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© Belinda Schwehr, 2011 1 Putting People First –v- Cuts – avoiding judicial review Belinda Schwehr Care and Health Law 01252 725890

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Presentation on theme: "© Belinda Schwehr, 2011 1 Putting People First –v- Cuts – avoiding judicial review Belinda Schwehr Care and Health Law 01252 725890"— Presentation transcript:

1 © Belinda Schwehr, 2011 1 Putting People First –v- Cuts – avoiding judicial review Belinda Schwehr Care and Health Law 01252 725890 belinda@careandhealthlaw.com

2 Today’s Session Today’s session is all about avoiding judicial reviews Assessment, eligibility and RAS mistakes Support planning and finalisation of resource allocation mistakes and General mistakes that councils can easily make, when doing personalised care assessment or support planning: - ignoring government guidance – especially re FACS, ordinary residence, commissioning and Choice

3 The resource allocation system Para 129. The aim of the RAS should be to provide a transparent system for the allocation of resources, linking money to outcomes while taking account of the different levels of support people need to achieve their goals. It allows people to know how much money they have available to spend so that they can make choices and direct the way their support is provided. Para 130. Calculating what resources should be made available to individuals should not detract from a council’s duty to determine eligibility following assessment and to meet eligible needs. Rather a RAS should be applied as a means of giving an approximate indication of what it may reasonably cost to meet a person’s particular needs according to their individual circumstances. It is important for councils to ensure that their resource allocation process is sufficiently flexible to allow for someone’s individual circumstances to be taken into account when determining the amount of resources he or she is allocated in a personal budget.

4 Commentary on this concept Authorities have either got top-down RASs or bottom up ones – ie based on how much budget they have got available to spend, or based on how much they need to spend, by reference to current costs. Neither one is good enough without a moderating mechanism for individuals’ particular circumstances. If you have a top-down one, and you change the budget figure, to accommodate the savings you are required to make, and the program changes the allocation of pounds per point, you will not have a rational defensible starting point for giving an indication as to the reasonable cost of meeting the existing needs. You will be letting budget drive the response to approach. In one sense this doesn’t matter, if you are careful about your moderation, but it’s a crap basis for managing your budget. Logically, starting with the current costs of meeting needs, deciding whether you are going to raise your FACS threshold, or take money out of provision for care homes, for instance, to pay for more preventative or rehabilitative work in the community, is a better way of doing it. But putting in a blanket percentage savings at the bottom end, without knowing whether the market will accommodate you, creates the same problem as the top down method – it’s not based on the reality of your commissioning arrangements. Unless the market is prepared to do the same for less money, you will need to be seen to commission less heavy duty packages. To do that, you need to re-assess clients as needing less generous packages, and the case law shows that you can lawfully do that. But you’d have to budget for the re-assessment and contingent challenges arising out of it. © Belinda Schwehr, 2011 4

5 Relevance of the client’s own funds Para 77. From the beginning of the process, councils should make individuals aware that their individual financial circumstances will determine whether or not they have to pay towards the cost of the support provided to them. However, an individual's financial circumstances should have no bearing on the decision to carry out a community care assessment providing the qualifying requirements of section 47(1) of the NHS and Community Care Act 1990 are met. Neither should the individual’s finances affect the level or detail of the assessment process.

6 Relevance of the client’s own money to eligibility: Para 71. This means that once a person has been identified as having an eligible need, councils should take steps to ensure that those needs are met, regardless of the person’s ability to contribute to the cost of these services. An assessment of the person’s ability to pay for services should therefore only take place after they have been assessed as having eligible needs. A person's ability to pay should only be used as a reason for not providing services in circumstances where a person has been assessed as needing residential accommodation, the person has the means to pay for it and if the person, or someone close to them, is capable of making the arrangements themselves. © Belinda Schwehr, 20116

7 What about voluntarily disclosed assets? That is not to say that a user's own voluntarily disclosed resources, which s/he is willing to put towards meeting their own needs, cannot be taken into account in reducing the overall amount of assessed 'need' down to a level which must necessarily be met. Thus it could be lawful to say to users that their options in terms of environment and autonomy can be increased if they are willing to put their own resources towards purchasing care privately, or providing it through willing carers. This means that the better off get more choice, which may be unpalatable to some authorities, but it is surely an inevitable fact of life…This is what in effect happened with ILF money, where it still exists. In Hambidge No 2, the service user was spending some of her own money on privately contracted services. When the local authority charges went up by over 200% the user challenged the increase and the authority said she could always ask for a re-assessment, implying that then a reduced package would cost her less. The judge emphasised that a re-assessment could not lawfully evaluate her needs to be any lower than the authority genuinely thought existed. © Belinda Schwehr, 2011 7

8 Environmentally available things It is trite assessment law that one looks at the person’s situation holistically, but then deducts from the concept of unmet need, whatever they have got available to them, that is freely offered, or otherwise arranged for. Met need is the most obvious form of need that does not necessitate council arrangements. So a carer, access to a informal support from friends, etc, all work so as to reduce unmet need. What about the fact that in Extra Care, and in Supported Living, the only reason the person can be left in the community, and coping, is the existence of the core services provided by the housing provider or by the council, via contract with a provider? The clients will be paying for those services either by way of service charges, to the housing provider, or by way of a Fairer Charging Charge, if the core service is seen as a social service for a group of people. In general, they can’t say no to the services unless they are willing to move out – and that would be a bizarre way of preserving people’s independence! I don’t think that the money should be in their Resource Allocation; the money is pre- spent, and should have been deducted from the global RA fund in the first place before it was divided up amongst clients. What happens when those things get cut or the private charges get too much for them to pay and the private services are cut? The person deserves re-assessment. © Belinda Schwehr, 2011 8

9 What about the bottom slice of support in Extra care or supported living? If a person has moved to Extra Care, understanding that there will be support there, they will not see that support as part of their assessed eligible need for MORE support. The need that is met by THAT support is part of the tenant’s community care or housing related needs but that doesn’t mean that it is eligible. It’s what is above the FACS threshold that’s eligible for resource allocation. If a council is funding the bottom slice of support through a contract, and changes that contract specification, it will need to re-assess people’s needs, because the environment in which the tenants live will be changing. If a housing association is funding that bottom slice through service charges, then the client has a contractual right to those services, subject to any provision for variation in their tenancy or long lease. If that changes, then they may have to apply for re-assessment by the council, as once again, their environment will be changing. The money put into the bottom slice is not part of the resource allocation framework for what it costs to meet the person’s needs. The bottom slice is just general social services spending on services for particular sectors of the community. © Belinda Schwehr, 2011 9

10 Available but undesirable things… What about things that could be accessed by the person that aren’t being accessed as yet – can these be taken into account? Such that a person’s refusal to take up the opportunity could be regarded as relevant to the decision whether the person’s situation necessitates intervention by the council by way of arrangements? You can see the attraction of this argument, I am sure. What if the person has a reason that they think justifies not taking up the help, but which the council does not see in the same way? Unmet need will exist – but whilst the person cannot be made to accept the help but the council cannot be obliged to meet it, so long as they have listened conscientiously to the client’s position on the type or source of help, and have abided by the person’s human rights. Could a refusal to take up benefits? Money is not a community care need. Having the benefits would merely enable one to buy one’s own services – and that’s never going to be the be all and end all of determining need. A person’s means are not legally relevant to need, as we have seen. The courts will never agree that a person must, in order to benefit from a statutory duty, claim off of the state, in my view. What about a refusal to use a free re-ablement service? © Belinda Schwehr, 2011 10

11 The most obvious systemic legal pitfalls to avoid The Council denies access to ‘self-directed assessment’ to any individual or client group, as if it had a choice in the matter. All the client need do is establish a right to assessment and ask for a direct payment, and they have to be treated within the law. The Council rations assessment so that it takes much longer to start, after the first contact is made, and naturally a lot longer to finish. Nothing is supplied or funded in the meantime. The Council ignores eligibility altogether, and simply expects support planning to work out within the allocated resource based on a self- or supported- assessment questionnaire, against a foggy background of desired outcomes and a cost ceiling. The questionnaire does not enable people to see how their asserted needs are being scored. The questionnaire leaves out areas or domains which are clearly associated with community care services described explicitly in the legislation, like transport to services, or facilitating recreation.

12 More of same….more systemic pitfalls The Council ignores local authority/public law about what sort of a person has to make which sort of decisions, regarding the care package and funding – giving the job to a local charity or re-ablement organisation, for instance. The Council raises expectations too high, and then seems to be working according to wholly different rules about what sort of services it ever “provides” to anyone – and thus will fund, such as announcing ‘we don’t do night-sitting’ or ‘we don’t do cleaning’… ‘and therefore you can’t have any money for it….’ The Council’s resource allocation scheme applies an automatic discount for the mere fact that the client lives with another person. The Council’s Resource Allocation is described as ‘indicative’ but people are merely told to complain, if they are not happy with the amount. © Belinda Schwehr, 2011 12

13 Critical needs/risks to independence – if no social services are provided Critical – it’s whenever – if nothing is done about it – the person’s situation means that … life is, or will be, threatened; and/or significant health problems have developed or will develop; and/or there is, or will be, little or no choice and control over vital aspects of the immediate environment; and/or serious abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out vital personal care or domestic routines; and/or vital involvement in work, education or learning cannot or will not be sustained; and/or vital social support systems and relationships cannot or will not be sustained; and/or vital family and other social roles and responsibilities cannot or will not be undertaken. © Belinda Schwehr, 2011

14 Substantial needs/risk to independence Substantial – it’s when – if nothing is done about it – the situation means that there is, or will be, only partial choice and control over the immediate environment; and/or abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out the majority of personal care or domestic routines; and/or involvement in many aspects of work, education or learning cannot or will not be sustained; and/or the majority of social support systems and relationships cannot or will not be sustained; and/or the majority of family and other social roles and responsibilities cannot or will not be undertaken. © Belinda Schwehr, 2011

15 Running out of money – the FACS guidance says ‘Tough’! 124. Councils should plan with regards to outcomes, rather than specific services. They should consider the cost-effectiveness of support options on the merits of each case and may take their resources into account when deciding how best to achieve someone’s agreed outcomes. However, this does not mean that councils can take decisions on the basis of resources alone. Once a council has decided it is necessary to meet the eligible needs of an individual, it is under a duty to provide sufficient support to meet those needs. Councils should provide support promptly once they have agreed to do so, but where waiting is unavoidable, they should ensure that alternative support is in place to meet eligible needs.

16 Raising the FACS threshold locally – Chavda v Harrow LBC The courts have considered the nature of public authorities’ equality duties, in particular the meaning of the term “have due regard to…”. Councils should note the case of Chavda v Harrow LBC [2007] EWHC 3064 (Admin) in which the council’s decision to restrict adult care services to people with critical needs was challenged for want of proper consultation. A summary of an equality impact assessment simply stating that implementing the proposal ‘could result in potential conflict with the Disability Discrimination Act 1995’ had been submitted to the council in preparation for its decision. The court found that this was insufficient to enable the council to comply with the duties in the 1995 Act and that the decision was therefore unlawful. There was no evidence that the legal duty and its implications had been brought to the attention of the decision-makers, who should have been informed not just that the decision raised implications for equality, but of the particular obligations imposed by the law in relation to those issues.

17 © Belinda Schwehr, 201117 An individual’s ‘assessment’ covers three main things, if it is to be legal: An assessment is not ‘done’ (in the sense of done properly and finished, discharging the council’s full duty) until someone’s needs (for community care services) have been a) identified and classified, (this is the question whether a need is a need for housing or health, or something quite separate, like welfare benefits advice, or actually a mere want, or a need for a community care service). b) put through eligibility criteria, resulting in a decision as to which needs are eligible, and then (this is the question, if it is a need as opposed to a want, is it a need that is so intense that it necessitates intervention by the council?) c) care planned for, so that any eligible unmet needs are met appropriately (ie reduced down to the local FACS threshold) (we look at legal pitfalls on care planning, next week…) …in each case, all this has to be done by the local authority or a lawfully authorised delegate (eg under Partnership arrangements with Health). Finalised assessment decisions cannot (yet) be fully delegated through contract to outsiders, such as re-ablement providers or independent social workers. Hence the need to make sure an in-house person is actually signing off the decision on eligibility.

18 © Belinda Schwehr, 201118 Care planning duties The authority is obliged to meet the assessed eligible needs, appropriately, suitably, reasonably etc. – concepts such as dignity can make a difference here, if there is a legal challenge. Care planning must be done lawfully in line with Choice regulations and guidance, and Health & Safety requirements, and any other general UK legal obligations, such as sex and race discrimination rules. …and in line with human rights, with regard to dignity, as part of respect for a person’s private and family life, freedom from unlawful deprivation of liberty and from inhuman or degrading treatment. If the need can be met in more than one way, ‘appropriately’, the authority can offer the cheaper method, because it’s public money. Refusal of what’s offered, by a capacitated person, means that that person is saying ‘Thanks but no thanks’, and that is sufficient, to let the council off the hook…. Refusal by an incapacitated person’s carer could be seen as either a legitimate legal challenge, or as a safeguarding matter, depending on their particular stance.

19 Some basic principles Councils should never ever say ‘We always/never pay for / or allow …’ unless they are sure of their facts – being wrong makes them look badly disorganised. But in any event, having a rigid policy that has become a rule, over time, can amount to fettering their discretion, which is illegal. Instead it is lawful for them to say ‘In general’, ‘normally’, ‘usually’ etc. They should trust strong managers to make clean, principled exceptions for social work value-based reasons, and not just give in to people who shout loudly. But in real life, they often settle claims that are not very strong, to avoid risking having to pay the costs. This inevitably saps morale. They could decide that it was appropriate to make flat rates of leisure or respite funding to everyone over their eligibility threshold, and then give staff or panel members a discretion to make individuated decisions on top, to show flexibility. But anything that would make a judge’s eyebrows go over the back of his head, like ‘one toileting visit a week is enough’, in terms of a claim to meeting need appropriately, probably indicates there’s a potential judicial review in the offing. © Belinda Schwehr, 2011 19

20 Support planning errors Taking a blanket approach to support planning for a particular group on re-assessment: “We will bring everyone out of area back to their home county, regardless of their local roots and relationships established over many years.” Taking the view that the person’s friends and relatives must provide accommodation or care – regardless of whether they are willing or able, this is not the case for an over 18 year old – it may be an unmet need. © Belinda Schwehr, 2011 20

21 The most obvious systemic legal pitfalls to avoid with regard to support planning The Council sticks to its ‘indicative’ Resource Allocation regardless of the contentions or evidence of the client about why it isn’t possibly going to be enough for him or her as an individual in the real live local market. Suggesting a person complains is just not good enough. Giving the job of support planning decision-making about content, or funding, to a local charity or re-ablement organisation – this ignores local authority law about what sort of a person has to make which sort of decisions, regarding the care package and funding. It has to be done in- house, at the moment, or by the NHS under a formal partnership-based delegation of the social care decision making functions. Yet some councils announced last year that they were going to contract out the whole of their social work functions… Raising expectations of purchasing freedom too high, and then having to disappoint, by utilising a panel, which then rejects support plans, simply on cost grounds. Or deciding on a review to reclaim mis-spent monies, without being clear about what the amount was supposed to cover, and what it was not – at the outset. Scope, and risk transfer regarding contingencies, need to be transparently negotiated!

22 What would not be appropriate Support planning that broke some other law – “You can choose from these two homes in the area, as they are the cheapest available. That’s your Choice Rights”. – “You will be provided with this food, even though it is against your religious and cultural sensibilities; – “We will only pay for the care home to feed you via a PEG tube, even though you are capacitated to decide whether or not to take food by mouth after having considered the advice of your doctor. Other homes would charge too much because of the risk of your choking.” – “We will bandage your daughter’s hands rather than pay for more stimulation to stop her biting them, because it is the cheapest possible way of keeping her safe”. Support planning that ignored mental incapacity (ie “We will put you in this tenancy even though you can’t understand it, and don’t have a deputy, and it saves us money.”) Support planning that was only resources-led – ie in Bromley’s case some years ago they said no to a great but high-cost placement found by the client’s mother, before finding any other options with which to compare it. © Belinda Schwehr, 2011 22

23 Appropriateness – the crucial concept Councils have massive discretion over what it is appropriate to do to meet need, so long as they abide by any relevant legal rules, have competent professional consensus and an evidence basis behind their conclusions, and pay proper attention, in terms of decision- making, to human rights, and fair process, and the giving of reasons to service users and families. Affordability and cost-effectiveness between two legitimate options, and councils’ other duties of equity to all potential clients, in terms of quality or standard, are legally relevant to appropriateness. So, yes, what they were happy to fund 2 years ago, may no longer be what they can afford to regard as appropriate, now, and they can pass the pain on to clients, within reason. Social care service users are just like the rest of us, in this regard, not in a better position. So on ‘soft’ things like leisure, and holidays, which add to a person’s quality of life but which are not essential to most people’s dignified survival, councils have both an obligation and a power to come off the fence and say, even though they find someone eligible for help, just how much of a service they think is appropriate, in terms of society’s views as to what’s tolerable. If they are giving roughly the same as other councils, it is unlikely to strike a judge as unreasonable. Respite and transport services are not quite so soft, to my mind, because respite levels go to a carer’s willingness and ability to carry on meeting needs; and transport to services that themselves have been acknowledged as a must, would seem to be an irrational thing to cut. © Belinda Schwehr, 2011 23

24 Are the council’s inevitable resources difficulties relevant to what’s appropriate in the first place? If the authority agrees that the need can only be met in one way, appropriately, then the cost of any other inappropriate way is completely irrelevant – because it would not be lawful in the first place to use that other method. Local authorities cannot therefore assume that everyone ‘can’ have their needs met for the cost of a residential care place. For some at least, albeit only the exceptional few, it would never be appropriate, in terms of professional judgment. A lack of resources (money in the social services coffers) is legally irrelevant to the doing of the duty to meet eligible need appropriately, once it has been assessed. It is a corporate (a council’s, not just social services) absolute duty until the person has been legally re-assessed and either found ineligible or the support plan legally altered. But not even I can say that there’s a case or a law that says it’s completely irrelevant as to how one meets need appropriately. © Belinda Schwehr, 2011 24

25 More on the relevance of resources A lack of resources - in terms of non-existence of any appropriate service to buy - is not something that law can change, but the law says that something must be done or arranged in the interim, ie the next best thing, even if it costs more than was expected for the level of need concerned, in the short term. But in times of economic hardship, judges will be bound to be sympathetic to the contention that less than perfect ways of doing things, are at least not inappropriate, such that it will probably be seen to be lawful to offer the not so perfect means of meeting need, even though no-one thinks it’s that wonderful. That is the harsh truth for clients, deriving from the fact that all this money is public money – tax payers’ money, ultimately. © Belinda Schwehr, 2011 25

26 Offering a person what the council could have got away with, first time round It is not only people who NEED residential care who can be offered it. A council can offer it to someone if it is cheaper than keeping that at home, so long as each could be appropriate. The test of eligibility for a care home placement of in need of care and attention not otherwise available effectively means not otherwise available for the same cost. Despite a rejected offer of care in a particular setting, imagine a council tries to offer the client the ‘choice’ of staying in one setting – say at home, at the rate at which it could have funded the person safely, and lawfully, in the previously offered setting – say the care home - where the risks and unmet need facing the person would have been different to, and lower than, the levels in their own home. If the duty is going to be properly discharged, it must be fully discharged with reference to the needs in a particular setting, albeit there is discretion about appropriateness. There is no right to treat whatever the client agrees to, as automatically appropriate. Secondly, the client might not understand why the risks at home are greater than the money offered will actually cover; so the only scope for another offer after a refusal is if one is sure that the person is capacitated. If a person who wants to stay at home, genuinely convinces the council that their risks aren’t as significant as they first thought, or that other free social capital will now be applied to reducing the otherwise unmet need, the original budget needed for staying at home could be reduced, as the unmet need would be smaller than first assessed. But not if the needs weren’t going to be met. © Belinda Schwehr, 2011 26

27 The guidance on the amount of a direct payment form of personal budget, from the DH 114. In estimating the reasonable cost of securing the support required, councils should include associated costs that are necessarily incurred in securing provision, without which the service could not be provided or could not lawfully be provided. The particular costs involved will vary depending on the way in which the service is secured, but such costs might include recruitment costs, National Insurance, statutory holiday pay, sick pay, maternity pay, employers’ liability insurance, public liability insurance and VAT. Some councils have found it helpful to include a one-off start-up fund within the direct payments to meet these costs as well as other forms of support that might be required, such as brokerage, payroll services and Criminal Records Bureau checks on employees. © Belinda Schwehr, 2011 27

28 The guidance, continued 115. A council is not obliged to fund associated costs if, taking into account the user’s assessed contribution, the total costs exceed the council’s estimate of the reasonable cost of securing the service and if a service of the requisite standard could in fact be secured more cost-effectively in another way. The council is also not obliged to fund particular costs that are incurred by the individual on a discretionary basis, for example non-statutory liabilities such as an ex gratia bonus payment. The council might decide that they are able to increase the amount of the direct payments to enable the person to arrange support in a particular way if it is satisfied that the benefits of doing so outweigh the costs and that it still represents best value. Direct payment recipients can use their own resources to purchase additional support if they wish to do so.

29 Procedural fairness – the newly explicit requirements in the government guidance! Para 106 of the FACS guidance from 2010: Where councils do not offer direct help following assessment, or where they feel able to withdraw the provision of support following review, they should put the reasons for such decisions in writing, and make a written record available to the individual. Councils should tell individuals who are found ineligible for help that they should come back if their circumstances change, at which point their needs may be re-assessed. A contact number in the council should be given.

30 The weakness in any RAS... From Savva, High Court “I do not accept Ms Sackman’s submission that just because the direct payment scheme is an ongoing process requiring a continuing dialogue, that it is sufficient for the reasons to be reflected in the Care Plan, and communicated to the service user via the social worker and the support broker. The stage of production of the support plan and the care plan, in my view, is too late for the Claimant to be provided with reasons for the budget. If Ms Sackman is correct, then the reasons for the July decision do not appear in print until the Support plan made available in December. That cannot represent an adequate discharge of the obligation on a local authority to explain the reasons for its decision in this area in a transparent manner.” © Belinda Schwehr, 201130

31 Both sides appealed – judgement out last autumn: The Court of Appeal dismissed both the appeal challenge to the RAS and the appeal challenge to the need to give reasons. So there is a legal duty to give reasons for the finalised amount – and they have to be legal reasons for believing the amount to be adequate. ‘We can’t afford it’, won’t do. The Court refused to decide whether it would be enough to discharge the duty of fairness to hand the money over just saying ‘You can always ask us for reasons if you want them’…! The council has done a wonderful thing for disabled clients by appealing, because it has set a precedent, now, which must be followed! © Belinda Schwehr, 2011 31

32 The judgment in Savva suggests that councils need to be able to offer two things: a) a rational articulation of why the Resource Allocation system deserves to be seen as a sensible guesstimate of the cost of meeting particular levels of needs in particular domains. This could be done through a basic explanation, in leaflet or website format, of the council’s decision to rely on a ‘comparable current cost’ approach, but indicative resource allocation could equally be based on a calculation of how much a person could feasibly be awarded, in principle, given an overall sum of money available, in relation to their comparative position on a continuum of need compared to all other service users’ anticipated eligible need. However, neither of these explanations of policy, would suffice in themselves, without something focusing on the individual service user’s situation, at the final sign-off of a Plan, the size of the budget or the size of a direct payment. So the second thing needed would be b) a reasoned decision as to why the final allocation is then thought to be adequate, to achieve the meeting of the assessed needs in the manner agreed in the Support Plan. The decision would have to address the service user’s reasons and evidence for saying that it would not be sufficient, with the council’s reasons for deciding that it would in fact suffice, or have to suffice, despite not fully enabling the service user’s preferred outcomes, in terms of the manner of, or setting for, the meeting of the need. © Belinda Schwehr, 2011 32

33 Cambridgeshire – a no score draw, or a bit of a retreat? Cambridgeshire’s RA Scheme had a ‘higher costs’ table for higher cost care packages. The triggers were night time care, 2:1 care, specialist care and specialist AND 2:1 care. They worked out a man’s package, using an independent social worker, who recommended £120K a year. The council accepted the assessment of need, but not the extent of the services he’d recommended to meet need, and offered £75K instead, using the higher cost table, and the expertise of a senior manager, in order to figure out how much was needed. The remainder, after personal care and support had been accounted for, was an apparently unexplained sum drawn from the council’s mainstream RAS. The decision was upheld, with the court saying that there was no need in a direct payment personal budget to explain exactly how the money would even theoretically be enough. That was the whole point of direct payments – choice and control for the client. However, the judge stressed that the approach taken to the vast bulk of the funding and its adequacy was clearly not irrational, even if it was not spelt out exactly. He didn’t say anything about the need for reasoning about the remaining chunk of the money for leisure and recreation.

34 The Cambridgeshire case - analysis When finalising the amount of a direct payment, social care decision-making panels/staff are only obliged to convey a rational justification for believing that the funds awarded are broadly equivalent to the reasonable cost of securing the provision of the service concerned. The ‘arrangement’ for meeting need that must be put into the support plan might well be a Direct Payment – if that’s what’s been agreed, in which case the client can choose, ultimately, how to spend it, so that the amount allocated need only be broadly justified, not explicitly calculated by reference to identified services. When finalising the resource allocation for a direct payment form of personal budget, the council must still have a rational view based on competent staff’s opinion, of how much of a generic type of service would actually be required to meet need, in order to be able to explain why the amount finally allocated deserves to be seen as not arbitrary, and as reasonable. A resource allocation calculation cannot ‘drive’ the assessment of need, which must still be needs driven, and not budget driven – and that the final amount must focus on the individual, even if final costing is done by reference to the average cost of meeting the needs of the client group of which he or she is a member. © Belinda Schwehr, 2011 34

35 Inappropriate responses when re-assessing or reviewing people’s plans Cutting the funding, without articulating where the previously acknowledged needs have evaporated to – the needs may well have resolved, lessened, or become better managed, but it does have to be explained, even if it amounts to the council saying “We were in a hurry last time and so we over-assessed or we allowed flat rates and now we can’t afford to give people more than they need now. Changing the means by which to meet need, without considering and articulating why the new offer is still lawful by the standards set out in this powerpoint. Forcing a change of provider on every domiciliary care client without considering that at least some of them deserve to be consulted about the impact on them, by reason of their vulnerability or dependency. Writing to everyone and just saying “Now no-one is eligible any longer for the meeting of moderate need, your services will be cut automatically in 4 weeks time”. © Belinda Schwehr, 2011 35

36 © Belinda Schwehr, 201136 Who is the decision-maker for support planning? Elaine McDonald v Kensington & Chelsea London BC Where a local authority was obliged to meet the assessed needs of a lady who had a neurogenic bladder as a result of a stoke, they were entitled to meet the need in the most economic manner – they could provide incontinence pads rather than a night time carer to take her to the toilet. The National Health Service and Community Care Act 1990 gave the Local Authority some flexibility as to how the needs could be met. On appeal – there had been no Disability Discrimination or breach of human rights, or breach of public law, after her needs were re-formulated more generally than before, as the authority had conscientiously sought to treat her the same as everyone else – lawfully.

37 Implications of K&C’s victory overall Councils are the decision-makers on support planning, in terms of appropriateness. Councils can take resources difficulties into account, in relation to what’s appropriate. So long as they pay respect to the client’s views on what’s appropriate, they do not have to agree, or obtain the consent of a carer or relative to a care plan before signing it off. The need can be identified in general terms, so long as the care plan identifies how it will be met, and the means offered are lawful. The client is able to be given flexibility as to how to spend the money in meeting the assessed need, the more general the wording in the support plan, but so is any provider...so there are swings and roundabouts in outcomes based support planning. A guestimate of the cost of meeting the need has got to be evidence- based and rational, but need not be more than the council’s opinion as to appropriateness, subject only to judicial review for human rights, disability discrimination, unfairness, lack of consultation... © Belinda Schwehr, 2011 37

38 Two important paragraphs from the FACS guidance 121. Councils should agree a written record of the support plan with the individual which should include the following: A note of the eligible needs identified during assessment; Agreed outcomes and how support will be organised to meet those outcomes; A risk assessment including any actions to be taken to manage identified risks; Contingency plans to manage emergency changes; Any financial contributions the individual is assessed to pay; Support which carers and others are willing and able to provide (voluntarily); Support to be provided to address needs identified through the carer’s assessment, where appropriate; and A review date. 124. Councils should plan with regards to outcomes, rather than specific services. They should consider the cost-effectiveness of support options on the merits of each case and may take their resources into account when deciding how best to achieve someone’s agreed outcomes. However, this does not mean that councils can take decisions on the basis of resources alone. Once a council has decided it is necessary to meet the eligible needs of an individual, it is under a duty to provide sufficient support to meet those needs. Councils should provide support promptly once they have agreed to do so, but where waiting is unavoidable, they should ensure that alternative support is in place to meet eligible needs. © Belinda Schwehr, 2011 38

39 Conclusions Resource allocation scheme guestimates are lawful, but indicative only Sign-off of a plan is an essential part of the statutory function and of following guidance Re-assessments must be done before any cuts are proposed. Saying no to a request for more than first offered must be done with reasons, or at least explained, so as to seem rational, and not merely budget-led. © Belinda Schwehr, 2011 39

40 Human Rights Just like the contents of the Mental Capacity Act, the rights in the Human Rights Act rank alongside existing rights in statutes, unless it’s impossible to read the two, consistently with each other. Normally, when two Acts clash, a later Act would overrule anything it was impliedly inconsistent with, in earlier legislation, but the HRA specifically provided that its contents were to remain subject to explicit clear and contradictory language in other statutes, whether past or present - because Parliament’s intentions must remain sovereign, for our constitution to work. So human rights are not at the top of the hierarchy, in all cases, but are at the top in situations where there’s a potential clash in two separate pieces of law, but room for ambiguity in the words used. So wherever there is a nice woolly discretion in a piece of community care legislation, ie freedom to decide how to achieve a required outcome, or a freedom to decide whether to do something at all, councils (and all other public bodies, like PCTs, the CQC, etc) are supposed to take the person’s Human Rights Act into account, before making that decision. Any change of policy to deal with the cuts should take this duty in to account. © Belinda Schwehr, 2011 40

41 What are a person’s most important human rights? Article 2 – the right to life Article 3 – freedom from inhuman or degrading treatment Article 5 – the right to liberty Article 8 – respect for a person’s private and family life, his home and correspondence Article 9 – freedom to manifest one’s religion and beliefs Article 14 – freedom from discrimination on any ground, in relation to all these other rights © Belinda Schwehr, 2011 41

42 How mean can a council really be, when holding back on services? MM’s case… The Council took the view, in a case where the person in question had capacity to decide to have sex with a man, but not capacity to decide how much other contact to have with the man, who was causing a lot of chaos in her life: “If it were permitted for MM and KM to have sexual intercourse, legally this would not be allowed in a public place, and would therefore have to take place in a private place, such as a hotel. This would mean allowing MM and KM to have time alone unsupervised. They would then be able to collude, enabling KM and MM to exchange as much information as they liked, giving KM the ideal opportunity to unsettle and de-stabilise her placement … The Local Authority would therefore not be able or willing to provide a place in which MM and KM would be able to have sexual intercourse.“ (She was living in supported living at the time, as a tenant). “Tough”, the judge said. “It’s you who have put her in this ‘placement’ in supported living, and it’s you who’s making it a rule that she can’t be visited. You are ignoring her human rights.” © Belinda Schwehr, 2011 42

43 The Official Solicitor’s view: “…her relationship with KM has endured for a significant period of time, …it is a relationship which is important to her, and … the relationship has included a number of lengthy periods of cohabitation. In respect of the periods of cohabitation regard should also be given to all the potential legal and emotional ramifications of such an arrangement. I question whether the court should so restrict and regulate the terms of a relationship, in circumstances where MM has capacity to consent to a sexual relationship with KM, to the extent that such regulation may result in the breakdown of that relationship or impose a change in the nature of the relationship. I further note that to date KM has had no assistance with transport to and from organised contacts with MM, in either financial and practical terms and that this may have been a factor in the difficulty he had in attending contact sessions. I would strongly support such arrangements being put in place by the local authority to further facilitate contacts between KM and MM.” "I am concerned that although the local authority's most recent statement, dated 1 June 2007, supports unsupervised contact between MM and KM, there are no proposals in relation to where they might meet if MM chooses to consent to sexual relations with KM. If a safe environment is not made available for KM and MM to meet, this potentially places MM at risk." The judge then said this: “I share the Official Solicitor's concerns. It is a matter to which I must return. It raises fundamentally important questions of principle, public policy, and human rights.” © Belinda Schwehr, 2011 43

44 What about the cost? “I should add that the local authority cannot in this connection seek to avoid its positive obligations by seeking to toll the bell of scarce resources. …the additional financial burden which this may impose on the local authority is comparatively modest given the overall cost of its provision for MM. And the right in play here is, to repeat, too important, too precious in human terms, to be swept aside by such purely fiscal considerations.” “If the local authority seeks to impose on MM a regime which in fact involves a breach of her Article 8 rights – the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Article 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM's life is, … I agree, disproportionate. And in my judgment it involves a breach of her rights under Article 8.” © Belinda Schwehr, 2011 44

45 Human Rights for the elderly: A client wanted to stay in a residential care home, and yet Wandsworth said she needed nursing care. The judge said this: “The fact that Mrs Goldsmith chose to live in St Mary's Court surely placed a duty on the decision-maker (whoever that was) to balance the information contained in the community care assessment report and in her daughter's representations, against the doctor's assessment that she had level 2 funded nursing needs, and to see whether a viable solution could be found of a reasonable kind which would enable her to continue to live in the place where she was so happy. This is what respect for a person's home is all about, and Wandsworth had to show that its decision to move her was a proportionate response in all the circumstances.” “It is trite law that in addition to being ‘in accordance with the law’ and ‘necessary in a democratic society’… ‘for the protection of the Appellant's health’, any interference by the State with her right to respect for her private life must be proportionate. There is no evidence, in my judgment, that Wandsworth gave any consideration to the principle of proportionality.” © Belinda Schwehr, 2011 45

46 The Watts case – European Court of Human Rights declares as inadmissible the challenge of a 106 year old woman to a home closure The Council had engaged in a 12 week consultation period in which it had actively sought the views of residents, their families, carers, staff and interest groups. The Council had indicated a willingness to take any steps within its powers to facilitate transfers for residents and to ensure that they remained with their friendship groups. For Mrs Watts this included moving her to a more expensive placement in order to allow her to remain with friends. The Council moved Mrs Watts to a new home which was only three miles from Underhill House. The Council took into consideration individual assessments in respect of the residents that it moved, as well as the recommendation of Mrs Watts’ own expert psychiatric witness. The closure of Underhill House was part of a rationalisation of care for the elderly provided by the Council. Underhill House itself was a relatively old building that no longer met the requirements for a modern care home. The Court noted that with the passage of time buildings would become outmoded and/or dilapidated while the standards of care expected of care homes rose. In such circumstances a public authority could be criticised for not closing a home and moving residents.

47 Ignoring government guidance Guidance is not the same as law: it is not binding on authorities in the way that Directions are. But it still has a status, as a relevant consideration. It is illegal to ignore government guidance in health and social care. It does not have to be followed rigidly, but it cannot be ignored, or departed from, without a compelling reason. The leading cases are Islington, ex p Rixon, B v Cornwall, and Savva v Kensington & Chelsea and now Pembrokeshire – re the WAG guidance. Types of guidance that it is easy to slip up over, include the guidance on charging (Fairer Charging and CRAG) care planning (Putting People First – Prioritising Need) and direct payments (the 2009 guidance). The mere fact that the guidance has not been properly paid regard to, is enough to get a judge to quash a public body’s decision and get it sent back to the decision-maker for a fresh and proper decision, second time around. © Belinda Schwehr, 2011 47

48 Can you limit assessment, based on residence? 48. …Under section 47 of the NHS and Community Care 1990 Act, local authorities have a duty to assess the needs of any person for whom the authority may provide or arrange the provision of community care services and who may be in need of such services. Because local authorities have a power to provide services to people who live outside of their area, the duty to assess is not limited to people who are ordinarily resident in the authority’s area. This gives rise to the question of when it might appear that a person who is not ordinarily resident in an authority’s area “may be in need” of services.

49 The separate new guidance on ordinary residence… confirms that people moving into independent living with capacity are always Ordinarily Resident where the tenancy is situated suggests that the previous authority CAN continue to pay (I am not so sure that that is correct, but it is good for clients) is consistent with the legal implication of the statutory wording that the new authority SHOULD pay for the care in the new setting says that in a dispute the one where the person is living MUST pay pending determination says that people who are moved without capacity to independent living will be able to count as O/R in the new place, if they put in the tenancy by a deputy… …EVEN if the deputy is an officer of the previously responsible authority… And implies that the only other way for a person without capacity to be ‘parachuted’ physically into a new authority by another council will be by being formally contracted for, by the previous authority in circumstances where no personal care is being organised as an integral part of the arrangement (ie under the National Assistance Act, in which case the previous authority remains responsible.)

50 No ‘screening out’, now, on dubious grounds! 50. This pragmatic approach should also be taken in relation to people with firm plans to move to another local authority’s area, for example, a person with a job offer who intends to take it up, subject to suitable community care services being available. Such people could be described as “about to be in need” in the local authority’s area, even though they may already be in receipt of services in the area which they are leaving. The person’s move must be reasonably certain: local authorities would not be obliged to assess a person who was simply considering a move to the area. 87. When a service user permanently moves from one council area to another (or has a clear intention to move to another council – See “Determining eligibility in respect of individuals” section of this guidance), the council whose area they move into should take account of the support that was previously received and the effect of any substantial changes on the service user when carrying out the assessment and making decisions about what level of support will be provided. If the new council decides to provide a significantly different support package, they should produce clear and written explanations for the service user. As discussed above, the future reform of the care and support system may have implications for portability of social care, but the Green Paper also recognises the role of local authorities in shaping services according to the needs of their local area.

51 Do the mentally unwell count, even if they don’t have severe or enduring needs? Back to FACS… 51. Councils must not exempt any person who approaches or is referred to them for help from the process to determine eligibility for social care, regardless of their age, circumstances, apparent financial means or the nature of their needs. To this effect, councils should avoid being too rigid in their categorisation of “client groups”. Rather needs should be considered on a person-centred basis recognising both individual need and taking into account the support that the individual’s family or support networks are willing and able to provide. 66. People who access specialist services (such as mental health service users or people with learning disabilities) should also expect to receive an assessment of eligibility for mainstream support, like any other individuals seeking support. These groups should be supported by both health and social care teams, so that all their needs are appropriately addressed.

52 Relevance of a client’s own funds 77. From the beginning of the process, councils should make individuals aware that their individual financial circumstances will determine whether or not they have to pay towards the cost of the support provided to them. However, an individual's financial circumstances should have no bearing on the decision to carry out a community care assessment providing the qualifying requirements of section 47(1) of the NHS and Community Care Act 1990 are met. Neither should the individual’s finances affect the level or detail of the assessment process. 71. Once an individual’s needs, and those of their carer(s) where appropriate, have been assessed and a decision made about the support to be provided, an assessment of the individual’s ability to pay charges should be carried out promptly, and written information about any charges or contributions payable, and how they have been calculated, should be communicated to the individual. This means that once a person has been identified as having an eligible need, councils should take steps to ensure that those needs are met, regardless of the person’s ability to contribute to the cost of these services. An assessment of the person’s ability to pay for services should therefore only take place after they have been assessed as having eligible needs. A person's ability to pay should only be used as a reason for not providing services in circumstances where a person has been assessed as needing residential accommodation, the person has the means to pay for it and if the person, or someone close to them, is capable of making the arrangements themselves. [B would add willing, as well as capable].

53 Choice of Accommodation Guidance “A council should set more than one usual cost where the cost of providing residential accommodation to specific groups is different. “In setting and reviewing their usual costs, councils should have due regard to the actual costs of providing care and other local factors… “Councils have a statutory duty to provide residents with the level of service they could expect if the possibility of resident and third party contributions did not exist… “Councils should not set arbitrary ceilings on the amount they expect to pay for an individual’s residential care. Residents and third parties should not routinely be required to make up the difference between what the council will pay and the actual fees of a home… “Individual residents should not be asked to pay more towards their accommodation because of market inadequacies or commissioning failures… “It would not be reasonable for a council to use as a test for the suitability of accommodation, its presence or absence from a previously compiled list of preferred suppliers…There may be occasions where it would be unreasonable for a council not to adapt its standard conditions and others where it would be unreasonable to expect it to do so. For example, councils should take into account the fact that care homes in other areas, or those that take residents from many areas, may have geared themselves to the normal requirements of other councils. Councils should be flexible in such circumstances and avoid adding to the administrative burden of care homes.” It is suggested that the only feasible interpretation of these words is that once the rates have been agreed, any council’s usual rate must bear a rational relationship to the product of the agreements, not the other way around. © Belinda Schwehr, 2009 53

54 Fees review decision-making Many councils have a contractual right in their arrangements with care homes and agencies to decide by how much to put the fees up, or otherwise set them – because of the councils’ own budgetary exposure to central government cuts. If a council has acquired a right to make this decision in its contracts, recent case law (Pembrokeshire) suggests that it needs to record its thought process, so that it can show that it did have regard to all relevant considerations… © Belinda Schwehr, 2011 54

55 ‘Building Capacity’ – October 2001 – an agreement between sector stakeholders …. Fee setting must take into account the legitimate current and future costs faced by providers as well as the factors that affect those costs, and the potential for improved performance and more cost effective ways of working. Commissioners should ensure that they have in place the following: - Fee negotiation arrangements that recognise providers’ costs and what factors affect them (as well as any scope for improved performance) and ensure that appropriate fees are paid. © Belinda Schwehr, 2011 55

56 ‘Building Constructive Market Relations’ – the NMDF’s contribution to partnership… In ‘Building Constructive Market Relations’ the NMDF explores some of the challenges of market development in adult social care in the context of personalisation, and proposes practical ways in which partners can work together to address them in the future. It reminds readers that the Government’s paper ‘A Vision for Adult Social Care: Capable Communities and Active Citizens’ has as two of its key principles, the need for partnership and diversity in terms of how the social care market should function: “Partnership: care and support delivered in a partnership between individuals, communities, the voluntary and private sectors, the NHS and councils - including wider support services, such as housing. Plurality: the variety of people’s needs is matched by diverse service provision, with a broad market of high quality service providers” It asserts that these themes have been expanded upon in the new partnership agreement ‘Think Local; Act Personal’ which outlines four key messages with regard to the market: “In addition to building community capacity, it will be vital to secure an adequate supply and good choice of quality provision for those requiring targeted support, including: - Stronger and more collaborative relationships to develop new models of provision and reduce costs - Changing offer from providers - Better ways of gathering and utilising market intelligence. - The full engagement of people using services, their carers and families in commissioning and service development” © Belinda Schwehr, 2011 56

57 Why do we need partnership? A market based on effective engagement between partners was seen as crucial for the following reasons: - No one body or individual has the knowledge or information to understand what is happening across the market - partners need to share information and intelligence. - Service innovation and development will require financial and practical risk taking, but without providers being encouraged and willing to take that risk, greater cost effectiveness, efficiency and improved care quality will not be achieved. - A fundamental requirement of the social care system is that it cannot fail and threaten the wellbeing of the most vulnerable in society. Good early communication and an understanding between partners of the market risks are crucial if this is to be achieved. It concluded thus: “A shared approach to managing the money, a mechanism to fund and stimulate innovation, shared training, bulk-shared purchasing and more flexible contracting arrangements are all mechanisms that can be used to help improve relationships between commissioners, users and providers, ultimately leading to better services. Overall, at a time when the choice and control of services by users is being encouraged, ultimately all parties in the care market have a common interest in working together to make sure that the quality and diversity of care experienced by those who consume it is improved.” © Belinda Schwehr, 2011 57

58 Monitoring the client’s spend The council has to do it in a light touch way, proportionately to the risk perceived or posed by the particular client or arrangements. If the council does not do it, it will not be in a good position in the case of – A concern about financial abuse of the council or the client by a helper or suitable person – A concern about an injury to a worker, due to the client’s choices of what to spend the money on, or not – The opportunity to claw back unspent money or reduce the resource allocation on account of the money apparently not having been needed – The need to have an evidence basis when re-calibrating the resource allocation system, by reference to the likely actual cost of obtaining services locally. © Belinda Schwehr, 2011 58

59 Thank you so much for attending! Belinda can be contacted on belinda@careandhealthlaw.com, or Tel 01252 725 890 or 07974 399361.belinda@careandhealthlaw.com My website, www.careandhealthlaw.com, offers free (and some charged-for) topic overviews about health and social care law; ‘hot news’ emails when an important case has been decided by the courts, and access to these web-based training courses.www.careandhealthlaw.com For traditional face-to-face training, and regional events, contact Mary Humphrey, my reservations manager, on 01379 678 243 or by email on mary.humphrey@nationalhomecarecouncil.co.uk mary.humphrey@nationalhomecarecouncil.co.uk


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