Archive for News

Bootcamp Applicants

The Caseworker Bootcamp will be held in the East Midlands on 10/11/12 May.

Venue Location: Best Western Yew Lodge Hotel, Packington Hill, Kegworth, DE74 2DF T: 01509 672518

Places are limited, and we intend to select up to 20 people to share in this opportunity. We will let you know by the end of February, 2019, please note.

For those who want to try, can we say this: we need caseworkers who already know about legal precedent,  the grounds for judicial review, where to find case law, where to find expert commentary on a case, how to apply critical thinking to existing case law, the Care Act guidance and CHC framework (well) and what the effect on the existing case law is, given that we now have the Care Act, etc. There may be a question sent back to you, to give you a chance to show that you do actually have these skills.

There will be a Getting to Know You All session on the Friday night, and dinner out in the local area.

There will then be Workshops on Saturday morning and afternoon, and again on Sunday morning and afternoon. We’ll meet for drinks on the Saturday evening and then see what people want to do for food options. We will finish at 4.30pm on the Sunday.

The workshops will cover the following: 

  • Our Care Act compliance questionnaire, and how caseworkers use it
  • Our standard wording when writing, for instance, to a council’s Monitoring Officer
  • Our wording about the most important pre and post Act case law
  • Discussion of the most common scenarios that we are being called in on
  • Discussion and familiarisation with CASCAIDr’s Litigation Strategy so that we can all spot the problems that need to be considered as good cases to support in order to make more precedent

The cost of the bedroom, lunches and breakfasts x 2 nights is CASCAIDr’s investment in all our futures. If this development opportunity  for YOU would be of benefit to a current employer or to yourself in your own business, we would hope you would be willing to pay for ONE night’s accommodation, however, as we are a charity.

We ask that those who are selected agree to fund their own food and drinks on the Friday and Saturday evenings, and fund their own travel to the venue to arrive, by 7pm Friday evening.

To qualify for CASCAIDr’s subsidy for this unique training opportunity, you need to be able and willing to do freelance work, at least once a month, on a CASCAIDr matter; work that might take 5 – 6 hours and earn you between £250 and £600.

Here’s a link to the sort of cases that we are fielding these days, and their outcomes: https://bit.ly/2SHM6CO

Bootcamp Applicants
Please share:

Analysis of concerns of Human Rights Watch – with CASCAIDr comments on top

Unmet Needs: Improper Social Care Assessments for Older People in England 

Headline report conclusions

“Older people in England are at risk of not getting adequate assistance to live independent, dignified lives due to uneven assessments for social services.”

Some said that assessors appeared not even to understand their disabilities and support needs. In other cases, before beginning an assessment, assessors announced that services would be cut, regardless of an individual’s actual need.

And in some cases services were denied or cut significantly, affecting older people’s health and wellbeing.

CASCAIDr’s comment: seeing these as indications of ‘improper’ assessments is an interesting approach, when any of the above are potentially unlawful assessments, in terms of current and perfectly clear public law and care law principles!

Methodology
Human Rights Watch (HRW) spoke with 27 older people and 20 family carers in 11 LAs: Tower Hamlets, Cumbria, Bournemouth, North Yorkshire, Hertfordshire, South Derbyshire, Essex, Barking and Dagenham, Salford, Dorset, and Surrey.

HRW also interviewed 51 representatives of charities, as well as lawyers, service providers, academics, policy experts, staff from the NHS, CCGs and current and former LA staff.

They also conducted group interviews arranged by partner organisations in supported housing accommodations and community centres in East London, Bournemouth and Poole.

HRW sent letters to the 11 LAs, the DHSC and the MHCLG requesting answers to questions related to the findings. Only three LAs responded: Dorset CC, North Yorkshire CC, and the LB of Barking & Dagenham (see Annex 1 to the report). The other LAs and the ministries did not respond.

Problems with Social Care Assessments

The report contains excerpts of some of the interviews conducted, including the headline quote:
‘[They] just came in with an agenda of cutting my 15 hours per week to 6.5. They announced it. They told me ‘We are not there to give you more, but we are going to cut it.’ They had worked out that that was what I needed [before they arrived].’

Other interviews highlighted what family members saw as unrepresentative assessments, and the difficulty they had experienced in appealing against them.

CASCAIDr’s comment: The idea that one can actually achieve more savings by having staff prepare the clients for the worst, when so doing itself suggest widespread and ‘corporate’ fettering of assessment and care planning judgement, from above, should be a matter of shame for the sector, and it IS of legal significance in public law terms.

Suspension of Services During Appeals

This section details how some people lost services once they had filed an appeal, how the Care Act is silent on the suspensive effect of an appeal, how two LAs stated they have the discretion to maintain services pending appeals, and how the DHSC is currently developing a process for streamlining appeals, to be introduced by April 2020.

CASCAIDr’s comment: Any social care lawyer could have told them that the fact of a complaint or a dispute is no defence to the duty to meet assessed eligible unmet needs.


Lack of External Oversight of Social Care Assessments


This section sets out how there is currently a lack of sufficient oversight and monitoring of assessments to ensure consistent accuracy and objectivity. Three LAs (as above) responded to HRW’s enquiries on monitoring needs assessments and indicated processes for reviewing social care needs assessments are conducted within each council’s own structures, and they were not aware of any systematic independent monitoring or monitoring of assessments by the central government.

CASCAIDr’s comment: There is none, and it is not an accident. There is only the Monitoring Officer’s role, largely unheard of by those who should know about it, judicial review, which usually needs a lawyer and legal aid and the capacity of the law firm to handle the work – OR paragraph 10.86 of the Guidance which requires a proper management review before giving upon securing agreement and just saying ‘Complain or bring legal proceedings if you don’t like it.’ No wonder it’s taking ages to incorporate adult social care into the tribunal system in this country. It would cause mayhem!

International Legal Standards

The report refers to The Right to Health and to Family and Private Life and The Right to Live Independently in the Community. It includes a reference to the UN Committee on the Rights of Persons with Disabilities review of the UK in October 2017.

CASCAIDr’s comment: Brexit Fever and widespread disdain for the ECJ and ECtHR’s influence on our legal system does not bode well for any further incorporation of THOSE principles into domestic law, do they? Just try contending that you should be funded at home, when a care home is cheaper, without referring to human rights, is all we can say, to all those who see no point in the Convention or the UK’s own Human Rights Act.

Report recommendations (in full):

To the UK’s Government

• Ensure that older people have access to the services they need to realize their rights to live independently in their communities with their rights to health and private and family life protected.

• Establish a mechanism to monitor and evaluate social care needs assessments and the staff who conduct them to ensure consistency and equality nationally.

• Ratify the Council of Europe’s Revised European Social Charter.

To the UK Parliament

• The Health and Social Care Committee and the Housing, Communities and Local Government Committee of the House of Commons should examine the impact of austerity measures on local authority social care provision under the Care Act 2014.

To the Ministry of Housing, Communities and Local Government

• Review successful appeals against initial social care needs assessments and collect data about the reasons assessments were identified as problematic; data should consider the age, gender, ethnicity, location, and place of residence of those assessed as well as the types of shortcomings in initial assessments; use this information to make corrections and improvements in the system with a goal of ensuring provision of services to which people are entitled and reducing the number of times individuals must appeal in order to secure social care services.

• Direct local authorities to establish and document clearly the specific reasons to justify services being safely reduced or eliminated pending an individual’s appeal of an initial social care assessment and in all cases to strongly consider continuation of services pending appeals.

To the Department of Health and Social Care

• Include, in the reform of social care appeals processes planned for 2020, the suspensive effect of appeals.

• Execute a plan for the long-term stability and sustainability of the social care system in England to ensure that the human rights of older people are fully respected.

To Local Government authorities

• Ensure the accuracy of needs assessments, including when there are not enough resources locally to meet those needs.

• Document clearly the specific reasons to justify services being safely reduced or eliminated pending an individual’s appeal of an initial social care assessment and in all cases to strongly consider continuation of services pending appeals.

• Ensure that individuals are fully informed of their rights and available options to appeal social care assessment decisions and provide reasonable accommodations to individuals who may require assistance in the appeals process.

CASCAIDr’s comment: does anyone reading this catalogue of woes have any doubts as to the need for this charity, or wonder why we set it up?  

Please donate to our cause, if you see the point of legal rights, here!

Public law principles make all of the above essentials  for good  governance and legality.

They should already by embedded, after 20 years of community care judicial reviews, in the hearts and minds of those supposed to be leading the sector forwards – not back!


Based on a summary written by Adam Webb, and used with permission – thanks Adam

mradamwebb@gmail.com

Please share:

CASCAIDr’s first year of operation

So please donate to keep us going into a 2nd year and beyond, by clicking on:
DONATE to CASCAIDr

How many of CASCAIDr’s first year’s 200 or so clients were

So, please donate to keep us going into a 2nd year and beyond, by clicking on: DONATE to CASCAIDr

What have been the OUTCOMES, for some of CASCAIDr’s most successful clients?

Threatened cuts to people’s packages, services or budgets, have been cancelled or reduced

“MR and SN have nominated your organisation for a Gold #IAMchallengingbehaviour Star Award as you are continually challenging the behaviour of those people and systems that stop people getting a good life.”

Adequate, practicable budgets have been secured (as opposed to arbitrary or blatantly cost-capped budgets) for a person’s own use in a person’s own home

“The reality is that we did not even have to concede any ground!  We are still pinching ourselves to check whether we are not in fact dreaming that this actually happened! For this, we must again wholeheartedly thank you for your support and guidance throughout!”

People have been able to access or enforce proper processes, such as professionally competent assessments, and paperwork including written reasons, after we’d got involved

 “I just had a call from a delightful and sincere sounding lady from Adult Social Care. She is going to speak to the learning difficulties side of social services to see which team should do a new assessment, or if it should be a collaborative affair with the CMHT. She is also arranging a visit from an occupational therapist. I am cautiously optimistic. Thank you both for your continued support. I am so grateful.”

Necessary, wanted and suitable care home placements have been commissioned, when councils had first said ‘We don’t place people in care homes, ever’ – or ‘not in THAT company’s care homes’

 “Just had the call we’ve been hoping for, J has got the funding for [the preferred provider]! Thank you so much for your input, we are thrilled.”

Care Plans that had never been written up before, have been formalised so that people can see what they’re regarded as needing, and can check the cost assumptions

“My Parents and I have read your email and both attachments thank you – they are fantastically well written. I will go to a bank this week and open a bank account in readiness for a finalised budget and plan”. 

Two people were saved from being removed from care homes after living there for over 15 years and 33 years respectively

“They’ve withdrawn the notice and agreed to follow due process. Mrs X is over the moon and so grateful. She would have had no chance at this time of year of finding someone with availability for legal aid work”.

The proper use of the MCA has been forced into people’s Care Act processes where it had inappropriately been left out, so that their needs and human rights have been properly taken into account

“You are a huge hit with K’s mum, and K seems much happier now; in no small way due to the work we have done with you, as we suspect it has helped [the provider] to really think about the situation.”  

Ordinary residence disputes have been magically managed away and the right council has paid up

 “ I explained everything (almost) that you went through with me yesterday about why the way we’d been manoeuvred into taking over the out of area emergency placement, when X council made the contract, and T is incapacitated and J has no status regarding his funds, was unlawful. A new social worker has now been appointed.”

Top-ups for care home rooms, above the council’s offered budget, that had been said to be inevitable, have been cancelled and refunded or the out of area rate taken as the guide price

“I am absolutely ecstatic myself and cannot wait to tell Mum.  It has made me appreciate that we are in a privileged position to have had your help and that for many families this outcome would not have happened.”

Direct payments have been increased or not reduced, and some disputes about misuse or non-use or going back to a directly commissioned package, have been resolved

 “Thank you for the good work that you do with the charity. You have achieved everything you predicted for my brother and for us, as defectors from direct payment difficulties, and compensation on top -we are really grateful.”

People have been found to necessitate care by their own relatives in the same household, and permission has been granted or left in place

 “Thank you for the immediate response and honesty…X has been amazing and I totally understand the position he is in, and truly appreciate the help given in difficult circumstances.”

Care charges have been reduced, by reference to disability-related expenditure evidence, and at least one refund was secured

“..my financial resources will be severely stretched,
for the rest of my life, but I do so appreciate all you do for me.”

Carers have been awarded rationally sufficient budgets for themselves so as to sustain caring –or replacement care has been added to the service user’s package, after carers could stand no more

“With the advice you have provided so far, I feel more confident.  I will deal with this matter on my own now. I would like to say a huge thank you for everything you have done for my mum, and also myself, I have learned so very much from CASCAIDr’s work.” 

People have been supported to challenge CCGs’ Continuing Health Care decisions, and have either succeeded, or got a split package – and some have even got money back – in one case £50K

“The retrospective is awarded from Feb 2014… I’m pleased and very grateful for all your help getting to this point.”

CCGs have been threatened with judicial review for cost-capping and have ended up preparing quasi-Care Act care plans for commissioning an appropriate service and operating DoLS properly

 “Thank you to you and your case worker. I have now gone through the letter and have a few comments and tweaks maybe for your consideration. An excellent letter. I do not know what their defence(s) could be, given all their failures.”

One severely disabled person has been assisted to secure housing from the Housing Authority, in co-operation with service provision from social care, despite also having a history of substance misuse, and assumed reluctance to engage

“My bosses are on board with all this, and our funders also see the importance of this for both this service user and, of course, the potential for other cases to benefit from what we’re learning.”  

People have been assisted to selfprotect, against councils using the Court of Protection as a threat, to deter them from involvement in decision-making or from holding the council to proper account under public law and the Care Act

I’ll paraphrase, but what you said would happen, did happen within a few minutes of LA’s solicitor’s opening comments, the Judge turned on her and said ‘Stop right now! Stop where you’re going right now! I’m not having it! I’m not going to approve your draft orders. We’re all here to decide what’s best for Mr X’s support and it’s entirely proper that Mr Y is included in these decisions. I suggest you speak to your clients and come up with another plan because I’m not having it.’ We were so relieved.”

Complaints have been won and compensation recommendations secured, from the Local Government and Social Care Ombudsman

 “Thanks for all your help. I’m sure we wouldn’t have got the LGO decision without it.”

Providers from the private, public and third sectors have been assisted to stand up for their clients’ rights, and not just their own fees difficulties

“CASCAIDr’s support for our management’s thinking, in relation to what had seemed like an ultimatum from the council, has really helped turned things around for our charity.”

Independent supervision of a fresh assessment after a successful LGO complaint has been provided to a local authority

 “Thank you – that is really useful and helps us frame some of the points in your response to the Assessment and Carers Assessment for us to use in future training and guidance. I really appreciate this additional comment.”

Many more people now know what the local authority’s Monitoring Officer actually has to do, as the statutory officer responsible for governance, with a referral of alleged illegality.

So, PLEASE donate to keep us going into a 2nd year and beyond, and supporting our planned formal Litigation Strategy and our first residential Bootcamp for new Caseworkers in the Spring – by clicking on: DONATE to CASCAIDr

Finally, what sort of matters has CASCAIDr had to try to signpost to other sources of help, as completely out of our scope?

CASCAIDr specialises in public law matters for clients in the health and social care sector, from age 16+ – so we’ve had to signpost away matters to do with children, special education, safeguarding issues, adoption, DWP benefits matters, a negligence claim, a neighbours’ dispute – but not before taking the time to look at the problem. Please do look at our home page before getting in touch, as it all helps to keep us viable!

So, if you’ve got this far, PLEASE donate – to keep us going into a 2nd year and beyond, by clicking on: DONATE to CASCAIDr

Please share:

What to Say If: you are told that you are not able to have a direct payment …

A.   Because we are not doing them at the moment / the process is just too complicated and it will take too long

“I am sure that councils do not have the legal right to say that it just doesn’t suit them to give money out as a substitute for services.

The Care Act says that if 4 conditions are met, you must give me a direct payment. So I will need your reasons, please, in writing, as to which of the 4 you do not think I meet, so that I can address them, with the benefit of legal advice.

The Guidance (which you have to have regard to, the case law and the Care Act say so) says this:

….processes must not restrict choice or stifle innovation by requiring that the adult’s needs are met by a particular provider, and must not place undue burdens on people to provide information to the local authority.

The Guidance also says this:

Where refused, the person or person making the request should be provided with written reasons that explain the decision, and be made aware of how to appeal the decision …

So it’s obvious that you have to do that much, at least, in order to be seen to be treating me in accordance with the rules of procedural fairness for any public body.

The reasons have to be given to me in an accessible format according to the guidance, setting out:

‘which of the conditions in the Care Act have not been met, the reasons as to why they have not been met, and what the person may need to do in the future to obtain a positive decision. The consideration stage should be performed as quickly as is reasonably practicable, and the local authority must provide interim arrangements to meet care and support needs to cover the period in question.’

These are the 4 conditions you need to focus on, please:”

  • the adult has [mental] capacity to make the request, and where there is a nominated person [a helper suggested by the person seeking the direct payment], that person agrees to receive the payments
  • the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the [special category of] adult or nominated person
  • the local authority is satisfied that the adult or nominated person is capable of managing direct payments, either by himself or herself, or with whatever help the authority thinks the adult or nominated person will be able to access
  • the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question

 

B.   Because we don’t think it’s an appropriate way to meet your needs…

“What exactly do you mean, please, by not appropriate? It’s a very woolly concept, and I am sure that you can’t just trot it out without explaining what you are really bothered about.

The guidance (which you are obliged to have regard to) says that ‘generally’ a direct payment should be regarded as appropriate:

  • In all cases, appropriateness is for local authorities to determine, [subject to ordinary principles of judicial review such as rationality, an evidence basis, absence of pre-determination or a fetter of discretion etc] although it is expected that in general, direct payments are an appropriate way to meet most care and support needs.
  • Direct Payments “remain the Government’s preferred mechanism for personalised care and support” and
  • Local authorities must not use this condition to arbitrarily decline a request for a direct payment. 

Also, in the well-being section of the Care Act, control is specifically mentioned:

S1(2)(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

  • Are you saying that there’s no point in my having a direct payment because if YOU can’t find a service I won’t be able to either?

 

  • Because if so, can I remind you that if you give me a direct payment you can actually give me permission to employ unregulated care workers, which is something YOU cannot do, or buy, as a council, and that would solve your commissioning and market management problem, would it not?

 

  • Or are you saying that it’s inappropriate because the same items or services can be bought more cheaply by you than by me, because you are a bulk purchaser?

 

  • If so, I have taken advice about that, and I have been advised that there is no legal basis in the Act or regulations for saying that cost comparisons for the same service or thing, via direct commissioning or by way of giving me a direct payment, are a legally relevant consideration to the question of appropriateness. Economic viability of a direct payment route to meeting needs is not mentioned in the legal framework for adult social care, whereas it is, in the personal HEALTH budgets framework.

 

          –    In so far as the Guidance envisages that you can take cost differentials into account, when setting the budget, that is a different matter, to appropriateness. Even then, that bit of the guidance is unsupported by any reference to primary or secondary legislation. I accept that it might make a difference to budget setting if the cost differential for the same thing via the different buying routes was massive, but not if it is simply the effect of my being an individual purchaser in the local market, whilst you are a bulk buyer.”

 

C.    Because you haven’t got sufficient mental capacity to ask for one

“What is your evidence basis for doubting my capacity? The Mental Capacity Act says that everyone should be presumed capacitated unless the contrary is established, so you can’t just assert incapacity without sharing your thinking with me/us.

The Guidance (which you have to have regard to, because the case law and Care Act say so) says this:

The following considerations should be made when assessing capacity:

  • does the person have a general understanding of what decisions they need to make and how they need to make them?
  • does the person have a general understanding of the consequences of making, or not making the decision?
  • is the person able to understand, retain, use and weigh up all relevant information to support the decision?
  • can the person communicate the decision? (this may involve the use of a specialist or independent advocate)
  • is there need to bring in additional expertise to aid the assessment?

 

My /our take on these facets of capacity is this: [explain your position carefully]… “

 

D.    Because you wouldn’t be able to manage one, day to day

“The Guidance (which you have to have regard to, because the case law and Care Act say so) says this:

‘Local authorities should therefore take all reasonable steps to provide this support to whoever may require it.

To comply with this, many local authorities have contracts with voluntary or user-led organisations that provide support and advice to direct payment holders, or to people interested in receiving direct payments.

This condition should not be used to deny a person from receiving a direct payment without consideration of support needs.

Consideration should also be given to involving a specialist assessor in determination of support requirements’

  • So, please tell me what is available locally through steps that you the council have taken to provide this support.
  • I understand too that the law allows me to nominate a relative who can be paid for their time in administering the direct payment as long as you think it’s necessary – well you seem to think it is, and I have a relatives who’s up for doing that, but it will take up at least 2 hours a week, so what shall we say per hour, please, on the footing that they’re going to be self-employed?
  • Are you saying that it’s NOT necessary and that I can’t choose to have my relative do that, simply BECAUSE you’ve spent money on commissioning or grant funding a payroll support service? Or are you saying that I can choose my relatives to help but not for money, because of your other arrangements? Can you explain, please, how that is consistent with giving me choice and control?”

 

E.   Because we don’t approve of your preferred helper

“Er, why not please? What do you have against them?

If you have some evidence basis for regarding them as not suitable to help, then you need to tell me and them, so that we can attempt to address your concerns, and in order to abide by the rules of natural justice and procedural fairness that apply to all public bodies.”

 

F.   You can’t have one, unless you use one of our preferred providers for the care services you’ll be buying

“Come off of it!

The Care Act and the Guidance both make it crystal clear that you cannot tell a direct payment holder who to spend the money on. I know that you have a power to make it a condition that the money is NOT spent on a particular person (ie a named individual or a company) but even then you’d have to explain why, to be fair to everyone concerned.

You can’t seriously think that you can stipulate as that sort of negative condition that the provider cannot be ‘anyone who is not on our framework or preferred provider list’ can you? That’s indefensibly too broad and just a cheeky way of trying to tell us who we MUST spend it on.

  • And can we ask why would you even want to be doing that? Preferred providers must be struggling anyway to meet your own demands for services, in the current climate, regarding workforce difficulties that are known to be operating nationwide.

 

  • Is it because you’ve somehow persuaded all those framework providers to agree not to charge direct payment holders any more per hour than what you’ve been able to bully them down to accepting from yourselves? How could making tendering for your business dependent on what these providers would agree to charge other people altogether for their services, ever be legally enforceable?”

 

 

 

Please share:

What to Say If: you are told “You can HAVE a direct payment, but the size of your budget for your direct payment will be calculated based on the cost for which we could meet your needs if we were buying the services.”

“…And if that’s not enough, well then, we guess that you’ll be withdrawing your request for a direct payment, yes? or else accepting the budget as less than you know is needed via a DP route, as a matter of your own choice…”

 

Anyone thinking that this is the bit of the Self Help guide that applies to them, needs to go take a wet flannel and sit down and commit to reading what follows, two or three times, using all their intellectual firepower.

It’s hard, because it has been left regrettably unclear, until someone brings a case to court about it.

The guidance says this:

11.25 The Act states the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.

To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.

Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs or ensure people are complying with legal requirements associated with becoming an employer (see chapter 12).

There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.

11.26 However, a request for needs to be met via a direct payment does not mean that there is no limit on the amount attributed to the personal budget.

There may be cases where it is more appropriate to meet needs via directly-provided care and support, rather than by making a direct payment. For example, where there is no local market for a particular kind of care and support that the person wishes to use the direct payment for, except for services provided by the local authority.

It may also be the case

[ie no direct payment to be offered at all, and ONLY directly commissioned support offered in the first place, CASCAIDr would beg to be told?]

where the costs of an alternate provider arranged via a direct payment would be more than the for what the local authority would be able to arrange the same support, whilst achieving the same outcomes for the individual.

11.27 In all circumstances, consideration should be given to the expected outcomes of each potential delivery route. It may be that by raising the personal budget to allow a direct payment from a particular provider, it is expected to deliver much better outcomes than local authority delivered care and support, or there may be other dynamics such as the preferred option reducing the need for travel costs, or out of hours care.

In addition, efficiencies to the local authority (for example through an individual making their own arrangements) should also be considered.

Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.

11.28 In cases where making a direct payment is a more expensive option to meet needs, the care plan should be reviewed to ensure that it is accurate and that the personal budget allocation is correct.

[a wholly circular fudge, it seems to CASCAIDr!]

The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs.

It may be that the person can take a mixture of direct payment and local authority-arranged care and support, or the local authority can work with the person to discuss alternate uses for the personal budget.

Essentially, these discussions will take place during the planning process and local authorities should ensure that their staff are appropriately trained to support personalised care and support, and to facilitate decision-making.

 

So, what one might have to consider and/or ask, in order to get to the heart of the issue, is this:

“I get that the setting of the budget has to take account of local market rates but local market rates to YOU, the council, might logically and predictably be less than they would be to a person buying as an individual. So what are you really saying here?

  • Are you saying that my preference for having a direct payment so that I can buy services from a particular provider – who charges more than you can get the service for – is a ‘want’ and not a need?

 

  • Of course I get that if I choose to have a luxury or particularly high class quality service, then that MUST be a want and not a need, and then if I take the direct payment based on the cost of meeting my needs and not ‘wants’, then that’s down to me and I will have to make do and stretch the budget or else top up from my own or my family’s human or financial resources
  • Can I remind you though that the guidance says that councils could decide that the better outcomes that I can achieve through use of a direct payment and the council not having to commission for me, any longer, mean that the council paying out more for that route COULD WELL BE SEEN as BEST VALUE And that ‘Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.’

 

  • But honestly, there is no evidence that the provider I want, who’s offering to meet my needs as you’ve assessed them to be, for £x an hour, is going to be doing anything specially top notch or luxurious – it’s an ordinary provider who’s in business to provide services to ordinary people, which costs more than just fulfilling one large council volume-based purchase.

 

  • If I were to be getting anything special that is not part of ordinary reasonable expectations for a home care service out of this provider (like always having access to the same 2 workers, which would be lovely, but which I can’t honestly say is essential) I would agree with you that that would be down to me.

 

  • But no normal person would expect to have to go to bed at 6pm, and you are supposed to commission for a reasonable quality of service taking people’s wellbeing including their emotional and psychological wellbeing into account, in the first place.

 

  • If direct payment holders can’t choose providers like the one I have chosen, there will be no diversity in the market, which is something that you have a duty to have regard to as part of market management for the whole care market, not just the council’s commissioned for clients…

 

 

  • In so far as the Guidance hints that you can take cost differentials into account, when setting the budget, that bit of the guidance is unsupported by any reference to primary or secondary legislation.

 

  • It doesn’t actually say that you can offer it to me at the lower level, and still be acting within the legal framework for direct payments, does it? It sort of waffles (see paragraphs 11.25, 11.26, 11.27 and the Andrew example in the guidance) and begs the question when it comes to what should be done if nobody can innovatively make the money somehow stretch through negotiations….

 

  • I accept that it might make a difference to budget setting if the cost differential for the same thing via the different buying routes was going to be massive, but not if it is simply the effect of my being an individual purchaser in the local market, whilst you are a bulk buyer. It is wholly rationally predictable that a provider would charge more to an individual than to a council: the clients will be disabled and vulnerable people, not all of whom will manage their budgets perfectly, and there will be more phone calls for variations and more bad debts, in the end, for the provider.

 

  • If you stick to your position and offer me less – as a budget for this DP – less than we all know it will cost me to buy the service as a direct payment purchaser, how will you reflect that shortfall in the s25 care plan that you are obliged to give me even if I have a direct payment? How will you show that it actually meets my needs?

 

  • Are you effectively saying ‘Take it or leave it, and if you don’t want to take the budget for use as a direct payment, then that’s your choice, in the end, and that you will just crack on and meet my needs directly?’

 

  • I have been advised that that’s not a defensible approach if so, because it leaves your duty to promote my wellbeing wholly out of account – wellbeing including this notion here:

           S1(2)(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

 

  • Remember, the guidance says that councils could decide that the better outcomes that I can achieve through use of a direct payment and the council’s not having to commission for me any longer, mean that the council paying more for that route IS able to be seen as BEST VALUE.

 

  • And that ‘Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.’
Please share:

A section 117 client’s services were restored after our involvement

…They hadn’t received the letter at that point, so I gave them a copy to read. They left, after almost 2 hours, agreeing to reinstate J’s support after just leaving it for 3 months

Please share:

A trainee social worker uses the law for her own Mum’s interests in getting out of ‘respite’ care to go back home

“The support you have provided has been fantastic, regardless of the outcome. I do not believe I would have even been able to get this meeting arranged and I have learned so much.”

Please share:

An elderly person’s family is supported to prevent her being moved back home against all professional advice

Many thanks. We managed to persuade them to change their minds ! The various letters from the doctor and mental health made a huge difference, and it was very helpful to have an understanding of the legal background. 

I will be passing your details to other individuals/complementary organisations who I think would really benefit from knowing about your work

Please share:

The LGO is persuaded to change a draft report after a complex complaint…

“Clearly [the LGO] has changed the report significantly as a result of the previous feedback. Looks pretty much like we have everything significant found in our favour. Thanks for all your help.”

Please share:

Charity supported to cope with demands from a CCG and LA for re-configuration

“The meetings with the CCG and LA went well, and the fees are under renegotiation – they have accepted many of the proposals you suggested we put forward, and we are now down to discussing the last few points! So far so good…thanks for all your help!”

Please share: