Provider rates, lawful and unlawful cuts, advocacy entitlement, carers’ rights, charges and funding legal challenges were among the subjects covered by Belinda Schwehr at Community Living’s seventh seminar in June. Report by Rosemary Trustam.
At a time when local authorities are facing huge demands, the law has made social workers into gatekeepers, the decision-makers on assessment and eligibility for care, said Belinda in her opening remarks. Yet few are qualified or have the necessary experience to make such decisions. “Social workers’ judgments are only as good as they are allowed to develop them and they can be left deliberately uninformed”, she said. People who depend on the state are mainly those who have no one to help them, can’t afford their own care or are without mental capacity. Social workers and assessors need to understand the law and not be afraid to speak out on their behalf.
Social care is not as popular as the NHS so is less important to politicians. Belinda cautioned against ‘aspirational rhetoric’ as the law only allows for people’s lives to be brought up to what is tolerable, not better than those of the general population. She cited the example of recommending direct payments for whatever the person wants, which is unlawful, rather than for meeting assessed eligible needs.
Providers’ rates
When local authorities try to cut their rates to providers, these have to be rational figures based on real costs, Belinda warned. If providers allow themselves to be bullied to cut prices because they feared competition this would be the equivalent to lemmings rushing off the cliff. Charity trustees should be aware that it is illegal to subsidise public duties and stand firm. Local authorities should be paying the full cost. If a commissioner suggests another organisation can do it for less, providers should think hard before taking it on and act with integrity. Can they do it properly for less? Ultimately, local authorities have to purchase services at the market rate or provide the service themselves. Belinda cited Newcastle who demanded a discount but lost the judicial review because they ignored evidence about the real costs. She also reminded us that top-ups can only be given for extras – wants not eligible needs.
Under the Act the authority’s duty is to meet eligible needs but it also gives the power to meet ineligible needs above what is strictly necessary. The service user or advocate can argue for these and there would have to be good reasons not to meet them. Authorities are required to keep records of these transactions with explanations so they can be checked by a lawyer.
Everyone is entitled to a personal budget, defined at the cost to the authority of meeting assessed needs, so any direct payment should relate to the provider rate. There are three requirements of a direct payment: transparency, timeliness and sufficiency, with sufficiency tied into the provider rate and interim packages quickly agreed.
Care plans are an entitlement under s25 of the Act but Belinda cautioned against outcomes-based care plans without inputs. “That is the quickest way to give away clients’ rights”, she said. Under community care law it must be stated how identified eligible needs will be met. There can be cheaper appropriate ways to meet needs but the vaguer the plan is, the fewer legal rights can be enforced, as once the needs are in a plan they must be met (Gloucester 1990). Changing a care plan triggers the duty to involve the client, others and advocacy. Clients are entitled to have their needs met even if the money runs out.
A questioner raised a case where the withdrawal of section 117 funding by the NHS had resulted in the stopping of an important activity and a suddenly reduced package. Belinda confirmed that section 117 should attract all the same processes and principles as the Care Act so needs should still be assessed and met.
Clients and others, including providers, have the power to develop the plan and to argue for payments to cover it but as it is not a duty, there is no right to funding. An argument could be made for funding for specialist support; for example, a deaf signer to enable client participation. As this is permitted they must have a good reason not to allow it but it is still the council’s decision on eligibility and plan. However, if they have not demonstrated interest in the client’s wishes or feelings they could be subject to judicial review.
The old law is still the law under the Care Act leaving local authorities in the unenviable and impossible task of managing restricted resources. Hence the moves to try to meet needs more innovatively using, for example, universal services, neighbours, volunteers.
Lawful cuts
With so many reviews being carried out, authorities need to ensure there are sufficient means to meet needs, objectively and appropriately. Lawful cuts can be made if there is a lawful review and proportionate reassessment. Where eligibility of needs is reconsidered budgets and care plans can be changed but there should be appropriate options to meet needs.
Unlawful cuts?
In the Killigrew case, the assessed need was 2 to 1 manual handling for six hours (ie 2×6 hours) so the cut from 12 hours support to six was judged indefensible. Where someone had unpredictable epileptic fits, Sutton was prepared to give three nights a month support, clearly unreasonable.
Croydon, in the Hesley case, wanted a discount so they could find less expensive provision but because they reviewed without consulting the mother or Hesley, who were entitled to be consulted in a best interests decision, they were found to be breaking Community Care law. The argument for Hesley was that a move and the proposed support would de-skill him making him more dependent.
Sutton, in the Perry Clark case, wanted to move someone who had been a tenant in supported living for four years to another provider’s shared tenancy to save money. The judgment was that it rode roughshod over Article 8 of the Human Rights law. This is a useful precedent where authorities are reviewing people out of care homes into shared tenancies or from their home into a shared tenancy. Willingness to move if capacitated should be supported with independent Care Act advocacy or, if incapacitated, with an Independent Mental Capacity Advocate (IMCA) monitoring a best interests decision.
Care Act advocacy entitlement
If people have substantial difficulty with the Care Act process they are entitled to Care Act advocacy. So far this right is not being properly explained but clearly applies to adults with learning disabilities and their families. Although family members may be able to undertake this role, many will not be familiar with the law and will be involved in the assessment/review process anyway. Authorities have a statutory duty to provide Care Act advocacy and have been given specific but not ring-fenced funding which may explain why they have not commissioned enough advocacy. Advocates have the power to examine and take copies of any relevant records where the client has the capacity to consent.
Funding legal challenges
Matthieu Culverhouse of solicitors Irwin Mitchell, who sponsored the seminar, said that although the threshold for legal aid is low, it is still there for people and family members who can bring a challenge and most would qualify for aid. This protects them from both sides’ costs if they lose. When a case is brought on a no-win no-fee basis there is less protection from the other side’s costs. An organisation can bring a challenge though Mathieu advised charities to check before embarking on one. A protective costs order, which limits both theirs and the other side’s costs, may be granted if it can be considered to be in the public interest. Even when a judicial review finds in favour of the individual, the authority can still review their decision in the light of the judgment and arrive at the same outcome.
Principles established under the old Care Act can still apply. For example, in the old Isle of Wight case, the authority’s attempt to water down the eligibility criteria was found unlawful. Sometimes taking a case to court can prompt a decision change. When Salford tried to close its transport provision and failed to consult – a public sector equality duty – it prompted a highly visible public campaign so when it got to court the policy had been watered down. Some people were still unhappy and made successful challenges under legal aid.
In the Sheffield (Davey) case, Irwin Mitchell argued they had to take account of the Care Act’s wellbeing principles and the individual’s wishes and feelings in the assessment and, if not, explain why. Mathieu felt this was one of the most powerful aspects of the Act. “We don’t make people care for their relatives,” he said. “If we force them sooner or later we do damage”. The eligibility threshold for carers is the likelihood of the deterioration of their mental or physical health and this requires an individualised support plan. A carer is someone who provides necessary care.
Carers’ rights
Belinda stressed the Act gives carers the same rights and privileges as individuals. What carers can do will depend on their needs being taken into account and not just given some pre-determined direct payment. The Local Government Administrator for example found Kent to have maladministrated for fobbing off a carer’s complaint about their assertion that they did not have to support carers to work. Many people don’t see themselves as carers but even if they are caring for someone funded under Continuing Health Care, they are still entitled to services and support under the Care Act. Respite is often offered but carers should never be charged for someone’s respite, though they can be for their own. Carers should not be allowed to get to breaking point with the resulting risks. The principle of prevention is in the Act so if the authority gives informal preventive support then fewer people will ask for an assessment. If this funding runs out and the carer is driven to ask for an assessment, this would be a continuing possibly expensive cost for the authority so it makes sense to invest in preventive services.
Belinda said it is difficult to see how the individual’s needs and care plan can be assessed without taking account of the carer’s needs and meeting them. To facilitate this, many authorities are bringing assessments back in-house because social workers are assessing the individual and the voluntary sector the carers.
Charges
Belinda reminded the audience that charges cannot be imposed that would reduce someone’s income below the statutory level (the Minimum Income Guarantee (MIG) ). Allowance for Disability Related Expenditure (DRE) will identify costs, including activities crucial to wellbeing, and she stressed that the mobility allowance cannot legally be considered for charging.
This was a well-attended stimulating day with 100% positive feedback. Delegates were supplied with comprehensive detailed slides for reference. Local authority attenders and others appreciated particularly the balanced information Belinda provided and that her clear exposition of the law’s practical application to all stake-holders increased their legal lit
