The Challenge of Personalisation: a Legal Perspective Michael Mandelstam, In Control Conference: Watch out: it’s the law!

Three main challenges 1. Potentially radical new social care policy sitting on old law. 2. Pressure on resources, staffing, money, time. 3. Risk.

1. New policy stuck on to old law POLICY: Putting people first: a shared vision and commitment to the transformation of adult social care. HMG LAC(DH)(2008)1. Transforming social care. LAC(DH)(2009)1. Transforming social care. Independence, choice and risk (DH 2007) Website: puttingpeoplefirst.org.uk. Various govt. advice on: Resource allocation system (RAS), self-assessment, brokerage

Old law LEGISLATION: NHS and Community Care Act 1990, s47 National Assistance Act 1948, s.21, s.29 Chronically Sick & Disabled Persons Act 1970, s.2 Heath Services and Public Health Act 1968, s.45 NHS Act 2006, schedule 20 Mental Health Act 1983, s.117 (aftercare)

Old/new law Health and Social Care Act 2001 (as amended): community care direct payments Welfare Reform Act 2009 and: SI 2010/2862: Disabled People’s Right to Control (Pilot Scheme) (England) Regulations 2010 (Supporting People, Independent Living Fund, Access to Work, Disabled Facilities Grants

Why does it matter? Lack of detailed Parliamentary scrutiny? Lack of clarity for local authorities Lack of clarity for service users Even for the courts? (R(Broster) v Wirral LBC, 2010)

2. Resources Radical new policy being introduced at time of severe cost cutting is not a sought after recipe Risk that the new policy and, in particular, the good bits, will be undermined Legally the test for decisions in personalisation and personal budgets lies in the old legislation This is not always realised

Local authorities containing expenditure Local authorities can contain or even reduce expenditure legally but they must do it in the right way Route A is lawful: raising the eligibility threshold (fair access to care). And/or meeting people’s eligible need cost effectively Route B is unlawful: not meeting people’s assessed, eligible need

Fair access to care Critical need/risk independence Substantial Moderate Low Prioritising need in the context of Putting People First: a whole system approach to eligibility for social care - guidance on eligibility criteria for adult social care, England Department of Health Michael Mandelstam 20119

Legal challenges R(J) v Islington LBC 2009: RAS type formula used to cut disabled child’s care: need not being met, unlawful R(McDonald) v Kensington and Chelsea RB 2010: council meeting assessed need but wishes to do this with incontinence pads adn not a night time carer: council wins case R(Savva) v Kensington and Chelsea RB 2010: RAS unsufficiently transparent: unlawful

3. Risk Councils to some extent are hamstrung How far to keep their hands off or on Acutely aware of underlying old “paternalistic” legislation, as against potentially radical new ideas Also anxious as to how personalisation dovetails with safeguarding And the unwise decision of the capacitated but highly vulnerable person

Personalisation: risk, one notion “As a general principle, councils should avoid laying down health safety policies for individual direct payment recipients. Individual should accept that they have a responsibility for their own health and safety, including the assessment and management of risk” ( Guidance on direct payments for community care, services for carers and children’s services: DH 2009). 12Michael Mandelstam 2011

Risk: another notion? “However, the local authority remains accountable for proper use of its public funds, and whilst the individual is entitled to live with a degree of risk, the local authority is not obliged to fund it” (Independence, choice and risk. DH, 2007). 13Michael Mandelstam 2011

Risk: proportionality Proportionality principle relevant to: Negligence (reasonable standard of care), Health and safety at work (reasonable practicability) Mental capacity (best interests, least restrictiveness, restraint etc) Human rights (article 8: justification for interference by State in people’s lives) 14Michael Mandelstam 2011