Independent panels that settle care funding disputes between councils and primary care trusts avoid the need for costly court hearings and benefit joint-working, writes Louise Hunt (picture: Clive Powell, independent review panel chair)
● Project name: Independent arbitration panels.
● Location: So far three major panels have sat in London and the South East.
● Aims and objectives: To provide councils and PCTs with an impartial and transparent mechanism for resolving funding disputes over long-term care cases.
● Funding: The panels are funded jointly by the agencies involved. In a recent case the panel examined 23 cases over a week and a half at a cost of £15,000, for the panel members, a specialist and a note taker.
● Outcomes: Faster and cheaper resolution than going to court, opportunity for better care to be identified for patients, and improved joint-working.
Social care funding cuts, combined with an NHS facing reorganisation and at the mercy of a real-terms budget freeze, are likely to lead to more conflicts over who should pay for long-term care. Good dispute resolution mechanisms will be key, particularly in cases where service users have been assessed for continuing care, a fully NHS-funded package for people with significant health needs.
Under the national framework for NHS continuing healthcare, councils and primary care trusts should have a local system of resolution, yet entrenched disputes are common.
In London and the South East, however, Clive Powell has been organising and chairing independent arbitration panels to resolve disputes between councils and primary care trusts since the start of last year.
Powell, a former civil servant and magistrate of 25 years’ standing, became involved through his longstanding role as a chair of independent review panels, which hear appeals by patients against PCT decisions to refuse them continuing care.
He says independent arbitration provides a cost-effective way to resolve entrenched disputes. “It is down to individual organisations to agree between themselves how to resolve disputes. At the moment the mechanisms aren’t as robust as they could be and people start threatening court action.”
However, the courts are reluctant to become involved, and there is a strong emphasis from the government that public bodies ought to resolve their disputes without committing public funds to court cases.
Powell’s first arbitration panel was set up in response to a request for help from East Sussex PCT, which was in dispute with its local authority over 15 cases.
The panels comprise Powell as chair, a health representative with an extensive career in nursing and a social care representative with equivalent experience. Special advisers are consulted when the panel is focused on a particular client group. Usually a batch of cases is heard at once and the agencies agree to accept the panel’s decision.
Normally panels are jointly funded by the PCT and local authority. So far three major panels have been set up, for East Sussex and the London boroughs of Brent and Haringey, involving some 50 cases.
“We are not seen as an official mechanism for dispute resolution by the Department of Health guidance, but we have been suggested by strategic health authorities, so have a tacit nod of approval,” Powell says.
The process gives both sides the chance to put their positions to the panel. The individuals and families at the centre of the dispute are invited to do the same. “It’s a transparent process so all sides can see the rationale behind the decision and learn lessons,” Powell says. “We don’t allow agencies to be adversarial.”
Predominantly, the cases concern mental health and learning disabilities and often involve one agency saying that an individual it funds no longer meets eligibility criteria.
There are many reasons why disputes are not settled earlier. “Budgetary pressure and personalities can come into play,” Powell says. “People can be reluctant to be seen as taking on more commitments and, indeed, may feel under pressure to offload existing commitments. For local authorities, in particular, decision makers and budget holders are often the same person and on occasion managers under pressure have tried to influence assessment conclusions.
“Line managers feel obliged to support colleagues. There is a great deal of organisational loyalty.”
Powell notes that, in nearly all the cases so far, the health and social care panel representatives have been in agreement. “I have only had to do one casting vote,” he says. “If the representatives can agree, why can’t PCTs and local authorities?”
Paul Morgan, the Association of Directors of Adult Social Services’ continuing care lead, who has sat as a social care representative, says the existence of the panel has improved joint working between agencies.
“It has brought to the fore ways of getting round disputes,” he says, “such as introducing joint training, policies and panels, in line with good practice guidance. We wouldn’t expect to go back to the same places again.”
The impartiality of the representatives can also lead to better outcomes for clients, says Leigh Skelton, professional lead for continuing healthcare at Devon PCT, who has been the health representative on the panels.
“Impartiality is what local panels are meant to achieve but rarely do,” he says. “Because the representatives are free from the constraints of the day job they can concentrate on what is best for the patient. If you are from the organisation you can’t help but be affected by budget pressures even if you try not to be.”
Powell foresees continuing demand for independent arbitration panels, particularly because of the uncertainty on whether councils or GP consortia will be responsible for continuing care when PCTs are abolished in 2013.
“Historically, GPs have referred patients for continuing care,” he says. “But they may be less keen to say a patient has a continuing healthcare need if they have to pay for it, so I think there will be more disputes.”
‘It was a very clear case’
Arbitration panel chair Clive Powell describes a particularly difficult case:
“The panel looked at the case of a man, aged 20, who had historically been funded by health, social care and education for profound physical disabilities. As he progressed through his teens, other physical disabilities had come into play.
“The local authority view was that he had a primary health need, but the PCT argued that he had social care needs. The language both agencies used in their reports sustained their beliefs.
“For example, the PCT report said the man went out every day on his tricycle, indicating that he no longer had a primary health need. But, by allowing his mother’s point of view to be put during the arbitration hearing, it was revealed that she had built an exercise bike for him, which she pulled around the estate to help him exercise. “Although both agencies had written reports on the case, the senior managers had not met the mother and therefore did not understand the reality of the man’s disabilities and that he had a primary health need. It was a very clear case.
“Disputes are very much to do with the language used in cases and people feel obliged to follow the corporate line without making their own assessments, so it becomes like Chinese whispers; the more times the story is told the further from the truth it is.
“If the people involved in the dispute actually understood the case from the individuals involved it should not have needed arbitration.”
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