Transcript The Care Bill A legal and strategic focus for ADASS NW Region

The Care Act
A legal and strategic overview
Belinda Schwehr
Care and Health Law
[email protected]
01252 725890 / 07974 399361
www.careandhealthlaw.com
© Belinda Schwehr, 2014
Care Act Overview Coverage
• The changing scope of social care (and associated cost-shunting potential!) and
the notion of well-being…and consequential significant impact on it…from
inabilities, as defined, to achieve the daily living activities, in the Eligibility
Regulations
• The impact of the DH vision for advocacy – game-changing, for ever…
• Dilnot highlights – the raised threshold and its implications, the workload, and the
cap
• Strategic planning and commissioning duties – including the urgent decisions
• Portability, continuity and changes to ordinary residence
• Outsourcing of your staff, or buying in extra?
• Appeals, complaints and legal risk
• Statutory safeguarding and information sharing
• Later on in the afternoon:
• The changes to the substance of eligibility and the pathway: assessment,
relevance of reduction services, support planning, resource allocation and reviews
• Carers’ rights to have their eligible needs met and the consequential changing
relationship with carers, service users and advocates
Your very fast overview!
• The Act gets rid of around a dozen statutes, but without really changing the
established legal concepts underpinning their content: discretion, duty, rationing,
appropriateness, suitability and necessity
• So … the council will remain the gatekeeper of public money… whatever the
rhetoric about choice and control and involvement of the service user.
• There is a duty to promote a person’s well-being, but it is not enforceable in any
concrete way – it loosely defines the scope of well-being, and 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...
• But these should already be part of holistic care assessment and planning.
‘Independent living’ is not on the list but it is mentioned in the guidance as being
about preserving or implicitly obtaining as much independence as possible, not
about necessarily living in an unregistered setting…
• Your ‘social work’ job is still basically sorting out the wants from the needs - for
other agencies’ input, vs the needs for care and support, or the needs from the
needy enough needs, even if met by a carer, in order to identify eligible needs for
what can reasonably be seen as adults’ social care. Then the planners would take
over, and focus on the unmet needs, after negotiating with the carer for continuing
or increasing their informal input…
• The Act 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 forbidden, but not recommended, that the delegatees
could include care providers. That might just be up to you – think of the
pros/cons.
• To deliver ‘portability’, councils will have to assess people who want to move to
the area in readiness, or else be bound by the previous ‘exporting’ council’s
assessment of needs ...and must explain differences in cost of the packages
before and after the move – in writing. This provision just ensures continuity of
service, or a financial penalty; not real portability.
• Ordinary residence has been re-vamped, with moves into supported living and
extra care, and some sorts of Shared Lives arrangements, all attracting the same
sort of deemed continuation of o/r as we are used to with residential care
placements regardless of whether a tenancy or placement arrangement is
concluded. So there’ll be a concept of moving into ‘ordinary’ accommodation,
with O/R continuing, and ordinary ordinary accommodation, where it will NOT.
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The Act formalises Personal Budgets - but that is just the name for the sum of money
allocated. We already have direct payments, managed personal budgets, people
getting help from their own informal nominee, and a Suitable Person scheme, through
which incapacitated people can have the benefits of direct payments, without the
personal responsibility…
Getting someone to take a ‘personal budget’ as a direct payment is still an exercise in
persuasion, on the part of the council - because it requires consent, (capacitated
consent, not a best interests decision) – that’s so, in turn, because consent signifies
that the person is knowingly letting the council off the provision hook....and
becoming their own commissioner. But it is no longer being described as a right to
a direct payment. Economic viability has crept back in, via the Guidance.
There is no mention of resource allocation schemes anywhere in the Act! The
drafting does (now) at least accept that the budget is not whatever the council says
it must be, but what the council (reasonably of course!) thinks it actually costs the
council to procure the services needed to fulfil its duties. This is better for service
users than any council just being able to make it up as it looks at the budget, of
course, but disincentivises use of Direct Payments, in my view. The guidance deals
with that risk, in an unbelievably optimistic way... :
The guidance on direct payments and on costs related to contracting
directly with individuals…
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“Sufficiency: The amount that the local authority calculates the personal budget to be must be
sufficient to meet the person’s needs which the local authority is required to meet under section 18 or
20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the
reasonable preferences to meet needs as detailed in the care and support plan, or support plan.”
• [so not every extra expense can be ignored on the footing that the client is choosing luxury….]
• “There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser
amount than is required to purchase care and support on the local market due to local authority bulk
purchasing and block contract arrangements. However, by basing the personal budget on the price of
quality local provision, this concern should be allayed.”
Example:
• Mr A has been assessed as requiring home care support for 5 hours each week. The local authority has
a block contract with an agency which has been providing support to Mr A twice per week. Mr A is
happy with the quality of support he receives but would like more flexibility in the times at which he
receives support in order to better meet his needs. He therefore requests a direct payment so that he
can make his own arrangements with the agency, which is happy to provide a much more flexible and
personalised service. The cost to the local authority of the block contracted services is £12.50 per hour.
However, the more flexible support purchased by an individual costs £17 per hour. The local authority
therefore increases Mr A’s direct payment from £62.50 to £85 per week to allow him to continue to
receive the number of hours he requires. The solution through a direct payment delivers better
outcomes for Mr A and therefore the additional cost is reasonable and seen as value for money. The
local authority also agrees it is more efficient for Mr A to communicate the hours he wants to receive
support and handle the invoicing himself.
© Belinda Schwehr, 2014
But economic viability and value for money have crept
back in to the ‘right’ to have a direct payment
• “However, a request for needs to be met via a direct payment does not mean
that there is no limit on the amount attributed to the personal budget.
• There may be cases where it is more appropriate to meet needs via directlyprovided care and support, rather than by making a direct payment.
• For example, this may be where there is no local market for a particular kind of
care and support that the person wishes to use the direct payment for, except
for services provided by the local authority.
• It may also be the case where the costs of an alternate provider arranged via
a direct payment would be substantially more than the local authority would
be able to arrange the same support for, whilst achieving the same outcomes
for the individual.”
• [I think that this is to match the references in personal health budgets regs to
the question of clinical and economic viability. But on the wording of that bit
of guidance, there will always be debates about whether the person’s chosen
route delivers better outcomes….]
© Belinda Schwehr, 2014
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The Dilnot ‘care costs’ cap provisions have now been put in, and drive the main planks of the Act: eg an
increased capital threshold to bring people in; the notion of daily living costs which are not to be
counted, and the duty to provide free care and support, to those who have spent up to the cap. No clues
as yet, to any of the detail, regarding the zero cap cut off age, or finer points. The charging frameworks
are being streamlined, with the differences to be fleshed out in regulations. The power to charge no
longer has to be reasonably exercised! But the full cost of the service that you are providing, is all that
can be charged to the individual recipient.
There will be independent Personal Budgets for those who are over a much increased financial
threshold for receiving a financial subsidy for their care so that they can keep a tally of how much
they’ve spent, because of the Dilnot cap: this means assessing a whole lot more people. Rich ones can
ask to have services bought for them, and will be able to be charged ‘for’ that service. The services will
still count as council services, not self funding services. Budgets for those above the threshold must
somehow be arrived at but without care planning! S24 is the duty to make a plan, but
s24(3) Where a local authority is not going to meet an adult’s needs for care and support, it must
nonetheless prepare an independent personal budget for the adult (see section 28) if—
(a)
the needs meet the eligibility criteria,
(b)
at least some of the needs are not being met by a carer, and
(c)
the adult is ordinarily resident in the authority’s area or is present in its area but of no
settled residence.
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People can pay top-ups from their own chargeable capital during the 12 week disregard. Disregards are
dropped for those already in care, privately, before the council has to take over.
Deferred payments for care homes will be mandatory for the ‘cash poor’, ie with less than the current
threshold in non-housing cash; the HASSASSA charge (for securing a user’s debt) seems to have
disappeared!
Do we treat above threshold, full cost payers, who want us to commission for them, as having
our services, or are we buying on their behalf, so that they are privately funding?
Para 41 on page 343 of the Guidance says this:
“The Care Act 2014 enables a person who can afford to pay for their own care and support in full to
ask the local authority to arrange their care on their behalf. In such circumstances, the same rules on
choice must apply. However, where a person then chooses a setting that is more expensive than the
amount identified in the personal budget, the local authority is not liable for the total cost….In
supporting such people to arrange care, the local authority may choose to enter into a contract with
the preferred provider, or may broker the contract on behalf of the person.”
There is no legal basis that I can find in the law or the regs, to justify that statement re ‘brokering…’
Here’s my analysis: Section 18(3) of the Act, the DUTY section, is what requires councils to commission
for above threshold people, if they ask that this be done for them.
In being so obliged, the council has three ways to meet need, under s8(2) of the Act: a commissioned
agreement, a direct payment, or in-house provision.
Here, we are talking about making a contract with a care home. If the council makes that contract,
the council is invariably liable, for the whole amount, top-up or no top-up, because that is the effect
of contract law, vis a vis the home’s rights to recover the money. A council might make an agreement
to get the money back from the service user or top-up payer, but that’s not the same as saying that
the council is ‘not liable’ for the full amount. It’s a commissioned agreement!
If the council only wants to act as broker, it could do so, theoretically, but only outside of
s18, ie through the appointment of the council, by the service user, as their broker, because
that is what the law of agency requires – it doesn’t arise at the behest of the agent.
If the council were to do that, then of course the service user would be liable, as principal,
and the council would not be liable, as it has acted merely as agent. But there is no legal
basis in the Act or regulations that I can see, for severing the parts of that liability, into the
‘main’ amount and the extra, for the top-up!
Here is the real difficulty, for care home contracts, the focus of this bit of the Guidance: in
order to appoint the council as agent, to act ‘on behalf of the service user’ INSIDE s18,
instead of just as a matter of agreement, the service user would be needing to have chosen
to take the budget as a direct payment, BUT direct payments for long term residential care
are not necessarily going to be brought in in 2015 or ever.
See here:
“Direct payments cannot currently be used to secure long-term residential care. However,
the Government is currently testing the use of direct payments in residential care, with the
aim of introducing this in 2016. The learning from the trailblazer programme will be used to
develop additional statutory guidance for local authorities.”
If they are ever to be made lawful, then this paragraph about in-house brokering of a
package COULD be saved, so as to make sense, but it would have to state that it was
necessary for the service user to accept liability, as principal, for the WHOLE amount, not
just the top-up. And the service user would have to have capacity to contract, or a Suitable
Person, to do it for them, if lacking in capacity.
A whole new level of knowledge awaits…
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‘Information’ and ‘advice’ are also seen as services in their own right, and certain sorts may
well be chargeable services in particular contexts! This could lead to more funding of
brokerage, and to more of a market in care planning support.
Counselling and advocacy are themselves to be made into social care services – a council
could buy these in – 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.
Funding independent advocacy is to be a duty for those without anyone else appropriate to
do it for them if they would experience substantial difficulty with assessment for reasons to
do with cognitive functioning and have no-one else appropriate involved, for free, in their
situation. There’s special advocacy rights within the safeguarding sphere, too, to keep the
victim at the centre of the process… LOADS OF PEOPLE WILL NEED ADVOCATES, IN MY VIEW.
The regulations and guidance require the advocates to be adequately trained. So you need to
engage them on a good enough rate for them to qualify, and buy IN training on the Care Act.
Just as with being unwilling to be a carer, a family member cannot be made to be an
advocate. If they are not willing eg because they are too busy, or because they believe
themselves to be inappropriately skilled or aware, for instance, how are you going to disagree
with that? The guidance doesn’t deal very explicitly with the willingness of the relative as a
precondition to their appropriateness, but says it’s your judgement as to whether a relatives
who exists, is appropriate. But if they are not willing, are you really going to say that there’s
no duty to fund one for the individual? The guidance says you can’t…[see next slide]
Who is owed this duty? It’s not
quite the same as the IMCA role..
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People who qualify for an Independent Mental Capacity Advocate (an IMCA) in relation to
the care planning and care review will (in nearly all cases) also qualify for independent
advocacy under the Care Act.
However, the duty to provide independent advocacy under the Care Act is broader and
provides support to:
people who have capacity but who have substantial difficulty in being involved in the care and
support ‘processes’;
people in relation to their assessment and/or care and support planning, regardless of whether a
change of accommodation is being considered for the person (cf the IMCA scheme);
people in relation to the review of a care and/or support plan (cf the IMCA scheme – discretionary);
people in relation to safeguarding processes (though IMCAs are involved if protective measures are
being proposed for a person who lacks capacity);
carers who have substantial difficulty in engaging – whether or not they have capacity);
people for whom there is someone who is appropriate to consult for the purpose of best interests
decisions under the Mental Capacity Act, [and who therefore must be consulted] but who is not able
and/or willing to facilitate the person’s involvement in the local authority process.
The complications for first contact...
• The decisions about access to advocacy that need to be made at first
contact are complicated, and likely to lead to a lot of aggravation and dissent.
• “From the point of first contact, request or referral (including self-referral) for
an assessment, the local authority must involve the person. They must
initially consider the best way of involving the person in the assessment
processes, which is proportionate to the person’s needs and circumstances.
In some cases this may be relatively brief, in others it may consist of a series
of interviews, in the person’s own home, over a period of time.
• At the start of the assessment process, if it appears to the local authority that
a person has care and support needs, and throughout any subsequent part of
the process, the local authority must judge whether a person has substantial
difficulty in involvement with the assessment, the care and support
planning or review processes.
• The identification of a potential need for advocacy may arise through the
process, from the person themselves, carers or family. Where an authority
has outsourced or commissioned all or some of this process, the authority
will maintain overall responsibility for this judgement.”
The advocate’s role includes
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Assisting the person to understand their rights under the Care Act – for an assessment which
considers their wishes and feelings and which considers the views of other people; their right to have
their eligible needs met, and to have a care or support plan that reflects their needs and their
preferences.
Also assisting the person to understand their wider rights, including their rights to liberty and family
life. A person’s rights are complemented by the local authority’s duties, for example to involve the
person, to meet needs in a way that is least restrictive of a person’s rights.
Assisting a person to challenge a decision made by the local authority; and where a person cannot
challenge the decision even with assistance, then to challenge it on their behalf.
There will be times when an advocate will have concerns about how the local authority has acted or
what decision has been made or what outcome is proposed. The advocate must write a report
outlining their concerns for the local authority. The local authority should convene a meeting with
the advocate to consider the concerns and to provide a written response to the advocate following
the meeting.
Where the individual does not have capacity, or is not otherwise able, to challenge a decision, the
advocate must challenge any decision where they believe the decision is inconsistent with the local
authority’s duty to promote the individual’s wellbeing.
• So advocates will need training in the legal framework of local authorities’
rights and duties, and that means that councils’ own staff need it too.
The problem: some but not all of the people owed this duty will
be owed an IMCA as well
Frequently a person will be entitled to an advocate under the Care Act and then, as the
process continues, it will be identified that there is a duty to provide an advocate
(IMCA) under the Mental Capacity Act.
• This will occur for example when during the process of assessment or care and support
planning it is identified that a decision needs to be taken about the person’s long-term
accommodation. [because of the IMCA rights trigger, so use IMCAs if there is a chance
that the person in question will need to go into residential care.]
• It would be unhelpful to the individual and to the local authority for a new advocate to
be appointed at that stage. It would be better that the advocate who is appointed in
the first instance is qualified to act under the Mental Capacity Act (as IMCAs) and the
Care Act and that the commissioning arrangements enable this to occur.
• Local authorities do not have to commission one organisation to provide both types of
advocacy. But there may be advantages of one organisation providing both:
• it is better for the person receiving the support;
• it is easier for those carrying out assessment and care planning to work with one
advocate per individual rather than two; and
• it is easier for the local authority to manage and monitor one contract rather than
two.
What’s the guidance on when there must be an advocate (sometimes, I
think, regardless of the existence of even a willing relative...)
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Where a proposed care and support plan may involve restricting a person’s liberty to
the extent that they may be deprived of their liberty, in any setting, an advocate must
be involved. For example where:
a family member strongly opposes a care and support plan that involves moving a
person who lacks capacity into a care or nursing home; (not into supported living!!)
a person is objecting to leaving their home in the community;
a care and support plan is so restrictive that paid staff make all the day-to-day
decisions about a person’s life;
a care and support plan involves serious restraint, such as placing a person in seclusion,
or physical restraint which is distressing to the person; (!)
a care and support plan involves serious restrictions on freedom to associate with
family and friends;
a care and support plan makes no provision for the person to be able to ‘go out of’ the
place they live in, i.e. for leisure or social activities;
a care and support plan makes a person entirely dependent for everything on paid
staff, and there are no family or friends involved.
Who can be an advocate?
• The advocate must not be working for the local authority,
• or for an organisation that is commissioned to carry out assessments, care and
support plans or reviews for the local authority.
• Nor can an advocate be appointed if they are providing care or treatment to the
individual in a professional or a paid capacity.
• This does not mean that a provider can’t offer advocacy to you, for other
providers’ clients. It fits well with the provider sector clearly not being the ones
to whom you would contract out assessment or care planning itself.
• This creates the kind of a workforce that BIAs should have been made into, or
drawn from, from the outset of DoLS. It makes them MUCH MORE
independent, although it gives them no money with which to get advice about
wrongful illegal care assessment or planning. But they will become a force for
good, in-house, and cure the cultural problem of lack of legal literacy, over
time.
• Another way of looking at this is that it is a hidden contracting out of a truly
professional social work function (the notion that one ‘advocates’ for the client
whilst being limited by social work statutory functions and funded as an
employee by the State), and making it non-public sector pensionable...
When people are moving, which
council owes the advocacy duty?
• In the case of a person who is receiving care and support from one local
authority and decides to move and live in another authority, the
responsibility will be with the authority the person is moving to as their
ordinary residence will be in the new authority.
• Understanding of local communities may be an important consideration, so
the advocacy/advocate should wherever possible be from the area where the
person is resident at the time of the assessment, care plan etc. (on that
footing, it would makes sense for the destination council to commission the
advocacy where the person is living, but it doesn’t help the advocate get any
fix on the position in the destination authority..)
• a person whose care and support is being provided out of area (in a type of
accommodation set out in the section on Ordinary Residence (see chapter 19))
it will be the authority in which the person is ordinarily resident (this means
the old one, in the case of a move into accommodation of the specified type,
elsewhere, too, because O/R will be deemed to continue when they move) .
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The parameters of social care services are being made more straightforward, but less concrete,
and thus more open to innovative spending plans by service users and more cost-shunting from
Health (eg counselling, carers’ services and purchasing FNC); the indicators of eligibility are being
changed too.
The eligibility criteria are being elevated into the only threshold for eligibility at all, without any
statutory tests for particular types of clients or services.
The draft new national minimum is not thought to match substantial at all, in the ADASS sector,
BUT it brings in the need for assessors to make an explicit judgement about consequential
‘significant’ impact on well-being! Overall, I think fewer people will qualify, but more people will
get prevention and reduction services.
‘Eligibility’ will turn on the type of ‘need’ identified, not on whether it is met or unmet!
Universal services can offset the concept of eligibility – I think, even before they have been proved
to have ‘worked’….but that chapter is rather incoherent…
But the duty to meet eligible needs, will no longer turn on a finding of eligible needs, but on what
is left over after a carer’s input has been deducted, and a series of questions about the person’s
finances and wishes have been explored, after the care or support planning stage….which
obscures what a person has a right to have done for them, or paid for, and WHEN, to my mind.
On the other hand, appropriate response to unmet need is not to be identified just by an
indicative figure from a RAS!
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....the eligibility concept
includes housework and childcare in their own homes, and charging for these services, although
counter-intuitive, maybe, will enable less than full market rate to be paid….through netting off of a
small charge.
Strategic duties and new frameworks
• There’s a duty to provide an information service about the system as a
whole, and the guidance says how far it should go, and must go, content-wise.
• 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 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.
Sustainability is specifically mentioned – so is quality. And respecting the
minimum wage and good practice: no 15 minute visits for intimate personal
care!
• 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...
• All regulated providers will count as public authorities for Human Rights Act
purposes, in relation to any directly or indirectly funded service for a person.
So wherever a person has a subsidy, however small, or the council arranges
the service, even for the rich, the provider is bound directly by the Human
Rights Act. Day care providers won’t be, because they are not registered. 20
© Belinda Schwehr, 2014
Safeguarding changes
• All councils must have formal Safeguarding Boards
• Councils will be under a duty to make enquiries when having been alerted to
someone at risk, suggests that the council should intervene. This extends to
those who have been abused in the past, according to explanatory notes.
• This is called putting safeguarding on a statutory footing; but it isn’t, in my
view; we already have referral powers to other agencies. And the power (or
duty) to make the enquiries lead to any meaningful outcome will still - in
practice - be derived from adult social care powers to provide services by way
of care and support; that is, derived from social care assessment and provision
functions, or other Acts such as the Localism Act, not free-standing
investigative ones with any ‘teeth’, or the means to make people answer
questions.
• And is that any wonder? Social care services are not a second police force or a
surveillance force; they are there to manage risks that they are responsible for,
not pursue wrongdoers (other than in their own ranks...)
• s47 NAA (insanitariness removals) will be abolished as a breach of Human
Rights, but Public Health powers to remove and temporarily accommodate, but
not detain, are supposed to be an adequate alternative.
• The idea of introducing a social work power of entry where it is considered that
a third party is preventing a person from being fully ‘heard’ about their
situation, has been dropped.
• Guidance WAS promised for the sector that will set out all legal mechanisms for
entering premises, but the Care Act guidance doesn’t seem to be it.
Enquiries by Local Authorities
• The Care Act imposes a new legal duty for local authorities to make enquiries
when they have a reasonable cause to suspect that an adult in their area has
a need of care and support, and is at risk of abuse and neglect, and is unable
to protect him or herself.
• There is no threshold of significant harm arising from the risk of the abuse
or neglect, before it can or should be called a safeguarding enquiry.
• The local authority must make whatever enquiries it thinks necessary to
enable it to decide whether any action should be taken in that adult’s case,
and if so, by whom – although it cannot make anyone else do what it
decides should be done. It can merely ask for co-operation.
• The Care Act also confirms, for the first time in law, that “abuse” for the
purposes of triggering an investigation, includes financial abuse. That includes
having money or property stolen; being defrauded; being put under pressure
in relation to money or other property; and, having money or other property
misused. The Committee in the Commons was assured that it is not being
specially defined in order to mean that it is the most important form of abuse
at all: the guidance mentions all the other kinds as well.
© Belinda Schwehr, 2014
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Enquiry by local authority
(1)
This section applies where a local authority has reasonable cause to suspect that an adult in
its area (whether or not ordinarily resident there)—
(a)
has needs for care and support (whether or not the authority is meeting any of those
needs), [so private service users or people unknown to the council are covered]
(b)
is experiencing, or is at risk of, abuse or neglect, and
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as a result of those needs, is unable to protect himself or herself against the abuse or
neglect or the risk of it.
(2) The local authority must make (or cause to be made) whatever enquiries it thinks necessary to
enable it to decide whether any action should be taken in the adult’s case (whether under this
Part or otherwise) and, if so, what and by whom.
This leaves so much up in the air, for the guidance, in my view – such that it can’t really be said to be
making safeguarding vulnerable adults, so that they do not suffer harm, into an actual statutory duty
for the council or for the SAB. It would be much better to be honest that the duty to do safeguarding
turns on the underlying duties to assess and to provide for what is assessed as necessary to keep
people out of the national minimum indicators, in my view (which no longer mention keeping
oneself safe!
The trigger does not exclude self neglect. But it excludes a duty to make enquiries if the person is
vulnerable but regarded as able to take steps to help themselves. So it is not all inclusive or all
embracing of all types of situation. What if the person denies that they have needs for care and
support, but the council thinks that this position is delusional or being coerced by a third party? One is
taken back to the substantive duty to assess, and that is why I say that nothing much is changing.
Assessment can be refused, but not if the council thinks that the person lacks capacity or is at risk23of
© Belinda Schwehr, 2014
abuse or neglect….
• There’s an integration-directed principle supposed to underpin all of the above, for
the promotion of well-being. This is about use of the Better Care Fund, in practice,
because health and social care are not legally integrating, only practically, in
relation to budgets…
• The Act 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!
• Social care assessment and provision will go – in theory - beyond the prison gate!
• CQC will have a market oversight role regarding financial sustainability – a subtle
route in to telling councils when they are not paying enough, in my view!
• There are market failure fall-back obligations imposed on the council where the
service has failed, but there was always a duty to meet needs anyway, in the event
of failure - so this is more of a development for CQC.
• There MAY be rights of appeal against social services’ decisions introduced one
day: the scheme for these is so loosely shaded in, that I suspect it might not even
happen! Regulations may provide for ‘this, that and the other’, but the thinking was
a very late addition to the Act. Independent appeal panels cost money: training,
fees, and of course, legal challenges on points of law. How many would there have
to be? On the other hand, it would kill off judicial review of councils, at a stroke!
Is that good, or bad?
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, 2014
25
The service user offer: promotion of an adult’s
well-being
• This principle is intended to establish what the Law Commission called a ‘single
unifying purpose, around which adult social care is organised.’
• The outcomes further described and elaborated upon are not a series of
requirements, but serve as a description to aid understanding.
• This is a general duty, and general duties are impossible to enforce by mere
individuals, through legal proceedings or anything else.
• Promoting dignity and suitable living accommodation have now been added to the
concepts informing this purpose, thanks to the consultation and Joint Select
Committee‘s input. Independence doesn’t feature, as such.
• This duty is all very well as a general principle, but it doesn’t mean that the citizen
is to be given the actual final say-so over what his or her 'well-being' requires, or
what would ‘best’ meet it; the general duty, in the community care law sense of
‘duty’ is to take the person's view into account, but not to let the issue of resource
allocation or professional opinion, be determined by it.
• The prohibitions on letting eg. a person's age pre-determine care planning
allocations or assumptions would prevent management driven edicts that once a
person is aged 65 then they are ALL presumptively ‘appropriately’ cared for in a
care home. This will be good for the maintenance of independence of older people,
and individuating the way they are helped...even if they won’t take a direct
payment or agree to go to a care home..But the case law has already gone further
than this in support of the client’s right to know what is a lawful offer.
© Belinda Schwehr, 2014
26
Points of interest in the well-being clause
– matters to which regard must be had
•
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•
The importance of beginning with the assumption that the individual is best-placed to
judge the individual’s well-being; (this fits with the MCA presumption of capacity but
does not oust the ability of the state to be the ultimate judge of need vs want.)
the individual’s views, wishes and feelings; (this is already in the Assessment Directions
2004)
the need to ensure that decisions about the individual are made having regard to all the
individual’s circumstances (this is pure public law – the duty to have regard to all
relevant circumstances – and to ignore the irrelevant ones)
the importance of the individual participating as fully as possible in decisions relating to
the exercise of the function concerned and being provided with the information and
support necessary to enable the individual to participate; (this fits in with the duty to
be transparent about the consequences of saying ‘no’ to what is offered, already
established in case law (KK v STCC) )
the importance of achieving a balance between the individual’s well-being and that of
any friends or relatives who are involved in caring for the individual; (this is no more
than the current duty to ensure that carers are both able and willing);
the need to ensure that any restriction on the individual’s rights or freedom of action
that is involved in the exercise of the function is kept to the minimum necessary for
achieving the purpose for which the function is being exercised. (regardless of mental
incapacity and best interests for people lacking capacity, this is pure Human Rights,
article 8 – the right to respect for one’s private life, family and the home ).
What you need to consider in SMTs
•
•
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•
The concepts that need interpreting locally, and I would say, in a transparent way, if you
want the staff not to fear that they lack guidance from management, are what is essential,
what is significant, and what amounts to something that is likely to happen, and in what
time frame? There are no answers in the Guidance, as yet, and not even the suggestion
that if these things are matters of policy, then it would be a good idea to consult on them…
What is clear, though, is that all social work and social care staff will need to know:
The list of areas that together make up the scope of well-being, and the aspects of that
scope, to which one must have particular regard, when discharging care and support
functions to a carer or a service user;
The list of activities that are currently called ‘outcomes’ which must be considered in an
assessment, in relation to whether the person can achieve them, or cannot;
The extended definition of not being able to do something – which is helpful to the person,
because it allows one to count as unable, even if one CAN do something on the list, but not
without assistance, significant pain, distress, anxiety or without endangering self or others
etc.;
The way the person him or herself feels about the well-being factors, so that the staff can
help both the person and the council identify the way in which the person’s difficulties
would or could impact on that range of well-being aspects of their life, and thus maximise
the prospects of agreement – and minimising the risk of loading unwanted services into
their lives;
Needs which meet the eligibility criteria: adults who
need care and support
2.—(1) An adult’s needs meet the eligibility criteria if—
(a) the adult’s needs are caused by a physical or mental impairment or illness;
(b) as a result of the adult’s needs the adult is unable to achieve an outcome specified in
paragraph (2); and
(c) as a consequence there is, or is likely to be, a significant impact on the adult’s wellbeing.
(2) The specified outcomes are—
(a) carrying out some or all basic care activities; [not just one? A ‘prevention’ pause,
maybe, if just one?]
(b) maintaining family or other significant personal relationships; [not accessing or
developing?]
(c) accessing and engaging in work, training, education or volunteering;
(d) accessing necessary facilities or services in the local community including medical
services, public transport, educational facilities, and recreational facilities or services; [that
is a good improvement]
(e) carrying out any caring responsibilities the adult has for a child.
(3) In this regulation, “basic care
activities” means
…essential care tasks that a person carries out as
part of normal daily life including—
(a) eating and drinking;
(b) maintaining personal hygiene;
(c) toileting;
(d) getting up and dressed;
(e) getting around one’s home; [this is new]
(f) preparing meals; and
(g) the cleaning and maintenance of one’s home.
Reg (4) For the purposes of this regulation an adult is to be regarded as being
unable to achieve an outcome if the adult—
(a) is unable to achieve it without assistance;
(b) is able to achieve it without assistance but doing so causes
the adult significant pain, distress or anxiety;
(c) is able to achieve it without assistance but doing so
endangers or is likely to endanger the health or safety of the
adult, or of others; or
(d) is able to achieve it without assistance but takes significantly
longer than would normally be expected.
(5) Where the effects of an adult’s needs fluctuate, in
determining whether the adult’s needs meet the eligibility
criteria, the local authority must take into account the adult’s
circumstances over such period as it considers necessary to
establish an accurate indication of the adult’s level of need.
What have we lost from the last attempt at drafting?
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•
“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]
Eligibility under the Act turns on inability to do these things, coupled with consequential significant
impact. Is this concept – impact on well-being - different from risk to independence?
‘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.
No doubt the references to shopping, cleaning, etc, caused mayhem, because of the number of
councils who have long since said ‘we don’t do shopping etc etc….that’s below our eligibility
threshold.
One only has to say those words back to oneself with a copy of FACS open, to see how hard that very
common position, has always been, to justify.
It’s like saying “ONLY people who have ONLY a Moderate score in daily living domains would ever need
shopping. Nobody in Substantial, ever would”!
But there we have it in Critical and Substantial: inability to do one or the majority of vital domestic
routines can qualify one for that band of dependency, and the obvious truth is that councils DO organise
shopping for people who are in dire straits. The bands aren’t currently about different types of NEED;
they are about the impact of not being able to do things across all the domains, for independence,
measured by reference to types of inability, so that’s not so very different.
‘Critical’ used to be all about what was vital, and ‘Substantial’ seemed to be focusing on numbers of
tasks – this new formulation does not refer to ‘the majority of’, or ‘vital’ anything, but it does focus on
what is essential.
Urgent question: Where does keeping oneself safe appear? It’s part of well-being, but not part of the
national minimum threshold? Why is that, and is that a good idea?
Domains vs Needs vs Activities vs Service Response vs ‘Outcomes’?
• The consultation says this, of the domains of daily living, regarded as the focus of
needs assessment, though not the full flavour:
‘The question is whether these could be described as outcomes rather than activities.
The draft regulations define these activities as eating and drinking, maintaining personal
hygiene, toileting, getting up and dressed, getting around one’s home, preparing meals, and
cleaning and maintenance of one’s home. As currently described, these activities define
needs which are widely understood, and are used to inform the discussion about what
outcomes the person wants to achieve. However, using a list of activities or tasks in this way
risks undermining the focus on outcomes which is espoused by the Act in other areas, and
we would like to consider alternative approaches during consultation.’
• Dead right! I do not think that what I would call the domains of maintaining..,
accessing.., carrying out… the activities as described, should ever be described as
‘outcomes’ at all. From the council’s perspective the person’s not being unable to
do these things, or not so unable that their well-being is impacted upon in a
significant way, is the only outcome that matters, legally. But from the client’s or
carer’s perspective, a desired outcome, according to all works on personalisation,
depends on the client’s or carer’s own focus within the domains, as to whether
they actually matter to that person, a bit, a lot, or not at all, so as to measure
IMPACT.
Carer-blind eligibility decisions?
• The question of impact is supposed to be considered by the care manager without
regard to the prospective client’s situation at home, in relation to what a carer
might be doing, or willing or able to do, if they themselves were given funding to
make the impact on them, more manageable. That aspect of the service user’s
entitlement to funding or a service is only to be taken account of at the care
planning stage, apparently, before a budget is finalised.
• That’s quite a hard ‘ask’ for a care manager, used to assessing unmet risks, not the
total risk, including the met needs – to work out consequential significant impact.
• The Guidance is not even consistent throughout, on the need to make a carer blind
eligibility decision, unfortunately, and this stems from the content of the Act and
draft regulations, not just the Guidance. OOPS!
– ‘As part of this process, the local authority should also take into account the
person’s own capabilities, and the potential for improving their skills, as well as
the role of any support from family, friends or others that could help them to
achieve what they wish for from day-to-day life.’
• The regs can be changed, but the real inconsistency, which is probably
driving this sentence in the guidance, is in s9, soon coming up, and it is
too late to change this.
•
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•
•
•
What if a person says NO thanks, to helping themselves with preventative or reduction
services?
If the service is available in the community, and the person is pointed towards it, but says
‘no thanks’ for some reason, what should the consequence be? The Guidance is clear
that they do still have to be assessed in the normal way. What the Guidance does not
say, is what the significance should be, to the council’s assessor, of the person’s refusal to
help themselves. Does it, for instance, go to eligibility, because it reduces the impact on
well-being? After all, the person has ‘chosen’ not to help themselves…
One can see the logic of that, in an era of autonomy, choice and control. But the need
would still exist, and still be unmet; and the person might have had a really good reason
for saying no. Not racism, snobbishness or other prejudice, for instance, but because of a
perfectly legitimate and evidence-based concern about its suitability.
Here’s why it matters: the charge for it, via a council funded package based on eligibility,
could be less than it might be from the community based provider, independently
offering preventative services. So it might make sense for the person to say ‘no’ to it as a
preventative service, or at all, unless it is seen as a response to eligible unmet need…but
that would be perverse of the new system.
The Guidance needs to be clarified, and it needs to be clear that councils must
conscientiously engage with a person’s reasons, before treating them as determined
NOT to help themselves, and thus not minding about a need which is eligible, but not to
be funded...
Section 9 – how to do needs assessment
(4) A needs assessment must include an assessment of(a) the impact of the adult’s needs for care and support on the matters specified in section
1(2),
(b) the outcomes that the adult wishes to achieve in day-to-day life, and
(c) whether, and if so to what extent, the provision of care and support could contribute to
the achievement of those outcomes.
[this next bit is the bit that makes the whole question of what should be deducted or
not, a bit difficult to follow:]
(6) When carrying out a needs assessment, a local authority must also consider(a) whether, and if so to what extent, matters other than the provision of care and
support could contribute to the achievement of the outcomes that the adult wishes to
achieve in day-to-day life, [not sure what that means, other than safeguarding support,
perhaps, if it doesn’t mean prevention and one’s informal carer network?] and
(b) whether the adult would benefit from the provision of anything under section 2 or 4
[prevention and reduction measures] or of anything which might be available in the
community. [so this is saying that eligibility assessment is not fully blind to things that
could meet need?]…
S13 (7) Needs meet the eligibility criteria if(a)
they are of a description specified in regulations, or
(b)
they form part of a combination of needs of a description so specified.
Implications of the carer-blind edict for the care
planning and sign-off part of the journey
•
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•
It’s even harder for a care planner if they’ve got to juggle the carer’s and user’s needs
within a nominal ‘indicative allocation’, maybe even an aggregated one, to cover the
whole ‘case’.
There’s nothing in the law or regulations about working to an indicative budget, and the
Guidance is clear that RASs must be transparent, and that the amount must be sufficient,
when finalised, to meet the needs and reasonable preferences of the individual.
But whoever has written that part of the Guidance has chosen to perpetuate the position
that it is always a ‘good thing’ to know what one’s budget is, roughly, before it is finalised,
as if that was part of the law! If eligibility is carer blind, the only kind of an indicative RAS
would be an overly generous one, unless there was a carer deduction, and there is no
legal basis for that, in the new Act.
There is no discussion of whether the approach that is currently popular - weighing up the
cost of a care home against the cost of care AT home, but in future maybe aggregating the
carer’s AND service user’s needs before comparing the care home cost - could ever be
lawful or not.
The logical sense of delegating carers’ assessments via contract to people who are
separate from care planners, would need to be reconsidered too, but this is not
mentioned.
How far does the ‘due process’ protection really go?
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The Act only refers to a written record with reasons for the assessment of need, not the
care plan, which is the crucial bit, in relation to reasonableness, appropriateness and
accountability.
The Act mentions the giving of reasons for decisions on eligibility. I am not knocking the
idea of a record of those bits of the process, but on the other hand, there is surely no
need to consider a council’s reasons when the council says yes, so I am puzzled by why it
should be done in all cases…it seems like overkill to me, but it will still be useful on review,
for the service users, because it will show up if there are no changes regarded as having
arisen in the actual needs, I suppose.
On the other hand, there is no duty to explain why one thinks that x y or z is enough to
meet needs, or to do so appropriately. Yes, reasons for eligibility decisions, reasons for
needs being acknowledged, and reasons for not meeting needs.
The latest Guidance suggests councils should give reasons about the size of the package,
but they don’t have to be written. SO that means no reasons in practice, being realistic,
for being satisfied that one has actually figured out how to meet the needs adequately.
To match the current case-law, in my view, the actual decision maker’s reasons (not the
poor social worker’s), need to be provided whenever the council says No to the existence
of a need for care and support, no to eligibility, no to a direct payment, or to a direct
payment only with unwanted conditions, no to a suitable person’s request for a direct
payment, BUT ALSO whenever the council says no to a contention that something in
particular is needed or that a particular sum is needed, to meet need appropriately… that
was the situation in Savva, after all.
So the giving of any reasons is an improvement on what the Act first started out with, but
it could still be much better, from a customer’s perspective. The judges will have to put
that back in!
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 difficult but my view is that you will end up charging carers a bit, simply
to justify giving them SOME money, but not the going rate, for the services that they
would like to buy in for themselves to keep their own households going.
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, or income, 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.
Who is a carer, and what is care?
(1)Where it appears to a local authority that a carer may have needs for support
(whether currently or in the future), the authority must assess—
(a) whether the carer does have needs for support (or is likely to do so in the future),
and
(b) if the carer does, what those needs are (or are likely to be in the future).
(3)“Carer” means an adult who provides or intends to provide care for another adult
(an “adult needing care”); but see subsections (8) and (9).
…
(8) An adult is not to be regarded as a carer if the adult provides or intends to
provide care—
(a) under or by virtue of a contract, or
(b) as voluntary work.
(9) But in a case where the local authority considers that the relationship between
the adult needing care and the adult providing or intending to provide care is
such that it would be appropriate for the latter to be regarded as a carer, that
adult is to be regarded as such (and subsection (8) is therefore to be ignored in
that case).
(10) The references in this section to providing care include a reference to providing
practical or emotional support.
Changes in the rules for carers’ eligibility
This is what it DID say:
(5) A carer’s assessment must include an assessment of—
(a) whether the carer is able, and is likely to continue to be able, to provide
care for the adult needing care,
(b) whether the carer is willing, and is likely to continue to be willing, to do so,
(c) the impact of the carer’s needs for support on the matters specified in
section 1(2),
(d) the outcomes that the carer wishes to achieve in day-to-day life,
(e) whether, and if so to what extent, the provision of support could contribute
to the achievement of those outcomes, and
(f) whether, and if so to what extent, other matters (including, in particular, the
carer’s own capabilities and any support available to the carer from friends,
family or others) could contribute to the achievement of those outcomes.
(6) A local authority, in carrying out a carer’s assessment, must have regard to—
(a) whether the carer works or wishes to do so, and
(b) whether the carer is participating in or wishes to participate in education,
training or recreation.
Now look at the difference – unwillingness has been dropped!:
3.—(1) A carer’s needs meet the eligibility criteria if—
(a) the needs arise as a consequence of providing care for an adult;
and (b), paragraph (2) or (3) applies.
2) This paragraph applies if the effect of the carer’s needs is that the
carer is unable to provide some of the necessary care to the adult
needing care.
[what is necessary, and who decides? The reference to this being likely
to happen at an identifiable point in the future has been left out]
(3) This paragraph applies if—
(i) the effect of the carer’s needs is that any of the circumstances
specified in paragraph (4) apply to the carer; and (ii) as a consequence
of that fact there is, or is likely to be, a significant impact on the
carer’s well-being.
(4) The circumstances specified in this paragraph are as follows—
(a) the carer’s physical or mental health is, or is at risk of, deteriorating;
(b) the carer is unable to achieve any of the following outcomes—
(i) carrying 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);
(ii) carrying out any caring responsibilities the carer has for a child;
(iii) providing care to other persons for whom the carer provides care;
(iv) maintaining family or other significant personal relationships;
(v) engaging in work, training, education or volunteering;
(vi) making use of necessary facilities or services in the local community
including medical services and educational facilities;
(vii) engaging in recreational activities.
(5) In this regulation, “basic household activities” means essential household
tasks that a person carries out as part of normal daily life including preparing
meals and the cleaning and maintenance of one’s home.
But this has been put in:
(6) For the purposes of paragraph (2) a carer is to be regarded as being
unable to provide the necessary care if the carer—
(a) requires assistance to complete any task in relation to the provision of
care;
(b) is able to provide the care without assistance but doing so—
(i) causes or is likely to cause either the carer or the adult needing care
significant pain, distress or anxiety; or
(ii) endangers or is likely to endanger the health or safety of the carer or the
adult needing care.
(7) Where the effects of a carer’s needs fluctuate, in determining whether the
carer’s needs meet the eligibility criteria, the local authority shall take into
account the carer’s circumstances over such period as it considers necessary
to establish an accurate indication of the carer’s level of need.
The power of and impact of carers
•
•
•
•
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: (see KK, next
slide, as to why this is already the law, I am 98% sure!)
“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, finally. I think you will keep duties at bay, by finding carers
eligible for a bit, but urging them to help themselves a lot of the time, with preventive services – which
are, of course, discretionary. They can be watered down or stepped up, when the carer looks like giving
up and downing tools.
45
© Belinda Schwehr, 2014
Relevant to the whole discussion with carers, a case not involving a carer:
CC v KK and STCC – the client’s solution to the legal right of the council to choose
the setting – a solution for the stubborn, articulate and passionate, at least…
KK was an 82 year old woman with Parkinson’s Disease, vascular dementia, and paralysis
down her left side. Following the death of her husband, she moved and settled in a rented
bungalow.
However, incapacity and best interests determinations had resulted in her being placed in a
nursing home between July and October 2010 and from July 2011.
Her deprivation of liberty was authorised DoLS.
In good faith, because it appreciated that this was a case where the woman was not clearly
incapacitated, the council started taking her to her own home for visits and care services
there.
She then challenged the finding that she could be deprived of her liberty, on the basis that
she disputed that she lacked capacity. She was putting up with being in the care home, but
did not want to be, so on that basis, she was caught by the law which says that the council is
in charge of deciding what it provides.
In the face of the unanimous views of both the independent expert psychiatrist and all of the
professionals, to the contrary, KK asserted that she had capacity to make decisions
concerning her residence. The court received evidence from her, not only in a written
statement but also orally in court.
© Belinda Schwehr, 2014
46
Coming off the fence with potentially capacitated
people…the judge said this:
“71. … To my mind, however, the local authority has not demonstrated that it has fully considered
ways in which this issue could be addressed, for example by written notes or reminders, or even
by employing night sitters in the initial stage of a return home. I also note that during KK’s daily
home visits it has not been reported that she has used the telephone in ways similar to her
previous use of the lifeline, although in the latter stages of her period at home prior to admission
to care in July 2011 she was apparently using the lifeline excessively during the day as well as at
night. Ultimately, however, I am not persuaded that calling an emergency service because one
feels the need to speak to someone in the middle of the night, without fully understanding that
one has that need or the full implications of making the call, is indicative of a lack of capacity to
decide where one lives.
Overall, I found in her oral testimony clear evidence that she has a degree of discernment and
that she is not simply saying that she wants to go home without thinking about the
consequences. I note in particular that for a period earlier this year she elected not to go on her
daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence
that she has the capacity to understand and weigh up information and make a decision. Likewise,
I consider her frank observation that ‘if I fall over and die on the floor, then I die on the floor’
demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if
she goes home. I venture to think that many and probably most people in her position would
take a similar view. It is not an unreasonable view to hold. It does not show that a lack of
capacity to weigh up information. Rather it is an example of how different individuals may give
different weight to different factors.
© Belinda Schwehr, 2014
47
It was a case about choice of setting…
“The roles of the court and the expert are distinct and it is the court that makes the final
decision as to the person’s functional ability after considering all of the evidence, and not
merely the views of the independent expert (A County Council v KD and L).
Professionals and the court must not be unduly influenced by the “protection imperative”;
that is, the perceived need to protect the vulnerable adult (Oldham MBC v GW and PW, and
PH v A Local Authority, Z Ltd and R)
There is a risk that all professionals involved with treating and helping that person –
including, of course, a judge in the Court of Protection – may feel drawn towards an outcome
that is more protective of the adult and thus, in certain circumstances, fail to carry out an
assessment of capacity that is detached and objective. On the other hand, the court must be
equally careful not to be influenced by sympathy for a person’s wholly understandable wish
to return home.
The person need only comprehend and weigh the salient details relevant to the decision and
not all the peripheral detail. Moreover, different individuals may give different weight to
different factors (LBL v RYJ [2010] EWHC 2664 (Fam) paras 24, 58). At para 65 Baker J held:
“…There is, I perceive, a danger that professionals, including judges, may objectively conflate
a capacity assessment with a best interests analysis and conclude that the person under
review should attach greater weight to the physical security and comfort of a residential
home and less importance to the emotional security and comfort that the person derives
from being in their own home”
© Belinda Schwehr, 2014
48
What councils must do before they can say ‘It’s in his or
her best interests….’ – come OFF THE FENCE…
“Capacity assessors should not start with a blank canvas: “The person under evaluation must be
presented with detailed options so that their capacity to weigh up those options can be fairly
assessed” KK was found to be clear, articulate, and betrayed relatively few signs of the dementia
which afflicted her. She understood that she needed total support and carers visiting four times a
day. Whilst she may have underestimated or minimised some of her needs, she did not do so to an
extent that suggests that she lacked capacity to weigh up information.
68. I find that the local authority has not identified a complete package of support that would or
might be available should KK return home, and that this has undermined the experts’ assessment
of her capacity. …The statute requires that, before a person can be treated as lacking capacity to
make a decision, it must be shown that all practicable steps have been taken to help her to do so. As
the Code of Practice makes clear, each person whose capacity is under scrutiny must be given
‘relevant information’ including ‘what the likely consequences of a decision would be (the possible
effects of deciding one way or another)’. That requires a detailed analysis of the effects of the
decision either way, which in turn necessitates identifying the best ways in which option would be
supported. In order to understand the likely consequences of deciding to return home, KK should be
given full details of the care package that would or might be available. The choice which KK should
be asked to weigh up is not between the nursing home and a return to the bungalow with no, or
limited support, but rather between staying in the nursing home and a return home with all
practicable support. I am not satisfied that KK was given full details of all
practicable support that would or might be available should she return home to
her bungalow. “
© Belinda Schwehr, 2014
49
What councils CAN do, if they are faced with too many
people wanting to stay at home
•
•
•
•
•
•
Decide who needs to be at home, whatever the cost – young dying mothers, couples who still
like each other after 50 years, people who would be de-skilled, terminally depressed, or
destabilised in a care home setting
Decide who actually needs to be in a care home because nowhere else is actually workable,
even if money were no object – and respect the DoLS cases.
In the middle – ie where either would do but home is more expensive, adopt a best value policy
for being willing to keep people at home for a while longer if it only costs say 20% more than a
care home would cost the council – gross cost, not net.
Negotiate maturely to keep costs within that policy based percentage with those who have
friends, relatives, their own money and neighbours who are willing and able to help, particularly
with small important unpredictable needs for intervention, and anything that costs twice as
much, like night time care, etc. Or get them to help during the day, so that the person can use
the money for some night time care instead. Accepting this input is what is going to give the
client actual choice.
With those who have nobody who can help, explain that the council has to be fair to everyone,
and that you are willing to reconsider risk to them, in the context of their properly
understanding it, so that they may be able capacitatedly to refuse care that the staff first
thought was needed, thus justifying the council’s paying for some of their needs at home, but
not all.
Meet the needs in full, of anyone who won’t go, but who clearly lacks capacity to be able to be
said to be refusing care. Or take a best interests decision and move them to the home the staff
think will meet their needs, under the MCA, or guardianship, using DoLS if legitimate.
© Belinda Schwehr, 2014
50
Reviews – on a reasonable request,
and also….
(4) Where a local authority is satisfied that circumstances have
changed in a way that affects a care and support plan or a support
plan, the authority must—
(a) to the extent it thinks appropriate, carry out a needs or carer’s
assessment, carry out a financial assessment and make a
determination under section 13(1), and
(b) revise the care and support plan or support plan accordingly.
(5) Where, in a case within subsection (4), the local authority is
proposing to change how it meets the needs in question, it must, in
performing the duty under subsection (2)(b)(i) or (3)(b)(i), take all
reasonable steps to reach agreement with the adult concerned
about how it should meet those needs.
•
•
•
•
•
•
•
Reviews
I think it is significant that the duty to review is being designed to be triggered by a perceived
change in the person's NEEDS.
The current state of the community care case law is that a person must be re-assessed if and
whenever there is a change in the CONTENT (not necessarily merely the identity of the provider)
of their care plan, as well as if there is a change in their needs or situation.
A change of content cannot be done without a re-assessment, because the Gloucestershire ex p
Barry case law established that a care package must be provided, as per its contents, unless or
until the person has been lawfully re-assessed – to do otherwise is a breach of statutory duty.
Where the client lacks capacity, the re-assessment has to be compliant with the Mental Capacity
Act rules about consultation of best interests relatives etc, which is particularly potent, as Costs
Brokers don’t tend to have a great bedside manner with the relatives, not being care managers,
let alone social workers…
Where the client is in a care home, as opposed to the community, and will be staying in the
registered sector, the re-assessment must comply with the Choice Rules. No change of setting can
be made without a re-assessment because it means a change of content, the setting being a
critical part of the Care Plan. Supported living is different in nature to a care home, at present. It’s
your own home, and you get home care there; whereas in a care home you get care together with
accommodation, ie care in a managed environment, where risks are managed, necessarily.
It is this principle that protects a person when councils are doing their best to find other cheaper
or more cost-effective ways of meeting needs - unchanged needs, on paper - but where they
want to get an agreement to meeting the need in a different way, by negotiating with the
provider, perhaps, to water down the inputs.
The current wording of the Act would not extend to an obligation to do a re-assessment when
the means of delivery was merely being reviewed. I think this is quite cunning, and not
© Belinda Schwehr, 2014
52
accidental.
Delegation of statutory functions, such as assessment, eligibility
decision making, care planning, review, etc. – to outside providers
•
•
•
Even though the council sector has been doing it for ages, it’s not actually been legal to contract
out the actual thinking part of social work: ie the obligations to make decisions about people’s
needs…because there’s never been a Deregulation and Contracting Out Order for this aspect of
social care statutory provisions. You can buy help with those functions, IN, without breaching this
rule, that the LA’s functions can’t be given away to outsiders.
Hands on services, of course, have always been different: you are allowed to contract them out
because social care legislation has specifically allowed you to make arrangements with the private
and voluntary sector, to have them act as your agent….(home care provision) or simply as an
independent contractor (care homes).
What are the pros and cons of contracting out social work judgements? Well here are the pros:
– It copes with spikes in demand…
– Councils can use an outside specialist re-ablement companies to do the assessment at the end
of the process as to whether the person needs to go on to ordinary ongoing chargeable
homecare…
– It enables use of people in other areas, where the person to be assessed may be situated,
rather than using up your staff’s times
– It spreads out the geography of access to assessment
– It uses providers in the way that councils have always used them: specialist experience
© Belinda Schwehr, 2014
The risks to the council, on the other hand:
•
•
•
•
•
•
It risks a two toned approach to assessment, especially if one uses it for self funders’
assessments.
Councils will have to pay full cost recovery for the service if it is done by a charity,
otherwise that would put them in breach of charities law.
If one TUPEs out a corps of one’s own social workers into a social enterprise, one will
need to ensure that they have a business manager, because the council will want them to
make savings, next time the contract comes round. So they will, eventually, hate their old
colleagues!
Even commercial providers will expect councils to consult them about the actual costs of
providing the service, so something that that councils have been getting for free for
years, will start to cost them real money…
It inevitably encourages all sorts of service providers to big up their approach to need and
what is an appropriate response, for commercial or charitably aspirational reasons – but
how about councils cure that problem by applying a policy that no assessor can ever be
the care provider …so that no care plan will ever be self-interested?
The organisation or individual doing it must be rigorous in their grasp of who they are
doing this for: it is not the client. It is not independent social work in the usual sense of
the phrase. It is not advocacy for the client. It is for a particular council, which may have
different approach to the national minimum threshold, or indeed, more generous
thresholds for particular purposes, as the Act allows this…
© Belinda Schwehr, 2014
What the guidance says about the discretion to choose the
sort of providers to use for these roles
• “…when the same external organisation carries out care and support planning,
but also provides the resulting care and support that is set out in the plan,
local authorities should consider whether the delegation of its functions could
give rise to any potential conflict and should avoid delegating their functions
where they deem that there would be an inappropriate conflict.
• For example, the local authority may choose to delegate care and support
planning, but retain the final decision-making, including signing off the
amount of the personal budget …[this is what you do instead, at the moment,
and it gives you power to say no the price that is suggested for the service: but
you lot say no, without saying which bit of the service suggestion, you are
prepared to say does not actually NEED to be delivered! Oops!! – that’s not
fair to the client, who needs to know what you are responsible for funding,
and underwriting, however much you might like the idea of outcomes based
specification!]
• Local authorities should also consider including conditions that allow the
contract to be revoked at any time, if having authorised an external party to
exercise its functions, a conflict becomes apparent.”
© Belinda Schwehr, 2014
55
And, because of the public law liability risk
always haunting the council…
• Councils will have to monitor the performance in a much closer way
than they are used to, although of course they should be monitoring all
contracted out services because of the non-delegable duties owed to
the persons assessed etc.
• The organisation or individual doing it MUST UNDERSTAND AND
APPLY:
– The Care Act
– General social care public law legal principles regarding irrationality,
relevance, and fairness of process
– Mental Capacity law – regarding identification of incapacity and a
proper response to its significance for the function that has been
delegated
– Human Rights law – a proper understanding of it, not a woolly
‘student’ or a ‘Daily Mail’ grasp!
© Belinda Schwehr, 2014
The importance of contracts
•
“Local authorities should therefore ensure that contracts are drafted by staff with the
necessary skills and competencies to do so. Local authorities should consider the findings
of the Social Work Practice pilot scheme, which tested approaches to delegation, when
considering how to construct contracts.
•
Contracts should include stipulations which ensure that the activities are carried out in a
way that is compatible with all of the local authority’s legal obligations, for example, its
obligations under the Human Rights Act. The local authority will retain responsibility to
users of care and support for how its functions are carried out and the contract will be
the means by which the local authority holds the contractor to account for how they
exercise the function. The strength of the contracts is therefore of vital importance.
•
For example, when delegating assessments the local authority could choose to require
that assessments must be carried out by people with a particular training or expertise,
and that the training must be kept up to date. [No good requiring them to be well
qualified and up to date with legal developments, unless they require and enable their
own staff to follow community care law and developments as well!!]
•
Since care and support functions are public functions, they must be carried out in a way
that is compatible with all of the local authority’s legal obligations. For example, the local
authority would be liable for any breach by the delegated party, of its legal obligations
under the Human Rights Act or the Data Protection Act.”
© Belinda Schwehr, 2014
57
My guess as to your likely training needs, above and beyond
Skills for Care supported use of their own commissioned materials...
8-15 days of training per council, roughly, and follow-up, with online testing
afterwards: - AND all courses to have the MCA running through them so that you
get refresher MCA training AS WELL!!
X 1 – Information and advice functions: eg advocacy rights decision-making, basic charging
information, ordinary residence, portability and choice rights, rights of people from abroad
and NRPF nationals, disability-related housing and benefits information, health care
pathways and first contact, re-ablement, and screening ‘in’ for fuller social care
assessment/safeguarding - or out, for CHC or some other agency’s consideration;
X 3-6 - Social work assessment staff, including Carers’ assessments – must include any
health staff who are going to be doing integrated teamwork; would cover concepts, types
of eligible need, and process, the relevance of universal services, the notion of
‘consequential significant risk’, the legal irrelevance of carers’ input, at that point, but the
duty to meet the carer’s needs;
X 3-6 Care Planning and sign off including direct payments and managed personal budgets
and other deployment routes – direct payment support workers, brokers and all care and
support planners; including bringing the carers’ input back in, before finalisation of the
personal budget.
[these two care management courses, might need to be differently structured or
combined, if a particular council sees no further point in separating out the functions]
X 1 – the Safeguarding legal framework itself – link between enquiries and
adult social care services processes, safeguarding responses, the new
promised guidance as to legal powers etc.;
X 1 - Senior and middle management – complex case resource allocation,
risk enablement/management re eligibility and plans, due process rights,
market failure obligations and ordinary residence;
X 1 - Legal and complaints and redress staff – these people could be
combined with senior management at a pinch – the scope depends on the
consultation on new rights of appeal, to some extent, to my mind;
X 1 - Deferred payments, and the general money management legal
framework and direct payment monitoring and termination (this day could
include charging staff and charging topics as well, perhaps)
X 1 - Contract and commissioning legal framework – covering obligations in
relation to diversity, sustainability, reasonable consultation and Choice
rights, FNC arrangements and integration structures for lead commissioning,
independent advocacy commissioning, delegation out to social work staff,
etc.
X 1 - Safeguarding Impact for SAB partners – this could be a half
day session and would focus on the discretion regarding functions of
the Board, and the use of the power to impose a requirement to
share information;
X 1– Maybe a specialist focus on ordinary residence, since the changes
are NOT simplifying the law!!
X 1 – Children’s interface – transition, ordinary residence, young carers
and family-focused assessments;
X 1 – Mental health interface – remembering that mental health
service users and their carers are as entitled as anyone else is, to
adults’ social care, even if they are not ‘severely or enduringly’
mentally unwell; and looking at s117 changes.
X1 – Hospital discharge and health interface (CHC processes)
X1 – Learning disability and Housing interface
Thank you for reading this!
• I will be supplying trained-up trainers of my own, at low
rates, for bookings of this sort of suite to sessions, 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