Transcript Document

The Care Bill
A legal and strategic focus for
contracts and commissioning staff
Belinda Schwehr
Care and Health Law
[email protected]
01252 725890 / 07974 399361
www.careandhealthlaw.com
© Belinda Schwehr, 2013
The Care Bill
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The Bill gets rid of a dozen statutes, but without really changing the concepts
underpinning their content: discretion, duty, rationing, appropriateness, suitability and
necessity … the council will remain the gatekeeper of public money… whatever the
rhetoric...
There is a duty to promote a person’s well-being, but it is not enforceable in any
concrete way – it underpins values, for what that is worth, by requiring that regard must
be had to a number of aspects of well-being and approaches to person-centredness...
It formalises Personal Budgets - but that is just the name for the sum of money
allocated. We already have direct payments, managed personal budgets, and a Suitable
Person scheme, through which incapacitated people can have the benefits of direct
payments, without the personal responsibility…
The parameters of social care (what you can or must buy or fund!) are being made more
straightforward, but less concrete, and thus more open to cost shunting from Health;
and the eligibility criteria are being elevated into the only threshold for eligibility –
sounds easy, but the draft new national minimum is not thought to match substantial at
all, in the sector, and brings in the need for assessors to make a judgement about
significant risk!
Carers will qualify for enforceable rights for the first time; not just assessment. And
these are to be funded much more extensively than the notion of client eligibility....and
go wider than ordinary care and support services…
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© Belinda Schwehr, 2013
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There is no mention of resource allocation schemes anywhere in the Bill! Hooray!
The drafting does (now) accept that the budget is not whatever the council says it
must be, but what the council thinks it actually costs the council to procure the
services needed to fulfil its duties.
The Dilnot ‘care costs’ cap provisions have now been put in, and drive the main
planks of the Act: eg the duty to provide, above the cap, and the notion of daily living
costs which are not to be counted.
The charging framework is itself streamlined, with the differences to be fleshed out
in regulations. Deferred payments for the cost of care at home will be introduced.
To deliver ‘portability’, Councils will have to assess people who want to move to the
area in readiness, or else have to fund what the previous council organises...and must
explain differences in eligibility decisions or the cost of the packages before and after
the move.
Counselling and advocacy are themselves to be made into social care services – a
council could buy in advocacy or even talking therapies – and CHARGE for these - as a
means of providing a service (eg advocacy) to support someone to access something
due from someone else – like health, or housing. ‘Information’ and ‘advice’ are also
seen as services, and certain sorts may be chargeable services! This could lead to
more funding of brokerage, and to more of a market in care planning support, maybe.
• The government is not dropping the ban on direct payments
being used to pay for local authority direct services; but
people will continue to be entitled to mix and match their
direct payments with in-house services. I’ve not been able to
find any further mention of direct payments for placements in
care homes… but am told that this is indeed going to
happen???
• It brings in the right for councils to give their decision-making
functions away to third party contractors, who might be
‘independent’ social work practices, or others, but they will
be discharging the council’s own functions, and therefore
doing it according to the local and national thresholds for
state-funded care and support. It’s not clear whether the
delegatees could include Providers.
Several strategic duties and powers - where the detail will depend on your
SMT local agenda, safeguarding leadership and JSNA integration culture
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There’s to be a geographically-based obligation to provide prevention and reduction
measures. It’s a general duty only, with no absolute targets.
There’s a duty to provide an information service, but it is not clear how far this will
extend, content-wise. It’s probably not intended to extend as far as advocacy against
the council in question...in relation to policy or practices, for instance!
There’s to be a geographically-based general duty to shape the market so as to
secure diverse provision of services to enable all people to help themselves.
There is a clear power to buy these services, for the community at large, without
them having to be bought purely so as to be put in an eligible individual person’s
care plan. And to buy services for people even if they are not O/R or even present...
There are market failure fall-back obligations, but there was always a duty to meet
needs anyway, in the event of failure - so this is more of a development for CQC,
which is given financial sustainability assessment functions in statute for the first
time.
The Bill re-iterates the notion of a duty to co-operate between agencies, whatever
good this has ever done...and requires reasons for refusing. But ‘it would be adverse
to our own functions’ is going to be excuse enough!
There’s an integration-directed principle supposed to underpin all of the above, for
the promotion of well-being.
© Belinda Schwehr, 2013
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Prevention functions
- general duties, with no absolute targets
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This duty is to provide or arrange services, facilities or resources, or take other steps,
which are considered to contribute towards preventing or delaying needs, contribute
towards preventing or delaying carers’ needs for support; reduce adults’ needs in the its
area; reduce carer’s needs in the area.
NB This particular function is not intended to absolve health or housing authorities from
their separate strategic contributions, and is not able to be relied on by people subject to
immigration control.
Regard must be had here to identifying services, facilities and resources already available
in the authority’s area and the use to which they could be put – and identifying adults
and carers with needs for care and support which are not being met (by the authority or
otherwise);
(so, that’s identifying people with needs, and carers with needs, to which
there is no current response, even via signposting…)
These preventative services are going to be able to be charged for directly, up to a
maximum of the cost incurred by the council, even if they are intended to meet needs
below the threshold for necessary services for individuals, and even if they are merely
grant-funded, not even contracted for, (unless charging is specifically prohibited by
government, by reference to service type, client type, circumstances or during a
particular period…).
This raises important strategic questions about how best to commission a service from a
provider – it could be paid for partly by the charge that would be able to be made to the
client by the council, for access to it, but who will do the financial assessment?
Providing information and advice
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There’s a duty to establish and maintain a service for providing people in its area with
information and advice relating to care and support for adults and support for carers….
It must cover how the system operates in the authority’s area, the choice of types of care
and support, and the choice of providers available to those in the area, how to access the
care and support that is available, how to access independent financial advice relevant to
obtaining care and support, and how to raise concerns about the safety or well-being of
an adult who has needs for care and support.
A Council must ‘seek to ensure’ that what it provides is sufficient to enable adults to
identify matters relevant to people’s personal financial position regarding the social care
system and to make [their own] plans for meeting needs for care and support. [this
means info about potential benefits, deferred payment schemes, etc]
Information and advice provided under this section must be accessible to, and
proportionate to the needs of, those for whom it is being provided. It is not a back route
into advocacy for all, but it may mean advocacy for some: ‘an information leaflet may be
sufficient for some people, for others it may be face-to-face discussion and advice, while
at the other end of the spectrum long-term concentrated access to advocacy may be
required’.
The information and advice service should, where it is reasonable, also cover care and
support services that, while physically provided outside the authority’s area, are usually
available to its local population.
Subject to ss (3) and (4), it will be for local authorities to determine the precise scope and
manner of the information and advice they will offer.
Who do we think is going to offer this
service, well and independently?
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“Initially, this will be taken forward as part of the implementation of the Department's
wider information strategy, published in May 2012. This strategy set out a plan for
bringing care and support, NHS and public health information together, in an easily
accessible way for the public.
This will build on current national information channels such as the NHS Choices website,
and will provide easy-to-navigate information, including a place for people to provide
their comments on services.
New information explaining some of the main aspects of care and support, such as
entitlements and rights, as well as a tool to compare the different services of registered
care providers, were published on NHS Choices on 25 April 2013”.
In my view, ADASS needs to be discussing this with the CABx central HQ, to persuade it to
invest to bid for this work – they already do housing, debt and benefits work, but not
adults’ social care.
My guess is that central CABx won’t commend their regional members to get into this
area of law, unless it is properly and centrally funded, because the CAB mode of working
involves the central maintenance of fantastic manuals about people’s rights, so that
their staff can get trained and stay up to date…
Only a professional organisation can do it properly, in my view, and it is not likely to be the
local Direct Payments Support Service, or SHELTER….but local CABx could, if assured of
central CAB support, join with local organisations to offer a combination of the legal
information, and the market navigation bits of the service that seems to be envisaged
overall. In relation to the financial aspects, whoever was selected could pass on
information about local independent financial advisers.
Diverse market-shaping obligations
• The duty is to ensure diversity in the types of support being provided; and is
about shaping services that people in the area use, as opposed to only
shaping services that are located in the area.
• “The national support programme ‘Developing Care Markets for Quality and
Choice’ addresses many of these issues. Local authorities and clinical
commissioning groups are required to assess and address the current and
future health and social care needs of the whole population through joint
strategic needs assessments (JSNAs) and joint health and wellbeing strategies
(HWBSs). The need for local authorities and clinical commissioning groups to
engage with providers, those who use care and carers, will be made clear in
guidance”.
• In fulfilling the duty, local authorities should consider the importance of
enabling carers and people who use care and support to undertake work,
education or training.
• The Joint Committee recommended that this duty should require local
authorities to monitor the match between supply and demand and report on
the sufficiency of care and support in their area. The clause now requires
local authorities to consider how to ensure the sufficiency of local services
to meet local need. “However, we have decided not to require local
authorities to publish an assessment of the sufficiency of services, as this
would create a disproportionate burden on local authorities.”
This makes me nearly faint!
• Actually, it would be the single most effective contribution to creating a
truly efficient market in a so-called mixed economy of care. But that would
not necessarily suit central government, and local government funders
wishing to make the most of what will be virtually monopsonist purchasing
powers, once the threshold is raised to over £118K, within an immature
provider market, in my view.
• “We do not accept the Joint Committee’s recommendation to establish an
independent adjudicator to consider disputes between local authorities and
providers over the cost of care, or to prescribe a mechanism to measure the
quality of provision, as this would create additional disproportionate
burdens. Judicial review cases are doing that already – South Tyneside is the
latest council to lose a case about proper negotiations and failure to have
regard to the actual cost of care.
• I suspect that an independent adjudicator could be preferred, one day, to
many more judgments in open court about what is wrong with all the
various consultants’ tools and advice about fees, flying around the sector
right now.
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Promoting diversity and quality in provision of services
(1) A local authority must promote the efficient and effective operation of a market in services for meeting care
and support needs with a view to ensuring that any person in its area wishing to access services in the
market—
(a) has a variety of providers to choose from who (taken together) provide a variety of services;
(b) has a variety of high quality services to choose from;
(c) has sufficient information to make an informed decision about how to meet the needs in question.
(2) In performing that duty, a local authority must have regard to the following matters in particular—
(a) the need to ensure that the authority has, and makes available, information about the providers of services for
meeting care and support needs and the types of services they provide;
(b) the need to ensure that it is aware of current and likely future demand for such services and to consider how
providers might meet that demand;
(c) the importance of enabling adults with needs for care and support, and carers with needs for support, who wish
to do so to participate in work, education or training;
(d) the importance of ensuring the sustainability of the market (in circumstances where it is operating effectively
as well as in circumstances where it is not);
(e) the importance of fostering continuous improvement in the quality of such services and the efficiency and
effectiveness with which such services are provided and of encouraging innovation in their provision.
(3) In having regard to the matters mentioned in subsection (2)(b), a local authority must also have regard to the
need to ensure that sufficient services are available for meeting the needs for care and support of adults in its
area and the needs for support of carers in its area.
(4) In meeting an adult’s needs for care and support or a carer’s needs for support, a local authority must have
regard to its duty under subsection (1).
Co-operation with relevant partners
• If either the local authority, or the relevant partner, decide not to cooperate after
receiving a request, then ss (3) requires them to write to the other person
setting out their reasons for not doing so. Local authorities and their relevant
partners must respond to requests to co-operate under their general public law
duties to act reasonably, and failure to respond within a reasonable time frame
could be subject to judicial review.
• But the reason can be: ‘it would be adverse to our own functions…’
• Ss (3) requires the local authority to ensure internal cooperation between its
own officers: those responsible for adult care and support, housing, public
health, and children’s services. These officers are employees of the local
authority, and are not therefore included in the list of external partners in ss (6).
So NO MORE housing and children’s services and education and adults’ services
pulling the rug out from under each other.
• What about providers? “We consider that co-operation with independent,
private and voluntary sector … providers is better achieved through
commissioning and contractual means, as well as through the market-shaping
duty in clause 5, rather than inclusion in the ‘relevant partner’ list in the clause
about co-operation….”
Co-operation with whom?
(6) Each of the following is a relevant partner of a local authority—
(a) where the authority is a county council for an area for which there are district councils, each
district council;
(b) any local authority, or district council for an area in England for which there is a county council,
with which the authority agrees it would be appropriate to co-operate under this section;
(c) each NHS body in the authority’s area;
(d) the chief officer of police for a police area the whole or part of which is in the authority’s area;
(e) the Minister of the Crown exercising functions in relation to prisons, so far as those functions are
exercisable in relation to England;
(f) a relevant provider of probation services in the authority’s area;
(g) such person, or a person of such description, as regulations may specify.
(7) The reference to an NHS body in a local authority’s area is a reference to—
(a) National Health Service England, so far as its functions are exercisable in relation to the authority’s
area,
(b) a clinical commissioning group the whole or part of whose area is in the authority’s area, or
(c) an NHS trust or NHS foundation trust which provides services in the authority’s area.
There’s a specific duty in particular individual cases too: intended for use where co-operation is
needed in the case of an individual who has needs for care and support. It could be used, for
example, when a child is preparing to move from children’s to adult services; in adult safeguarding
enquiries; when an adult requires an assessment for NHS continuing healthcare; or, when an adult
is moving between areas and requires a new needs assessment. THIS HAS GOT TO BE AN
IMPROVEMENT
Integration-related provisions
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A general duty to do what councils do whilst focusing on ensuring the integration of care
and support provision with health provision and health-related provision where it
considers that this would promote well-being of adults and carers in its area, support
prevention, improve quality of care and support and outcomes achieved, etc.
My reaction to this is ‘Er, well, how could it not promote well-being?’
The government’s explanatory notes suggest that this clause is intended to reflect the
similar duty placed on clinical commissioning groups by section 14Z1 of the National
Health Service Act 2006, but I think that the reality will be fewer places to hide, when
Health says ‘We can’t afford it’.
What does this duty actually mean, when health and housing provision are NOT
integrated, legally, and are subject to different sorts of legal duties, with different routes
by way of challenge?
Which functions are supposed to be discharged first, so as to avoid charging for things
that are others’ responsibilities? This question terrifies me and seems to require councils
to give in to Health when Health says:
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“Sure, we know we both have powers to do x, y and z, lawfully – but we the NHS haven’t been required to, by
government, and so we both have discretion; but we don’t want to, and you lot have got a duty to promote
integration … and you can always charge people for anything you fancy embracing as innovative and
normalising social care according to the social model of disability…so doesn’t it make better sense that you
should do so, in difficult times? Wasn’t that what the old s28A system was for? How about we give you a little
bit of money to get you started….???”
You are going to be buying Funded Nursing Care as principal not agent, under current drafting
(3) A local authority may not meet needs under sections 18 to 20 by providing or
arranging for the provision of nursing care by a registered nurse.
(4) But a local authority may, despite the prohibitions in subsections (1) and (3), arrange
for the provision of accommodation together with the provision of nursing care by a
registered nurse if—
• (a) the authority has obtained consent for it to arrange for the provision of the
nursing care from whichever clinical commissioning group regulations require, or
• (b) the case is urgent and the arrangements for accommodation are only temporary.
MAKE NO MISTAKE: THE REFERENCE TO ARRANGE, HERE, makes councils liable for
cock-ups in nursing home care, because this has them formally contracting for it,
albeit with ‘consent’ – they will be commissioning it, and not, it seems, as agent or
delegate for the Health Service, which is the only way it can happen at the
moment, by agreement or under a s75 Partnership arrangement...
Even under the current law, the Council is supposed to check first with the NHS that
the person is agreed to need to be in a nursing home. This is not honoured in
practice by all councils and PCTs, but that doesn’t mess up the clarity of the lines of
accountability, because FNC is the National Health Service’s legal and provision
responsibility, as well as its financial responsibility, and it cannot ever be the
council’s, under current law, as the council simply has no vires to buy it.
The current law is that for FNC services...
• …it is the NHS which is responsible for quality, safeguarding, value for money of
the nursing element in care homes (not councils, even if they’re doing the
placing!)
• …. and that councils acting in this way are protected from the allegation that they
should not be buying services which are not part of their remit, and in relation to
which they have no skilled staff to monitor the adequacy, of the offering, because
the NHS is actually legally and clinically responsible, as principal.
• So, if this provision is intended to change the law, by making the purchase of
registered nursing a standard part of the social care functions of the council
sector, so long as the CCG merely ‘agrees’ to the placement, it may be an
intentional but covert abdication by the NHS from the responsibility for actually
ensuring that people GET decent registered nursing, and enough of it. ..
• If this is deliberate, it is incredibly disingenuous…. It is a governance issue, for
goodness’ sake. Letters of agreement for FNC still amount to CCG contracts, and
contracts require contract monitoring, and case managing. FNC obviously carries
these responsibilities with it, if it is a health service function, which it is!!
• I doubt whether MPs and general public will grasp this point or get cross about
it, but I hope that sector leaders can and will get that bit sorted...
© Belinda Schwehr, 2013
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Assessing a carer’s needs for support
• This duty replaces the power to provide services to carers in s2 of the Carers
and Disabled Children Act 2000, in respect of those carers who are adults
and are providing care for another adult.
• The common requirements in all the triggering circumstances are that the
adult needing care is ordinarily resident in the local authority’s area (or
present) and that the carer has been assessed and has been determined to
have eligible needs for support.
• The ‘regular and substantial’ test has been removed, after the Joint Select
Committee recommended this, with the focus placed more on the difference
the input makes for the cared for person.
• The provisions about charging and carers and to whom is the service is to be
provided are just too difficult for this presentation, in the time I have been
able to devote to it.
• The Carers’ draft eligibility criteria make good sense and will mean that
carers will be positively incentivised to care, by being given something that
does not count as a benefit, and which relieves them of other obligations.
• But carers can still refuse to care, of course, if they are not assessed as
eligible; and herein lies the problem, which is a political one, as well as legal.
The power of and impact of carers
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A carer has never been able to be made to care in this country; it is not wrong to say no; and it is not
wilful neglect to draw a line and hand a dependent relative over to the State; that is the wonder of a
social care safety net, in a civilised country.
However, the reality is that carers in the main do want to care, and many feel that it is their duty.
That is only likely to continue and grow, as it will need to do, in terms of the demographic, if carers
are appreciated, in all forms of legislation, and supported, and not disdained when they have had
enough, for whatever reason.
The sector needs a grown-up conversation, in my view, with carers – to this effect:
“Since this is all coming out of public money, we have to spend it fairly. Your current choice to
provide informal care makes a massive difference to what we can afford to do for everyone,
and the reward for that should be, and will be, a broader range of choice and more control
for you and your loved one, than we could afford to provide in the long-term, if you were to
withdraw your input. That is because it is legal for us to choose the setting in which we meet
your loved one’s needs, but it will generally be better VALUE for them, you and us, if we can
share the responsibility, through your input reducing the eligible need which we would
otherwise have to provide for; the legal alternative is placing your loved one in the cheapest
not INappropriate setting.”
The way the factors relevant to the council’s consideration are stated, seems to me properly to treat
work, education and recreation, as pursuits that must be seen as critical to valuing carers as
citizens, but of course the law itself will not determine how much work, education or recreation is it
legitimate to want to do, if one has a relative or spouse who is in need. I think we need to wait and
see how the guidance about this will be expressed.
© Belinda Schwehr, 2013
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Carers’ eligibility – the draft criteria
Needs which meet the eligibility criteria: carers
3. A carer’s needs meet the eligibility criteria if the effect of those needs is that any of
circumstances specified in regulation 4 apply to the carer, or are expected to apply at an
identifiable point in the future.
4.—(1) The circumstances referred to in regulation 3 are as follows:
(a) the carer is unable or unwilling to provide some of the necessary care to the adult needing
care; [or]
(b) as a consequence of providing care, the carer is unable to carry out some or all basic
household activities in the carer’s home (whether or not this is also the home of the adult
needing care); [or]
(c) as a consequence of providing care, the carer’s physical or mental health is, or is at risk of,
significantly deteriorating; [or]
(d) as a consequence of providing care the carer is, or is likely to be—
(i) unable fully to care for any child for whom the carer is responsible,
(ii) unable fully to provide care to other persons for whom the carer provides care, or
(iii) unable fully to maintain other family or personal relationships;
[or]
(e) as a consequence of providing care, the carer is, or is likely to be, unable to obtain or remain
in employment, education or training;
(f) as a consequence of providing care, the carer is unable to access necessary facilities or
services in the local community; or
(g) as a consequence of providing care, the carer is unable to participate in recreational
activities.
How to meet needs – the new parameters of
adults’ social care
There is a list of examples of adults’ social care in the new statute:
(a) accommodation in a care home or in premises of some other type;
ie this might mean actual placements in unregistered care, ie specialist housing,
or shared lives, for when the person can’t have or won’t sign a tenancy in their own
name
(b) care and support at home or in the community; (regulations may say what is NOT
within this definition, for instance because it is health care…)
(c) counselling and other types of social work; [where is the line between talking
therapies and life coaching?]
(d) goods and facilities; [please note, it still seems the parameters of social care do
stop short of a dog… however good s/he might be for one’s well-being, unless of
course, we are happy to call a dog ‘goods’ or ‘an arrangement’ for meeting need?]
(e) information, advice and advocacy. [advocacy as a service, and hence one that will
be chargeable…unless that is prohibited]
As before, in terms of deployment and delivery, councils can either do it,
directly, themselves, delegate it formally to a health or housing partner, buy it
and manage the commissioning consequences, or give direct payments away,
within certain limitations.
© Belinda Schwehr, 2013
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Definitions in the draft regulations for
service users’ eligibility:
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The regulations will set the minimum threshold and local authorities will not be able to restrict their
eligibility beyond this. Authorities will continue to be able [ie have power] to meet other needs that
are below the national threshold.
Drawing on existing practice, the regulations aim to capture the most important needs in a high-level
description which local authorities have to interpret and implement;
“basic personal care activities” means essential personal care tasks that a person carries out as part
of normal daily life including eating and drinking, maintaining personal hygiene, toileting, getting
dressed, and taking medication; [so this is not exhaustive] and
“basic household activities” means essential household tasks that a person carries out as part of
normal daily life including preparing meals, shopping, cleaning and laundry, and managing household
finances. [ditto]
‘Critical’ used to be all about what was vital, and ‘Substantial’ seemed to be focusing on numbers of
tasks – this formulation does not refer to ‘the majority of’, or ‘vital’ anything, but it does focus on
what is essential, and later on the concept of fully, the meaning of which terms, is still a matter of
discretion.
Eligibility turns on inability to do these things, coupled with consequential significant risk.
‘Significant’ is a very very woolly word indeed, allowing for notions of likelihood and impact to get
mixed up, as in classic risk assessment. But allowing lots of wriggle room, too.
Urgent question: Where does keeping oneself safe appear?
Financial management appears to be an express part of daily living and therefore of social care for the
first time. Appointeeship isn’t a social care service, but you can charge for it under the common law of
necessaries, and many councils are doing so, already, to offset the charges from Money Carer...
Eligible needs:
2. An adult’s needs meet the eligibility criteria if those needs are due to a physical or
mental impairment or illness and the effect of such needs is that the adult—
(a) is unable to carry out one or more basic personal care activities and as a
consequence there is a significant risk to any aspect of the adult’s well-being;
(b) is unable to carry out one or more basic household activities and as a
consequence there is a significant risk to any aspect of the adult’s well-being;
(c) is unable to fully carry out any caring responsibilities the adult has for a child;
(d) needs support to maintain family or other personal relationships, and a failure to
sustain such relationships has or is likely to have a significant impact on the adult’s
well-being;
(e) is unable to access and engage in work, training, education or volunteering and as
a consequence there is a significant risk to any aspect of the adult’s well-being; or
(f) is unable to access necessary facilities or services in the local community and as a
consequence there is a significant risk to any aspect of the adult’s well-being.
Risk to independence is not a measure of anything any longer. Independence is not a
stated part of well-being. The notion of a right to independent living becomes even
less likely.
The elderly frail would not appear to be included any longer just on the basis that
they are old. They have to be physically or mentally impaired or ill. But I am sure we
have no problem about this in terms of Equality…!
I do not know what the difference is supposed to be between ‘unable’ and ‘unable
fully’…
Will we be able to stem the assessment tidal wave?
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People can refuse and councils are let off the duty to assess, but only if there’s no
evidence of incapacity to refuse, and in any event, not if there is a perception of risk
of abuse or neglect.
As before, the level of the likely needs for care and support is not relevant, and
neither is the level of the adult’s financial resources. Ie access to assessment is
wealth-blind.
Very interestingly, whereas there was nothing wrong under the old system in
deterring well off people from assessment, on the basis of the inevitable charge
(and full cost charge for the wealthy), the Dilnot cap means even the wealthy will
need to be assessed now, to get their finding of eligible need, to start the clock
ticking. This has enormous HR or contracting out implications, and the latter has
massive monitoring implications because it’s a statutory duty, that cannot just be
left to its own devices.
As before, the duty is triggered by the appearance of a possible need for care and
support (this must mean the whole range of care and support, not just that type of
adult social care, I think)
The council must assess whether the adult does have needs for care and support,
and if so, what those needs are.
[ie just identifying them as needs for care and support] = stage one of the process –
and it is supposedly meant to be blind to the existence of current carer and
informal support [– although this approach is oddly called carer-sighted – they have
got it the wrong way round in the notes on the draft regs, I think, if one takes the
Oxford Health Economy Dictionary definition….]
The duty to meet eligible needs for care and support –
hugely complicated by references to the costs cap, I am afraid
– wet flannels needed at this point
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As before, there is a duty to meet needs that meet the eligibility criteria, and its being a duty, as opposed to
a power, depends on the person being ordinarily resident, or at least present, if of no settled residence.
• As before, but by a different route, there is no duty to meet otherwise eligible need if it is being met by a
carer
[This is a bit ambiguous – needs that are being met, right now, but what if the carer has said ‘One more month,
and I’m done for, I’m stopping...’?]
• The next question though, is has the person already exceeded their care cost cap? Ie already spent or had
spent on them by a council, more than £72K, If so, they get the service under this duty.
• If they’ve not reached their care costs cap, and there’s no charge for the service, there’s a duty to provide the
service in the normal way.
• If they’ve not reached their costs cap, and there is a charge for the particular service, the duty is subject to
further questions:
• Does the person have resources at or below the financial limit? Ie not rich enough to charge? If so, they’re
within the duty.
• Or are they someone who has resources above the financial limit but still wants the council to meet need,
and charge or deduct a contribution? If not, but they want their care account to be running, they get an
independent personal budget statement but no services, and I think, but I am not sure, no plan.
• Finally, some people are owed a duty, regardless of the money situation: - those who lack capacity to arrange
for the provision of care and support, but for whom there is no person authorised to do so under the Mental
Capacity Act 2005 or otherwise in a position to do so on the adult’s behalf. [this really needs to say willing
as well, in my view – the notes say that this is what is intended – so it should be changed]
Care and support plans – much more detail, not less!
(1) A care and support plan or, in the case of a carer, a support plan is a document
prepared by a local authority which—
(a) specifies the needs identified by the needs assessment or carer’s assessment,
[the needs for care and support]
(b) specifies whether, and if so to what extent, the needs meet the eligibility
criteria,
(c) specifies the needs that the local authority is going to meet and how it is going
to meet them, [the unmet eligible need]
(d) specifies to which of the matters referred to in section 9(4) the provision of
care and support could be relevant or to which of the matters referred to in
section 10(5) and (6) the provision of support could be relevant,
(e) includes the personal budget for the adult concerned (see section 26), and
(f) includes advice and information about—
(i) what can be done to meet or reduce the needs in question;
(ii) what can be done to prevent or delay the development of needs for care and
support or of needs for support in the future.
(2) Where some or all of the needs are to be met by making
direct payments, the plan must also specify—
(a) the needs which are to be so met, [not just the outcomes,
please note!] and
(b) the amount and frequency of the direct payments.
Where there is a direct payment, associated regulations and
guidance will require that the plan specifies how the person
intends to arrange services using the direct payment.
(3) In preparing a care and support plan, the local authority must
involve—
(a) the adult for whom it is being prepared,
(b) any carer that the adult has, and
(c) any person whom the adult asks the authority to involve or,
where the adult lacks capacity to ask the authority to do that,
any person who appears to the authority to be interested in the
adult’s welfare. [this includes the current provider]
I think that this is good, and essential, but your sector may not,
of course, because it’s all labour intensive
Personal budgets
• Personal budgets will specify the cost to the local authority of meeting
the eligible needs, or the ones the council is choosing to meet if not
eligible.
• This is a very significant change in the wording from the current
guidance, where, for a direct payment form of personal budget, the
guidance says that the amount must be the reasonable cost of meeting
the need. Currently, this can only mean, in the context of a person
who’s chosen a direct payment, the cost to the individual being the
purchaser, when meeting the need.
• It can and often does cost an individual a different amount to what it
would cost the council to meet needs; and the direct payment
provisions in the Bill do not make up for this, presumably so as to
enable the council to give out no more than it would actually cost IT, if
it were buying, and buying in bulk – and this brings value for money
back into direct payment decisions, making them much less of a right,
in my view.
• It will state the amount which, on the basis of the financial assessment,
the adult must pay towards that cost, [the statutory
charge/contribution] and if on that basis the local authority must itself
pay towards that cost, the amount which it must pay. [the current net
amount]
• If it’s a budget that is going to be spent in a care home or a setting
where the cost includes some daily living costs—[non-care costs room, board, utilities and rent etc] it will specify those because they
are not counting towards the care cap.
• The amount stated in the budget (the cost of meeting unmet need)
will be the amount that gets put in to the care account of anyone
who comes through social services’ door and wants their account to
start totting up. The COST, not the charge. This is madness, if you
thought as I did that Dilnot’s aim was to ensure no-one had to spend
more than £72,000 on care in their lifetime! But it’s good if you are
needy and averagely off; the council has to meet your needs, and the
cost to the council as well as the charge is what goes into the Care
Account!
You don’t believe me? I checked:
From the original Dilnot report:
• “The third option is to meter ‘notional spend’ – that is, the
amount of money that the local authority assesses is required
to meet an individual’s needs, based on a full needs
assessment. As with metering time, this option is relatively
simple to administer, given that a system of needs assessment
is already in place. An advantage of this option is that the
needs on which a person is metered are the same needs that
would be met once that person reaches the cap and, as with
metering actual spend, it also ensures that those with more
intensive needs are not disadvantaged. The Commission
believes that the only suitable way of deciding when a
person has reached the cap is to meter notional spend.
Aisha An example of how the reformed means test would work
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Aisha had arthritis and mobility difficulties, which meant that she required a domiciliary
care package of £100 per week after her husband died when she was 78. This was part
funded by the state as she had a weekly income of £215 and savings of £3,000. Her
condition worsened and at the age of 80 she moved into a residential care home for the
final three years of her life.
Under the current system
On moving into the home, Aisha had to use up her savings and sell her house worth
£75,000 to fund her care. She paid the full £28,500 p.a. using the money from her house,
her pension income and disability benefits. Some £22,000 out of her £78,000 of wealth
was left.
Under our reformed system
Aisha’s domiciliary care package – funded by her local authority – would have meant that
£10,000 had already been contributed towards the cap by the time she moved into the
care home. At that point, her housing assets would be taken into account in the means
test, but with her house value falling below the upper asset threshold of £100,000, she
would receive a contribution from the state of around £6,500 p.a. and so pay a reduced
rate of around £12,000 p.a. from her assets, along with a contribution of £10,000 from
her income for general living costs. She would reach the cap after a year and a half in
residential care, and for the remaining year and a half would only contribute towards her
general living costs. She would be able to keep £62,000 of her assets.
Independent personal budgets - your care account, if
you are a true private self funder
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This clause establishes the concept of independent personal budgets for adults who have eligible
needs, and who choose not to have these needs met (and not even funded through a direct
payment) by their local authority.
Ss(1) defines the independent personal budget as a statement that shows the amount that it would
cost the local authority to meet the adult’s eligible needs, less what carers are doing, less daily living
costs.
According to government: this ‘notional’ cost is used to ensure consistency between the
independent personal budget and the personal budget in the care and support plan, so that people
who choose to spend ‘more’ on their care do not reach the cap more quickly.
If an adult refuses a reasonable request to be re-assessed, then their independent personal budget
will cease counting towards their accrued costs and the local authority will not have to keep their
care account up to date.
If an adult moves to another local authority’s area, the local authority from which the adult is
moving must retain the record of their care account up to the point they left for either 99 years, or
until they are notified that the person has died.
Disputes about the difference between the notional cost and the real cost of meeting needs, and the
difference between a need and a want, will bring the system to its knees, in my view. Especially if
there is no care PLAN for these people, because there is no duty to meet need. There needs to be
an adjudicator, if for no other reason than article 6 exposure. This will arguably be determination
of civil rights and obligations, for article 6 purposes, for self funders, in my view.
The charging provisions - expected to be commenced in April 2016, and eligible care costs
will only start counting towards the cap, from the date of commencement of the clauses.
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Because care needs are unpredictable, people do not know what care costs they might face in the
future. A quarter of people may need to spend very little, but one in ten people will have more serious
care needs, and will face care costs in excess of £100,000. Under this new scheme, people will still have
responsibility for their initial care costs, but in the eventuality that they need a lot of care, they will not
face catastrophic costs.
The power to charge is subject to clause 15 which stipulates that the local authority cannot charge an
adult for meeting needs if the adult has reached the cap on care costs; however, a local authority can
still charge for daily living costs.
People will remain responsible for a contribution towards general living costs. In their own home,
people remain [privately] responsible for non-care expenses such as utilities and rent [and these don’t
count towards your costs cap]. In residential care, they will pay a contribution of around £10,000 in
2010/11 prices (equivalent to around £12,000 in 2016/17) to help meet expenses associated with
room and board. Clause 15 ensures that progress towards the cap will not include people’s
contribution towards their general living costs.
When a person has care and support needs but does not qualify for financial support from the local
authority, they are still able to request that the local authority arrange the care and support that they
require on their behalf.
Where the local authority arranges the care and support necessary for that sort of individual,
subsection (1)(b) gives the local authority a power to charge a fee to cover the costs of arranging that
care and support. However, the local authority may not charge such fees in relation to any types of
care and support specified as free in the regulations under ss(6).
SS(4) provides for the level of the cap to be set in regulations, and includes power to set the cap at
different amounts for people of different ages. This will allow the cap to be set at different levels for
working age adults, and includes the possibility of setting the cap at zero for specified categories of
person, for example people who have eligible needs for care and support when they turn 18. What
about if they inherit money???
What are Dilnot/DH Dilnot critics saying now?
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With time to study and understand the plans, a growing number of people are
realising what has been clear for the last two years: the reforms will not actually
achieve any of their objectives.
First, nobody will be protected from ‘catastrophic’ care costs, even those who reach
and pass the ‘cap’. This is because of the difference between the rates self-funders
pay for care and support and the rates that local authorities pay.
At most, those who reach the ‘cap’ will become aware of a generous co-payment
from their council. Second, despite intense pressure from Number 10 on the
insurance industry, it is clear that the reforms will not lead to a market in pre-funded
long-term care insurance.
Partly this is because the entrenched demand and supply-side barriers to such a
market would never be overcome merely by implementation of the ‘capped cost’
model.
It’s also because the £72,000 ‘liability’ the reforms are supposed to leave individuals
with is itself actuarially uninsurable.
Third, it remains highly unlikely the reforms will provide ‘peace of mind’ to the
population. Why? This is because – as described – the ‘cap’ is not a cap, and because
the £72,000 threshold will be uprated annually at least in line with inflation.
A pensioner who hears about the £72,000 ‘cap’ in 2016 is likely to be left shocked
and dismayed to find it raised to £75,000 just a year later. –
See more at: http://opinion.publicfinance.co.uk/2013/09/dilnot-2-0-making-the-capfit/#sthash.KlLNqItX.dpuf
Delegation of local authority social work decisionmaking functions
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A local authority may delegate the carrying out of all needs assessments to a third party
organisation, including s117 Mental Health Act aftercare needs, or it may choose to delegate
assessments only for certain groups of people, but carry out other assessments itself.
Really interestingly, charging, safeguarding and making direct payments can not be delegated….
And there is no mention of independent social work practices, any longer. It’s delegation out to ANY
third party organisation, unless the Secretary of State applies conditions under the power given. Oh
my goodness, that means even me. I can write your reasons for saying no for you, if you like!
When delegating any function, the local authority may impose conditions on the way the third party
may exercise the function. Delegating the function does not prevent the local authority from being
able to carry out the function itself. You are in charge, not your contractor…
It is made clear that anything done (or failed to be done) by the third party is treated as done (or not
done) by the local authority itself (though as ss (7) makes clear this does not mean that the third party
can avoid liability for any criminal actions nor for any disputes between it and the local authority
arising out of any contractual relationship between them).
This means that the delegation of any function does not absolve the local authority from ultimate
responsibility for ensuring the function is carried out properly and in accordance with all relevant
statutory obligations.
Ss (8) makes provision permitting the disclosure of information between the local authority and
anyone to whom it has delegated a function under this provision (even where such disclosure would
otherwise be unlawful) where such disclosure is necessary for the exercise of that function.
Schedule 15 of the Deregulation and Contracting Out Act 1994 Act contains detailed provisions
governing the disclosure of information in cases such as this (where a function is delegated to a third
party). The effect is that the third party may be given information by the local authority where it is
necessary for the exercise of the delegated function but the third party is then subject to the same
kind of confidentiality requirements in respect of that information as was the local authority.
Independent social work:
the lessons from the Cambridgeshire case…
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The independent social worker had not been properly engaged by the council with
a clear contract, and was not clear about his role, which was as the fact finder, so
that the council could make a decision based on his investigatory work...
He was criticised by the court for having allowed himself to be used as the conduit
or mouthpiece for the client’s mother to assert what she wanted, as opposed to
giving his professional and independent view as to what was needed.
The council was criticised for allowing that to happen without getting a grip on the
situation.
It accepted his assessment of need, but not the identity of the provider or the
costings asserted by him for adequate meeting of the needs, but did not have it
out with the mother that she was not actually going to down tools altogether…
I do not expect it was a happy or productive experience for any of the participants,
on that basis.
And it goes without saying that anyone who has to win a contract on a regular
service review cycle and no doubt deliver savings, will be perceived to be less than
fully independent.
Monitoring of the contracted out social worker therefore becomes critical, and I do
not think that the local authority contracts culture has developed any real
expertise in genuine monitoring or performance review of commercial external
organisation…
Ordinary Residence
• Despite much fanfare about making social care ‘portable’, no such thing
has been done or attempted! There’s another Bill being tried, but it can
never happen in practice – costs and providers vary too much....
• Continuity of care has been supposedly guaranteed by making the
receiving authority liable for the cost of whatever the sending authority
had been doing, unless or until the receiving authority gets its act
together to do a proper reassessment and come off the fence about
setting and means of meeting need!
• This is done through a duty to inform the receiving council of the
person’s intention to move away to take up ordinary settled living
elsewhere.
• Councils can still legally ‘FORM’ this intention for people without
capacity, if they have taken out deputyship.
• And relatives can still move people without capacity without anyone
knowing, and the on the spot council would still have to pick up, but
without warning.
© Belinda Schwehr, 2013
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Continuity of Care
• Any authority currently paying for someone's care and support (of
any kind, ‘in’ area or ‘out’ of area) is obliged for the first time to
notify another council if a person expresses an intent to move
elsewhere, with a view to becoming ordinarily resident there.
• If the intent is regarded as genuine, by the receiving authority, then
whether or not the original package was a package of home based
support, or a contractually arranged package of accommodation AND
care or support, then, where the individual is moving into their own
home, in a new area, or the area where they had been placed in a
care home - then the receiving authority must assess the individual.
• There is no continuing duty on the current council to spend its tax
payers' money on people who have left the area for good; this clause
is just really about putting some pressure of the new council to
arrange for an assessment to follow as a matter of course upon a
person's decision to move – but this would be the law anyway,
regardless of notification by the council, or by anyone!!
© Belinda Schwehr, 2013
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Ambiguity and Ordinary Residence
•
Subsections in the Bill purport to clarify a major issue of ordinary residence of our time – ie which
council is liable when a person moves and has care that is related to the specific type of
accommodation in question:
– the law already says that if the council arranges the accommodation, in the sense of
contracting for that element, it remains liable for the care wherever the accommodation is
situated; this is because the NAA says that this happens when care together with
accommodation is being bought or where the council makes arrangements that count as s26
NAA arrangements…even if for unregistered care.
– but neither Supported Living Commissioners, nor the Housing with Care Sector has ever
understood that ‘arranging’ here is a term of legal art – arranging only occurs where the
council contracts for the accommodation – and not when it facilitates it!
– so when a council merely facilitates the finding of a tenancy, which the client then signs for
himself, that is not arranging, nor is it a placement.
– so – assuming the regulations specify the accommodation as arranged by a council in a
registered care home or contracted for in ordinary housing – the relevant clause about o/r
does not change the law for anything, not even those few rare Shared Lives placements –
they always were made under s21 NAA, (even if into unregistered accommodation), if, that is,
they INVOLVED a council paying for the accommodation, and not merely care services being
supplied separately to the holder of a tenancy or a licence; so O/R was continued by the
s24(5) NAA deeming provision; and the new wording in the relevant clause will just continue
that legal truth, in my view.
© Belinda Schwehr, 2013
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The underlying power to provide services
• This geographical extent of the mere power to provide services for a person
needs clarifying. It is clearly a power to provide for a person ‘here’, who is
ordinarily resident elsewhere, and that makes sense, because as long as the
other council knows, it can do its own assessment and make a proper decision as
soon as possible, and pay back the council who has stepped ‘up’ and ‘in’….
• But it does not clarify whether this is supposed to mean the council has the
power to meet the needs of a person who is not only ‘ordinarily resident’
elsewhere but also physically resident in the other area than the one in question
which is considering doing the funding.
• Given that councils have been doing this for years, with learning disabled people,
ie paying for people in tenancies out of area, because they are the ‘sending’
council which has facilitated the service user into a tenancy in the new area when
a care home de-registered, or when tenancies just over the boundary out of area
became available (and because it would have caused chaos if councils had just
ceased to fund the care, the minute they were no longer obliged to, upon
cessation of a care home contract for the person), the DH's position has perhaps
HAD to be that it is at least lawful to spend a council's money on a person - even
if they are living as a tenant in another area, through a capacitated choice. But
what would one’s local tax payers think of that, I wonder?
39
© Belinda Schwehr, 2013
What does it all mean?
• An equally possible position is simply that until it is clear that
a person is coping in their tenancy, and thriving as intended,
they should not LOSE their ordinary residence status with
their old authority, whilst they are trying it out.
• But the political and economic risk transfer inherent in that
option, given that the longer someone has been in situ, the
harder it always is, in practical terms, for the new council to
change the mode and manner of service delivery, and spend
less than the old, would still lead to determined exporting of
individuals with high cost start-up packages.
• So I think that this clause is based on the belief that it is better
just to make it clear that nobody should be facilitated into a
tenancy without the currently responsible authority telling
them or their attorney, deputy, appointee or Suitable
Person, that signing a tenancy elsewhere will mean the end
of care and support relations with that first council….
The s117 mess
Provisions including a definition of aftercare and what it can be
and what it can be FOR are included for the first time,
controversially, restricting discretion of mental health services.
The dispute mechanism regarding which authority has to take on
the job, run by the DH would cover s117.
The rules for s117 responsibility would be changed (again) to go
back to ordinary residence before the moment of sectioning – the
MHA is being amended by the Care Bill
(3) In subsection (3) of section 117 Mental Health Act, after
“means the local social services authority” insert “—
(a) if, immediately before being detained, the person concerned
was ordinarily resident in England, for the area in England in
which he was ordinarily resident; [so if he was placed in x by y
council, in a care home, and then sectioned, he would be
responsibility of y, not x, as is currently the case, based on
physical residence)
And during the period of accommodation provision under s117, another provision
deems the person to be O/R where their authority of responsibility is, not where they
happen to be placed. I think this is GOOD and is consistent with the NAA! But it’s not
consistent with the current deeming provision, which is impossible to follow: compare
the proposed deeming provision, with the current one in s24(6) of the National
Assistance Act:
Current deeming rules: if you are provided with s117 accommodation by a CCG, your
place of ordinary residence does not move to where you are put. But if you are
provided with s117 accommodation jointly with a local authority, or the local authority
does the placement, you might be taken to be moving your place of O/R to the place
where you are actually PUT. And that means that when you are taken OFF of the
section 117, your authority of responsibility for ordinary social care, can have moved
to the place where you were PUT.
Proposed deeming rules:
(4) An adult who is being provided with accommodation under section 117 of the
Mental Health Act 1983 (after-care) is to be treated for the purposes of this Part as
ordinarily resident in the area of the local authority on which the duty to provide the
adult with services under that section is imposed.
Fees Reviews - what happened in Pembrokeshire?
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The Welsh based care homes were in contract, already, with the council, but
challenged a nil per cent increase offer, via Judicial Review.
The contract specifically allowed the council to fix the rates of increase.
The challenge complained that the council had ignored relevant considerations,
such as inflation, the Working Time changes, the preponderance of smaller homes
in the area, without economies possible; the extra care needed by those in
nursing home, the local regulator’s approach to minimum care hours, etc.
The care homes won; the judge said the council had no evidence whatsoever
that they’d had anything other than their own budget in mind, when
negotiating, and had not followed government guidance from the WAG
requiring a mid term strategic approach and a culture of partnership, in
commissioning! The judge stressed that having done that, the council could again
offer nil per cent, but not if they concluded, having done proper consultation, that
the market might not be successfully sustained, mid-term.
The council said it would cost them £1.5m more, to listen properly and respond
appropriately. They then said they’d apply the L&B tool, allowing for 12% ROCE,
and then based their offer on 6% - Bang! Back to court, and another win for the
care homes…. based on legitimate expectation - Mavalon.
© Belinda Schwehr, 2013
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What did the guidance say?
The 2003 guidance applicable at the time of the commencement of
negotiations, from the Welsh Assembly government, had said
“6.2
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. Contract Prices should not be set
mechanistically but should have regard to providers’ costs and
efficiencies and planned outcomes for people using services’.
The equivalent English non-statutory ‘agreement’ had said the same
thing in exactly the same words (in ‘Building Capacity’, 2001).
So the stage was set for leakage of this principle, into judicial decisionmaking in the English legal jurisdiction…
© Belinda Schwehr, 2013
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Sefton – the English case on the Pembrokeshire principle
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This judge repeated the analysis of the legal framework in the Pembrokeshire
case and thought that the distinction between formal statutory guidance the
WAG guidance in Wales, the Choice Guidance in both countries, and general
practice guidance [England’s ‘Building Capacity’] was of no significance.
The Council did not act in accordance with the Choice Guidance or Building
Capacity Agreement when it dismissed the Claimants’ concerns about fees,
without first having sought particulars of the actual costs of care.
At meetings in September, the Homes’ representatives had raised
“what we considered to be the chronic underfunding by the Council in respect
of its fee rates. We raised our concern about the way the Council was trying to encourage
investment and transformation, yet at the same time was not paying a rate that allowed
providers to meet and maintain the basic standards, let alone invest and transform”.
Reference was made to the proposed 2% increase for the years 2011/12 and 2012/13
(referred to in paragraph 32 above), the Claimant’s representatives maintaining that
having regard to the inadequacy of the existing basic fee, there was “the dire need for the
Council to increase its fee rate beyond its committed 2%. We kept saying that providers
desperately needed the Council to set the basic fee at a rate that reflected the actual cost
of providing the services that it commissioned.”
© Belinda Schwehr, 2013
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The Council’s evidence – how would yours shape up against this
benchmark, if this council lost the case, despite saying all this?
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The Council did not obtain or consider evidence of the actual costs to providers of providing care, but it did ensure that
a range of intelligence data was obtained and provided to those considering fee levels, aimed at ensuring that a
sustainable and developing market in care existed. The evidence was that fees were set at an adequate level to ensure
such a market.
Fees were set at a level intended to ensure that all assessed care needs of supported residents were met. Indeed over
the years from 2003 the quality of care provided to supported residents had increased by reference to the numbers
obtaining star rating premiums. No complaints had been received from residents or their families about deficiencies in
service levels.
Fees had broadly kept pace with inflation at least until the end of 2009.
No hard evidence had been put forward by providers to substantiate the assertion that fees were inadequate to meet
the actual costs of care; and no evidence had emerged regarding service delivery or quality issues relating to funding
issues.
Whereas complaints had been made by and on behalf of the Claimants regarding the level of fees, complaints had not
been received from other providers.
No care home that had closed since 2003 had done so because of inadequacy of funding. The Association led no
evidence to contradict this assertion.
There was a market in care homes in Sefton.
There was significant capacity in residential and nursing home provision, with beds being available at the Defendant’s
rates. No provider is obliged to take residents funded by the Defendant and yet there was no difficulty in obtaining
placements. However the Judge noted that the Defendant had a dominant position in the market.
The Defendant’s fees were in line with those paid by other nearby local authorities. Some nearby authorities paid
somewhat more, but others paid somewhat less. But Laing and Buisson reported that of councils responding to its
annual review report, 140 had frozen or reduced fees, 11 gave revisions in what was described as the ‘stand still’ band
of 2.29%, whilst just 7 increased base line fees at a margin enhancing rate of 3% or above.
© Belinda Schwehr, 2013
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The council argued hard, as follows, but lost on the
basis of one fatal assertion:
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if the Defendant, by virtue of its dominant position, can obtain the provision of care at less than the actual
cost, then under paragraph 3(b) of the 1992 Directions, the usual cost of care will be less than the actual
cost.
if the Defendant is able to demonstrate that the usual cost is sufficient to meet the assessed care needs of
supported residents, then paragraph 3.3 of the statutory [Choice] Guidance is satisfied, even if the usual
cost is “way off” the actual cost.
nothing in the Choice Guidance requires the Defendant to undertake an actual assessment of actual costs
[to them or to the providers].
the fact that the Defendant is not in possession of actual costs information is the responsibility of the
homes, who, under the Building Capacity Agreement, had the obligation to be proactive, and to be able to
provide a full breakdown of the cost of services and to undertake prompt and timely communication with
the Defendant. It was stressed that the Agreement envisaged “joint working” and collaborative
engagement.
The Defendant stressed that at no stage did the Claimants ever suggest that the Defendant should
undertake an assessment of the actual cost of care and in the years up to and including April 2009 sought
not a reassessment of the fees, but a quantified or percentage increase on the fees being paid.
It could demonstrate by reference to the evidence of an officer that the fees made adequate provision for
the costs of care.
BUT
The Council’s own risk assessment for Cabinet in 2009 indicated that without the modest increase in fees
then recommended (and paid) the Defendant “may not be able to fulfil its statutory responsibilities for
vulnerable people to receive care in either their own homes and in residential accommodation”.
© Belinda Schwehr, 2013
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On the inadequacy of the consultation
•
The Council’s barrister submitted that the consultation carried out in this case, whilst
“not brilliant” - was, in the context of the circumstances and history, ‘adequate’.
•
The judge found that there was no consultation in any meaningful sense with regard to the Defendant’s
proposal to freeze the fees. “The Defendant failed in its duty to engage in proper consultation with the providers
of care homes, including the Claimants [for the following reasons]:
The proposal to freeze the fees for 2011/12 was not communicated to the providers at a formative stage; indeed
the savings proposal dated 28 July 2010 was not communicated at all to the providers, albeit that at the meeting
on the 9 November 2010 the Claimants’ representatives were told that the Defendant’s representatives
expected a freeze.
The Defendant did not initiate any dialogue with regard to its fee proposal with the providers and kept back the
information about the proposed savings and freeze when it knew of them.
The Defendant did not engage with the Claimants on the concerns they expressed, including the contention that
the basic Fee was set at a level “far below the price necessary to allow a viable sector” and at a rate which did
not reflect the actual costs of providing care. The Claimants concerns regarding the future were simply
discounted, with no attempt being made by the Defendant to obtain substantiation of the Claimants’
contentions. There is no evidence whatsoever that the Claimants’ views and concerns were taken into account
either “conscientiously” or at all at a time when the ultimate decision was taken by the Council. Indeed it does
not appear that those concerns and expressions were ever communicated to the Cabinet or Counsel.
The Defendant’s own process up to and including 2009 provided for actual engagement in discussions with the
care home providers, taking account of their representations, reporting the same to Cabinet and the Council
and making recommendations. In 2010 the Claimants’ representatives were confronted with a fait accompli with
an absence of any real consultation.
The judge was unable to say whether the result would have been the same given proper consultation, and on
this ground alone would have quashed the decision.
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© Belinda Schwehr, 2013
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The broadest ambit of this judgment
The judge considered whether the Council failed, or failed properly, to assess the risks of its decision
to care homes and to residents, contrary to its duties under common law and/or Article 8 of the
ECHR?
“In the Forest Care Home case, Hickinbottom J stated (at paragraph 46(6):
“(6) In making strategic or individual decisions, an authority must have proper regard to the consequences
such decisions will or may have on both providers and, especially, the residents of care homes. As with any
such assessment, the authority must have regard to both the nature of potential adverse consequences, and
the chance of such consequences coming about. A potential or even actual, adverse consequence for
providers or residents or both will not necessary be determinative of a decision - an authority does not have a
guarantee that its decision will not have adverse consequences for some interested party - however, an
authority cannot make a decision that may have such consequences without proper consideration and
compelling reasons. That requires an authority to identify any relevant risks, and then assess those risks in
terms of the chances of the adverse event occurring and the seriousness of the potential consequences if it
does.
That is particularly so in respect of potentially adverse consequences for residents, who are necessarily
elderly and vulnerable and whose interests are at the heart of the commissioning of care services. An
authority cannot make a decision which potentially has adverse consequences for a resident, such as a move
to another home or a reduction in the level of care, without proper consideration and compelling reasons.”
“It seems to me that if the Claimants can make good their contention that the fees are set at a level
significantly below the actual cost of the provision of care then the Defendant's risk assessments will
be invalidated in failing to take such fact, and its implications, into account. It follows that its risk
assessments will need to be revisited by the Defendant having regard to the Claimants' further
submissions.”
© Belinda Schwehr, 2013
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Suggestions, whilst councils are busy inviting
providers to consultation meetings…
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Councils can at least show care homes the parts of the judgment that imply that if providers want to be
listened to, they need to be ‘open’ about the costs, and hence their profit margins!
Ultimately, unless a contract says any differently, any council can choose to offer less than is required to
keep homes viable, so long as they can do their duty and have not messed up risk assessment by shutting
their ears to pleas.
But homes can decide individually (unless the contract says differently) that they will not sell beds for less
than they think it is fitting for them to sell, by way of a package, and hold out for higher fees from other
clients.
Ultimately, it is the councils on whom the statutory duty to lies to provide care and attention to those for
whom it is not otherwise available.
The moral is, if councils can make the care available in people’s homes, for less, demand would fall and
prices would go down. But the cost of night sitting, the fact that relatives don’t have an obligation to care,
and the demographics we’re facing, all suggest that homes’ beds will still be filled in the years to come.
Ironically, in the end, that may reduce the pressure on councils to pay for the real cost of care, as self
funders continue to subsidise the cost – but only if councils let homes get enough of the population IN, as
self funders, in the first place.
Until then, my view is that if councils want homes to be open about their costs and their profits, councils
should be able to show a rational evidence basis for what they assert to be the cost that they usually expect
to have to pay, for standard care, by indicating, transparently, the percentage of the beds that they fund, in
a given year, which are available to them, at particular rates, for various levels of dependency, or within
particular client groups.
• If more than 20% of those beds require a top-up, that should be an early
indicator that the council is not paying a proper rate for care - Birmingham.
© Belinda Schwehr, 2013
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Leicestershire – a judge finds that a positive duty to
consult providers actually exists
The court said this:
• “In my judgment, there was a duty to consult in the present case. Judge
Raynor, in the Sefton case, on the other hand, could deduce such a duty from
the guidance in paragraph 5.9 of Building Capacity[17], and from a legitimate
expectation arising from past practice, the importance of the fees to the
claimants and residents, and common law fairness.
• To these factors can be added in this case the assurance, given on 1 July 2010
(see paragraph [26] above), that EMCARE would be involved in the next price
review at an early stage. These points outweigh any contra-indications which
can be derived from the standard agreement between the Council and care
home providers.
• As a matter of judicial decision, affordability is a highly relevant
consideration in the making of a decision on rates, subject to the local
authority being able to meet its duties at the rates it offers.
• “This [the consultation process in Leicestershire] was, in my judgment, an
imprecise and unfocused approach. These rather general observations were
not a proper substitute for asking, and answering, the question – what does it
now cost to keep someone in a residential care home in Leicestershire? A
much more analytical, indeed arithmetical, approach was called for once
EMCARE had raised the issue of the gap. If the vital question was not asked,
the process was fatally flawed. The case seems to me to be, at its root, as
simple as that.”
Neath Port Talbot – a council’s success in a JR about fees!
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NPT was sued for want of sufficient consultation, and an irrational approach to what
they were told, when they held out for offering £426, instead of £457 mandated
under the L&B tool, or the £499 the providers wanted.
The council won, and that is because they were able to prove that their project
manager did listen, and did address the providers’ concerns, so far as it was
reasonable to expect him to do so on the council’s behalf.
The providers won to this extent: it was confirmed after proper argument that such a
negotiating stance, even within an existing contract, was amenable to challenge
within judicial proceedings, even though it was about actions within a private
contract with the care homes. The purpose of the contract was the discharge of
public functions to eligible people and that was enough. The previous case law was
explained and distinguished in terms of what was actually being challenged or argued
in those cases.
The council has won in terms of its stance not being unlawful, but what does it mean
in practice?
It means that councils will be able to say that it’s not unfair or unreasonable for them
per se, to offer less than what is asked for, but the case says nothing about what will
happen if providers actually start to terminate, or Just Say No. It is a free world, and
providers may well think it’s time to stand up for what they believe in, if they take
some pride in providing care…
© Belinda Schwehr, 2013
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What mattered in this case, and made
all the difference?
The consultant’s treatment of the following issues:
• Overview of trends and assumptions about demand and
personalisation
• The reality of the offer in the context of previous offered
rates
• Openness and transparency during consultation
• Proper attention to the homes’ evidence – or lack of it - as
to financial pressures
• Proper attention to the residents’ welfare and quality
issues
• Reference to the council’s resources and what was
considered to be affordable
• Occupancy and ROCE issues referring to real and assumed
rates and costing tools
Why does this legal development matter for the NHS?
• The judgment must have very important implications for the NHS, and any other
public body, purchasing services of a welfare nature whose procurement is
regarded as outside of the EU and domestic Competition law framework, and
despite all the rhetoric about the so-called efficiency of mixed public/private
partnerships for the securing of these services from the market…
• The context of the contracting is what made this decision open to judicial review
in the first place, and open to it on conventional public law grounds. The Cooperation and Competition panel that operates within the NHS commissioning
framework needs to take on board that it will not be the only remedy open to
disgruntled providers, in light of this decision.
• If the two principles - that commissioning for public services, the necessity for
which derives from statutory functions, attracts judicial review, and that all
relevant considerations must be taken into account in contracting, apply across
the board, then the NHS’s wider approach to contracting for CHC must also be
susceptible to JR. How can it be reasonable to pay less for CHC, than for a council
funded nursing home bed, when one has be half dead to qualify and keep one’s
CHC eligibility – and when it means that the council sector, and not just private
clients, are subsidising the cost of the NHS’s statutory duty to secure CHC
services?
Newcastle, South Tyneside, and
Northumberland
• Northumberland has improved the Council sector’s score...
• South Tyneside - the judge said that ROCE and/or profit had to be allowed for
as part of the actual cost of care.
• In Newcastle, the court held that the imposition of a discount after the time
the agreement for one had ceased was not lawful, if it took the form of saying
No more placements for YOU – even if people want to come to your home.
• Newcastle failed on other grounds to do with mis-populating the PWC cost of
care tool, using figures for inflation which were inaccurate, and by making a
deduction for efficiency savings which was not justified, as well as stripping out
almost all return on capital expended.
• They also lost on inadequate consultation, too - the providers’ views were not
accurately reported to the decision-makers, and the providers were only asked
a limited number of questions in the first place; also, the reasoning behind the
council’s thinking on rates was not disclosed to the providers, until after the
decision was finally made.
•
•
Of interest to lawyers is the standing point: refusing to contract for a placement of a particular client’s
choice, is a wrong to the client, not to the care home, which is a business, and which must stand or fall by
reference to its competitiveness on price as well as quality; yet the care home group was able to succeed in
this case, by characterising this stance as abuse of a dominant position in the market to drive down fees
(albeit the action was nothing to do with the UK’s Competition legislation) and by pointing to the nonstatutory guidance.
Allowing providers, as opposed to prospective clients, to bring this point to court, may be appealable, but it
is hard to see the point of appealing when the loss of the case on the consultation-related grounds was so
clear cut. And the conclusion on this ground, is not indefensible, even though the providers were perhaps
lucky to get a judge to go as far as this one did, without a real client with frustrated Choice rights, being
joined in. The conclusion (whoever raises the issue) amounts to saying that it is unlawful for a council to take
a blanket position that a lack of consensus on price amounts to a justification for ignoring a person’s Choice
rights – and that could either be because
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it was a fetter of the council’s functions to place people in appropriate settings, or
a failure to act under the above guidance, or
a failure to understand that the price point asserted as the usual rate is a separate issue from the question of
the other terms that are being negotiated between the prospective parties and which have to be agreeable to
both sides, before a person HAS a right to choose a particular care home.
These alternative analyses provide different but not inconsistent reasons in support of the approach in other
(older) cases that an authority must be prepared in judicial review proceedings to defend the coherence and
rationality of its evidence basis for asserting as its ‘usual rate’ any particular fee, within any particular client
group. The most obvious way of doing this is to point to the willingness of the vast majority of homes to
contract at the rate offered by a council; but of course that can’t be done, if there is no real consensus as to
fees. The case brings us back round to the proper analysis that councils do not ‘set’ fees in this sector, as
such; they achieve consensus, or otherwise, but they still have to be able to provide and fund enough beds,
under positively agreed prices within concluded contracts, for those who have a right to be cared for.
© Belinda Schwehr, 2013
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Northumberland 2013
• In this case, the providers argued that the approach of the
council was so bad that it justified bringing judicial review
proceedings – but 70% of them signed up to the new contract at
the offered price – without moaning very much at all. So the
council had evidence it could discharge its duty for less than it
had paid before…
• Providers are not MADE to accept an unfeasibly low price, in this
world – they choose to, or you choose not to.
• They should be warned, and make grown-up decisions, without
breaching the Competition Act.
• They should in my view get legal advice before they drop their
price or give a discount.
• And they should be making this a political issue!
© Belinda Schwehr, 2013
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Commentary upon the likely impact of the decisions
• Councils will be more inclined to offer what they want to pay, rather than what
the provider market tells them that they should have been paying, and ought
to be paying, for the future.
• The consultant’s approach in this case was text-book perfect and can be
copied.
• The market clearly also needs to take account of what is said about openness
in this case, and in the Pembrokeshire and Sefton cases.
• Private sector companies can feasibly choose to cross-subsidise across their
homes portfolio, for commercial reasons, or take short term losses for the sake
of the long term, but smaller not-for-profit and charitable organisations do
have to aim for full cost recovery, because of charities law, and they may be
more willing to show the commissioners what the impact of freezes or cuts will
be on their bottom lines, it is suggested; and if they are willing to be more
transparent, then the mood in the provider market about ‘commercial
sensitivity’ may well shift a little.
• I do not believe that large private sector providers will ever open their specific
homes’ management accounts to scrutiny by the public sector, but the
emphasis in this case is that if one expects to be listened to, one has to speak
openly to the council, at the relevant moment.
• The Public Sector (Social Enterprise) Act will make providers HAVE to add back
‘gain’ in order to be able to compete with charitable and not for profits
organisations, in relation to social and economic benefit…
Which way will it go, now, fees-wise?
A bullish approach, by councils, now, in the light of this
commissioning victory, may mean that the market faces a
heightened risk of collapse, as more home operators decide to
get out of the sector, and sell off their properties as buildings,
rather than as going concerns.
Another alternative is a new round of hostilities, because care
home businesses start to think about the longer term, feel
unsupported by the courts, and begin to Just Say No.
That is, providers may refuse to respond to tenders which
admit of no differential pricing for levels of dependency, or
which use e-auctions to bid the price down; or even choose to
terminate existing contracts with the public sector, who are,
after all, bound by a duty to provide, if they cannot purchase.
This would mean providers separately figuring
out that they all really do need to say…
‘No’ to framework contracts that are only tendered at a flat rate in the first place;
‘No’ to bidding down from the framework price, or lower than they can feasibly afford, if
no price has been set, and only the terms, in the framework;
‘No’ to spots, where the terms mean that next year’s fee will be reviewed and probably
decreased;
‘No’ to contracts with unilateral variation clauses running through them, potentially
changing the spec to something that transfers more and more risk, and yet which still
expect to ‘gain share’;
‘No’ to contracts where the home is expected to do the actual statutory work of the
public body for it, for free – eg doing the assessments of needs, doing the reviews, doing
the contract monitoring, collecting top-ups, collecting statutory charges from the clients,
acting as appointee, doing the paperwork for FNC and CHC assessments, and carrying all
the financial risk in relation to cash flow. …
‘No’ to ‘evergreen’ clauses, which provide that should the contract ever come to an end,
whether through expiration or termination, the provider agrees at the outset that the
clients in the beds at that point should be able to stay on, at the most recently agreed
rate, for as long as the purchaser likes – thereby preventing the provider from ever suing
for a quantum meruit (fair rate) for the services that the home continues to deliver, to
the council’s or NHS’s clients, feeling itself forever bound by a duty of care…
And the LGO and the Courts are really going for
councils over choice and usual rate...
There’s been a Local Government Ombudsman’s decision in a complaint about
Southampton City Council’s attitude to seeking a top-up when there was no actual
other available bed at the usual rate!
The facts
Care was needed for Mrs Elliott who had been taken into hospital following a
stroke. The family was told that they needed to find a nursing home as Mrs Elliott was
ready to be discharged. The family received ‘phone calls from the hospital and from
social services seeking an up-date on finding a care home place as they wanted to
discharge Mrs Elliott. The family felt under a considerable degree of pressure to find a
suitable placement. The council’s usual rate was £453.74. None of the care homes
visited provided care at the council’s usual rate. The family asked for a list of the care
homes which could provide care for Mrs Elliott at the council’s usual fee. Just one care
home was identified. It did not have a place available. The family selected care home
‘B’ and Mrs Elliott moved into it. The family asserted to the LGO that they were put
under pressure by social services.
In consequence of the fees and the lower level at which the council had set its usual
fee there was a difference of £187.56 per week. That difference was demanded and
paid by the family by way of a Third Party Top Up. The family was unhappy that the
council had set its usual fee at a level at which they had been unable to secure
appropriate care.
The LGO found for the client, based on the
directions on Choice, last updated in 2004:
The council agreed to:
1. Meet the full cost of care from the moving in date.
2. Refund all the top-up payments made, previously, plus interest;
3. Pay £500 to Mrs Elliott’s family for the time, trouble and distress caused;
4. Review its guidance to staff; and
5. Negotiate access to placements at the ‘usual rate’ in the short term, and in the medium
term, to hold discussions with care home providers to develop an agreement on fee levels.
The LGO quoted from the Directions:
•
Para 2.5.4 “One of the conditions associated with the provision of preferred
accommodation is that such accommodation should not require the Council to pay more
than they would usually expect to pay, having regard to assessed needs (the ‘usual cost’).
This cost should be set by councils... to be sufficient to meet the assessed care needs of
supported residents in residential accommodation.... In setting and reviewing their usual
costs, councils should have due regard to the actual costs of providing care and other
local factors.”
•
Para 3.3 “When setting its usual cost(s) a council should be able to demonstrate that this
cost is sufficient to allow it to meet assessed care needs and to provide residents with the
level of care services that they could reasonably expect to receive if the possibility of
resident and third party contributions did not exist.”
The LGO’s approach on the facts…
15. The Council’s response to my investigator’s enquiries stated it had searched providers to find
the nearest placement available. On the day of the search Care Home C was deemed to have
availability because it offered to carry out an assessment for Mrs Elliott. However, Mrs Moore
provided me with written confirmation from Care Home C which stated no place was available at
the time of their visit.
“24. Government guidance states councils should set their ‘usual rates’ at a level sufficient to
allow them to meet assessed care needs and to provide residents with the level of care services
required. The Council says it sets its ‘usual rates’ annually but it has regular weekly contact with
care homes in its area to assess care availability and pricing.
26. Government guidance states that where a home is not available at the Council’s usual rates, it
should make suitable alternative arrangements and seek no contribution from the individual other
than their assessed contribution. So it seems to me Mrs Elliott’s family should not be paying the
additional top-up cost of £187.56 per week.
27. I recognise the Council’s view is that a place was available at Care Home C. So, it felt Mrs
Elliott’s family actively chose more expensive accommodation at Care Home B. In fact, Care Home
B was the least expensive accommodation available at the time. It seems to me the family reached
their decision because there was no availability at the Council’s usual rate, at a time when they
needed to find suitable accommodation for Mrs Elliott. The complainants were conscious of the
need to free up Mrs Elliott’s hospital bed.
28. In my view, because no accommodation was available at the Council’s ‘usual rate’, the Council
should have paid to accommodate Mrs Elliott in suit-able accommodation elsewhere and it should
not have sought additional top up fees beyond Mrs Elliott’s assessed contribution. Therefore the
Council should pay the full cost of Mrs Elliott’s care in Care Home B less her assessed contribution.
29. Given the apparent lack of accommodation in the Council’s area at the Council’s ‘usual rate’, I
asked the Council to comment on the appropriateness of its current fees. I asked the Council to
review whether there was a need to change the rate to reflect the market conditions in its area.”
Thank you for reading all this!
• I will be supplying trained-up trainers of my own, at low rates, for
bulk bookings, over a fairly intense period in late 2014/2015.
• Until then, I am going to be doing high-level briefings myself, for
senior management teams.
• I never give an opinion about what the law means without having a
reason to go with it.
• I believe that Legally Literate Leadership is an idea whose time has
finally come, within adults’ social care…
Belinda Schwehr, Care and Health Law
You can contact me on [email protected], or 07974
399361
My administratorDebbie Tomlinson on [email protected]