The Care Act – will ambiguous wording lead to more judicial reviews?

The Care Act Regulations and Guidance have now been finalised. Belinda Schwehr has been scrutinising the small print.

Two significant areas are affected by the changes – eligibility for care and direct payments.

 

Eligibility criteria

Ability with regard to the activity of ‘cleaning and maintenance of one’s home’ has been re-worded to ‘maintaining a habitable home environment’.

 

I think this connotes a far greater degree of insanitariness before a council would consider a person’s inability to do routine cleaning as something that has a significant impact on their well-being. They could even think this means no cleaning and shopping need ever be funded as adult social care.

 

That would be dangerously ignorant as the regulations contain an extended definition of what it means to be unable to do something. Being unable can still be established if someone is being assisted to do the task in question – and,   importantly, prompting is specifically included in the guidance as a form of relevant assistance.

 

The guidance, which must be acted under, is arguably more inclusive than the regulations about how these questions should be regarded.

 

For instance, under managing and maintaining nutrition, it states: “Local authorities should consider whether the adult has access to food and drink to maintain nutrition, and that the adult is able to prepare and consume the food and drink.”

 

Although the assessment should be carer-neutral, and look at whether the person is able to manage accessing food and drink in person (or able, but only with assistance), the wording here may make councils look at the factual situation in the person’s household, at whether the client does have access to food and drink – for instance, because a carer is getting the shopping in.

 

This is probably unavoidable without proper training but at least it means that shopping must therefore be done for people who do not have anyone to do it for them and who can’t get out or use the internet to get it delivered. It’s not rationally possible to assert that the impact would be insignificant for them.

 

Also, on the question of maintaining a habitable home enviroment, the guidance says: “Local authorities should consider whether the condition of the adult’s home is sufficiently clean and maintained to be safe” – NOT, please note, the adult’s ability to keep it that way, him or herself!

 

It goes on to say: “A habitable home is safe and has essential amenities. An adult may require support to sustain their occupancy of the home and to maintain amenities, such as water, electricity and gas.”

 

I think this is there to ensure that housing-related support remains a social care service in the national criteria for people in the supported living and extra care sector where grant funding for contracts with housing providers has been stopped.

 

Two or more outcomes?

Bizarrely, to be eligible, one has to manifest inability in ‘two or more’ of the ‘outcomes’ on the list of activities in the regulations, with no obvious indications as to what a council should do with a person who presents with just one, but highly significant, area of inability….

 

Practitioners apparently struggle to think of a person with only one area of difficulty but not two. It is also thought that no practitioner would walk away from someone they think needs to be found eligible and will thus find a second area of need with a significant impact on well-being, once the two are put together.

 

But the regulations would not have been worded this way if it was not thought that such a person could exist but what to do about it is not described. I believe the only options are to find the person ineligible but give them a preventive or reduced service or to fudge the matter and find two areas of need which, when combined, would have significant impact.

 

Direct payments

The government’s position on councils needing to budget for ‘sufficiency’ – and people’s ‘reasonable preferences’ – has been left in but I think the guidance related to it has become more controversial and susceptible to judicial review.

 

‘Andrew’, the case cited in the final guidance, still gets about 35% more cash for a better outcome, from a direct payment provider, than it used to cost the council to purchase his care from another agency. He is much better off in the new service because he now gets continuity – the same carer, every time.

 

Councils will be anxious about the inherent cost. Of course, carer continuity is a preference, and in some cases (autism, for instance) it may well be a need. But constant changes of staff in social care mean it’s impossible to ensure continuity. Consequently, if carer continuity is a need in a particular case, the council would have to pay for it but if it is a ‘more than reasonable’ preference, it could be funded by the person, not the council.

 

That would mean limiting the direct payment, which most would find acceptable, to the real cost to the council, as long as there was transparency and recognition that a contract for an individual might cost more than for the council buying in bulk.

 

Unfortunately, the guidance implies that a direct payment could be denied altogether, and not just limited, on grounds of a bald test of it costing ‘more’ on a direct payment basis, compared with a council commissioned arrangement meeting the same needs and outcomes. This is a different situation altogether to Andrew’s but still not one which anyone working in direct payments since the early 2000s would think of as legal. Since then, the government has consistently emphasised that direct payments are a right, and not a discretion, if basic conditions are met.

The finalised guidance says this:

“In all cases, appropriateness is for local authorities to determine, although it is expected that in general, direct payments are an appropriate way to meet most care and support needs…..However, there may be cases where a direct payment is not appropriate to meet needs. The Regulations set out that direct payments cannot be made to people subject to a court order for a drug or alcohol treatment programme or similar schemes (schedule 1 of the Regulations).”

 

I don’t believe anyone reading this would grasp from the tone that mere cost-ineffectiveness is a reason for finding that a direct payment is not “an appropriate way to meet need” – the wording of one of the four conditions that has to be met to trigger a duty to provide a direct payment.

 

The old regulations said, in relation to the virtual right to a direct payment:

“(2) The conditions referred to in paragraph (1) are that the responsible authority are satisfied —

(a) that the person’s need for the relevant service can be met by securing the provision of it by means of a direct payment;”

 

At that time, apart from situations where direct payments were prohibited, and the few where a person’s status made them discretionary, the guidance said: “…Otherwise, direct payments must be made to all other individuals who are eligible to receive them and who want them.”

 

The new regulation is now worded:

“Condition 4 is that the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question.”

 

But, regarding cost, the guidance says this:

“(11.26) 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 directly-provided 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 more than the local authority would be able to arrange the same support for, whilst achieving the same outcomes for the individual.”

 

This covert change from a virtual right, to a much broader discretion based on bald cost comparison, is noteworthy in a system where parliamentary scrutiny is supposed to be a check on the power of the executive.

 

Paying relatives in the same

household for meeting needs

A more positive development is that the DH has finally accepted that it is not correct to include in guidance that it is only ‘in exceptional circumstances’ that a spouse or close relative living in the same household should be allowed to be paid for providing care to a direct payment recipient.

 

That discretion has long existed but has only been exercised rarely in light of the reference to exceptionality. The removal of the discouraging words leaves only the regulations in place, which is that it can be done whenever the local authority considers it is necessary to do so.

 

The same reference to ‘necessity’ applies to a new discretion to allow a person to pay their close relative to administer the direct payment, and even monitor how it is used. In this case, it is logical that the council would fund that payment, on top of the person’s assessed needs.

 

There is, however, no enforceable duty on a council to provide that sort of support or choice or control in relation to encouraging take-up of direct payments. But it can be done and well-being may be cited to galvanise a council into doing it.

 

However, it is my guess that most councils will provide free access to in-house or grant-funded organisations for direct payment support, payroll services or brokers to assist people on direct payments or holders in lieu, and hence not find it necessary to fund additional payments to people’s relatives for organising the package.

 

 

Belinda Schwehr

Care and Health Law