Archive for News – Page 2

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

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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.”

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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!”

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What to Say If: you’re told that you aren’t eligible for a funded advocate under the Care Act

People have a right to advocacy – independent funded advocacy – under the Care Act, if they have substantial difficulty with regard to the processes in the Act where councils are required to INVOLVE people before making a decision.

So it’s not an absolute right, as such, but a right that flows from a professional judgement about someone’s cognitive impairment in relation to the purpose of the process – and only in a given context of a Care Act decision needing to be made. 

Generic advocacy or non statutory advocacy is something else: the council may well pay for it, but you can go straight to that organisation and get an advocate, if you are lucky, whereas independent funded advocacy can only be called off or allocated/granted, etc, by a local authority decision-maker. 

The processes are assessment, care planning, the thinking at the end of a review, and any revision of a care plan (as well as safeguarding).

There are other facts that can negate the right to have an independent funded advocate. 

Consenting to one’s own relative or friend, acting for one, informally, is one way to miss out on an advocate. 

Don’t let yourself be manoeuvred into missing out. There aren’t enough advocates and they aren’t paid enough for the job they do, but most of them are really ethical and moral people who want to see good being done. 

So, if someone says you’re not entitled to an advocate, say this: 

  • Why, please? I think the statute says that I don’t have to have a relative do it for me, and I’d prefer to have an expert in the process. I think that you may have just assumed I’ll be happy having my relative supporting my involvement but that is not in fact correct. I will involve them as carers or best interests consultees, thanks, but I want the support of an advocate. 
  • I know that an advocate has rights to records, which my own relatives won’t find easy to assert. 
  • Do you not think that I would have substantial difficulty, being fair and taking everything you know about my impairment, into account? It’s not legal to say that I only get an advocate if I lack mental capacity in some way.
  • The law is clear that a Care Act process, where there should have been an advocate, but there wasn’t one, is not a valid legal delivery of the duty to do that process. 

If someone says “We’d like to give you an advocate, but we haven’t got any available at the moment”, say this:

  • The Haringey case says that lack of resources is not an excuse for not doing a statutory duty, and I think that the council has a duty to find the resources, with all due respect. Because otherwise, my assessment would be delayed. And the eligibility decision would be delayed, and care planning and signing off of a budget might be delayed, and that wouldn’t be right, would it?

If someone says you HAVE to have an advocate, ask them very carefully why they are saying that, and what the source of their power is to say that, if you think you know your own mind and don’t want one. The reason may have something to do with your relatives, and you need to get the explicit reason out of the council, before doing anything further. 

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What to Say IF: you’re told that you are not eligible for assessment…

It’s almost impossible in England for a council to refuse to assess someone for adult services, without breaching public law duties. 

So if someone refuses you the chance to be assessed, this is what to say:

  • I believe that the Care Act imposes a duty on councils to assess people’s needs if there is merely an appearance of need – not need that is bound to be or even possibly might be eligible, but an appearance of any need for care and support. 

[write down what the person then says, carefully]

If someone says that you’re not needy enough to justify an assessment, say this:

  • I don’t think that it’s legal to set a threshold for accessing an assessment under the Care Act – the statute is the only filter that it’s legal to use.
  • I get that if you could just look me over quickly and say that I wouldn’t qualify, it would save time, but public law says that that would shut people out of a legal right
  • It’s not legal to say that a person has to be enduringly or severely mentally unwell, in order to qualify for assessment for adult social services…
  • It’s not legal to say that a person has to have a diagnosis of Asperger’s or Autism in order to qualify for assessment.
  • It’s not legal to say that a person has to have an IQ lower than 70, in order to qualify for assessment
  • It’s not legal to say that a person can’t have an assessment, unless they’re ordinarily resident in the area
  • It’s not legal to say that a person can’t have an assessment if they have over the financial threshold: they might well lack capacity and have rights to have their care needs met by council arrangements, and it’s not a bar to home care services at all.
  • It’s not legal to say that a person can’t be assessed under the Care Act just because they have housing needs or health needs as part of their overall needs. The Care Act enables councils to meet a person’s needs with accommodation, unless it’s another agency’s duty to provide it.

If you’re caring for someone informally, without being paid to do so, (ie a friend, family member etc) it’s not lawful to be told you can’t have an assessment for your own support needs, unless you are providing regular and substantial care. That test went out when the Care Act came in.

If you’re caring for someone with Continuing NHS health care, or mental health needs, before or after detention in a psychiatric hospital, under the Mental Health Act, it’s not legal to be told that you can’t qualify for support in your caring role. The status of the person being cared for is not relevant to the rights of carers under the Care Act.

 

 

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What to Say If: the council or a CCG says that you can’t have a bigger budget for care needs at HOME than it would cost that body to meet your needs in a care home

If a council or a CCG says this, they are treading on very thin ice, these days.

They’d be thinking that the definition of a personal budget, in legal terms, is the cost to the council of meeting the needs, and inferring from that that no council need offer anyone any more than it would cost for the council to pay to get the needs met.

The Equality and Human Rights Commission has threatened 13 CCGs with judicial review of published policies to this effect, policies which those CCGs have been foolhardy enough to put up on their websites without – it would seem – a care for long established public law principles. 

Councils have been pursuing such policies for at least 20 years but no single council has ever allowed itself to be taken all the way to a judge about the above position. 

CASCAIDr does not think it is lawful, as a published ‘blanket’ policy for how a person’s needs will be met, to make this sort of an announcement under the National Health Service Act (or under the Care Act) because it would operate as an inappropriate fetter on professionals’ judgements about individual people’s needs, wellbeing and impact on them, of a move to a care home.

CASCAIDr has no doubt that the 13 CCGs will be taking those policies down or amending their wording.

But that does not mean to say that a council or a CCG is obliged to keep someone at home, for meeting their care needs, no matter what the cost. CASCAIDr thinks that that is inherently unlikely to be said to be the law, by any Administrative Law Court judge. 

A person denied the chance to have care at home when it would only cost a little bit more than a care home would have a strong case for contending that their human rights had not been balanced properly against the economic impact on the area. The bigger the gap, though, the riskier the challenge would be, for the individual, because resources aren’t irrelevant to the public body’s choice of how to meet a person’s needs – unless the need is actually a need that could only be met by the person’s living at home and NOT in a care home, according to relevant professionals’ opinions.

A person’s mental capacity must also be relevant, we think, because of the ugly truth that a person with capacity is going to be able to make a stronger case out about the value of their own home environment to their emotional and psychological wellbeing than an incapacitated person would be able to express. 

So the real question is WHAT WOULD NOT BE A LAWFUL POSITION for a public body to take, with regard to comparing costs of two alternative settings in which care inputs could be arranged, so as to meet eligible assessed needs? What would be indefensible, in terms of public law? 

It’s likely that no public body will actually want to risk sticking to a position of openly cost capping if the people affected by its attempts to do so, seem well tooled up for fighting the legitimacy of that position. So knowing what to say is crucially important.

If anyone says any of the following (all of which amount to a cost capping policy, although they don’t immediately refer to the cost of a care home), you need to probe further and get some more reasons out of the assessor or care planner, to see where their position comes from:

  • We only ever do 4 visits a day by way of home care
  • If you need double handed care at night, you’ll have to top up
  • We don’t do care at night
  • The cost of live in care (a weekly sum for an employed person on an unmeasured hours contract) is all that we would ever provide by way of home care.

Here are some things that you can say, to generate debate and the potential for shots to own foot by the staff in question:

  • I know that you can, as the funder and care planner, compare alternative settings, and if they are both adequate in your professional judgement, that you can offer me the cheaper, if you have taken all relevant considerations into account. But I don’t know how you could possibly have taken account all of the features of my wellbeing, and my wishes and feelings, as you are bound to do, by this point, so I am worried that nobody’s actually even thought about whether a care home WOULD meet my needs appropriately. Here are the reasons why I think that it would not: [give reasons]
  • I don’t believe that the rate you pay for your publicly funded clients is sufficient, in reality, to pay for adequate appropriate care and support to meet needs such as mine. I would want to know how many care homes in the area will even take your rate as the full cost of the care that you are legally obliged to provide for me in light of the assessment. Not as a contribution plus a top up, from someone else, please note. I believe that the number of care homes asking for a top-up on top of what you pay as your contribution (including the charge that you would make to me) is now so great that it suggests that the apparent cost of a care home has been manipulated to a figure that is arbitrarily low. 
  • If the council’s / CCG’s rate was a more accurate one, that would then make the cost of care in my own home appear to be less unaffordable in your Member’s/Finance officer’s eyes, would it not?
  • If I am someone whom you could rationally regard as having needs that could be adequately met by a placement in a care home, I assume that you will offer me a placement. That placement has to be suitable – I know that much – not just any old care home that happens to be open. I know that ‘suitable’ has to be in light of my needs, deficits and problems: the Care Act and the Merton case say so. But I am going to say no, and I need to know what you will then do, in order to make an informed decision.
  • I don’t think that you can knowingly give me less than the council professionally assesses my needs AT home to cost, if we agree that you are not going to force me into a care home against my wishes, just because the council COULD have ‘got away’ with paying for me to go to a care home. 
  • You’re saying that the offer of the cost of a care home for me to spend on home care would be great for me because it would give my my ‘choice’ to stay at home, but that’s not really fair, is it, when in fact it’d be down to YOUR organisation’s choice not to walk away from me and give me nothing, if I were to say no to having my care needs met in a care home.
  • In order to give me that reduced budget by way of a direct payment, you’d have to deem it to be an appropriate way for my needs to be met, and you’d know that it wasn’t enough. So I don’t think that that’s a way forward, unless you are prepared to set out a care plan, under s25, showing how either YOU as commissioner, or I, as someone who could be given a direct payment, could, on that so called lower cost comparison amount, adequately meet my needs. 

 

CASCAIDr can help identify lawful and unlawful thinking with regard to cost capping. In all cases the most important thing we would need you to work out is what the real cost of meeting your needs in your own home would really be, after all informal help that you could tolerate having from friends, relatives and neighbours has been drawn into the equation.

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What to Say IF: the council or CCG says that they believe they could meet your needs for £xxx – because that is what they pay to care HOMES in the area

If a council or a CCG says that it is using the cost of a care home locally as a measure of what it should offer, the cost is not an unlawful consideration in and of itself, but it cannot be the ONLY determinant of its care planning function (regardless of whether one’s purchaser is the council or the CCG).

There is a case from 2004 involving the London Borough of Bromley (Alloway) saying that cost cannot be the only determinant of what would meet a person’s needs. Since then, the Care Act has made some of the obviously relevant considerations for any such decision, into explicit, mandatory factors that must now be considered/addressed by any care planner (and by implication, any assessor).

So IF an assessor or a care planner appears to be assuming that a care home would be capable of meeting virtually anyone’s needs, because a care home is a way of ensuring access to supervision around the clock, but you don’t want that sort of care, then you need to say this: 

“It surely can’t be your professional opinion that every single person in this county / council area / CCG area can be said to have needs that can adequately and appropriately  be met in a care home, can it? There must be some who NEED to be in their own home, and some who NEED to be in a care home. I might be in the middle category of ‘could be cared for in either sort of setting, therapeutically  beneficially’ but you don’t know enough about me yet, to my mind, to do the thinking properly under the Care Act.”

“I’m worried that the fact that the council has been extraordinarily successful at persuading local homes to provide a package of care in a care home for an extraordinarily low price might be what’s driving the position that all my needs require is a care home placement. That would be a fetter of your discretion as a care planner.”

“I know I’m entitled to be told what you would provide as a lawful and practicable alternative if I were to say no thank you to a care home, if you ultimately offer to make that placement.”

“I know that all councils have to abide by the Merton judgement about the necessary elements of a lawful assessment, so unless you’re prepared to do that, I’m afraid you’ll be getting the organisation into legal difficulties – so please speak to your manager before we go any further and make sure that you are familiar with that judgement.”

(click on this link here for the full judgement: http://bit.ly/2sDY7QK )

The judge said this in the Merton case: 

  • An assessment is invalid if it doesn’t address impact of a person’s problems/needs/deficits on their wellbeing, or doesn’t have regard to a person’s preferred outcomes.
  • Well-being includes mental and physical health and emotional wellbeing and the suitability of accommodation. This means that the assessment must determine how the person’s assessed needs impact upon his or her mental and physical and emotional wellbeing and the type of suitable accommodation s/he therefore requires.
  • A council must have regard to the individual’s wishes and to the need to ensure that decisions about the service user are made having regard to all his circumstances.
  • The suitability of accommodation being considered, and the accommodation presently occupied, in relation to a proposed move is an essential relevant consideration for a lawful Care Act process.
  • The professional judgement of the assessor is the essential evidence basis as to what is a need, and an eligible need, but that judgement needs to be evidence based in and of itself.
  • Asking another provider for a price, on the basis that a person has been ‘deemed’ organisationally no longer to need an aspect of the care provided by the current provider as part of its costing model, is not the right way to go about re-assessing needs.
  • A new provider, favoured by the commissioning organisation, cannot simply find itself capable of meeting needs and have that stand as a statutory assessment under the Care Act
  • It’s no good saying that something is no longer needed because a council doesn’t want to pay for it any longer.
  • A High Cost Funding Panel that has no minutes is not going to be able to explain the basis on which IT has decided something is no longer needed.
  • It is difficult to categorise a decision to reverse such a long standing provision (based presumably on need) as rational when I am not told who made it and I am not told the basis for it.”
  • If the local authority decides that it is required to meet needs, it must, pursuant to section 24 (1)(a) of the Act, prepare a care and support plan or a support plan for the adult concerned. 

The listed factors in the wellbeing section 1(2) in the Care Act that must be considered in order to identify the needs properly (there are more in s1(3) mentioned above) include:

(a) personal dignity (including treatment of the individual with respect);

(b) physical and mental health and emotional well-being;

(c) protection from abuse and neglect;

(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);

(e) participation in work, education, training or recreation;

(f) social and economic well-being;

(g) domestic, family and personal relationships;

(h) suitability of living accommodation;

(i) the individual’s contribution to society.

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What To Say If…..you have been told that your package of services or personal budget will be cut, BUT….

a) … WITHOUT ANY re-view or re-assessment having taken place: 

  • I am certain that it’s not lawful to cut a person’s care package without doing a review, and then a re-assessment using Care Act criteria if a cut is proposed, for whatever reason.
  • I am sure that your senior management team have not meant to give the impression that it’s ok to suggest that the council / CCG can just DO that, but it does leave us all in  difficult position….
  • By telling me in advance that there’s going to be or that there’s got to be a cut, you’ve effectively
    • pre-judged my needs, or what’s required to meet them, without any of the facts to hand, and without all the relevant considerations in your mind
    • made me think that you think that the state of the council’s/CCG’s finances can actually determine what you have to do to meet your duties towards me, as if your finances were the only relevant consideration
    • made me think that the organisation’s needs are driving professional judgements, such that your professional thinking is being fettered.
  • I need you to ask for some supervision or guidance from your line manager, because he or she will need to ensure that you have legal advice from the council’s lawyer or CCG’s governance lead in order to be on a safer legal footing when the review is done.
  • I will not complain, right now, now that you and I are on the same page, but if there’s anything unlawful or Guidance non-compliant with the processes now required to be followed, I will have to mention that you’ve said what you’ve said, when getting further advice about the legality of any cut that the organisation might try to impose. 

b) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment but no explanation as to what has changed

  • I am certain that it’s not lawful to cut a package or a personal budget without explaining what justifies the change in position as to what is required to meet my needs
    • Is it that my needs have lessened? If so, in what way? A well-managed need is still a need unless you have reason to believe it has gone away for good. The Birmingham ex p Killigrew case does say that you are supposed to be able to articulate how the needs have supposedly lessened.
    • Is it that I have got better at coping, even though my needs haven’t changed? What is the evidence you are going on, please, when taking that view?
    • Are you saying that what this organisation allocated for my needs last year/2 years ago, was in some way MORE than was really needed? In what way was it too generous, please? Which of the inputs that is now regarded as not needed, was really to be regarded as having met a want last time round, then, instead of a need?
  • Then seek advice from CASCAIDr.

c) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment AND there’s a suggestion that what has changed is:

  • that your needs have lessened because (for example) your skills, robustness, mental health etc have improved
    • What is the evidence for that improvement, please?
    • If you haven’t got any, you can’t assume that my needs have got less, just because you think that they should have, or must have done, by now.
    • Just because there hasn’t been an incident/crisis recently, doesn’t mean that you can reasonably assume that there’ll never be another one
    • My provider doesn’t agree, as it happens.
  • that your needs have lessened because you have more informal care available to you which it is reasonable for you to use
    • just because I’ve got a new partner/my son has come home/my neighbour has changed – I’m certain that these things don’t mean you can assume that a person involved with me is willing or able to provide care inputs of a level that meet social / NHS care needs, appropriately or adequately
  • Then seek advice from CASCAIDr.

d) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment AND there’s a suggestion that the new WAY of meeting need, which is cheaper than the old, will just have to DO  (eg you need only generalist care, not specialist care OR technology will have to be used to achieve the same as people did, before….or that you no longer need access to a specialist team ?)  

  • I have had specialist care based on the nature of my condition for the last x years – so please would you address what the likely implications are going to be with making the changes you are proposing
  • Why is it that you think I no longer NEED what you have been funding what’s been in my package please?
  • Then seek advice from CASCAIDr.

After that: EITHER say this:

  • the risks associated with giving it a go and agreeing to cuts to see what would happen, are too high in the opinion of people who are my best interests consultees, who think this because (give details)
  • and even though you will be the decision maker regarding imposing this change on me, as an incapacitated person, we know that your BEING a best interests decision maker means that you should state your reasons for disagreeing with the my best interests consultees / my advocates.

OR say this:

  • I (or my best interests consultees / appointed welfare decision makers am/are willing to give it a go, if you want to take some of the inputs out of the package,
  • …as long as we are all aware that it’s your professional opinion that is influencing this change and not my/our choice or opinion – along with the liability risk that goes hand in hand with that care planning role and responsibility, if anything goes wrong
  • …because the bottom line still has to be that the council is doing what its competent professionals think will adequately meet my needs, lawfully, safely, appropriately and adequately.
  • so we will be needing to know your reasons why you think that the change there’s been, or that is proposed, means that less care inputs, as proposed, WILL still meet my needs.

e) What to say if…..you have been told that your package will be cut, AFTER a review and re-assessment but on the footing that you will be better off without the old level of service or funding…

  • Could you please identify what harm you think I am exposed to by the current profile of services or funding, and what your evidence basis is for that view?
  • I am sure that the Care Act requires you to take a person-centred approach to assessment and what’s needed to meet my needs appropriately and adequately – I know that you have to take account of how I see my well-being and what matters most to me, so that you can make a sensible decision about the way you think best to meet my needs. 
  • I know that s1(3) of the Act says that a local authority must have regard to the following matters in particular—
  • (a) the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being;
  • (b) the individual’s views, wishes, feelings and beliefs; and
  • (h) the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the               minimum necessary for achieving the purpose for which the function is being exercised.
  • I am NOT sure that you can possibly have done that at this stage, and would like to be satisfied that the thought process has taken all the well-being factors in the Act, into account, as well as the input from my carers, proper respect for my private and family life, in light of my human rights, and any views of my best interests consultees (if I am lacking in capacity)

 

AND IN ALL CASES of assessment or re-assessment being done too fast and too incoherently: 

“I know that all councils have to abide by the Merton judgement about the necessary elements of a lawful assessment so unless you’re prepared to do that, I’m afraid you’ll be getting the organisation into legal difficulties – so please speak to your manager before we go any further”

(the same principle must also apply to any re-assessment, when a cut is proposed)

(click on this link here for the full judgement: http://bit.ly/2sDY7QK )

The judge said: 

  • An assessment is invalid if it doesn’t address impact on wellbeing, and a person’s preferred outcomes.
  • Well-being includes mental and physical health and emotional wellbeing and the suitability of accommodation. This means that the assessment must determine how the person’s assessed needs impact upon his or her mental and physical and emotional wellbeing and the type of suitable accommodation he therefore requires.
  • A council must have regard to the individual’s wishes and to the need to ensure that decisions about the service user are made having regard to all his circumstances.
  • The suitability of accommodation being considered, and the accommodation presently occupied, in relation to a proposed move is an essential relevant consideration for a lawful Care Act process.
  • The professional judgement of the assessor is the essential evidence basis as to what is a need, and an eligible need, but that judgement needs to be evidence based in and of itself.
  • Asking another provider for a price, on the basis that a person has been ‘deemed’ organisationally no longer to need an aspect of the care provided by the current provider as part of its costing model, is not the right way to go about re-assessing needs.
  • A new provider, favoured by the commissioning organisation, cannot simply find itself capable of meeting needs and have that stand as a statutory assessment under the Care Act
  • It’s no good saying that something is no longer needed because a council doesn’t want to pay for it any longer.
  • A High Cost Funding Panel that has no minutes is not going to be able to explain the basis on which IT has decided something is no longer needed.
  • It is difficult to categorise a decision to reverse such a long standing provision (based presumably on need) as rational when I am not told who made it and I am not told the basis for it.”
  • If the local authority decides that it is required to meet needs, it must, pursuant to section 24 (1)(a) of the Act, prepare a care and support plan or a support plan for the adult concerned. 

The listed factors in the wellbeing section 1(2) in the Care Act that must be considered in order to identify the needs properly (there are more in s1(3) mentioned above) include:

(a) personal dignity (including treatment of the individual with respect);

(b) physical and mental health and emotional well-being;

(c) protection from abuse and neglect;

(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);

(e) participation in work, education, training or recreation;

(f) social and economic well-being;

(g) domestic, family and personal relationships;

(h) suitability of living accommodation;

(i) the individual’s contribution to society.

 

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Top-up Tricky-ness?

CASCAIDr has assisted a woman who was told to move her mother by the end of the week, without any assessment of the impact, once her capital depleted, if there was no top-up, to flag up 11 legal reasons why that was simply indefensible. The council is dealing with the matter, apparently, and the private rate being paid in the meantime will have to be reimbursed.

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Blind man sees the light at the end of the charging tunnel …

After grinding away for over 18 months, after CASCAIDr advisers spotted that the Disability Related Expenditure part of the financial assessment was flawed, £1500 of so-called charging debt has been written off, implicitly acknowledging that the man’s spend on technological aids was something that had to be allowed for.

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