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legal: care planning and purchasing

The provider will then say it has been
agreed with the council that service
user A is of a higher functioning level than
“the others” so needs supervision only on
a 1:4 ratio, while that service user B is
presenting less risk than before, and will
be fine with 1:5.
The outcome will be that, since the
activity being provided is more intensively
staffed than service users need, and the
council only funds needs and not wants,
well, if they still want to take part, they
will have to top up, privately …
Where the client is charged by the
council for the provision of the activity as
part of their budget, I think that the client
can properly say that they need to claim
that extra cost as disability related
expenditure, even if it is not an eligible
need. It is still a need, even if it is not
eligible, because one cannot send only a
portion of oneself to a day care place.
I can think of no reason why this is
unlawful, as long as the care plan is
properly revised and the council therefore
knows the provider is making this
private charge.
Unlike care home top-ups, the payment Spent force: family members who unwittingly agree to a client’s personal allowance being used to
will have to be made by the client to the meet eligible needs can end up paying for their relative’s toiletries and clothing
provider rather than to the council.
However, if the council is not told and is rather through a block contract for all the Mere ‘prompting’ does not require a
paying the provider the whole fee for the clients to receive a standard “wellbeing” provider to be registered with CQC, and
activity, then it is just plain double or welfare service, rather than an can be provided by unregulated workers,
charging and fraudulent. This is because it individually commissioned contract for even in an organisation registered for the
is charging two people for the same thing, each person’s eligible needs. provision of personal care. So this slight
the council on the one hand, and the Sometimes, there is a clue as to this sort change in the way a person’s needs are
service user or relative on the other. of a device: you might find that the described by the provider justifies the
“ A slight change in association where the provider is or used workers who are paid less than those who
employment of unregulated support
service user has a tenancy in a housing
to be the housing management service for are regarded as delivering ‘care’.
In this way, the provider can offer
the landlord, when Supporting People
how needs are described
this really matters for the work my
not have been a registered provider with
justifies providers using monies were available. That company may savings to the commissioner. Also – and
Care Quality Commission at that point,
organisation CASCAIDr is doing – there is
cheaper, unregulated
no enforceable right to any particular
and might not have registered when it
eligible needs met by low-level ” became a requirement to do so if the amount of “support” outside the Care
support staff
service involved “prompting together with Act, as opposed to care and support
inside this legislation. Public law principles
supervision of personal care tasks”. (This
do not and cannot do much to preserve
requirement made most Supporting
home into registrable entities.)
underlying support contracts People providers offering care in the whatever is being paid for, when next year
even further cuts are made, all over again.
A variation on the above theme, which I Whatever the registration status of the This explains – does it not? – why
have come across recently, is this: the provider, you find that the service user commissioners in many councils are so
service user is assessed with Care Act will have been freshly evaluated by the obsessed with the idea that supported
paperwork, and inabilities to achieve are provider to need only prompting, rather living is a different service to home care.
found along with significant impact, so than prompting together with Such devices are being used to thin out
there is eligibility. But, when it comes to supervision. This is a clue that supposedly people’s Care Act personal budgets. n
care planning, no budget is provided, eligible needs will be met by something
because the need is regarded as met by other than by a Care Act personal budget, Belinda Schwehr is chief executive of
something else. because prompting together with legal advice charity CASCAIDr (www.
Christy Lawrance underlying, separate contract with the care that must be done by properly Health Law consultancy. She has been a
CASCAIDr.org.uk) and owner of the Care &
supervision counts as registrable personal
That something turns out to be an
barrister, solicitor advocate and university
regulated workers, who tend to cost more
provider – paid for by the council, not as
than mere support workers.
law lecturer
an individual service agreement but
www.cl-initiatives.co.uk Community Living Vol 32 No 2 | Winter 2018 9