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
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.
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.
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.
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.
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  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.
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!
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.
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.
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.
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.
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.
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.)
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.
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.
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].
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