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A considered riposte to the question posed by Peter Feldon “If unmet need is so rife, why are there so few complaints about it?”

Having taken some time off from managing the flood of referrals received weekly about dodgy practice in adults’ social work, to read Mr Feldon’s article, in Community Care, my jaw dropped.

It doesn’t feel as if nobody’s complaining, HERE!

However, on a more careful reading, it may just be that it’d been inappropriately edited with a title that didn’t QUITE fit the content.

Whatever the reason, though, I have some suggestions to make as to why there might well be fewer complaints than one would expect, given the current national outpouring about unmet need, the further delay to the Green Paper and examples everywhere of the funding crisis, now highlighted by Panorama’s 2 part TV documentary.

Mr Feldon cites the slew of articles and sources, referencing massive unmet need, and then says this:

            “Yet, very few people actually complain about decisions not to meet their needs where these do not meet the eligibility criteria.”

Unmet needs that do not meet the eligibility criteria are not needs that there’s a duty to meet anyway – they are a social problem, not a legal problem, and that’s always been the law. And it’s quite hard to assess someone as INeligible, if one is doing assessment properly, these days (and not just using a 3 conversations model!) – because the criteria are based in law and not mere Guidance, and the Guidance exhorts councils to read the criteria in an expansive and inclusive way.

However, for most people, the devil lies in the detail of the care plan; Mr Feldon went on to say this:

“However, there are a significant number of people who complain about their needs being under-met; this occurs when a person – judged to meet the eligibility criteria – believes their personal budget is insufficient to meet their needs.”

He cites 315 complaints made to the LGSCO where the investigation appeared in the ombudsman’s category of assessment and care planning. The yearly figures have gone down a bit from that level, since 2016, but say approximately 300 a year, in that category. There was ONE example out of 23 cases actually mentioning “unmet need”, where the decision was overturned regarding ineligibility of need. In the other cases, “The most frequent reason for needs being unmet was as a result of delays, most commonly in assessment/reassessment or putting in place elements of the care and support plan.” Delay in and of itself is usually explained in reasonable terms, and is not usually what lawyers would call unconscionable, but just unfortunate. Mr Feldon did not say whether these complaints had been successful or not but it would not be surprising if the LGSCO tended to give councils the benefit of the doubt in most cases of delay.

However, Mr Feldon went on to say –

There were nearly 300 upheld complaints in this three-year period that include reference to personal budgets and, of these, one of the main complaints was about reductions in the personal budget, resulting in some of the individual’s eligible needs not being met or being under-met.”

To my mind, that is one third of all social care complaints about assessment and care planning over three years, where the complaint was upheld that some eligible needs had not been met.

That is surely not a small proportion or a small tally, on any footing.

The case law says (and always has said) that unmet eligible need is unlawful. The LGSCO’s remit, however, is maladministration (now called ‘fault’), not legality.

Moreover, if something is alleged to be positively unlawful, the LGSCO may refuse jurisdiction altogether and refer the complainant to the court system – although the possibility of using legal proceedings is not conventionally regarded as feasible by the LGSCO for most people, in terms of financing them, or the relationship of dependency that may be affected for the worse.

So – our reasoning is that if the LGSCO regularly said that council conduct was in ‘breach’ of the Care Act, or ‘unlawful’, the LGSCO would be criticised for usurping the role of the courts, undermining the protections for councils (ie the need for formal permission for judicial review proceedings from the Administrative Court; the three month time limit; and the practical hurdle presented by the qualification requirements for legal aid funding) that are legitimately and lawfully enjoyed by social care departments.

These days the LGSCO reports use the euphemism ‘not in line with the Care Act’ – see for example the most recent successful complaint against Barking and Dagenham, where a catalogue of incompetence is set out, for all to wince at, because the behaviour regarding top-ups is so widespread.

Secondly, the LGSCO can’t proceed with a complaint without being satisfied that the complainant has given a chance to the council to resolve the matter. The ombudsman has conventionally expected a complaint to be made via the formal social services complaints service, but this is not what the law actually says.

Rather, the law requires that the matter has been brought to the attention of the council with an opportunity to investigate and respond, and there is another way of achieving this, which is using the Monitoring Officer remedy.

We mention this because Mr Feldon’s article does not explore how many first level complaints or referrals to the Monitoring Officer about unmet need may have been successful in the same period.

CASCAIDr has been using the MO remedy for over a year now – so all those cases should be added to the tally as well, where councils have shifted their position and seen the error of their ways – the ILLEGAL error of their ways.

In order to work out whether unmet need is defensible in a given case, or not, one needs to be well enough informed to be able to pinpoint the bit of the Care Act where the council has maybe gone wrong, in legal terms.

It’s not hard to do that, if you know how public law works (the law regulating the behaviour of public bodies). One simply needs to have recourse to the wording of the Care Act and Regulations to sort out the things that a council is legally OBLIGED to do from the things that the council MAY or should do – the latter are powers, and not obligations. It is by having done that exercise that CASCAIDr has produced a Care Act questionnaire with section numbers and case law included, for our own caseworkers to go through, with our clients. It provides a framework for the sort of probing of the facts, and the contents of the letter that must then be written, if one is going to access either the management review that one is entitled to expect in the case of a disputed care package or budget, (see para 10.86 of the guidance recommending this process and REASONS being stated, before a person should even be asked to complain) or the Monitoring Officer’s attention (no mention of that governance officer’s duty is even made in the Guidance!).

Whatever one thinks of the editing, however, there’s a problem in the content of Mr Feldon’s commentary, itself, in our view:  

“It is understandable that addressing unmet need per se is not at the forefront of complaints because there is no statutory definition of the term. In fact, there is no reference at all to individual unmet need in the Care Act and the accompanying Guidance. The legislation recognises that individuals will have care and support needs that are not eligible, which local authorities will mostly not meet, and these are described as ‘non-eligible needs’. There is a duty to explain the decision not to meet needs and provide information and advice to individuals to assist them in preventing, reducing and delaying needs that have been determined as non-eligible, and this must be done in writing. But there is no obligation to determine or record whether non-eligible needs are met or unmet.”

We have to disagree with Mr Feldon as to that analysis of the legal framework.

In public law terms, the requirement of identification of any needs for care and support, and then of the needs which are Care Act eligible needs, and then of the eligible needs that are going to be met by the council – means that any eligible needs that are NOT intended to be met will all be able to be derived from the process laid down in the statute by a process of elimination. If there is a good reason for not meeting eligible needs, then that is not unlawful, but if there is no such justification, its existence is unlawful. Simple, really, we think.

Here are some obviously valid legal reasons for not meeting eligible unmet need:

  • It is someone else’s duty although two agencies are empowered to provide the same sort of service. Eg health inputs when the person’s eligible needs are in fact enough to amount to the CHC construct of ‘primary health need’; housing needs when the person’s need for accommodation is not essentially associated with the practicability of delivering the care and support that is needed; education needs when the person needs the education in order to fulfil educational potential and not merely to access it as an aspect of wellbeing;
  • It is someone else’s choice to meet the need: eg an agency that is not bound to do so, but is willing – such as a CCG willing to make a health contribution to the council in recognition of needs at night being objectively health-related, or its funded input representing health-related deterioration prevention, or something like that;
  • Or, alternatively, the clear, capacitated choice, and most usually, the choice of a willing and able informal carer, or someone who wishes to contribute funding to meet the need, such as a charity, the ILF (when it existed) or the person themselves, or their finance deputy if they lack capacity. Anyone can of course, choose, still, to spend their own money or benefits on meeting their own needs, and may well appreciate that they or their loved one will get a whole lot more choice and control, if they do so;
  • The fact that the person is not ordinarily resident in the area;
  • The fact that the person has needs for a placement in a residential or nursing home and is above the financial threshold and not also lacking in mental capacity to contract for themselves (or if capacity is lacking, that person has nobody lawfully authorised and / or willing to arrange the necessary care for that person, in their own or anyone else’s contractual name).
  • The fact that the person in question, having heard what they might be able to be provided with, says ‘Thanks, but er, no thanks’.

That legal analysis is derived from the fact that s13 of the Act says this must be done, after an eligibility decision is taken: 

(1) Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2) Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

(3) Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority’s area.

This has been the law since 1995, when the 1990 legislation was first interpreted in the Gloucestershire case to turn on the council sector’s judgment as to

  • what sort of situation necessitated (under the CSDPA 1970) or ‘called for’ (under the 1990 Act) any council to meet needs determined to be eligible;
  • what constituted a rational and lawful approach to the concept of eligibility
  • what constituted a lawful approach to allowing resources difficulties to move the line (when councils could themselves MOVE that line, locally),
  • how MUCH of a service to provide to meet needs – a decision that must be based on a competent lawful judgement in the first place, not driven by a departmental limited budget.

This sort of writing was available then to anyone with the internet: (I know because I wrote it!)

“In Gloucestershire, ‘unmet need’ finally received judicial attention.  It need no longer be a matter for anxiety, for fear that acknowledging a need creates absolute liability to provide for it, such that unmet need is necessarily unlawful.  Unmet “human” need may now be openly acknowledged to arise, in fact, but it will now be unlawful in only one situation.  Unmet need outside the eligibility criteria will exist lawfully within what is contemplated by statute.  It is only if a need has been acknowledged, as such, and the authority has also acknowledged that it must intervene to provide something, but then run out of money, or otherwise failed to meet need appropriately, that the need will be ‘unmet’ in both human and in legal terms, and also unlawful. 

If this clarification encourages recording of actual unmet need, then the planning process will eventually benefit. The whole idea of recording unmet human need is to encourage service responsiveness and strategic planning for the future.”

It’s true that a lot of effort is made these days by councils to avoid even identifying that need may not really be thought of as met by what is being offered, and even more so, where the need has been deemed to be eligible. Here are some examples of how they try to get away with that:

  • Councils don’t assess needs, or eligibility, in terms of services into which the client will then be squished, just because they’ve been bought by the council in advance, any longer (in theory, at least but try telling that to a commissioner of respite or reablement services that are going spare!): the Guidance tells them not to, but this makes it even easier to be vague about the amount of any particular service that is actually regarded as needed to meet the need;
  • Councils don’t specify inputs as much as they used to in care plans, because sector leaders and think-tanks have told them that outcomes-based specification is much better for ‘flexibility’ and person-centredness. It’s true, but it also enables fudging by providers and commissioners, and reduction of one-to-one hours and other expensive elements of a package without the outcome of ‘a happy safe client’ actually being noticeably lacking – if they’re photographed on a good day, for the review!
  • Councils don’t like to record any view as to how many HOURS of need, their weekly rate is actually supposed to cover, for live-in care clients, Shared Lives clients, or for an individual in supported living or under a block contract arrangement.
  • Councils don’t evidence their reasons for setting the rate for DP clients to employ their PAs at (the law says it must be sufficient to reflect the local market and half of Europe has gone home, so it can only be going up, logically?). The guidance says it must reflect appropriate quality provision as well!
  • Councils allow providers to put unregulated workers onto tasks that have been subtly re-worded so as to avoid even counting as ‘personal care’ tasks for regulated workers only (eg by changing ‘prompting together with supervision’ in a contract or a plan, to prompting … and prompting and er, just prompting….) so even if the company is still CQC registered, many of its staff are not regulated and so are cheaper to employ.

The legal truth is that anyone who knows what they’re doing with the law can FORCE a council to acknowledge unmet eligible need. When one factors in the CP v NE Lincs case it’s even easier. That case assured all informal unpaid carers that they can actually expect the bit that they are going to carry on doing, to be recorded in the s25 Care Plan, so that the personal budget being offered, inclusive of their charging contribution, can actually be seen to cover all the rest of whatever has been identified as eligible! Or more often these days, NOT to cover the rest, rationally and feasibly adequately!

“…The duty is a clear one derived from section 26 of CA 2014 and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which … would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected.” 

Councils have been trying out prioritisation for years, out of desperation or sheer ignorant collusion with an ideology of austerity, regardless of the rule of law, and leaving it unclear as to when a priority is so low that it won’t ever be met. Here’s an example from Community Care’s back catalogue in this vein:

            “The terms of reference for Derby council’s resource panel revealed a prioritisation system is in place “to target available resources at those in the greatest need”. The system has three categories, with the lowest priority being people in the community who require a “personal budget to develop their independence, confidence and community inclusion”. The document states that the available budget will be “allocated according to these priorities” and where the budget is not available, “some requests may be held in date order and reviewed on a regular basis to consider the risks” in delaying the start of support.”

The lawyer’s comment on that at the time was this:

“It is not unlawful to use a prioritisation approach, however the wording of the policy suggests that in cases where the budget is not available, eligible needs are potentially being left unmet.”

To be clear: waiting lists within reason and when lawfully ordered, are not ever going to be easy to prove to be unlawful in public law terms – even where there is a duty to meet need – because there is also a reasonable time allowed for discharging any legal duty. So the context, the urgency and the impact of leaving the need unmet for even a short while are all necessarily relevant considerations for professional judgement, and these really pressing cases are resolved as soon as one sends a letter to the Monitoring Officer in councils where senior management has preserved any notion of ethics. It has never been legal to downgrade a duty to a discretion by treating financial difficulties as an excuse for not discharging the duty, say, unless or simply until it suits the authority better. This was established in 1997 in the Sefton case, and in the South Lanarkshire case in Scotland in 2002, where the duty to place people in residential care was emphasised to be a duty, regardless of available resources.

So it is all there, for those who want to fight back.

A third factor in complaints being low, though, is this. Faced with a county-wide ‘blanket’ cut to service levels or funds, or a ‘Take It or Leave It’ approach to indicative budgets – one would need to get over all the natural tendencies that vulnerable and dependent people invariably struggle with – eg fear of loss of current funding, or hostilities, given the power balance is hugely uneven; suspicion or even paranoia and absolute certainty that it will only go badly for them if they raise their heads above the parapet to challenge what has been done; even resigned stoicism if they read the newspapers and see it’s happening everywhere, but don’t actually know that a council is not allowed to use its budget position as a reason for not discharging the statutory duty, and that there is a LINE, under which a council cannot go, just because it is hard up!

The identification of that line, we do absolutely grant Mr Feldon, is a matter for the courts, not the ombudsman, who concentrates on poor process rather than the sufficiency or unreasonableness of the outcome – but when the process is set out in statute and regulations, and councils ignore the law, or the outcome is so choke-worthy as to suggest that no rational decision- maker could have arrived at it, if they understood how the interpretation and governance of law works, the LGSCO really has no option but to castigate authorities for maladministration – or what is now called ‘fault’. Those thinking of going to that organisation, should take heart from the statistics, and not delay.

Those natural tendencies – all deterrents to saying to a social worker’s manager, in writing: ‘Do you really mean that? That’s what’s supposed to meet my needs, then, is it?’ led us to set up CASCAIDr. Someone has to point out that all this is wrong: not just a little bit wrong, but the very antithesis of social work professionalism and values. Those values should not be able to be destroyed by austerity; they should have been able to survive councils being squeezed by central governments – of any political persuasion. In fact the profession has allowed the value of the social care safety net to be diluted by ignoring the legal truth that care planning MUST be individuated and needs-led and turn upon professional judgment, not managerial edict. If sector leaders had pointed that out to government, the Care Act might not have been passed into law in its current form, but it was, thankfully.

However, instead of delivering on its promise, its open-textured references to discretion and sufficiency and transparency have been exploited to the maximum; the discomfiture should be that some Adults Services Directors and Monitoring Officers have been very well paid for participating in that systemic dilution, whilst their employing councils still owe statutory duties to the public, of which their elected Members may be blissfully unaware.  

Our conclusion is that whilst one can lead horses to water (make legal literacy more accessible) one cannot make them drink (ie use law to enforce their rights) if the poor horse is afraid of the gate (ie of the social worker, care manager or Panel) or can’t see what’s over the other side (concerns about conflict, victimisation, etc), or is worried about whether a shoe will come off (withdrawal of the current offering) or has a rider (advocates? brokers? family member?) who just doesn’t know how to get the best out of the track (the Care Act ‘customer journey’) or the horse itself (the service user’s own views and comments).

Belinda Schwehr

CASCAIDr

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A short note on the SEND Tribunal: the ‘single route of redress’ national trial

This post is by Yo Dunn, who runs ConsultYo, a legal framework consultancy and training business, specialising in autism issues – www.consultyo.com

From 3 April 2018 for two years a national trial is taking place which empowers the First-tier Tribunal Special Educational Needs and Disability (SENDIST) to make non-binding recommendations about health and social care aspects of Education, Health and Care (EHC) plans. The new powers are contained in the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.

The powers are only able to be exercised where a parent or young person is appealing some aspect of the EHC plan decision-making relating to special education to the tribunal[1]. This means that, like EHC plans themselves, this option is not available as a mechanism to challenge health or social care decision making in relation to a child or young person who has only health and/or social care needs and does not also have special educational needs. Further, the tribunal power relates only to aspects of health or social care needs or provision which are “related” to the child’s special educational needs, plus any social care provision which is being made under s.2 Chronically Sick and Disabled Persons Act.

Despite the non-binding nature of any recommendations themselves, there are elements of compulsion on health and social care responsible bodies.

During the tribunal process, responsible commissioning bodies can be compelled (under the Tribunal Procedure rules) to respond to requests by the Tribunal for information or evidence and to send a witness to a hearing if required by the Tribunal.

These procedural powers are potentially useful to complainants who may be struggling to obtain relevant information or documents from a health or social care commissioning body.

Perhaps even more usefully, the regulations require responsible commissioning bodies to respond in writing to any non-binding recommendations the Tribunal makes, giving reasons. Again, this is potentially useful to complainants who may be struggling to obtain a clear decision-making rationale which can then be challenged via Judicial Review based on the lawfulness of the decision making.

The power for the tribunal to make non-binding recommendations applies to recommending that particular health or social care needs are specified in the EHC plan, and/or that amendments be made to the provision specified for those needs. Note that the tribunal is not empowered to recommend amendments to the outcomes specified in the EHC plan (a limitation which also applies to the education content). This may be highly relevant where the outcomes are expressed in a manner which is vague, aspirational or loose, because appropriateness of any proposed provision will be related to the outcomes it is intended to achieve.

If, despite the non-binding nature of the recommendations, a plan was to be actually amended in response to a Tribunal recommendation, a crucial consideration is whether anyone can be held to account for whether the provision is actually made. Section 42 Children & Families Act 2014 creates clear statutory duties on: the local authority to “secure” the educational provision specified in an EHCP (s.42(2)) and the responsible commissioning body to “arrange” the healthcare provision specified in an EHCP (s.42(3)). However, there is no analogous duty regarding social care provision. Consequently, the tribunal recommendation power adds little or nothing to the enforceability of social care provision, even once it is specified in an EHCP.

The existence of this new power is likely to lead to questions as to whether an appeal to Tribunal has been pursued as a first resort approach to resolution and, if not, why not. This question will inevitably arise when approaching the Ombudsman and/or at the permission stage of a Judicial Review. In some cases, the answer may be that health or social care recommendations could not be pursued in front of the tribunal because there were no educational issues in dispute or that any education dispute had been resolved whilst the health or social care dispute remained. In other cases, it may be appropriate to point to the non-binding nature of the recommendations together with evidence, if any, of the local authority’s willingness or otherwise to modify the EHCP in response to recommendations (such as those from relevant professionals). Finally, in case where the content or wording of outcomes are disputed, the lack of tribunal power to recommend changes to outcomes may be relevant to whether an appeal to tribunal is a viable alternative for dispute resolution.


[1] This is because the qualifying criterion for issuing an EHCP is that it is necessary for Special Educational Provision to be made for the child or young person, see s.36(3) Children and Families Act 2014

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Podcast

CASCAIDr’s story in podcast form

In 2017, our voluntary CEO broke her leg – and whilst laid up, pondered a central conundrum in adult social care:

  • How does one make it viable to get good legal framework advice out to a person, at a formative moment, if he or she is struggling with the council about legal rights to care funding?
  • If the person is applying for public funding for care, he or she probably hasn’t got enough money to PAY for specialist public law legal advice.
  • Decent legal advice is always going to cost money because of the expertise required to have learned it, and applied it.
  • If advisers couldn’t earn money from the expertise, they’d have no incentive to acquire the knowledge!
  • But if the person with the legal problem, has sufficiently little to qualify for legal aid, they would then have to FIND a legal aid lawyer with a community care certificate, and enough capacity to take their case on….in less than 3 months of the action or omission causing the problem…
  • …Which is no mean feat, if one is on one’s knees with disability or illness or mental ill-health in the first place, and if one doesn’t know whether one has got a legal problem or just a complaint….
  • And if the person’s got just a bit too much money to qualify for legal aid, and fears the loss of services for rocking the boat, then they’ll probably just do nothing…and teeter into an even worse situation.

So she thought and thought, and she researched crowd-funding for public interest litigation.

She discovered that charities can crowd-fund for people’s litigation causes.

She discovered that charities can engage contractors, rather than employers, just like any other business – and pay them, if the charity has the money to do so.

She discovered that charities can even charge for services that are central to their charitable objects, without losing a claim to be acting for public benefit, as long as the charges are low enough.

And she discovered that they can own trading companies in order to trade in services that are not central to their objects, but designed to support the financial resources for the charity itself.

 

 

So, having had her A-ha! moment, she then applied for charitable status for the corporate vehicles that make up CASCAIDr and CASCAIDr Trading Ltd.

She spent her own money on legal advice to contend with the Charity Commission’s many and varied difficulties in grasping what the charity was setting out to do, and how it might work, and why it wasn’t politically motivated.

Its aim was to uphold the existing legal framework, not change the law. That is, to help people access their existing legal rights under the Care Act – a statute passed as recently in 2014, by this government, through a sovereign Parliament made up of democratically elected MPs who presumably knew what they were doing when committing the state’s tax base to funding what the Act says should happen in every single case….

Whilst exercising the minds of the Charity Commission, she managed to find a group of interesting and skilled trustees to support the charity’s operation. She created a structure whereby she has no control over the Charity as a board member, and earns no money for running it. She simply earns a case work fee which is the same as any other case worker can earn, and she has ceased to provide consultancy in her own private capacity, in order to avoid conflict of interest.

CASCAIDr now has trustees, case workers, volunteers, and ambassadors promoting CASCAIDr for free; it has writers and case note creators, reflective practice mentors, IT and social media and SEO support – and a growing number of case referrals and positive outcomes to point to. It has a business plan, a remote book-keeper, bankers, accountants, insurers, a raft of policies, ICO registration, GDPR compliance, and software renewal dates, coming out of the woodwork.

But CASCAIDr is still solvent, because we don’t have to spend all our time applying for grants from benefactors that aren’t sustainable.

We are completely independent, unlike many charities these days, who have become service providers to public bodies, delivering services at fees that enable the council to make the very same cuts that central government requires, in the name of austerity.

Our CEO’s leg has mended and although she is exhausted, she reports that the impact of doing battle for people as ‘better than HRT’.

You can listen to podcasts about the experience of giving birth to this baby, here:

1 Why a charity?
2 And why it took so long
3 How do you think you’ll be able to keep it going?
4 How do you feel now?
5 What is the difference between the free scope work and the chargeable work please?
6 What sort of support have you had so far?
7 Is it right for a charity to spend money on legal proceedings
8 How can ordinary people, and user groups, or parent carer groups get involved?
9 And what about providers?
10  Are you out to get the statutory sector or to support their doing it right?
11 is there a danger of doing too well here? Breaking the system, by enabling people to shout louder?

 

 

 

 

Why are we telling you this?

The point is that anyone can do this too, if the essence of your offer is advice and information and advocacy.

There is no charitable object listed in the Charities Act of ‘giving legal advice’ away, however cheaply you might be prepared to do this and however obviously the normal beneficiaries of charities are going to find your advice, useful.

And you cannot be politically motivated, although most charities’ aims touch on politics in the broadest sense.

But you CAN copy this model above, by using the charitable object of ‘the sound administration of the law’. It’s not specifically listed, and charity solicitors, being lawyers, ought to know about it. But it does exist, by analogy, having been established under the old law before the Charities Act was passed.

And there’s a case on it  which made all the difference to our application in the end – called HDT.

If you think about it, many registered charities’ core purpose is to give advice about people’s legal rights against governmental bodies, without it being seen as engaging in political activity. It’s often called advocacy, but the thrust is always the same – upholding welfare or human rights related law.

  • Housing charities in relation to local authorities’ statutory homelessness decisions, such as SHELTER are an example. Shelter’s charitable objects are the relief of hardship, poverty and distress of those in need, in adverse housing conditions, and the education of the public concerning homelessness and to make available the useful results of research to the public, and its activities specifically include advocacy, advice and information.
  • The Prisoners’ Advice Service and the Howard League for Penal Reform are charitable organisations one of whose main focuses is inevitably advice about rights where the defendant or respondent is a governmental body, the Prison Service;
  • Asylum Justice is another – its objects are legal advice and representation to asylum seekers, necessarily challenging governmental body decisions;
  • Citizens’ Advice Bureaux are advising every day, in relation to public sector child care decisions;
  • and many of the advice charities that advise in relation to social security decisions made by the DWP, such as the FRU, provide legal representation; others are RAISE or
  • The Public Law Project – a charity now, for a very long time. The clue is in the name, we feel!

In the HDT case, the Tribunal – overturning a decision of the Charity Commission about political purposes, held as follows:

We find that “promoting the sound administration of the law” was recognised as a description of a “fourth head” charitable purpose under the “old law” i.e. prior to 1 April 2008 (see s. 3 (4) of the Act) so that it now falls within s. 3 (1) (m) (i) of the Act.

There is no legal authority to support the view that the conduct of strategic litigation before a competent constitutional court is a proper means of advancing the sound administration of the law, but equally we have not been referred to any authority which suggests that it is not an acceptable means of advancing such a charitable purpose.

We take the view that the conduct of the very particular form of litigation supported and engaged in by HDT is an acceptable means of advancing the charitable purpose of promoting the sound administration of the law.

We consider that the public benefit requirement and the question of whether there is any risk to foreign policy from such a purpose falls to be addressed in relation to s. 4 of the Act and that we should be careful not to merge it into our consideration of the definition of a description of a charitable purpose, as the Charity Commission’s submissions seem to suggest that we should.

In any event we find…that the particular type of constitutional litigation supported and conducted by HDT is fundamentally different in nature from the activities found to be objectionable as political in McGovern v AG.

 

So please get out there and do the same thing, if you believe in what you’re doing.

If you build it, they will come!

Our aims, offering and DONATE page – the organisation’s profile and aims, and how to make donations online.

 

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NORMAL?

There’s very little attention shone on the effects on families of dealing with learning and/or physically disabled people. This is probably going to start off seeming selfish, but if you’ll bear with me I hope you’ll realise that it comes from precisely the opposite sentiment.

My personal viewpoint is one of a sibling – my adult sister was born disabled. As a result of decades of support and the good work put in by many people, she is now capable of some independence and eagerly contributes to society – within her limits and with careful oversight. She genuinely wants to live as full a life as she can. She doesn’t want to be a passenger.

Here comes the selfish bit. I’ve had to alter my life choices as my relatives have aged and died, since I could no more throw my sister out of a car into a remote country ditch than cut off my own arm. Nor would my parents have ever done that. Later in life, my mother confided in me that she used to feel like telling me “just run, get away from this”. She didn’t and she knew I wouldn’t have done it anyway. It was just expressed in the spirit of honesty between us.

I understand completely those who can’t cope and walk away, and I make no judgement whatsoever. I also have great sympathy for those who don’t have the resources and patience to navigate the complexities of the care system. If you dread filling out a tax return (and who doesn’t), try this stuff sometime… And I completely sympathise with those who simply don’t want to make waves for fear of prejudicing the care of their loved ones.

Siblings of disabled people, in my experience, are psychologically shaped by often damagingly early parentalisation. You are, to some degree, a parent from the age of about four, and it’s formative on your personality in many ways – some of them positive. But there’s all the sense of guilt, responsibility and burden that goes with being a parent. And pride in achievements, of course. You grow up with that, from the first moment your child brain is capable of comprehending that someone else is really just the same as you. We’re all just experiencing the world from the confines of our flesh cages.

But for a roll of the dice, it could have been you. As you grow up, the notion that this is the way things are and it’s nobody’s fault takes quite some emotional effort to handle. At some point, it’s inevitable that you’ll come into contact with others who have the same sort of difficulties as your family member, and you just can’t help but feel empathy for them. It becomes more than a personal issue and that’s where the selfishness resolves into something else. You get involved.

Interesting that so many people working in care giving have family members who require it. It’s not because they’re trying to get into the system, it’s just awareness. Also interesting that parents and guardians tend to get together informally and offer support to each other.

But remember – behind every disabled person is a partially disabled family, and everyone is trying to do their best. That is of course, if there is a family.

Families are always complex – your “normal” brother may be thick or your “normal” sister may be lazy, but this is a level beyond that. However thick or lazy they may be, they don’t need assistance just to function. Disabled people, in my experience, don’t want to have to need help, but must somehow reconcile themselves in their own way to the fact that they do. And those around them have to find a way of giving them that help in the right way. For instance, someone in a wheelchair is just someone like you, only sitting down. That’s all.

I don’t wish to politicise this specifically – it’s very complex. Nor do I wish for a “here state, catch” approach. No begging for handouts, this isn’t what this is about. And I’m not complaining, I’m explaining. My thinking is purely practical (it comes with the territory).

The care of learning and physically disabled people involves a great many governmental and charity organisations.

So if any of this has chimed with you, whether personally or otherwise, I’d ask a few things of you when you may have the time. Get involved in the debate and share your experiences and concerns. Lobby your council and MP so that policy and care provision on the ground can be properly addressed. Donate a few bob to CASCAIDr, which has helped our family, when you can. Or just take a couple of minutes out of your day with someone, when you can.

We are all of us on a complex sliding scale – with a totally arbitrary definition of “normal” – somewhere on the line. We all have our strengths and weaknesses, and we all need help sometimes. And of course, inside our own heads, we’re all “normal”, aren’t we?

A.N.Brother

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Conclusions about Hospital Discharge

CASCAIDr thinks that recent initiatives have not done enough to locate the governance of hospital discharge decisions about safe discharge into straightforward material about negligence and serious incident and duty of candour provisions, or underpinned the inter-relationship between health and social care legal duties owed to the client.

What CASCAIDr derives from all this thought is that if a person or their relatives is challenging either

  • the suitability of a proposed placement in a care home in the first place,
  • or a particular care home even though it is accepted that the person needs to have access to 24 hour supervision from people who know what they’re doing,
  • the adequacy of the budget offered for that care home, and the consequent size of the top-up that is being asked for
  • or the adequacy of a budget for meeting needs at home, even though the relatives all agree that it is in the person’s best interests to GO home

then the NHS must not refuse to withdraw a discharge notice, at least not without first asking the council what it thinks of that position.

If the council thinks that the patient does not have a leg to stand on, in relation to the allegation, then the NHS needs to stand firm, in the interests of all other patients; the council is re-asserting the legitimacy of its position, there, and the patient cannot occupy an NHS hospital bed for no good reason.

A useful way of exploring whether there’s a weak case, or an arguable one or a strong one, which can be used by anyone in this position, is to write a letter to the Monitoring Officer of the council, requiring the Monitoring Officer to make a decision under his/her own statutory duties, as to the allegation that care planning that is unlawful in some specifically identified way is taking place.

That duty on the part of the Monitoring Officer cannot be deferred or denied; it’s there in the legal framework as a high level means to prevent unlawful conduct, and to ensure due process and good governance.

The duty of co-operation as between the NHS and the Council sector requires the MO to give a view, we would suggest, especially when fines for delayed transfers of care are in fact dependent upon whether the council has or has not discharged its own functions by putting in arrangements for what it has proposed.

If the Discharge co-ordinator is given at least a coherent evidence base regarding fitness for discharge, or the safety of the proposed discharge with regard to the patient or family’s concerns, and the Monitoring Officer has either not disagreed, or not disagreed with any coherent reasons based on the facts and law, to the contrary, it is our view that the NHS is not then entitled to leave the discharge notice that has been served, in place.

Our reasoning is simple: to go ahead with the discharge, then, would either be

  • consigning the client to a discharge to a place where the person was to be DoLS’d despite not having their capacity to make an informed decision, maximised –  which is involvement in placing a person in a state of unlawful deprivation of liberty – or
  • consigning the patient to discharge to a care home where they or their relatives are being required to pay a top up that is more than a lawful top up, due to the arbitrariness of the asserted standard rate for care home care in the area, or the patient’s chosen setting, out of area
  • consigning the patient to a discharge to their own home, or the home of their relative, with a package that does not meet the person’s assessed eligible needs, on the grounds of so-called choice. And that amounts to involvement in a potential negligence action when harm ensues, sooner or later, in these circumstances.

 

Legal literacy can help discharge co-ordinators who should be jointly funded, do the following thing:

  • Actually do the job of lawful smooth discharge co-ordination without foreseeable risk of physical harm through inappropriate premature discharge
  • Manage people’s rights to consideration of CHC through checklisting
  • Sign off nhs funded rehab and intermediate care packages, and community health services as a trusted assessor where locally agreed criteria are met
  • Sign off interim discharge to assess commissioning as a trusted assessor for the CCG, where the person needs to leave hospital quickly for optimising stabilisation or avoiding risk in hospital re muscular breakdown or infection
  • Sign off council funded reablement packages for those who are ready to leave but not yet ready to go home without any service but people who might realistically feasibly be able to be helped, regarding recovery of independence
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Theme no. 5: Legal requirements regarding a ‘practicable’ home care offer, and cost-capping culture among councils and CCGs

Councils will often agree with a hospital that people with needs for a placement or services involving any kind of double handling, or a need for more than 3 visits a day, ought to be checklisted by the nursing staff.

That is to ensure that people who might qualify for CHC, get a DST, and although we don’t approve of those rough and ready triggers, they are better at least than ones that just focus on condition, diagnosis, or necessary next setting being a registered setting.

When those people get negatively checklisted, so that the council knows that care will be down to them, and not the NHS, the same approach is often used with the patient for care planning purposes (and any family) as a guide to the likely setting that the council would regard as meeting the person’s needs.

This is done on the footing (logical to management but not necessarily to social workers) that the cost of a care home is the minimum the council would have to provide. The thinking goes on from there that if the person or the family says ‘No, thank you’, then because it would have been lawful to meet needs via the care home route, the most that the person can be entitled to, at home, if that is what they prefer, is that same cost, or that same cost with an extra percentage on top of it, to show that independence is still being promoted.

This is called cost capping, and the assumption that everyone can be appropriately cared for in a care home, is called warehousing, in the media.

Both are unlawful, we would venture to suggest;

  • warehousing because it is a fetter on professional opinion and a negation of personalisation and the duty to promote wellbeing, before care planning even starts
    • there is someone in every single geographical council area, of whom no professional would ever say ‘a care home can adequately meet your needs’ or a person of whom it would be agreed NEEDED to be in their own home, not merely wanted it.
    • If that is the case, then it is not even relevant to consider the cost of the care home setting, for any budget sign off purpose, is it?; if it isn’t suitable in the first place, the notion of adequacy and suitability is the irreducible minimum that an offer to meet needs, must comprise.
    • That is why it has always been understood in legal terms that the maximum figure in the council’s RAS is not a cap, but merely the product of a mathematical calculation based on pounds and points, derived in the first place from the council’s preferred maximum spend on meeting all its adult social care provision duties.
  • and cost-capping because if a council itself changes its mind and ignores someone’s refusal to accept the offered care home, and reconsiders its offer and then agrees to meet the person’s needs at home, with either services or a direct payment, the needs present differently in that setting, and still must be met, appropriately and sufficiently.
  • with cost capping too, there is the added complication that where the person in question lacks capacity,
    • the council cannot implement a decision to move the person into a care home, without doing best interests consultation of the relatives.
    • Moreover, nobody likely to object to being ‘parked’ in a care home can be DoLS’d without being assessed to lack capacity in that specific regard; case law already establishes that the obligation to maximise capacity makes it a legal requirement that the council makes it explicitly clear what it would offer in the person’s own home, were the person to refuse the offer of the care home place.
    • The case law (KK) says that that offer must be a practicable offer. Whilst that neatly begs the question whether that means it must be a lawful offer that sufficiently meets need, CASCAIDr is of the opinion that that offer must not be an unlawful offer in the first place, in terms of rationality, sufficiency, and due regard to human rights issues and promotion of wellbeing.
  • Holman J’s recent decision in the Re X case where the brain injured man himself begged to be cost-capped, so that he could arrange his own care in his own home, rather than have his social care needs met in a hospital, on grounds of the non-availability of any willing care home provider and the non-affordability of any other package in his own home, led the council concerned, ultimately, to decline to accept the suggestion.
  • It can be inferred from a reading of that case (which ended up with the man being found to be entitled to CHC!) that that was because
    • it would not be appropriate to leave the unmet need unmet, with an inadequate direct payment paid over to the man to spend on himself – and
    • any right-thinking public body would expect to be sued in negligence if it commissioned cost-capped services itself, without any evidence basis that the limited service, referencing the lower cost of another setting entirely, would feasibly meet the needs in the person’s own home, if harm was then sustained, either to the client or to others.

 

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Theme no. 4: Choice rights, top-ups and arbitrarily low council/CCG rates for placements

 

Hospital trusts have ‘choice’ policies which purport to allow for choices, but the real choice rights are rights in law, to be placed by a council, if one is having council made care home arrangements, in the home of one’s preference, subject to suitability, availability, the home’s being willing to contract on reasonable terms and on price.

And this is where the sector is sitting on a powderkeg in terms of legal risk, in CASCAIDr’s view.

It is one thing to say the price (and therefore your personal budget) is £x – and above £x you will have to pay a top up – when sufficient local care home providers – in terms of the number of placements a council expects to have to make in a year – have signed up to provide standard care and accommodation for £x.  That’s the rational evidence basis for the position taken by the council towards the clients it has to place, and before it can charge them anything under the charging regulations.

It is quite another thing to say £x is the price, when any more than about 30% of care home providers have only been willing to work with the council, on the footing that they can also charge a top up for what are supposed to be ‘wants’ – and not needs (‘wants’ that are not severable from the placement itself. Extras that are personal, are extras, and no business of the council’s at all, but things like ambience, culture, views, the quality of the food, care and furniture, are preferences, and can be treated as a top-up).

If more than about 30% of homes are charging top ups, it would be evidence to suggest that the majority of homes are aiming to offer luxury top end package, in terms of the setting and the services: and the whole sector knows that that is just not true.

  • The LGO’s findings in various cases looking at top ups show that homes are not suitable or vacant when the asserted rate is being imposed in the context of getting a person out of hospital, quickly;
  • CQC ratings show this to be untrue; lots of homes will be getting INADEQUATES
  • Public sector staff’s own knowledge of what goes on in care home, through safeguarding and constant involvement with clients going in and coming out of care homes – and even visitors’ perceptions

all add up to the conclusion that relatives of council-placed clients are subsidising the obligation to pay for decent adequate appropriate means of meeting a need.

And that’s before one factors in the conclusion of the Competition and Markets Authority that fully privately contracting clients are subsidising fee rates for all NHS and council placed clients, because that is what enables the home’s manager to go lower and lower, in negotiations,  and bow to the dominance of the commissioner’s market position.

People facing hospital discharge pressure on themselves or their families should ask two questions:

  1. How many homes in your area have actually signed up to placements at the asserted rate with a top-up on top?  Councils will know, or ought to know – because they will have tendered in the first place for a framework agreement AND because they have to include the amount of the top up in the specific documentation for the individual placement. If they do not know, that is a factor of severe embarrassment in any event.
  2. How many of those homes do your social care staff adjudge to be suitable and have availability, before the staff invite the families to go off and do the rounds to help sort out a preference?

It is totally clear law that if there is no placement suitable on the day when discharge needs to be effected, then the additional fee for finding a suitable room elsewhere is not able to be treated as a top up. The council needs to pay the whole fee at that point. End of.

Transferring via more than one move is not ideal, but a person does not have the right to stay in the NHS bed just because their choice is not available. All that is required is a suitable placement, but that decision as to suitability cannot just be asserted because there’s another cheap home OPEN, with a vacant room.

The parts of the regulations that we have focused on here indicate that it would not be right for the NHS to discharge someone to a placement that it did not believe to be suitable, because it would be obliged to withdraw the assessment and/or the discharge notice, if that were its state of mind.

So if relatives are getting nowhere with the relevant council, in setting out

  • Why the setting offered is unsuitable
  • Why the home is unsuitable
  • Why the budget offered is not sufficient for standard care in a care home
  • Why the budget does not meet the person’s needs in the setting in which the council has decided to support the person

….then the next best thing the relatives can do is to lay this information at the foot of the discharge co-ordinator and point out that unless they are satisfied that the person’s concerns are not valid, or might not be valid, they need to withdraw the discharge notice.

 

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Theme no. 3: Checklisting for CHC – this doesn’t seem to be mentioned in the Care Act’s hospital discharge schedule, and so is it on its way out?

Material taken from the National Framework on checklisting

  1. CCGs should ensure that local protocols are developed between themselves, other NHS bodies, LAs and other relevant partners.

 

These should set out each organisation’s role and how responsibilities are to be exercised in relation to delayed discharge and NHS continuing healthcare, including responsibilities with regard to the decision-making on eligibility.

 

There should be processes in place to identify those individuals for whom it is appropriate to use the Checklist and, where the Checklist indicates that they may have needs that would make them eligible for NHS continuing healthcare, for full assessment of eligibility to then take place.

 

  1. Assessment of eligibility for NHS continuing healthcare can take place in either hospital or non-hospital settings. It should always be borne in mind that assessment of eligibility that takes place in an acute hospital may not always reflect an individual’s capacity to maximise their potential.

 

This could be because, with appropriate support, that individual has the potential to recover further in the near future. It could also be because it is difficult to make an accurate assessment of an individual’s needs while they are in an acute services environment.

 

Anyone who carries out an assessment of eligibility for NHS continuing healthcare should always consider whether there is further potential for rehabilitation and for independence to be regained, and how the outcome of any treatment or medication may affect ongoing needs.

 

  1. In order to address this issue and ensure that unnecessary stays on acute wards are avoided, there should be consideration of whether the provision of further NHS-funded services is appropriate.

This might include therapy and/or rehabilitation, if that could make a difference to the potential of the individual in the following few months.

 

It might also include intermediate care or an interim package of support in an individual’s own home or in a care home.

 

In such situations, assessment of eligibility for NHS continuing healthcare should usually be deferred until an accurate assessment of future needs can be made.

 

The interim services (or appropriate alternative interim services if needs change) should continue in place until the determination of eligibility for NHS continuing healthcare has taken place. There must be no gap in the provision of appropriate support to meet the individual’s needs.

 

  1. Where NHS-funded care, other than on an acute ward, is the next appropriate step after hospital treatment, this does not trigger the responsibilities under the Community Care (Delayed Discharges etc.) Act 2003.

 

Material from the national framework on the Checklist

 

  1. The first step in the process for most people will be a screening process, using the NHS continuing healthcare Checklist – unless it is deemed appropriate for the Fast Track Pathway Tool to be used at this stage (see paragraphs 97 – 107) or for other NHS-funded services to be provided (see paragraph 65).

 

In an acute hospital setting, the Checklist should not be completed until the individual’s needs on discharge are clear. The purpose of the Checklist is to encourage proportionate assessments, so that resources are directed towards those people who are most likely to be eligible for NHS continuing healthcare, and to ensure that a rationale is provided for all decisions regarding eligibility.

 

  1. Standing Rules Regulations make it clear that if the CCG is to use any screening tool, that tool must be the NHS Continuing Healthcare Checklist. They may, if they wish, directly move to a full MDT assessment for an individual without using a Checklist. However, a CCG cannot use a different tool or method for screening for NHS continuing healthcare.

 

  1. [Standing Rules Regulations] require a CCG to take reasonable steps to ensure that individuals are assessed for NHS continuing healthcare in all cases where it appears that there may be a need for such care.

 

  1. Where the Checklist has been used as part of the process of discharge from an acute hospital, and has indicated a need for full assessment of eligibility (or where a Checklist is not used, a full assessment of eligibility would otherwise take place), a decision may be made at this stage first to provide other services and then to carry out a full assessment of eligibility at a later stage. This should be recorded.

 

The relevant CCG should ensure that full assessment of eligibility is carried out once it is possible to make a reasonable judgement about the individual’s ongoing needs. This full consideration should be completed in the most appropriate setting – whether another NHS institution, the individual’s home or some other care setting. In the interim, the relevant CCG retains responsibility for funding appropriate care.

 

  1. Whatever the outcome of the Checklist – whether or not a referral for a full assessment for NHS continuing healthcare eligibility is considered necessary – the decision (including the reasons why the decision was reached) should be communicated clearly and in writing to the individual and (where appropriate) their representative, as soon as is reasonably practicable.

 

Where the outcome is not to proceed to full assessment of eligibility, the written decision should also contain details of the individual’s right to ask the CCG to reconsider the decision.

 

The CCG should give such requests due consideration, taking account of all the information available, including additional information from the individual or carer.

 

A clear and written response should be given to the individual and (where appropriate) their representative, as soon as is reasonably practicable.

 

The response should also give details of the individual’s rights under the NHS complaints procedure as enshrined in the NHS Constitution.

 

  1. The time that elapses between the Checklist (or, where no Checklist is used, other notification of potential eligibility) being received by the CCG and the funding decision being made should, in most cases, not exceed 28 days.

 

In acute services, it may be appropriate for the process to take significantly less than 28 days if an individual is otherwise ready for discharge.

 

The CCG can help manage this process by ensuring that potential NHS continuing healthcare eligibility is actively considered as a central part of the discharge planning process, and also by considering whether it would be appropriate to provide interim or other NHS-funded services, as set out in paragraph 65 above.

 

Practice Guidance note 13.6

Social care practitioners should work jointly with NHS staff throughout the NHS continuing healthcare eligibility process, and should be involved as part of the MDT wherever practicable.

 

Therefore, where the LA receives a referral for involvement in the MDT process for NHS continuing healthcare they should respond positively and promptly.

 

The LA should usually be represented on the MDT completing the NHS continuing healthcare eligibility process.

 

This means that, in most cases, the key assessment information needed for LA support is already available if the delayed discharge process is triggered subsequently.

 

Therefore, where a person is found to be ineligible for NHS continuing healthcare and delayed discharge notices are then issued, the LA should be in a position to respond and action their responsibilities within a short timeframe.

 

PG 13.8 In summary, CCGs should have appropriate processes and pathways in place to ensure that, where an individual may have a need for support after hospital discharge, one of the following scenarios will apply:

 

  1. a) prior to completing a Checklist in hospital a decision is made to provide interim NHS funded services to support the individual after discharge (in which case the delayed discharge provisions would not be triggered). In such a case, before the interim NHS funded services come to an end, consideration of NHS continuing healthcare eligibility should take place through use of the Checklist and, where appropriate, the full MDT process using the DST;

 

[No checklist and no DTOC notices because need for more NHS services of some kind is clear – NHS pays for and arranges those for the short or longer term and CHC is decided at the end of those services having any potential for improvement]

 

  1. b) a Checklist is completed which indicates the person may have a need for NHS continuing healthcare and interim NHS-funded services are put in place to support the individual after discharge until a full MDT NHS continuing healthcare assessment is completed (in which case the delayed discharge provisions would not be triggered);

 

[a positive Checklist but discharge effected because it’s better for the patient – NHS pays until CHC assessment is done]

 

or

 

  1. c) a Checklist is completed which indicates the person may have a need for NHS continuing healthcare and a full MDT NHS continuing healthcare assessment takes place before discharge. If this results in eligibility for NHS continuing healthcare then the delayed discharge procedures do not apply as the NHS continues to have responsibility for the individual’s care;

 

[a positive Checklist followed by a CHC decision before discharge, assuming a proper MDT]

 

or

 

  1. d) a Checklist is completed which indicates the person may have a need for NHS continuing healthcare and a full MDT NHS continuing healthcare assessment takes place before discharge. If this does not result in eligibility for NHS continuing healthcare then the appropriate delayed discharge notices should be issued;

 

[a positive checklist followed by a DST resulting in no recommendation for CHC status: an assessment notice can be served or need not be withdrawn and a discharge notice can follow on, unless (CASCAIDr says) the patient or family says the council is acting illegally]

 

or

 

  1. e) a Checklist is completed before discharge which does not indicate the person may have a need for NHS continuing healthcare in which case the appropriate delayed discharges notices should be issued.

 

[a negative Checklist and (CASCAIDr says) no challenge to the legitimacy of thecouncil’s actions on legal grounds even if they proposals are not welcome].

 

If a local area does not use the Checklist either generally or in individual cases then a full MDT NHS continuing healthcare assessment should take place before delayed discharge notices are issued.

 

[…because no assessment notice can be served without a decision as to CHC]

 

14.1 Intermediate care is aimed at people who would otherwise face unnecessarily prolonged hospital stays or inappropriate admission to acute or longer-term in-patient care or longterm residential care. It should form part of a pathway of support.

 

For example, intermediate care may be appropriately used where a person has received other residential rehabilitation support following a hospital admission and, although having improved, continues to need support for a period prior to returning to their own home.

 

It should also be used where a person is at risk of entering a care home and requires their needs to be assessed in a non-acute setting with rehabilitation support provided where needed. This is irrespective of current or potential future funding streams, but is clearly important in the context of consideration for NHS continuing healthcare.

 

  • CCGs should have regard to the most recent guidance in relation to Intermediate Care.

 

14.3 Individuals should not be transferred directly to long-term residential care from an acute hospital ward unless there are exceptional circumstances. Such circumstances might include:

 

  1. a) those who have already completed a period of specialist rehabilitation, such as in a stroke unit
  2. b) those who have had previous failed attempts at being supported at home (with or without intermediate care support)
  3. c) those for whom the professional judgement is that a period in residential intermediate care followed by another move is likely to be unduly distressing.

14.4 The guidance referred to above sets out what intermediate care should look like as well as how to commission it, with an emphasis on partnership working. CCGs should seek to ensure that this pathway is followed prior to any long-term placement apart from exceptional circumstances.

 

 

Proposals for reform of the CHC system

The CHC Alliance published a report in November 2016 highlighting a number of issues, including with the CHC assessment process. Additionally, in July this year the National Audit Office (NAO) published an investigation into CHC.

Key facts and figures

Continuing Healthcare – 2016/17

  • Almost 160,000 people received or were assessed as eligible for CHC
  • Almost 77,000 referrals for a full CHC eligibility assessment process
  • Around 88,000 Fast Track Pathway Referrals received
  • Around 25% of individuals assessed for standard CHC were found eligible
  • Approximately £3.2 billion spent on CHC
  • 609 Independent Reviews took place, 122 of which resulted in an eligibility recommendation for at least some period of care

Funded Nursing Care – 2016/17

  • Approximately 132,000 people received or assessed as eligible for FNC
  • Approximately £625 million spent on FNC

Summary of Issues: in general, inconsistent experiences and variation, including…

  • High number of assessments and screenings being conducted that do not lead to eligibility for CHC – In 2016/17 77,000 people were assessed for CHC. Of those assessed, around 25% were eligible. It may be possible that some of these assessments were unnecessary, even if we account for people who receive NHS funded nursing care. Our analysis has shown a number of factors could be influencing this, such as the location in which screening and assessment is carried out.
  • The level at which the Checklist threshold is set – When the Checklist was designed the threshold was deliberately set low to ensure individuals who may be eligible for CHC receive a full assessment. A staff survey data collected by a group of Commissioning Support Units (CSUs) for DH and NHS England and analysis of this data showed that 86% of respondents thought the Checklist threshold was too low, resulting in full assessments that were unnecessary and patients’ expectations being raised.
  • The impact of the location in which individuals are screened for CHC – That same data shows that 80% of respondents thought that the setting of the screening has an impact on the outcome. At that point, around half of CHC screenings, and a third of assessments, were being carried out in an acute setting at a time when patients may not have benefited from a period of recovery. Delays in hospital discharge can lead to a high risk of deconditioning – for patients over 80 years old, every ten days spent in hospital is equivalent to 10 years of muscle ageing – which is entirely preventable.
  • Disparity in approaches to training across the country – Around 87% of staff reported having done e-learning or face-to-face training, Data shows that staff think training is not well co-ordinated by the CCGs, which in some local systems may to lack of practitioner confidence. This has also been referenced in the CHC Alliance report.
  • Issues with the “challenges to individual decisions” process – There is evidence of variation at CCG level in terms of the local dispute resolution process, a lack of clarity around process, and distress being caused to individuals and their families or carers as a result. These are also highlighted in the NAO report.
  • A lack of clarity around the three and twelve month review purpose and processes – There is evidence of variation in the review processes and inconsistency, also highlighted in the NAO report and CHC Alliance report.

 

As we understand it the position from the DH, is that they have decided not to put the proposals out to public consultation. Instead, DH are going through a short stakeholder engagement process. DH will only accept submissions from stakeholders (for example a CCG or organisation in the CHC stakeholder group), and only one response per stakeholder.

200 expressions of interest were received via Beacon, from which they selected 25 people to attend an event and constitute a group.

Even though CASCAIDr’s Belinda Schwehr was not selected to attend the focus group, Beacon asked for feedback on the powerpoint so that it could inform Beacon’s final response to the Department of Health.

We have no idea whether the powerpoint may or may not be shared, but we think that aspects of it should be shared in the public interest, so that people can lobby their MPs as to why there is no public engagement.

The formal stakeholders were only given a couple of weeks to respond with a deadline of 31 October. Permission was given from DH to share the slides with the formal stakeholders and a short extension was given.

In 2006 when the National Framework was first worked on, it took CASCAIDr’s Belinda Schwehr three whole working days to critique the last consultation on CHC and the current document is no easier.

Is this not a bit like information prior to the Referendum on reminaing in the EU, CASCAIDr would have to ask?

The DH’s proposals for reform of CHC guidance (of course there is no suggestion that the law or the line would move, on the process for getting to the decision making….) said this

  • Should CHC checklists always be done in a community setting (this would allow for stabilisation and management of hospital beds, but would depart from the fundamental perspective that the next liability should not be determined without a decision about CHC – no problem if interim discharge to assess beds are free, of course)
  • Should CHC DSTs occur ONLY in a community setting?
  • What should the considerations for who gets checklisted in the first place, be?
  • Should the rules on review be changed?
  • Should the rules for training be changed?
  • Should the rules for roles within the NF be changed?
  • How should the rules for local resolution be changed to get rid of the immense variations that occur?
  • Whether there should be a 6 year rolling limitation period for restitution of retrospective claims?
  • What people think of additional fees arrangements (top ups) for CHC care?Proposals for clarifying the meaning of Primary Health Need?
  • Whether the domain wording should be clarified
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Theme no. 2: Options for integration of health and social work inputs, in the context of hospital discharge

‘Discharge to Assess’ policy and practice differs around the country but is all part of a determined push towards integration of health and social care thinking tasks, to ensure people get out of hospital beds as soon as possible.

https://www.nhs.uk/NHSEngland/keogh-review/Documents/quick-guides/Quick-Guide-discharge-to-access.pdf

The benefits of a fully mature, integrated system that has the right capacity in the right place are outlined below:

  • People’s health outcomes improve as more people will be able to live at home for longer if services are designed for discharge to home to be the default.
  • People’s length of stay in a hospital bed decreases due to longer-term assessments taking place in a more appropriate situation and place. Evidence suggests this should reduce deconditioning and improve outcomes significantly since 10 days in hospital (acute or community) leads to the equivalent of 10 years ageing in the muscles of people over 80 .
  • Encourages NHS and Adult Social Care leaders to work together for the best outcomes and experiences for people through joint approaches to discharge to assess. This may include joint commissioning or funding.
  • Improves system flow by enabling patients to access urgent care at the time they need it.
  • Reduces duplication and unnecessary time spent by people in the wrong place.
  • Enhances working relationships between the health, social care and housing sectors and increases development opportunities for their staff.
  • Sharing responsibility, risks and skills across partners leads to innovative and creative solutions that deliver safe, effective care and support.

The practicalities

Many local health systems have introduced ‘trusted assessment’ or ‘generic assessment’ where one person/team appointed to undertake health and social care assessments on behalf of multiple teams, using agreed criteria and protocols.

  • Sheffield Teaching Hospitals and Sheffield Hallam University have developed a 2 day generic assessor course.
  • South Warwickshire’s trusted assessment form has enabled direct referral to reablement without the hospital social work team’s involvement.
  • East and North Hertfordshire Care Home Vanguard is piloting a trusted assessor model and has developed the Complex Care Premium which is paid to the care home, for residents who have ‘complex needs’.

The following exhortations are taken from the PCA’s report in 2016 into unsafe hospital discharge:

Best practice guidance has been consistent over the past decade in stating that ‘discharge is a process and not an isolated event at the end of the patient’s stay’. The key steps and principles identified to enable appropriate discharge include:

  • Starting discharge and transfer planning before or on admission to hospital, to anticipate problems, to put appropriate support in place and agree an expected discharge date.
  • Involving patients and carers in all stages of the planning, providing good information and helping them to make care planning decisions and choices.
  • Effective team working within and between health and social care services to manage all aspects of the discharge process, including assessments for social care, continuing health care and, where necessary, assessments of mental capacity.
  • Community-based health and social care practitioners should maintain contact with the person after they are discharged, and make sure the person knows how to contact them when they need to.

 

Guidelines published by the National Institute for Health and Care Excellence in December 2015, on transition from inpatient hospital settings for adults with social care needs, also recommend that a single health or social care professional should be made responsible for co-ordinating a person’s discharge .

The discharge co-ordinator should be the central point of contact for other health and social care professionals, the person and their family during discharge.

But here at CASCAIDr we think that some limited sort of social services skill with regard to social care needs is desirable for informing the Checklist. We are not saying that a discharge co-ordinator cannot supply that skill but that she or he will need a broader competency basis than just nursing and writing up what is needed to meet unmet clinical needs.

The domains on the checklist include domains from the DST that have been transparently suppressed in terms of scoring so that they can never lead to eligibility on their own: they are the tradition social care needs domains and yet the systems now coming to the fore allow for no social work consideration of those domains.

Whilst social workers may not understand what makes someone’s breathing or states of consciousness problematic, or why a pressure sore isn’t healing, they can see the facts as well as anyone else; and the same must go for discharge co-ordinators, regarding the traditional social care domains

But do discharge co-ordinators get trained in social work values or know much about what the MCA says must be the response to cognitive impairment before anyone lays hands on the patient and moves them out of the hospital?

Top tips from the D2A quick guide:

  • Use a trusted assessor model – this is about responsible staff understanding the dual legal frameworks that operate here, in our view.
  • The cultural and behavioural challenges associated with new ways of working, can be overcome through the weekly multi-agency and multidisciplinary ‘Big Room’ meetings, which are seen as an open place in which people are supported to contribute and share – this is about stopping hierarchical turf wars and ‘we know better than you lot do’ cultures undermining progress or becoming further entrenched, to our mind.
  • Do not underestimate the significant engagement and communications which need to take place to enable systematic changes. (ditto!)
  • Explore using existing staff structures and re-align teams (again, only if trained in the legal framework)

CASCAIDr’s view of what law can contribute:

Integration can be enhanced by polite appropriate use of the s6 and s7 reciprocal duties of co-operation under the Care Act. Health bodies (the CCG and the Hospital Trust) are relevant partners, and must have a good reason for not doing what is asked of them, but that’s true for social services as well.

Fines for the council not doing its job in a timely way are no longer a mandatory piece of the jigsaw, but that hasn’t translated into any more clarity about whose job is whose, and why the NHS may be letting patients down too.

If discharge co-ordinators were skilled and legally literate in Care Act functions, they could discharge both health and social care thinking tasks in one go.

The same goes for any CCG’s roving band of nurse assessors – legal literacy entitles either organisation to delegate its statutory functions or tasks under Guidance to the other agency, to save time and human resources.

If social work staff stepped up to checklisting on the basis of a social care quick look and a nursing needs assessment identifying any needs for registered nurse nursing at one’s next stage, the nurses could be freed up for what they excel at, which is meeting clinical needs, and not doing paperwork.

Where hospitals and local authorities are already operating joint discharge teams, which are often co-located in the same office with access to a shared database, an update to the database may be all that is required to get good workflow going…

While reimbursement is a potential way of exposing local difficulties in the relationship between the NHS body and the local authority, NHS bodies should not use reimbursement as the first approach to address any local difficulties around delayed transfers of care.

Please see our overview of the legal provisions for why we think that not enough focus is placed in the training for hospital discharge on the legal framework. It’s an attachment to this post, here: Summary of the law relating to hospital discharge notices

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Theme no. 1: Fitness for hospital discharge and ‘clinical optimisation’ – who is accountable for these decisions?

Nobody is supposed to be discharged from the care of the NHS in an acute hospital until they are medically fit. That’s a professional evaluation, based on clinical consensus after monitoring after any operation, or adjustment in medication as to whether a person is at the point at which care and assessment can safely be continued in a non-acute setting. [clinically optimised/medically fit for discharge/medically optimised : NHS England (2015)).

But ‘fit for discharge’ doesn’t, in fact, just mean in physical terms, if you look further into what law requires… the law of negligence, and the PUBLIC LAW rules that are now set out in the Care Act, and which BIND and GOVERN hospital administrators and CCGs, in a legal sense.

A safe discharge that is not likely to cause foreseeable harm to a person, assuming a clinical decision has been taken about their condition, or state of recovery, has to look to the consequences of the discharge, and therefore, to what is waiting for the person and how necessary ongoing input on account of the cause of the visit to hospital will be delivered. That is all still down to the NHS – or could be said to be, by a canny enough Personal Injury lawyer.

Ongoing NHS inputs

The duty of care in negligence, does not end, just because a person doesn’t need to be in the acute hospital any longer.

The NHS may well have ongoing services that ‘should’ be offered to the person, that will contribute to safe discharge: rehabilitation, intermediate care, visits from the community nursing team or a specialist nurse for eg stoma care.

The new Discharge to Assess model (D2A) mentions this, whilst blurring the boundaries of who ‘should’ pay for it, within the auspices of Better Care agreements etc.

It doesn’t matter who pays, as long as the person doesn’t have to pay, one might well say, if one had a pooled budget or a Better Care project to reduce hospital waiting lists…

To our mind the law is that nobody should be discharged from hospital without someone from the NHS satisfying themselves that any ongoing inputs that are needed aren’t beyond the remit of what social care can feasibly be expected to provide.

  • The National Franework and D2A guidance refer to recuperation and rehabilitation services and intermediate care from the NHS.
  • Just because someone has had a negative Checklist, for CHC services, does not mean that they are not owed ongoing NHS services.
  • A Health Needs assessment may have acknowledged that the person has needs for a registered nurse service, and one might have to be arranged in the community if a care home is not where the person needs to go.
  • What is known to exist and be available from the current community health service menu is not the determinant of what should exist, having been commissioned by the CCG.
  • A joint package might need to be put in place before discharge could be SAFE.

It’s only after that thinking has been done, that a person can be safely discharged, lawfully.

Necessary NHS inputs by dint of nobody else having the power to provide for them

There are also some services that may be needed which the NHS ‘ought’ to provide, in legal terms, simply because no other agency is responsible for them – by dint of their nature or level of skill required for proper safe delivery.

There is scope in the Care Act for regulations that could contain a list of those, but the DH has never put its views down in anything so concrete. Suctioning a trachy tube has been said by a judge, however, not to be capable of being social care, which perhaps explains why there have been so few cases about that question ever allowed to get to court.

Ongoing social care inputs

Most ongoing input, though, will be regarded as a matter for social care or self help, if one is not eligible for social care. So a clear grasp of the rules is required, by anyone considering what to say to a person in a hospital bed.

  • Nobody is ineligible for care in their own home, if they meet the eligibility criteria on the fact, even if they are wealthy.
  • Everyone is entitled to an assessment, and everyone is entitled to have the necessary care and support at home, if going home is what is decided to be practicable – arranged through social services, even if they are then later charged full cost for the services.
  • This right to assessment includes people whose needs point towards a care home, by dint of the level or continuity of the care needed, even if they have more than the capital/savings amount (ignoring the value of the patient’s share of the house if the patient is one of a couple, and ignoring the value of their share for the first 12 weeks if they are not already in a care home, if living alone).
  • The outcome of the assessment does not necessarily lead to a local authority duty to meet the needs, but if a well off person lacks capacity to contract, and there’s nobody else willing to make arrangements, they are still entitled to a placement, courtesy of social services, even if rich, and will merely be charged full cost (from day 1 or from when the 12 week disregard ends).

We still look to the National Framework on CHC for its approach to genuine MDT involvement in CHC thinking – from checklisting, through the DST stage, and involvement in the ratification arrangements. Modern systems seem to be excluding social workers altogether from that process, however, in terms of the pressure to get the decision making done FAST, and the National Framework is just not consistent with that.

To our mind at least, here at CASCAIDr, nobody should be discharged without at least a light assessment for social care services under the Care Act, unless they refuse to be assessed, with sufficient capacity to understand what they are giving up, having been told about it by a person or a leaflet

A person who clearly needs to go to a care home, and has some appearance of need for CHC, should be positively checklisted.

The discharge of no patient should be effected without social service input if there is any doubt about their capacity to contract for services.

If they have no appearance of need for CHC services after a checklist, that process having been based on locally agreed criteria in the first place – and no appearance of lack of capacity, they should be offered an assessment with the advice that they may not qualify for any funding subsidy given their means may be above threshold. They may then choose not to bother.

Questions to be thinking about:

We do not think that discharge arrangements cater for that kind of thinking at the moment.

We do not know how a local authority can regard it as possible to co-operate on hospital discharge without having a social work team available in the general hospital.

We do not know how hospital discharge co-ordinators can run a smooth lawful system without understanding how social care duties (and rights to choice of accommodation of certain types)  WORKS, in legal terms.

And we do not know how CHC obligations are lawfully discharged without an agreement as to who should even be Checklisted in the first place.

  • It can’t be just ‘needs a care home’ – because one can qualify for CHC in any setting
  • It can’t be ‘needs more than 3 (or 4) visits a day’ – because councils can’t just treat the cost of a care home as a cap on what level of home care still counts as social care, as opposed to health care.
  • It can’t be ‘needs double handling’ for the same reason – it’s too rough and ready an approach to checklisting.
  • It certainly can’t be ‘because they or their relatives look rich’! CHC is wealth-blind, it’s part of the NHS’s duty to allocate that status where it must, in accordance with the National Framework.

The finalised proposals when they emerge from the DH will require really careful consideration, we feel.

 

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