‘Why the Care Act 2014’s incoherent guidance on direct payments must be revised’

There are several aspects of the Care Act 2014 guidance that could be seen as regressive in relation to choice, if the message were supported by the Act itself or the regulations. But the guidance conveys a message that is contradicted by the Act itself and the guidance cannot stand in its present form. I am referring to the part of the guidance dealing with situations where the client’s choice would cost the council substantially more than what the council would regard as appropriate. In that situation, currently, the client would get a direct payment, but only of the amount regarded as necessary.

Taking the guidance at face value, however, the actual offer of a direct payment seems to have

become discretionary again, based on the perceived financial viability from the council’s perspective. Now, it is virtually an entitlement for all those for whom a direct payment could feasibly be expected to ‘work’, to meet assessed needs. Yet section 31(2) of the Act makes it clear that financial non-viability is not a reason for not giving someone a direct payment if they otherwise qualify!

A case study ripe for misunderstanding

The guidance provides an example (p157) of Mr A, who is given a direct payment worth £17 an hour, in order that he may commission his own service, more flexibly, from the same agency which sells care to the council for £12.50 an hour through a block contract. This example is mind-boggling in its potential for misunderstanding of the message, and in the manner of its exploration, in the guidance.

At first glance it is highly cheering for the service-using public to see this example spelt out, although it will be shocking to budget holders in the public sector. But is it even consistent with the Act? The definition of a personal budget in the Act is the cost to the council of meeting the needs of the client, not the cost to the individual. Of course, implicit public law concepts of rationality, statutory purpose, and reasonableness would enable a person who was well-informed, to ‘push’ the council to distinguish between the minimum cost of meeting their eligible needs, and the cost of meeting their reasonable preferences.

But lest this definition deter people (however well-informed!) from take-up of a direct payment, the guidance very properly stipulates that sufficiency is a concept that must be based on the reasonable preferences of the service user. In this example, it could be the desire to go to bed at a normal time, if that’s what the example implies by saying the man wants more flexibility. That’s why this man gets his substantial increase on what the council was previously paying; the outcomes are substantially better.

But it then goes on to say that a council does not have to pay via a direct payment for a person’s preference for a service that costs ‘substantially more’ than the council could pay to meet needs and the same outcomes. This is in a context suggesting that refusal of a direct payment is the legitimate thing to do in that case, not just pay the cost to the council of meeting needs over to the client!

I am afraid that all this example reveals is the problems created by the treatment of the wholly necessary and uncontroversial margin of appreciation allowed to any council discharging welfare functions out of public money – or perhaps a particular weakness in the hypothetical council’s commissioning skills.

It is all very well to distinguish the situation of a service user’s ‘reasonable preference’ from wanting something costing a lot more than the council needs to pay. But the problem in this particular example is that – assuming the person’s bedtime is the issue in this case, staying up until a normal time has not been seen as a need that must be commissioned for, by the council’s care manager. Identifying this as a need and commissioning for it would be the principled approach, supported by the law on appropriateness, even if it means that the council does have to pay more than it would like to pay –  because it is a freedom that ‘normal’ people enjoy in a civilised society.

If the council were already commissioning the meeting of needs in a way that was considered appropriate, as opposed to ‘just about tolerable if one is dependent on the state’, the cost to the council would already cover the reasonable preferences of the service user, and the distinction would disappear. Along with it, would go the need for self-funders to subsidise the cost of publicly-funded care through payment of a premium, to a market of providers who quite legitimately the decision-makers as to what they sell their services to anyone for, so long as they are not simply ‘racing to the bottom’, through ignorance of the public law rights of the clients. The ‘outcome’ of being able to participate in family life until, say, 10pm, before one’s carer arrives to assist with bedtime, would be part of the care plan, and the recording of the person’s needs, if that outcome had been agreed.

So the example conveys the message – perhaps inadvertently – that there is nothing wrong in a care plan that ignores people’s every-day expectations. No council is going to pay for a person to escort a service user after midnight, down to the local shops, just because they fancy going, but going to bed at a normal time is no different to wanting personal care from someone who respects cultural or dietary rules based on religious belief.

The sector will, I hope, want to know why one such example of choice is worth commissioning for, and the other is not, though still necessary to fund by way of a direct payment? Legal challenge will therefore be required, if this incoherent message is not clarified.

The guidance stresses that there must be no curtailment of choice on how to use the direct payment so long as it is reasonable but then says (p142): “The local authority has to satisfy itself that the decision is an appropriate and legal way to meet needs, and should take steps to avoid the decision being the views of the professional as opposed to those  of  the person. Above all, the local authority should refrain from any action that could be seen to restrict choice and impede flexibility.” It then says that: “Lists of allowable purchases should be avoided as the range of possibilities should be very wide and will be beyond what the local authority is able to list at any point in time.”

Given that one can still face recovery proceedings for misuse of a direct payment and that one is to be subject to more regular, albeit lighter-touch, financial monitoring, than previously, I predict that this will not be an easy message to train the workforce in, without some understanding of legal principle!

In my view, what people need to understand is why the guidance says what it says, and this is usually on account of legal principle or case law.

What the guidance does and should say

Take this for example (page 142): “While many authorities may choose to operate lists of quality accredited providers to help people choose…the use of such lists should not be mandated as the only choice offer to people. Limited lists of ‘prescribed providers’ that are only offered to the person on a ‘take it or leave it’ basis do not fit with the government’s vision of personalised  care and must be avoided.”

In fact it has already been settled in case law (in H and L v A City Council, 2011) that the freedom of councils to impose conditions on the award of a direct payment is limited to conditions that do not negate choice. So it would be much simpler to say that the above approach to preferred provider lists would be unlawful.

Here is another example from the guidance (p158): “Local authorities should also take care not to inadvertently limit options and choices. For example ‘pre-paid cards’ can be a good option for some people using direct payments, but must not be used to constrain choice or be only available for use with a restricted list of providers. For example, many local authorities operate blanket restrictions on cash withdrawals from pre-paid cards which could limit choice and control. The card must not be linked solely to an online market-place that only contains selected providers in which to choose from. Local authorities should therefore give consideration to how they develop card systems that encourage flexibility and innovation.”

It would be much simpler to say this: “A direct payment is a cash payment, and a pre-paid card for conditional use on an account that belongs, in fact, to the council is not necessarily sufficient to constitute a direct payment. If the arrangement resembles the granting of a limited power of control over the council’s money, as opposed to the money as a substitute for the arrangement of a statutory service, the council could risk remaining responsible, as the ultimate commissioner, for harm arising from the use to which the client puts that money. Furthermore it is not possible to control the choice of provider made by a client undertaking their own commissioning, because the council can only lawfully prohibit use of the money in a limited way with regard to a named provider, and enquire as to what the recipient’s intention is, in that regard, under the regulations.’

The guidance would be a whole lot easier to get a grip on, challenge, criticise and train to, if it cross-referred its statements to relevant regulations or sections, where they in fact exist. The draft regulations say this quite clearly.

 

‘Choice’ must therefore be understood as an unruly beast to tame, in anyone’s view! And it will be interesting to see what the Skills for Care materials being prepared for the sector make of the sort of complexity covered in this article.