Archive for Care and Health Law Topics – Page 2

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

 

Strategic Planning and commissioning

Planning service development in health and social care now requires tremendous breadth of knowledge and energy, to keep abreast of the policy initiatives emerging from the Department of Health.

The latest missive comes in the form of an Agreement (Building Capacity and Partnership in Care) (October 2001), concluded between the Department, representatives of the independent sector, local authorities and housing providers.

It signals an injection of cash into the system for getting people out of hospital, and into other settings, so as to free up more NHS beds. The agreement involves health, social care and independent sector providers of these services and housing, and it explicitly recognises that the care home system has become less stable.

To steady the market, it is promised that central government funding will increase by an average of 3.4% pa in real terms over the next 2 years. Local Strategic Partnership Forums are seen as the ideal setting for co-ordinating a strategy locally or regionally for the development of the range of services in current use.

The working principles behind the agreement are close and harmonious working relationships, good communication and constructive co-operation, openness and transparency, equity and trust.

We think that unless Members and Directors of health bodies are invited to read it and inwardly digest, and in turn reflect their commitment to it in proper allocations to social services and health services commissioners, it will not bear the desired fruit. The Agreement expresses the hope that all concerned will manage their business having regard to this Agreement, but of course there is no mechanism to make the independent sector toe this line, even if performance targets are useful in eliciting attempted compliance from public sector officers. This is no doubt why it has been put forward as ‘an Agreement’ – to foster and encourage consensus and co-operation, based on what will ultimately be no more than the mutual self interest of providers to remain solvent, and the commissioners to remain within budget…

As to care home fees negotiation, the Agreement does not mince words:

‘Providers have become increasingly concerned that some commissioners have used their dominant position to drive down or hold down fees to a level that recognises neither the costs of providers nor the inevitable reduction in the quality of service provision that follows. This is short sighted and may put individuals at risk. It is in conflict with the Government’s Best Value policy. And it can destabilise the system, causing unplanned exits from the market. Fee setting must take in to account the legitimate current and future costs faced by providers as well as the factors that affect those costs, and the potential for improved performance and more cost-effective ways of working. Contract prices should not be set mechanistically but should have regard to providers’ costs and efficiencies and planned outcomes for people using services, including patients.’

The agreement recommends that commissioners should produce medium term plans up to three years ahead, describing the services they intend to purchase and in what quantities. Block contracts or investment should be used to reward a provider for establishing a new service, or preserving good quality services.

 

Other points relevant to planning

There are several legal issues which may impinge upon successful planning which are covered on this site. Examples are duties vs discretionseligibility criteriainformation sharing, consultation, competition law, human rightsTUPE, factors relevant to externalisation and de-commissioning plans, charging law and joint working, including staff swaps and the Health Act flexibilities.

The Building Capacity Agreement makes the point that user satisfaction surveys are an integral part of establishing Best Value, and that those councils which have achieved Beacon Status for supporting independence in older people, demonstrated successful consultative and involvement techniques with the client and provider base.

The Social Care Institute for Excellence is responsible for establishing a knowledge base of what works in social care. Best practice guidance for commissioning is one of its priorities, to which strategic planners will eventually be able to have regard.

 

Staffing issues

Staff in health and social care need to know about the law for a number of reasons:

 

They are public officers, bound by statute, but also given special powers beyond those available to the ordinary individual, for the exercise of which they must be accountable, through recording and supervision and complaints, as well as litigation.

 

They can ‘whistle blow’ in the public interest, under the protection of the Public Interest Disclosure Act, but more fundamentally, they are professionals, upon whom the day to day integrity of public service depends.

 

 

They are entitled to the protection of the law of employment and contract (with regard to their employer), the law of negligence (with regard to their own personal physical and psychological safety), and the law of Human Rights (with regard to freedom from inhuman or degrading treatment, and respect for their private and home lives).

 

They are bound by the law of negligence (with regard to the safety of the authority’s clients), the law of confidentiality, trespass, assault to the person and wrongful detention. Mental incapacity on the part of some of the service users will make officers’ day to day actions potentially unlawful, because intervention without consent can amount to a civil law wrong.

 

They are bound by administrative law principles with regard to express and implied statutory limitations on what they can do in the discharge of their functions, which may not have been understood by their employers – as well as the common law principles requiring reasonableness and procedural fairness in all that they do. Staff cannot be disciplined for refusal to carry out orders which are unlawful in themselves.

 

Despite liability generally attaching to their employers for officers’ wrongs in these fields, it will be the staff’s own evidence and recording practice which will be relevant in court…

 

Staff Swaps

This is a hideously and legalistic difficult topic and relates to the arrangements it is possible to make in order to give power to an employee of one authority or agency to discharge the functions of another authority, and thus make two separate statutory functions join up. Staff swaps have been legitimate for years, but must be distinguished from the delegation of functions of one agency to another. It would probably make more sense in algebra than it does in prose but here goes:

A Health Act delegation

Reddington Health Authority delegates its s117 Mental Health Act function to Extonshire County Council

The LA mental health team is now able to discharge their own LA s117 functions and the s117 decision making functions of the HA. The HA employees may be TUPE’d over in any event.

This kind of delegation works either way – health to local authority, local authority to health. The acquiring LA as a body gains the power to discharge HA functions.

B Compare this with a Staff Swap:

Reddington HA seconds some of its staff to Extonshire under s113 of the LGA 1972. The staff count as the employees of the local authority from then on in. If they are seconded part time, they can exercise their old HA functions because they are still the employees of the HA, but also discharge LA functions.

The difference is that in the second example, the LA does not acquire any of the HA functions – they just move with the employee. If that employee leaves, the LA has no power to discharge the HA function that used to be discharged by that employee.

It is important to note that there is no equivalent provision under which Local authority staff can be seconded to health authorities and be made into HA employees. There is no power for the HA to arrange for the discharge of its functions by a person working for the LA, other than through Health Act flexibilities.

 

Social and recreational services

are provided under a number of different statutes:

s2 CSDPA – for disabled people, including learning disabled services;

s21 NAA – as ancillary provision or part of 24 hr care, for care home residents

s21 NHSA – by way of prevention or care or aftercare of persons who have been ill, or who are at risk of mental disorder

s117 MHA – aftercare services on discharge from hospital

s45 HSPHA – for older persons

 

It is unlawful to do an assessment without having regard to the social and recreational needs of the client, if the client is disabled. It is probably a breach of government guidance, if not the law, to leave this domain out of anyone’s assessment. The authority for this proposition is the case of Haringey LBC ex p Norton no. 1.

An assessment of those needs, however, does not necessarily lead to provision of services to meet them, because the authority is entitled to take a view on whether the need is sufficiently pressing to necessitate service provision through its auspices, if acting under the CSDPA, or otherwise whether the needs call for a service, under the other legislation mentioned above.

It would be unlawful, in our view, to treat all social and recreational ambitions as wishes rather than needs. They are specified as needs in the CSDPA.

It would also be inappropriate, in our view to make a unilateral cut-back in access to social and recreational facilities in order to meet a budget target, if the provision had arisen in the first place from an assessment of need. A proper re-assessment against new tighter criteria, or identification of what was needed before was no longer needed (see Birmingham City Council ex p Killigrew) would be a legal pre-requisite to a cut in service provision.

 

Section 117 pre Care Act

People who have been compulsorily detained under particular sections of the Mental Health Act are entitled to aftercare on their discharge.

 

The provision of aftercare has been held by a court to be a completely separate service to all the other community care functions of the local authority, and there are various aspects to the wording of the function which make it complicated for local authorities and health authorities to discharge.

 

These are

the illegality of charging for the services provided and the anomalies this produces in relation to benefits and other features of residential care homes;

the undefined scope of the services which can constitute aftercare; for instance, is medicine aftercare? If it is, people should get it for free, and not have to pay for a prescription. If (as is our gut feeling) it does not count as aftercare, why not, in law?

the joint duty to provide it, imposed by the statute on health and social services authorities – unlike any other function in the statutory framework;

the variety of ways in which people can be discharged from hospital making it difficult to be formal about s117 aftercare planning;

the uncertainty as to whether any service needed ‘after’ the point of discharge, has to count as an aftercare service – or whether the scope of aftercare has to be related to a mental health need, and one connected with the need for the original detention;

the perverse incentives produced by this ban on charging for clients to refuse to go to hospital voluntarily; and likewise the pressure on professionals to use a s2 instead of a s3 application;

the uncertainty as to the exit criteria – ie the grounds on which free aftercare can or should be brought to an end – bearing in mind that a person with schizophrenia will probably always be regarded by professionals as ill;

the absence of choice for s117 patients of where services will be provided, in contrast to the right to choose accommodation (subject to various factors), if one is not having aftercare, but needs National Assistance Act care;

the ambiguity of the section’s wording regarding the question of which authority ought to be liable for aftercare, if the person wants to move during the period of aftercare services.

 

Although after care services are not defined in the Act, it has been assumed in case law that they may include accommodation (residential, nursing, hostel, etc) and own home or supported living domiciliary care services; social supervision (by ASW, Probation Officer, Community Psychiatric Nurse); outpatient appointments; day care centres; as well as employment, career and welfare benefits advice.

 

It is worth noting that >s32(3) of the current Mental Health Act provides

 

‘Without prejudice to subsections (1) and (2) above, but subject to section 23(4) above, regulations under this section may determine the manner in which functions under this Part of this Act of the managers of hospitals, local social services authorities, Health Authorities, Special Health Authorities, Primary Care Trusts or National Health Service trusts are to be exercised, and such regulations may in particular specify the circumstances in which, and the conditions subject to which, any such functions may be performed by officers of or other persons acting on behalf of those managers authorities and trusts.

 

There are no regulations biting on s117 functions at the moment, but we expect that the DH will introduce some once the House of Lords decision in the Watson and other cases comes out (see below for an account of these) and settles the charging issue once and for all.

 

Watson is the most important ruling in relation to s117 and concerned the problem that around 50% of local authorities have been charging for aftercare services, whilst the court has held that it has been unlawful so to do.

 

Local authorities and health authorities should have confirmed that their policies and charging procedures were compliant with this ruling in 1999/2000, in accordance with DoH guidance.

 

These cases concerned a number of persons who had previously been detained under the Mental Health Act 1983 and who upon discharge from detention were provided by the local authorities with residential accommodation. The service users successfully applied for judicial review of the authorities’ decision to charge them for the provision of their accommodation.

 

The local authorities sought to argue that s117 after care was provided under the Mental Health Act 1983 which was a ‘gateway’ to sections 21 and 22 of the National Assistance Act 1948, and accordingly that the local authorities were duty bound to charge for the residential accommodation provided. The local authorities argued that although s117 created a duty to provide after care services, these were not a free-standing raft of undefined services but that in law s117 was a ‘gateway’ provision which referred to the body of services which the local authorities had other powers to provide, under other enactments. In opposition, the service users argued that the duty of local authorities and health authorities to provide after care was a ‘stand alone’ duty (and not a ‘gateway’ duty) as clearly set out in the Mental Health Act, which is an Act to which there are no charging provisions attached.

 

As a creature of statute, the local authority and the health authority can only do what statute allows them to do, ie what legislation expressly or impliedly authorises. Every act, decision, policy or practice must adhere to express or implied authority, without which the public body acts outside its powers, ie ultra vires, and may be successfully judicially reviewed. Unlawful charges give rise to a claim for repayment which is unable to be defeated other than by a Limitation Act defence.

 

We are certain that any authority which continues to charge for after care services would be doing so unlawfully on the present state of the law, and if they continued to do would be at risk of audit attention or other legal action for misfeasance in public office, for which insurance cannot lawfully be obtained by local authorities.

 

Section 47 removal under the NAA pre Care Act

allows for the removal to, and detention and maintenance in, suitable premises, of persons in need of care and attention, even if they refuse to go, and refuse consent to having care and attention. It does not enable them to be medically treated, but if they were to be found to lack mental capacity on arrival at hospital, they could be treated under the doctrine of necessity by medical staff.

 

If the magistrates’ court (which has to be involved) is satisfied that an order for removal would be expedient, it can order that removal, by a specified officer of the appropriate authority. The period of the order can be for up to three months, and then it can be extended for further periods of up to three months. The person has to wait for 6 weeks before applying to revoke the order.

If the emergency procedure is pursued, involving simply the health authority officer and another registered medical practitioner, then the period is only three weeks, but no application for its revocation can be made. An order may be sought from a single magistrate without giving the person concerned any notice of the application if the community physician and another doctor state that it is ‘ in the interest of that person to remove him without delay’ – see s1(1) National Assistance (Amendment) Act 1951The application may be made directly to the magistrate by the community physician.

 

The s47 power is an unwieldy power because it requires the co-operation of an officer from the health authority who must certify that certain factual circumstances exist, and a professional judgment of the implications of the situation is necessary. Secondly, the power has been given not to social services authorities, but to district councils, who usually allocate an environmental health officer to the role. Such officers are not best suited to seeing this as a power for the protection of vulnerable adults.

The government has publicly identified three ways in which the Act may be incompatible with Convention rights. We think that one of those aspects is clearly incompatible – the six week period which must expire before the order can be revoked at the suit of the person made subject to the order.

 

We would be confident that the incompatibility which exists is the fact that article 5(4) of the European Convention allows anyone deprived of their liberty, a Convention right to take proceedings by which the lawfulness of the detention shall be decided speedily by a court! The absence of any appeal against an order is bound to be incompatible; and the 6 weeks which must elapse before an order could be challenged would we think be bound to be incompatible with the requirement of speediness.

 

However, it is hard to see who could be made defendant to any legal action by the aggrieved person, at least under the UK’s Human Rights Act. The 6 week period is laid down in crystal clear statutory language, for which neither the magistrates, the health authority or the local authority is responsible.

 

In addition, there is a statutory defence available in this situation to an action for damages. An exception to the prohibition on acting inconsistently with Convention Rights exists where an authority is positively forced to do so, by ‘crystal clear’ language in a statute, or secondary piece of legislation which cannot (in the light of the primary legislation under which it is made), possibly be construed any differently, other than incompatibly with Convention rights.

 

Where such provisions exist, all anyone can get out of a human rights court case in this country is a certificate of incompatibility, which does not force a change in the law.

 

However, where a provision in a statute or regulations can be made compatible with Convention Rights by a bit of semantic gymnastics, then it is the duty of all public authorities, including the courts, through their interpretative role, to do that ‘stretching’ – see s3 of the Act. The stretching duty is a strong duty and this is central to our view that s47 is able in most cases to be given effect in such a way as to stay on the right side of human rights principles. The 6 week provision need not exclude judicial review of the legality or reasonableness of the making of the order, and this could make use of the section compatible with the Convention again.

 

Other human rights issues

Since an application has to be made to a Magistrates’ Court, there can be little doubt that this will provide an ‘independent tribunal’ for the purposes of article 6 of the Convention on Human Rights, which enshrines the right to a fair trial. And so long as ‘ex parte’ (without notice) emergency proceedings are only used when there is reasonably considered to be a very pressing social need, then that should be acceptable and proportionate as well.

 

The DoH wrote to health authorities in August 2000 setting out the reasons for its other concerns, and encouraged authorities to collate information on use of the procedure, and reasons for it, from whence it would then be calculated whether there is a severe enough risk of incompatibility to alter the legislation.

 

The letter took care to mention the other public health/protection powers which exist and which could be used in a less draconian way than s47. The ones mentioned were:

 

s35 and 37 Public Health (Control of Disease) Act 1984, under which the court can order the medical examination of a person thought to have or be carrying a notifiable disease and order their removal to hospital and their detention there. These powers apply to AIDS patients, but also to those with measles and rubella, mumps, etc. – the crucial feature being that s67(2) of the Act provides a right of appeal against such orders to the Crown Court.

 

Powers of entry under Mental Health Act legislation (probably s115 or s135 MHA were what the author had in mind)

 

Powers to provide services in health and social services legislation.

 

We would mention other powers which may fit the problems most commonly found, in practice, a bit better: there are powers concerning statutory nuisances, available under

 

the Environmental Protection Act 1990 (s79-82 and schedule 3);

and

filthy and verminous premises and persons (under s83 of the Public Health Act 1936 as amended).

 

We deal with the reasons why we think that the other concerns of the DoH (regarding article 5 and article 8) are unlikely to prove well founded, in the subscription-only part of this database. Site visitors should refer to the recent case of HM v Switzerland, on this site, in the European Court of Human Rights, however, for an indication that the approach to whether the right to liberty has been breached will be paternalistic, and seeking a way out of such a finding.

 

Suffice to say, here, that the most important thing for public authorities to do, to ensure that only human rights compatible decisions and actions occur, will be to document the consequences of trying out other methods of dealing with the problem first, so that the decision to use these powers is hence more likely to be seen as proportionate.

 

The challenge for a local authority and an HA is to have a coherent and lawful policy for choosing which statutory power is best to use, in different circumstances.

 

Joint working implications

 

In addition, in practice, ‘cultural’ problems inevitably arise from the fact that the consultants in communicable disease control used as the source of the medical evidence required, are often unsure of their role and assume that their usual remit, professional skills and specialisms will be relevant in discharging these s47 responsibilities – and if communicable disease is not an issue, then there’s no problem warranting action.

 

Thus they may well be puzzled if called out by the Environmental Health Officer, instead of someone from social services, to a situation where there is no risk of communicable disease or infection. However, the first potential situation for lawful use of s47 NAA powers under domestic law is that a person is suffering from ‘grave chronic disease’. The additional ‘insanitariness’ condition does not apply to such persons, and there is nothing to require that ‘disease’ to be anything worse than an illness – it does not have to be an infectious illness, if the person is gravely chronically ill.

 

If that consultant then requires evidence of a public health risk, before they will certify that the statutory criteria are met, even though the mandatory pre-conditions set out in the statute are made out, and a best interests argument restricted to the patient alone can also be made out, for legally valid action, then they are not discharging their function properly. Local authorities need to understand that that stance is simply, in law, the consultant applying a HA policy as to what makes removal and detention ‘necessarily’ appropriate – and such policies would have to be justifiable, given the clear wording of the legislation allowing intervention on a best interests basis.

 

Neither the Human Rights Act, nor the Convention, requires a public health risk before detention is justified. They merely require a proportionate response, within the law. It is enough for legality if the person is of unsound mind, or a drug addict or an alcoholic, as well as it being sufficient if they are threatening the spread of infectious diseases, as long as the domestic law preconditions have also been satisfied and detention is a proportionate response.

 

It is important to note too that neither the NAA nor the HRA says anything about the mental capacity of the person being relevant to the legality of the action. Professional agreement by all those concerned with the procedure as to a person’s mental incapacity would make someone count as a person ‘of unsound mind’, but the converse is not true: someone can be totally capacitated, but otherwise physically incapacitated and living in insanitary conditions, so as to meet the pre-conditions of domestic law, but also thereby threatening the spread of infectious diseases.

 

Relevance to Adult Protection

 

Section 47 is an important part of health and local authorities’  Adult Protection powers, and indeed a duty which may have to be discharged, so far as the human rights of others are concerned, to the peaceful enjoyment of their properties and possessions, if they are neighbours to those against whom s47 might need to be used.

 

Environmental Health Officers’ decisions not to act (under either Public Health or s47 NAA powers) would only have been challenged in the past, if they were unreasonable. We believe that the test from now on will be that the decision not to act now has to be proportionate, having taken into account the human rights of, and other legal duties which may be owed to, all those parties concerned. We envisage that neighbours will readily challenge authorities for failure to act or delay in acting effectively in such cases, if the recent television programmes are anything to go by bearing witness to 16-18 Environmental Health Officer visits and expenditure of £60,000 per home, on average, in attempting for years to negotiate with the occupiers for an improvement of appalling domestic conditions.

 

Full recording of the weighing and the balancing process will be the best thing an authority can do, to defend itself from challenge in such situations. A policy of only ever using s47 as a last resort is not a safe one for an LA to have, in legal terms, in our view, given the human rights of other people which may be in play.

 

But if authorities act on an old view of what they thought the law allowed (which seems, anecdotally, to be that one could use it whenever it was ‘necessary’ in the public interest, regardless of existence of the other pre-conditions) there will be claims, not just in Human Rights law but also under the ordinary administrative law principle of illegality.

 

Screening

is the name given to the very first stage of the community care process, for individual people, after a referral has been received or made.

~Screening~ is not mentioned in statute, but is plainly implicit in the wording of the assessment function itself, because assessment under s47 NHSCCA is not automatic – it is only required to be done in relation to people who pass a very low threshold test for a right to be formally assessed – and that threshold question has to be considered via some process or another – this is ‘screening’.

Up to the year 2001 there was nothing other than fairly old policy and practice guidance for authorities, from central government, and of course case law, to help service users, carers or anyone involved in care management to know what an assessment required, in order to count as an assessment. Authorities were entitled to make up their own minds as to what would be appropriate, so systems differ around the country. This discretion, however, was always subject to reasonableness, in the sense that a system of allocating services on the basis of say, weight or hair colour would obviously be ridiculous, given the context in which the assessment would be done – that of deciding who gets what, by way of social care services. Whilst generally not this bizarre, some authorities’ assessment processes have been so superficial in the past, that it may have been possible to allege in a legal context that they were not capable of amounting to ‘assessment’. But so far as screening is concerned, the big legal issues have always been in what circumstances is it lawful simply to ‘screen’ a person referred to social services, then reject the client as ineligible for assessment, and signpost the client on to other agencies who might be able to help? and secondly, on what grounds can a client be said to be ineligible for assessment, given the breadth of the statutory duty to assess, once the statutory threshold test is passed?

Since 2001, the government has issued guidance called Fair Access to Care Services which impacts on assessment processes and eligibility criteria. Furthermore, guidance about the government’s vision of ‘single’ assessment (the avoidance of duplication in interviewing and recording as between health and social services and other agencies in the community) has been issued, which will change the emphasis in screening procedures, as well as with regard to assessment proper.

 

Scotland (out of date)

The implications of the English Experience for Scotland’s Self Directed Support Strategy

The law of social care – in Scotland, as well as in England – is as follows:

  • Local Authorities have an enforceable absolute statutory duty to meet individuals’ assessed eligible needs regardless of available resources (ie needs, unmet by others that are of a nature, which, in the council’s opinion, necessitate the council’s intervention or funding, in order that they be met).
  • If embracing SDS (self directed support) the council must be able to show that a personal budget has been worked out rationally on the basis of a proper needs-led assessment, and that it is sufficient to meet the needs identified by that assessment, appropriately, whether it is met through in-house services, a commissioned package, or a direct payment.
  • The law of procedural fairness demands written reasons where requested personal budget finalised amounts are refused by panel decision-makers – the Scots Councils’ chief lawyers, in their Monitoring Officer role, would have no option but to agree, because the law is the same in both countries.

On the other hand, the UK’s Supreme Court has upheld a council’s chaotic and unprincipled approach (KM v Cambridgeshire CC) – (but only because they thought it had given the man being funded, far too much money, in reality!) – so the case holds lessons for us all…

It is suggested that there are positions being taken by the Scots government, councils and providers that are clearly not being informed by the decisions of the English administrative court and all the way up to the Supreme Court – as if law was literally irrelevant to social care and SDS… and advocacy groups and SDS support organisations don’t know how to challenge, and feel that their grant funding will be threatened. Scots lawyers just aren’t seeking out test cases on which to make their reputations…

 

Popular but uninformed positions in Scotland – on the part of councils

  • You can’t have SDS until we say so, you can’t have it if you’re over 65
  • You can’t have a direct payment unless it’s for less than it would cost us to meet your needs
  • We don’t have to provide anything, however long it takes us, to guinea pig your SDS assessment, until we think we’ve finished the job
  • No-one can have more than the cost of residential care
  • We only do life and limb stuff, not the fluffy stuff
  • We can tell carers that they have to go on caring, i.e. that we will not do what they have been doing, and that they must do more, in fact
  • We can tell providers to do all the work, under a provider pathway – i.e. do the SEQ, and then force their professional discretion down a support plan that comes in on budget – all for nothing, so we can cease to rely on professional staff ourselves!
  • We can cherry pick from government guidance
  • We can mess about with the RAS figures with impunity
  • We can send cost-brokers round to put the frighteners on the providers – they’ll think it’s a care review…
  • A short break is only eligible for funding if it provides respite for an unpaid carer
  • The estimated budget is the maximum amount but not ever the minimum
  • We can use your money to determine eligibility – i.e. say you are not eligible, because you have got means – for example, because you are on the ILF extension fund.

 

Mistaken assumptions by some providers, too, unaware of the law –

  • We are owed a continuing existence, in our current form
  • Our contracts can’t be varied
  • If we just keep our heads down, personalisation will go away
  • Why should we advertise, think about marketing, or our unique selling points? We are not like any other business – we are just an extension of the public sector…
  • A contract for ‘24 hour care’ does not mean 24 hour care for older people…
  • Scottish Care will sort it all out for us…
  • A client’s package can’t be cut, unless the client has ‘got better’…
  • What’s the point of knowing how much it actually costs us to provide care?
  • People have a human right to stay in their own homes, regardless of the cost of meeting their needs there…so we can just increase our charges for home care…
  • People have rights to care, from the State, regardless of how difficult they might be to care for…

 

 

Mistaken assumptions on the part of some service users and proponents of SDS:

  • We can spend the direct payment on whatever we like…
  • Once I’ve got something in my care plan, it can’t ever be taken away
  • We can employ our friends informally, and pay less than the minimum wage, tax free…
  • We can refuse to agree a support plan and they will just have to give in…
  • We can take lawyers and advocates and insist on appearing in front of the resource allocation panel, in every situation we can think of…
  • We can give our money away so that we don’t have to pay for care…
  • We can tell the State where we will accept care services, for instance, I can make an advance decision never to go into a care home…
  • Cost is irrelevant to how a council offers to meet my assessed eligible needs appropriately – it’s my need, and it’s eligible….

 

The elephant in the room: Scotland comprehensively ignores its very own MacGregor judgment from 2000 – so how is that ever going to work for SDS, regardless of the training arising from the passage of the Bill into law?

MacGregor is a case that says that once a statutory duty has been triggered, it must be discharged, regardless of resources, because that’s what it means for there to be a duty, in local government law. The duty in this case was to provide residential accommodation, because the man had not got it otherwise available to him, and he could not lawfully be told he’d have to wait for 8 months until the funding became available…

This case holds good for any other social care statutory duty too, and means that in Scotland, as in England, the law is that once a person has been found eligible, the State must provide for their needs. The rest of the law says councils ‘need not provide what the client wants’, and ‘need not provide very much’, and that they can even ‘decide where to meet the person’s needs, so long as it not positively inappropriate and is the offer of an adequate alternative albeit cheaper service’. But the MacGregor case says that a duty is a duty, and does not depend on the state of the council’s budget at the time.

How do Scots in-house councils’ lawyers explain this case away? Are they not asked, ever, perhaps? It is inconceivable that it would be allowed to be ignored, in England.

The Scottish Executive is partly responsible: it wrote to councils with suggestions as to how to work around the judgment: no doubt this is code for ‘We won’t be making a fuss about it, if you do it this way….’ – but it is extraordinary to see this coming from a governmental body – because LAW is LAW, and cannot be gainsaid by government, however inconvenient it is. The covering letter said this:

“The purpose of drawing up a Protocol which appears to meet the requirements of the Hardie judgment, is to ensure that those who have had needs assessed are not simply placed in a date order queue for services. The Protocol says that they must be systematically reviewed, and when resources become available these must be used for those in greatest need.

– this implies that Scots councils can use the budget as a factor in whether they meet the need or not, which is completely contrary to the whole of community care law focus on whether a duty or merely a discretion has been triggered.

“We are of the view that the Hardie judgment could be seen as rather contradictory. We are also of the view that the Protocol is a satisfactory document and that it makes any similar case in future less likely to succeed because if it is followed, it ensures the systematic review of those assessed as in need. It should ensure that people’s needs are at the forefront of considerations by the local authority in allocating resources, and that date order queuing without ongoing needs reassessment should no longer be considered an acceptable practice.”

– this implies that waiting lists are acceptable, despite the duty having been triggered, and waiting lists driven by budget quotas and monthly neatness, at that – so long as the waiting lists are on the basis of urgency of needs! The judgment actually indicated that the only kind of waiting list that would be acceptable, even assuming it was on the basis of urgency, was if there were no appropriate beds, and said that that would be the fault of the commissioners, and the need would have to be met anyway, by some other means in whatever setting WAS available, thereby saving no money overall, and often actually at an increased cost. So how can the above advice be reconciled with this analysis, in the very same letter from the Scottish Executive – advice which WAS true to the legal principle in the case?

“This case appeared to have crucial implications for local authorities in that it suggested that if someone had a need assessed under S12A, then the local authority had a duty to meet that need regardless of available local authority resources. Lord Hardie ruled that the resources available to a Council were irrelevant in coming to a judgment about an individual’s needs. They were relevant however, in coming to a decision about how to meet these needs. He made clear however, that it was not an option for a local authority to do nothing if resources were not available.”

This is what your own Scots’ advocate Scott Blair says about this case in his 2007 and 2012 papers on community care on the internet (see http://www.murraystable.com/news-articles/articles/event-papers-the-law-and-care) :

“Lord Hardie held that

(1) the effect of section 12 was to impose a duty on the local authority to provide a place in a residential nursing home where this was required to satisfy an individual’s needs, and the imposition of such an obligation upon local authorities conferred on these individuals a right to enforce that obligation (pp 504G-505F);

(2) having decided that the petitioner was unable to care for himself and had insufficient funds to pay for residential care, the local authority was under a duty to make some provision for his care. The nature of that care was a matter for the local authority but the decision to do nothing and place him on a waiting list was ultra vires (p 507F);

(3) once a local authority determines that an individual’s needs call for a particular provision the local authority was obliged to make that provision. In particular, having decided that an individual required the provision of a permanent place in a nursing home, the local authority could not refuse to make such a provision simply because it did not have the necessary resources, and declarator that the respondents had acted ultra vires pronounced and case remitted back to the respondents to make the necessary provision of residential nursing home care.”

So it is evident to all the powers that be, in Scotland’s social care organisation, from the MacGregor case, that if an authority has identified an assessed need and has decided to provide a particular service to meet that need, it is unlawful for it to fail to provide that service, or to take budget into account in determining when the duty will be met. The fact that there have been no more cases ironically proves that this is known – councils will have been compromising any claims that have been made, in all likelihood, and no further precedent exists.

 

Scottish national guidance on eligibility criteria – for older people – is it even followed – or is the culture one of cherry picking? Is the guidance even lawful?

Your guidance says this: “This document is issued by Ministers as guidance under section 5(1) of the Social Work (Scotland) Act 1968”. That section says this:

s5. Powers of Secretary of State.

— (1) Local authorities shall perform their functions under this Act … under the general guidance of the Secretary of State.

That means in Scotland what it means in England, if there were any judicial reviews – it cannot be departed from without a very good reason….! See the Rixon case involving Islington, for the inappropriateness in legal terms, of any council purporting to cherry pick from the guidance if it has this sort of a status….

 

Your guidance for eligibility for services for older people says as follows:

“2.1 Councils are expected to ensure by 1 December 2009 that their local eligibility criteria and definitions for adult social care and the timescales for accessing personal and nursing care services are compatible with the national definitions and standards set out in this document.”

“5.1 Lord Sutherland’s independent review acknowledged that it is an accepted principle of social care policy that local authorities will manage their resources to focus first on supporting those people who are in most urgent need. [NB there is no mention of the Macgregor case in the Sutherland review – I have searched it, electronically!] …

“Those clients are entitled to receive such services and it is expected that they will receive them as soon as reasonably practicable and, in the case of personal or nursing care services, not later than six weeks from the confirmation of need for the service. This is the minimum expectation on local partnerships.” OOPS that would seem to be non-compliant with MacGregor, and guidance cannot override Law. But nobody has ever challenged this in Scotland….

[In Fair Access guidance in England, there is no provision for ‘target’ timescales because it is accepted that the duty is triggered, as soon as the need is assessed as eligible, and must be discharged within a reasonable time. The state of the budget is not relevant in determining what is reasonable, in principle, and particularly not in cases of a person being found to be eligible for care and attention not otherwise available – logically, those people are the most in need!]

“7.6 It is for the Chief Social Work Officer / Director of Social Work to consider the extent to which the local authority’s existing eligibility criteria already meet the requirements of the standard national eligibility framework, or require revision. Each local authority should ensure that their local eligibility criteria are compatible with the national eligibility framework and definitions set out above, as well as ensuring that their arrangements for accessing care services are lawful and have been the subject of an equality impact assessment.”

 

What are the clients’ rights, then, if English Social Care law applies in Scotland?

  • To be assessed within a reasonable time, for eligibility, against FACS in England, but in Scotland, by reference to the Social Work Scotland Act, the CSDPA and professional opinion –or – for older people, for some reason, against locally applicable criteria, based on the national criteria for eligibility for community care services…(2009).
  • In England, the assessment to have been done in accordance with the Assessment Directions of 2004, with regard to carers’ input, and in accordance with the Mental Capacity Act, if the person lacks capacity to participate and to consent to the outcome – i.e. involving Best Interests Consultation of anyone feasibly interested in the person’s welfare. S1 of the Scots AWI says the same thing, for any intervention in an incapacitated person’s life.
  • To have a support plan drawn up by a competent council employee or lawful delegate; one which complies with the general law in this country, such as race and sex discrimination, the duty of care that would be owed by anyone doing the services, the person’s human rights, properly understood, and in accordance with the Choice Directions if it is care in a care home that is offered. These directions exist in Scotland.
  • That support plan to have been properly signed off by the council with written reasons (if there is a disagreement by the end of the process) articulating the justification for its stance that the arrangements mentioned in the plan (or the sum of money, if it is a direct payment that has been agreed) will meet the person’s assessed eligible needs. Savva – persuasive English precedent for Scotland on personal budgets, – and Cambridgeshire likewise, regarding direct payments.
  • To have their eligible assessed needs met, appropriately, in the opinion of the council, by way of provided or arranged services. To have a money sum in lieu, by way of a direct payment, if the council agrees it could work. This extends to incapacitated people, if they have a guardian or attorney, under your direct payment regulations. In England the council considers appointing a third party formally, as a Suitable Person.
  • To have the contents of the support plan delivered, regardless of available financial resources, until the person has been lawfully re-assessed with a different outcome. This is true in Scotland as well – MacGregor, 2000 – as we have seen.
  • To be charged no more for the service or direct payment than the law allows, depending on whether the service is residential or non-residential, according to the person’s means.
  • To have their situation reviewed at least once a year in a lawful manner, or whenever there is a significant change in the person’s situation.

 

But please note – there is no appeal against a care plan – only acceptance, or re-negotiation, refusal, a complaint, or judicial review for unreasonableness, illegality, unfairness or a breach of human rights.

 

 

Wrongs currently being done to service users – based on English law, to date:

  • Point-blank refusals of assessment, review or direct payments – Bristol (1998)
  • Leaving out whole swathes of potential needs from needs questionnaires when considering eligibility – Haringey (1997)
  • Cuts to current care plans without any re-assessment – Gloucestershire (1997)
  • Changes to plans after purported re-assessments, but without proper consultation of the incapacitated client’s Best Interests consultees… Croydon, (2011)
  • Changes to plans, on consideration ONLY of cost – Bromley (2004)
  • Completely unexplained savage cuts to existing care plans or direct payment values after re-assessment – Birmingham (1999)
  • Unfeasibly greater expectations of carers, universal services and ‘social capital’… Regardless of their adequacy or ability…
  • Messing around with the local FACS threshold, non-compliantly with the FACS guidance – IoW, (2011) – or without proper consultation – Birmingham, (2011)
  • System slow-down, panel re-referrals for want of enough evidence…. and the use of waiting lists – see Sutton (1998), Sefton (1997), South Lanarkshire (2000) and the 2010 FACS guidance about doing something, at least, in the interim, after a finding of eligibility…
  • Resource Allocation related issues: systemic cuts and cost ceilings vs the concept of a genuinely ‘indicative’ amount – Haringey no. 2 (1998), K&C (2010)
  • Requirements of the client to move house (i.e. to buy or take a tenancy somewhere) to make services cheaper or easier to manage, as a pre-condition of getting anything…
  • Cuts to core underlying services in Supported Living or Extra Care, without re-assessment of the heightened unmet need above the threshold.
  • Improper fees negotiations without transparent changes in the client’s care plan, or without adequate consultation with providers – Pembrokeshire, (2011), Sefton (2011), etc.
  • Allegedly ignoring Human Rights and dignity with regard to assessment of need or determination of response – it’s whoever dares, wins, here… – see K&C, McDonald (2010)
  • Preventing involvement of the client and carers at Panel – see Wandsworth (2004)
  • Refusal at panel of particular items, services, arrangements, or funds – without any rational basis and without written reasons – see K&C, Savva (2010) and Cambridgeshire (2012).

 

 

A new legal consideration for purchasers and providers…

In the last year, during the cuts, the Administrative Court has held that the approach of English councils’ commissioners, when commissioning to discharge public functions, such as the delivery of services to meet assessed eligible needs, is open to scrutiny by the judicial review court – on normal grounds. Those grounds include want of proper consultation beforehand, since this is mandated by government guidance, for the taking into account of all relevant considerations – see PembrokeshireSefton, Leicestershire (all of whom lost their cases) and Neath Port Talbot (which won its case). And (although much less likely) there could be challenges for pure public law unreasonableness, illegality, bad faith, and breach of human rights.

Croydon lost a judicial review case in 2011 about a reassessment, on the grounds that it failed to consult the parents at a timely point in the review process, which made the new care plan, moving the man, void. You have the same principle, in your Adults with Incapacity legislation.

In the last month, (2012) West Sussex has lost a case for unfair safeguarding, brought by the provider, who suffered a contractual loss of income of £150,000, on termination.

So any commissioning team that does not know the underlying public law of community care functions, cannot be sure that it is commissioning lawfully any longer, just because it knows public procurement law….

 

 

Contractual and other commercial pressures on providers – around the back of the clients and families:

  • Re-tenders of domiciliary care services to save money – providers know that they could lose a percentage of their staff through TUPE. And the rest to direct payment clients taking them on as personal assistants…
  • Refusals to pay contracted-for sums by way of increase, or to pay sums already due, because of a dispute over another – even a newly offered new prospective client’s fee.
  • Imposition of cost-brokering negotiations and fair price tools with a veiled threat to move the client – usually by private sector cost brokers, in sharp suits, on performance related pay, who know not the first thing about community care law or the legal rights of the people who use services.
  • Cutting-off of grants, and de-commissioning of services – community consultation is usually required but may not be genuine or adequate.
  • Stopping funding of certain services – like wardens in assisted housing – the question whether consultation will be necessary all depends on who is funding the warden – the landlord or the council?
  • Reliance on historical or imagined safeguarding issues for de-commissioning.
  • New additional requirements of providers under old contracts – NB only if providers agree! And even then, these changes could make it a new public procurement!
  • New terms in new contracts without the proper time to understand the implications, risk transfer, and new difficulties produced. But providers don’t have to sign-up sooner than they want to.

 

 

Procedural fairness – the explicit requirements in the virtually mandatory government guidance in England, underpinning our journey towards self directed support:

Para 106 of the FACS guidance from 2010:

Where councils do not offer direct help following assessment, or where they feel able to withdraw the provision of support following review, they should put the reasons for such decisions in writing, and make a written record available to the individual. Councils should tell individuals who are found ineligible for help that they should come back if their circumstances change, at which point their needs may be re-assessed. A contact number in the council should be given.

…coinciding nicely with the Savva case, 2010:

Mrs Savva was given an indicative budget. She argued and kept pressing for a review, and it was put up 5 times to nearly double, in the end. She still wasn’t happy and brought JR proceedings.

She lost on the first contention that use of the RAS was illegal, in and of itself. The council was lucky to be able to persuade the court that they had only treated the RAS figure as a starting point, and had not suggested that it could be treated as determinative, or as a substitute for a proper professional decision about need and response….

But she won on the submission that the Panel needed to give her reasons for being satisfied that the amount being allocated in the end, would meet her assessed eligible needs.

Both sides appealed:

The Court of Appeal dismissed both the appeal challenge to the RAS and the appeal challenge to the need to give reasons. So there is a legal duty to give reasons for the finalised amount – and they have to be lawful reasons for believing the amount to be adequate. ‘We can’t afford what is necessary’, won’t do – but ‘we think that such and such will still do, because…..’ IS often legal and good enough an answer.

The Court refused to decide whether it would be enough to discharge the duty of fairness to hand the money over, just saying ‘You can always ask us for reasons if you want them’…! The council has done a wonderful thing for disabled clients by appealing, because it has set a precedent, now, which must be followed!

 

 

The judgment in Savva suggests that councils need to be able to offer two things:

1) A rational articulation of why the Resource Allocation system deserves to be seen as a sensible guesstimate of the cost of meeting particular levels of needs in particular domains – in the first place, even in theory.

This could be done through a basic explanation, in leaflet or website format, of the council’s decision to rely on a ‘comparable current cost’ approach, but indicative resource allocations could equally be based on a calculation of how much a person could feasibly be awarded, in principle, given an overall sum of money available, in relation to their comparative position on a continuum of need compared to all other service users’ anticipated eligible need.

However, neither of these explanations of policy, would suffice in themselves, without something focusing on the individual service user’s situation, at the final sign-off of a Plan, the size of the budget or the size of a direct payment. So the second thing needed would be:

2) in a disputed case, a reasoned decision as to why the final allocation is then thought to be adequate, to achieve the meeting of the assessed needs in the manner agreed in the Support Plan.

The decision would have to address the service user’s reasons and evidence for saying that it would not be sufficient, with the council’s reasons for deciding that it would in fact suffice, or have to suffice, despite not fully enabling the service user’s preferred outcomes, in terms of the manner of, or setting for, the meeting of the need.

 

 

KM v Cambridgeshire CC – a no score draw?

Cambridgeshire’s RA Scheme was based on direct payments that had been accepted. It had a ‘higher costs’ table for higher cost care packages but only when people hit the top of the ordinary table, or disputed the indicative amount….

The triggers were night time care, 2:1 care, specialist care and specialist AND 2:1 care. The council worked out a man’s package, using an independent social worker, who recommended £120K a year. The council accepted the assessment of need, but not the extent of the services he’d recommended to meet need, and offered £75K instead, using the higher cost table, and the expertise of a senior manager, in order to figure out how much was needed. The remainder, after personal care and support had been accounted for, was an unexplained sum just drawn from the council’s mainstream RAS.

The decision was upheld, with the court saying that there was no need in a direct payment personal budget to explain exactly how the money would even theoretically be enough. That was the whole point of direct payments – choice and control for the client.

However, the judge stressed that the approach taken to the vast bulk of the funding and its adequacy was clearly not irrational, even if it was not spelt out exactly. He didn’t say anything about the need for reasoning about the remaining chunk of the money for leisure and recreation.

The Council (just) survived legal scrutiny as to its RAS-based reasoning for its final (final, final!) offer of a direct payment at the next level up, and then finally a seven judge Supreme Court (May 31st 2012):

First and foremost, the Gloucestershire case is still good law – i.e. councils can use resources difficulties to:

  1. a) justify setting a council-wide threshold, below which it will not be regarded as necessary to meet need by way of care plan arrangements –
  2. b) and for deciding what is an appropriate way to meet eligible needs – it can be the cheaper of those options which are rationally and feasibly adequate alternatives

…but in both cases, subject to challenge based on grounds of unreasonableness, etc..

Once an individual’s needs have been identified above the threshold, the only relevance of resources is as to the manner and setting of and for meeting these needs, not the issue of whether the need should be met….

The Savva case, on the need to give coherent written decision-makers’ reasons for the amount of service thought appropriate, or for the funding in the budget, when disputed, is still good law, too. Support plans for personal budgets should generally contain at least the following: the required services and assumed timings… together with the assumed hourly or other periodic cost.

In a direct payment case, where there is a dispute, more detailed presentation of how in a council’s opinion a person might reasonably choose to deploy the offered sum should be offered. A council should explain its own assessment of the reasonable cost of the services necessitated by the eligible needs – in this case, of the principal item of the appellant’s future expenditure, namely the cost of paying for carers for his personal care – the leisure element could be a flat rate.

It may be enough for the authority, as here, to attribute a compendious cost to a group of requisite services of similar character where that broad approach works in the person’s favour.

Councils have therefore been warned: don’t ignore your duties of transparency and reasoning! If they do, the Courts are there for service users, through which to enforce lawfulness and accountability.

 

 

The substantive social care duty, under the CSDPA, re-stated once again, by the Supreme Court:

  1. When a local authority is required to consider whether it is “necessary in order to meet the needs of that person for that authority to make arrangements for” the provision of any of the matters on the service list, it is required to ask itself three questions and should do so in three separate stages:

(i) What are the needs of the disabled person? IN PROSE, not POINTS!

(ii) In order to meet the needs identified at (i), is it necessary for the authority to make arrangements for the provision of any of the listed services? i.e. WILL ANYONE ELSE DO SO? (This is the eligibility decision, as to which the state of resources, on the day of assessment, are not legally relevant at all, Panels should note!)

(iii) If the answer to question (ii) is affirmative, what are the nature and extent of the listed services for the provision of which it is necessary for the authority to make arrangements?

There is a fourth potential stage of the inquiry where a direct payment is sought by the service user….

 

The fourth stage of discharging the function lawfully, in cases of direct payments

  1. …Once it is satisfied that the person’s need for the relevant service can be met by securing the provision of it by means of a direct payment, the authority is in many cases under a duty, with that person’s consent, to make such a payment, the amount of which must equate to the reasonable cost of securing the provision: see regulations 7(1)(c) and (2) and 9(1), together with section 57(4)(a) of the 2001 Act.
  2. So, in cases like the present in which a disabled person qualifies for a direct payment in lieu of its own provision of services to him, the local authority is required to proceed to the fourth stage as follows:

(iv) What is the reasonable cost of securing provision of the services which have been identified at (iii) as being those for the provision of which it is necessary for the authority to make arrangements?

 

 

The relevance of the RAS

  1. …a mechanism had been devised in order to give the exercise a kick-start. It was called a Resource Allocation System (a “RAS”); and many authorities, including Cambridgeshire, have developed one for their own use.
  2. Under a RAS the local authority ascribes a number of points, within a prescribed band, to each of the eligible needs in the particular case. It then calculates the total points and consults a table within the RAS which ascribes an annual sum to the total points. For example, under the model adopted by Cambridgeshire, one point equated to £455 and 55 points (being the maximum under its model) equated to £61k.

Crucial to a RAS is a realistic nexus both between needs and points and between points and costs. Cambridgeshire developed its nexus by taking a group of 260 of its service-users who were in receipt of a direct payment, by analysing each of the eligible needs for which the payment was made and by seeking to make a realistic attribution of part of the payment to each need. It conducted various counter-checks in order to test the robustness of the model.

 

 

Cambridgeshire’s higher points RAS for high cost cases – rational, if evidenced by actual facts….

  1. Some service-users have eligible needs which require so high a level of services that under Cambridgeshire’s RAS they score total points beyond its maximum of 55.

The appellant is a case in point: he scored 62. In order to cater for such cases Cambridgeshire has developed a second indicative tool. It is called an Upper Banding Calculator (a “UBC”). It reflects in effect three factors which, in Cambridgeshire’s experience, often greatly elevate the requisite level of services, namely a requirement for a carer to remain awake at night, for two carers to operate simultaneously and for a carer to have specialist expertise.

In a case in which its RAS has identified a figure above the maximum, Cambridgeshire asks whether any of these three factors is present and, if so, it calculates, by reference to them, an appropriate annual sum for addition to the principal sum of £61k identified by the RAS.

What is crucial is that, once the starting-point (or indicative sum) has finally been identified, the requisite services in the particular case should be costed in a reasonable degree of detail so that a judgement can be made whether the indicative sum is too high, too low or about right. Such is an exercise which, in accordance with the Guidance at para 121, Cambridgeshire carries out, usually and preferably in conjunction with the service-user himself, and it is called the making of a “support plan”.

 

 

The absolute need to get the carer’s position straight at the outset

“In the completion of the questionnaire the mother did co-operate. But her co-operation had a negative feature. This related to her own contribution to the appellant’s care, which she was then providing at a very substantial level and for which she was in receipt of an annual carer’s allowance of £5k designed to enable her to purchase limited respite from caring for him.

No doubt she reasonably considered that the level of her care of the appellant should be reduced: she claimed in answer to the questionnaire that it was having a critical impact on her lifestyle and could not continue. Yet it seems extraordinary that she should have caused the officer to record, in relation to all of the seven areas of need identified in the questionnaire, that the “unpaid support… offered by families” was “none”.

No other evidence in the proceedings suggests that the mother has refused to continue to play any role in the care of the appellant – living, as he does, within her home; on the contrary, see para 32 below. It is hard to avoid concern about the motives of the mother in having made such representations.”

 

 

Cambridgeshire’s 3 mistakes: (despite winning the case, remember…)

“30. …Cambridgeshire made three significant mistakes in its analysis, and presentation to the appellant, of the extent of its duty to him under section 2 of the 1970 Act.

The first was in its treatment of the mother’s representations, through the answers to the questionnaire, that in the future he would receive no natural support. Inevitably it did not accept the [truth of the] representations; but it never stated, whether in writing to the mother or orally to the appellant or otherwise, that it did not accept them. It lulled the appellant and the mother into thinking that, for some extraordinary reason, it did accept them. Even if, in the interests of co-operation, Cambridgeshire was prepared to proceed on that basis, it should have put down a marker that it did not accept them.

But when, in May 2009, by reference to the questionnaire, it performed its RAS and UBC calculations, it made no allowance for natural support. The RAS figure was £61k and the UBC addition was £6k: the total was thus £67k. Had allowance been made for a reasonable level of future support by the mother, the RAS figure would have been about £46k and so there would have been no UBC addition at all.

 

 

The independent social worker’s ‘contribution’ – take note, anyone thinking that ‘independence’ for a contracted social worker means that one can just report back whatever is wanted!

“Mr C’s report, dated 10 December 2009, was a most unhelpful document. It was not an expert’s report: it was a presentation of what the appellant and his mother wanted. Mr C’s costings totalled £157k. Into his figures he brought forward the suggestion that paid care for the appellant was required to be purchased for 14 hours (thus, for example, from 8:00 am to 10:00 pm) on each day of the year, at £18 per hour, i.e. £92k.

Mr C did not suggest that, in his expert view, paid care of that magnitude was necessary, still less did he explain why such should be. He said only that it was “reported” that it was necessary: the “report”, of course, had come from the family and no doubt in particular from the mother.

Mr C also identified 13 different educational, therapeutic and leisure activities in which the appellant might engage for a total of 32 hours each week (while the paid carer was presumably expected to sit and wait, as also during the substantial periods to be spent by the appellant in his music room) at a cost of £40k; and, among his remaining provisions, Mr C included two two-week holidays each year for the appellant, his mother and a paid carer, at a cost of £19k.

  1. Unfortunately the uncritical endorsement of the wishes of the appellant and of the mother by Mr C in his addendum report led them to believe that he had become entitled to provision of such magnitude. Even more unfortunately, Cambridgeshire’s response to the report fortified their belief.

The authority considered that, in relation in particular to the level of paid care but also to the suggested activities and holidays, Mr C’s presentation of the requisite services and their cost was manifestly excessive. But it did not say so; and such was its second significant mistake.”

 

 

Why this was disastrous:

“No doubt allowance falls to be made for the need for an authority to try to co-operate harmoniously with the service-user in the future and thus for it to avoid any unnecessary injection of conflict. But to the appellant, Cambridgeshire gave the impression, in particular, that it was putting forward calculations on the basis of a requirement for 14 hours of paid care on each day of the year, not just for the sake of argument, but because it considered such a requirement to be reasonable. Thus, again on the curious footing that no natural support would be available to the appellant, it re-conducted its RAS calculation, which again, of course, produced the maximum of £61k. Then it re-conducted its UBC calculation but, on this occasion, it did so on the premise that there should be an uplift referable to the cost of specialist, paid care for the appellant for 14 hours on each day of the year: the calculation produced an extra £24k. Thus it was that, by letter to the appellant’s solicitors dated 5 January 2010, Cambridgeshire, by then acting through its legal department, made the offer of £85k which became the subject of challenge in the proceedings. It pointed out that specialist paid care for 14 hours on each day of the year, at (so it suggested) just under £15 per hour, would cost £75k and that on that basis £10k would remain for educational, therapeutic and leisure activities.

Such may therefore just about be characterised as ‘a support plan’, albeit of an extremely general character…. “

 

 

What happened next?

  1. By its letter dated 5 January 2010, Cambridgeshire had thus explained how the offered £85k might be deployed; but it had not explained how it had been computed. Contrary, … to appearances, the offered figure, being the product of the RAS and the UBC, was not, of course, the result of any detailed costing of the services which Cambridgeshire regarded as requisite for the meeting of the appellant’s eligible needs. But, as Cambridgeshire accepts, the different basis of the two elements of the computation should, in broad terms, have been explained; and such was its third significant mistake. Even a session of mediation which took place in May 2010 proved abortive for want of the explanation; but at least the mediator facilitated the extraction from Cambridgeshire of a commitment to provide it within 14 days.

In the event Cambridgeshire finally provided a full explanation under cover of a letter dated 3 June 2010; and it described the offer of £85k as an “envelope” within which any reasonable support plan might be accommodated. But the process of its arrival at an intelligible explanation of the offer had been, as the Court of Appeal observed, tortuous.

Meanwhile, in April 2010, it had provided another, rather more detailed, support plan in order to reflect the fact that, by then (albeit, as it was to transpire, not for long), the appellant was attending the college so needed less paid care. On that basis, as the plan indicated, a very substantial sum, namely £28k, would remain available to the appellant for application to other outside activities.

 

 

So, how much reasoning is required?

“37. In the Savva case, cited above, Maurice Kay LJ gave helpful guidance as to the proper approach to the provision of reasons in this class of case as follows:

“21. In many cases, the provision of adequate reasons could be achieved with reasonable brevity. In the present case, I would consider it adequate to list the required services and assumed timings… together with the assumed hourly cost. That would not be unduly onerous. I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done.”

…The appellant does indeed require more complicated arrangements than did Mrs Savva.

Even in a more complicated case, however, it may be enough for the authority, as here, to attribute a compendious cost to a group of requisite services of similar character, particularly if there are reasons for concluding that general assumptions have been made which, if reflective of error, would reflect error in the service-user’s favour.”

 

Why was the decision defensible, as not irrational, overall?

“It was rational for Cambridgeshire to use the RAS and the UBC, provided that the result was cross-checked in the manner to which I have referred. Indeed, …the false premise behind the RAS calculation that the appellant would not continue to receive any natural support, taken together with the arresting premise behind the UBC calculation that he required no less than 14 hours of paid care on each day of the year, generates a provisional conclusion, which there is no evidence to dislodge, that any flaw in the computation is likely to have been in his favour….”

 

 

And so?

“In the light of the conflict as to the sufficiency of the offer, Cambridgeshire could not produce a support plan … in conjunction with the appellant…[but] Cambridgeshire should have made a more detailed presentation to him of how in its opinion he might reasonably choose to deploy the offered sum than in the plans put forward in January and April 2010.

In particular, Cambridgeshire should have made a presentation of its own assessment of the reasonable cost of the principal item of the appellant’s future expenditure, namely the cost of paying for carers for him. Its belated explanation in June 2010 of the different basis of the indicative calculation, though necessary, did not repair that deficit.

Nevertheless, in the light of the amplification of Cambridgeshire’s reasoning in the mass of evidence filed, which has enabled the appellant, by Mr Wise, to lead a fully informed inquiry into its determination in courts at three different levels, the result of which leaves no real doubt about its lawfulness, it would be a pointless exercise of discretion to order that it should be quashed so that the appellant’s entitlement might be considered again, perhaps even to his disadvantage….”

 

 

The implications of the Cambridgeshire case summarised, then:

When finalising the amount of a budget or allocation, social care decision-making panels/staff are only obliged to convey a rational justification for believing that the funds awarded are broadly equivalent to the reasonable cost of securing the provision of the service concerned. A resource allocation scheme which gives an indicative amount is neither a necessity, nor sufficient, in and of itself.

The ‘arrangement’ for meeting need that must be put into the support plan might well be a Direct Payment – if that’s what’s been agreed, in which case the client can choose, ultimately, how to spend it, so that the amount allocated need only be broadly justified, not explicitly calculated by reference to identified services.

When finalising the resource allocation for a direct payment form of personal budget, the broad justification must be rational and based on competent staff’s opinion, as to how much of a generic type of service would actually be required to meet need, and how often, in order to be able to explain why the amount finally allocated deserves to be seen as not arbitrary, and as reasonable.

A resource allocation calculation cannot ‘drive’ the assessment of need, which must still be needs driven, and no budget driven – and the final amount must focus on the individual, even if final costing is underpinned by reference to the average cost of meeting the needs of the client group of which he or she is a member.

 

 

Summing up the effect of the rest if the case law on who is the ultimate decision maker about amounts…..

Councils are the ultimate decision-makers on support planning, in terms of appropriateness. Councils can even take resources into account, in relation to what is ‘appropriate’ – within certain legal and procedural boundaries. So long as they pay respect to the client’s views on what is appropriate, they do not have to agree, but they do need to explain their position and it must be rational.

The need can be identified in general terms, so long as the support/care plan identifies how it will be met – a direct payment election can be an arrangement that satisfies this requirement and the recipient gains flexibility as to how to spend the money in meeting the assessed need.

A guestimate of the cost of meeting the need has to be made, and must be evidence based and not arbitrary. A RAS is a lawful starting point, but not a finishing point. The council’s decision-makers’ opinion as to ‘appropriateness’ can only be challenged by way of a judicial review foe unreasonableness, unlawfulness, breach of human rights, lack of consultation and absence of reasons.

 

The Chronically Sick and Disabled Persons Act 1970 – the things Councils have always been able to arrange, if they feasibly came within the following highlighted words – but they don’t have to, if they don’t want to, if they don’t think it’s appropriate for a person with a managed personal budget – the same law as applies in Scotland.

(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

 

Running out of money – the modern current English FACS guidance says ‘Tough’!

  1. Councils should plan with regards to outcomes, rather than specific services. They should consider the cost-effectiveness of support options on the merits of each case and may take their resources into account when deciding how best to achieve someone’s agreed outcomes. However, this does not mean that councils can take decisions on the basis of resources alone. Once a council has decided it is necessary to meet the eligible needs of an individual, it is under a duty to provide sufficient support to meet thoseneeds. Councils should provide support promptly once they have agreed to do so, but where waiting is unavoidable, they should ensure that alternative support is in placeto meet eligible needs.

 

 

So how does the self directed support strategy look, now?

Provider relations are different in Scotland – you don’t scream ‘Competition Act Cartel’ at them – in fact you encourage them to join together because you can contract with them on national terms and manage their demands as if they were a union, even funding them for Away Days…

  • Staff culture is very different – social workers are used to exercising judgment and being allowed to do so – and are better educated, and the ratio of qualified staff to non qualified staff is higher, still….
  • Acceptance levels of the Scots public are different – because of ignorance, or a fondness for low taxation?

However, Scots lawyers may be gearing up, because there’s nothing like a new Act to stimulate interest in legal analysis. The irony is, though, that Scotland is not changing the underlying law or approach to who gets care, and it is that bit that lawyers have ignored, until now. So this could be a growth area…

The citizenry probably needs a national advocacy service – or providers need to fund advocacy, indirectly, through a levy, for their sake and the clients’…

 

 

A special note on the position of providers…because they set the cost of care, by being able to take a line about they will or will not sell, even if councils would like to buy less, FOR less money:

Providers are, in the main, regulated activity providers, providing services for a fee. They are doing it from choice, not a duty – even if they are not-for-profit organisations. They choose to admit clients to their services, it being assumed that they are all professional enough to take on only so many with such needs as they expect to be able to cope with, at the price they have agreed to be willing to take from the purchaser.

So, as long as they are willing to continue to honour the content of the client’s support plan, they are the key to the council’s own adequate performance of its own public law duties toward the client.

If providers agree to cut their price, without cutting the service, the client is not actually suffering, nor are their rights being ignored. The provider’s profits, or reserves, if they are not-for-profit – will suffer. And their peace of mind, in terms of cutting the cloth forever more thinly, with ongoing worries about risk management.

 

Do councils have a legal right to decide what they want to pay, however little that might be?

Only if service users and providers give it to them! The law of community care services – enforced by judicial review – is that if there is only one appropriate way to meet need, in light of professional and objectively rational opinion, then the cost is irrelevant – the client is entitled. That’s how important Parliament actually deemed social care services for adults to be!

There is no room within contract law for the idea that councils can manage the price of public services simply by offering to pay what they want to pay – not in private law, if they have already made binding contracts on different terms, or need to make new ones, on expiry or when new terms are needed; and not in public law, because they have statutory duties to meet eligible assessed needs even if they can’t buy at the price they want, by going back to being a provider – however much it costs.

So the way they achieve their desired savings is by making the most of a local market where providers have been naïve, unaware or desperate enough to have already signed up to provide services for whatever the council can afford to pay, or where they all concede on fees reduction, out of a sense of there being no alternative option, if they want to remain open – and where service users let that happen, through ignorance or lack of legal advice.

 

Battles that service users can’t win

If providers cut the price, AND cut the services, because the plan has been cut by the council, too, the client is affected – but let’s explore how, exactly, for a moment:

Let’s assume that…

  • the person has been re-assessed as genuinely needing less of a service, because of other things that have changed in their lives;
  • or that the council has dared to raise its threshold for regarding services as essential, and the person is no longer eligible, in certain areas of their lives.
  • or that the council has openly and honestly said to all existing and future clients that it needs to take a new view, in light of its financial difficulties, about what can count as appropriate to meet assessed needs, and that it knows it will be hard at first, but will everyone ‘give it a go’ – with a promise of re-instatement of the original service contract if the client deteriorates?

None of these reasons for a cut to the client’s package, is likely to amount to strong grounds for a successful judicial review by the service user – if they have been re-assessed properly.

Some of us may not like it, but that is the law.

What do you mean, it’s the law?

Social care provision is a safety net only, for people who cannot manage to help themselves to meet their own needs, either for want of sufficient money, want of sufficient informal support or want of capacity to make the arrangements – and no guardian or attorney, in Scotland….

The council does not have to meet all needs; only eligible ones. It does not have to give a person what they want, but only what the council thinks they need. Councils are allowed to treat social care as a low priority in their spending plans, so long as they consult properly on the equality and diversity impact of raising the threshold – the only remedy is the ballot box, and social care tends to be of little political interest, until one has family members who need it. And so long as it’s careful and open-minded, and articulate, a council can take its financial position into account when determining what is an appropriate means or an appropriate setting to offer to meet an individual’s needs with – because it’s all public money, after all, and councils have to be fair to everyone.

Acceptable standards of independence and dignity in a care package are prone to shift, in the minds of any society according to its affluence. It’s not illegal for the council to reflect that inevitable ‘truth’ in its policies….

 

Who is the decision-maker for the question of the acceptability of others meeting need, or the manner of support to be provided?

Elaine McDonald v Kensington & Chelsea London BC

Where a local authority was obliged to meet the re- assessed needs of a lady who had a neurogenic bladder as a result of a stroke, they were entitled to meet the re-formulated need in a more economic manner – they could rely on the NHS to provide incontinence pads, rather than pay, themselves, for a night time carer to take her to the toilet, as before, when that was what her need had been stated to be. The court said that the National Health Service and Community Care Act 1990 gave the Local Authority some flexibility as to how the needs could be met (and the same is certainly true in Scotland).

On appeal – there had been no Disability Discrimination or breach of human rights, or breach of public law, after her needs were re-formulated more generally than before, as the authority had conscientiously sought to treat her the same as everyone else – lawfully.

 

Appropriateness – the crucial concept

Councils have massive discretion over what it is appropriate to do to meet need, so long as they abide by any relevant legal rules, have competent professional consensus and an evidence basis behind their conclusions, and pay proper attention, in terms of decision-making, to human rights, and fair process, and the giving of reasons to service users and families.

Affordability and cost-effectiveness between two legitimate options, and councils’ other duties of equity to all potential clients, in terms of quality or standard, are legally relevant to appropriateness.

So, yes, what they were happy to fund 2 years ago, may no longer be what they can afford to regard as appropriate, now, and they can pass the pain on to clients, within reason. Social care service users are just like the rest of us, in this regard, not in a better position.

So on ‘soft’ things like leisure, and holidays, which add to a person’s quality of life but which are not essential to most people’s dignified survival, councils have both an obligation and a power to come off the fence and say, even though they find someone eligible for help, just how much of a service they think is appropriate, in terms of society’s views as to what’s tolerable. If they are giving roughly the same as other councils, it is unlikely to strike a judge as unreasonable.

Respite and transport services are not quite so soft in these terms, because respite levels go to a carer’s willingness and ability to carry on meeting needs; and transport to services that themselves have been acknowledged as a must, would seem to be an irrational thing to cut.

 

 

Are the council’s inevitable resources difficulties relevant to what’s appropriate in the first place?

If the authority agrees that the need can only be met in one way, appropriately, then the cost of any other inappropriate way is completely legally irrelevant – because it would not be lawful in the first place to use that other method.

Local authorities cannot therefore assume that everyone ‘can’ have their needs met for the cost of a residential care place. For some at least, albeit only the exceptional few, it would never be appropriate, in terms of professional judgment. Ie some people have a need to stay where they are, not a want.

A lack of resources (money in the social services coffers) is legally irrelevant to the doing of the duty to meet eligible need appropriately, once it has been assessed. It is a corporate (a council’s, not just social services) absolute duty until the person has been legally re-assessed and either found ineligible or the support plan legally altered. But there’s no case or a law that says it’s completely irrelevant as to how one meets need appropriately.

A lack of resources – in the wider sense, of non-existence of any appropriate service to buy – is not something that law can change, of course, but the law says that something must be done or arranged in the interim, i.e. the next best thing, (see MacGregor, from the Scots courts!) even if it costs more than was expected for the level of need concerned, in the short term.

But in times of economic hardship, judges will be bound to be sympathetic to the contention that less than perfect ways of doing things, are at least not inappropriate, such that it will probably be seen to be lawful to offer the not so perfect means of meeting need, even though no-one thinks it’s that wonderful. That is the harsh truth for clients, deriving from the fact that all this money is public money – tax payers’ money, ultimately.

 

What sort of cuts can be made to a person’s support/care plan?

After a lawful re-assessment … these cuts can be made without much risk of successful challenge:

  • If the local eligibility threshold has been lawfully raised after proper consultation and the previously met need falls out of eligibility – but providers could be left coping with that need, for free;
  • If the need has been met by something new in the person’s life, like a new carer, spouse, adaptation, a new skill, a new neighbour, an inheritance that the person wants to put to meeting their own needs privately….etc – the need has diminished;
  • If the need has genuinely gone away – like when a person recuperates to a level of independence which no longer necessitates the authority’s arrangements – but the council must articulate where it’s gone to – see Birmingham
  • If the need was over-generously or arbitrarily assessed for, last time round, although this is an embarrassing thing for a council to have to admit;
  • If the council thinks that there is a different way of meeting the same need appropriately, but more cheaply, and is prepared to explain why, so that it can be seen whether it is purely finance-driven, or more broadly based and genuinely considered to offer advantages.
  • If the council thinks that what it is doing or funding has become positively inappropriate – i.e. de-skilling someone or keeping them dependent.

 

Complaints and challenges and letters to the Monitoring Officer of a council

If a person has got access to someone who can write an assertive letter to the council’s Monitoring Officer, identifying what’s going on that’s clearly arguably unlawful, the Monitoring Officer (usually the Head Lawyer and definitely not the contracts or quality or complaints officer!) has an independent duty to ‘engage brain’ and decide whether the person is making a reasonable point.

If so, the Monitoring Officer has to intervene to ensure that the decision is suspended or the conduct stops or changes. This is a free ‘service’ – it’s part of this country’s commitment to governance of the public sector.

Councils also owe duties to the community in general, when changing things. They are accountable if they do not do proper consultation. The Monitoring Officer can be written to about that sort of thing, as well.

The council’s complaint system is not designed to solve legal disputes. It is there for matters related to incompetence or rudeness, or delay which should not have happened. It is a good remedy for people in a long-standing relationship of provider and client, but not good if what needs to be changed is a policy or practice that no-one thinks can change. But of course, complaints are free to the user.

Judicial review is the only way to get an injunction in an emergency, if the council’s Monitoring Officer won’t support you with an investigation. To commence proceedings, in reality, a person tends to need a lawyer, but there IS funding for people below certain financial thresholds, if one can find a firm who’s interested and one which is authorised to provide legally aided specialist advice services in this field.

Providers – on the other hand, are not generally owed statutory duties, by councils. Councils don’t have to keep providers in business; they don’t have to make providers rich. Providers will either be in a contractual relationship with councils, or be recipients of grants. Despite this, recent cases in public law – some successful – have been brought by providers about

  • Failure to consult before cutting grants
  • Failure to engage properly with care homes before offering a nil per cent increase
  • Failure to consult tenants properly when withdrawing a live warden service
  • Failure to consult before closing day centres and care homes or raising the eligibility threshold or changing the charging structure
  • Failure to abide by government guidance when conducting safeguarding, associated with the termination of a contract which had a massive impact on users and the provider.

Providers are, at one and the same time, the most natural supporters of, and also the least well-placed to stand up for service users, because of the conflict of interest between them and the client – providers earn an income stream from the status quo. So any advocacy they might pay for can appear to be tainted by their own commercial interests. Providers find it’s often more effective to make sure the client or family knows their rights.

So if the Scots’ social worker work force is to be bullied or driven into giving up its professional integrity, because it needs the job more, over the next few years of economic austerity, the provider sector may need to get together with those who support service users, in order to prevent the dilution of dignified care services and quality over time, point by point, pound by pound.

One could take the view that it would be better not to let what has happened in England happen up in Scotland.

All councils need staff on whose professional judgment they can rely, to give a coherent, reasonable, credible, articulate explanation (potentially in the Court of Session) as to why a particular package should be enough, should be adequate, to meet assessed eligible needs and deliver person-centred outcomes – so it is at councils’ peril that they should dumb down their staff and simply tell them to tick the boxes, in the end.

 

Safeguarding Vulnerable Groups Act 2006

The S.V.G.A provides the legislative framework for the new Independent Safeguarding Authority scheme. The new arrangements will be introduced in phases from Autumn 2008. The Act defines the scope of the scheme and provides that certain activities in relation to vulnerable groups are regulated. The ISA will replace the POVA list. The act enables local authorities in their safeguarding role to refer an individual to the ISA. Currently only employers who are regulated can refer employees to the POVA list.

  • The ISA – Independent Safeguarding Authority – will make decisions about who should be barred from working with vulnerable adults. It introduces an ISA Barred List – it will deal with activities that are classified as ‘regulated or controlled’. Individuals will be barred either automatically – if they are convicted or cautioned for certain offences – or following a decision by the ISA taking into account other offences, cautions any or relevant information. Barring decisions by the ISA will be subject to appeal to the Care Standards Tribunal on points of law or on findings of fact.

A regulated activity is an activity of a specified nature that involves contact with vulnerable adults frequently, intensively and/or overnight. Anyone providing a regulated activity must be registered with the ISA. Domestic employers such as parents will be able to check whether private tutors, nannies, music teachers and care workers are barred.

For an activity to be considered as regulated activity, alongside the satisfaction of criteria relating to the activity and/or establishment where it takes place, it must be carried out by the same person frequently or satisfy the ‘period condition’ ie intensively. Without the frequency test any person engaging in the activities defined as regulated, regardless of how often they carried these out, would be engaged in regulated activity.

The policy position is that frequently should be clarified through guidance as meaning once a month or more often. This would mean that, were the same person to teach children in a class every Saturday, or every fortnight, they would have the opportunity to develop a relationship of trust with their class and, therefore pose a greater risk of harm.

Intensively is defined in the legislation and means an activity which happens at any time on more than two days in a 30 day period, or overnight (the latter meaning that the activity occurs at any time between 2 am and 6 am).

A controlled activity is frequent or intensive support within general health settings, the NHS and further education. It includes individuals working for specified organisations e.g. a local authority who have frequent access to sensitive records about vulnerable adults.

  • Adult Protection Teams in local authorities have a legal obligation to refer relevant information to the ISA.
    • Employers and service providers of regulated and controlled activity have a legal obligation as above.

When must information be referred?

Local authorities (in their social services capacity), professional bodies and supervisory authorities must refer where:

  • An individual who is working closely with vulnerable groups has harmed, or may harm a vulnerable adult or
    • They think that that the ISA may consider it appropriate to bar the individual.

If new information comes to light, leading the ISA to bar an existing member of the scheme from working in regulated activity, all employers with a relevant interest will be notified that this person is no longer a member of the ISA scheme. This means that the employer will be required to remove the person from regulated activity.

The definition of vulnerable adult is provided at annex A. Adults will only be classed as vulnerable under the legislation when they are in one of the settings or receiving one of the services set out in annex A.  The definition of “vulnerable adult” will also include adults who are receiving Supporting People services.

Where vulnerable adults organise their own transport, such as an older person who books a taxi him/herself to travel to a day centre, driving such vehicles should not be classed as regulated activity as this is a private arrangement.