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SocIAl cArE lAW: coST cAppINg SocIAl cArE lAW: coST cAppINg
Do THESE coUNcIlS’ most people but I do doubt that a family life and the home, but not a eligibility regulations. One is not QUESTIoNS rAISED
policy of cost capping fits with the
guarantee that one will always be
eligible for a care home, or homecare
polIcIES ENSUrE Care Act framework. able to be cared for, there, for ever, any longer: one is eligible, effectively, by THESE polIcIES
courtesy of the State. Article 8
for care planning, and two different
‘WEllbEINg’? What is legal under explicitly includes a reference to the settings or ways to meet need can be What would constitute an exception
the Care Act?
economic wellbeing of the area as a
compared where both could be offered
It is legal for councils to take their legitimate qualification of that whole by the council. to a lower/capped rate for care
support?
two councils are planning to cap resources into account in relation to human ‘right’.
own home care costs at the equivalent how they meet needs, not whether they There is nothing wrong in letting They will inevitably be unequal in How does the proposal relate to a
meet them.
many ways: one will cost less and one
value of those for a care home. people volunteer to meet the first chunk will offer more of some things, such needs-led care planning process
(not service or budget-led), as in
Does that fit with the Care Act Councils are also – despite the rhetoric of their own currently unmet needs, by as safety and company, and less of the Act?
framework and the principle of wellbeing enshrined in it? about personalisation and user-led offering informal help through friends, others; for instance, autonomy, privacy, Would a council risk judicial review
relatives, neighbours, or through the
assessment – the final decision-makers
peace and quiet. Whether one or the
belinda Schwehr has reservations. about what is an appropriate way to use of their own resources – councils other suits a person’s needs better will with a policy which does not fully
meet needs in a particular case. are only obliged to meet unmet need, all depend on the perspective through take into account the effect on a
just as under the old law. which they see their home, care homes, person’s wellbeing?
But in both cases, this discretion is and their situation.
eaders may recall that because a residential care package subject to judicial review (legal There is nothing legally wrong, if there
R Southampton consulted for a person with learning disabilities proceedings challenging the validity are two alternative adequate settings Clearly, for some it would be c. Whether the same approach will be
about offering people a may not be cheaper than in an own of the decision) for unreasonableness, for meeting the particular needs of a indefensible that the cheaper of the taken by CCGs – or CCGs with
care home instead of home home setting. unfairness, illegality, breach of the person, in a council’s offering to two was even theoretically adequate. split package clients – and how
care, if care in a person’s person’s article 3 or 8 human rights, fund the cheaper of the two. The extent of the impact of one’s all elements will be taken into
preferred setting was Some councils are framing their or for what’s called ‘fettering of That well-established principle is set out assessed eligible needs in one’s own consideration in the comparison.
costlier than the council policies with regard to the gross discretion’, if what is described in paragraph 10.27 of the guidance, home may be less than in a care
could have paid in a equivalent cost; others are using net as a general policy is, in practice, along with the prohibition on ‘arbitrary’ home, but the environment, d. The charging implications: why
managed environment. costs, offering the value of a residential going to be implemented as a ceilings on care costs in particular including the state of one’s home; isn’t the amount that a person is
care home, after the client’s legitimate concrete rule. settings. That’s always been the law for example, whether there is being asked to spend on their own
Southampton withdrew its proposals contribution has been factored in, and since the Lancashire case, and the someone else there, will inevitably home care, always to be treated as
but Medway has taken up the expecting people to take that net sum Review trigger Care Act doesn’t change that principle. affect the cost of reducing the impact disability related expenditure,
challenge, consulting on a similar of money and spending it, and their Bedford’s policy does not go that far: of what one is not able to achieve, since it is spending on need that the
basis. Bedford seems to have finished own money, on meeting their needs. it uses the equivalent cost as a review Unlawfully in each setting, to a no longer council has required to be satisfied
its consultation and has already trigger and the occasion for a A person has every right to refuse to significant level. has been met.
implemented a slightly amended policy. Exceptions discussion. And it would only be accept what is offered, or to accept it
For physical and learning disability applied where a person could, in the but then challenge the decision, And if it would not promote well-being, Neither of the councils have given
The plans all have in common the aim clients, the range in Bedford goes from opinion of staff, be appropriately cared via a line manager’s review or judicial and in fact detract from well-being, any detail of what exceptional
of limiting care packages in a client’s £570-£2,500 a week, because of for in either setting. Medway is review proceedings, that the care home can a council actually drive such a circumstances would be for not
home to one or more flat rates, per variations in need. It seems to be clearly committed to doing needs setting would be therapeutically policy all the way home and risk applying the policy. Someone having
week, on the basis that a bed in a care accepted that if the lower end of that assessment too. appropriate. But in so doing, even if challenge? What would that do for the both the gumption and the means to
home will be the same cost. range was a the judge agrees that the council has reputation of the parties involved in the bring judicial review proceedings is not
starting point, However, it’s the acted unlawfully, the person does not cross-party design of the Care Act and a principled reason for deciding when
Councils say they will ‘assist’ those people with relationship of the get to tell the State what he or she the reverence for the well-being the policy should not be applied.
unable or unwilling to pay for their needs above Clearly these proposal to the staff’s wants instead. The council decides principle, that the law is supposed
own care needs at home, or prevail this level in policies raise questions – approach to the care and can only be challenged by way to enshrine? Nowhere in the consultation
upon others in their network to meet the their own of legality, human rights, planning process that of judicial review for indefensibly documents have Members been told
cost above and beyond that limit, home would care planning discretion, is unclear. Is it still unsuitable offers. Other points of concern of other options, such as cutting other
to move into a care home. be treated as the relevance of resources, needs-led, budget-led a. The legitimacy of the rate within discretionary budgets, raising the
exceptions and the interpretation or even service-led? However, the all-important care the level of care home being council tax or digging up the reserves
Exceptions – but it’s not of the duty to The Act and the planning decision is the one by the regarded as equivalent in the first coffers. Nowhere is it acknowledged
Councils also say that they will not clear what meet needs. preceding law have staff member as to whether a person’s place. In areas where top-ups are that duties and values can trump
have a ‘blanket’ policy but will make these people always been clear: needs can even be appropriately running high it is probable that the budgetary targets.
exceptions, taking full account of the would be an it must be needs-led, met in a care home setting – council isn’t paying a justified rate
duty to be person-centred, and place exception to. The policy document and by the needs of the individual in ie. therapeutically beneficial and for the cost of standard care home RIP, legal literacy?
wishes, feelings and needs, at the said that for such people alternative question, not some hypothetical would not de-skill them. That is the care at all. This is now beginning to
centre of the process. methods of care and support, average person. whole basis for not putting young be the case for people with learning Belinda Schwehr
not alternative settings, will be tried, people with learning disabilities, disabilities as well. Care and Health Law
Some councils see this as applying an ambiguity that needs to be clarified. A person does not have a human terminally ill young parents with
mainly to elderly people because their right to live in their own home, children, and elderly persons who b. How the nursing element of a
care home fees tend to be flat-rated for Clearly these policies raise questions – or in a non-care home environment, can still recognise their home nursing home can be forced www.SchwehroncArE.co.uk
ease of commissioning; others see a of legality, human rights, care planning if living there with one’s needs surroundings and partners, and cope, out of the CCG, since it is clear for webinars about the legal
need to apply the same policy to discretion, the relevance of resources, being appropriately met would into care homes. that the council could not provide framework, starting at
people with learning and other and the interpretation of the duty to involve relying on the State to fund for the nursing care in the
disabilities, presumably to avoid meet needs. I agree that living at home that care. Article 8 of the ECHR The needs to be met will refer back community within their own £10 per webinar!
discrimination, but this is less likely is a ‘want’ rather than a need for guarantees respect for private and to the domains/’outcomes’ in the statutory functions.

10 Vol 29 No 4 | Summer 2016 Community Living www.cl-initiatives.co.uk www.cl-initiatives.co.uk Community Living Vol 29 No 4 | Summer 2016 11