How the Care Act 2014 will shape assessment and support planning – a legal opinion

By Belinda Schwehr, Care and Health Law

The Care Bill has the potential to do some very interesting things to the customer’s journey within adult social care.

Assessment is divided into three distinct stages. Firstly, identifying the needs; then deciding whether they are eligible social care needs, and lastly, the care planning stage, where the impact of one’s carer’s willing and able support will be deducted, the remainder of unmet needs costed and put into one’s personal budget for a commissioned package or a direct payment, or one’s individual care account (for self-funders over the savings threshold for funding subsidy). En route, the carer may well be provided with council funds to meet their own needs, related to the caring that they are going to continue, or start, to do.

Reviews need only be done if the council thinks that the circumstances of the person have changed, or on reasonable request from service users, or their advocates.

Advocates will play an increased role as sounding boards, given that a duty is imposed on councils to fund it for those who would struggle with the processes without such help – unless, that is, the person has someone else appropriate, and unpaid, to do it for them.

Service users will be entitled to a copy of their assessment and care plan, with written reasons for any finding of ineligibility, regarding any item or service contended for.

Comment

The existing judicial review case law, which has shaped users’ rights and councils’ obligations to date, was supposed to be consolidated in the Care Bill. That that was the mission of the Law Commission’s 2008-11 review, after public consultation established that nobody wanted fewer rights for people with disabilities, or more discretion, if the legal framework was going to be modernised – the public just wanted it to be simpler and more accessible.

The more recently inserted Dilnot provisions to place a ‘cap’ on self-funders’ care expenditure, defined by what their council would have spent on meeting their unmet eligible needs – however, have come from a completely different economic standpoint. The overall driver is to accommodate those hard-won social care rights in a framework for the future, in which nobody seems to want to pay more tax, but where there is insufficient money to pay for regulated care for the increasing numbers of people whose dependency levels should trigger eligibility.

One can see this tension in three specific areas of the Care Bill: the treatment of carers’ rights to funding, the harnessing of safeguarding enquiries to situations in which a person’s needs impair self-protection; and the possibility of independent appeal rights against councils’ decision-making. This was introduced on the last day of the bill’s committee stage in the House of Commons, but without any clarity as to the pros and cons of bringing appeals in, or when that might actually happen.

Carers’ rights and their impact on assessment 

Anyone who wants to be seen as a carer will be able to be assessed, and on the basis of no more than their own unwillingness to provide support, theoretically entitled to money to ensure they become willing. That money could be for housework or childcare in their own homes.

Mind-boggled readers may be wondering how that squares with councils’ clear preference to stay well out of funding housework as a social care service, and the age-old constraints on allowing close relatives to ‘work’ for direct payment salaries?

The point is that the money is not payment for work. It is payment to enable others to be paid for what the carer might struggle to do for their own families, if they were pressured beyond what they could tolerate into caring for the service user. That sort of back-filling of the carer’s own challenges will be cheaper than regulated personal care for a service user, and can be paid without it affecting the carer’s benefits or tax position – it is free money.

The implication for the assessment conversation between care managers, service users and carers is that it will have to become more of a negotiation – but one that must be properly scripted, and legally truthful. The carer does not have to care, and the council cannot suggest that it can artificially cap the meeting of the service user’s unmet needs if the carer does not step in. The council can, however, talk up the benefits of the carer being known and trusted; and it can offer a different setting for the meeting of the needs than the preferred one, (usually the person’s own home), if it would be cheaper and not inappropriate to do so.

So the carer’s properly informed willingness to meet a large part of their loved-one’s needs, and the amount of money provided to limit their own needs, would ultimately determine whether the service user remained at home, or not.  Does anyone think that this has been spelt out for proper public debate, thus far?

Quite separately, does the resource allocation system-loving part of the sector understand that the Care Bill will make any up-front budget allocation wholly misleading – if by up-front we mean communicated to the service user at the carer-blind ‘eligibility’ decision-making stage, before the carer has been properly incentivised to carry on or increase the amount of care that they are contributing?

Giving up conveying computer-driven allocations could be a great improvement, but the sector’s commitment to ‘helping people to plan’ is equally likely to lead to widespread RAS-tweaking, based on percentage deflators driven merely by questions as to whether one has a carer at all, at night, or at least in existence, albeit somewhere remote. This risks hoodwinking the carer into thinking that their continued help is an obligation, not a choice.

Safeguarding

The bill makes the safeguarding ‘enquiry’ function a statutory responsibility of the council; but it still leaves the triggering of this duty dependent on adult social care concepts (impaired ability to protect oneself, arising out of health and social care needs) and any actual responses to managing the risk of any further abuse, through the provision of adult social care services to meet eligible needs.

There is also much ambiguity, pending the publication of the guidance: is self-neglect supposed to be in or out of the scope of abuse and neglect that triggers enquiries?  The legally-informed answer is that it is in, if it is incapacitated or delusional self-neglect; otherwise it is a lifestyle choice which can be protected by a firm refusal to be assessed, unless or until it strikes the mental health or environmental/public health staff as something that might be bad for other people.

Another area of ambiguity at present, arising from a comment in the explanatory notes on the bill, is to what extent is it really economically feasible to make local authorities co-ordinate enquiries into historical abuse, when the victim cannot actively be helped by means of adult social care services? The client who has given away her house, because she thought her helpful neighbour might blossom into a new partner, on her recent bereavement, does not need care services. She needs Solicitors for the Elderly and enough money to get advice about the doctrine of undue influence; but it seems that the local authority’s social services department is still being pressed, by the legislature, into being the country’s solution to the obligation of the state under the European Convention on Human Rights to take positive steps to protect people’s rights.

Merits-based independent appeals

The complexity of the Dilnot cap structure has made the sector aware that it will give rise to a level of middle-class dissent that cannot be contained merely within the current complaints processes: it will be articulate, legally well-informed and raise matters of law, not fact.

Those told ‘No, you’re not eligible’, or ‘Not for as much as you’d expected’ will want to know why. Yet bringing in an appeal system that can overturn the legitimate discretionary decisions of those whose job it is to make those evaluations, as professionals, will mean that:

• everyone in the system, even the most needy, who have traditionally been compliant and accepting of what they were allocated, will be able to appeal;
• professionals’ decisions will still need to be documented and reasoned but council management’s grip on discharging functions within a defined budget will be further undermined

Lastly, if an appeal system is introduced, it will be those appeal bodies which are taken to judicial review on a point of law, not the council which made the decision in the first place. That is a politically significant outcome that should have been properly debated, it is suggested, as part of the run-up to the Care Bill’s passage, because of its contribution to unaccountability. If one accepts that one must fund assistance to appeal these decisions, then one might as well have a centrally funded tribunal, instead of at least nine regional appeal bodies, it is suggested.