split, like a placement in a particular setting, or a move away from one, all parties need to act swiftly, use the Monitoring Officer route for expressing the stance being taken by officers or a panel, and be prepared to take legal advice directly, because of the time limit for judicial review and the fact that placements won’t be held open indefinitely.

  8. Does the Care Act guidance count as law? i.e So that it’s stuff that has to be obeyed by councils as if it was all in a statute?

    • Thanks for that question Kerry, and your donation.

      Current social care guidance is virtually mandatory for councils – (unless the council has chosen to adopt the Covid-19 Easements, but none have gone back to that option right now, as far as we are aware, September 28th) but there is no practice-based culture of reading it line by line – no-one’s got time, it seems. We can only say virtually mandatory, because no guidance is absolutely binding; it would not be ‘guidance’, if it was – it would be LAW. But what this means, in legal terms, is that if a council’s decision makers don’t know about it; or don’t appear to follow it; or don’t explain why they are not going to follow it in a given case – then the council would be open to judicial review… and if it were to lose, the funding decision or any other kind of decision affecting the person concerned, would be invalid, and would have to be taken again, properly, though, second time around.

      Where the Guidance says ‘MUST’ or ‘MUST not‘, that’s been put in because of an actual duty in the Care Act or regulations, ie there IS a LAW. Where it says should or may, it is referring obliquely to a discretion, or a situation where a duty turns on a judgement that an officer needs to make, and will be allowed some leeway over. OR a ‘should’ might be referring to the government’s preferred policy, even if there is no national duty, and that’s the sort of area in which a council needs a good reason for departure. The guidance has to be kept up to date to match newly decided cases, but one doesn’t see too much evidence of that and it takes the DHSC a very long time. For instance, the Redbridge and Merton and NE Lincs cases could all be in there by now even if not named, but no changes have been made that we can see that translate the principles in those cases into the Guidance. WE think it would be a lot better if the Guidance had some references in it to the law it is supposed to reflect so people could see what is rhetoric or aspiration, and what is actually a right.

  9. If someone just fills out the ‘supported self-assessment’ form they’ve been given and doesn’t really understand how it works/struggles with getting the form done at all because of the effects of their disability, can the local authority decide that they aren’t eligble just on the basis of the contents of that form alone?

    • A council should not have given anyone a self assessment form in the first place if the person’s capacity to participate in that sort of a process was in doubt.

      An advocacy decision should have been made before the decision whether or not to give the person a form (for anything other than preparation purposes), for a start.

      A face to face assessment should have been organised if there was some concern about cognitive impairment (see the guidance).

  10. Hi there.

    My team and I hear a lot about the Care Act being person centred and needs led. So does that mean that there’s a legal duty to allocate funding for what people WANT or even to make sure the package achieves the client’s personal outcomes?

    • No, that’s not what the duty is, at all, it has to be said! The effect of adult social care law is that people get what they are regarded as needing, and that’s different to getting what they want or what makes them pleased with their lives.

      We get that people could easily be led into believing that they will get more choice and control than that. The guidance says that the core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life – HELP them, not deliver it. The law is full of references to promoting wellbeing, starting off with the assumption that the person is their best own judge of well-being, identifying the needs but also the outcomes, but again, that’s just a duty to have regard to these things and the weight to be given to them is for the council. The regulations require assessors to have regard to the person’s wishes and feelings and their outcomes. The guidance says it is likely that some aspects of wellbeing will be more relevant to one person than others. Here’s another excerpt: Local authorities should adopt a flexible approach that allows for a focus on which aspects of wellbeing matter most to the individual concerned. And the last bit of the legal framework, the case law from the courts, puts all of that together and in a case against Merton Council the court said that an assessment that ignores the need to take account of the person’s preferred outcomes makes an assessment invalid – eliciting them, if nothing else, to be lawful.

      But the bottom line is that the guidance and caselaw specifically stop short of any obligation to go further at the care planning stage, than the statutory outcomes – meeting the needs, not the wants, and only meeting the needs appropriately and adequately.

  11. Is it legal for a council to say that it just doesn’t commission or fund services such as shopping, cleaning or transport services?

    • No, it is not legal to say ‘We don’t do this or that or the other’ on those particular types of service.

      Countless Local Government Ombudsman reports have explained that since the Care Act explicitly covers care and support and facilities, and the guidance exhorts councils to read the bald words of the eligibility domains in an inclusive way, (such that maintaining nutrition can’t be read as excluding accessing it, ie through assistance with shopping) (and the same sort of thing can be said about the domains accessing local facilities and maintaining a habitable home environment) it cannot be lawful for any council to set its face completely against the possibility of people having unmet eligible needs for precisely those sorts of services.

      Councils cannot TELL people to spend their own benefits or own money or such things either, in the context of assessment, or even that a person COULD, if that possibility is being regarded as enough to negate their eligibility. They can incentivise people to spend their own money by a special charging policy related to services defined as ‘non-care services’ in the charging regulations, if they have adopted that after due consultation, but that is all.

  12. A council currently commissions an adequate, competent specialist service, after a long CoP struggle better conducted in the Administrative Court, but neither client nor carer qualified for legal aid. The formal WRITTEN plan created after the case was not shared until much later, and it does not reflect the actual service, but set out far less. The council now intends to review that factually inaccurate Plan along with a revised assessment from the days of the court case, but these documents reflect neither the needs as currently seemingly understood, or the package that’s actually been commissioned in the past year.

    • The idea that a council would waste time working from assessments that were actually NOT what they finally based their decision on, in order to meet needs properly, or review a plan that is not in any sense an accurate reflection of what the council buys, is beyond my comprehension. The only thing to do, in my view, is to write a firm letter to the head of service at the council, and the legal department, pointing this incompetence out, and giving them a diary of exactly what the person gets by the week or month, so that everyone is working from the same plan, at least. If they say that they can only work from the documents that they have GOT on their system, you need to say to them that s27 provides for a review of the PLAN, and a revision only after a proportionate re-assessment. This must be regarded as a situation in which there’s an obvious need to start again, because the fact that the current services differ, by necessity, and at the behest of the council itself, so radically from its last set of paperwork, and so different from the current circumstances and package, would make for an inevitably flawed outcome and an indefensible decision on what the service user needs going forwards, and you’d all end up back in court again.

  13. Is it legal to make a person wait and wait and wait to have their needs met until the proposed budget has been approved by the decision-makers on the council’s ‘risk enablement’, funding or ‘quality assurance’ senior managers’ panel? This can tend to take up to 12 weeks before they come to a decision?!

    • No, it is not legal, although there is no legal maximum length of time laid down for a finalised assessment or care plan. What we can say is that lengthy delay for process reasons that ARE within the control of the council would be regarded as maladministrative or deliberate.
      If it turns out that the panel is just revisiting questions that the front line worker has already investigated and expressed an opinion about, then it could look as if the panel was just playing for time, and then that sort of delay would be unconscionable, in the context of a clear finding of eligibility for help.
      The test of eligibility focuses on significant impact arising from inability to achieve two or more prescribed daily living outcomes (achieving meaning achieving without assistance, significant pain, distress, anxiety, or risk to self or others, or an unduly long period of effort). Once needs have been found eligible, the s24 – s26 duties arise, and the duty to meet unmet eligible needs does not depend on funding approval or sign off of a budget. Panels may be the decision-makers as to HOW to meet the need, but if they leave it just up in the air for a long time, for no obviously good reason they will be challengeable by way of Judicial Review, and restitution can now be claimed to cover the period over which the need should have been met.
      Doing this is asking for trouble, too, given the recent Redbridge case, on the need to provide an interim response to urgent needs, even before an assessment has been completed, let alone a care plan.

  14. Can a council actually have practices and policies that basically come down to saying ‘We always… ‘ or ‘We never…’ ?

    • It’s a basic principle of public law in this country that where councils are GIVEN discretion, or room for judgment, evaluation and consideration, and when they have powers as opposed to crystal clearly worded bald duties, they can give themselves some guidelines for consistency, between staff, or to advise the public as to how they’re thinking of exercising that discretion.
      However, public law says that those guidelines cannot ever firm up into rules, or absolutely invariable practices. A council was once put to the test on this in a real case, by being asked to identify any exceptions it had ever made, when it said it just had a policy – and when it could not, the judge said ‘Well then, that’s become a rule, hasn’t it?’ and held that the council had fettered its discretion. A great example of what councils would be daft to say therefore is that they NEVER allow people living in the same household to use the direct payment for the care of the recipient to enter into an employer / employee relationship. The regulations provide for a discretion to be exercised on the grounds of necessity so a council must hold itself open to being asked for that discretion to be exercised, and must consider the facts and provide basic reasons for saying no, if it’s going to.

  15. How would your lawyer turn around civil litigation by an NHS-whistle-blower against defamation and losses as well as Govt failure to uphold rule of law (“systemic issue” said Jeremy Hunt in 2018) – in order for it to be about the actual failings in and absence of in-depth social care at the Trust where said person had to make a public interest disclosure re safeguarding – after you found a competent legal aid firm in the first place (an apparent oxymoron in the person’s experience)?

    • We would know that there are provisions that enable the CQC with the permission of the Secretary of State to investigate a council, and hence its delegate the NHS Trust, here mentioned, we assume, for failure to discharge its functions properly, as nearly happened to Norfolk in 2016. But if Jeremy Hunt said no to that in 2018, that decision could have been judicially reviewed at the time, but it is too late now. In Norfolk’s case an anonymous report under the auspices of SCIE was produced instead.

      We would know that the Public Interest Disclosure Act provides for its own remedies, and we can’t guess in what context that set of protections could have turned into civil litigation for defamation. We would know that there is no legal aid for defamation. So I have to say I don’t think that we could help the person in question, sorry to say. When we morph into a law firm we will sometimes have to tell people that they do not have a case that is likely to succeed, after 3 hours free triage, if that is what we think, and we are really used to explaining ourselves by reference to cases and legal principle, so that people won’t waste their money.

  16. If a person has a package of care that includes shopping for a person who is housebound, can the authority or care agency refuse to purchase certain goods e.g. Alcohol?

    • If the person has mental capacity to understand the consequences of what it is that they are asking to be bought for them, no. If the person has Korsakoff’s, (alcohol related dementia) advanced enough to have damaged the cognitive building blocks necessary for holding on to the presumption of capacity, then yes. And if the person is a recovering alcoholic, with mental capacity, who is just not able to resist asking, no care provider ought to say yes to the recipient of the service to doing something that the manager of that service would regard as being likely to harm the person. That might lead the provider to say that in all conscience, they cannot continue to provide the service, because they appreciate that the person has got capacity, but the integrity of their service and its ethics is a wider responsibility of the manager. In commissioning vs direct payment terms, the difference is that the council can say to a person ‘We will meet your needs, as it is our duty, but it is subject to reasonable conditions, one of which is that you don’t expect the service we commission to collude with you in continuing to do yourself harm – do you get that?” Whereas with a direct payment service provider, the person will be the direct customer and will have to have that out with the manager themselves.

  17. What if a health professional states my learning disabled adult child does not have the mental capacity to sign an LPA, but lawyers advise that their mental capacity is not diminished enough to make the awarding of deputyship a likely outcome? Can both things be true? And how do I have a voice regarding their best interests if so?

    • If we may say so, that is a dilemma that we are finding more and more examples of, so much so that I get the feeling that the local authority world has hit upon it as a means of having it both ways. Let’s unpick it: the decision to grant an LPA is not a decision FOR a health professional, in the first place, unless some objection based on capacity has since been made, or if it’s a safeguarding issue and the investigator is making a decision as to whether to report the concern to the OPG.
      The person doing the certifying for an LPA is not certifying that the person has GOT capacity but that knowing them as they do (minimum period 2 years) there’s nothing about them at that point that gives them reason to believe that they person LACKS capacity. On the other hand, it is quite possible in theory that one’s family are agreed that one has insufficient capacity to understand the effect of power of attorney – to last past incapacity, over what might be a sizeable set of assets, all dear to the family members, (if we’re talking finance and property LPA) and yet the family still struggle to get a DOCTOR to get to grips with articulating exactly why s/he agrees that that is the case, and put that down in writing in the necessary Court of Protection form for deputyship.
      If the person is agreed to lack capacity on a specific spending or other LPA issue, then you may have power as an appointee over the management of their benefits, regarding just that portion of their assets, regardless of their actual capacity. But the starting point is that the council is not the decision-maker on either form of an LPA!

  18. I am not getting at the whole lot of them but Care Act independent advocates are paid by the council, so how can they really be independent?

    • People do find it very hard to accept that advocates paid by the local authority ARE independent. But they surely wouldn’t think it so very odd that a prosecution barrister is paid by the Crown Prosecution Service but is still independent and must not mislead the court if they know about evidence that someone is not guilty. So with all due respect, we think that this perception might just come from unfamiliarity with advocates, and what they have to do, and that they’re answerable because of fulfilling a defined statutory role under the Care Act.

      The independent advocacy service is funded by central government. We don’t think that that money is enough or even ring-fenced, and that this means that councils then decide how much money actually to spend on commissioning advocacy for the area, using their ordinary commissioning power to pay as little as possible for it. But they should know that this is a mandatory legal duty to buy enough of it, in cases where the legal criteria for it are in met, and that without it, whatever Care Act process had triggered the need for it will be invalid, for illegality, if anyone challenged them.

      The individuals who do statutory advocacy work are in our experience personally independently minded; and they’re aware that they are appointed to discharge a statutory role; they are not employed or under the control of the council. They are often employed or paid by a body that has been commissioned by the council, to supply the advocates; they’re more likely to feel as if they are under the control of those employers, not the council.

      But the bottom line is that they have to abide by the advocacy regulations and do what the statute says as individuals. They can’t be used as cheap social workers by councils, and they can’t be told what to do, think or say. They are not decision-makers; they are buffers and sounding boards for improving the objectivity of the decision being taken where the person at the heart of the matter has substantial difficulties in engaging with the process and has nobody else willing and appropriate to support them, informally.

      The bigger problem we sometimes think is that the knowledge base for being an advocate is not likely to include enough Care Act law. The agencies that employ them aren’t always paid enough to ensure that their legal framework knowledge is being updated all the time, and if you don’t know what you don’t know, you can remain in that sort of fog for years, however well-intentioned and passionate you might be.

  19. When a person has triggered a need for a Care Act advocate, can a council make them wait for their assessment or the care plan or the revision or the safeguarding process, then, on the basis that there isn’t an available advocate?

    • Well, councils can use the law to ask people to wait for an assessment for all sorts of reasons, such as switching on reablement or sorting out equipment to try to reduce or prevent difficulties before the assessment. But the duty to commission adequate advocacy for people’s Care Act rights to that service, is absolute and mandatory; the early Care Act case involving Haringey settled that! The law is that if advocacy has been triggered by the absence of an appropriate unpaid other friend or relative who has the consent of the client where relevant, it must be secured for that person – an advocate simply has to be appointed. So one would have to ask why isn’t there one? If a person is asked whether they want an assessment without an advocate, even though they’re entitled to one, they are already being put in a position that is unlawful. How, if they have got substantial difficulties in engaging, are they going to be able to make an informed decision about the pros and cons of saying yes to a process that will then be invalid? It is no answer to the duty that ‘We did not buy enough’ or that ‘The price has gone up’ or ‘There is none skilled in dual sensory disability’ – the council’s duty is to appoint, and they must do so at whatever rate is the market rate.

  20. What is the significance of a Resource Allocation System or an algorithm based allocation system? Does it determine the budget? How do the needs scores in a RAS get populated with pounds? Should the indicative budget be based on the full set of needs, or only the ones not being met or capable of being met by assets and strengths?

    • A RAS is a management accounting tool, sold to councils, to help them manage falling budgets from central government. One could come into play between eligibility decision-making and care planning, but the concept is not mentioned in the Care Act or regulations themselves. They are part of the Guidance though, because the sector was using them BEFORE the Care Act came into force.

      A RAS is a factor to have regard to, because the council doesn’t have any finite duty to spend any given amount on anyone: it’s the professionally competent decision-maker’s view of the individual’s needs that actually determine the sufficiency of the budget.

      The computer programme divides up the council’s budget for social services spending between the anticipated number of people who’re going to be eligible, and according to a scoring system across the eligibility domains. There may then be weighted scores for particular client groups, not because of discrimination as such, but because of market forces, and how markets work for different types of clients, where risk varies. But the whole point of a RAS is that it reflects what other people, similarly scored, have managed on, budget wise, but based on local market rates. The case law says it’s ok to use these tools as a starting place for discussion, but only if the workings of it are rational, and transparent. So a RAS that had dodgy figures in it, that didn’t reflect market rates locally, would be a very bad thing to be foisting on people, because not really indicative of anything!

      As with all aspects of public service over the last few years, the danger is that this sort of ‘starting place’ ends up as a ‘take it or leave it’ offer which people don’t understand they can even challenge. Offering an indicative OR a final budget that is not rationally sufficient for the finalised care plan is an impossibility, in legal terms.

      Some of the eligible needs will be met for free, willingly and ably; so there’s no point in putting money in the budget for those. In legal terms there has to be a rational nexus between the UNMET eligible needs and the points; between those points and the number of pounds allocated to the needs-driven points and then as between those pounds and the amount of the inputs required, to meet the needs appropriately, in light of the local market rate for that type of service (or the likely lower cost to the authority if it’s going to be a commissioned package).

  21. Is it legal to find someone eligible for Care Act care and support and then give them a zero budget, on the basis that their charges (worked out on the financial assessment) would appear to exceed the person’s “indicative” budget allocation (as calculated by the council’s resource allocation computerised system)?

    • Zero budgets for any area of eligibility should be eyebrow-raising, although they can be explained, rationally – if for instance, there has been a clear agreement internally that children’s services will pay for the meeting of needs found in the last domain regarding assistance in responsibilities to a child, rather than adults’ services.

      However, a finding of an eligible set of needs, as defined, makes care planning for the individual, compulsory, unless the person clearly just wanted their needs assessed, and no further help.

      Also, a person for whom the process stops ‘dead’ after eligibility has been determined, wouldn’t be able sensibly to consider whether to incur separate voluntary private disability related expenditure, on meeting their own view of their own needs, unless or until the statutory council care plan has been finalised.

      The charges cannot be more than the cost to the council of meeting the needs, so if you think about it, doing a financial assessment without also having finalised the care plan, and having made it person-centred and eligibility outcomes-led, is a legal impossibility.

  22. Is it legal for a council to find someone eligible, but then give the person a zero budget, or a zero budget for a particular domain (in which they have been found to have eligible needs) on the basis that the NHS “will meet” the need or that the local Mental Health Service is “responsible for that“?

    • There’s no black and white answer to that question. It’s nuanced. It would help a lot if there was a list or a line between these agencies’ roles, but there isn’t, and never will be, whilst NHS inputs are free and social care ones are chargeable. Given the ambiguity, and since relations between CCGs and councils are sometimes strained, positions can be taken which simply become entrenched.

      The needs, overall, may amount to a primary health need, and if the CCG agrees that that’s the case, on a CHC decision support tool exercise, then the person qualifies for CHC, and CANNOT receive their services from the council. But as far as mental health services are concerned, the vast majority of people who are at all mentally unwell would qualify for Care Act assessment even if they didn’t qualify for the Care Programme Approach from the NHS, and could therefore be eligible for having some of their daily living needs met through that route.

      If the person is not eligible for CHC, but DOES have needs that nobody could think of as needs for care and support – ONE input essential to keep someone alive, as opposed to merely having a better life, then yes, a council could definitely say “We are not going to meet that need, because another agency is liable”. But if the CCG doesn’t agree, there would then be a gap, which (the DHSC says to both the NHS and councils) simply ‘should not happen’….

      Where services could lawfully be delivered by one or the other agency under either body’s statutory functions, the question is which framework is one entitled to look to first? NHS services are free, but no service from the NHS is individually enforceable (target duties only). Care Act services are charged for – but ARE able to be enforced.

      The government’s view seems to be that everything (outside CHC) that the Health Service could, lawfully, fund, can also be characterised as social services, or at least as incidental and ancillary to it, thus maximising the range of chargeable services. We don’t think that that’s legally likely!

      So, Saying ‘That may well be the case, but it shouldn’t be down to me to force the NHS or CMHT to pay for that, if there is no clear local agreement, and it at least looks as if it could be social care, given the criteria and s8 of the Care Act, so where’s your legal reason for refusing to provide it, please?’ can help. And challenging the local partners’ failure to co-operate is often the best course if there seems to be an impasse.

  23. Can a Council (or CCG) legally assess eligible Care Act or CHC service users as “needing” or planning for ‘shared care’ or base the person’s package budget on an assumption that the council will be able to commission say half a support worker for the person’s care plan – or that the person can be made to go and live in a house where that half a support worker has been paid for already?

    • Well, it is the basis on which the whole of the supported living sector (commissioners AND providers) choose to operate but we don’t think it’s correct.

      Shared care projects are put out to tender, because 24/7 supervision is needed in the PROJECT, regardless of the minute by minute time and task inputs for each individual – and shared care prices come back in, regardless of what that might mean for the individual clients owed the duties in the first place. Those prices are put into the resource allocation system, and thus form the backdrop to all discussions about meeting the need.

      CASCAIDr has that culture in its litigation sights: s25(5) of the Care Act says that people’s care plans (and therefore the budget sufficient to meet the individual’s needs) can only be combined with anyone else’s with everyone’s agreement, and that must mean people’s capacitated agreement, must it not? Or where lacking, agreement by people lawfully authorised to make decisions in their place, to our mind.

      We have nothing against the tenants’ or proxies’ agreements being sought, but only once the full individual budget that the individual would need, has been identified.

      We think then that people would establish rights to larger, although not SO much larger care packages, than are offered to them now, as all that they can feasibly hope for, if they want to live in the community and not in a care home, an ATU, or with their parents for ever.

      That will be a bit scary, for any local authority or CCG that hasn’t already heard of us, we expect. But we find parents don’t want to challenge councils or CCGs or NHS England, if they feel that their loved one has waited long enough, and they’ve already agreed in principle to a particular provider being the right choice.

  24. Does a person have to consent before an assessment can be done? Does assessment under the Care Act have to be done by a social worker with a specific qualification? Does assessment under the Care Act actually have to be someone working for the council?

    • No, there’s a mandatory duty to assess, based on an appearance of need, but a right to refuse consent; but only again, in turn, if the refusal is properly presumed to be capacitated, and no risk of abuse or neglect, including self neglect is perceived by the social worker/assessor. So consent would be a polite thing to ask for, but is not a legal pre-condition, and it would be negligently failing in one’s public law duty to just take a no, or the absence of consent, at face value.

  25. Before Covid obviously changed everything, did assessment under the Care Act have to be done face to face?

    • No, not in all cases. But yes it ‘should’ be, if there is any doubt about the person’s mental capacity. The guidance says this “Where appropriate, an assessment may be carried out over the phone or online. In adopting such approaches, local authorities should consider whether the proposed means of carrying out the assessment poses any challenges or risks for certain groups, particularly when assuring itself that it has fulfilled its duties around safeguarding, independent advocacy, and assessing mental capacity.”

      Even during Covid, we don’t think that a council can say that nobody will be assessed face to face. A council’s principal social worker should be being consulted about that, or the legal department. We don’t think that even a council adopting the Easements could get away with that.

    • Yes, if you have the mental capacity to be able to understand that it isn’t actually an assessment, but just your starter for 10, which has to be corroborated before it can be passed by the team for an eligibility decision.

  26. Is it legal for a council to refuse to meet a person’s unmet eligible needs in a care home, because they have above threshold assets??

    What about a person’s unmet eligible needs at home?

    • It is absolutely NOT lawful if that person is at home. Guidance says that local authorities must inform individuals that a financial assessment will determine whether or not they pay towards their care and support, but this must have no bearing on the assessment process itself. S18 provides that there is still a duty if the person wants to be provided FOR, in that situation, even though the way the charging system will operate is to make that person a full cost payer.

      A person in that situation could still benefit from receiving their services through the council, because (ignoring Brexit and Covid effects on the labour supply) any council OUGHT to be able to get the services needed at a lower rate than an individual, simply by dint of buying in bulk. Also, some councils still take a position that their local political mandate is to subsidise the cost of services, so that a person won’t be charged double, for instance, just because they need two people to care at once, not just one.

      A person in this situation with more than £23250 in liquid assets is able to use the Care Act to require a council to let him or her in to its commissioning arrangements, but the council can charge a ‘shopping’ fee to the person of no more than what it thinks it costs it to do that commissioning.

      Some councils charge a fee which is designed to deter the well-off from this course, because of scarcity of supply, we think. They can be held to account as to the rationale for the fee.

      It IS legal to refuse a person in a care home – in theory, because s18 excludes such people from the Care Act duty to meet their eligible unmet needs.

      It should quickly be added though, that the answer is different if the person lacks the capacity to make a care home contract (and has nobody else to do that instead, or for them, with authority); then it’s back to the council to make the placement, albeit at full cost. That’s the safety net we’ve legislated for, in this country!

      However, we’re seeing more and more people who literally cannot access their funds, because of Covid-19, changes in lending policies, the impossibility of getting equity release or a deferred payment arrangement if there are other occupiers with beneficial interests in the home (who don’t count for the partner or relatives’ or dependants’ disregards).

      We cannot believe that the council sector is actually intended by Parliament to refuse to meet people’s needs in that situation, and we infer from that, that if it is therefore legal to make a placement of the person in that situation in a care home, the council can make that solution, its Care Act offer.

      The s19 POWER to meet needs is wide enough to provide discretionary legal underpinning to meet any need, in our view, and recent case law suggests that there must always be a public law compliant consideration of taking that route, to solving the problem, before saying no, and that human rights would have to be considered there, to make STILL saying no, even defensibly lawful.

  27. Is it legal for a council or a CCG to limit its care and support offering to say 4 visits a day? Or to be willing to provide home care but refuse to meet night-time needs?

    • NO it is not legal. It has always been the law that if there is only one way to meet the needs, then Care Act needs must be met, regardless of the cost: only one way in everyone’s articulated and considered opinion, that is.

      That’s the problem though for clients: there will USUALLY be a cheaper way that is not obviously INAPPROPRIATE, in terms of professional judgment as to what would meet the needs. But that can always be subjected to close probing because of tendencies to hop over all the other things that have to be weighed in the balance by the decision-maker, to meet public law requirements for a lawful decision.

      Limiting the number of visits, or saying that ‘Even though we accept that you have needs, you’re not getting them met by us, because they arise at a time when it’s too costly for us to meet them’, is simply arbitrary and a super-crazy way for any council or CCG to behave. It’s a fetter of discretion in care planning, and it disregards the obvious: needs don’t always occur to coincide with care providers’ slots!

      On the other hand, incontinence pads from the NHS have been accepted as being able to meet toileting needs, for those who can cope with them, without that being a breach of human rights, at night, and for someone who wasn’t even incontinent! But if one had allergies to the gel, it would be different. If one needs turning and one’s family member can’t or won’t, there may be no option but to meet needs at home if a care home would be obviously inappropriate.

      We don’t think that the NHS’s CCGs have any wider right than councils do, when acting under the Directions of the Secretary of State and meeting primary health needs for free outside of hospital. We think that the same principles about adequacy and sufficiency would definitely apply, which is why CCGs need to be careful about developing and publishing on their websites, clearly challengeable commissioning policies, often called “affordable care policies” such as the Equalities and Human Rights Commission made them all take down a couple of years ago. The NHS’s senior managers need some real public law legal literacy, as part of a leadership programme, we believe.

      The LGSC/PHS Ombudsman provide a free means of getting that sort of behaviour put right; a referral to the Monitoring Officer can do the same, as can correspondence with the legal department or the CCG’s lawyers.

  28. When you get an assessment under the Care Act is it only an assessment of the unmet need? eg, what’s ‘missing’ or what’s a problem, AFTER the family and all of the free inputs and strengths the person can access, have been taken into account and offset?

    • No, it is an assessment of all the needs, met and unmet needs for care and support, and especially of the type related to the domains mentioned in the regulations.

      The guidance requires the assessor to ignore all informal assistance, and the logic of that is that the entire need has to be assessed, and the impact of that entire situation, logged, in order to be prepared for carer absence or withdrawal.

      We think that the logic means that any human assistance that is being paid for as well, voluntarily by the family or the client, must also be ignored, because the money is not something that anyone can be made to spend, privately, after an assessment, just because they’d started.

      One doesn’t however, ignore medication or equipment if it actually solves a domain/outcome problem, but human input DOES have to be ignored to do eligibility decision making correctly.

      You can read this in the Guidance at para 6.10 “An assessment must seek to establish the total extent of needs before the local authority considers the person’s eligibility for care and support and what types of care and support can help to meet those needs.”

  29. What if someone has capacity and still declines support following a decent assessment which identified eligible needs? What does the professional do then with the certainty that they should be getting a care package?

    • If a person gets to the end of the Care Act assessment and care planning process, and is found to have eligible assessed unmet needs, but is then offered a lawful care package and has a think about it, bearing in mind the cost, they are perfectly free to decline it. That is, as long as the person doesn’t seem to be wobbling on the 4 building blocks of cognitive functioning (capacity) – which can be hard to take a view about if the staff don’t know the person and can’t find out much about how they normally communicate.

      It’s not the same as saying NO to a package because you don’t think it’s a lawful package. It’s always good to make it clear when that is the case!

      If not dubious about mental capacity, the State can do nothing in that situation, unless the person is regarded as being mentally so unwell, albeit still presumed to be capacitated, to warrant being sectioned under the Mental Health Act. If too many people start refusing services, once told the cost, mind you, it would suggest that the charging policy is out of whack, and that would be something that the elected members and officers ought to reconsider.

      If a person declines support in an emergency and needs basic comfort and pain control, however, there is thought to be a doctrine in our system that a person cannot refuse that sort of intervention. It’s not been looked at recently in case law, as far as we know, but is a doctrine based on public policy reasons, to save health and social care workers from the stress and trauma of watching people suffer, we think.

    • No, but if they won’t engage, there is a risk that the impact on them, of their disability or other difficulties, will be regarded as not significant, when they are properly assessed, and there’s nothing morally wrong with that, if the council has listened conscientiously to the person’s REASONS for not engaging with a reablement service if one has been offered.

  30. How quick or shallow can an assessment under the Care Act be?

    Also, does Covid-19 mean that ‘anything goes’ now? If I tell the assessor not to bother with assessment domains that mean nothing to me, or that the wellbeing features in the Act aren’t important to me, is that ok?

    • The guidance wants it both ways: to make sure that the core of the assessment function is done in every case, whilst not being willing to define it, and whilst saying it should be person-centred and catering to the person’s particular wishes wherever possible. Sequences of “Wellbeing Conversations” will not do, in our view, unless each bit of that model is squarely located withIN the Care Act model, along with all the bits of due process, such as written records, copies and transparency of the actual contents, that are being found by the courts to be essential for legality.

      Guidance says that each local authority may decide to use an assessment tool to help collect information about the adult or carer and details of their wishes and feeling and their desired outcomes and needs.

      “Where a local authority has decided that a person does not need a more detailed assessment, it should consider which elements of the assessment tool it should use and which are not necessary.” But neither of those bits of guidance automatically mean that the models in use out there are Care Act compliant. It all depends.

      Professionals have to take care not to abdicate from the role of actually exploring the domains BEYOND what the client first makes of them. The Guidance says that, and for good reason!

  31. What is the significance of the client’s own preferred outcomes (or the views of those who are closest to that person) for the assessment process or the eligibility decision?

    • They are the starting place, because whilst the council has to meet the statutory outcomes, the person is entitled to express their own preferred outcomes and have them taken into account.

      The notion of best value finds a place in the suggestion in the Guidance that if the client can get some of their outcomes met, whilst the council is doing its mandatory duty, that makes it worth paying out a bit more than might otherwise be the bare minimum.

      In the Davey case, the person’s independence was the council’s focus; they thought that change would be unsettling in the short term, but bring important benefits in the longer term. The family and the client disagreed. But the council was not prepared to spend public money on making a person MORE dependent than was necessary, and held to its professional opinion, and the client had the integrity to admit that they were not wrong, after a slow transition into a reduced budget.

      This is an excerpt from that judgment: “There is no warrant for a conclusion that [the] balance is weighted more in favour of the service user, than it would otherwise be under the Act, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration.”

  32. My uncle hasn’t had an assessment since 2015 and his old assessment still mentions Fair Access to Care Services (critical) or (substantial) risk to independence… Is this a problem?

    • It’s common for the historical and factual content of a care assessment to just be copied and pasted over to the next one. But in 2015, the Care Act came in, and changed the legal structure of what’s BEING assessed, so yes of course it’s a problem if the old language has not been updated.

      If it’s not just a typo, and there’s not BEEN an assessment against the Care Act criteria since the Act came in, the person has been done out of a proper lawful assessment.

      When implementation of the Care Act was underway, the government produced an order deeming anyone now having an unreviewed care plan a whole year later (April 2016) to be receiving it under the new Act, but that still doesn’t get one over the problem that the concepts in FACS and the Care Act eligibility regulations are different. Under the old system it was risk to independence that was being measured as critical or substantial through looking at areas of daily life, and one had to be in a dire state to qualify; now it’s inability to achieve daily living domains as defined, and the impact on wellbeing that that’s causing, that matters, and the principle is that no-one should be left coping with more than insignificant impact.

  33. Are some of the domains more important than others – ie keeping a person clean and safe?

    Can councils pick and choose which domains they assess eligibility over? What if the person isn’t interested in say 4 of those domains?

    • The Guidance says that there is no hierarchy, and all should be considered of equal importance when considering ‘wellbeing’ in the round. During Covid, however, it’s hard to say what a court would decide – Covid might BE a good reason from departing from the Guidance, or making a judge think that there should be no remedy granted for a technical but unavoidable wrong.

      Each has to be considered, albeit only for a short time even if the person isn’t interested and is regarded as able to make a choice.

      But for instance, a person could have a very firm view that they are fine, and not posing a risk to themselves or others but the facts may be objectively completely clear that they are mistaken or worse, delusional. The decision on inability to achieve is a professional objective decision on the facts, albeit led by the subjective perceptions of the person in question.

  34. Is it legal to take a view that literally everyone in a council’s area who’s being assessed for complicated care packages for illness, or mental or physical impairment or injury, could all be judged as being ABLE, therapeutically appropriately, to have their needs met in a care home as long as it was meeting registration requirements for being a fit and proper home? (With the intention of declaring that ‘the cost to the council’ of residential or nursing care was ALWAYS at least relevant to a decision about what would be a sufficient personal budget)?

    • NO, obviously not! Needs come first and foremost, and professional evaluation of those is what matters, in the eyes of the Administrative Court, not a managerial edict that x or y or z will always ‘do’ or have to do.

      So if that was happening, it would be down to management telling the care planning staff HOW to do their jobs, whereas they’ve got to make judgments that MUST be professionally well-informed, to be competent in the first place, and thus defensible if challenged. The integrity and intelligence of the staff is the council’s best defence.

      There will always be people who no competent experienced social worker would ever suggest placing in a care home: those who are obviously co-dependent on a particular person for ALL aspects of quality of life; terminally ill people in their 30s or 40s, especially if their children are going to be old enough to remember them; people who are disinhibited by brain injury and who are set ‘off’, as it were, by the presence of other dysregulated people around them – these are just examples. There are also clients that no care home will willingly admit because of the difficulty of managing their impact on others, all of whom are entitled to a decent quality of life, too!

      So a council or CCG that provides merely by commissioning must always be open to the possibility of a client who needs much more spent on meeting their needs than the finance staff would like to believe should be likely. The underlying public sector duty is still there, even if nobody wants to sell the commissioners a service for the price that they wanted – an important consideration for providers, in this particular market.

  35. What if a Council refuses to meet my father’s assessed needs by way of a care home placement on the basis that they don’t believe he needs to be in one?

    • Care planners would have to be clear and coherently address any material put to them, as to why the person or their family does not see it that way: that is what being public law compliant and person-centred actually MEANS!

      Some councils have declared publicly that a care home is their choice of last resort, and that is not wrong, as long as it doesn’t become a rule.

      They may well say that, having consulted the public, or having compared the overall cost of care home placements with meeting people’s needs in their own home for as long as possible – and decided it’s cost-effective until the needs are intensive or frequent or arise at anti-social hours – and therefore care AT home is the policy preference.

      But they must remain open to the representations of people who are not coping well at home, cannot access their own homes after having been excluded by a partner, during a hospital visit, or who want to be in a care home for the company and the stimulation, or who have specific needs that can only be met in an environment that is supervised, and where deprivation of liberty safeguards underpin the regime for keeping people, lacking in capacity, safe from serious risks that their own incapacity renders them liable to run.

      So it will never be the position that care homes cease to exist as a means of meeting needs; or that a placement in a care home will one day be unlawful, simply because it is an institution.

      In some cases, a placement in a care home will be far less restrictive than would have to be the case in a person’s own home, because of the inability of an AT home sort of a care provider to manage the whole of the person’s environment, in their own home.

  36. Can a council effectively make up its own interpretation of ‘significant impact’ for the purposes of eligibility or what is required to meet needs sufficiently?

    • That’s a very difficult question, I think. It’s an ordinary English word. It means not minor nor trivial, but if we’re talking about assessment being person-centred, people may have very different views about what even those words mean.

      A council DOES form its own view, when it decides how much of any service or input will be enough to meet needs during care PLANNING, and one meaning of that is bringing impact down to a less than significant level.

      But before care planning, when the concept matters for eligibility itself, we do not think that there is much room for manoeuvre or that the meaning of the word can defensibly change, month by month, say, as a council’s resources ebb and flow.

      We think it’s very much a social work decision, in the context of a national set of descriptors of an intolerable quality of life, a state of affairs in which no-one must be allowed to remain, without services or a budget.

      We know that in the past, when councils tried to mess with the wording of Fair Access to Care, they were successfully judicially reviewed, and also sued successfully when the decision that someone was not in dire need according to an internal council policy as to what constituted necessity for provision, was simply not credible, or defensible in view of the facts.

      These days when a judge thinks that this is what has happened, councils are being told that they cannot hope to defend their decisions if they’ve just hidden from the material and not made a half way decent stab at addressing it, giving some basis, if not reasons, for disagreeing.

  37. I have breathing issues, complex physical needs and unpredictable swallowing issues through MND. The CCG has offered me a care home even though I am only 47, and then allocated the equivalent amount of the cost of that care home, to a package or a health budget they’d offer me at home, when I (and my family) said no way was I prepared to spend the rest of my days in one of those places. Can CCGs (or councils) do that? I thought there was a human right to independent living? The CCG said that they were treating that offer as the maximum amount legally DUE and cited my own ‘choice’ to stay at home, even though the money won’t cover much more than my being got out of bed and dressed 3 days a week. There is nothing left for social inclusion at all, but CHC is supposed to meet all my health, personal and social care needs, I thought. Can they actually do that?

    • NO, we don’t think they can, legally!

      The public body COULD have taken the rejection of the offer as discharging it from its duty to meet need, and just left the person to their own devices, if declining the service was the person’s capacitated choice. It could have walked away, with no redress possible.

      So when this sort of a cost capped offer is made, we think it’s really the public body that is making the choice, here, for whatever reason, still to seek agreement, from the person, and that when so doing, that body is still bound to act under the legal framework governing it.

      Under the Care Act, the cost capped offer would be an arbitrary sum of money and not rationally able to be shown to be feasibly likely to COVER the person’s needs in the environment in which it’s known that they’re going to be, so that CAN’T be legal.

      The CoP cases on the issue all either suggest that the council must make CLEAR the maximum practicable amount that it is willing to offer – because it goes to the person’s capacity to make an informed choice (and we think that that word practicable there, really means ‘that sum which will do the job that has to be done, which is meet the eligible unmet needs appropriately‘) – OR twist the arm of the council into trialling the person at home for a while, on the basis that unless that’s been done, there’s an insufficient evidence base that it won’t work, and the CoP won’t actually grant a best interests order.

      We think that these cases should really be being done in the Administrative Court, but understand that the lure of non-means tested legal aid in the CoP if it’s framed as a DoLS issue, will be too attractive for the lawyers or the CoP judges to resist.

  38. If an adult with needs for care and support just fills out the ‘supported self-assessment’ form they’ve been given, and doesn’t really understand how it works and struggles with getting the form done at all because of the effects of their disability, can the local authority just consider their eligibility on the basis of the contents of that form alone and decide they aren’t eligible?

    • A council should not have given anyone a self assessment form in the first place if the person’s capacity to participate in that sort of a process was in doubt.

      An advocacy decision should have been made before the decision whether or not to give the person a form (for anything other than preparation purposes), for a start.

      A face to face assessment should have been organised if there was some concern about cognitive impairment (see the guidance).

    • No it cannot end without an eligibility decision and a written record too! Section 13 has been analysed as saying that as soon as any of the needs for care and support that the person has put before the council, have been acknowledged at all (or at least not asserted to be completely OUTSIDE of that very broad scope for a good reason), then an eligibility decision must be made. It must be made according to the rules in the criteria regulations, and once that is done, other duties follow.

  39. if a person owns somewhere else where they could feasibly live (out side of the council in questions area of responsibility), is it legal for the Council to refuse to meet a person’s needs by way of paying for a placement in a care home?

    • If a person has positively already chosen to come and live in Area A, for the settled purpose of daily living, the fact that he or she has an empty house somewhere else, is completely irrelevant to Council A’s duties, in our view.

      If a care home placement is objectively regarded as needed, by the council doing the assessment, under the s9 duty, or would be a lawful offer to make in the first place, then the person has rights to choose a particular care home, subject to 4 caveats under the Choice provisions in the Care Act.

      Regarding a property that exists somewhere else, as a solution, when that other area’s council would have to be made to make a decision about what IT would offer, were that person to go back to that house, is not defensible, in our view.

  40. Is there an obligation to write up an eligibility decision if a Council is saying that someone IS eligible?

    • Yes there is, interestingly. It says in s13 that once the determination whether any of the needs meet the eligibility criteria, has been made, the council that’s made that decision must give the adult concerned a written record of the determination and the reasons for it. It doesn’t say that it matters whether the answer was yes, eligible, or no, not eligible.

      Probably nobody bothers if it’s a yes, but if it’s no, the council is supposed to have made it clear why they don’t think that the person is unable to achieve in two or more areas, following the definition in the regulations, or why, even if unable, the impact is not such as to be significant.

      It’s not enough just to tick the boxes that contain the criteria; that’s not reasons for the conclusions. So just ticking boxes is challengeable, but there is no expectation that the council descends into detailed debate on every single point.

      Another reason would be that the person’s needs do not derive from mental or physical impairment or injury or illness, at all, but maybe simply from homelessness and destitution, perhaps. If homeless, the person would be directed to the Housing Authority; if a person has an irregular immigration status and no needs for care and support at all, they may be sent off to the government’s central asylum support service.

  41. Is an assessment under the Care Act an assessment for the specific inputs or services that will meet the needs?

    • NO. The process is not an assessment for specific services, or specific service providers. That’s now for the CARE PLANNING stage, not assessment. Assessment is for logging the gaps, the deficits and the impact, the person’s preferred outcomes, and their view of what’s going to promote their wellbeing best of all or what’s not important to them as individuals. It’s shorthand that appears to be completely embedded in practice, but it is misleading and should not be accepted as part of supervision or template letters.

  42. Can a Council legally treat eligible unmet needs as unavoidable and just a sad fact of life, when it has run out of hours on its framework, or is otherwise struggling with local market conditions?

    • No, the whole point of the duty to meet needs is that it conveys a duty to DO SO, even if the council cannot purchase the provision it has determined to be necessary, and would have to provide something itself. But one has to appreciate that some routes to a service are based on individually enforceable absolute duties; others are based on a power only, or an unenforceable ‘target’ duty, similar to NHS service provision.

      Take reablement – which is provided by way of the prevention and reduction duty, BEFORE an eligibility decision, usually. It’s probably a target duty, and not a function that translate into a personal budget for the person to choose their own reablement approach. So a council need not buy any more, after it runs out. However, if it doesn’t do so, it will have to crack straight on to assessment, eligibility decision-making and provision of home care, so that is a daft position to get into, because that service thereafter will be enforceable and duty based. If it runs out of home care hours, it must meet the needs appropriately in the meantime, and that does not always mean in residential care, if that will deskill the person or cause significant harm to their wellbeing. It all depends. And that’s before the council struggles to decide which charging framework to apply to that interim ‘less than ideal’ solution!

      We think it would be better to give the person, or their friends or family, a direct payment and the means to employ unregulated carers, directly, if they were willing, than to put someone in a care home who did not really need to be in one. The bed spaces will be needed for hospital dischargees over the winter, after all.

      But if a public funder owing duties to meet needs is not paying enough to attract providers, that’s a breach of the commissioning duty in s5. If it’s not paying enough to enable providers to attract staff, in whatever market conditions are prevailing, then that will lead to a breach of duty, because the providers will just give notice. If money is not found from Reserves to meet the need appropriately, that will likely be judicially reviewable.

      Ultimately, however, if there is evidence that the service being sought could not be secured, at all, regardless of the money spent, or the out of county areas scoured, then no judge is going to be so naive as to think that a court order will suddenly make a service pop up overnight. In that situation, councils could be permitted to come up with innovative arrangements that may not be ideal, but which are at least legal as long as they try to mitigate the undesirable consequences.

  43. Is it legal for a council to refuse to meet a person’s unmet eligible needs in a care home, because they have above threshold assets? (ie more than £23250 in liquid assets) (or more than that sum, including the equity in their home, after the 12 weeks disregard and all other mandatory disregards have been considered)?

    • It IS legal to refuse a person in a care home – in theory, because s18 excludes such people from the Care Act duty to meet their eligible unmet needs.

      It should quickly be added though, that the answer is different if the person lacks the capacity to make a care home contract (and has nobody else to do that instead, or for them, with authority); then it’s back to the council to make the placement, albeit at full cost. That’s the safety net we’ve legislated for, in this country!

      However, we’re seeing more and more people who literally cannot access their funds, because of Covid-19, changes in lending policies, the impossibility of getting equity release or a deferred payment arrangement if there are other occupiers with beneficial interests in the home (who don’t count for the partner or relatives’ or dependants’ disregards).

      We cannot believe that the council sector is actually intended by Parliament to refuse to meet people’s needs in that situation, and we infer from that, that if it is therefore legal to make a placement of the person in that situation in a care home, the council can make that solution, its Care Act offer.

      The s19 POWER to meet needs is wide enough to provide discretionary legal underpinning to meet any need, in our view, and recent case law suggests that there must always be a public law compliant consideration of taking that route, to solving the problem, before saying no, and that human rights would have to be considered there, to make STILL saying no, even defensibly lawful.

  44. Can councils really maintain that not a single person in the area ever has the kind of complex needs for which having stable accommodation is an obvious pre-requisite?

    Or that everyone ‘can’ get housed, without social services ever contracting and paying for the actual house or flat as an environment into which to deliver the care or support that IS agreed to be necessary?

    (So that it would never then be the duty of a social services department to pay for an ordinary roof over someone’s head – and instead everyone can just be signposted to vacant tenancies in supported living?)

    • No it would not be legal. Both the statutory framework and the developing case law (and some Local Government Ombudsman complaints decisions) show that a few people will always have needs that can ONLY be met in accommodation of a specialist nature, and accessing that is therefore the obligation of the paying public body through the Care Act, s117 Mental Health Act or CHC.

      Some people with needs will be owed a housing authority duty as homeless – to be provided with SUITABLE accommodation for their needs, in any event, and that duty trumps the Care Act outright. A CCG has won a case too, on the basis that housing is for the housing authority, not it, on the facts of that specific case.

      Although of course, the Housing Act duty may be lawfully rejected for reasons of intentional conduct that has created the housing crisis – or just be taking too long to meet, in terms of risk and impact – and suitable means something different in housing law to what it means in social services and CHC statutes.

      If housing on the basis of homelessness has actually been applied for and properly refused, then CHC, s117 clients and Care Act clients may well be regarded as needing housing to be provided, but there’s still a let out to avoid the paying social services or CCG having to provide directly for that accommodation, even under s117 or CHC status, or the Care Act, even if it’s needed for the task of meeting needs. MOST people may well choose to meet their own needs by getting HB and paying for a tenancy, if a suggested one suits them, – and they have capacity (or an MCA authorised person) to sign their tenancy.

      If it doesn’t suit them, or there is no deputy or CoP single order, or they don’t qualify for HB so would be paying RENT in person, the bottom line is that a person’s housing situation cannot ALWAYS be separated from their care and support or CHC needs.

      However, we think that many housing and social services teams may well have decided between themselves that housing needs for people who could cope with, or even benefit from living with other similar service users, should not be PUT THROUGH the Housing Act, because it doesn’t suit the service commissioners to pay for individual care packages, and that’s why shared care is put forwards as the only type of care there is, that comes with a roof, other than a care home. We have that particular assumption in our cross-hairs at CASCAIDr.

  45. If a Local Authority (LA) takes part in an assessment for NHS Continuing Healthcare (CHC) and as part of a Multidisciplinary Team completing a Decision Support Tool, agrees with a decision of non-eligibility, can the LA be said to be confirming the following:

    1. The person’s needs overall are no more than incidental or ancillary to the provision of services which local authoritysocial services are typically, or would be but for a person’s means, under a duty to provide; and
    2. The person’s needs are not of a nature beyond which a local authority whose primary responsibility it is to provide social services could be expected to provide.

    This being the case, the relevant LA would cover the cost of the person’s care (subject to means testing).

    • I can’t quite agree that it follows inexorably from a finding of non eligibility for CHC that a person would automatically qualify for Council care, I am afraid. There are various reasons for that: they may need to be sectioned under the Mental Health Act. They may have an irregular immigration status and therefore be in a situation where they will only be provided with council-funded care if not doing so would be a breach of human rights. Next, the fact that one is not eligible for CHC does not mean that one does not ever get bespoke NHS funding for some of one’s needs. A person can be found not to have a primary health need for CHC qualifying purposes, but aspects of their need may be such as to be clearly so specialist that no local authority would expect to have to provide for that particular aspect (eg suctioning a trachy tube with complex management issues). Lastly, councils and CCGs do now regularly enter into split funding arrangements in recognition of the fallacy supported by the NHS and DH for many years that if one was not CHC one was always 100% council funded; the CHC framework makes it clear that that need not be the case, because there are MANY genuinely grey area services that are legal for BOTH bodies, but all depend on characterisation as more one thing than the other, which is ultimately a sterile debate, so it’s better to agree to do split package for those. Subject to all that, I can live with the conclusion above. I’ve removed the word ‘accommodation’ from your question, however, because of the wording now of the Care Act s22: (1) A local authority may not meet needs under sections 18 to 20 by providing or arranging for the provision of a service or facility that is required to be provided under the National Health Service Act 2006 unless—
      (a) doing so would be merely incidental or ancillary to doing something else to meet needs under those sections, and
      (b) the service or facility in question would be of a nature that the local authority could be expected to provide.

  46. Is it legal for a council or a CCG to move someone from one care home to another, just to save money? Does it matter how long they’ve been in situ?

    • Public bodies funding care can lawfully move people from one place to another, and cost can be a relevant consideration, but it is complex, in terms of public law requirements, so the question requires some unpicking.

      It’s NOT legal to do it JUST to save money, because the move still has to be regarded as feasibly defensibly meeting needs, and the needs might be tied to the original placement for medical, or social or psychological reasons – the original choice, if there was one, may have firmed up into a need. Secondly, it has been accepted in case law that some people’s condition predispose them to attachment to particular regimes, and a setting may be one of those, and that’s then part of the needs. Thirdly, article 8 rights to respect for one’s private life are in play, and must always be considered conscientiously.

      Other difficulties in the way of any public body getting away with this are legion: the case law has covered most. Croydon was JR’d because it terminated the package without doing proper best interests consultation with the family in the case of an incapacitous son, and without finding anyone else or anywhere else to meet the needs. Merton was JR’d because its Care Act re-assessment was invalid, for not considering the evidence as to the person’s own preferred outcomes or the suitability of the current accommodation, and trusting an alternative provider’s own evaluation of its own ability to meet the person’s needs just by reference to an overview. And although slightly different, Bromley was JR’d because it said NO to a mother who’d found a great home, for her son to transition to, an expensive one, when it had no other alternatives to weigh in the balance, and thus no other way identified of meeting the needs.

      Plus there are countless Local Government Ombudsman’s upheld complaints about top-up scenarios, where people whose capital has depleted after being in a privately funded setting for a long time are told by councils that they ‘must’ pay a top up or their relative ‘will be moved’ to a cheaper home, without any proper Care Act assessment of whether it’s even therapeutically appropriate to impose a move on the person in question. Then, acknowledging the needs and accepting at least sometimes that the only way to meet the needs is for the now liable public body to keep the person in situ, and pay the full price for that public body’s clients, can become a legal necessity.

  47. Is there such thing as genuine choice in the Care Act? Eg when choosing a care home or supported living, could the council say here is a place, you can choose to take it or wait for somewhere else or is it that they have to offer you more than one place and you choose between them?

    • We will be doing more on choice next week, but there’s less choice than one is led to believe, in our view.

      There is a right to choose a care home provider, if one accepts the council’s decision that that is what will meet one’s needs, but that’s subject to at least 4 caveats, covered in the Choice Regulations. The reference to choice of at least one placement is related to the idea that a top-up situation can only arise if one has been given the opportunity to take up the offer of a care home, AT the rate the council says is enough. The logic is that if there is only one place, that is good enough evidence for the council to be able to say that choosing anywhere else triggers a top up. We don’t think that that would hold good in court, if challenged, but not because there MUST be one or more than one; the challenge would be that the rate being claimed to be sufficient to enable council clients to be appropriately cared for must be arbitrarily low if only one care home had a vacancy at that rate.

      Councils regularly fail to opine as to whether the homes that they point to could be regarded as suitable for the individual, and just inform relatives that a top up will have to be paid unless the person goes there – that’s always challengeable, if you know the Care Act and public law, fortunately.

      There is no such right to choose supported living accommodation or a provider (at least, it exists only very exceptionally), because supported living is not a service but simply a model, whereby a type of home care is delivered into one’s own home, where one has signed a TENANCY, from one’s own choice, so one doesn’t NEED choice at all; one doesn’t sign, if one doesn’t want to move in, but the tenancy is not provided BY the council, unless it still has housing stock, that is.

      The exception where there is a right to choose, is in those rare cases where unregistered accommodation counts as specified accommodation AND is provided to a person through the council’s own arrangement for an occupation licence for the person, and not as a tenant at all. Councils do signpost people to tenancies in supported living projects, much more commonly, because of the fact that shared care savings flow from the existing arrangements with an onsite care provider, but that’s just being supposedly helpful, not meeting need under the Care Act – and as you hint, a person may take up the help for fear of never getting wind of another tenancy vacancy.

      There’s more on this topic on Friday, if you are interested! Thanks so much for your question.

  48. Can a council or a CCG cut my care plan if there hasn’t been any change in my needs?

    • Yes, care plans and budgets can be cut, lawfully, if there has been at least some change in some circumstances that the care planners believe will affect the PLAN.

      So that could be a change in the provider’s price, or a change in the market rate due to changes in capacity in the market, or a change in technology that enables the SAME needs to be met but in a cheaper but more remote way.

      The issue is not whether the condition has changed but whether the dependency, or deficit, or the situation has changed.

      And also, one has to remember that the funding body is the decision maker as to WHETHER the needs have changed, even if people are reluctant to agree that that is what’s happened.

      Fortunately, the law of judicial review stops care planners making arbitrary, un-evidenced, irrational or blinkered decisions about any of this, and under the Care Act, s27 operates to ensure a proper revision process. But then again that’s only any use if one knows about one’s rights, and is prepared to stand up to a culture of managerialism that can sometimes strike one as ‘Anything Goes, Unless and Until Someone Challenges Us.’

  49. If my provider has just got a whole lot better at meeting my needs, should they get paid less, and my budget decreased or just left the same?

    • The likelihood here is that you’ve got a well-managed need, but if they did less of whatever it is they’ve been doing, by the hour, say, the need might pop up again? It all depends. If they are much quicker at meeting the needs than they used to be (say in terms of managing challenging behaviour) because they’ve got to know you and your ways, much better, then councils and CCGs think providers should charge less. Providers think that they’ve put the work in to get really good and specialist at inputs, so don’t tend to think the same….

      Any suggestion of taking services OUT or lessening the skill level must come from the CARE PLANNER, because otherwise there’s a change of plan going on which has not been the subject of professional thinking.

      Even if the work has got less intensive, or less risky, it still probably needs as many bodies to do it, and therefore they will need to be paid, so negotiations over fees are exactly that and depend on market forces.

      But if the provider is a care home, the owner/managers are the bosses of how they charge for their service, and it is likely that they will have a costing MODEL that allocates a share of all of the business’ overheads and the cost of running smoothly, to each individual placement contract, regardless of the specific number of minutes that they put in on a day to day basis.

      Councils may try to get them to change their costing model, but it is only market forces, and the state of the provider sector’s fear of competition, being undercut and losing the market share/clients, that determines which side holds sway in the end.

  50. I wasn’t able to use my budget (before this whole Covid malarkey) cause I couldn’t find any one able to provide the care… Can the Council reclaim my budget? Or cut it next time round, on the basis that I obviously didn’t ‘NEED‘ it?

    • It’s very likely that a person with a budget that’s been turned into a direct payment, or a person managing or holding that budget for them, will, at some point, find that the needs do need meeting but there’s nobody willing or competent to do it for the salary or fee offered.

      That might be because of Brexit, Covid, or genuine scarcity of a specialist skill that really is essential, but the bottom line is that the person’s needs must not go unmet, and the person can either challenge the adequacy of the rate pointing to their struggle to find anyone, or say ‘I am sorry but I can’t consent any longer to having a direct payment, because it’s impossible to meet the needs that way for this rate’.

      In that situation, any council would have a duty to pick up the needs and commission appropriately for the needs, which would almost be bound to cost more, and not suit the person so well.

      If one just hopes for the best, on the footing that the person can be described as having had fluctuating needs, and thus the budget should just be carried over, one will often be met with waffle about the council’s policy to only ever allow a month of keeping the money. The reality is that fluctuating needs would have been noted down somewhere, or should have been; if not, the inevitable result not recording this will appear to be that the claimant did ok when the needs weren’t being met from the budget. Very often, one’s family just stepped up, out of desperation, but it can feel impossible to make it clear that the family are not doing it voluntarily but under force of circumstance and that therefore it should be paid for out of the direct payment as a necessity.

      Most people don’t engage with this essential discussion or procedural step and do themselves out of a chance of restitution. Others just hand the budget back meekly, and then get told their needs have obviously gone down. Still others pocket the money on moral grounds and then get prosecuted for misuse of a position of financial authority. Clarity is really important once you understand that that can be the outcome.

      During Covid, we are seeing a lot of these debates because of people’s families going back to work after being at home on furlough, when the budget was either volunteered back, or taken back.

  51. Is it against the law for a council or a CCG to make a decision to cut my budget because some other agency has been spotted with a different set of legal duties and powers and my current commissioners have bowed out?

    • It is always possible for bodies with statutory duties to decide between themselves that it is actually right (or not right) for one of them to meet need, instead of the other; sometimes that’s a dispute about which of two similar bodies, ie two councils in different areas, should be paying, based on ordinary residence, but sometimes it’s a debate about whether it should be children’s services for instance, paying for something, rather than adults’ services (internally)! or whether housing should be sorting out accommodation or the social services department (again, internally).

      It can sometimes even be a debate as between health and social services, because the ‘line’ between the two is not clear, whereas the consequence of a service being a health one or a social care IS clear for members of the public: the latter is chargeable but enforceable by the individual, whereas the former is free, but one might just whistle for it forever.

      Anyone can see that integration of two systems driven by different principles is a hopeless political aim, but nobody who favours it as a solution, seems to be a lawyer or understand what would be being sacrificed for people with chronic illnesses or disabilities.

      The safest answer is this: before any care planning body bows out of meeting a need it has taken responsibility for, before, whether under a power or a duty, it needs to be sure that the need will be met by another body, by actually finding that out, AND considering whether that it is a reasonable and lawful way of meeting the need. Incontinence pads from the NHS HAVE BEEN found not to be an unlawful way of meeting a toileting need at night that had originally been cast as a need for mobility assistance to use a commode at night.

      Secondly, there IS a vague principle of a hierarchy of duties and powers in this country, whereby some trump the others, and should be regarded as needing to be discharged first, before the ones lower in the hierarchy are looked to. Legal clarity is lacking here!

  52. Can we challenge the loss of the kind of company that human service providers implicitly offer, when technology takes over and appears to offer savings, albeit at the cost of the loss of the human contact?

    • This seems to be a question about decisions about the way in which a person’s needs are met, butting up against a suggestion that the loss of the human input might be so significant for the person that it wouldn’t be fair to make the change or the savings.

      There’s no doubt that as technology becomes able to prompt people or be managed remotely or send signals about concerns to a hub, there will be less need for human involvement.

      But if the human involvement met some other statutory outcome, or some other outcome of the person’s that was important to them, a council or CCG could be challenged for just changing the care plan without thinking about needs, wishes and feelings, a person’s representations on why it matters to them so much, their other aspects of wellbeing or their reasons for caring so much about holding on to the current plan, their human rights and any best interests consultees’ views.

      This will worry commissioners who see domiciliary care re-tendering as the only way to push the price still lower, in order to stay within budgets, in the council. Are we saying that they have to re-assess everyone every time?

      No, we’re saying that this sort of change maybe triggers a consultation right, rather than a re-assessment right, stemming from ordinary public law principles of fairness for decisions that will inevitably have a very intimate and personal impact on pretty well any person. There’s old case law on this sort of question of impact of a change of provider, so yes, it can be challenged, but it will be a question where it’s very hard to predict the outcome, of a challenge to a change of this nature, since the Court cannot MAKE the council decide in a particular way, other than in very rare circumstances.

  53. Is it legal for a council or a CCG to to terminate a care contract before doing a review and a revision process and finding another suitable provider?

  54. Can a person’s relative, who is not the health and welfare deputy and not a next of kin, trigger rights of involvement or consultation under any legislation when the local Safeguarding Lead, the s117 team and the Deputy seem to be ignoring coherent concerns about the person’s welfare? Can the Deputy be unseated for failing to engage with other best interests consultees?

    • Very tricky. If there is a health and welfare deputy in the first place, that would signify that there was a troubled history in the person’s past because deputyship is a last resort after ordinary best interests decision making through health and social services provision functions under the Mental Capacity Act has not proved sufficient to reach decisions for a person lacking in capacity.

      One often finds situations in which a deputy may use their power of consent to information sharing to refuse consent for another member of the family to be kept informed. People with whom the deputy deals may have forgotten that deputies are bound by the Act and Code too, and therefore should not be standing in the way of proper consultation of anyone interested in the welfare of the individual.

      Deputies can be unseated, by a process that starts with reporting the concerns to the OPG, and then maybe an investigation by a CoP visitor, leading to an application to the Court to appoint someone else.

      If a Safeguarding team thinks that a deputy is not behaving properly, that is a matter for a s42 investigation; if that safeguarding team is ignoring those concerns, then it is colluding with the deputy, potentially, and losing sight of the interests of the incapacitous person.

      If the person has s117 status, then that plan should be being regularly reviewed, and a failure to attend to the shortcomings in that plan can be judicially reviewed in the Administrative Court. The deputy’s role does not extend to blocking a review of the s117 care plan; the deputy can choose whether to be involved or not, but their status is a means only to refusing consent to anything that would amount to a trespass or assault without consent. So that route, the MCA consultation section (s7) and the Care Act (involvement triggering advocacy if the deputy is missing or unengaged) all offer ways to alter the status quo.

  55. If the council tells me they’re reviewing my care package soon, can I stop them re-assessing me on the basis that there’s a right to refuse assessment in the Care Act?

    What if they tell me ‘There’s got to be cuts’ or ‘I’m afraid that I’ve got to try to make savings’ or ‘The Panel says that if I can’t justify a cut in the cost of your care I will have to go and justify myself in front of them?’

    How do they make a proper decision after that sort of advance information?

    • No, you can’t refuse a re-assessment once you’re in receipt of public money. The right to funding depends on satisfying the council that you qualify, and that means being prepared to provide a certain amount of evidence to them, as to your needs and the impact your wellbeing is taking, given the difficulties you have. Section 27 provides for the duty of periodic review, and consent is not relevant to that; and there is a power to revise care plans if the council goes through the right process, which involves a proportionate re-assessment, but one that is not a pure repeat of s9 all over again, and thus not able to be refused under s11.

      If a council’s staff are told to Go Forth and Subtract, as the purpose of a review incentivised to bring back savings or put to work-based trouble for not making savings, there is a very good chance that the Administrative Court would regard the review and revision as infected and flawed by organisational bias, which contravenes the laws of natural justice and procedural fairness.

      Everyone knows it happens but it is a particularly daft authority that lays itself open to challenge by not training staff that there’s a right way to have a difficult conversation – and a very wrong way indeed, in terms of public law.

  56. You read loads of LGO decisions about massive cuts that have led to complaints – fault is then found in most of those – and compensation paid for the aggravation – so why is it that those people don’t just go to judicial review?

    • Usually it’s because the person can’t afford to find a lawyer, but has too much money for qualifying for legal aid, in savings. Anything over £8K excludes one from Preliminary Legal Help. Or, the person has been to a legal aid firm with a Community Care contract with the Legal Aid Agency, and been told that there is no ‘capacity’ to take on their matter – and there is no point arguing about that if you are in a hurry to find another firm. Some firms who do legal aid do private work as well but apply a quota of hours that their staff can do on legal aid, because law firms tend to have to make a profit for the equity partners. Even legal aid firms have owners who have invested in a business; they are not publicly funded, and can fail.

      So, in the end, the fact that the LGSCO is free, and offers an investigative process, rather than a win or lose one, where the parties are adversaries, makes for an attractive alternative, if the matter isn’t urgent. The LGSCO very rarely obliges people to use the legal process, because it is recognised that it is very difficult to do so. People sometimes prefer to use the LGSCO because of the long term relationship that they’ve got to have with the council, given what may be lifelong disability, or chronic illness, and that’s understandable.

      The LGSCO can also provide for a form of compensation that is called restitution – redress to put one back in the position that one would have been in, had the council done the right thing in the first place, and that is likely to be accepted, whereas the stakes are higher if one goes to court, and one will probably have to pay one’s lawyers, if legally aided, out of that sum of money!

      CASCAIDr charges a low cost fee for supporting a person to make a complaint, in situations where legal knowledge helps to make the complaint a strong one. We cover all the LGSCO cases of legal interest on our website, providing a commentary so that people can see what they should perhaps think of saying if they want to go it alone.

  57. Is it legal for a council or a CCG to make a decision to terminate a care contract before doing a review and a revision process, and finding another suitable provider?

    • No it is not. In the local authority arena, the Merton case (and Perry Clarke’s case against Sutton) make it clear that a council must NOT terminate a contract, or decide to terminate it, without a lawful re-assessment process.

      That’s part of the Care Act, found in s27, the only difference between the original assessment and this RE-assessment being that the scope of this re-assessment is down to the council – it can choose not to go back all the way to eligibility, for instance, and just re-do all the work required under s24-26, regarding care planning and budget setting.

      It can’t set a budget unless or until it has FOUND a provider with a vacancy who is regarded by that council as able and willing to meet the properly assessed needs for a price that has been negotiated.

      The law is not likely to be any different for a CCG responsible for commissioning continuing health care, in our view. Of course if a care plan review determines that there should be a fresh eligibility or Decision Support Tool CHC Status exercise, and the person is no longer ELIGIBLE for Care Act or CHC care, respectively, then no other provider needs to be found by THAT commissioner, but the process regarding that eligibility decision making would still have to have been done properly.

      Pending appeal, different agencies behave differently, and point to different aspects of the Guidance to justify their positions.

  58. Does the Care Act still apply to service users who qualify for full NHS Continuing Healthcare funded care? To paraphrase, would I lose any rights afforded to me under the Care Act once I qualify for full CHC funding?

    • Yes you would, in this sense: you cannot have your needs met by social services once you qualify as having a primary health need, and thus trigger CHC status. Section 22 of the Care Act has that effect. It is government policy that free NHS health care should be available for the whole of one’s health personal and social care needs, OUTSIDE of hospital, if one has a primary health need, and the way that has always been achieved in legal terms is to prohibit councils from meeting those needs.

      But in another way, we believe that one doesn’t lose the content of the rights, if we can explain what we mean. If personal and social care needs are met by the NHS, once someone has qualified, we think that that means that the public law principles that have shaped the law about the meeting of those needs under the Care Act, imbue the law as to how the NHS would have to meet them too.

      So, we are confident that NHS CCGs are equally accountable under public law for a rational, transparent, sufficient budget, that is human rights compliant; not a cost-capped one, not a fettered one, and not an arbitrary one. And parallel regulations have been brought in to make Direct Payments available in the shape of personal health budgets, in theory at least. So whilst the rights under the Care Act are lost, that doesn’t mean to say that the content of those rights is non-existent. There are means to challenge any CCG that hasn’t woken up to the power of public law as yet. The place to do this is the Administraive Court, not the Court of Protection.

  59. If a person has all of the below:

    – severe visual impairment,
    – cognitive impairment as a result of brain damage,
    – paralysis,
    – incontinence of urine and faeces,
    – neurodegenerative condition
    – the desire to live with family and their young children

    To have a Care Act compliant assessment, can they reasonably expect to be assessed by a social worker with specific training in sight loss, brain injury, complex needs etc?

    Can this be requested or demanded?

    I will donate if answered.

    • With a presenting set of difficulties as listed, there is no doubt that one would be entitled to an assessment.

      But as we said on day 2, there is no right to an assessment by a social worker as such; it has to be someone competent, and that means familiar with the issues generated by that array of problems.

      One might say that one needs an expert in order to have insight into the inter-relationship between those difficulties because of the psychological and physiological and sensory interplay; I don’t know, but that’s what I imagine a competent professional with insight into ANY of those areas might think once they understood that the person’s issues went wider than their personal experience. But the answer to the question is requested rather than demanded, because the council can allocate the assessment to the level of worker its management team thinks is appropriate – and if one doesn’t agree, one cannot do anything about that other than complain, refer it to the Monitoring Officer (as a contravention of an enactment) write a letter before action to the Legal Department and apply for permission for judicial review, or get one’s MP to write in. Ultimately, the assessment will be valid unless challenged, so sooner rather than later is best.

      Here is the bit from the guidance on competence: (in turn drawn from the 2014 Assessment Regulations)

      6.86 Local authorities must ensure that assessors are appropriately trained and competent whenever they carry out an assessment. This means ensuring that assessors undergo regular, up-to-date training on an ongoing basis. The training must be appropriate to the assessment, both the format of assessment and the condition(s) and circumstances of the person being assessed. They must also have the skills and knowledge to carry out an assessment of needs that relate to a specific condition or circumstances requiring expert insight, for example when assessing an individual who has autism, learning disabilities, mental health needs or dementia. This training must be maintained throughout their career. As part of maintaining their registration, social workers and occupational therapists are required to evidence their Continuing Professional Development.

      6.87 When assessing particularly complex or multiple needs, an assessor may require the support of an expert to carry out the assessment, to ensure that the person’s needs are fully captured. Local authorities should consider whether additional relevant expertise is required on a case-by-case basis, taking into account the nature of the needs of the individual, and the skills of those carrying out the assessment. The local authority must ensure that the person is able to be involved as far as possible, for example by providing an interpreter where a person has a particular condition affecting communication – such as autism, blindness, or deafness. See the Equality Act for necessary provisions around reasonable adjustments.

      6.88 Where the assessor does not have the necessary knowledge of a particular condition or circumstance, they must consult someone who has relevant expertise. This is to ensure that the assessor can ask the right questions relating to the condition and interpret these appropriately to identify underlying needs. A person with relevant expertise can be considered as somebody who, either through training or experience, has acquired knowledge or skill of the particular condition or circumstance. Such a person may be a doctor or health professional, or an expert from the voluntary sector, but there is no obligation for the local authority to source an expert from an outside body if the expertise is available in house.

  60. My son lives in supported living. His council and the care provider at his shared house say he can’t go to day-care because of the risk to other people he is living with (all tenants). There’s no local lockdown or community DoL order in place for any of them. 3 were shielding in lockdown but they’ve stopped now. His care plan says he needs day-care and the centre is functioning again with social distancing. He has a reasonable degree of mental capacity and would not challenge being told ‘what we have to do’ if he was allowed to go.

    Is this legal?!

    • We are shocked to hear this. Tenants in shared houses have the legal right to go where they like at this moment, and can’t expect to control anyone else’s behaviour, other than by reference to the general law.

      Shielding was only ever ADVICE, and the advice was that if you were shielding in a house with other people, you could only do your best; they weren’t obliged to self-isolate just because you were shielding. Even quarantine rules after arriving back in this country did not oblige other members of a household that one went to FOR quarantine, to change their own behaviour and stay IN. If you were a resident landlord of course, you were sort of in charge, but you could not just throw people out because of the virus. Nobody is in charge of the house in Supported Living. The only control the care provider has over the individuals is in accordance with their care plans and compliantly with the Mental Capacity Act based on the least restrictive intervention to prevent harm coming to that person – there is no duty of care owed by the care provider to protect each from all the others or control the environment, just because each is being separately cared for under the Care Act.

      If a person in this situation were now to be tested, and proved positive, or told to self-isolate by NHS track and trace on the basis of contact with someone else who has proved positive, they would have to self-isolate by law. But a person living with someone else who is self- isolating for that reason does not need to do that if no symptoms have yet emerged in the person they are living with.

      So one can see that there ARE situations in which a care provider keeping a person in would then be protecting the person from liability for an offence that was beyond their capacity to understand, but that is not the question asked here…

      The council is the commissioner here and is required to TELL the provider that it is acting beyond the scope of its contractual authority and duties and breaching the person’s civil liberties and rights to access their legal right to care in their care plan. That is a safeguarding matter, to our minds, implicating both the council AND the care provider, and is liable to lead to an action in damages under article 8 ECHR.

      If a person could not cope with social distancing expectations, the day-care centre needs to say so to the commissioner, and that person’s care plan needs to be changed on the basis of a change of circumstances either to provide more MCA compliant supervision, or to find other ways of meeting the needs to which day-care presented a solution.

  61. What is the ordinary residence of a person who is provided with temporary accommodation out of area by the local Housing Authority?

    • Contrary to most people’s expectations, the liable council for social services on the basis of the ordinary residence test is definitely the council running the area to which the person has moved, albeit for temporary accommodation. That means that the new council must pick up the assessment and care plan and run with it, unless or until it has done its own assessment.

      The case law on this particular area is called AM v Havering LBC & Tower Hamlets LBC from 2015. This is one of those cases where the provisions of s37 of the Care Act apply: the authorities are supposed to co-operate in advance, but some see this as simply ensuring that the care plan gets passed on, at the last minute.

      It has to be stressed too that MOST authorities we engage with think that because the accommodation that has been secured is explicitly called ‘temporary’, it cannot be said that the client has moved their place of ordinary residence. The case law says otherwise, pointing out that nobody needs a given number of weeks’ or months’ residence in a new area; and pointing out that one does not need to love it or even like it to be counted as going there voluntarily for the ordinary every day settled purpose of living one’s life. This is not ‘temporary’ in the normal sense of the word: a few days or a week or so on someone’s sofa.

      So that sort of continuing responsibility for someone is really being shouldered by the old council, on the wrong footing. It’s not illegal: the power in s19 enables any council to continue to provide for someone out of area if the council chooses to!

      Section 19 is the better footing, too, for ongoing provision by those councils who have an inter-agency project, say, between the hospital, the housing authority and the mental health service, as well as between the CCG and social care, whereby a co-ordinated approach to all services for people leaving HOSPITAL, or rough sleepers with chronic conditions, is the vision. To make that work, those councils need to choose to ignore the law as to their obligations, and voluntarily choose to use their powers. That’s fine, as long as no-one falls through the gaps, and everyone knows why any given authority is taking responsibility for particular people, even though they don’t seem, at first glance, to be the agency’s actual responsibility. And there needs to be clarity as to whose CHARGING policy applies, because a person is entitled to pay according to where they are ordinarily resident, and it could make a big difference to them.

  62. What happens to people’s rights in supported living settings if the person hasn’t got sufficient mental capacity to hold a tenancy? Does it mean that they can be thrown out without any protection? Does it mean that they don’t have to PAY the rent due, because there’s no contract in place?

    • The law is really clear: a tenancy doesn’t have to be in writing to be valid. But housing associations, the source of most supported living and extra care settings, are required to use them.

      If a person has signed a tenancy in their own hand, they are entitled to the presumption of capacity. If it turns out that they haven’t got capacity, and didn’t understand it, it is treated as voidable, which means someone else can get them out of it and that it’s unenforceable against them if a litigation friend acting for them chooses to run that argument.

      If everyone knew that it was not understood, then it’s void anyway. If it’s not even been signed by the tenant, that is itself evidence to the effect that nobody thought that that person understood it, in which case it would be void.

      But landlords are still entitled to a reasonable ‘occupation fee’ under the common law in this country, or under the Mental Capacity Act if accommodation is counted as necessaries. And that’s why incapacitated people can still claim housing benefit for that liability to pay a charge. So the rent gets paid, but the other terms are not enforceable against the tenant, which rightly puts landlords OFF!

      In all cases where the essence of the deal being done – which is somewhere to live in return for the person’s money, and the notion of promising to be of good behaviour, (even if they have no idea how much the rent is, don’t understand Housing Benefit and would have to have care 24/7 in order to keep that promise), is obviously beyond the understanding of the person moving in, then the person needs a Deputy or a single order from the Court of Protection to make that tenancy legally valid and effectual.

      What is in the ‘Best Interests’ of a person looking to move in, is only relevant to the Deputy in the case of a very incapacitated person, because the local authority is not in any sense the decision maker as to the accommodation element. The deputy must engage with the council or other care funder, however, because there may be very good reasons that the care funder does not think that a particular property preferred by the deputy would be a good idea, in terms of wellbeing, and that would affect the care package or budget setting process.

      If the need for authority to sign the tenancy is overlooked, there is a much greater risk of the arrangement being seen as covering the CARE, together with the accommodation – ie amounting to a criminally unregistered care home.

  63. I have decided to move from one area of the country to another to live with relatives. Can I take my care package with me?

    I get that sometimes a council remains my authority wherever I go, but I’m not planning on going into a care home or supported living.

    • No, it is not. The care package may be being delivered by a provider who simply doesn’t operate in the destination area. The cost of meeting the needs you’ve been assessed as having in one area, may be massively different in a different area. You may be moving away from home, where your family meets a lot of your needs, but they won’t be there in the other area, so you will need MORE services. Or the other way around.

      What the Care Act DOES give you is a right to a concept of continuity and some chance of forward planning, if you’re already known to social services and have a package, that is.

      You can be assessed by the new area before you leave the old one, as soon as you or the current social work team have told them you’re headed their way, and they think the intention is genuine.

      In the real world, that usually depends on having sourced a promise of housing in the new area by whatever means possible, so that they can at least imagine what your needs will be within the context of an identified environment.

      The new area is supposed to assess you before you get there, so that you know what you’d get from them, and make an informed decision. But here’s the problem: if they don’t get round to it or otherwise refuse, you are legally entitled to the maintenance of your OLD assessment and plan, unless or until a good reason for NOT regarding it as still valid and accurate, has been provided in writing. That’s all under s37 of the Care Act, with rules for both councils.

      We are aware that most councils simply accept that, and leave that in place until after 6 weeks or 3 months, or whenever they decide, at which point they do re-assess you according to their way of doing things. But that misses the whole point of this provision: disabled people are as entitled as anyone else is to make plans to move if they want to, and a person can’t make an informed decision unless they know what they’d be likely to be assessed as needing, or what their budget would be.

      This is something that any Care Act advocate ought to be able to help with, before it’s too late.

    • No, they do not, I am afraid. There is no right of self-care planning, not even supported self-planning, as there is with supported self assessment, for those with sufficient capacity.

      All the stuff one hears about co-production could be said to be policy, and guidance, rather than law. The obligation to do a care plan is in s24 of the Care Act, and it is the council’s.

      A care plan has a set of required elements listed in s25. The budget is one of them and the definition of the budget is in s26. Councils have a power to authorise joint production, and that doesn’t have to mean 50/50, so a person could be given the lead and the bulk of the creation responsibility; and councils have a power to provide help and whatever facilities they want to in order to support someone jointly authorised, but no duty – just exhortation in the guidance.

      If one has asked for a direct payment one will get MORE flexibility, but more responsibility for coping with unexpected issues. And here’s the issue for both packages AND direct payments: the plans for spending or caring must always lie within defined parameters, that is, that which meets the assessed eligible unmet needs, and meeting then within the budget that the council has allocated, supposedly sufficiently and rationally, with reference to the cost of local ‘quality’ providers.

      The decision about the needs and their eligibility, as opposed to the ‘wants’ and non-eligible needs, and the budget for meeting those eligible needs that are unmet is for the council, subject only to judicial review to challenge the legality, rationality, fairness or compliance with human rights of that budget.

      I hope that that makes it clearer, and thanks for the question!

  64. You’ve explained that LA’s can’t have ‘blanket policies’ whereby they ‘don’t do’ things – can LA’s allow commissioned Support Providers to have them?
    EG’s:’ We don’t facilitate payment of Utility bills – you’ll have to use a third party company’
    ‘We don’t support applications for Housing Benefit – you’ll have to get someone else to do that’
    ‘We don’t provide training in basic cookery to our support staff’

    • I am afraid that that is different. No provider can be told what to do; contract law requires offer and acceptance. So councils have to accept for instance that companies don’t want to do manual handling because of the training impact; that doesn’t mean that no clients NEED to be manually handled. It just means that the council has to commission SOMEONE to do manual handling. It’s good business strategy to offer a service that few other providers want to offer, just in terms of staying solvent. Councils try to use their dominance in the market to persuade providers to bend to the council’s wishes for a good service – individual service funds were a good example of that. But commissioners went too far, and companies began to say you can have a low price from us, but for a very pared down service. When All providers have got to that stage, or when demand exceeds supply the boot magically shifts back to the providers’ foot, and they get to call the shots, as councils retain the mandatory enforceable duty to meet needs, even if they can’t find willing providers to sell them what they need to deliver. A supported living service with people unskilled in basic cookery would be indefensibly unsuitable for meeting a Care Act need or a s117 aftercare need, in our view, so relatives should challenge the COMMISSIONING policy. In some areas the trend has gone the other way, with councils returning to providing services in-house, such as the dreaded “managed account” service, in which one is supposed to nominate the council to manage one’s direct payment but then struggles to distiguish that system from ordinary top down council commissioning. Except one is still liable for meeting one’s needs!

  65. Should a person living in supported living in a tenancy (which was not signed directly) always have a community DoL authorisation in place?

    • If the non signing of the tenancy in the person’s own name, was because a Deputy signed for the person on the basis of lack of capacity in relation to property and affairs, then it is more likely than not that they lack capacity to consent to the regime that their care plan amounts to, particularly those parts that are interventionist and require restriction of freedom.

      In that case, if they are under continuous supervision and continuous control, and not free to leave for good, then yes, there needs to be authorisation, after scrutiny and a review schedule, because DoL Safeguards do not cover people’s own homes.

      It is always a moot point as to whether the care plan actually amounts to that sort of a regime, because it will hardly ever say so, and it has been fashionable for care plans to be outcomes focused only, despite CoP judges saying that benign restraint regimes etc should have been ON the care plan and specifically commissioned.

      Secondly, the fact that a person can leave but is under some species of authority regarding their return under pressure of ‘consequences’, will usually be enough to make an apparently open regime into deprivation of liberty, in legal terms.

      The place to go for this sort of authorisation, pending the maybe-never-arriving Liberty Protection Safeguards, is the Court of Protection, usually using consensual paperwork signed by a person’s best interests consultees or deputy, only. To the extent that a person may have a deputy, or a welfare deputy, that person does not CONSENT as such to deprivation of liberty, by reference to that consent order; they merely signify that they do not object.

  66. What is the significance of a need for ‘prompting’ in the social care legal framework?

    • The benign prompting of someone by another is a form of assistance which counts for the purposes of eligibility under the Care Act, regarding being unable to achieve any one of the 10 domains listed.

      If you need prompting, you are unable to achieve on your own, even if you go on to manage the task/outcome.

      Prompting someone to take prescribed medication doesn’t count as the regulated activity of treatment for CQC registration purposes. Medicines administration is not a personal care task that is even mentioned in the Care Act criteria, although it’s hard to think of a more direct intervention than putting something in someone’s else’s body!

      Prompting someone in connection with their personal care, if it’s just encouraging them, doesn’t count as a ‘personal care’ activity for CQC registration purposes.

      But if it the task involves supervision of personal care tasks, as well as prompting, then it does count and thus requires the provider of that combined task to be registered with CQC.

      Supervision will normally include direct observation of the action as it is carried out or otherwise checking on how it being carried out, but will not normally include merely encouraging someone to perform the activity, or checking at some point afterwards whether it has been done.

      If a provider is tasked merely to prompt and nobody DOES anything about the task that was thought to be prudent and desirable, then it counts as less than personal care, and merely as support, meaning the provider doesn’t have to BE registered. Supervision involves persistent prompting, and not giving up until the outcome is achieved, in our view.

      We think that some councils have quietly dropped the supervision element from the care plan, on the basis that it takes too long and is costly, and after all, the person hasn’t been put through an MCA incapacity test, is entitled to the presumption of capacity, and thus should be able to choose!
      But the point is that if the person will suffer foreseeable harm as a result of the task not being nailed and completed, then that may be a matter for them, if they have capacity, but if they actually clearly don’t, it would be shutting professional eyes to the blindingly obvious risk of preventable harm.

    • That requires quite a lot of unpicking. An ordinary parent is a guest in that person’s home, just like anyone else and has to be invited, or else is trespassing. Nobody reasonably insists on visiting if it would be inconvenient to a person there, who’s going on an outing or in the bath, do they, or at 2am?

      However, if the parent is a finance and property deputy, they count as one and the same as the client, so on that footing must have a set of keys, in our view, unless they have agreed otherwise as part of care planning, and from choice.

      A parent deputy who uses this power or right in an intrusive way is soon going to find that the culture is that the person’s wishes and feelings have to be considered, and that the care provider on site, thinks that they’re in charge of the environment by virtue of having agreed to do 24 hour care, or by virtue simply of the culture of ‘keeping people safe’.

      The provider is not in control of the property or the environment, under the Care Act, however, because the local authority has no control over a person’s own home and can’t commission what it can’t justify, under the Care Act, even if taken together with the MCA.

      24 hour care, benign and proportionate restraint, and Deprivation of Liberty in the community may all be within the purchasing power of the council or CCG but not lockdown when it isn’t the law for the rest of us, not via the Care Provider.

      Not even deputies can prohibit a named person from having contact with a person, not even if the visitee lacks capacity.

      We think that it is obvious, but not understood, that the care provider does not manage the environment, in the same way as a care home manager does, and that each person’s council contract for the care and support cannot lawfully extend to paying the provider to be the decision maker as to everything that happens in that house or set of units or to the tenants. This is the fallacy of the model for purchasing 24/7 care as if it was a guarantee that every service user with complex needs would always find that there was someone there for them, whatever the issue; but parents fall for that message, because of how ‘restrictive’ the alternatives of institutional care for young people are said to be…. We think it all depends.

  67. Can a council or the landlord of supported living/extra care housing use the concept of ‘best interests’ to deem the tenant to have surrendered their tenancy if they have been gone a long time?

    • No, the tenant is entitled to be assumed to be intending to live there for as long as their stuff is there in situ in their room.

      If they have to go to hospital for a long time, or are going to be away somewhere being looked after because of illness, there are complex HB rules about how long that can go on for, but that just brings the means to pay the rent to an end. The rent goes on accruing until the tenancy is brought to a proper end.

      Terminating a tenancy properly is a matter of contract law; if the tenant or their deputy or other authorised representative doesn’t terminate it, and is paying rent, then neither the council nor the landlord can treat the matter simply as decided, outside the rules about termination of Assured Shorthold Tenancies in force at the time. Nor can they use the Mental Capacity Act to deem it as ‘better’ for the person that the tenancy be regarded as surrendered.

      Ultimately if the relationship with the Care Provider or the other tenants, the Court of Protection may have to be involved or an application to remove the Deputy and replace them with another Deputy, may be necessary.

  68. Can councils and / or CCGs make arranging a care package or a personal budget / direct payment / individual health budget dependent on, or conditional upon – a person moving into a tenancy of the commissioner’s choosing? Ie into a vacancy in supported living or extra care?

    Does it depend on a person’s capacity? If it can’t be done, why does it happen all the time?

    • CASCAIDr is gunning for this approach to the offer of care, and can point to at least one case where this was characterised as a breach of human rights: Perry Clarke v Sutton LBC. There, the man had occupied a flat as a tenant for some years, and was asked by the funding council to move in order to save the newly liable council the expense of paying the current on-site provider its specialist care fee. PC said no, and the council said ‘Well we’re not paying this provider – and your budget is going to be a lot smaller, so you will effectively have to move’.

      PC brought JR proceedings and won, on the basis that the council had no rational alternative plan or budget from its preferred provider; but also because making someone move to a new tenancy, just to save the council some money was an impermissible invasion of his human rights. It’d be different, of course, if a council would and could, lawfully, appropriately, offer the person in need, a place in a care home, because the council contracts for those in order to meet the needs. But PC was far too young and too ‘able’ and established in his own home to make even thinking about that into something that could be presented as a therapeutically appropriate piece of care planning.

      Very few tenancies in supported living are granted by the social services department as landlord: the tenant or their deputy is making arrangements for the person’s own housing, and it is nothing to do with – nor ‘in the gift’ of – the council; so our logic is that ASKING the person to move and satisfying the service user that the provider associated with the new facility would be an appropriate provider after a proper re-assessment and care plan, is all a council can ever do, compliantly with the Care Act.

      It can be that the CoP will order that moving into a setting where care is being offered by a council or CCG is on the table, and the CoP consents to the tenancy being signed or a deputy is appointed. But most of the time it happens because people say yes to the suggested facility, without really considering what they’re getting into. Residential care or an ATU for a young cognitively impaired and challenging person is always regarded as a less good option, economically, for the commissioner, and in terms of choice and control by those who run this competing models, as a business, and by people’s parents – who perhaps do not understand that much supported living is simply posing as a different model, and is in fact hard to distinguish from residential care, but without the CQC’s inspection of the property and the way the environment is being managed, as a back-up.

  69. Can a person in supported living be made to go to bed at 6pm to suit the care provider’s rota?

    • A person who is living in supported living, as a tenant, is a person living in what is their own home.
      The local authority has no rights over the property. The landlord has only the tenancy agreement over the tenant. The care provider is not in charge of the property, or able to make the tenants do anything they don’t want to do, or put up with intervention or restriction of their choices, unless it is proportionate and necessary and otherwise in line with the Mental Capacity Act, even assuming that the person who is the tenant lacks capacity. The tenant will have had a deputy for property and affairs sign the tenancy, and that person is their statutory agent regarding decision making about the property, and people coming in.

      The lack of control on the part of the care provider is all the more obvious where the tenant doesn’t lack capacity, signed the tenancy themselves, and realises that they are supposed to be in a model for what’s euphemistically called independent living.

      The care going into that person’s house is care under the Care Act. It’s got to be care of a nature that is lawful, so that means consistent with what’s regarded as needed, in the light of the difficulties the person has, and the Mental Capacity Act.

      Going to bed at 6pm is not easy to justify as a therapeutic proportionate response to any type of difficulty.

      It seems obvious that bed time set for that time is being organised for the convenience of the provider and no doubt for their staff, in terms of a handover when shifts change. We think that that would be an example of very poor commissioning if the council even knows about it. No local authority could imagine that it is proportionate to a person’s privacy, dignity or autonomy to require them to go to bed that early.

      We think that the imposition of a lockdown by a care provider in a supported living house in a non-lockdown area, is simply not lawful, on the same grounds, even if it is being done for the welfare of incapacitated people under a Community DoL order. We can’t see how a Care Provider’s authority to make MCA decisions can extend to preventing a Deputy from coming in, in our view, since not even a WELFARE deputy is allowed to make decisions about prohibiting named people from accessing the person to whom they act as agent.

  70. What’s been the legal position regarding councils being forced to meet the kind of needs, during the first 5 months of lockdown, that would have been met by the NHS under CHC or a split package beforehand? I know the NHS was supposed to be paying for all the needs of hospital discharge patients from 19 March to 31st August, but what about people who weren’t IN hospital? Or those who had needs for clearly nurse type of inputs?

    • That’s a great undecided question which admits of several possible answers! Councils always have been forbidden to buy or fund Registered Nurse Nursing Care, unless it’s ancillary or incidental to something else they would have been doing, and there are some tasks that will not ever be able to be seen as of the nature of ‘social’ care or support – regardless of what the procedure is for CHC decision making. However, the normal legal framework is that if a person hasn’t been decided to be eligible for CHC, they can’t BE eligible, and that you’re only entitled to get inputs from the NHS if the CCG agrees.

      So no doubt the NHS lawyers would say that during this Covid period, when decision making about that sort of thing stopped, people WERE entitled to have their needs met in general, by their local authority (absent the RNCC input!) and be charged for them…if the easements were adopted or normal financial assessment was properly conducted.

      The hospital discharge guidance and the Coronavirus legislation mandated NHS funding of all people discharged from hospital until 1 September, without saying how that was to be managed, simply saying that the NHS should PAY, so it was all free for people coming out of hospital. But we don’t think it said what to do about people who had not been discharged from hospital but deteriorated in the community to a level of potential primary health need. Some of those would have needed inputs to keep them alive instead of just having an acceptable quality of daily living; some would have needed to be kept safely contained and care for with extreme 3:1 needs under a DoLS, having presenting priority levels under the domain of behaviour. Many would have qualified for Fast Track funding direct from the community. Thus it can be seen that the government guidance was indefensibly vague and in that situation, if anyone had had time, CCGs ought to have been made to co-operate, or face judicial review.

    • Anyone who has a right to be involved, in one of four main specified 4 Care Act processes, listed in s67 of the Care Act can qualify for a funded Care Act advocate, in theory.

      A carer could easily be someone who has substantial difficulty in engaging with a process, and conveying their own views, wishes and feelings, although they are not likely to be someone fully lacking in cognitive functioning, if they are themselves a carer doing necessary care.

      But plenty of people end up with someone who is needy in a different way to the first person, their partner, and they grow together to share their skills and shore each other up. That carer’s right to an advocate for their support needs assessment, is then determined by s67 just as their right to an advocate for the purposes of supporting them in their own care needs assessment, will be: that is, if they come within the regulations on what a council must take into account in assessing substantial difficulty. Two people with substantial difficulties will not be likely to be regarded as each other’s informal supporters and that means that each might then trigger the right to separate advocates. They can have the same one, if the council thinks that there is no conflict of interest, and neither asks for separate representation (Care and Support (Independent Advocacy Support) (no. 2) Regulations, 2014)

      (2) Subject to paragraph (3), each of those individuals may be represented and supported by the same independent advocate in circumstances where the authority is satisfied that there would be no conflict of interest on a material issue—
      (a) between the individuals; or
      (b) between the independent advocate and either of the individuals.

      (3) The local authority must ensure that each of those individuals is represented and supported by different independent advocates if so requested by—
      (a) either of those individuals; or
      (b) any independent advocate who has already begun to represent and support one of those individuals under arrangements made under section 67(2) of the Act.

      The test of substantial difficulty is not the same as applying the Mental Capacity Act, but an investigation along similar lines – regarding not the cognitive ability to make of a decision, but the broader concept of ability to engage with the processes listed.

  71. What does the council’s duty to promote wellbeing mean for or add to a carer’s rights under the Care Act?

    • The duty to meet an eligible carer’s needs for support in the caring task they’ve embraced, is not a duty to ensure that a carer can guarantee being a publicly funded supported carer forever; that’s still a personal choice for the individual in question.

      So the cost of supporting a carer is something that can ultimately be regarded as simply too much for the council to fund, given its duties to everyone else, as well.

      The wellbeing promotion duty has to be seen in that light. It is a duty that applies in ALL of the council’s functions, including commissioning, charging and safeguarding, and advice and information, so it applies, all the time. It’s a duty owed to any individual under consideration, informally or formally through a Care Act decision-making task that the council has to discharge.

      These are all the bits of the wellbeing duty in s1(2) and (3) of the Act that could be said to require special focus on carers, in our view:

      • a person’s physical and mental health and emotional well-being;
      • a person’s protection from abuse;
      • control by the individual over day-to-day life (including over … support, provided to the individual and the way in which it is provided);
      • participation in work, education, training or recreation;
      • social and economic well-being;
      • domestic, family and personal relationships;
      • the individual’s contribution to society;
      • the importance of beginning with the assumption that the individual is best placed to judge the individual’s well-being;
      • the individual’s views, wishes, feelings and beliefs
      and specifically,
      • the importance of achieving a balance between the individual’s well-being and that of any friends or relatives who are involved in caring for the individual.

  72. Can a care home give notice and expect the council to find an alternative option for my relative, at the moment? Surely that is not safe? I would have thought that moving into any care home at the moment is a risk issue, so I want my relative to remain where he is – they’ve done a great job so far. Should the council ask the care home to continue with the placement?

    • It’s not possible to answer that one without knowing more about the circumstances. No home is obliged, contractually, to keep a person any longer than the contract provides for, and that usually means until the provider makes that decision to give notice. The concept of a duty of care does not go wider than the contract. So if the notice has been given within the terms of the contract, and lawfully regarding any other protection rules that apply to notice to quit residential accommodation, then the council or CCG (whichever is commissioning) is liable to meet the needs that would then be unmet, appropriately and on time.

      If the notice has not been validly given, then one has a chance, but if the council is the contractor, one is then in the position of relying on that council’s commissioning staff to be bullish enough to say that something is not right and that the provider needs to think again. Providers of services to councils’ and CCGs’ clients owe human rights, so whilst that doesn’t mean they can’t give notice, they can only do so having conscientiously tried to resolve any dispute that might be the underlying cause.

      It IS really a question of negotiation now, more than any legal principle in play, because the government’s winter pressures plan for social care ‘promises’ free PPE and additional funding for care homes VIA councils, to prevent churning of staff working over different sites. On that footing, it would not be challengeable as such, in public law, that hospitals and councils continue to make placements in care homes in order to meet their legal duties. It is not the law that all risk has to be prevented at any cost, and the current care provider is not liable for non-negligent harm, just because they count as human rights authorities. We do not think that the ECHR article 2 right to life is engaged in this situation. If a person has got capacity, however, they still have Choice of Accommodation rights and ANY person placed in a care home by the State is owed suitability and appropriateness rights, regarding the specific needs, under the Care Act or the NHS Act and public law.

  73. I don’t have a written contract with my personal assistant who is now self-isolating after having been in contact with someone with covid symptoms. Should I use my direct payment to pay her salary or for the fees of a closed day service?

    My council says I cannot make any ongoing payments? The day service contract says that if there is closure for reasons beyond its control, payment is still required to maintain the place. The day service workers have been furloughed so THEIR employees are being paid!

    • Contract and employment law are in play here. If a contract makes no mention of what is to happen if the service has to close, then ‘frustration’ may be able to be claimed, which excuses payment. But here, it’s still lawful for it to open, so the contract isn’t incapable of operation – just harder, safely, if clients can’t be expected to grasp social distancing. If it has a force majeure clause, then whatever that says will usually be regarded as what the parties agreed. But if closure was explicitly agreed not to allow for non-payment, then that was what was agreed. The bottom line is that under a contract for services being paid for by direct payments, the council is not the controller of that contract, but must still meet the needs by reviewing and revising the care plan if the day service has become unavailable. The council is wrong in our view about saying that payments should be withheld to this particular day service.

      We aren’t employment lawyers, but on the PA question, you do have a contract with her, even if it’s oral. If you did not want that person to work, all you could do was put him or her on furlough and get that money from the government, paying the other 20% or not, if the PA was happy to vary the contract. You did not have to put her on furlough for her or anyone else’s safety; from the very beginning of lockdown, people were entitled to go to work if they could not work from home. The person was entitled to provision of PPE to protect that person at work, and would have been funded to do so through your Direct Payment, although it took a long time for councils to grasp that it was legally necessary for them to do this or otherwise provide for the employment obligation.

      Self-isolating because of symptoms or contact with a person who’d had symptoms used to be advice and attracted Statutory Sick Pay from day one even if asymptomatic. If she’d been on holiday, and had had to quarantine, the theory is that the PA took the choice to go on holiday and does not get paid for obligatory quarantining; that is the law. However, if the law now means she cannot work because self-isolation has become a legal duty, and she is not on furlough, you do have to pay her SSP even if she is not sick. As of 28 September, it is obligatory, regarding earlier self-isolation triggers or formal Test and Trace notifications, to self-isolate and the person still gets SSP but can also qualify for a £500 payment if low paid and not able to work from home.

  74. The council cannot find home care for my relative who’s being discharged from hospital. She lacks capacity to make decisions about where she should live and how she should receive care.

    Can she be made to go into a care home which will be a strange environment for her? I am concerned that I won’t be able to visit because the home will prevent this if infection rates increase. The council says this home is suitable because it is on their framework and accepts its rates. But can the council properly use homes that are not allowing visitors?

    • We’ve looked at this guidance dated 21st September here: to try to answer this, and think it’s been written by someone who knows some law, whilst placing responsibility on individual care providers. We think it could have been much better referenced, personally – with mention of the Care Act, duties of commissioners of CHC packages of care, public law principles, human rights and practical advice about what to do if met with a blanket policy.

      If a person should have been able to go home with home care, and a care home would not have been regarded as even an acceptable alternative for that person, the council would normally be able to be made to provide for an appropriate package of care because the duty is enforceable in public law, and lack of resources is not a lawful excuse.

      In a situation where professionals would not regard a care home as an INappropriate solution (and where one would regretfully consider a care home in a situation of genuine scarcity and not just fees issues), a care home offer would not usually be found by a court to be UNLAWFUL, even if it’s clearly not the best outcome.

      These are not normal times and we don’t think that the Administrative Court would say that care homes are unsuitable JUST because they’re strange environments for a person with impaired cognition.

      We agree that anyone can expect to have concerns about actual suitability for the needs of the specific individual to be conscientiously considered before a placement decision, even as an interim solution. We are confident that the impact of any institutional setting’s visiting policy is a serious issue that goes to suitability in public law and human rights terms. Care homes CAN choose to lock down; they are the owners of their businesses, and they’re the ones with the primary duty of care to residents, and staff, after all. But BOTH these providers and the funding bodies commissioning the care homes’ services for THEIR clients who are owed a duty under statute, are all bound by human rights law.

      We think that a care homes’ lockdown policy that is not required under the general law in the area or by a lawful order under the Public Health Act, is capable of being a breach of human rights, if not proportionate.

      The above referenced government guidance speaks in terms of advice to providers, and the lead being taken by the local public health director. It does basically suggest that homes take proportionate decisions about visiting but studiously avoids suggesting that care commissioners should play any part in this. Councils do have to play their part in emptying the hospitals again, and if the home is otherwise fit and proper, and on the framework, it is going to require CHALLENGING by the visitors or the proposed resident that placement in a care home with no visiting allowed is indefensibly inappropriate care, even to OFFER. If a person lacks mental capacity to consent and would be needing to be under a DoLS, the conditions aspect of the DoLS would be where the BIA has power to bring about compliance with guidance, for now, that visiting should be facilitated, with all practicable steps being taken to mitigate risk.

  75. I’ve been assessed by the council as being able to manage most of my own needs but need some support with cooking and in the shower because of my sight problems. I have mental capacity intact and I understand the risks. I don’t want people in my home because I am worried that I will catch Covid even though they say they will have adequate PPE.

    Can the council make me accept a commissioned carer entering my home because they think I am unsafe on my own?

    • No, they cannot insist that you let a key worker in, if you do not feel comfortable about it. The impact of Covid is the most obvious change of circumstances that could ever affect a person’s care plan, and of course you need a review which takes into account all relevant considerations.

      IF YOU DO have the presumption of capacity still intact, the council should have explored with you how you thought you would cope without care, or what else could be provided by them or willingly sourced by you that would avoid human involvement. It would be really good to think of some other ways that your safety could be monitored, and the cost of that could come out of the existing budget, perhaps?

      You (and the council) must have thought that you needed the care, originally, when first assessed and care planned for; and if you say you don’t need it now, you may find that it is assumed that you are stoically indicating that you will never claim it again!

      You’d be well advised to put it in terms of the balance sheet approach that you’re taking, in relation to your own best interests decision: you’d rather go without the care in the current climate because the anxiety arising from having the care outweighs the extra assurance that it was regarded as being desirable for. That way, you should be able to resurrect the package later on.

  76. My Council (senior officer) has said that although they have not enacted the Care Act Easements they have a right to decide how assessed needs are met. Is this correct?

    • Yes it is correct Ian, because that has always BEEN the law, so the suspension of the Care Act, if not adopted locally, leaves the council still operating as if the Care Act was in full force, and it’s business as usual. The Q and As on the care planning day we did last week cover off quite comprehensively how it can be true at one and the same time that care planning is subjectively person centred and needs led but objectively decided upon by the council, and refers to para 10.86 of the Care and Support Guidance, which explains WHY that is the law.

      Of course, if you are saying that your council’s staff are saying that there is no limit to how low they can go, or how mean they can get, they’d be wrong about that! There is, as our Q and A campaign seeks to explain, an all pervasive swathe of human rights and public law principles running through the Care Act which are given force by the Administrative Court. Putting that another way, any choke-worthy decision that a council makes CAN be challenged by way of judicial review, if one has the grit and the money for it. But it’s totally free to write one’s allegation of a contravention of the Care Act out, and email it to the Council’s statutory monitoring officer, usually the Head Lawyer – who’s got an independent and mandatory statutory duty him or herself to form a view and report to all the elected Members if the allegation is even LIKELY to be made out on the facts. Parliament actually created that remedy in 1989, but the Guidance makes no mention of it. The intention was that this senior officer in charge of governance would be able to secure a resolution and that it would stop councils getting judicially reviewed or otherwise humiliated in the courts. Pretty poor that the DHSC guidance doesn’t advise the public of its existence, eh?

  77. Does a carer have to prove that they’re suffering in order to be eligible as a carer in relation to their own support needs?

    • No. A carer does not have to be suffering or suffering badly to count as an eligible carer. Their wellbeing just has to be significantly impacted upon.

      For instance, their mental or physical health may be unaffected, as yet, but their ability to do other caring responsibilities that are their choice may be becoming affected and that may be causing them some degree of anxiety.

      They may simply be unable to work or continue with their old personal leisure activities because of the choice to care, and that juggling might be ceasing to be feasible.

      Without assistance from elsewhere, and a redistribution of the load, therefore, their well-being will be being affected.

      The question is, is it significantly affected: they may themselves be the first to say that it’s not crippling them as yet. Carers are often stoic. But if they don’t know their rights, they may be unfortunate enough to have a council assessor who says to himself “It’s obviously not so bad right now, as to make you threaten to stop, so – for now – we aren’t going to find you eligible but we will give you a little something under our POWERS to let you know we appreciate what you’re doing”. So after a day at the spa, funded by a carer’s grant, the carer can then find it even harder to say No

  78. My day service has closed and I receive ad hoc welfare calls and visits from the management once a week. That’s ok given the circumstances, but how can the council continue to leave me without any substitute for a service that they thought was needed, and how can they continue to charge me for this?

    I think they ought to reduce the charge or not charge at all, because in my care plan it says I should attend the day centre 3 days per week.

    • Most people would think it would seem obvious that if a social care charge is based on three days’ attendance at day care, and that’s not happening, the liability to pay the full charge previously levied, should not go on unamended.

      However, one is actually charged for services that are in one’s care plan – via a contribution to the overall budget, according to financial assessment and even if the amount of the service reduces, the cost being paid for that by the council might still leave your charge the same, because social services subsidises the full cost by not charging the full cost BACK (unless you have over £23250).

      The argument may be that the commissioner’s fees still have to go on being paid (by whoever is liable to pay for the service), in order that it remains viable, such that the care plan budget has not gone down. Even if the duty on the part of the commissioner to pay for the service continued under that contract, or the client’s own contract with the service, funded through a Direct Payment, provided for ongoing payment regardless of closure, the organisation will have been experiencing impact, and struggling to survive for the future. Its staff would have been funded to 80% of their salaries by central government, if furloughed, and the provider maybe even avoided the 20% shortfall by agreement with staff. But we do not think it is likely that councils agreed to go on funding the services, regardless of willingness to open. In some cases that would have been covered by contract, but in others, by simply dominance of the power balance, by councils, during what was a chaotic time.

      Where the client was paying through a direct payment, there could be
      a) no control by the provider of the behaviour of the day service provider (the council is not the contractor in that case) and
      b) no assumption by the council that the money in the direct payment was not now needed to meet needs; best practice says that clients should always have contingency arrangements for other ways to meet needs – and those might have cost more or less than the day service whether or not the contract provided for payment regardless of closure.

      On any review by the council of a person’s care plan, he or she should have got to keep their budget, it seems to us, for other ways of meeting needs, and that portion for the unmet need due to service closure should not have been unilaterally reclaimed or taken back or regarded as CUT.

      But, if the council DID save money, from non-payment for the closed service, that meant that the person’s budget went DOWN, and that could have affected the charge to the client for that budget, because the law is that the council cannot charge more than the cost of the services in had arranged. How this complexity will ever be sorted out, since clients don’t get to find out about contractual negotiations behind their care plan, and care plans are often not updated to reflect changes in fees levels, is literally beyond our imaginations.

      Here is an answer from a well informed council person, as it happens:

      We are still finding our way around all the new legislation and guidance.

      The payments being made to day services were initially made as market sustainability payments from the government Covid monies, regardless of closure. The payments were based on the commissioned service as at 22/3/2020 – the last day of service delivery – and were made where staff had not been furloughed. Day services providers were required to make regular well-being contact with service users or in some cases, where people were very vulnerable, an alternative service was sourced (and paid for from the care purchasing budget and charged), even though the original provider was still paid the ‘market sustainability‘ payment. As these payments were state aid payments no charges were made to the service users.

      The initial government funding went on until the end of June and subsequent payments have been funded by the LA allocation of the IPF monies – first round until October and second round just in, until December. Again, we are not charging against IPF monies used to sustain services as it is our understanding that this would not be consistent with the terms.

      Some day care has resumed and where this happens providers are paid from the care purchasing budget rather than the IPF monies and people pay their assessed charge based on their resources irrespective of the amount of care they have but with the usual default that they pay no more than the cost of the service.

      So, in short – no service (or just well-being calls) = no charge! Reduced service = possibly full charge as before, but no more than the cost of the contractual service being commissioned, for the reasons explained.

  79. If my day service has reopened, so that I can’t attend every day (they’re doing distancing so we could all go but only for half the time that was originally envisaged) and I have been managing at home thanks to the greater than usual support my wife provides normally, with cooking, cleaning and my personal care etc that I’ve been having from my wider family, can the council reduce my budget and say I no longer need the support? They’ve said that on the phone but haven’t come round to check with the family.

    • That’s easy: they can, whilst she and that wider family network is willing and able to do sufficient to keep the impact on you of not being able to access the day service, in light of your mental or physical impairment, comfortably less than significant. It’s not just a question of asking you ‘Are you surviving for now’ – there’s more to meeting needs than that. But on what you’ve said, yes to suggesting your dependency has reduced for now, but not forever.

      The council should have reviewed your situation, since it has clearly changed, in lockdown, and also because if they know that the day service is not functioning, they KNOW that they are not able to deliver on or otherwise sustain the care plan that was first written up for you. The care plan is the source of your rights to adults’ social care, and is enforceable, unless or until lawfully revised. So that even if they are a bit behind, or just working day to day on the phone, your care plan needs to be reviewed and then revised under s27 Care Act, to reflect the change.

      The law is that a review need not be face to face; it could be done by you phoning them. A revision decision triggers advocacy, if you want it. We reckon that just as many people as would think it essential, would be likely to be disturbed by face to face social work, since those reviewers would be seeing many others and risking exposure to higher viral load. Review and re-assessment do not have to be done face to face, but most councils will be open to reasons why it really should be, and incapacity or impaired cognition is always relevant. A revision process DOES however have to involve carers and anyone you want to involve, so not even speaking to the family members being relied on as substitute means for meeting needs, does present a council with a legal problem!

      Section 27 means that without necessarily needing to go back all the way to an Assessment and a new eligibility decision, you do need a new care planning process and a plan to reflect the greater than normal support she is putting in, and you will need a re-revised care plan if she/your family wants or needs to withdraw that support, to take up their own priorities or obligations again. There may be OTHER ways of meeting a need that do involve expenditure, which the council may be obliged to reinstate.

      Also, if there’s evidence that your wife is suffering so obviously from the extra strain placed upon her through the care she may be providing, to meet what have already been agreed to be eligible needs, such as to make any competent professional concerned about her ability to carry on caring, objectively speaking, then the council cannot just shut its eyes to that, even if everyone stoically carries on!

  80. Do the friends and relatives of care home and supported living clients count as carers under the Care Act, given that someone else may be looking after the person 24 hours a day? And what about the carers of s117 and Continuing Health Care clients?

    • Yes, of course the friends and relatives can count as carers.

      The eligibility or otherwise, of the person for CARE services, a budget etc, under the Care Act, or the fact that their needs are being met 24 hours a day under the Care Act care plan or other legislation (the Mental Health Act) or NHS DHSC policies (Continuing Health Care) is completely irrelevant to a person’s status as a carer.

      Those Acts only require the meeting of eligible needs, not other wider needs. People providing input to well-catered for clients under any legislation may not count as eligible carers, under the Care Act, because they are not in a position any longer where they are being looked to for an amount or intensity of care that is affecting their ability to achieve, across the domains for carers’ eligibility for funded support, or that is causing them significant impact any longer. But that doesn’t mean they don’t count as carers.

      They may be visiting and cheering the person up, or they may be taking the person out; they may be transporting the client and even other clients living with their loved one, to activities, or driving the Motability scheme vehicle to which their loved one is entitled, several times a week.

      They may be managing that person’s benefits as an appointee; they may be keeping an eye on the standards in the setting in question. They may be replacing damaged fixtures and fittings in supported living; they may be looking after the person’s correspondence. They may be focused on ensuring that the Care Act is complied with next time a review team comes round with a mission to make cuts! All of that counts as practical or emotional support. As long as they are not being paid to be doing it, they count as carers. Even if they are being paid to do some of it, other unpaid inputs can justify a council acknowledging them as a carer in any event.

  81. If I voluntarily met someone’s needs during Covid-19, can I be paid out of the direct payment that was not otherwise used?

    • That’s an interesting question because we all use the word voluntarily in a different sense, in our experience.

      Some people mean consciously for free, even though they appreciated that it was the equivalent of paid work; they didn’t realise they could even have asked to be paid by the person, or out of public money. They did it out of a sense of moral obligation to their relative because they thought that the person had no other means of getting care.

      Some people mean willingly, out of love, and by that they would refuse money even if it had been offered.

      Others will have offered the care without thinking about payment, and then discovered that the person had a direct payment that wasn’t otherwise used and will have spotted a legitimate argument that they could have been paid and perhaps should have been.

      When a person has a direct payment, the only way it’s legitimate to expect to be paid out of it is if you agreed that with them – it’s their budget. If you really did volunteer and said to the care recipient or to the council that you’d do something for free that it couldn’t deliver any longer, you can’t expect to be paid, in our view. If the person lacked capacity to do that deal with you, they shouldn’t have been left with the direct payment in the first place.

      But if a council has just not got round to sorting out a person’s care during Covid, when it should have known that something had happened to the existing care arrangements, or it took back budget on the basis that it wasn’t needed so as to MAKE people step up to care for their relatives, or should have known that the person shouldn’t have been left with a direct payment – and someone has stepped up, there may be an opportunity to serve a request on the council to be provided with restitution. People can claim a reasonable amount under the Mental Capacity Act s7, for the provision of necessaries, IF the person lacked capacity.

      But getting the council to pay the person to pay you, or otherwise recoup the value of the service, lawfully, from the person’s own funds or the direct payment account, is another thing altogether. If you are a close relative living in the same household, then you would have needed the council’s permission based on necessity, anyway. You need to ask, pointedly, how could it have been anything other than necessary, given the circumstances that the needs were not otherwise able to be met? That’s why we’re reserving the most hope of reimbursement/payment for people who not only stepped up but who can point to some sort of failure or omission on the part of the council, regarding its duties during the Covid period.

  82. What’s the difference between a carer’s rights to be involved in the person-in-need’s assessment or care planning processes, and an incapacitated person’s relative to be consulted on best interests – and are those rights different to the rights of ANYONE actually getting sight of their loved one’s previous care plan?

  83. What can (or should or must?) a council DO for a carer, if they are not found to be eligible under the Care Act?

    • A carer can still benefit from the legal framework, even if someone who counts as one has not been found to be eligible. A carer is anyone who provides or intends to provide something by way of practical or emotional support, so there’s no test, any longer, of regular or substantial support or ‘hands-on’ care.

      Many councils run a carers’ HUB service whereby anyone can obtain low levels of support by way of advice and information, and benefits advice such as about attendance allowance at least, and navigation as to what is available for free, in the local area. That is seen as prevention and reduction and makes good sense as long as carers aren’t screened out of formal assessment if they ask for it – it is in fact an entitlement based on an appearance of need for support.

      There are rules in s13 as to what is supposed to happen when a determination that ANYONE is ineligible is made. The Care Act is ambiguously drafted about the obligations specifically owed to a carer, as opposed to the adult in need of support in this situation, but it is likely that the council must give the carer a written and reasoned decision, for the finding of ineligibility, and written advice and information about—
      (a) what can be done to meet or reduce their needs;
      (b) what can be done to prevent or delay the development of needs for care and support, or the development of needs for support, in the future.

      Also, in the separate DWP benefits system, being registered for Carer’s Allowance will mean that one is claiming to be providing 35 hours a week of unpaid support, and that can be based on what’s being done at night, in terms of supervision; so if one otherwise qualifies, that can be a way of adding to one’s income.

  84. What’s the main difference between the ‘inability to achieve’ tests for adults’ and carers’ eligibility for funded services?

    • The tests are necessarily different because the domains (or ‘outcomes’) of daily living are self-evidently bound to be different tasks, for those who are caring and those who are cared for. Caring for someone is not going to stop a carer dressing themselves, or going to the toilet for instance, but may well prevent them from having enough time to access leisure or recreation or maintaining a habitable home environment or looking after someone else.

      Any carer has to get over the threshold of being seen to be providing ‘necessary‘ care, not care that is not even needed in the first place.

      Beyond that, the actual test is different in three specific ways: for carers, it’s inability to do any one of the domains described, plus significant impact on wellbeing, not any two or more, that matters.

      Secondly, there’s a second way in, not just through inability to achieve across the prescribed domains, but by reference quite separately to deterioration of the carer’s physical or mental health, plus significant impact. The judge of that is the council, but it’s hardly sending a message of gratitude and appreciation to the carers in one’s community to be saying “Hmmmm we don’t believe it, prove it” – bearing in mind that carers can down tools any time they like, and don’t need permission to do so, let alone a sick note or a reason!

      And thirdly, whereas a cared for person can be unable to achieve by virtue of taking a much longer time than a person without a difficulty, to succeed in the doing of a listed domain or a task, a carer is not given that way in.

      Which is a bit mean of the law, because of course if a carer is having disturbed nights from night-time supervision, they will of course be likely to be exhausted, and take longer to do whatever matters to them. But that just doesn’t count, we have to point out…

  85. Can informal family carers who have been assessed as eligible by a council, (eligible for support) be told that they can only have support in the form of money and not the services that they would find more helpful?

    • No, it is not legal to make a person accept a sum of money under the Care Act once they have been found to have eligible unmet needs, unless they have requested that way of meeting the need via s s31 Direct Payment.

      Direct Payments, which flow from the council’s care planning and budget setting functions, are not able to be seen as a legal discharge of the function of meeting needs, without the capacitated consent of a person, regardless of whether that person is a service user or a carer.

      If a person has not been formally assessed, however, because a carers’ hub or some other advice and information service has got the authority to make welfare promotion payments of a few pounds, as a prevention and reduction service, (otherwise known as a carer’s grant in some places) then that would not be the offer of a formal direct payment at all; it could be otherwise lawful, whilst wholly discretionary. So, identifying the stage at which this offer has been made is the all-important thing for legal advisors who are querying this sort of an approach. The person who really wants a service instead of money should insist on a formal assessment and eligibility decision and support plan, and if refused even that, refer the matter to the council’s Monitoring Officer as a contravention of the Care Act.

  86. How come the Care Act treats funded respite as a service for the service user, not the carer?

    • Respite is not something that any carer “needs” because they can choose not to care at any time they like. But if they do make that choice, then the needs that they had been meeting may well be care and support needs that if not met would create a significant impact to the wellbeing of the cared for person, in areas within the national minimum eligibility criteria vision of a tolerable sort of a life – where the person who’d been cared for, would clearly be ‘unable to achieve’ as defined.

      That is why when a council assessor does an assessment, they are obliged to log ALL the needs for care and support and pretend that the human input is not THERE at all, in order to log the ‘global’ inability or deficits, and the ‘global’ impact, even though the unpaid carer IS clearly there and the cared for person is doing really well.

      So, the potential GAP is what generates the need for respite for the person cared for; it’s just another name for meeting need, on the care plan of the person cared for.

      There’s another reason too. If a person who was well-off was well-informed they could refuse to be assessed in their own right, and avoid paying a high charge for council care, by getting their carer to be assessed for ‘respite’ – and then that funding would be flowing for the benefit of the person cared for, without any charges being likely to be levied, and that would be unfair to others and to tax payers, since social care is chargeable.

      Therefore the system is structured to make sure that where that is the case, the carer is not funded for substitute care so they can withdraw, without the person cared for both agreeing to be financially assessed, and agreeing to receive the care. This ensures also that there can be no contention made that the person cared for was assaulted by the direct provision of care from a stranger at the behest of the carer using that money.

      For carers whose loved one lacks capacity, of course, assessment can’t be refused, and a best interests decision can be made for them, and their care plan, and their charging assessment regardless of their consent, so the carer should get some time back for themselves.

      It is people who HAVE capacity but who refuse to be assessed who put their own carers in an impossible situation, in our view. But a brave social worker would likely have the moral and intellectual courage to speak truth to power in that situation, and hopefully take the heat off of a dedicated but over-exploited carer.

  87. Which council is legally obliged to assess and fund support for an eligible carer of a service user / a person cared for – The carer’s council or the person’s council?

    • It is logically and legally the council where the cared for person lives, because that is the council that is making the saving by dint of the informal care coming in to meet needs.

      So if I live in Surrey but my Dad is in Hampshire, it’s Hampshire which needs to spend some money on supporting me, if I am found eligible.

      The guidance suggests that if equipment is being provided, direct to a carer’s home, eg for laundry that they are doing for several members of their family living in different areas, then those various councils should agree how to arrange sharing the cost of that support.

  88. Do you think that the legal test for what makes for a lawfully sufficient budget for meeting an eligible adult’s needs for care is the same as what the legal test would be for a lawfully sufficient budget for the support needs of a person’s informal family carer?

    • No, we do not think that it would be the same test – although the government has always said that the law applicable to adults is intended to be equally applicable to carers, and there are similarities, in the way the care and support planning tasks are treated in the guidance.

      A rational thought process, regarding what would meet needs (ie reduce significant impact or make the carer into someone able to achieve what they were not able to achieve before) would be the same.

      But for setting adults’ budgets, a council needs a rationale, a coherent evidence basis for allocating a particular sum of money to meet the needs it is required or choosing to meet, and a willingness to be transparent about that rationale.

      The purpose of the carer’s budget/support plan is really fundamentally different to that of the budget for the service user. Clients don’t (in the main) choose their disabling condition or illness, whereas the carer is choosing to care, and can stop at any time. So sufficiency is almost a self-fulfilling concept: if a carer keeps on caring, despite being inadequately supported, or supported less and less generously, after each review, the council can’t be ‘blamed’ for making the most of that, on paper, in legal terms.

      It could therefore come down to a much more detailed scrutiny of what has been said to whom about what, ie whether anyone has misled anyone about the local authority’s obligations or hinted that if the carer won’t care, then something dire may follow, to make a good case out for an unlawfully insufficient budget for a carer, we think.

  89. Is it legal to pay one’s relatives for care? (NB: trick question – we’ve not mentioned any council involvement as yet!)

    • Yes of course it is legal to pay your relatives to care for you, if you are spending your own money. Who on earth would stop you? It’s not a crime; it’s a matter of ordinary contract law, and it could give rise to a formal PAYE or self-employed role. People use their attendance allowance to pass it on to their loved ones, and that amounts to paying for care.

      If you are doing it formally, you may find that the council allows such payments as disability related expenditure for the purposes of the charging assessment, but that only helps you if you are receiving other chargeable services funded by the council.

      Councils may have a policy against doing that, but they can’t have a rule, and must be open to being asked to consider the circumstances in which you have come to pay your relative formally.

      The trick part to this question though, is that those asking it are nearly always asking a slightly different question, which is whether you can use public money in the shape of a personal budget and especially one converted into a direct payment, ie cash for the person to contract with – and that’s much more complicated.

      The basic answer is yes, unless one’s chosen worker actually lives in the same household and is a close relative on a special list in the regulations, or one’s spouse or person living together as if married. In those cases the presumption is that is not what the public money is for, but an exception will be able to be asked for on the grounds of necessity, of which the council is the judge, subject, as usual, to judicial review for failing to address the material put forwards or other public law wrong-headed thinking.

  90. Who is the decision maker as to whether a family carer (caring out of natural familial affection) is able to carry on doing what they’re doing? Is it legal for a council or a CCG to treat someone’s relatives as able to carry on coping with the caring load (or even the health inputs tasks) that they’ve taken on or been left to get on with, until they have explicitly said they’re not willing to carry on?

    • No, it’s not legal, and it’s not professional, ethical or anti-oppressive, either, in terms of the values expected of professionals working in social work and care planning, including CCGs. It is the carer, in all cases who can decide; they’re able to put themselves first, and as long as they do not run out on the person without notifying the council. They are able to say that they are not willing. They are able to say that they are not ABLE too, but that requires a bit more evidence, so it’s actually easier just to say that one is not willing because that is not something that can be gainsaid.

      The question is always whether eligible need is being met and thus offset by a person who remains able and willing to carry on. If so, the body does not have a duty to fund the need. Carers who understand this will therefore grasp that they can still keep control of their own lives: they just have to say what they will or will not be prepared to do, and know how to force the council or CCG to shoulder the responsibility of meeting the unmet eligible needs within whatever the carer had been doing.

      Easier said than done, one might think. If one has not ever been a carer, one might perhaps assume a person would just say that they were not willing any longer; but in the real world, people don’t do that, for a mixture of reasons – unawareness, cultural conditioning, and emotional and moral sensitivity, or less edifyingly, perhaps, somewhere to live, or because they are receiving carer’s allowance. Some can’t live with the thought of the person cared for going without, and they don’t know enough about the legal framework to know that they don’t have to care and that the State is liable. So it’s crucial for everyone to realise that the law requires the care planner to consider the possibility that even though a person is seemingly willing to carry on, they may not any longer be ‘able’ to do so – or unable to do so appropriately, so must be helped not to care to the same extent, or even, sometimes, stopped from trying altogether!

      ‘Able’ is a question that has to be considered rationally and according to the evidence, and objectively, in light of the wellbeing duty to balance the interests of the cared for and those who are doing the caring. So, if the facts are such that no reasonable authority would expect a person to shoulder the load that is being carried, it’s no good just saying ‘Well, he’s still DOING the care, so he must be able, as well as willing, mustn’t he?”

      Councils can be judicially reviewed for refusing to engage with compelling evidence of inability even if a person is carrying on caring, even before the assessment of the carer OR the person being cared for is finished and this happened recently in the Redbridge case. So, if one says one is unable, one can expect to be listened to more conscientiously with medical evidence of deterioration. If there’s evidence of physical and mental deterioration, there must be clear and conscientious addressing of that material, by those considering the situation, and a defensible decision taken only after all relevant material has been logged and considered. And this evidence does not require to be thought about ONLY in the context of a carer’s assessment; it’s relevant and essential in the decision-making process about the cared for person’s own care plan. Authority for all these principles can be found in the 2018 High Court level of the CP v NE Lincs case and the more recent Ali Raja and Hussain v Redbridge case.

      Having said that, it is true of course that not every single input from a family member would be seen as equivalent to state funded care and support, if it’s just company and a bit of TLC. Not every bit will be regarded as meeting needs, let alone needs which if left unmet, will necessarily create the significant impact on wellbeing that is required by the regulations, in order to transform that unmet need into an eligible one that must BE met. And not every bit of input would even be regarded as helpful – the input, although well-intentioned, may be keeping the person dependent, or morbidly overweight, or at an unacceptable risk of choking, or whatever. One has to accept therefore, that if one withdraws from caring, one is not going to be able to insist that the whole of that input is replicated by money or services: the council, once it is paying, is the decision maker, subject only to judicial review for appallingly indefensible stances on what will be sufficient to meet needs.

  91. If I have succeeded in getting welfare deputyship, from the Court of Protection (which was hard anyway!), what does it mean that I get to decide about, regarding my relative, please?

    • Very little, we have to say. Sometimes parents of young people for whom they’ve spent years battling the system think that deputyship continues parental responsibility and rights, but it does not. We think that longing for welfare deputyship is misguided, and that a good knowledge of engagement responsibilities of health and social services bodies under their governing Acts, AND the Mental Capacity Act can generally avoid the need for the role. Welfare deputyship only extends as far as the person’s incapacity over specific issues, so just thinking that one is now in charge of the person’s welfare in a general ‘global’ sense is not correct. Even getting copies of old care plans out of a funding body, if that body asserts that the person in question does not LACK capacity regarding permission to share, can be a nightmare, and having the status does not always avoid the need to take such issues to a court.

      Secondly, there are many things that deputies cannot make decisions about, even if the person does lack capacity on those issues: issues which are reserved to the Court itself, those explicit limitations being listed s20 of the Mental Capacity Act. Deputies can’t consent to a deprivation of liberty and make it lawful; they can’t override a decision by someone to whom a lasting power of attorney was granted by the person when THEY still had capacity.

      Thirdly, the power is essentially to refuse consent to interventions from anyone proposing to touch, treat or restrict the freedom of a person, or deprive them of their liberty; it is NOT A POWER TO DECIDE ABOUT WHAT WILL BE OFFERED BY A COUNCIL OR THE CCG by way of the duty to meet needs. Those decisions are made under statute and governed by public law principles, which allow for consideration of resources, even where human rights are involved (mostly).

      The welfare deputy can have no greater decision-making power than the person him or herself could have wielded, in relation to challenging the package. But that means that a refusal of services by a welfare deputy risks being regarded as the refusal of services by the person, and thus as a discharge of the duty to meet the needs. Therefore, if one is really objecting to a care package on the basis that it is not LAWFUL, because not adequate, not sufficient, not rational, or signed off after a breach of due process, whether in the MCA or in wider public law principles, one must make that crystal clear. One must seek public law advice, funded through specific rules on merits and means under the legal aid framework – and not just frame the challenge as a DoLS s21A case, just because one can get legal aid more easily to do that.

      If one takes that easier financial course, one will struggle to get any CoP judge to use a judicial review or human rights approach to the underlying process regarding the offer of services that is being disputed. All a judge in the CoP can do is refuse to find the funding body’s offer as in the best interests of the client or patient, not find it unlawful, and judges have been engaged in extreme gymnastics to make up for starting the case in the wrong court, which is inevitability skewing the accessibility and coherence of public law principles under the Care Act.

  92. I have a question about assessing capacity. I consider myself quite knowledgeable but always have doubts about whether I am doing it right or not. I work in social care. I am aware that the person needs to understand the relevant information (that we give them) and be able to retain it for long enough to be able to use and weigh it and communicate their decision. What I struggle with is knowing whether the person has understood the relevant information. How do I know this for sure? My usual way of doing this is to look for evidence that they are following the conversation and agreeing/affirming, the way that you normally would when trying to work out if someone is understanding what you are saying – looking for signs of confusion or not following the conversation etc. I suppose what I am asking is, are there any particular questions that I should be asking to gain insight into whether the person is understanding the relevant information, or if I should be working on the balance of probabilities only?

    • I think that you’re doing it right. You could maybe ask the person if they could say back to you what they think that you’ve been trying to put over to them, as an extra check, but not in too probing a way, if they seem to be doing ok. Body language and person skills are the key to doing a good MCA, and professional antennae for any hints that the person is drifting off or disengaging.

      We think that the bigger problem can sometimes be the marshalling of the basics that have to be explained as clearly as possible in the first place. We know that if one is not being trained, it will be hard to explain to someone what the pros and cons are of a direct payment, sharing written information with one’s parent, especially if they have already got deputyship, or refusing to agree to a condition that the council can properly impose on a care package. There are plenty of MCA cases where the judges tell the sector off for being risk obsessed or risk averse, when the Act itself says it’s the consequences of the decision, or of not making one, that have to be the focus. The reason is that the welfare risks are part and parcel of what the commissioner has to decide about and manage, either through extra services and ‘cotton wool’ or by deciding that a given setting is not in fact an offer the council is prepared to make, even if it is the least restrictive. So we go on about professionals being legally literate in order to ensure that when they epxlain stuff to people they sound as if they are providing clear answers, and not making threats that will sour the relationship. I do hope that that is helpful.

  93. I’ve been looking after my mother, at her house. She’s not hard-up. I’ve only just become her DWP appointee – she only gets a state pension. We’ve been living on my savings for months. I don’t get along with my siblings. None of us wants deputyship, given our relationship. Mum has fluctuating capacity regarding her wider savings – she can’t give me an LPA, as far as the social worker is concerned. CAN I use her debit card, if she gives me the PIN, to buy things for us and pay myself back? The SW says it would be ‘abuse’.

    • Firstly, your mum is entitled to the presumption of capacity, and signing an LPA requires more capacity, generally, than sharing one’s PIN, in order to ensure that one has food and other necessaries, through the assistance of a kind relative. Yes, her card issuer could take the view that she should not share her PIN, but it is up to her. So in our view, you should get on with it – it’s called informal authority for that one bit of financial intervention, if she agrees.

      The danger for people in terms of attracting legitimate safeguarding attention is that at some point that informal lawful authority will or may evaporate – at the point when your mum no longer knows that you’re doing it, so can’t withdraw the permission. So you should keep a record of returning the card to her on each occasion, and a good list of what you’ve spent it on so as to be able to evidence your utmost good faith, if anyone challenges you.

      If she deteriorates, it may be of use to know that the Mental Capacity Act imposes a liability on a person who lacks capacity to pay a reasonable fee, for necessaries, (see s 7). You have sufficient LEGAL authority through appointeeship – and the practical means, now – to act on the basis of that liability and reimburse yourself. So that is the case right now even if the social worker is right, that your mum could not now be seen as having sufficient capacity to be understanding the grant of an LPA over all her finances and property, or give you any permission.

      8(2) If the expenditure is borne for P by D, it is lawful for D—
      (a) to reimburse himself out of money in P’s possession, or
      (b) to be otherwise indemnified by P.

      (3) Subsections (1) and (2) do not affect any power under which (apart from those subsections) a person—
      (a) has lawful control of P’s money or other property, and
      (b) has power to spend money for P’s benefit.

      I have to say, though, that the LPA is not a matter FOR the social worker. You can always print off the forms and ask your mum on a good day if she would like to make you an LPA – she doesn’t need a social worker’s approval. The certifying person who has to sign one of the pages is not saying that the person HAS capacity, but that there’s no concern that they lack it on the day, which is the reason they need to have known the person for at least 2 years.

  94. Why can’t I have a direct payment for equipment that the council would otherwise provide for me for free, so that I could have choice of what to buy or even add to some more of my own money on top of, in order to get a better item?

  95. When considering discharge of a patient with Coronavirus to a local authority-funded care home (residential care), what is the test/threshold for whether the LA should conduct a s 42 Care Act 2014 safegurading enquiry in respect of other resident(s)? I would be particularly interested in your views of the interpretation of ‘neglect’ in this context, and any relevant case law.

    I will happily chip in a tenner!

    • WE think that the person or their relatives should definitely be provided with details of numbers affected, but not because of s42. It is obvious to all of us that one can catch Covid without any negligence on anyone’s part, which is why the whole care sector is not being sued, I presume, by unhappy people and their relatives. Neglect is a harder test than negligence to evidence, so we don’t think placement is a s42 issue. People are entitled to appropriate care under the Care Act; in this particular situation, ‘appropriate’ cannot mean guaranteed Covid free because it would be literally impossible to move people in and out of care homes as soon as anyone tested positive.

      The more important thing, I think, is whether commissioners are monitoring homes’ approach to managing the risk, and DNAR shenanigans, and local paramedic risk profiling, and the visiting policies of care homes. Commissioners are conflicted: they have the ultimate statutory duty to meet need, and don’t these days have an alternative to care homes, unless they take hotels over, but would lack the staff; but at the same time, the government needs them to do their part to ensure that hospital beds are kept turning over, and for that reason is promising homes infection control monies and free PPE VIA commissioners in return for falling in with the use of the capacity tracker. Depending on the grit and legal awareness of care home managers or admissions staff, a fair price for the risk management and liability risk will either be being paid – or not. But from the client’s point of view, both the commissioner and the care home owe human rights directly to the client, if publicly funded, and the primary duty under the Care Act is to make a placement that is appropriate and suitable, in terms of the individual’s needs and the wellbeing promotion duty!

      We think that many councils will be receiving safeguarding referrals about deaths in care homes where those deaths did not result in at least an attempt to get someone treatment, but our FOI requests of all councils produced a staggering wave of ignorance of what was going on, in and about the care of people the state was contracting for, under the Care Act at the time. Many homes though will have ensured that people had the best death possible, and will be remembered by relatives as a source of compassion and commitment when they themselves were told that they could not visit. In fact it has never been against the coronavirus regulations to provide care to a vulnerable adult, and that’s why we think that the government guidance regarding visiting is hedged about with suggestions that care homes need to take a proportionate approach, now, if not before.

      • Thanks for your interesting and full response.

        My interest isn’t so much in tort law around negligence, but ‘neglect and abuse’ in the specific context of s42. I thought the inclusion of self-neglect within the (Care and Support Statutory) guidance may be interesting here, because a local authority may have a duty to make an enquiry without anyone being at fault. In my (non-legal) view it would certainly be proportionate to make such an enquiry in a situation where there may be a real risk of fatality to multiple people meeting the s 42 criteria. Not having an alternative (to res. care) arguably doesn’t give you permission not to assess the risk. Of course there is also a wider duty to assess and manage risk of abuse and neglect under the wider wellbeing duty, as you say.

        From a legal perspective I guess the tension between the care home’s duty to promote wellbeing and people’s Article 8 rights (to visit their relatives) is a difficult one. I do appreciate that everyone is in a difficult position, and the vast majority are doing the best they possibly can.

        • I absolutely agree that incapacitated self neglect, ie where there is either decisional incapacity, or there is executive incapability for a psychological reason, compulsive behaviour, PTSD, in weighing up the pros and cons of leaving oneself in that state, will be part of safeguarding. I am frustrated that councils obsess about returns about enquiries, when the word could just mean a very little exploratory conversation with the supposed victim, and nothing more formal than that. I agree that to decide whether anything more needs to be done, one has to have a little probe around in the first place. That’s assertive social work, and I think it may not have been done during the first few months of the pandemic, in relation to people the state was funding in care home beds.

  96. In terms of accommodation, is it legal for a social services council to tell a person that it’s the council’s LOCAL care home rates that apply, even if they “choose” to go to a care home somewhere else where a room is even MORE expensive than the local fee!?

    • No, Annex C of the Care and Support Guidance on Choice of accommodation says that the responsible council at the time of care planning, has a duty to place a person anywhere they want to go to in the country, (we’re speaking about England here) as long as it’s suitable accommodation for the person’s assessed needs, and has a vacancy which the provider is prepared to sell to the council, on normal terms, other than as to price, as long as the price is no more than the person’s personal budget (which must be rational, transparent, robust and sufficient).

      As to that comparison, Annex C says councils have to start out with the assumption that the going rate in the preferred area, for a council placement, should be the basis of the person’s personal budget.

      Councils often say that that can’t be right, and that surely it’s only if the person NEEDS to be placed out of area to be near something that is essential for their wellbeing – that the market rate there is relevant as a basis. But care planning law is that if some aspect of a care plan is acknowledged as needed, then the council would have to pay the going rate to meet that need anyway; so to be given any purpose and effect, we think that the words in the Choice Guidance Annex must cover a want to go to a particular area, and not just needs. The Choice regulations, from which the Guidance must be derived, are not limited to choosing a home in the council’s own area.

      You might be asking though about a person with very specialist treatment-related care needs, and then, the standard council rate elsewhere would not be a good starting rate at all. The home that is being preferred, and the homes that are being compared in that out of area locality, have to be able to meet the individual’s assessed needs – not just ‘any’ old needs. So, a ventilator patient will not be provided for at any council’s standard rate, in our experience.

      You might be asking about a particularly posh or lovely care home in a far-flung council? In that situation, it’s still open to the council who’s going to be paying, to argue that the preferred home’s rate IS above the local going rate for that other council’s placed clients, and seek a top-up over and above that local ceiling level. But it must be an evidenced local level, not an arbitrary level that isn’t actually sufficient for obtaining for any council placed clients there a package of care and accommodation for similar needs as this individual, before that stance can feasibly work for the person’s liable paying council.

  97. If I have been assessed as eligible for services, and been given a care plan with a budget in it and then the financial assessment turns out to treat me as liable to pay a very high price for that care, given what I am used to spending my own money on, and I want to say no to some of the services, what’s my legal position if I do say no purely on the basis of cost, and then I fall over or whatever at home, because the lesser package of care is not enough to keep me safe?
    What if I lack mental capacity but my partner knows we can’t make ends meet if we pay those charges, and says no for me?

    • On paper, you’ve made a choice, and you’ve declined services. The council can’t MAKE you have services, and it has a legal right to charge for social care, and recover the cost, as long as it’s done the assessment of your means correctly, allowed for Disability Related Expenditure, not charged for equipment, not overlooked any of the disregards that the regulations contain, refreshed their look at your savings properly and not just made assumptions that you’ve never spent another penny of your own money on anything NICE since qualifying, and considered your reasons for contending that the care is not affordable, given your financial situation.

      The theory on refusal of services would be that you have therefore discharged them from the duty to meet needs, so they can’t be liable to you, for breach of statutory duty, or for the fact that you suffer harm. That’s just on paper, though. As you can see, there’s a good chance that they will have messed the assessment of means up in some way or another, where the law is hard to interpret, and it’s always worth asking the council to reconsider, reminding them that they are not robots and HAVE a discretion.

      For instance, they can leave you with a higher Minimum Income level, if they want to: debt, for instance, although not mentioned in the regulations, may be a very good reason why you can’t afford the charges in real life. You can ask them to exercise their discretion on the ground that you are not living a wild high life, without them needing to give in that it’s all DRE.

      If you can steel yourself to not actually refusing services, the council cannot refuse to provide services, just because you don’t then pay, although that may make you anxious. So it’s a respectable negotiating strategy to underline your eligibility and plan/budget; point to the risk of harm, and how foreseeable it is if no care is provided, and offer to pay what you CAN afford, on the basis that otherwise you will just have to say yes to the services and then involve your councillor, in whose name the local charging policy is MADE, your MP, the ombudsman and maybe even the Administrative Courts if you think that the charging policy or practice is unlawful in some specific way.

      If you are lacking in mental capacity, nobody, not your partner nor your relatives, can lawfully refuse services for you and validly discharge the council from the duty to meet need. Only a finance attorney or deputy could do that, and they’d not be acting in your best interests regarding your wellbeing if they did, given your right to services, regardless of non-payment.

      If the services are taken up, and proceedings were ever brought against an incapacitated person, the council would have to find a litigation friend, if the attorney or deputy was not willing to take on that role, and even if they accepted it, they could raise any defence, regarding the claim, that you could have raised if capacitated, in public or private law, in any court the council chose to proceed in. Turning down necessary services, just because of the cost, should not happen in the real world. Advice and information services should make people’s rights clear to them.

  98. Can a funding or other form of senior managers’ panel override a best interests view that the front line member of staff has reached after the staff member has conducted careful mental capacity act processes including preparing a best interests balance sheet?.

    • It all depends on what that panel is supposed to be doing, as far as the body’s delegation scheme for its statutory functions says. Most panels we come across haven’t GOT a constitution or even a protocol governing their practice! But most are making care planning decisions under the Care Act, to which thinking on best interests may well be relevant – and we think that the best interests decision is part and parcel of a lawful offer, in public law terms.

      Some councils’ panels are just for approving funding in high cost cases. They are effectively ratifying a recommendation as to just one way of meeting a need after the staff have thrashed out costings and where no doubt a team manager has approved the front-line worker’s thinking. Others will listen to representations about two or more alternative adequate means to meet need, and then make a best VALUE decision – about the content and scope of the care plan. Others are for providing a sort of multi-disciplinary evidence basis as to what the consensus is in a given case; but all these situations envisage the panel MAKING the decision, in the end, treating the front line member of staff’s thinking as a recommendation, at most.

      Whoever is actually MAKING the decision to sign off the plan, FINAL, is the decision-maker for the purposes of the Care Act and any challenge to their or its rationale, via judicial review – and under the Mental Capacity Act. If they reject the front-line staff’s approach, they will need a rationale that is credible, coherent and comprehensive.

      In a case where the care plan under consideration by senior managers is for a person lacking in capacity, the prospects of any panel doing as good a job as the front line staff member, in terms of the necessary consultation of best interests consultees, liaising with an advocate, and weighing of the pros and cons of all the options in a best interests balance sheet approach, are not great. So, we would have to say Yes, they CAN override it, but they do so at their peril, if the staff who’ve done the front-line work have done it well, and competently.

  99. Is it legal to give someone a zero budget for eligible assessed neds if their spouse and child are willing to meet those needs but the person is clearly capacitated and makes it clear that they don’t want their loved ones taking on that role?

    • We can see how that sort of logic would strike a council or CCG who had focused training on maximising assets and strengths-based care planning. We can even see how the council would justify that it wasn’t too much to expect from a willing child, at least if the child was seemingly competent to make that decision and not just desperate to help their parent.

      But we don’t think it would be legal, in terms of imposing an unwanted assault on someone, that is, touching them without their consent. We think that that goes beyond the scope of the Care Act, and the Mental Capacity Act can’t apply to a person with capacity. We think it would be found to be a disproportionate intervention in a person’s human right to respect for their private, home and family life.

      When this country brought in the Human Rights Act, it was structured so as to require courts to imbue any legislation they were considering, with the approach of the European Court of Human Rights, wherever the wording conceivably allows it. So, where a council or CCG is exercising its judgement as to what will or will not meet need appropriately, it needs to be capable of applying human rights principles within care planning, on an everyday basis.

  100. Do people’s informal family carers have a legal right to be the manager of a cared for person’s direct payment if the council decides that there has to be some offer of help to manage, before it will grant a Direct Payment?

    • IMCAs were invented under the Mental Capacity Act and given a role at the care planning stage, for both NHS and council decision-making regarding particular services, namely serious medical treatment and accommodation in a care home for a likely lengthy period – but only for people who clearly lack capacity on the issue in question.

      Care Act advocates only operate under the Care Act for councils’ decisions, but at least they are now triggered for the main processes that affect people’s services, namely assessment and ANY care planning or revision of care plans, for people with substantial difficulties. And safeguarding as well. IMCAs are available to people over 16, whereas Care Act advocacy depends on one triggering a Care Act function which will generally be for adults only (apart from transition assessments).

      You don’t usually get a statutory advocate if
      • you have appointed someone to make your decisions for you, such as an attorney under an LPA.
      • the Court of Protection has appointed a Deputy to make your decisions for you
      • you have nominated someone to be consulted about matters that affect you
      • you have a close family member or unpaid carer who can support you in the process of making decisions, and you consent, or that person is considered to be appropriate for that role

      Advocacy for Deprivation of Liberty processes is not affected by having a relative in the mix, however. You have the right to help from an IMCA with challenging an authorisation even if you have a relevant person’s representative helping and supporting you to do this. Both you and your relevant person’s representative would be entitled to get help and support from an independent mental capacity advocate.

      Advocates can visit you in a care home, hospital or other place. They can insist on speaking to you in private. They have access to health records and make the best interests decision directly about that, overriding the data keeper if necessary. They consult with health professionals providing your care and treatment and can consult other people who may be able to comment on your wishes, feelings, beliefs and values, if you are unable to comment yourself at the time. They can support you in identifying your wishes, feelings, beliefs and values, or what these would be if you had the capacity to make the decision; tell you what your options are (if they know the law well of course); prompt you to get another medical opinion about the treatment. They make sure that the best interests checklist has been followed, the least restrictive options for your care and treatment have been considered, and that the Mental Capacity Act Code of Practice has been followed. If they are not convinced it’s all been done correctly, they should be funded to write a report with their concerns. They can help you complain, by using the NHS body (the hospital or trust)’s or the local authority’s internal complaint system, the ombudsman, or take the matter to the Court of Protection for a decision, subject to access to legal aid.

  101. Does a council ever have to take anything that the person says about their needs or difficulties, at face value? Or is the council the decision-maker about everything, really?

    Are there any real rights of actual choice in the Care Act?

    • There are strong exhortations in the Guidance to be person centred, and requirements in the Act at least to elicit information about the person’s preferences before making decisions – but the bottom line is that the duties are to have regard to these things, not follow them, or deliver them. Even promoting well-being stops short of a duty to make people happy, or rich, or well! So it’s sensible to regard choice as an overall aspiration in the Act, but understand that choice rights arise only in defined situations. There is no ‘Choice right’ to choose where to have one’s needs met, as between a care home or in one’s own home, not if you need the State to pay for it. There’s merely a right to a lawful care planning decision that takes account of all relevant considerations (including human rights) regarding the impact of the state making that choice.

      There is no ‘Choice right’ as such to choose to have a direct payment or even (really) what to spend a direct payment on – it must be spent on meeting assessed eligible needs, and is even subject to regulations-based rules as to whom it can be spent on. Most importantly, if you didn’t get a budget for a particular domain, you can’t decide to spend it on things or services for that area and leave yourself short on the one it was really for.

      The main choice Right is with regard to selecting a particular provider of accommodation, where taking up a room at that place is going to be part of one’s commissioned package. If you’ve got a personal budget covering accommodation you’re entitled to say to the council ‘I want to live at that particular named example of that kind of accommodation – ie it’s a choice of provider. But that right doesn’t apply to supported living or Shared Lives tenancies: if it’s you who’s agreeing to sign yourself into a licence or a tenancy, directly, you don’t NEED choice rights, do you? There is no Right of choice of provider for non-residential services in the Act although some councils will let you cycle around their contracted providers until you strike gold. Otherwise it’s down to a direct payment.

      The only other choice rights a person has in the context of adult social care are the right to refuse to be assessed, in the first place – s11; to refuse consent to being represented by one’s relative or friend as an informal supporter, so that funded Care Act advocacy can be triggered, if one prefers – s67; to refuse consent to one’s carer being given a copy of the written assessment of needs or care plan – s12 and s25; to refuse to be financially assessed – although this results in being deemed to be a full cost payer if the person is a service user – and to refuse services altogether, in which case the council is discharged from its duty to meet need, even if you then suffer harm.

      That is both the upside and downside of the importance we attach to autonomy in this country.

  102. Can someone be forced to have their mental capacity assessed? We have clients who are just being told that the social work staff are ‘coming to do MCAs’ on a given date, and nobody is being given any choice about it?

    • A care provider or a local authority should always inform a person that they would LIKE to do a mental capacity assessment and WHY. The assessor would need permission to visit the person if they’re living in their own home, or supported living, and nobody should be asked to make an appointment for an exercise like that, without the courtesy of having been told the purpose and scope of the visit. The assessor is also going to have to focus on the specific issue in question, in order to come armed with the basic factual information about that issue, and the consequences of a decision or of not making one, in order to maximise the capacity potential of the person being asked to make a decision.

      There is a threshold to surmount before anyone can be assessed at all, because everyone is entitled to the presumption of capacity in all aspects of their daily life. That threshold will be easily surmounted in the case of any clients known to be affected by cognitive impairment, but they are still to be presumed capacitated until they have failed on one of the 4 building blocks of cognitively functional decision-making.

      Capacity is always issue specific too: just because one lacks it in one area of life, one does not automatically lack it in another. Some decisions have been said to be unavoidably intertwined with a series of other decisions: the pros and cons of putting sugary substances in your body become more unpredictable as your blood sugar levels soar and dip, if you’re diabetic, and so it’s not just a question of asking someone with a cognitive impairment if they understand that they might die if they don’t take their insulin or over-indulge after not eating for a long time.

      People tend not to bother to analyse who the decision-maker is for any given issue: it is not the local authority, for instance, regarding leaving a tenancy, if the council falls out with the care provider over fees. The tenancy is nothing to do with the council!

      If a person says they don’t want to be assessed for capacity, it will usually be because they think that they have got capacity. If they think that they have GOT capacity they can MAKE the decision being asked of them and if that’s even relevant to a function under the Care Act, or safeguarding concerns, then their capacity can be assessed in the light of others’ views, without the person’s co-operation in any further probing, and an application can be made to the Court of Protection. There are cases in which the circumstances of someone’s decision have been such as to give professionals reasonable cause to doubt capacity and that is enough for an interim order. The court can ultimately decide then whether a person should be made to undergo further probing, but not even the court can force the person’s co-operation, regarding the answering of questions. The court’s decision on incapacity would then be based on evaluation of the decision as to whether they person can be regarded as making merely an unwise decision, or one where it is more likely than not that one of the 4 aspects of a cognitively functional decision is not something that they can achieve.

  103. Does the Care Act require a council to do a Mental Capacity Act Assessment for all its thinking under the Care Act whenever it’s considered that a person may lack capacity?

    • No. Lots of public servants (eg the police) might be dealing with members of the public who lack capacity, but that doesn’t mean that they are obliged to do Mental Capacity Act assessments on the hoof, if they have other powers to act under, in any event. And that’s true of the Care Act: it provides legal authority to do all sorts of things without a person’s consent, such that no legal wrong occurs if the staff just do what the statute tells them to do.

      Social work staff can easily misunderstand that, because the Act says that decisions made “in connection with care and treatment” are the ones that the Act covers and the ones for which one must be able to show one followed the law and Code. Staff could easily think that assessments and care plans come within that description. But it is really telling that in the MCA Code, it lists a whole set of functions to do with touching and ‘helping’ and dealing with things but not social work functions under the legislation around at the time. Social CARE, yes, but social work functions, no.

      It’s obvious why not, if you think about it: MCA assessments are required to trigger a defence against touching someone without consent, but assessment and care planning staff don’t need to touch a person or restrict their freedom in order to do the exploring and decision making functions that assessment and eligibility decision-making and care planning involve.

      The Care Act often refers to a person’s capacity, such as when a person positively refuses assessment for instance. It’s not necessary to get consent, because there’s a duty to assess regardless. But if a person objects, then the social worker would be expected to apply incapacity principles, to inform the decision that is required under the Care Act. They could walk away if there is no evidence at all to make the assessor question whether the person has maybe lost the presumption of capacity. If the person in fact should have been regarded as lacking in capacity, but the assessor takes their ‘No’ to assessment at face value, because of not understanding what negates the presumption of capacity, the council is going to look very unprofessional if the person then suffers foreseeable harm as a result. That assessor can’t benefit from, and doesn’t need, the s5 MCA defence, because they didn’t touch or restrict the person or trespass on their property but they’re clearly not competent to operate as a decision-maker under the Care Act.

      Of course, many other functions in the Act will be crucially affected by a person’s mental incapacity – it would affect what an assessor would do with the information coming out of the person’s own mouth, about their difficulties, and their wishes and priorities. Any care planning proposals that involve touching or restricting a person, or depriving them of their liberty for their own safety, will always involve a need to do capacity assessments even though most councils will pay a provider to do those things under contract, not meet needs through their own staff. How could a council set out what a provider was being asked to take on, or negotiate a fee properly, without saying what the council’s professionals thought about the person’s capacity, since that materially affects the complexity of delivering the care plan?

      But that is not the same as acting under the Mental Capacity Act, as such. It’s essential because imposing restrictions on a person who objects WITH capacity will often involve a breach of human rights if the legal framework is not followed, whilst walking away on the footing that a person was saying NO might be discrimination against incapacitated service users just because they can’t say Yes!

  104. Is it legal for a council to refuse permission to an incapacitous person’s Authorised Person (as the holder of the direct payment) to also be paid out of the direct payment for actually doing the care?

    Is it different do you think if the person has the direct payment in their own name but is relying on that relative, say, who’s merely been nominated and appointed to help them BE a good employer?

  105. Can a council or a CCG refuse someone a direct payment/personal health budget just because they want to spend it on employing a relative who lives separately from them to do some of the care?

  106. Is it legal for a council to give a person a direct payment for their care and support if they lack capacity to understand it means that they’re in charge?

  107. Is it legal to give everyone on a direct payment the rate that the councils says a direct employer would be able to attract a Personal Assistant at through direct employment?

  108. If a CCG states that the Care Act only applies to local authorities and the CCG only adhere to the NHS CHC Framework; how can we best combat this position?

    Surely a care plan review carried out by a person that is ignorant of the Care Act- cannot be lawful…

    Is a Judicial review appropriate? Before, during or after the review?

    Will donate.

    • CCGs are right but not definitely FULLY right there, we think.

      When they do what they do, they act under the National Health Service Act, but WHAT they do is take over someone’s personal care, social care and support, not just meet their health needs. So if they behave differently, to how a local authority MUST behave or should behave, under the Care Act or the Regulations or the Guidance, there is an argument, at least, to be put forwards, that they should be regarded as bound by public law principles, and do no worse than a council would be bound to do. We know that a lot of the Care Act and guidance was itself based on public law cases (judicial reviews) which had emerged from years of poor practice under the OLD LAW, pre Care Act – before care plans were even mentioned in that legislation.

      So our point would always be that the Administrative Court’s judges have done a fine job of injecting due process and fairness and transparency and accountability into the legal framework for care – and WOULD DO THE SAME if people brought cases against their CCGs for breach of public law principles in care planning for CHC patients.

      One generally has to issue the proceedings within 3 months of the decision, but only AFTER a decision – not a hint, or a threat, or a proposal or anything woolly – has been made.

  109. Is it legal to cease to fund a direct payment, ie terminate it, abruptly, when a claim to recoupment of monies already paid IN to the direct payment account has been notified – say for misuse or non-use?

    • That’s complicated. A direct payment can be terminated for misuse, of course, but that doesn’t mean without considering the implications for the client and their carers and any employees, etc. There’s caselaw, guidance and regulations about termination of a direct payment.

      And termination doesn’t mean the needs don’t still have to be met, so every word counts here.

      Ceasing to fund, if it means ceasing to meet upcoming needs, because a sum of money is regarded as due BACK to a council, and ‘owed’, is definitely not on. The client is not a provider who has agreed to an offset! The client is entitled to have their needs met, under a statute which imposes mandatory enforceable duties on councils!

      Other remedies of a civil or criminal nature exist to enable councils to protect public money, and regular monitoring is one of their own rights which they often fail to use, and thus end up allowing the misuse to go on for longer than necessary!

      If the recoupment is disputed, then Councils do have to sue people and risk that they raise embarrassing defences back, in open court!

      The trouble is, however, for some, that councils now CONTROL many more people’s direct payment accounts because they have offered payment card arrangements, and just take the money back out of that person’s notional ledger and wait to be challenged: the bank account feeding the card turns out to be the council’s bank account, not the individual’s. Or the council will claim to have been appointed by the individual to ‘manage’ the person’s direct payment as the person’s nominated helper, but in reality, the council staff are acting as the boss there, rather than agent, and they will make the reclaim unilaterally, despite the conflict of interest.

  110. Is it legal to cap the council’s direct payment rate for service users who want to be in charge of their care services, to the rate that the council pays to its preferred agencies / providers, under framework contracts that they’ve run tender exercises for?

    • Those tender exercises will have probably appointed 4 lead providers who then offer sub-contracts to smaller providers in the area, and there will have been fierce competition and thus very likely a low rate negotiated for bulk buying of care hours with maybe no guarantee of continuity of care worker or a choice as to gender or anything. The many more unsuccessful providers will be short of work and may be offering a better profile of service to private clients, even if at a higher price. Direct payments clients ARE private clients, although they’re using public money. They’re buying as individuals, and some, inevitably, won’t pay! So, providers have to make up their own minds as to what price to set direct payment clients….

      We think that if the services being sought by the individual were comparable to what the council had bought, but more costly via a Direct Payment, for no obvious reason, a council might say no, or treat the difference as the person’s choice to pay a top-up. If that provider is ON the public body’s procurement framework, then there’s no real point in the person having a direct payment, or one at a higher value than their budget would otherwise be set at, the funder might say – it’s not “appropriate”. That might survive a judicial review; we can’t be sure.

      But we are pretty sure that the funder wouldn’t be able to get away with saying that the bulk purchase discounts that they’ve managed to get, justify paying less via a Direct Payment than the evidenced local market rate to individuals, for agency care – to people who want to be their own commissioners. But we do know of councils who pay their clients even less than what they pay to commissioned agencies, without any obvious justification – other than that nobody complains!

      The Guidance contains examples encouraging councils to pay more when a more flexible service than the council buys as standard, would cost more (as best value); and less when having a direct employee would cost less, but without exploring the precise question. It doesn’t deal with the rational prospect that providers may not be willing to sell the SAME service to individuals at the same rate that they’d sell to the council.

      Suppose the person is able to show that the council’s commissioned service stops at 9pm, and doesn’t guarantee any consistency or continuity of care worker, and by going individually to the same or another agency and using a direct payment, the person is able to have their close relative be an employee, or otherwise secure better value and meet some of the outcomes important to them at the same time? In that case, the Care Act guidance (rightly, we think), exhorts councils to pay the extra. But another example might be that the person was being offered a service with bells and whistles on it, meeting outcomes that the council would never accept as necessary for meeting needs – well, in that case, that’s crying out for a top-up from the individual’s own resources, and not ever counting that as Disability Related Expenditure for charging purposes, we think. So you see we think it all depends, and that dependent people perhaps don’t want to challenge inadequacy, because it’s difficult and scary. But this is 2020 and there was never a more necessary time to stand up for oneself, demand an advocate, and use legal principles.

  111. Is it legal for a council to refuse to turn someone’s care package budget into the different deployment route of a direct payment, if doing so wouldn’t actually SAVE money for the council, overall?

    What about if it was a CCG being asked to turn a budget into a personal health budget? Could a CCG say no, for that sort of financial reason, do you think?

    • We think most ‘middle’ managers in social services think that Direct Payments are a legal right; that the older ones think it’s a discretion whether to give anyone one at all, and that the youngest ones won’t necessarily have been taught the difference!

      Most council staff know that the council decides the budget though, and if they’re used to working with powers they think that that means that “the cost to the council of meeting the need” is always lawfully relevant to what should be offered, and whether a direct payment IS offered – so they tend to have ONE Direct Payment rate, and hope for the best until they are challenged! It’s true that access to a direct payment is not an absolute right. It’s a right, subject to conditions. However, those conditions don’t mention the cost as a relevant consideration to the grant, and there’s case law that says that similar types of statutory decisions cannot lawfully take a rationing approach (eg the Penfold case, on the duty to assess based on an appearance of needs) based on the council’s own resources.

      Then again, one of the conditions is very woolly – it’s that the council is satisfied that meeting the needs via a Direct Payment is appropriate. That is where there is some ambiguity and thus wriggle room….

      Personal health budgets from the NHS CAN be refused, explicitly on Value for Money Grounds, and the COUNCIL Direct Payment regime does NOT include that reference, so it’s at least arguable that it is not legitimate to use the possibility that the council could buy the service for less, to decide whether or not to grant a Direct Payment – and maybe even for deciding how MUCH. We think that the rationale for paying more or less than the figure the council would spend if commissioning, is all-important, and that lawyers have missed a trick here over the years, in not focusing on the sufficiency of the budget for people taking on the responsibility for themselves.

  112. Can supported living staff say someone is not engaging with support as a way to support them in why they aren’t meeting the eligible care Act needs and not having a care plan. Is it common for S117 to never have been reviewed let along yearly.

  113. Does having a direct payment mean I can spend it on whatever I think my needs are, or do I get less choice than that? We used to be told we were getting flexibility through a direct payment and could keep anything we could save, for the future. Now I hear about people being told that they have to pay money back for ‘misuse’ but I can’t get my social worker to tell me what I can spend it on, and so I am anxious.

    • That kind of fog is not helpful, is it? The law is that if the service or thing that you spend it on is something that the council itself has legal power to buy (subject to any special rules like not spending it on a permanent placement in a care home) – then you can – in theory – spend the money on similar things, and it will not be wrong. So: care, support, goods, facilities, counselling, advocacy, but (as it happens) not any task that amounts to nursing input that can only be done by a registered nurse. Facilities is the broadest word there, and it could cover memberships, tickets, entrance costs, etc, but you do have to be careful and ask for clarity, because lots of authorities refuse to let the budget cover the consumption cost of actual activities – saying the rest of the public has to make do with what they can afford from their own income, for leisure purposes.

      There’s a better way of asking a more specific question of the social worker, in our view. The only money that goes INTO that budget in the first place is money that you have been allocated on the basis of the outcomes or domains in which you were found to have eligible unmet needs. So, the real question is, which bits of your eligible needs has your budget been funded for, and was that funding amount rationally sufficient for even the council to meet the needs with? And sufficient bearing in mind that you’re going to be spending as an individual, not a giant council!? And that’s what a good robust transparent s25 compliant care plan will help you figure out, because there may be some eligible needs which you and your family agreed could be met informally, and for free, or that you would spend your own money on, and claim the cost back as a Disability Related Expenditure disregard.

      The plan is required to be specific even if you’re having a direct payment, and that’s all part of the accountability of the funding body for the sufficiency of the budget.

      After you’ve figured out whether the budget set out in the plan was for getting ready for the day, or getting OUT of the house, or something to do with mobilising around the house for daily living tasks, you’ll be ready to articulate to any reviewer why your spending on something that achieved THOSE outcomes, although maybe in a different way to what was expected, was a reasonable spend of a budget that is (still) meant to be flexible!

      Misuse is not just about spending it on booze and fags and scratch cards! It’s spending it on an area of want that’s not been found to be eligible, or saving money on an eligible need say for cleaning, (ie a need that has been funded, but then someone has met it for free, so the cash is still sat there), and then blowing the saving on a holiday.

      Since it’s all public money, one can’t expect to keep what one doesn’t manage to spend, unless one has got fluctuating needs written up on one’s assessment, and an agreement that the surplus will be allowed even if it exceeds the council’s standard roll-over amount.

  114. Is it legal for a council to take someone’s refusal to agree to pay the council’s care charges, or maybe their actual failure to pay charges over a long period of time, as a good reason for not meeting the person’s care and support needs?

    • No. The person’s opinion about the charges is not a legally relevant consideration for the duty to meet needs.

      Putting this another way, the liability to pay the charges does not flow from any contract, so offer, acceptance and willing agreement are all irrelevant to liability.

      Receiving the budget (or having the services) is what matters for liability to pay.

      For the same reason, a person’s mental incapacity regarding understanding the charges is irrelevant as well.

      A council must never withdraw services simply because charges have not been paid or agreed to.

      There’s a whole chapter of the guidance as to how councils can – and may well be obliged – to bring legal proceedings against people for not paying!

      That doesn’t mean that a charge is not ever able to be challenged for illegality or irrationality or unfairness or just delay, if the impact is grave – charging is just another function that is subject to judicial review, on the usual grounds.

      Countless local government ombudsman reports explain how councils consistently mess up, within the scope of the charging function, and waiver of any debt is usually part of the remedy that’s recommended by the LGSCO.

      You can find these complaints reports on our LGO page on our site, with legal commentaries added…

  115. Due to the Covid-19 pandemic, I decided to cancel my care package. I usually pay £25 per week towards the total cost, and I get a direct payment. As my care was cancelled, I stopped paying my contribution into the account. The council have reclaimed 6 months’ worth of my direct payments, which it paid net of my contribution. Despite not having any support, the council has told me I must still pay the £25 per week for 6 months. I didn’t expect this to happen and can’t afford to now pay this.

    • There is no doubt that people find this one of the hardest things to grasp about the charging framework. We are told that the charge cannot be more than the cost of the care that we have received; so the logic is that if the care has been cancelled, the cost is zero, and therefore it cannot be necessary for us to pay in our bit.
      Unfortunately, that is not how councils’ charges work. They take all your money, on paper, that they are allowed to, to work out how much you have, after all deductions due, in excess of the minimum income guarantee level and that sum is what is available for charging.
      That means anything you have spare, on paper, ignoring what you have in real life, unless or until you make a special point on unaffordability. They can charge up to the cost of the service. So, if over the course of a charging YEAR, your budget costs £x, your contribution over that same year could be a half of £x, and even if you don’t have services for half the year, you have still had services that cost a half of £x, and your charge is still due.

  116. Do councils owe any duties under the Care Act to people who have more money than the capital ‘threshold’ set by government?

    What’s the position for a person who’s struggling to identify and arrange a provider to support them to meet their care needs, even though they’ve got above threshold savings?

    • The council’s duty to assess is regardless of wealth and even the duty to provide homecare to the wealthy is absolute albeit charged at full cost.

      Wealth above the threshold is not something that negates the duty in s18, so far as HOME care is involved.

      The person having homecare is entitled to require the council to organise services and simply gets to pay the full cost by way of a charge for that service. Councils are allowed to charge a commissioning fee for this facility, no greater than the cost of commissioning the service.

      Full cost means different things to different councils, some still offering a maximum contribution cap, meaning one gets a subsidy, whilst others charge above threshold people a genuinely full cost fee for whatever is provided. A council’s expenditure on services may be lower than private fee in the area, and the sum it leaves people with as a minimum may be HIGHER than it is required to be by law.

      These rules don’t apply to those with above threshold assets, seeking care home care, please note. The only people in that situation who can oblige councils to contract for them are people lacking in capacity with no attorney or deputy, and nobody else willing to shoulder contractual liability for them; so the majority are not able to be subsidised financially under the system for charging for residential care.

      If councils do take on people that are above threshold for care home care, say when they are within a few thousand of the threshold, but not lacking in capacity – that is a discretion, rather than a duty. They might do it if they can see the person is not far off going below the threshold or if the person is awaiting a family member who’s getting financial authority through deputyship for instance. Any person then placed by the council counts as the council’s client, which at least saves them from the fully private and usually much higher rate that a real self-funder would be expected to pay.

      If people understood this, we think that many more might consider getting care through the local authority to be a very good idea, for economic reasons.

  117. What’s the legal position about councils charging so much for shopping and transport etc. that the person ends up no better off from having the local authority services than they would be if they just bought their own services from whoever they could find?

    • It’s possible for a council to adopt that sort of approach to deter people from coming to them for things that it’s a pain for the council to organise.

      It is legal under the Charging Regulations for a council to decide to adopt a freedom set out there, regarding “NON-CARE” types of services. These are defined (non-exhaustively) as “including services or activities such as the provision of meals on wheels, shopping or transport services or recreational activities.” We expect that cleaning would be seen in this vein, too.

      Nobody knows what would or would not be regarded as obviously INSIDE that definition, when one bears in mind that ‘care’ is usually regarded as the doing of a task for someone who cannot do it for themselves. Organising shopping and meals, and transporting someone, and doing cleaning, could all count as care, via that test. They are not hands-on care tasks, but it would be down to a court to interpret the regulations if there was a case about it.

      The permitted freedom we’re speaking of is cunning. It is to charge full cost (whatever it costs the council to secure a service) for THOSE types of service, if a person qualifies as eligible, under the regulations, in related domains, and actually wants those services provided as part of the care plan response, through the council. Councils are allowed to do not just that but also, crucially, still charge the full cost even if doing so takes the person’s disposable income below the mandatory Minimum Income Guarantee in that situation.

      So that stops the person getting any charging subsidy by having the services arranged through the council and Care Act and means that they may as well spend their own money.

      This is a cunning way of making it possible to get people to spend their mobility component, even though that benefit is not allowed to counted for the purposes of charging in the first place!!

  118. I became eligible for adult social care services in April 2020. The social worker told me that they were “not doing financial assessments”. Two weeks ago, I received a demand letter for £1200. My only income is ESA and PIP so I cannot afford this. Can the local authority do this?

    • During Covid lockdown, the government enabled councils to choose whether or not to adopt Easements – which was the formal language for inviting councils to operate under a modified form of the Care Act – one which suspended financial assessment, but not charging itself – so that staff in those teams could be deployed on other tasks.

      If a council adopted this way forwards, the power to charge people retrospectively for the care and support they might receive during this period, was made subject to giving reasonable information in advance about this, and subject to doing a later financial assessment.

      As a minimum that meant informing people at the time when the service was carried out, or before the service is carried out that there may be a charge for that service. That doesn’t seem to have happened to you at all, unless more was said at the time?

      If people were then charged retrospectively, this could only be on the basis of a financial assessment in line with the Care Act, where the Guidance says that people should pay what they can afford, and any charges are clear and transparent.

      However, the original unamended statutory guidance (see 8.22 of the Care and Support statutory guidance) already noted that a Local Authority always HAD the power to ‘choose to treat a person as if a financial assessment had been carried out’. Any Local Authority ever wanting to do that, always had to satisfy itself on the basis of evidence that the person’s financial resources did not exceed financial limits in the system. That was called a ‘light touch financial assessment’. If you have ESA and PIP, a typical charge over the 6 months you’re speaking of would be roughly £1200. But any such light touch assessment would have left out of account any disability related expenditure you may be incurring privately, and you should have been given the chance to have a full assessment.

      Where people are on benefits, IF consent was given to seek that information out, councils were always encouraged anyway to use Department of Work and Pensions data as a quick standard assessment and follow up at a later date to look into private pensions, capital or other finances. We think that light touch assessment is what may have happened in this case, albeit without your knowledge and consent, and hence it becomes very important to know if your council adopted Easements. If so, it can be pointed out that they did not follow the Easements Guidance. If not, then what it said to you was misleading at best, under the original charging framework, and the LGO may be sympathetic to your not expecting to have to pay, because you were given poor advice and information (a further distinct duty of the council) about light touch assessments.

      On the other hand, social care is well documented online and is known to be chargeable even to people on benefits, so the LGO (this happens a lot) might take the view that no injustice has been caused to you if the assessment is at least mathematically correct. You can still appeal by way of a complaint, internally, citing the affordability test in the Guidance, bearing in mind it means not what YOU can afford, but what is determined on a means test against the minimum amount of money the government says you need to ‘live’ and must be left with, after charges. You can also cite the prejudice you have suffered, by having been lulled into thinking that there’d be no charge, and not having been asked for consent or being offered a full assessment that would have allowed for DRE deductions, and go to the LGO later if unsuccessful.

    • No, we don’t think so. The duty in relation to advice about the financial aspects of receiving care or support stops well short of that sort of funded help.

      The council is ABLE to commission and supply generic advocacy as a service, under s8, or point people towards local grant-funded generic advocacy services, for any aspect of meeting needs, whether under s18 duties or s19 powers (s20 for carers).

      But formal Care Act advocacy is not triggered for that particular stage of the Care Act process, unless one treats finalising the budget, and the plan, as including a decision about the outcome of financial assessment, which we’ve not heard of, ourselves, happening anywhere around the country.

      Councils ARE supposed, however, to give a person advice and information about the financial aspects of the system and signpost people to independent financial advisors if they need to consider how to pay for care, or if they need to take advice about top-ups, deferred payment arrangements, deputyship etc.

  119. How does a council do a financial assessment for charging purposes if the position is taken that the individual lacks capacity to share their financial information?

    • There’s a good bid in the Guidance in the chapter on charging (chapter 8) about this:
      8.18 At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment [because of the advocacy duties for the assessment and care planning processes]. If the person lacks capacity, the local authority must find out if the person has any of the following, as the appropriate person will need to be involved:

      • enduring power of attorney (EPA)
      • lasting power of attorney (LPA) for property and affairs
      • lasting power of attorney (LPA) for health and welfare
      • property and affairs deputyship under the Court of Protection
      • any other person dealing with that person’s affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

      8.19 People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be ‘forced’ to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead.

      This does not actually happen in practice – some council charging officers gladly accepting volunteered information, without regard to whether the person whose finances are being considered, is consenting, or the disclosing person has any lawful authority to share the information. One can only assume that most sharers do so in the best interests of their loved ones in need of services, because the consequence of not sharing the information is that the person will either be charged full cost for the service, regardless, or charged too little, leading to a dispute later on.

  120. My daughter is disabled and the cost of items she needs to purchase for any quality of life is far greater than the income she receives. As a result, I often have to purchase these items for her. I also have to pay her care charges contribution to the local council as she doesn’t have enough disposable income. Is that legal, and can I claim this money back?

    • It’s complicated. In the pre Care Act days, money voluntarily spent on someone by a relative was treated as a loan to the person, who therefore needed in law and moral propriety to pay it back; debts were never allowed to be treated as reducing someone’s assessable income, but there was an appeal in the system for pure unaffordability, where the size and nature of the ‘debt’ would be considered, and discretion used, as long as it wasn’t a high life that the person was having financed.

      As austerity has bitten, and maximising people’s reliance on informal ‘assets and strengths’ has become every council’s byword for saving money, and cases have established that familial debt is often regarded as unenforceable for housing benefit purposes, plus the charging framework has changed, we now find that third parties’ contributions to the wellbeing of their loved ones are being seen as GIFTS, not loans. A counterweight to that is the Mental Capacity Act which says that anyone who extends necessaries to a person lacking capacity is entitled to be paid a reasonable sum back for them; that is a liability that IS enforceable. We think it would be an error of law and unlawful in public law terms for a council to conclude that it would never take debt into account, and that there was no such thing as debts between parents and adult offspring.

      We think that your daughter’s problem is with the level of the charges being levied, and that a way of solving that would be to put in a well-considered and evidenced claim for a disability related expenditure deduction, which is money spent privately on things that are NEEDED even if they are not listed as relevant to eligibility for a local authority budget or care plan.

      Logically, if you added what she is spending and what you are spending ON meeting those needs, and she lacks capacity, then she ‘owes’ you the money you’re spending, and although that doesn’t feature in amounts that they have to allow for, claiming it as DRE would be an easy way for the council to resolve a complaint or request for a review based on affordability, as per the Guidance. That would bring the charges down.

      Councils have discretion over DRE, but not unlimited discretion. They can decide it’s not disability related; but that decision must be made having regard to the statutory guidance and in accordance with public law principles. This means taking all relevant information into account, ignoring irrelevant information, giving reasons. They can decide it’s not necessary expenditure, but they can’t just say ‘If it’s not in the care plan, it doesn’t count’. Also, if your council is saying that they’d prefer her to sort out her own cleaning and shopping, rather than count those needs as part of the care plan budget, they absolutely would have to allow for her contribution to whatever is being spent or done for her benefit, as DRE.

  121. I don’t think my sister has had capacity to manage her finances for some time, but this has not ever been formally assessed. She doesn’t engage well with family about financial issues and doesn’t have an appointee. Social services sorted a care package 4 years ago. They’ve been sending payment reminders and demand letters to her for 4 years but she hasn’t opened them. There’s been no other contact about this, and she’s now received a letter saying she owes £8000 from a debt collection agency. Surely, she can’t be liable for this massive sum and dragged through the courts?

    • We’re not sure what the level of her capacity was, when the care package first started, and that could matter; but she doesn’t need capacity to be liable for the charge; it’s not a contract, it’s a sum due under the Care Act. There is due process to be followed though, before anyone who is a client of social services can be sued in the County Court: the Guidance says so, and councils have to follow the Guidance, other than for a very good reason. They seem to have completely ignored the exhortations in that guidance to take things very slowly, and make contact with the person, making reasonable adjustments and not just assuming that a person is avoiding replying just to avoid paying.

      The place to look is Annex D in the Guidance, here:

      “The Care Act 2014 introduces a modern legal framework for the recovery of any debts that may have accrued as a result of a local authority meeting a person’s eligible care and support needs. Section 22 of the Health and Social Services and Social Security Act (HASSASSA) 1983 was revoked from April 2015 and no new debts can be recovered under that provision. New powers are provided under Section 69 of the Care Act that provides equal protection to both the local authority and the person. Section 70 of the Care Act also provides a local authority with the power to recover charges from a third party where a person has transferred assets to them in order to avoid paying charges for care and support.

      Before pursing any course of action the local authority should consider whether it is appropriate to recover the debt – although it has the power to do so, and in many cases will wish to do, it does not have to or indeed it may wish to only recover part of the debt. Such circumstances may include:

      • where the amount of the debt is small, and the costs of recovery would be disproportionate
      • the person or their representative could not reasonably have been aware that the asset in question needed to be included in the financial assessment.

      Interestingly, it is part of the law of recovery of debt that any defence, including a public law defence, as to the illegality of the charge, or the illegitimacy of the process by which the charge was first assessed, can be raised by the debtor, or their litigation friend, or their estate, and that is a deterrent against the council issuing the proceedings, because a judgment to the effect that a policy was unlawful, or a process was a breach of the Care Act regulations, in open court, would affect the prospects of other people paying or seeking repayment of what they should not have had to pay.

  122. I moved in with my mother 10 years ago to provide care and support. I was previously renting a property and ended the tenancy at that time. My mother’s needs are now too great to be met at home and we have decided that it is in her best interests to move to a care home. The council have told me that we need to sell the home to pay for the charges, but this means I will become homeless. Is this right?

    • This is one of those situations where a discretionary disregard is what one should ask for.

      There are mandatory disregards, if one’s spouse still needs to live in the house, or one has a relative or member of the family aged 60 or over or incapacitated living there, for instance.

      The discretionary disregard is considered in other circumstances and the classic example is where it is the sole residence of someone who has given up their own home in order to care for the person who is now in a care home or is perhaps the elderly companion of the person.

      The Guidance says that “the local authority will need to balance this discretion with ensuring a person’s assets are not maintained at public expense.”

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