Archive for Care and Health Law Topics

Three LGO decisions focused on autism highlight some potentially relevant issues for public authorities

Statutory guidance states that local authorities must ensure that all frontline staff have general autism awareness so staff can identify potential signs of autism, understand how to make reasonable adjustments in their behaviour and communication.

The Autism Act 2009 required the government to produce statutory guidance for NHS and local authorities on working with autistic people. The guidance was originally published in 2010, and was updated in 2015. At paragraph 1.4, it says:

In line with the 2010 statutory guidance, local authorities should be providing

general autism awareness to all frontline staff in contact with adults with autism, so that staff are able to identify potential signs of autism and understand how to make reasonable adjustments in their behaviour and communication.

In addition to this, local authorities are expected to have made good progress on developing and providing specialist training for those in roles that have a direct impact on and make decisions about the lives of adults with autism, including those conducting needs assessments.

This expectation remains central to this updated statutory guidance”.

  1. Salford City Council (19 002 111)

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-111

What Happened

Mrs W was autistic and had a number of health needs which caused her to need support. Mrs W had never had a financial assessment and her care plan was both several years out of date and incomplete. This resulted in a dispute between herself and her support provider, and a complaint to the Council.

Findings

The LGO firstly highlighted that having a care plan so out of date and inadequate put Mrs W at an increased risk of harm, which was fault. An inadequate assessment leads to inadequate care, leading to (an increased) risk of harm.

The updated government 2015 statutory guidance under the Autism Act places a requirement on local authorities to provide general autism awareness training for all front line staff, as well as specialist training for those in particular roles.

The Council had not implemented this, which was fault. They had no-one trained in autism to undertake assessments. However, the LGO could not demonstrate that Mrs W suffered any actual injustice.

  1. Staffordshire County Council

https://www.lgo.org.uk/decisions/adult-care-services/other/17-014-693

What happened

Mr B had Asperger’s syndrome, a learning disability and OCD. The dispute with his Council related to his wish to move to supported living, which the Council felt his lower level of needs did not justify.

Mr B’s lawyer arranged for an assessment to be carried out by an independent autism specialist. This concluded that the Council’s assessment was flawed because it did not offer insight into Mr B’s communication difficulties and rigid thinking.

The specialist found that Mr B’s care and support needs had been significantly underestimated and the Council was failing to meet them: Mr B needed support from staff with a good understanding and experience of working with autistic adults.

Findings

The LGO found fault because the Council was unable to provide any evidence that its officers had autism training or previous experience of working with adults with autism. The Act places a legal requirement on local authorities that all assessors must have the skills, knowledge and competence to carry out the assessment in question.

Guidance also states that if an assessor does not have experience in a particular condition (such as autism), they must consult someone with relevant experience”. There was no evidence that they consulted specialists in relation to Mr B’s autism. Had they done so, the outcome of the assessment may have been different, and thereby the LGO could show that Mr B was caused a significant injustice.

3. Stockport Metropolitan Borough Council (18 014 455)

https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/18-014-455

What Happened

Miss X had highly complex needs including Atypical Autism, learning disabilities and dyslexia. She was also diagnosed with a “communication disorder affecting both her receptive and expressive language skills”.

After a hospital stay, Miss X was discharged to Hostel H. It was clear that she was troubled and vulnerable. Her family requested safeguarding procedures begin, as they felt she was at risk of harm. Miss X was never formally given a care assessment and no safeguarding procedures were properly completed. A Learning Review began, but was not completed (Miss X passed away).

Findings

The LGO quoted the (NICE) Quality Standard on Autism (2014), which sets out minimum standards for delivery of services to those with autism. It says, ‘All health and social care practitioners involved in working with, assessing, caring for and treating people with autism should have sufficient and appropriate training and competencies to deliver the actions and interventions described in the quality standard’.

The Learning Review found some officers did not fully understand Miss D’s needs resulting from her autism and, therefore, the best way to communicate with her. The Council’s said it had no record of the duty housing officer who interviewed Miss D receiving any autism training. As a result, the Council missed an opportunity to communicate in the most effective way with Miss D. This was fault.

Again, the LGO emphasised the link of lack of autism support, back to inadequate, or in this case, a complete lack of a care plan or assessment. Without an up to date care plan, needs cannot be properly identified and the Council cannot plan how they will meet those needs. Notwithstanding the duty to assess any adult with an appearance of need for care and support, Miss D had strong indications of eligible needs

The LGO went into great length about the Council’s failings to properly assess, start safeguarding procedures, and delays in general. However mention of autism training was brief.

Comparisons

So it is noteworthy that the remedies across the three cases included:

  • Arranging for all relevant staff to receive appropriate training on autism and making reasonable adjustments
  • Reviewing of assessment(s) by appropriately trained/ skilled persons and/ or a specialist assessor
  • Financial payment to redress fault.

It is also noteworthy that the LGO in all cases highlighted the importance of care plans when assessing Council failings.

The LGO was readier to find a Council at fault for inadequate assessments, rather than inadequate autism training.

The LGO could find the causal link, the actual injustice caused to the complainant, by comparing the care they received and the care they should have been receiving according to their plan (or their last plan).

In comparison with issues to do with autism training, the level of detail discussed by the LGO was brief. (See for example decision one, where no injustice was identified from the lack of autism training)

Considerations/ learning for all public authorities:

  1. Is autism awareness training for all front line staff (including LA and CCG staff) mandatory and appropriately refreshed?
  2. Do training records evidence compliance with statutory / NICE requirements across SW practice?
  3. Are we confident that staff know when to seek additional specialist support?
  4. Are staff with additional specialist autism skills available, either to undertake assessments etc or to support those who are doing so? If yes, from where / whom / and within what timeframe?
  5. Are all relevant staff able to recognise the need to make reasonable adjustments and adequately skilled in making such adjustments, to avoid discrimination?
  6. Communication needs are a theme across these three decisions: how do we ensure that our communication with individuals takes account of their communication needs e.g. needs are noted at first contact and further routine opportunities thereafter, so that information is provided in a format they can understand?

A summary reminder of the Accessible Information Standard requirement is embedded within this document

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Whistleblowing and Pida

The topic of whistleblowing has always been controversial, and particularly so with reference to the NHS and social services. In recent times the term has gone from being associated with the disclosure of an employer’s confidential information to the press (by what were perceived, more often than not, to be disgruntled employees), to being more commonly understood as the raising of concerns about malpractice occurring within an organisation, either with the employer itself, or outside the organisation – with a regulatory body or with the media. There can be no denying the need that those with responsibility for the care and protection of vulnerable people should be able to speak up, without fear of reprisals, where there is suspicion of malpractice affecting the care or safety of those people, yet it wasn’t until 1999, with the coming into force of the Public Interest Disclosure Act, that such workers obtained the unequivocal protection of the law.

The common law has always recognised a public interest exception to the general duty of confidentiality. The 1968 case of Initial Services v Putterill affirmed that the exception extends to any misconduct of such a nature that it ought in the public interest to be disclosed to someone having a proper interest to receive it. A disclosure, for example, to the police by a care worker in a residential home that one of the residents is being sexually abused would be justifiable in the public interest.

In Attorney-General v Guardian Newspapers (the ‘Spycatcher case’), the House of Lords described the public interest exception in yet wider terms, suggesting that the public interest in maintaining confidence may be overridden wherever there is a countervailing public interest in disclosure which is sufficient to override it.

Whilst this public interest exception might offer a ‘just cause’ defence to employees to a suit for breach of confidence by the employer, it is of limited assistance to employees who, feeling compelled to make a disclosure about some organisational malpractice, find themselves on the receiving end of disciplinary action, particularly where that action falls short of dismissal.

The North Wales inquiry into child abuse in care homes and, more recently, the inquiry into events at the Bristol Royal Infirmary (BRI), are just two examples which highlighted the need for staff to be able to raise concerns about suspected abuse and other malpractice and to be safe from reprisals in so doing. Stephen Bolsin, the anaesthetist who raised concerns about the unusually high infant mortality rates following heart surgery at the BRI, felt forced out of the NHS as a result.

Well-publicised cases such as that of Graham Pink, who was dismissed for gross misconduct after the Guardian newspaper published letters he had written raising concerns about staffing levels on his ward, alerted the NHS to the need to take action, and in 1993 the NHS Executive published its Guidance for Staff on Relations with the Public and the Media (EL(93)51), setting out the rights and responsibilities of staff when raising issues about health care concerns. The Guidance called on NHS Trusts to establish local procedures for handling staff concerns, whilst exhorting staff to raise concerns informally, in the first instance, with their line manager. Where it was not possible to resolve concerns informally, the procedure should allow for the concern to be referred up through line management to the highest level of local management and finally to the Chairman of the Trust or Authority.

That guidance was followed in 1997 by the Secretary of State’s letter to Chairmen of Trusts and Health Authorities on Freedom of Speech in the NHS, emphasising the need to ensure that any member of NHS staff feels able to raise concerns about health care matters in a responsible manner without fear of victimisation. Importantly, the letter highlighted that ‘gagging clauses’ – all encompassing confidentiality clauses treating any information as confidential and disclosure without prior consent as an automatic disciplinary offence – were contrary to NHS Executive policy. An accompanying letter from the Director of Human Resources stated that where there were well-founded reasons for staff not wishing to raise concerns through the usual management chain, other avenues should be open to them. As a minimum requirement, the investigation of staff concerns raised in confidence could be entrusted to a senior manager or Board member given specific responsibility for such matters.

Most recently, the Department of Health’s ‘No Secrets’ guidance stresses that it is the responsibility of all staff to act on any suspicion or evidence of abuse or neglect and to pass on their concerns to a responsible person/agency and directs staff and employers to the provisions of the Public Interest Disclosure Act 1998. Aside from a moral or ethical responsibility, we think that this duty might be able to be spelt out of the law of negligence, or the positive obligations owed by public authorities, under the Human Rights Act, although it would be the employer, rather than the individual staff member, who would be sued for harm arising from the organisation having ignored the signs. To this extent, it is perhaps likely that employers will begin to include such an obligation as part of their contractual terms when taking on staff, and this in turn will necessitate certain guarantees for the employee, of freedom from victimisation.

The Public Interest Disclosure Act came into force in 1999. The stated aim of the Act is to protect workers who make certain disclosures of information in the public interest. It does this largely by inserting a new Part IVA into the Employment Relations Act 1996.

The Act is very broad in scope, covering virtually all workers, including trainees, contractors, agency workers, homeworkers and all NHS health professionals. The usual restrictions as to minimum length of service and age do not apply, so that workers are protected from the first day of employment. The Act makes it unlawful for a worker to be subjected to any detriment, including reprisals by colleagues and disciplinary action; and a dismissal for making a ‘protected’ disclosure is automatically unfair. There is no cap on compensation, and should an employer fail to comply with a re-employment order made by an Employment Tribunal, the Tribunal will make a further award of compensation of up to £11,440. ‘Gagging clauses’ in contracts of employment or severance agreements, which purport to prevent the making of a protected disclosure, are rendered void, and employers should review their use of confidentiality clauses to ensure that they do not fall foul of the Act’s provisions.

Only ‘qualifying’ disclosures are capable of protection under the Act. A qualifying disclosure is defined in section 43B as any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following-

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

The term ‘any legal obligation’ is extremely broad. It includes, for example, the breach of a statutory or regulatory requirement, contractual obligations, common law obligations such as negligence, and breach of administrative law. In Parkins v Sodexho Ltd, the EAT held that there could be no distinction between an employer’s ordinary legal obligations and a legal obligation on the employer that arose from the contract of employment. Staff who complain about a breach of their employment contract and are then subjected to a detriment as a result, would therefore be able to bring a claim under the PIDA 1998

Protected internal disclosures

The Act sets out the circumstances in which a qualifying disclosure is capable of being a protected disclosure. An obvious intention of the legislation is to encourage workers to raise concerns internally, at least in the first instance, and where a qualifying disclosure is made to the employer or the person with legal responsibility for the matter, the worker has to satisfy the relatively low threshold of acting in good faith and holding a ‘reasonable belief’ in the truth of the information. Reasonable belief does not mean that the information has to be correct: it is sufficient that the worker held the belief and that it was reasonable for him to do so. Where the worker is employed by a body some or all of whose members are appointed by the Government, the same requirements apply if the worker chooses to report the matter straight to the sponsoring Department. Thus NHS staff may go direct to the Department of Health in making a qualifying disclosure, provided they act in good faith and hold a reasonable belief in the truth of the information.

Disclosure to prescribed bodies

Certain regulatory bodies have been ‘prescribed’ for the purposes of the Act. In order to be protected, a worker who makes a qualifying disclosure to a prescribed body must, in addition to acting in good faith, hold a reasonable belief that the information disclosed, and any allegation contained in it, are substantially true (s43F). This a higher threshold than that required for internal disclosures. It suggests that the worker must be able to show some good factual basis, or some good evidence, to support his or her belief. Again, however, this does not impose a requirement that the information be correct, provided that the worker is honestly mistaken in that belief and that the belief was reasonable. There is no requirement that the disclosure should have first been made to the employer. The disclosure must be made to the prescribed regulator responsible for the particular matter, in order to be protected. The General Social Care Council has indicated that it will be the body prescribed to receive concerns from social care workers about poor standards of care for vulnerable people, including abuse and neglect. The full list of prescribed persons and the matters for which they are prescribed is available at www.dti.gov.uk/er/individual/pidguide-pl502.htm#app1

Wider external disclosure

The Act makes provision for wider external disclosures to be protected. This would include, for example, disclosures to the media, to the police and to non-prescribed regulators. Unsurprisingly, the threshold is high. In addition to the requirements set out above in relation to prescribed persons, the disclosure must not be made for personal gain, and the worker must either have had a reasonable belief that he would be victimised if he made the disclosure internally; or that the information would have been concealed or destroyed by the employer and there was no prescribed person or body to whom the disclosure could be made; or the worker must show that he had previously made a disclosure of substantially the same information to the employer. The disclosure must also be reasonable in all the circumstances.

Factors which a Tribunal will take into account in deciding whether an external disclosure is protected include the identity of the person to whom the disclosure was made (a disclosure to the police about suspected abuse is more likely to be protected than one to the media), the seriousness of the alleged malpractice; the response of the employer to any previous disclosure to it of the alleged malpractice; whether the disclosure breached any duty of confidentiality owed to a third party; and whether the worker complied with any procedure he or she was authorised by the employer to use.

Where the subject matter of the disclosure is exceptionally serious, the disclosure will be protected if it meets the test for disclosures to prescribed regulators and is not made for personal gain. The disclosure must also be reasonable, having particular regard to the identity of the person it was made to. The Act does not define ‘exceptionally serious’, but again a disclosure about the physical or sexual abuse of someone in care would be likely to fall within this category. Where legislation provides for a reward to be paid in respect of information received, this does not constitute   ‘personal gain’ under the Act.

The importance of responding promptly and appropriately to staff concerns about malpractice is illustrated by the case of Blandon v ALM Medical Services Ltd. Mr Blandon, a nurse, reported his concerns about the welfare and care of patients at the home where he was working to his employer’s PA, Mr Sinclair. Mr Sinclair responded that he would deal with Mr Blandon’s concerns on his return from holiday. Some 10 days later, whilst Mr Sinclair was still on holiday, Mr Blandon became concerned about a further deterioration in standards of care and took his concerns to the SSI. Following an inspection of the home, the SSI wrote to the proprietor indicating that at least four out of Mr Blandon’s six concerns were substantiated and should be addressed. Mr Blandon was subsequently disciplined for his conduct, first receiving a written warning, followed swiftly by dismissal. He brought a complaint in the employment tribunal, which found that the company was in breach of the PIDA 1998. The disclosure was a qualifying one in that the allegations amounted to a health and safety danger and/or a breach of a legal obligation and/or criminal offence. Although the SSI is not a prescribed body under the Act, Mr Blandon’s disclosure to it qualified for protection as:

he had held a reasonable belief that his concerns were substantially true and had acted in good faith;

the disclosure was not made for personal gain and there had been a previous disclosure of substantially the same information to the employer;

the SSI was an appropriate body to go to and, given the seriousness of the concerns, it was reasonable for Mr Blandon not to wait for Mr Sinclair to return from holiday.

The tribunal also noted that the company did not have a whistleblowing policy in place. It awarded Mr Blandon £13,000 in compensation for unfair dismissal and £10,000 for the detriment he suffered in receiving the written warning.

As can be seen from the above case, although the Act does not oblige employers to put in place whistleblowing procedures, the absence of such procedures will increase the likelihood of a wider external disclosure being protected. HSC 1999/198, which is the Department of Health’s guidance to the PIDA 1998, states that every NHS Trust should have in place local policies and procedures to comply with the provisions of the Act. The National Minimum Standards for care homes for older people, for care homes for younger adults, for domiciliary care and for residential family centres, all include a requirement for procedures for responding to suspicion or evidence of abuse or neglect – including whistleblowing – and that all allegations of neglect and abuse are followed up promptly and action taken and recorded.

The annotated notes to the PIDA 1998 and further information on whistleblowing policies and procedures can be obtained from the website of the charity Public Concern at Work.

RELATED TOPICS leading to further specific questions

Confidentiality

Information Sharing

Data Protection in Health and Social Services

 

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Welsh Social Care legislation

The Social Services and Well-being (Wales) Act 2014 aims to introduce solutions to the specific issues affecting social services in Wales. The Act received Royal Assent on 1st May 2014.

The Act marks the first time that a coherent legal framework has been established for social services in Wales, where social care law has been derived from English law, and after the Assembly was set up, through policy announcements and separate regulatory law and regulations, but no separate over-arching statute governing the basics. It identifies the promotion of individual rights, self-determination and prevention as the main ways to transform social services and improve the welfare of vulnerable children and adults. The Act aims to ensure that people have access to clear information, advice and assistance by placing their voice and rights at the centre of decisions about their care and support.

The main aims of the Act are as follows: to

o    bolster the protection of vulnerable people at risk through strengthening the powers for the safeguarding of children and adults;

o    ensure people are assessed on what they need, rather than just on what services are available locally;

o    strengthened duties to assess before a person arrives in a new area, so that there is continuity of care over the transition;

o    provide individuals with greater control over how their needs are met by facilitating an increased take up of direct payments to meet people’s care and support needs;

o    establish a ‘National  Outcomes Framework’ that outlines what children and adults should expect from social services, and allows for achievements and areas of improvement to be identified;

o    provide carers with more rights to ensure that they have similar rights to those that they care for, by giving actual rights to have eligible needs met;

o    establish a ‘National Adoption Service’ to improve the outcomes of children requiring a permanent family;

o    improve the co-ordination of the work of public authorities in order to enhance the well-being of individuals; and

o    facilitate the making of complaints and representations regarding social care and palliative care;

Important links

The Social Services and Well-being (Wales) Act 2014 can be found at http://www.legislation.gov.uk/anaw/2014/4/enacted.

 

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Welfare Services and the NAA

‘Welfare services’ is the generic name given to a wide range of non-residential services for which there is power to provide or arrange under s29 National Assistance Act 1948, or under s45 of the Health Service and Public Health Act 1968.

Day care, centres, support, signposting, facilitating finding accommodation in the independent sector, are all part of s29 service provision.

 

The main features of s29 are as follows:

 

it contains some duties, some powers (see Duties vs Discretions topic for consequences of the difference)

service eligibility depends on the person being thought by the authority in question to come within the definition of disabled – ie the qualifying criteria are that the person is

‘Blind’ or

‘Deaf’ or

‘Dumb’ or

has ‘a mental disorder of any description’

OR

Is ‘permanently and substantially handicapped’ by ‘illness, injury, or congenital deformity’

 

ordinary residence on the part of the applicant for services is required if a duty is to be triggered, but is not required in all cases for there to be a power to provide the service – thus it cannot be a criterion for eligibility for an assessment at the outset;

there is a minimum age limit of 18 or over.

The s45 power is specifically directed at older persons, but is only a discretion, and not a duty. It has never been tested whether this difference means in effect that a service could be withdrawn, for budgetary reasons, notwithstanding that someone had been assessed as needing a service under this particular provision. Ordinary residence plays no part in eligibility for s45 services.

As far as charging for any service provided under s29 is concerned, s17 of HASSASSA 1983 Act applies to s29 services and therefore services are chargeable, according to the reasonable domiciliary charging policy of the authority in question. It has been established by the Powys CBC ex p Hambidge no. 1 case that s2 CSDPA services are also chargeable because they are simply a specific manifestation of s29 provision.

Circular LAC 93 10 provides more detail as to the Secretary of State’s approvals and directions for the purposes of planning for the s29 function. It may be viewed on COIN, at http://tap.ccta.gov.uk/doh/coin4.nsf/Circulars?ReadForm

 

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TUPE

Site visitors will know that TUPE and the European Acquired Rights Directive from whence it came, constituted a framework for protecting employees in the event that the undertaking in which they work is transferred. The principle covers transfers of contracts as well as entire businesses, because TUPE extends to undertakings, businesses and parts of businesses.

 

The history of TUPE’s application has ebbed and flowed. Early on, caselaw established that the transfer of goodwill was all important when an alleged TUPE transfer might have been a closure and a re-start, thus suggesting that what had occurred had not been a transfer. In such cases one needs to consider whether what rises from the ashes is substantially the same as what went before. Then the Sophie Redmond case, although not a UK case, made it clear that TUPE would apply to ‘Contracting Out’ by local government, even though the service ceased in-house.

For a while the safest assumption was that TUPE applied in all situations; then the Suzen case changed all that and things went from the sublime to the ridiculous. After Suzen it looked for a while as if it might be arguable that a transferee of an undertaking (ie domiciliary care for a particular client group) in a labour intensive business (ie where there was not much else to the undertaking other than labour) could avoid TUPE simply by deciding not to take on any of the employees of the transferor. Whilst it is now clear that if the transferee takes on the majority of employees this is a factor in favour of there being a transfer, it is not clear how far the courts will look at the conduct of a transferee who does not take on any staff, in deciding whether a transfer took place. The recruitment crisis is at such a pitch in social care that it is hard to envisage a situation where the employees will not in fact be needed!

 

Recent case law has re-asserted that the essence of the test for a transfer is still whether there is a new employer responsible for operating something identifiable as an autonomous economic entity – that is a TUPE transfer.

 

The UK took advantage of the Presidency of the EU to update and improve the amendment to the original Directive underlying our own TUPE regulations. The amendments implemented member states to provide for the transfer of pension rights, and in the public sector that has been translated into guidance that broadly comparable rights should be given. Amendments to our own regulations are expected by the end of 2003. The December 1999 Regulations also allowed for employees of organisations providing services or assets to local authorities to join the local government pension scheme.

 

In 2003 the Cabinet Office produced instructions which it believes to apply to local government through the means to give directions with regard to Best Value and Procurement policies, whereby LAs must require bidders to not only assume that TUPE will apply, plus provide broadly comparable pension entitlement to the Local Government Pension Scheme arrangements to transferring and new recruits, BUT ALSO to promise not to employ new recruits (seemingly without limit as to time) on terms less favourable than the transferees were obliged to offer to the transferring employees. At the same time, however, the Government seems to think that the Retention of Employment Model, whereby NHS support staff remain within the public service, and are merely seconded to the private contractor in a PPP or similar scheme, avoiding TUPE, is necessary and appropriate for the implementation of government policy about getting the private sector involved in Health Care. It remains to be seen whether someone will argue that TUPE did apply and that the transferring NHS body had no discretion to regard the employee’s employment as continuing in the NHS. . ..

 

Certainly it is the government’s intention that the application of TUPE will become the general rule. It does look as if the tide is now heading back in favour of TUPE application, if there is such a thing as a trend. But for now we have to struggle with competing lines of precedent in the courts.

 

One needs to ask, how do the TUPE principles work in the context of the mixed means of commissioning, given that no one entity will be operating the whole of the authority’s residential care function, or the domiciliary care function of a local authority? Should we be looking at separate aspects of those services, for instance – by client group, such as ‘older persons’, ‘learning disabilities’, ‘drug and alcohol’ clients, or by addresses (eg of specific care homes or districts) or service types such as ‘shopping’, ‘bathing’, ‘cleaning’, ‘intimate personal care’ etc?

 

The most topical question in an era of personalisation, let alone mass de-commissioning and service provision change, is the impact for Direct Payments for Adult Social Care of the TUPE Regulations

People are naturally worried about the impact on choice and control, in the context of individuals, changing their arrangements for care and support.

TUPE thoughts

Basically, where the purchaser used to be the council, and the purchaser is now the original service user, through a genuine Direct Payment – that is probably not a traditional TUPE transfer or a service provision change, so the staff do not transfer to the new provider – i.e. the service user or an agency chosen by him/her. The word ‘genuine’, is important, because of the Daynes case – more on this, soon.

Where the council was, and still is the purchaser, and it’s just the provider who is different; or where the service user was the purchaser, and now the agency chosen by that same client purchaser, is different, it is at least possible if not probable that TUPE applies – the service provision change sort of transfer as well as old style ‘undertaking’.

Since this sort of work is labour intensive, not asset reliant, whether there is an intention to transfer the employees or not assumes a greater significance than it otherwise might. The risk might be particularly clear in a Slivers of Time sort of a set-up where there will be a close link between the original agency worker and the client, instead of the client just having to make do with whoever is allocated by the agency.

The meaning of ‘undertaking’ may be relevant: the regulations apply to public and private undertakings engaged in economic activities, whether or not they are operating for gain – it could be said that a person buying services to meet their own needs was not an undertaking engaged in an economic activity, because there is no business purpose, perhaps. This may be why there are no cases about TUPE regs forcing an individual to take on a previous provider’s staff.

TUPE worries in the context of direct payments

  • Supposing the service user has a direct payment and has an employee. And then the service user gives up the DP. The Council re-provides, either by direct in-house provision or through a contracted agency. What happens to the service user’s old employee? No SPC is a possible outcome, because the identity of the purchaser is now different and what is being done is the discharge of a statutory function. But it is possible that an old style transfer might arise
  • Supposing the service user qualifies for NHS Continuing Health Care – does the employee under a previous DP arrangement, have the right to transfer to the PCT or their chosen agent? The purchaser is again different, and although the content of the package may stay the same, the service user is now getting health care services because of their change of status, not social care. So maybe there would be no old style transfer, either.
  • Supposing the service user has a direct payment and engages an agency. The service user then re-commissions from another agency for the same task description. Do the Regs apply because of the service provision change? Possibly, if there was an organised grouping of employees – such as a specific member of staff or team of staff concentrating on the client.
  • Supposing the Client has a direct payment but loses capacity to manage the DP – even with assistance. A relative is appointed by the council to be the Suitable Person. Does the old employee automatically transfer to the new Suitable Person’s employment, because of TUPE? The Suitable Person, in law, is not carrying out the client’s contracts ‘for’ them, as statutory agent; the SP is going to buy services or employing the person in his or her own name, and must be able to decide. Ie the ‘different purchaser’ approach suggests No Service Provision Change, but termination of the worker’s contract with an offer of another one by another person. If a self-funding person acquired a welfare Deputy or a lasting power of Attorney holder then took over, there would be no cessation of employment, and no need for a TUPE transfer to be considered, as such, as those roles do carry with them the authority of a statutory agent.

The Daynes saga – a TUPE sham!

A council had a bit of a problem with a poor provider, and ratcheting up the performance with a ‘carrot and stick’ approach simply did not work. It was ultimately decided to terminate the contract. But the contract was for a clear chunk of service for particular clients who were geographically linked and with similar needs.

At the last moment a council officer had the wizard wheeze of suggesting that the council should award direct payments to the clients in question, to avoid the application of TUPE. This was done, and the clients somehow decided (despite their mental impairments) to pool their direct payments and choose the preferred provider of the council.

Provider no. 1 did not have any other work for the staff, so suggested that TUPE applied, so as to transfer the staff over to Provider no. 2. Assets of the first provider company were also intended to transfer to the second provider – care plans that the contractor had done, etc. Proceedings were launched, and the council was joined in as an interested party.

What happened?

The tribunal learned all about personalisation over an 11 day hearing with good employment and local government law barristers on the case.

The Chair said that social care policy had to take second place to employment law, and that these direct payments were a sham and clearly intended to avoid TUPE, and should be ignored.

The council had to pay provider no. 2 to get rid of the staff that had been entitled to TUPE over.

The case is actually very helpful, for what it might (but does not necessarily) imply: if a direct payment is a genuine choice of the client, it amounts not to a service provision change, by the council, but the cessation of a provision function by the council, and the commencement of a purchasing function by the client, possessed of money which has become his or hers to spend privately.

Putting this another way, if the DP is real, and not imposed or foisted upon the client, the fact that the ultimate ‘human’ purchaser is not the same as the first ‘council’ purchaser, means that the SPC rules can’t apply, and that TUPE does not necessarily apply to create an old-style transfer.

 

 

Summary of advice given by Employment Lawyers, but never made public:The TUPE Regulations provide employment rights to employees when their employer changes, as a result of a transfer of an undertaking. But there’s been an extension of TUPE to cover service provision change, when a purchaser changes purchasing arrangements to a new provider.

 

 

The Advice, obtained from Employment Law experts, Short Richardson and Forth, examines the implications of the TUPE regulations for people choosing to take a Direct Payment form of personal budget.

 

 

The question asked of the law firm was whether a TUPE transfer inevitably occurs, could occur, or could not occur, when a personal budget is taken by an individual as a direct payment, for the purposes of either employing a carer or contracting with an agency or service provider to provide care. The relevant staff potentially benefiting from transfer to the employment of the individual or to the agency chosen by the client would be the staff of the council, or the council’s contractor, who had previously been active in the delivery of care and support arrangements for the service user in question. Choice and control could be severely curtailed if TUPE effectuates a transfer. The Advice concludes that there is little risk of this being the approach of a Tribunal, despite the prevalence of the stance “TUPE applies 99% of the time”.

Direct payments legislation allows the service user for a direct payment in lieu of being owed a statutory duty by the council, to meet eligible assessed needs. He or she can make whatever arrangements to meet their own needs as preferred, as long as the money is spent within the confines of the kinds of services that would have been bought for them by the Council under community care legislation, and meets the assessed eligible needs, including employing someone. Some choose to form a contract of service with one or more workers who are known as personal assistants, or a contract for services with companies that employ their own workers to deliver services.

Having analysed the effect of the regulations governing direct payments with regard to what happens to the council’s provision duty, during the currency of a Direct Payment, the Advice concludes that a council’s statutory duty of provision is suspended, effectively, if and for so long as the council maintains its offer to make a direct payment. It concludes that this legislative structure does not connote a relationship of principal and agent, so far as the council and the direct payment client are concerned, or the delegation of the council’s function of making arrangements to meet needs, to the client. It explicitly provides for the displacement of the statutory function in certain circumstances, but provides for its resurrection as soon as the council is less than satisfied by the efficacy of the person’s own arrangements to meet need. It is thought that this may be relevant to how a tribunal would look at the facts and its interpretation of the consequences, when the issue comes to be decided.

The Advice analyses whether the transfer of an undertaking occurs (ie an economic entity, which retains its identity), when a Direct Payment is chosen, and a person is employed – and secondly, whether a service provision change occurs for the purposes of the Regulations.

The Advice concludes that it is doubtful that there could ever be a service provision change when a person takes a direct payment for the purposes of employing someone or contracting with a third party care provider, given that the wording of the relevant regulation requires that the client on whose behalf the activities are carried out – both before and after the change – must be one and the same. When a council is procuring services, it is the client, in a contractual sense, and once a person has taken a direct payment, that person becomes the purchaser and the client, so ‘the client’ is no longer the council. Before the election, those services were previously carried out by the staff of a contractor on the council’s behalf, or by staff of the council itself for the council, since the activities were the discharge of the statutory provision function. The direct payment legislative structure does not appear to make the recipient of the payment into the agent or the sub-contractor of the council for the purposes of one and the same provision function that is imposed by statute on the council.

In addition, what can be said as a matter of general principle is that where “activities” are different in terms of the position before and after the transfer there can be no service provision change for the purpose of the Regulations. Since the motive behind taking a direct payment is choice and control, the Advice concludes that in most cases that the activities will generally be carried out differently, even if the outcome is the same.

The Advice is less certain that there could never be an old-style TUPE transfer in a direct payment situation, because the test of whether there is a transfer of an undertaking is quite different from that under the regulation for service provision change.

The Advice takes the view that a service user who takes a direct payment for merely buying in services for their own purposes (as a consumer, rather than as a producer) could not be said to be taking a transfer of an ‘economic entity’ – such is defined by regulation 3(2) as “an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary.”

The Advice deals with an employment tribunal case of Daynes, involving a so-called direct payment in which both a service provision change and a standard business transfer were found to have occurred. However, the Advice explains why the facts of that case probably explain the particular decision. In particular, the Tribunal called the direct payment arrangement a ‘sham’, designed to avoid the application of the Regulations, and consequently looked beyond the labels applied to the arrangements. The facts as found actually fit the Advice authors’ analysis of the service provision rules regulations (the client both before and after the change, was, in reality, the council, simply changing its service provider) and with general TUPE principles about the transfer of an undertaking, once the services have been characterised as asset-reliant rather than labour intensive. The Advice does not therefore take the case to be of any weight in relation to the correct analysis of TUPE application in the context of a genuine decision on the part of an informed service user or their Suitable Person to take on a direct payment.

The Advice asserts that it could only be in a small minority of cases in which a transfer could be found. The main reason given is that transfers are governed by a multi-factorial test and the mere change of a service provider is not a transfer for these purposes. It does not suggest that it could NEVER be said that a transfer would arise from the client’s choice to take a direct payment. One example where TUPE might well apply is where a service user has been the subject of a specialist package in a particular setting where a person chooses a direct payment after a package in which a small number of specially skilled and trained staff have been allocated to servicing the person’s complex needs on a shift pattern, to the exclusion of all other work. An adult service user, fitting this service profile, or their Suitable Person, if the service user lacks capacity to understand the significance of the issue, must therefore receive explicit information about TUPE before using a Direct Payment to consider employing a carer if they have been previously served through council arrangements by one or more individuals who were engaged only on that person’s care and support package. Similarly, if an adult uses the direct payment to contract with a third party care provider and positively asks for the current carer or carers employed by the Council or a previous contractor to be engaged by the third party provider to deliver the services in the same manner as before, a transfer could ensue. Where the activities are labour intensive, the taking over of employees (or the fact that the employees were not taken on) can be a decisive factor in the transfer analysis. Assuming that care and support activities were seen as “labour intensive”, whether TUPE applied to create a transfer would therefore depend on whether the employees(s) are actually taken over.

Part II of the Advice goes through a hypothetical contracting out exercise by a council to a local authority Trading Company. This is then followed later by the decision of a large number of clients to take direct payments, spend them in various ways, and then some return to the council’s own commissioned arrangements. Part II analyses how the principles in Part I might be applied by a Tribunal, considering TUPE. The following conclusions may be drawn from the Advice:

  • Out-sourcing part of a council service for the first time to one provider – TUPE very likely to apply (on both ‘service provision change’ and old-style transfer grounds)
  • Outsourcing a service to many providers – TUPE may not apply, because of fracturing
  • Mini-competition for redistribution of the original domiciliary care contracts as between the council and old and new contractors – TUPE very likely to apply, but not so likely in relation to staff now working on wider range of contracts eg for self funders
  • Mini-competition for redistribution of only ¾ of the original domiciliary care contracts because of election of clients now to take a direct payment – TUPE still likely to apply in relation to what remains of the council’s need to contract, albeit for fewer clients
  • Individual clients electing to take direct payments – TUPE likely not to apply, other than in a small minority of specialist care package situations
  • Direct payment clients pool their payments and buy as a group – TUPE slightly more likely to apply but by no means probable.
  • Direct payment clients buy separate services from different agencies – TUPE not likely to apply to transfer previous provider’s staff to new agencies.
  • Direct payment client changes his or her package from an agency purchase to an employee – TUPE not likely to apply to transfer agency worker to client’s own employment
  • Direct payment client changes package from having an employee to using an agency – TUPE likely to apply to transfer the employee to that agency, albeit not necessarily to the client’s care package contract. This position, once it is understood in the care sector, may make it hard for clients to get agencies to take them on as clients, after they have tried employing individuals for themselves. It also has implications for what Direct Payment Support organisations are going to have to tell clients about direct payments pros and cons, in general.
  • In-sourcing of an ex-direct payment client’s package back to the council – TUPE capable of applying but improbable, unless the council decides to meet the need in the same way as before.
  • “Unregulated” workers can be employed by a direct payment client. If the council was faced with a possible “TUPEing” in of certain employees who they could not normally employ legally or lawfully, that would seem to present the council with the opportunity of dismissing those employees, after transfer, for an ETO reason i.e. an economic, technical or organisational reason entailing changes in the work force.

Further enquiries should be made of the firm itself.

The latest case on TUPE in social care – Addison v Community Integrated Care

The issue was whether the sole or principal reason for the dismissal of loads of ex NHS staff was a transfer and therefore automatically unfair under the TUPE regs.

The staff had transferred in 1996!! But in 2011, 15 years later, Cumbria said that unless CIC would find a way of cutting its prices it would not keep the work, and CIC refused. CIC had tried to negotiate, and then dismissed the staff and offered new contracts.

The Tribunal found that clearly but for the transfer the staff would not have been selected for dismissal, but that it was not the sole or principal reason for the transfer!

However, the BUT FOR… test was not applicable, because the real question was what was the reason that caused the employer to dismiss the staff, and the sole or principal reason was the employer’s need to make savings in order to retain the Cumbria Council work. Mere passage of time would not destroy the causal link between the transfer and a dismissal, but in this case the need to make the savings amounted to a supervening event some 15 years after the transfer and so the dismissal was not automatically unfair.

All providers need to discuss this with HR staff, and make it clear that at some point they might have to take the unions on, if councils start quoting this to providers, regarding why they could cut their fees, regardless of the TUPE obligations.

 

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Transport

We often hear general complaints that councils expect people to get themselves to the services they have been assessed as needing. Councils’ transport-related powers and duties are found all over the place in local government legislation, not just in one statute, or one community care statute. Thus it is hard to give any clear analysis as to the legality of such a stance, since it would all depend on the context, and the function concerned.

What is clear is that most of the transport functions of local authorities are powers, and not duties, and the general principle would therefore be that powers do not have to be exercised if there is no money available – they are discretionary.

If authorities want to save money by cutting back on transport or concessionary travel, it will therefore generally be lawful for them to do so, subject to two very important principles. They must never say ‘never’, for to do so is to have fettered the relevant discretion, which is in itself unlawful. Individual requests must be properly considered, against a policy, for sure, but always bearing in mind that the case might need to be treated as exceptional.

Secondly, authorities must ask themselves what the Administrative Court would be likely to say if on a community care assessment the authority has acknowledged that there is a clear need for a certain service, but then gone on to deny transport, having been told by carers that without it there is no way the client is able to get there under their own steam. To us, it seems a bit too like unreasonableness, to acknowledge a need, and offer to provide a service eg a place at a daycare facility, but then deny the individual the means to get it. This would be all the more so if the client is mentally incapacitated.

Now the Carers and Disabled Children Act is in force, it is all the more important that carers – those who often contribute the most in terms of time, let alone petrol, involved in transporting of learning or physically disabled persons backwards and forwards to facilities – appreciate that the Act gives them the right to a service in their own right, and that this can be a direct payment in lieu of a service, such as the money for taxi fares, perhaps for sharing journeys with other local people who need help. The test for eligibility is related to sustaining the carer in their current caring contribution, and anything that eases the load may be more cost-effective than providing the transport from council resources, or alienating the carer to the point of giving up the role altogether.

Health, Social Services’ and Local Authorities’ joint working powers under the Health Act cover integrated transport services but we do not know if any of the approved projects relate to this service area.

We think that the specific Chronically Sick & Disabled Persons Act services related to transport are as follows:

s2(1)

(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home, or assistance to that person in taking advantage of educational facilities available to him;

(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said s29 [NAA] or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;

 

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The Equality Act

 has changed the sex race and disability discrimination duties under the old Sex and Race discrimination legislation.

The Equality Act Part 11, s149-159, deals with the duties placed on public sector bodies and positive action duties (s158).

The public sector equality duty s149 replaces the duties that public bodies had under the Race Relations Act, the Sex Discrimination Act and the Disability Discrimination Act, and it brings in some key changes. It has been in force since April 2011.

The new section says that the public authority must in the exercise of its functions, have due regard to the need to do three things:

  • Eliminate discrimination, harassment or victimisation
  • Advance equality of opportunity between people who share a relevant protected characteristic, and those who do not – this duty is elaborated upon in the following way: having due regard to removing disadvantages suffered by people with the characteristics, meeting their needs where those are different from other people’s, and encouraging such people to participate in public life or other activates where representation is low.
  • Foster good relations between these groups by in particular tackling prejudice and promoting understanding.

 

Discrimination and protected characteristics…

It has also expanded the scope of the Public Sector Equality Duty from Disability, Race and Sex to cover the following categories: Disability, Race, Sex, Religion, Sexual Orientation, Marriage and Civil Partnership, Pregnancy and Maternity, Age and Gender Reassignment (or Transgender).

Discrimination here refers to treatment of a person within a category which is less favourable than the treatment of others in another category or the rest of the population in general.

The Equality Act could be said to strengthen existing law – as follows:

Section 1 places a new duty on certain public bodies (e.g. LAs) to consider socio-economic disadvantage when making strategic decisions about how to exercise their functions;(eg the FACS threshold, de-commissioning, grant funding voluntary bodies etc). (not yet in force, as far as I know).

The duty to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage will apply to the listed public bodies, which have strategic functions – these include Government departments, local authorities and NHS bodies. In addition, the duty will apply to other public bodies which work in partnership with a local authority to draw up the sustainable community strategy for an area, when they are drawing up that strategy. These partner public bodies are specified in the Local Government and Public Involvement in Health Act 2007.

 

The underlying aim or objective of the PSED

The objective behind the duty is to ensure that consideration of equality issues forms part of the routine, day-to-day decision making and operational delivery of public authorities, and the purpose of the specific duties is to ensure better performance of the duty.

The specific duties will therefore be imposed on almost all of the public authorities subject to the duty. The only exceptions are a few very small organisations for which the imposition of the specific duties would not be proportionate or sensible.

How to comply – the essential mindsets

The following principles, drawn from case law, explain what is essential in order for the Equality Duty to be fulfilled. Public bodies should ensure:

  • Knowledge – those who exercise the public body’s functions need to be aware of the requirements of the Equality Duty. Compliance with the Equality Duty involves a conscious approach and state of mind.
  • Timeliness – the Equality Duty must be complied with before and at the time that a particular policy is under consideration or decision is taken – that is, in the development of policy options, and in making a final decision. A public body cannot satisfy the Equality Duty by justifying a decision after it has been taken.
  • Real consideration – consideration of the three aims of the Equality Duty must form an integral part of the decision-making process. The Equality Duty is not a matter of box-ticking; it must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision.
  • Sufficient information –the decision maker must consider what information he or she has and what further information may be needed in order to give proper consideration to the Equality Duty.
  • No delegation –public bodies are responsible for ensuring that any third parties which exercise functions on their behalf are capable of complying with the Equality Duty, are required to comply with it, and that they do so in practice. It is a duty that cannot be delegated.
  • Review –public bodies must have regard to the aims of the Equality Duty not only when a policy is developed and decided upon, but also when it is implemented and reviewed. The Equality Duty is a continuing duty.

Who has to have due regard? Decision makers, helped by:

  • Board/Cabinet members – in how they set strategic direction, review performance and  ensure good governance of the organisation.
  • Senior managers – in how they oversee the design, delivery, quality and effectiveness of the organisation’s functions.
  • Equality and diversity staff – in how they raise awareness and build capacity about the Equality Duty within the organisation and how they support staff to deliver on their responsibilities.
  • Human resources staff – in how they build equality considerations in employment policies and procedures.
  • Policy makers – in how they build equality considerations in all stages of the policy making process including review and evaluation.
  • Communications staff – in how they ensure equality information is available and accessible.
  • Analysts – in how they support the organisation to understand the effect of its policies  and practices on equality.
  • Front line staff – in how they use equality considerations in the delivery of services to the public.
  • Procurement and commissioning staff – in how they build equality considerations in the organisation’s relationships with suppliers.

 

The Regulations and Specific Duties which go with it…..

The government is empowered under the Act to impose specific duties on public authorities by regulations.

The purpose of the duties is to ensure better performance by the public authorities listed in the Regulations of their duty to have due regard to the matters set out in paragraphs (a) to (c) of section 149(1).

They achieve this, by requiring authorities to prepare and publish objectives, setting out what they intend to achieve in order to further the aims of the duty, and to publish information demonstrating their compliance with the duty.

 

What’s the bottom line, under the new regulations?

The revised regulations introduced much greater flexibility to the earlier proposals. In particular, the earlier proposals included a number of prescriptive publication requirements, which were deemed by Ministers to be unduly onerous. Public bodies would have been required to publish all the details of their engagement with interested parties in determining their policies and their equality objectives; the equality analysis they had done in determining their policies; and the information they had considered when undertaking that analysis.

The revised regulations simply require public bodies to publish their equality objectives, and information to demonstrate their compliance with the duty. This information is likely to encompass some of the information set out above, but the revised regulations give public bodies much greater freedom and flexibility in meeting this requirement. This is in line with the Government’s broader approach to the public sector – to reduce bureaucracy and increase transparency.

Over a ten year period the net benefit from consolidating the equalities duties is expected to be in the region of around £110m to £205m (net present value terms) compared to the cost of the current duties.

Specific regulations applying to councils

  • Regulation 2 requires a public authority listed in the Schedules to publish information to demonstrate its compliance with the duty. A public authority listed in Schedule 1 must do this not later than 31 January 2012 and at least annually thereafter.
  • Regulation 2(4) requires public authorities listed in the Schedule to publish information relating to persons who share a relevant protected characteristic who are affected by their policies and practices.
  • Regulation 3 requires each public authority listed in the Schedules to prepare and publish one or more specific and measurable equality objectives, that it thinks it should achieve to further the aims set out in the duty. They are required to publish these objectives no later than 6 April 2012 and at least every 4 years thereafter.

Equality impact assessments

Before the Equality Act 2010, public bodies had a responsibility under the law to comply with the Disability, Race and Gender Equality duties in making policies or carrying out functions, by carrying out what is known as an equality impact assessment (EIA).

An EIA simply meant assessing how the policies and decisions of a public body are likely to affect or have affected people in a protected category, e.g. older or disabled people; looking for ways to promote equality; and removing any negative aspects that may be discriminatory. It is done by gathering information on the impact of the policy or function, consultation with relevant individuals or organisations and analysis of its effect. An EIA has to be far-reaching and comprehensive, analysing the potential of the policy to give rise to discrimination.

Under the Equality Act 2010, public bodies no longer have a legal duty to carry out an EIA, but most have continued to do so and this is likely to continue to be seen as good practice in compliance with the Public Sector Equality Duty.

Also, although public bodies no longer a legal duty to carry out an EIA, an individual or organisation that believes a Government body has not carried out an EIA before making a policy or decision, may still apply for judicial review of the policy or decision if it is likely to result in discrimination.

 

To do an EIA or not to do an EIA, that is the question…….

“8.15 The specific duties will require a public authority to publish information to demonstrate its compliance with the duty. This is likely to include details of the analysis it undertook and the information on which it was based. It is also likely to include details of any engagement or consultation that it undertook in complying with the duty.

The Government did not wish to impose a burden on public authorities to publish details of every single meeting that it has with its staff and members of the public, and every single document that it considers during the exercise of a function. Public authorities should be able to decide what information would be proportionate to disclose for this purpose and the public should be free to challenge authorities if they require more or for it to presented differently. They simply signal flexibility to public bodies, in how they demonstrate their compliance with the regulations. The Government believes this is the right approach.

Views on the effect of the revisions on EIAs

  • “…8.12 There was much less agreement as to whether the revised regulations would achieve greater transparency and accountability. In particular, a number of voluntary and community organisations were concerned that removing the requirement to publish details of equality analysis, information, and engagement would mean that such analysis and engagement would simply not happen.
  • 8.13 The Government has noted this view, but does not share it, and strongly believes that the case law from the previous equality duties supports this position.
  • 8.14 The duty requires public authorities to have due regard to the matters set out in section 149(1) of the Act and it is implicit that when exercising their functions they will need to consider any impact on people with relevant protected characteristics. Case law  on the previous equality duties established that active consideration of the likely effects of different policies and programmes on people with relevant protected characteristics is inherent in having ‘due regard’ to the matters set out in section 149(1); and that in some cases this may require some evidence gathering, and engagement or consultation with people affected by its decisions.”

 

Myths and truths:

The Equality Duty does not impose a legal requirement to conduct an Equality Impact Assessment – nor is there is any practical need to conduct one. Compliance with the Equality Duty involves consciously thinking about the three aims of the Equality Duty as part of the process of decision-making. That will entail understanding the potential effects of the organisation’s activities on different people, but there is no prescribed process for doing this. Keeping a simple record of how decisions were reached will help public bodies show how they considered the Equality Duty. Producing an Equality Impact Assessment after a decision has been reached will not achieve compliance with the Equality Duty.

The Equality Duty does not mean that public bodies have to examine equality issues where they are not relevant to the matter in hand. Where it is clear from initial consideration that a policy will not have any effect on equality for any of the protected characteristics, no further analysis or action is necessary. For example, if a public body is conducting a review in relation to an issue which has no implications for equality – such as an evaluation of the effect of coastal pollution on marine life – undertaking a formal consultation or analysis addressing equality issues where it is evident that the Equality Duty is not relevant would be pointless and is not required.

The Equality Duty does not require public bodies to take disproportionate action on equality. Public bodies should take a proportionate approach when complying with the Equality Duty – in practice, this means giving greater consideration to the Equality Duty where a function or policy has the potential to have a substantial effect on discrimination or equality of opportunity for the public or the public body’s employees, and less consideration where the potential effect on equality is slight.

The Equality Duty does not require public bodies to treat everyone the same. Rather, it requires public bodies to think about people’s different needs and how these can be met. So the Equality Duty does not prevent public bodies providing women-only services – for example, for female victims of sexual violence or domestic violence. Indeed, such services may be necessary in order to ensure women have access to the services they need.

The Equality Duty does not require public bodies to treat all religions as being equal or to treat all religious festivals equally. For example, a public body displaying a Christmas tree every year in its reception area would not be a breach of the Equality Duty.

The Equality Duty does not require public bodies to make services homogeneous or to try to remove or ignore differences between people. So, for example, it does not mean that a public body must stop providing age-appropriate services for people of different ages, or that it can no longer commission some services to be provided by different faith organisations. Faith organisations are sometimes well-placed to deliver services which meet the particular needs of their  community.

Enforcing compliance with the Equality Duty

There is no explicit requirement to refer to the Equality Duty in recording the process of consideration but it is good practice to do so. Keeping a record of how decisions were reached will help public bodies demonstrate that they considered the aims of the Equality Duty.

The Equality Act makes very clear that any proceedings for enforcement of the Public Sector Equality Duty must be in public law. This means it has to be done through judicial review, in the High Court.

An individual cannot bring an action against a public body for breach of an individual contract, e.g. you cannot use the Public Sector Equality Duty to sue your council for failing to pay you for gardening services rendered. For this you would have to go to the normal courts.

The EHRC can institute judicial review proceedings where it believes that there has been a breach of the provisions of the Equality Act in general by a public body. It also has a specific power to make an application for judicial review where a public body has breached the general and/or specific duties of the Public Sector Equality Duty.

The EHRC also has a power to intervene in judicial review claims filed by individuals and organisations to help in clarifying the law. In this context its role is neutral (i.e. it does not support one side or the other).

What the EHRC can do

As the body with legal responsibility to enforce compliance with the duty, the EHRC will assess the complaint and, if is seen to be substantial, it will take up the complaint under its own procedure in the following ways.

Compliance notices: It will assess the public body’s compliance with both the general and specific duties and issue what is known as a compliance notice, where there has been a breach of either or both of the general and specific duties. In addition, where it suspects the duty has been breached it may enter into an agreement with the body requiring it to take certain steps to comply with the duty, for which it would agree not to issue a compliance notice.

Judicial review: A person whose rights have been affected by a breach of duty is able to make an application for judicial review to the High Court. Judicial review is the application an individual or organization can make to the Court, challenging an action by a public body, where it is believed the action has been lawful.

How the duty applies to older people

Equality protection was extended to include age and in particular the duty of public bodies to consider persons in the age category. Older people thus now have the full  protection previously accorded to other categories.

It is important to make it clear that the Public Sector Equality Duty as it relates to older people is in addition to rights that they have under the other parts of the Equality Act, such as equality in employment, goods and services, etc.

What this means, is that people can:

–     require public bodies to have due consideration to age equality in making policies and decisions – like quality of life and aspirations and spending patterns, for instance – why is ‘24 hour care’ an adequately expressed care plan, for an older person, when it wouldn’t be, for a younger one?

 

–     challenge a decision or policy of a public body, where it has failed to consider the impact of the decision on older persons (either by not carrying out an equality impact assessment or not considering the results of the equality impact assessment, where it has carried out one).

In summary, the new Public Sector Equality Duty has given older persons (the age category) the right to have their interest considered by a public body when decisions are being made, using all the facilities available under the Equality Act and its supporting regulations, as well as other existing judicial and legal means.

Please note that the Public Sector Equality Duty – after all this – is now the subject of an early review, by the Coalition government, before the reporting duties have even been and gone. Perhaps the recent spate of judicial reviews must have had something to do with that!

  • “…the duty has also come with some degree of administrative and regulatory burden; publishing information and objectives takes up management time.”
  • This has clearly influenced the Government’s decision to review the PSED to see whether “it is operating as intended”.
  • To date however, the Government has not provided any further details on the remit of its review. Public authority employers will therefore have to await further announcement before they consider what effect the review might have on their business practices.

 

 

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The Chronically Sick and Disabled Persons Act 1970

is just one of the pieces of legislation in England which defines the parameters of social care services – the things Councils have always been able to arrange, if they feasibly came within the following highlighted words – but services a right to which has always depended for the individual, on a prior finding of necessity, ie eligibility.

Even when a person is eligible, however, in a particular domain of NEED, it has always been up to the council to decide whether they would meet the need in a particular way, because the council is the decision maker on appropriateness of service provision.

 

The Act envisages arrangements by the council, needing to be made, in order that a person’s identified needs be met, for the following things or activities.

Section 2:

(a) the provision of practical assistance for that person in his home;

(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;

(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;

(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;

(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;

(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;

(g) the provision of meals for that person whether in his home or elsewhere;

(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,

 

One of the debates since Personalisation became government policy, is what might people want to spend the money on? And are all such things actually – in legal terms – really social services?

Thinking very hard about stretching the language in the legislation above, is one way of answering this question:

  • Gym membership (or any club membership, even if it’s one a bunch of personal budget recipients set up for themselves), massage, a buddy for using public transport, taxis, an escort for socialising, art therapy, season tickets or subscriptions to activities such as the theatre, football – paying for all these things could logically come under “facilitation of” / “access to” recreational facilities or ‘instruction’ or ‘outings’ if people were eligible for them under FACS guidance in the first place.
  • Life coaching, specialist communication assistance (eg for a deafblind person), emotional support, financial management support, a personal trainer: “instruction in how to overcome the effects of one’s disability”, or even – “practical assistance in the home” – likewise, if eligible, once again
  • Any classes or courses – likewise…
  • A person to provide support at college or university: assistance to that person “in taking advantage of educational facilities available to him”
  • Transport: “provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29”
  • Emergency respite at one’s house: practical assistance in the home
  • Supervision at home: night-sitter services – see LAC (93)10
  • Telecare, Helpline, commode, electric scooter, recliner chair etc, air conditioning, grab rails, cot sides, a stair lift, electronic tracking device, fall monitor etc: the provision of any additional facilities designed to secure [the person’s] greater safety, comfort or convenience
  • A computer, a Wii, Guitar Hero, ‘brain trainers’: the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
  • Caravans:  recuperative holidays or holiday homes – see LAC (93)10
  • Gardening, cleaning, ironing, shopping, home handyman services, financial management support: practical assistance in the home or ‘home help’
  • Cocaine? Cannabis? Cigarettes? All these are ‘recreational facilities’ of a kind, but one is illegal and harmful, but allegedly fun. One is illegal but allegedly therapeutic. And one is legal and a source of vital tax income to the government, but clearly harmful, even in moderation… so it is unlikely that a court would mandate purchase of any of these things out of a community care budget!
  • Reputationally difficult things: What about spending a direct payment on an agency that is playing fast and loose with the illegal worker rules – the recipient is not committing an offence, it’s the agency. But it is public money, being spent on an illegal worker. The LA does not have to agree to anything it does not want to agree to. So this one is hard to call, in legal terms. If it wants to take the risk, on the basis that it’s for the police to pursue, and to stop the funding would destroy the care relationship which is working really well, it could also educate its Members better, to deal with the press politely but by reference to the legal framework, if it wants to.
  • What about things that just make us feel happier? Or less miserable? Are these things community care services?

For instance, what about a pet, for the sheer loving of one…? Great for one’s happiness and heart-rate, according to the evidence, but difficult to force into the language in any of the Acts from which the notion of community care services are derived. It’s hard to argue in favour of pets, though it obviously makes sense, given the evidence…because there are no community care services specifically for addressing social isolation or stimulating a person that could be stretched to cover buying and maintaining a pet. A pet is not a recreational facility, in the ordinary use of the word.  FACS guidance and Personalisation Agenda emphases on ‘outcomes’ have ignored the law, underlying social services funding, unfortunately.

  • The purchase of sex or somewhere to engage in it?: It is not illegal to spend money on securing a sexual activity for oneself. Paying for sex when you know that the other person has been exploited, by being subjected to threats, force or deception, is criminal, and is a strict liability offence. But sex is clearly a leisure activity and could arguably be regarded as a game or an outing…. And help with accessing it could certainly be agreed to be a vital need, in a person-centred holistic assessment, under something as woolly as FACS – referring back to VITAL roles and relationships, it is suggested. It is not a crime to sell sex, although the contract is unenforceable for public policy reasons. Street offences are what prostitutes and those searching for sex are criminalised for, and it could even be said to be good for the area to get if off the streets, some would say.  Would advocates call it ‘practical assistance in the home’! Probably not, but why shouldn’t it be seen as “instruction in one’s own home, or elsewhere, as to how to overcome the effects of one’s disability”? Since it may be illegal to buy sex for someone else, and it is definitely illegal to buy it for someone mentally incapacitated, perhaps this represents a bright, shining outcome for the idea that once the money is a direct payment, then it’s as if it’s private money, in the client’s hands, and no longer the money of the local authority, no longer being used to procure anything, in the ordinary sense of public procurement?

 

  • Councils will not be looking forward to the media attention if they take up this opportunity and start filling up PBs with money for this activity – and they don’t have to – but they have to be careful as to how they say no. Getting it wrong could mean judicial review / a human rights claim under article 8 (respect for private life, and one’s sexuality).

 

 

 

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The Better Care Fund

Background

What is the Better Care Fund?

The main aim of the Better Care Fund (‘BCF’) is to transform local services in order to ensure that people are provided with better integrated care and support, and in doing so help local areas to manage the common pressures within this sector and improve their own long term sustainability.

By facilitating the integration of care and support, it is hoped that this will enable health services to improve the lives of some of the most vulnerable people in society and give them more control over their own care and support. Ultimately, it is hoped that the BCF will help health services to offer service users a better quality of life. The BCF will also build upon the work that is already being carried out by Clinical Commissioning Groups (‘CCGs’) and councils, by making the most appropriate care for each individual more accessible.

What is included in the Better Care Fund?

The BCF comprises of £3.8bn of funding in 2015/2016 to be spent locally on health care in order to achieve the aforementioned aims. In 2014/2015, along with the £900m transfer already planned from the NHS to adult social care, a further £200m will be made available in order to assist localities with laying the necessary groundwork ahead of the BCF in 2015/2016. However, this money will only be given to councils that have jointly agreed and signed off two-year plans for the BCF.

Whilst there are no new requirements for the pooling of budgets in 2014/2015, the requirements for the use of the £200m are the same as those outlined within the guidance from the Department of Health to NHS England (December 2012) on the funding transfer from NHS to social care in 2013/2014:

  1. The funding must be used to support adult social services in each local authority, which also has a health benefit
  2. Each local authority must agree with its local health partners how best to use the funding within social care, and the results that they hope to achieve from this; and ‘Health and Wellbeing Boards’ will be the natural place to discuss with NHS England, CCGs and councils about this
  3. Councils and CCGs must have regard to the Joint Strategic Needs Assessment for their local population, and existing commissioning plans for both health and social care, when deciding how the funding should be used
  4. Local authorities, councils and CCGs must demonstrate how the funding will appreciably have a positive impact on social care services and the outcomes for service users

The BCF includes £130m of NHS funding for carers’ breaks, and £300m of NHS funding for reablement services. Local plans will therefore need to set out the level of resource that will be dedicated to carer-specific support, and local plans will also need to show a continued focus on reablement. Also, the BCF includes funding for costs to councils resulting from care and support reform. Whilst this money is not ring-fenced, local plans should show how the new duties are going to be met.

How should councils and CCGs develop and agree a joint plan for the Fund?

A condition of accessing the BCF’s money is that CCGs and councils must jointly agree plans for how the money will be spent, and these plans must meet certain requirements. Each statutory Health and Wellbeing Board will then sign off the plan for its constituent councils and CCGs. In doing so, it will be necessary to ensure that the Fund is developed as a fully integral part of a CCG’s wider strategic and operational plan, and the unit of planning chosen by a CCG must be consistent with the boundaries of the Health and Wellbeing Board (or Boards) with which it works.

Whilst the specific priorities and performance goals in the plan are reserved for each locality, it is recommended that each locality:

  1. Aggregates the ambitions set for the BCF across all Health and Wellbeing Boards
  2. Assures that the national conditions have been achieved
  3. Understands the performance goals and payment regimes that have been agreed in each area

The six national conditions, as mentioned above, are as follows:

  1. The plans must be jointly agreed by the constituent Councils, the Health and Wellbeing Board and the CCGs
  2. The plans must include an explanation of how local adult social services will be protected within their plans
  3. The plans must confirm how they will provide 7-day services to support patients being discharged and prevent unnecessary admissions at weekends (or otherwise, why their plans will not be able to provide such services)
  4. The plans must secure better data sharing between health and social care, based on the NHS number
  5. The plans must ensure a joint approach to assessments and care planning and ensure that, where funding is used for integrated packages of care, there will be an accountable professional
  6. The plans must identify what the impact will be on providers in their local area, including if the impact goes beyond the acute sector

Comment

The general consensus is that the BCF represents the best opportunity yet for local services to collaborate in order to improve the health and lives of people within their communities The flexibility and scope for tailoring the delivery of local services that has been given to local authorities, CCGs and care and support services when formulating their operational plans under this model is especially appreciated. It is hoped that the scope given to innovation and creativity here, when producing ambitious health and social care programmes, will be particularly important when bringing about important change for the lives of many service users. The ultimate aim of the model is thus to achieve a ‘seamless pathway of care that delivers the best possible health outcomes for people’ (Jon Rouse).

Whilst the overall direction of moving to integrated models of care and pooling health and social care budgets has been widely supported, the following risks have been identified about the model (The Guardian).

Firstly, the fund is not comprised of any new or additional money. The money contained within the BCF is derived solely from NHS and social care budgets. Therefore, unless the new integrated models of care supported by the BCF deliver equivalent benefit straight away, it is feared that the service being delivered to patients will be worse. A further concern within the scheme relates to the apparent inconsistencies regarding funding. Whilst, on the one hand, councils have been told that their spending power will be unaffected, because the £3.8bn will be spent on local authority services; the NHS has also been told that the protection of their funding will be maintained. Both cannot be correct. Also, many regard this scheme to be a huge risk given the scale and speed with which it is being undertaken, without significant additional investment, nor any assurance that these new models are working well before the old models have been discontinued. It must also be conceded that whilst integrated care models will undoubtedly produce better outcomes for patients, there is little guarantee that they will also be more cost-effective and efficient.

Further, whilst this scheme is predicated on a collaborative approach that has already been seen within certain local health and social care economies, there is no guarantee that similarly prosperous partnerships will be engendered across the scheme on a large scale. If, for example, the scheme begins to be consumed by doubt as to whether a truly integrated model can be achieved, riddled by division between health and social care over scarce funds, and overcome by a wholly adversarial environment as service deliverers seek to protect their corners; it is unlikely that the BCF will be able to achieve its overriding aims.

A final concern relates to potential risks to the NHS service delivery, resulting from taking £2.1bn out of mainstream NHS service delivery. Sir David Nicholson has told CCGs that the fund will require savings of over £2bn in existing spending, implying an extra productivity gain of 2-3% across the NHS as a whole in 2015/2016. Given the clear difficulties in achieving 4% savings a year, increasing this to 6-7% seems to be immensely over-ambitious.

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Supported Living / Supporting People

Introduction

Supported Living is the name given to a model of care in which the person with the needs has them met in their own home, most usually let to them by a well-informed landlord such as a housing association or private or voluntary provider with experience in accommodating people with special needs.

 

Housing Benefit pays for the rent, if the person is eligible, in financial terms, and an extra amount is available by way of housing management costs, and on top of that, a special further payment is available out of central government funds (at present) called Transitional Housing Benefit, for general counselling services which assist the person to live independently, in terms of maintaining the tenancy.

 

If a person needs additional care, they can of course seek it from the local authority where they live, and the social services department will assess and provide or contract for the provision of those extra domiciliary care services, either from a domiciliary care agency, or the provider who is providing the accommodation.

 

Such schemes are sometimes called Enhanced or Extra Care schemes, and they are seen as the way forward for modern provision of what it is that people most want – the right level of care, in their own homes.

 

Existing registered care home settings can often make desirable accommodation, with a bit of remodelling being done on the internal living arrangements, for the typical Supported Living client group. Communality of accommodation has never prevented people from being granted a licence to occupy, although self-contained accommodation is needed for a tenancy. So one answer to the decrepitude of many existing care homes, which could not be brought up to standard economically, under the Care Standards Act, is to move towards de-registration and the new Supporting People model.

 

However, a legal issue which threatens to stymie much advance in this direction is the issue whether such schemes amount to registrable care homes under the Care Standards Act. For providers, there’s not much point in de-registering a care home and entering into tenancies if it turns out that what is going to be provided still somehow counts as registrable care!  The Government has now issued new guidance on the regulation of supported housng and care homes which seeks to explain in broad terms where registration as a care home is required and how to distinguish care homes from supported housing of various kinds.

 

In the old days, under the Registered Homes Act, lots of early supported living schemes managed to walk the tightrope and avoid registration (not for any ill-motivated reason, but because of the expense) by not providing board. The old Act required that registration be applied for if both board and personal care were provided with accommodation. Others managed by complicated leasing and lease back schemes between landowners and domiciliary care providers.

 

Registration of supported living services

We advise clients that personal care services, for a person capable mentally of understanding the fundamentals of, and actually holding a genuine licence or tenancy agreement from a landlord, are capable of being provided directly by the landlord, without triggering registration in respect of the address where they are provided.

 

We do not think it is necessary for a supported living business strategy to separate the identities of the licensee’s or tenant’s immediate landlord from that of the freeholder, or from the identity of the organisation providing either the THB funded general counselling and support, or the full blown personal/domiciliary care. The nature of the services being provided makes no difference to this view.

 

If, once the NCSC gets going with inspections and the Tribunal makes some law, to the effect that it is not merely a separation of the contractual arrangements for the different elements of care making up the package, which renders the services unregistrable (by dint of the requirement for registration that care be provided ‘together with’ the accommodation), we do not think that distinctions between the legal corporate identities of linked companies would necessarily cure the problem. This is because the only basis on which contractual separation would be found to be inadequate to defeat registrability would be if the law were to be that the use of an establishment, in the sense of ‘premises’, or a ‘building’ or ‘buildings’, for the provision of care and accommodation for the same recipient, was sufficient to trigger registration. If that were to be the case, not even the complete separation of the companies providing the care and the accommodation would meet the problem that they would still be being provided in the same premises.

 

Hence we think that there is no benefit, in strict legal terms, in setting up a subsidiary to undertake either land owning, property maintenance or care providing functions.

 

Nevertheless, we appreciate that it may yet appear desirable, for the strategic reason that many councils are anxious to see separation of the identities of care and accommodation providers, such that if a business is going to be competitive and attract clients and service agreements, it needs to comply with the main beneficiaries’ perceived way around the problem.

Reasoning for the above view

The registration framework makes the ‘establishment’ which provides the care (which now has to include some assistance with bodily functions in order to trigger registration) together with the accommodation, the entity which must be registered. The person who must apply is the person who ‘carries on’ or ‘manages’ the establishment.

 

There is some case law on the meaning of ‘establishment’. In the Tribunal case law to date, the concept of an establishment has only ever been considered with regard to whether it covers one or more buildings, separated geographically, but most often, when the finding has been one ‘establishment’, within the same curtilage. Sometimes it has suited the provider to be arguing that two buildings count as one establishment, and at other times as two (when the overall number of clients was so large for instance, that two separate homes stood a better chance of getting registered).

 

We do not think that the fact that the word has been considered in the context of ‘buildings’, necessarily means that it means ‘buildings’, though. If the intent was that in any building where care was provided, as well as somewhere to live, it would mean (if the care services included assistance with bodily functions) that there would even have to be an exception for a person’s own home. There is none, and there never was one, under the old Act. This makes it probable, we think, that there is more to the conditions precedent for registration than would be the case if ‘establishment’ just meant ‘premises’.

 

Since a person has to be carrying on or managing the establishment in order to be the right person to apply, the word ‘establishment’ is more likely to mean a business, an economic activity, or an operation, rather than just ‘a building’ or ‘buildings’. If this is so, then the concept of the ‘establishment’ providing the care and accommodation becomes more important in its own right, we think. The old Part II Registered Homes Act made nursing homes registrable if they were :

 

Any premises used, or intended to be used, for the reception of, and the provision of nursing for, persons suffering from any sickness, injury or infirmity;

 

Then there was an exception as follows:

 

The definition in subsection (1) above does not include—

 

Any premises used, or intended to be used, wholly or mainly as a private dwelling;

 

That form of wording, had it been carried over to the new framework, would have been enough to convince us that the trigger was focusing on the use to which the building was put. But given that it has been worded differently, with the focus on the establishment doing the providing, not merely being used for the provision of the care, we think that this connotes that the operation or entity (a business in this respect) is providing the care and the accommodation. A building or premises cannot provide those things, in the ordinary meaning of the word.

 

There is also some case law to the effect that the running of a holiday establishment for people with disabilities also offended against the old framework unless people brought their own carers with them. This serves to support the analysis that it is not the fact that the establishment (premises) forms the site where the care and the accommodation are both received; rather it is the fact that the establishment provides both elements, which is problematic and triggers registration. If an occupant can bring their own carer, then they may as well be buying in their own care to have on the premises, and that would remain outside registration. It is a short step from there to say that the same outcome results when the local authority buys in the care for the client instead.

 

Neither is it enough for registration that the establishment (the business) is simply happening to provide both the care and the accommodation. They have to be being provided ‘together’, and it is significant that this word has been added to the new framework, whereas in the old it was just left as ‘with’. We think the addition connotes very strongly that the arrangements for the care and the accommodation have to be bound up together – for instance, in one contract with one party, where the two elements are understood by all parties to be inter-dependent or hand in hand.

 

A person who is providing domiciliary care services under s30 of the National Assistance Act to a local authority owing someone a community care service provision obligation is deemed by the law to be the agent of the authority. As such, we think it is a fair point to be made to registration officers that where there is an LA contract for the additional personal care, then the client is not the recipient of the service, but that the client is the local authority who has bought in the service, and who is seen as the statutory provider, in law, to the actual individual recipient of the services.

The Significance Of The Arrangements For Occupation

A client who is in their own home and buying in care – even 24 hour care – is in premises which are used for the provision of care and accommodation, but no-one suggests that people’s own homes are registrable. The accommodation is not being ‘provided’ by an establishment, let alone ‘together with’ any care. The same is true for someone who rents a property – they are as much in their own home as a freeholder, and they are entitled to buy in care or not, or receive it from the local authority or the local authority’s agents, without it affecting their rights of tenure or occupation.

 

It follows, we think, that if a provider is a landlord, with a genuine agreement for a tenancy or a licence with an occupant, on the one hand, and an arrangement to provide that person with care, at the request of the local authority or the client directly, on the other hand, there is no contract for care ‘together with’ accommodation. The person is in their own home, and the fact that the establishment which is providing the care is also the landlord is not enough to make that situation any different from the situation where a person has a mortgage or a right to occupy under a trust or whatever other interest in the home. There is one contract for the accommodation, to which the landlord and the occupier alone are parties; and there is another contract between the occupant and the landlord, or the authority and the landlord, for care. The care contract, regardless of the parties to it, will be for services to be provided to the client, in their own home.

 

It follows that even if the landlord is one and the same as the provider of the care, there is still no contract for provision by the establishment concerned, of ‘care’, ‘together with’ the accommodation.

Mental Capacity

A very large number of candidates for Supporting People projects are moderately to severely mentally incapacitated, having been ex-long stay hospital patients since moved out into the community, in line with NHS and DH policy.

 

The above approach to the non-amenability to registration of genuine supported living licences or tenancies is, we think, completely inapplicable where the occupants are so severely mentally impaired as not to understand the basics of the tenancy agreement or licence. Anyone who is incapable of understanding the concept of money, and appreciating what is involved in managing their own money, and anyone incapable of understanding the notion of the exchange of money, in return for a place to stay, and the basic obligations which go with it, in terms of mutual respect and decent behaviour towards other occupants and the property itself, is not capable, in law, we think, of holding a tenancy or licence. This means in turn that they are incapable of claiming housing benefit, THB, managing a direct payment, and all the rest of what goes with a move into supported living.

 

We appreciate that the law on necessaries (ie food, shelter, and care) would hold that any such contract which had been entered into by a person acting on their own account, would in fact be enforceable by the provider, despite the person’s mental impairment. However, it is inevitable that the people whom Supporting People projects end up housing or serving with personal care etc. will not have been acting on their own account. They will have been ‘put up’ by the local authority or health authority, and manoeuvred into the tenancy (in the nicest possible sense of the word), without ever having even personally purported to be knowing what they were doing.

 

We are confident that such agreements, convenient and desirable though they may be, in relation to maximising the autonomy, income and dignity, of the persons concerned, were and would be ‘shams’ – and that the court would say that such persons should never have been ‘externalised’ from the care of the local authority under its National Assistance Act residential and nursing home procurement functions in the first place, or by the Health Authority, using the s28A and benefits route into care, without any care management from the local authority. All such agreements involve public officers having presented the clients to the providers and having said something to the effect of ‘treat them as a tenant’ – and that is more like arranging a placement for someone, rather than introducing them to an arm’s length landlord for an arm’s length tenancy.

 

Since this client group will often be receiving personal care which is of the nature of assistance with bodily functions, as well as support and supervision, we think it is inescapably the law, that such set-ups remain registrable, and that de-registration would in due course attract enforcement action by the NCSC – for the purpose of protecting the clients – unless some other means is found by which they can validly take tenancies from their landlords.

 

We think the answer to that problem is formal Receivership. We have made a formal enquiry of the NCSC using their helpline address, with a request for assurance in relation to the general argument about ‘together with’ and the specific receivership point.

Receivership

 

Receivership is managed and administered by the Public Guardianship Office. The important features to note are that there are scale charges, a discretion in the Office to waive the fees, and a right to payment for receivership services, if the individual Receiver is a professional.

 

We think it is worth investigating whether the provision of such receivership by suitably qualified people, perhaps working as part of another of a projects corporate group structure, as either an advocacy unit or a specialist financial management and benefits unit, might provide an income stream additional to the one to be derived from THB and domiciliary care services. Finding a source of payment for these new financial management responsibilities should be seen as the price at which LAs and HAs can choose whether or not to facilitate the other savings that they might see from de-registration of existing registered residential care homes.

 

We also think it is conceivable that a receiver signing a tenancy in place of the individual occupying the premises might prudently wish to consider the need to get insurance in relation to harm to visitors, including the staff of the providers, as a normal incident of the responsibility for the management of the ‘property and affairs ‘ of the person concerned, and of any person’s responsibility for the state of their premises and equipment, if it is foreseeable that other might be affected by it.

 

We would also call the attention of Supporting People projects to the possibility that having an external Receiver in place might enable a project to ask for a guarantor of the rent, so as to smooth financial difficulties out in areas where the administration of Housing Benefit and THB is in disarray. This would depend on convincing local authorities that their finance departments are the obviously well suited candidates for the role.

Significance of Choice of Provider

The government guidance in relation to choice of care provider within Extra Care or supported living settings is firm on the point that an agreement which makes the reception of the care from the landlord, or where the agreement ties the client to having any care received from the landlord, renders the arrangement potentially registrable.

 

We do not think it is because choice of care provider, as such, is important to the question of whether the person is really to be seen as being in their own home. Ordinary clients of a social services department have no legal right to choice of provider, so it could hardly constitute a test. Rather, we think it is because the question of choice of whether one has care at all or not is the crucial feature of being someone who lives in their own home.

 

We are also aware that the government’s consultation guidance on Supported Living warns that de-registration may lead to the finding that what is thereafter provided to the clients amounts to a registrable service, and that a number of companies together could be found to be running ‘an establishment’.

 

We have followed this warning up and have had it confirmed by the Department of Health legal team that there is no decided Tribunal case on which they were relying when saying this. It is our view that the warning is actually aimed at sham schemes where there really is very little difference before and after de-registration in the range of services offered or the philosophy of care applying; and in particular, where the contracts of so-called tenancy require the client to receive the services as a condition of the tenancy, and indeed, sometimes, from the landlord itself and no other provider, or from an associated company which will have been set up to provide the personal care.

 

We agree with the guidance that such schemes would be registrable, regardless of the identity of the separate providers, not because they deny choice of providers, but for the simpler reason that a contract of tenancy which makes the receipt of care, part and parcel of, or a condition precedent to, the continuation of the right to occupy, IS an agreement between one legal entity, and the client (him or herself), for a package of care ‘together with’ accommodation. The tenancy may be genuine, but what is abnormal in that situation is the client’s acceptance in advance that to have a right to live there, they must accept care or care from the same provider as the landlord, or his agent. That is not what the law is for people in their own homes, who can refuse or accept care as they please (subject to having mental capacity and not presenting a public health risk); and that abnormality of arrangement is what would make for a finding of amenability to registration, in our view – whether on the basis that the tenancy was a sham or on the basis that the establishment was in fact offering care and accommodation ‘together’.

 

In a situation where the client has been tied in to accepting care as a condition of the tenancy, then even if there were no tie-in to a particular company, we would not be confident that it would cure the problem even if the care to be provided, at the behest of the authority’s SSD, were to be provided by a different company to the landlord. Thus, even if there were two contracts in place, one for care and one for accommodation, with separate parties (tenancy between landlord and tenant, and care between authority and separate company, we would still expect the NCSC to contend that the client was not truly to be seen to be in their own home, because of the condition of receiving the care. The more associated the companies happened to be, the greater the likelihood, we fear, to find that together they run an ‘establishment’ – in those particular circumstances.

 

We can understand why a lot of local authorities think that separation of the businesses offering the different elements in the package is the best way of achieving the kind of separation which strikes them as necessary. They would imagine, no doubt because of the dubious benefit of the terms on which some old properties have been disposed of, to Housing Associations, that the only way they would get Housing Associations willingly involved in taking on such tenants, would be to re-assure the landowners of the right to repossession of the premises, the moment the person gets difficult, or denies the Housing Association (by refusing care services) the chance to earn the lucrative domiciliary care contractual payments often going hand in hand with the long term lease of the properties concerned.

Terminating the Tenancies or Licences – Protection for the Provider

The HB and THB system depends for its conceptual underpinning on the idea that the client is contracting with the landlord, not only for the accommodation, but for the add-on support as well. To that extent, THB depends on the existence of an agreement between the client and the landlord for the general counselling services. But it does not depend on the landlord’s having made it a condition of the tenancy that the client actually accepts the support services, or accepts them from the landlord or his agent. The law, quite simply, is that if the tenant does not agree to have the service, then s/he doesn’t qualify for the extra HB to cover the service, and that would leave the landlord/care provider out of pocket, with a need to take swift action. Refusal of care services should not lead to the forfeiture of the tenancy, without putting into doubt the validity of the home being the occupant’s own home, and hence amenability to registration, in our view.

 

In fact, it is the supported living market which has moved towards making the support element a condition of the tenancy, we think, to deal with the problem that a person with community care needs, who won’t accept the services, potentially becomes a problem for the landlord and other tenants, and doesn’t pay for what has been contracted for. Direct payment of THB by the council to the provider offsets that last problem for now, at least; and when the THB element becomes a LA contractual requirement for care services, the economic problem of being left out of pocket by a non-paying client will disappear, because the council will be contractually liable to the provider, regardless of acceptance of services. But not all councils are willing to pay for the more extensive personal care services which may be needed on top of general counselling services, regardless of whether the person will let the carers in to provide the care.

 

If the real problem is what to do with people who will not accept care, having taken up the tenancy, then the law of landlord and tenant can help. If the occupant has been given an assured tenancy, it will be difficult, if not impossible, to evict them merely for becoming challenging. That is why we think it is a necessary element of any such strategy for provision to people with a learning disability or a mental illness, that they be provided with assured shortholds, and that the LAs concerned are reminded by providers that LAs may be forced to take steps under guardianship, declaratory relief, or the Mental Health Act, should it become necessary to ensure the continued reception of care services, somewhere. It will be embarrassing for a local authority to argue that the person is incapacitated in relation to daily living decisions (an essential precondition to declaratory relief and a virtual necessity for guardianship) if the authority itself played a significant role in getting the person into the apparent tenancy or licence arrangement in the first place.

 

If a candidate for a supported living scheme has mental capacity, it is our view that for the reassurance of the providers, the authorities concerned ought to seek the written agreement of the client to accept domiciliary care services in the RSL or private landlord setting, as a condition of being nominated to the land-owner for the tenancy. That is the closest the authority can get to ensuring that everyone knows the real basis on which the parties are going to work together to maintain independence for as long as possible.

 

Where the client plainly lacks mental capacity, then even if a Receiver can sign the tenancy, legitimately, and thus ensure access to HB and THB, the client cannot be said to be consenting to receipt of personal care, and government policy around Supporting People seems to be based on the notion that local authorities can put in those services on the basis of ‘necessity’, without the lack of consent making the service provision into an assault.

 

This may or may not be correct in law – it has not yet been explicitly decided whether authorities can just get on with it, or must go to court first for the judge’s sanction of the arrangements in the best interests of the client.

 

The significance of this is that in situations where the clients’ personal care is to be supplied to the client without any contract in place with a local authority, (because it would simply continue to be paid for by a Health Authority’s s28A monies paid directly to the voluntary sector provider or RSL), the provider itself would have to be prepared to meet the challenge ‘What or who has given you the power to touch a non-consenting adult in this way’? – and the provider would not then even be able to point to any statutory responsibility of theirs, for meeting the client’s needs, nor suggest that the Receiver has a power to consent on behalf of the clients concerned, in matters of personal welfare (even though he or she does have an obligation to consider contracting for such services, for the maintenance of the individual).

 

Implications of grant funding for the success of the strategy and status for de-registration purposes

 

Our legal advisory work makes us aware that many clients who might be suited to Supported Living are currently funded by s28A National Health Service Act money from the Health Authority or PCT. This may be either

 

  1. a) via the LA, which then contracts with the provider for a registered residential package

 

  1. b) directly to the residential care home owner, under s28A(9) as a voluntary organisation.

 

In addition, some other authorities have provided s64 Health Services and Public Health Act 1968 monies, also by way of grant, directly to providers as a voluntary organisation.

 

In both cases, the nature of the arrangement is support for funding of either residential, or a basic nursing package of services – that is, social care, in nature, rather than any health service continuing outside of a hospital.

 

In most if not all of these cases, the money has not been tied to the specific client, but has been paid on a regular basis in block sums on account of a certain number of bed spaces, rather than specific people. This is consistent with the nature of such payments being by way of grant and not a contract for specific services, for specific clients of the health service.

 

Some of the clients have either been their own ‘care managers’, notionally requesting and receiving services without input from any other professional, and paying for them wholly or partly out of benefits which counted as money in their own hands, the shortfall being met by the HA/PCT grant payment. Alternatively, they have been the clients of the local authority, provided with a social care package (usually residential) and charged by the authority for the services in line with the national charging regulations, the actual cost of which services to the authority being offset further, by virtue of the HA/PCT s28A subsidy.

Amongst the clients, some people will have been used to getting benefits at the Preserved Rights rate because some homes existed prior to 1993 and those in registered placements prior to 1993 would have continued to get the higher Preserved Rights rates, out of which to pay for their care.

 

Some of those who came along later, but who accessed care independently via the benefits ‘loophole’ route, when Residential Allowance made it possible, rather than coming via contractual arrangements made by the local authority, would still have got benefits such as income support, though not so much as Preserved Rights rates. Presumably therefore, the grant payments the providers received from Health Authorities, would have made allowance for that deficit, and would have been greater for those clients.

 

The majority of clients who came along later will not have been able to manage to pay the fees without the LA’s care management and contracting, and they too will have got income support etc, including the residential allowance, when it still existed, but their shortfall will have been funded by the LA, and reimbursed by way of the s28A funding, or kept to a minimum by the direct payment of the s28A money to the providers, whose charges would then have been less to the LAs concerned.

 

The PR people now have been handed over to the LAs who now have contractual responsibility for these clients. LAs should have got as far as agreeing prices for the clients because otherwise they have no security in their placements. Those agreements may have assumed that the HA’s s28A subsidy is still going to be paid, and in the same amounts, by the HA. IF that is the case, then that is fine, and the decision is simply about whether provider can provide the services for the money on offer, but if the grant money is in doubt, the LA should be paying for the whole amount.

 

The crucial point, about the basis for this sort of grant funding, though, in light of the need to move towards deregistration to bring about Supported Living projects, is that the grant would meet the shortfall in cost, after benefits had been taken into account, through the provider having charged the client directly for the care.

 

The consequence of de-registering will be to make these people eligible for a different kind of benefits and care package, or else into clients who need to be cared for elsewhere, because they cannot hold a tenancy.

 

  1. a) Those clients who have been the LAs’ clients all along, will have to be re-assessed, because once the LA is on notice that the registered nature of the service is going to change, they ought to appreciate that they will need to consider whether the client can be seen as being able to make their own arrangements for accommodation.

 

  1. b) The right approach for clients who have never had care management is more complicated. We think that a referral of those clients who have not been contracted for previously by the local authority ought to be made by the providers to the LAs concerned, as part of any deregistration strategy, unless there is agreement from the HA concerned that the grant paid should remain the same or increase. We take this view because notwithstanding the s28A monies, the HA has not ever taken a formal responsibility for these people, in relation to the purchase of aservice for them as individuals, and they have no care management at the moment. If there is to be an enforced reduction in the grant paid, because the HA sees de-registration as somehow signalling the severance of a link with the clients, then the services are at risk, and that is a matter of concern for the LA on the spot.

 

We think it should be put to the local authorities concerned, that including these people as part of the group for whom the authority should see itself as contractually responsible will be good for the authority – in terms of its SSA, and the take-up of THB, prior to the changeover to the Supporting People cash limited grant. The authority must at least consider whether these people need to be assessed for the first time, even though the conclusion might be that they will be given the right kind of support if they go the independent living route and have THB and HB to pay for it, thus meaning that the LA does not have to step in to provide extra services.

 

If though, a majority of candidates for supported living are those who have a mental illness or a learning disability, it is highly probable that they will need more by way of a care package than could legitimately be provided by way of THB general counselling services. So referral to the LA will have the added advantage of putting the LA on notice of the need to allocate resources to those persons, and hence an interest in keeping the HAs on side, so far as continuing with their grants at present or increased levels is concerned.

 

There is another, more pressing reason why the LAs must be involved where the clients have been, in effect, their own care managers (because benefits plus the s28A grant money have met the cost of meeting their needs). For these people, de-registration will give rise to an immediate problem, which can only be resolved, in our view, by putting the s28A monies through the relevant LA, in order that it can plainly be seen thereafter that the LA is purchasing domiciliary care with the money.

 

If this is not done, the clients will be apparently receiving personal care of a registrable nature, (if that is what is needed in some of the cases) as well as THB eligible services, from the same establishment as is providing the accommodation. And unlike the case with the LA’s clients, there will be no separate contract to which to point, as the source of the request for the additional care services, and none capable of being shown to have been entered into by the clients, directly with the landlord either, since the majority we are considering will lack mental capacity to contract. The oft-favoured device of another company through whom the care is provided would not make this any safer, because the problem would still be that the services which have simply existed, before, outside contract, because they were funded by the s28A grant monies, existed lawfully in a registered setting, but would now amount to personal care services which would make an unregistered scheme registrable, unless they were not being provided ‘together with’ the accommodation. The lack of a separate contract could be just the factor which would make the NCSC think that this is the sort of a scheme the government guidance intended to be regulated.

 

 

 

 

Changes in amount of grant funding

Some providers contemplating de-registration have been given the impression that some health authorities/PCTs anticipate making savings or the complete withdrawal of support, after deregistration. At the same time, LAs are looking forward to not having to pay residential care fees.

 

The idea of netting savings in s28A support payments makes logical sense, to our mind, if one appreciates that part of the expense of registration is complying with standards which are simply not applicable outside that framework. That should, in theory, make the cost of provision go down. The injection of central government money by way of HB and THB also seems to cut local expenditure down too.

 

The HAs’ expectation that they should be able to make a saving on what they currently pay would be correct, in strict logic, because THB eligible services have been deliberately broadened beyond the old add-on element of HB, in preparation for the full blown Supporting People scheme in 2003.

 

But whether any saving could realistically be expected in real life seems to us to depend on the HAs acknowledging that the Care Standards Act, with the introduction of domiciliary care registration etc, and the minimum wage, and the need for appropriate re-investment strategies, the social care recruitment crisis, etc., have all created an environment in which an above- inflationary increase, anyway, in the gross cost of the projects, would have been very likely, regardless of whether provider units continued as registered settings, or moved to de-registration.

 

Secondly, HAs need to bear in mind that providers have been coping with the additional costs of service provision despite people’s deterioration over time, which would add to the bed price on which the HA grant was always based, in any event. That increase in cost is bound to carry over into the new setting for care, and by definition, the extra services needed on top will not be THB type services – they will be personal care services.

 

Indeed, for some people in nursing homes, the services needed are more likely, if anything, to be continuing care nursing services in what will be the client’s own home, rather than GCS or social care. It must not be forgotten that local authorities cannot lawfully purchase anything which is nursing care, in a community setting. So any service which was a nursing service, is going to have to be purchased by the HA/PCT or by the person themselves out of their benefits if illegality is going to be avoided. Intimating that the costs will be returned to the PCT via claims for continuing care monies, might provide a neat piece of common-sense leverage in keeping NHS s28A grant levels up in this regard!

 

Thirdly, the HAs need to grasp that there is an upper limit to the type of services which can possibly be put forward as covered by THB. GCS is carefully defined in the literature on supported living and stops well short of personal care, or specialist therapy or counselling or supervision. Thus providers are not in ultimate control of the element claimed as THB, and cannot therefore bump up the element to be met by that source of funding so high that the personal care shortfall simply withers away…

 

There may also be hidden costs in de-registering – compliance with regulations relating to housing in multiple occupation, for instance. As mentioned, receivership will be pivotal in making the whole deregistration scheme legitimate, where the clients are significantly mentally impaired, and carries a cost with it. We appreciate that providing stimulation, motivation, life skills training, encouragement and hands off support can often require more skill and input that providing hands on support – and so may cost more, not less, than care in a more institutionalised setting. Thus providers should be wary of letting the idea of savings become too rampant, at least until the real cost of de-registration and re-provision can be worked out.

 

LAs who have had the s28A monies but who have paid for the whole package in contractual terms will not expect an automatic saving because they will be aware that they need to pay for the shortfall over HB and THB for the packages to be sustainable. Where the clients were making their own arrangements, and managing to pay for them out of benefits, because of the subsidy direct to the homes concerned, it will be harder to prevent health authorities from threatening complete withdrawal, because they will not only see a big chunk of the overall cost met by central government money out of a different coffer, leaving only the personal care shortfall to be met – they may see the change in the situation as severing the link between the clients and the Health Service’s original responsibility for them.

 

The fundamental problem is that NHS Act s28A monies have always been a payment made in the discretion of the authority concerned. When a HA obtained a benefit from closing all the long-stay hospitals down, it of course seemed only right that they should pay for the care of the persons discharged, even though it was really a social service which was going to be provided to them thenceforth. Even though they weren’t contracts, s28A payments of this nature were seen as paying for the services for which the authority would otherwise have been paying. But if there is a change of status in the home, a change which is, after all, down the registration hierarchy, and not up it, we fear that some authorities will see this as somehow a logical end to their ‘responsibility’. The argument will be put that people in their own homes, needing social work support, are supposed to be looked after by the local authority, and not the health service.

 

We think the opportunities offered by Supporting People have to be put over from the outset to both health and social services as a classic situation crying out for joint working, because the scheme suits everybody. It suits local authorities because it saves residential care fees, and because it will enable them to point to many more people being independently accommodated. It suits providers, because it fits with a modern ethos of care and ensures a smooth income supply and avoids the expense of compliance with the care home registration framework. It suits clients, because of the independence and autonomy it gives them, and it suits health authorities because it keeps this client group off the NHS books and makes them more plainly than ever a local authority responsibility.

 

What typical providers contemplating deregistration need to do, we think, is to explain to the current HA funders that despite deregistration, the provider’s voluntary status will not be changing, simply because it will be providing tenancies to the former residents; and that the care is obviously still needed, and is still a social care sort of service capable of attracting s28A grant monies, either for the LA or for the provider directly. If neither the identity of the client, nor the nature of the typical client’s profile has changed, then there really is no logical reason why the HA should withdraw support, or could justify any such move.

 

RELATED TOPICS leading to further specific questions

Domiciliary care

Choice

 

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