How the proposed guidance to implement the Care Act 2014 measures up

Legal trainer Belinda Schwehr analyses the draft regulations and statutory guidance under the Care Act 2014, which have been published for consultation

Pic Credit: Jeff Brackler/Rex Features

By Belinda Schwehr, Care and Health Law

The government published its draft regulations and statutory guidance on implementing the Care Act 2014 today. Here are my initial thoughts on what they say and mean for social care professionals.

Eligibility

The guidance helpfully emphasises that there is no hierarchy of needs in the indicators of the nationally applicable approach to eligibility:

“6.88 In considering the type of needs an adult may have, the local authority should note that there is no hierarchy of needs or of the constituent parts of wellbeing as described in chapter 1 of this guidance.”

Those constituent parts, as set out in the Care Act 2014, are: personal dignity; physical and mental health and emotional wellbeing; protection from abuse and neglect; control over day-to-day life; participation in work, education, training or recreation; social and economic wellbeing; personal relationships; suitability of accommodation, and contribution to society.

That message probably needs to be expanded to there being no hierarchy in relation to the criteria set out for consideration in the draft regulations on eligibility, described, provisionally, as outcomes. :

“(2) The specified outcomes are—

(a) carrying out some or all basic care activities;
(b) maintaining family or other significant personal relationships;
(c) accessing and engaging in work, training, education or volunteering;
(d) accessing necessary facilities or services in the local community including medical services, public transport, educational facilities, and recreational facilities or services;
(e) carrying out any caring responsibilities the adult has for a child.”

‘Basic care activities’ have been re-defined to get rid of all references to assistance with taking medication but there is no reference to keeping oneself safe. Given the duty to make enquiries in relation to situations where there is a perceived risk of abuse or neglect, under section 42 of the Act, this may not be a legally significant omission, but leaving out basic money management is significant, in my view.

References in the old eligibility guidance to ‘vital’ tasks have been translated into references to ‘essential’ tasks. But all the references in last year’s consultation on the previous draft regulations to basic household activities have been made relevant only to identifying carers’ needs, not the service user’s own needs.

In order to be eligible, there has to be a consequential significant impact on your wellbeing, but there is no guidance on the meaning or identification of ‘significant’.

Carer-blind assessments

Carer-blind assessment has been kept in for the purposes of eligibility decision-making by councils. Any care provided by a carer must not be considered until it has been determined that the adult has eligible needs.

This makes sense if one remembers that it is true for CHC assessment purposes. But if the threshold is not overall need, but significant impact on well-being, how assessors are supposed to work out the size of the risks being faced by the individual if a carer is meeting need, while ignoring that fact for the purpose of the eligibility decision, is beyond me.

Assessors will start off intending to ignore the carer, but since ‘eligibility’ is what they have been used to thinking of as triggering funding of services, I think that they will find it hard to prevent the instinctive judgement as follows: “Well it would be a big problem, or it could be, but actually the carer isn’t asking to stop….so there’s no real risk…”

The Act is silent on whether ‘the assessment’ is a process that ends at the point an eligibility decision is made, or is not finished until the support plan is finalised and adopted by the council. It seems clear from the guidance, though, that the assessment relates to identification of needs and eligibility, and planning is separate.

But the size of the budget has to be linked, evidentially and rationally, to the plan. The financial assessment is not to be done until ‘after’ the assessment. But self-rationing people will still be tempted to refuse services that they do objectively need, if the means testing and identification of what they will be paying occurs during the support planning stage.

Resource allocation and panels

There is no reference to the notion of resource allocation systems in the guidance about needs, eligibility and care planning, as such. That might be because it had been accepted that a management accounting tool cannot drive the assessment or the plan, and that would have been a great development.

However, there is still reference, in the guidance on care planning, to panels signing off ‘large or unique’ personal budgets, while local authorities should consider delegating responsibility to their staff “to ensure sign-off takes place at the most appropriate level”. So there is still an implication that delegated decision-making by middle management will be able to be done according to some standard care planning policies and delegated decision-making guidelines. However, the legality of these will have to be carefully considered, if a litigation-fest is to be avoided.

The guidance on personal budgets does refer to resource allocation systems but the section on RASs having to generate sufficient amounts is frustrating. It is admittedly great news that in relation to sufficiency, it says “the amount …must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan”.

The guidance then includes an example in which a council increases the value of a person’s personal budget so that he can take it as a direct payment, contracting directly with a home care agency at greater cost than the council pays through its block contract with the same agency.

However, the Act itself says the exact opposite – that the value of the personal budget is the cost to the council of meeting the adults’ needs that it is required to meet. This divergence between Act and guidance could cause havoc, but the sector is well used to that problem.

‘Reasonable’ preferences

Also, the guidance offers no guidance at all on what the law is as to when a person’s preference might not, or need not, lawfully, be regarded as ‘reasonable’. Take the situation where staying in one’s own home with services is one’s preference but means that it costs twice as much as residential care, for instance.

Now that the definition of a personal budget is the cost to the authority of meeting the needs that it has identified, it is inevitable that councils will tell their staff to work within budgetary and other principle-based parameters for support planning. One of these is very likely to be whether residential care would cost less, if it is at least not inappropriate, in social work professional terms) once someone needs more than four visits a day, and their carer needs £x of carers’ services to even keep it to that level.

This is likely, because it is already a very common practice. But it would not be able to happen, if the guidance said that the personal budget can only be identified after the support plan has been negotiated. But it doesn’t. The ‘ball-park’ indicative approach, pre-planning, has been carried over, although it is only to be finalised, when the plan is ready for signing off.

What is needed, in my view, is an explicit statement that the budget must be sufficient in relation to the cost to the authority of meeting the needs in the setting that is written up in the care plan. But that would involve the authors in dealing with the question whether the cheaper of two alternative adequate responses to need is the one that can be written up in the plan, even if ‘choice’ and ‘control’ mean that the service user is actually going to carry on living in their own home.

That involves issues of capacity assessment, the question of wants versus needs, and an acknowledgement that however person-centred the rhetoric is, the council is still the gatekeeper of public money for services based on a statutory test, and the decision-maker about what would constitute an appropriate means to meet needs. So I doubt that we can expect that sort of help in the finalised guidance. But it leaves the question up in the air for training sessions.

The indicative amount approach has been carried over, too, despite the stance that assessment and eligibility are to be carer blind. So, the amount one needs to be told about after the eligibility decision will logically include an amount that covers everything that the carer is already doing.

This is madness, in terms of managing people’s expectations. There is no reference in the Act, after all, to the stage between eligibility and care planning, where the amount generated by the global needs identification could be discounted, such that the carer’s input represents a percentage reduction, or even an increase on the basis that the carer’s own needs, if the overall spend would have to be greater to keep them caring.

Nothing is said about this risk.

Duties versus discretions

The word ‘duty’ is mentioned only three times in the guidance about assessment, but the words must and should are all highlighted when mentioned in respect of council actions. There is, however, an interesting and non-statutory reference in the guidance to the need to give reasons for not agreeing a support plan, and that could be a nod to the KM and Savva cases which have already established this right, under the current social care and public law framework.

There is no such duty in the Care Act itself. So the age-old question about which bits of guidance must be followed, and which can be ignored, will return to haunt us, unless this is clarified.

The guidance doesn’t say whether these recommended reasons have to be written down; it doesn’t say whether the reasons have to be those of the panel or other decision-maker who finally said ‘no’, or if they can just be transmitted via the social worker or care manager; and it doesn’t say whether the reasons need only to be given to people who ask for them. These are all questions mooted and answered in the Savva case.

Process rights

The guidance suggests referring people to the complaints process if they are not satisfied with the decision ‘and the council thinks it has taken all reasonable steps to address the situation’ (ie internal review, by a senior manager, a panel, or the legal department, as happens now).

I think that that is a very clever formulation of the fact that the complaints process is not feasibly apt to deal with disputes that turn on the legality of the decision that has been taken, including the size of the budget, but that a well–informed authority would be mad not to check and re-check that it hasn’t done something judicially reviewable en route to saying “we can (or will) go no further”.

For me, this is just open enough about the legal impossibility of saying ‘our job is done, so go and complain’, before the council has conscientiously reconsidered whether it has actually behaved compliantly with all the public law legal standards required of it. But for the uninitiated, and lay-people reading this draft guidance, that point is very well obscured.

More from Community Care

Comments are closed.