Transcript Legal Principles of Personalisation

In Control:
The legal principles
of personalisation
Sam Karim, Barrister
What is personalisation?
• Personalisation is defined broadly by
government as ‘the way in which services are
tailored to the needs and preferences of
citizens. The overall vision is that the state
should empower citizens to shape their own
lives and the services they receive’ (HM
Government Policy Review, 2007: p. 7).
• The Local Government Circular (2008)
‘Transforming Social Care’. Paragraphs 21 and
26 of the Circular provide:
• ‘... The purpose of this reform is to ensure
people have choice and control over the
support they need to live the lives they want. It
is necessary to tackle all four together to
deliver the Government’s aims of better health
and better care for people who need
treatment and support, as well as better value
for taxpayers.’
Why the change?
• Traditional modes of social delivery have been
argued to produce the dependency of
individuals, rather than promoting
independence (Morris, 2006).
• Leadbeater (2004: pp 18-19) suggests that:
• personalisation is ‘a new organising logic for
service provision…as influential as privatisation
was in the 1980s and 1990s in reshaping service
provision’; and
• he argues that personalisation is ‘a very potent
but highly contested idea’. He goes on to
conceptualise personalisation as existing on a
continuum, where there is a ‘shallow’ version at
one end and (his favoured) ‘deep personalisation’
at the other. Let’s look at this:
• But there are opponents:
• Ferguson (2007: p. 401) argues that, ‘in its uncritical
acceptance of the marketisation of social work and
social care; in its neglect of issues of poverty and
inequality; in its flawed conception of the people who
use social work services; in its potentially
stigmatising view of welfare dependence; and in its
potential for promoting, rather than challenging, the
deprofessonalisation of social work, the philosophy of
personalisation is not one that social workers should
accept uncritically’.
My view
• Personalisation agenda is defined by the
following 4 themes:
• a radical re-engineering of the provision of
care services so that service users should have
choice and control over the support delivered
in a manner that promotes independence,
well-being and dignity;
• a major change of the relationship between
the citizen and the state as the emphasis of
self assessment with social workers acting as
‘brokers’ and ‘advocates’ rather than ‘gate
keepers’ of social services;
• control and choice of service to promote selfdirected support to enable individual
arrangements to be designed by the service
user; and
• flexibility of support.
Where did the phenomenon come from?
1. move towards greater self-directed support
and individualised funding is an international
phenomenon – with many developed
countries experimenting with similar forms of
what the US calls ‘consumer-directed care’ or
‘cash and counseling’ (see, for example,
Alakeson, 2007;Robbins, 2006;Glasby &
Littlechild, 2009);
2. at the beginning, the campaign for direct
payments was seen as part of a broader
struggle for greater choice, control and
independent living, with disability re-defined
as being the social, cultural and attitudinal
barriers to disabled people participating as
equal citizens, rather than in terms of
individual impairment (e.g. Oliver, 1996). Note
the relevant of the EA 2010 duties;
3. the Community Care (Direct Payments) Act
1996 overturned aspects of the National
Assistance Act 1948 that prevented local
authorities to provide cash payments to
disabled people;
4. but direct payments represented a ‘qualified
form of empowerment’ (p. 470, Oliver) as they
do not alter the basic needs-based and meanstested basis of the English welfare system.
So what about personal budgets, is it any
different?
• In theory it offers all the advantages of direct
payments whilst also starting to transform the
system as a whole with seven key steps to selfdirected support as:
• step 1 – Using a resource allocation system
(RAS), everyone is told their financial
allocation and they decide what level of
control they wish to take over their budget;
• step 2 - People plan how they will use their
personal budget to get the help that is best for
them;
• step 3 - The local authority helps to create
good support plans, checks they are safe and
any necessary representation;
• step 4 - People control their personal budget
to the extent they want;
• step 5 - People can use their personal budget
flexibly (including for statutory services);
• step 6 - People can use their personal budget
to achieve the outcomes that are important to
them; and
• step 7 - The authority continues to oversee
the situation.
Personal Budgets are one part of a new system of
support
Any problems with the system?
• The practice of self assessment is of
questionable legality – in R (B) v Cornwall CC
[2009] EWHC 491 (Admin), at para [68]
Hickinbottom J observed that a council could
not ‘avoid its obligation to assess needs etc by
failing to make an appropriate assessment
themselves, in favour of simply requiring the
service user himself to provide evidence of his
needs’.
• In R (Savva) v Kensington & Chelsea RLBC
[2010] EWHC 414 (Admin) illustrates a
potential problem. Facts:
• 70-year-old applicant completed a SelfAssessment Questionnaire (SAQ);
• it decided that this equated to a ‘points score’
of 16 under their RAS translating to value of
£82.91 per week.
• the council adjusted it to £132.56, and was then
increased to £170.45.
• she was admitted to hospital with increasing
needs and completed SAQ and was awarded 28
points equating to a value of £112.21 adjusted to
£142.02 then to £170.45.
• It was challenged successfully on the basis that
although her needs had increased substantially,
her allowance remained unchanged: the judge,
like the applicant could make neither head nor
tail of it.
Legal principles
• There are three fundamental legal
foundations to the concept of
‘personalisation’ and ‘independent living’,
namely:
• 1. The UN Convention on the Rights of
Persons with Disabilities (ratified by the UK in
2009), in particular see Article 19: Living
independently and being included in the
community which provides that:
• ‘(a)Persons with disabilities have the
opportunity to choose their place of residence
and where and with whom they live on an
equal basis with others and are not obliged to
live in a particular living arrangement;
• (b) Persons with disabilities have access to a
range of in-home, residential and other
community support services, including
personal assistance necessary to support living
and inclusion in the community, and to
prevent isolation or segregation from the
community;
• (c) Community services and facilities for the
general population are available on an equal
basis to persons with disabilities and are
responsive to their needs.’
• 2.
Equality Act 2010 (‘EA 2010”) which states:
• “(1) A public authority must, in the exercise of its functions,
have due regard to the need to—
• (a) eliminate discrimination, harassment, victimisation and
any other conduct that is prohibited by or under this Act;
• (b) advance equality of opportunity between persons who
share a relevant protected characteristic and persons who
do not share it;
• (c) foster good relations between persons who share a
relevant protected characteristic and persons who do not
share it.
• 3. Article 8 of the ECHR considerations, in
particular the case of R (A & B) v East Sussex
County Council No 2 (2003) 6 CCLR 194 in which
Munby J (as he then was) reinforced that the
right of a disabled individual to participate in the
life of the community and to have what he
described as ‘access to essential economic and
social activities and to an appropriate range of
recreational and cultural activities’, thereby
prevented isolation and being deprived of the
possibility of developing a personality.