Big issues for legal advice. Part 1: due process

Problems with due process are commonly seen at advice charity CASCAIDr.In the first of a two-part series on be the most troubling issues in health and social care law and practice. Belinda Schwehr gives an overview

Many issues with basic due process come across the screens at legal advice charity CASCAIDr.These are genuinely concerning, and are likely to be driven by an inadequate number of staff employed to do this work in the statutory sector.

The following problems crop up regularly.

Resource allocation versus actual costs

This concerns the Resource Allocation System, which creates a score that is used to work out how much money can be made available to meet a person’s needs. Problems arise where the figure bears no relationship to the actual cost of care in the local market.

The costing of live-in care is a good example. Allocations may ignore the breaks that a live-in carer has to be given under the working time directive, or the weekly commission that is charged for an introduction to a person who will count as a worker for employment law purposes even though they are regarded as self-employed – and therefore responsible for their own tax and national insurance – with HMRC.

We have one family where a person’s budget has fallen from £60,000 to £20,000 to £3,000 in three years on the premise that her lifestyle had changed.

She was at school for the first year, and the budget paid for care and support during the school holidays. In the second year, she was at home and going to college. She is still living at home and going to college for the third.

One of the items on the scoring sheet is “daily check to see if safe”, so it was clearly not drawn up for people living in their own home.

The reason for this massive reduction cannot be explained, we feel, merely by the fact that she is now able to travel to college on her own, although not home again in the rush hour.

Separate assessments

Another problem is that assessments are carried out by different agencies. This is instead of combined or joined-up ones by staff who have been trained to do more than just one task. Such tasks include carrying out a “carer’s assessment” or “children and families assessment”, or going through the continuing healthcare (CHC) decision support tool process.

This problem is intensified when a person has been placed outside their area through choice or necessity. Local authorities, in the main, are not using their freedom to buy in a statutory assessment from a company acting as the council’s delegate, whose staff might be more than merely competent assessors of single issues.

Experts by lived experience, particularly parent carers, should set up such companies pronto, and take their values directly to the commissioners.

Financial allocation delays

There are longstanding problems with delays in decision-making about financial allocation for the contents of notional care plans, without anything being delivered in the meantime.

This saves councils millions of pounds, and those who need a decision appear to put up with it, instead of requesting “Please get on with implementing what is so far agreed, at least” in the meantime.

Lack of finalised written care plans

The staff left in post after years of redundancies appear to know enough basic legal principles to cover themselves, if the absence of finalised care plans is anything to go by.

The law sees formal council care plans as the record that renders the council accountable in public law terms for the decision as to how much of anything is enough to be seen as meeting a person’s needs.

That has been the law since the late 1990s, and providing care plans is a

duty to all clients under section 25 of the Care Act.

Written care plans are the only possible way to spot: the difference between a defensible care plan and one that is irrational; a care plan that disregards obviously relevant considerations; or one that is unlawful because it breaches guidance or a statutory provision.

What is delivered

Advocates, service users and members of the caring public do not seem to grasp that a Care Act journey is not “done” until a care plan exists, so get lost in the complaints process, instead of putting their collective feet down.

A missing care plan does not just mean that the service user has no idea of how council staff think that the allocation of money or services could feasibly meet assessed eligible needs. It also means that, when it comes to a social services review, neither client nor carer knows what inputs the council or care commissioning group considers it has been paying a provider for.

Furthermore, there is no way of knowing whether that menu has been delivered or watered down, and therefore what has actually been paid for has “worked”.

In legal terms, a provider’s own care plan must be adopted by the commissioners if no other statutory care plan is in place, as part of a council’s section 25 commitment.

Thanks to trends in guidance to commissioners from personalisation gurus, care plans will often be based on “outcomes” only, which is no use to anyone involved in a judicial review.

Direct payments and capacity

Some councils never really thought about capacity when doling out direct payments in the early years of personalisation to any set of parents who were inclined to take on the caring role. The consequence is that entrenched positions have sometimes been adopted.

People who have been holding (in name, at least) a direct payment for years, are now being told that they cannot have one as they do not have capacity. As a result, a parent who is their personal assistant (PA) cannot hold and run the payment and also be paid under the direct payment. This causes massive upheaval.

I believe that this approach is defensible if one starts out with a proper consideration of a person’s capacity to understand what taking a direct payment does – which lets the council off the hook of provision.

But surely this is not the case when a direct payment has been used for years and the adult client has been consensually benefiting from the parent helping to “manage” the payment and the employment relationship as agent for the service user; the parent is not a formal “suitable person” so cannot be the employer and employee at the same time.

Direct payments to relatives

Connected to this are blanket policies that a parent in the same household as the client should not be paid, even where evidence shows that care cannot be purchased in the area for the amount provided by the direct payment.

If the parent were to be willing, no doubt on the minimum wage, to fill that gap in commissioning efficiency, how could it not be regarded as “necessary” to authorise it? We would say it was the best way of avoiding legal action if the council’s commissioners have been so inept as not to manage the market under the section 5 duty, or have been left short of the means to do so by councillors with no knowledge of social care law.

Suspension of direct payments

Direct payments can be suddenly suspended if an underspend is sitting in an account.

Rather than argue about getting it back, the council just says “Get on and spend what you’ve saved up”, overlooking the possibility that there may be a reason for the underspend. This may be because care cannot be secured at any price or that the payment was to made to cover contingencies and fluctuations in the first place.

Most councils’ direct payment agreements build in due process for something as life changing as a suspension of a direct payment. Contracts and employee relations will be irrevocably soured if this process is not respected.

Remedies

Linked to the question of when the decision is actually “made” is the question of what one should do about it if it is thought to be so bad as to be unlawful.

The complaint system is creaking, and the easiest way to avoid getting stuck in it is to ask for something that the complaint system cannot provide. This could be the continuation of services, if these are being provided, or a commitment to provide them pending the conclusion of the complaint process. If this cannot be done, a referral to the monitoring officer is the easy solution.

Our view is that if the decision has been made defensibly – on paper at least – making a complaint is appropriate. However, if the client or advocate can identify an aspect of the situation that is arguably strongly unlawful, it is a sort of Kafkaesque madness to make clients complain first.

Complaints will not conceivably be resolved by a complaints officer without recourse to the council’s adult social care lawyer, who may already have given advice on the matter to the adult services director. Therefore, the monitoring officer should be involved in case independent advice is needed.

Excessive charging

Mayhem in charging has been reported to CASCAIDr, with stories about service users being charged more for a service than it costs the council.

We simply cannot get our heads around how this even happens. Surely the people who make charging software know that the maximum is the cost of a person’s services to the authority, and program in a warning signal if it is exceeded?

We think this is down to block (or group household) contracting having continued, despite the requirement to disaggregate budgets in shared services. We will be focusing on that problem in the coming year as it is what we call a “mindset” issue.

Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of the Care & Health Law consultancy. She has been a barrister, solicitor advocate and university law lecturer


This article is the first of a two-part series. Part two will highlight will look at persistent “mindset” issues in the approaches of local authorities, care commissioning groups and commissioners that affect the delivery of social care and health entitlements