By Belinda Schwehr
These questions have been raised with Belinda through her legal training sessions and webinars.
The information and advice duty
Does information and advice about the local system have to be provided by the council to discharge the duty under section 4 of the Care Act?
No, it doesn’t require direct provision or even arrangements for provision of advice and information. It simply requires councils to establish and maintain a service. That means that they can delegate the entire responsibility if they want to, but also that they can buy help in, deliver it through in-house staff, mix and match or simply co-ordinate private and third sector providers’ offerings, as long as they have some means to ensure that the overall quality remained up-to-date and accurate. This vision conjures up councils working in happy partnership with organisations which may well be on their knees, however, because of funding cuts.
Can it be done online?
Yes, but not ‘disproportionately’ and certainly not exclusively. The statutory guidance says that that would not suffice.
Is this duty about anything more than signposting?
Yes. Providing only information about what is available would be signposting, but ‘advice’ goes deeper than that. It should be covering, for instance, the vexed question of where one agency’s responsibilities start (eg social care), and where another’s (eg health or housing), takes over.
Which bits of the system for social care should trigger referral for independent advice?
The statutory guidance suggests referral to independents where there may be complaints or conflict of interests, particularly about how people should make decisions about funding care – so for help with understanding top-ups, deferred payments, concerns about legal rights or the pros and cons of financing one’s privately arranged care through different sorts of financial vehicle, etc.
The guidance stresses that there is no duty on a council to pay for a person to receive that kind of advice – just to flag up the possibility, and to ensure that a person knows the ways that exist to inform one’s choice of an adviser.
How far does the information service have to extend? What are the outside edges of the social care system, about which there must be information and advice available?
Social care is not there for every need: it is a residual service, statutorily prohibited where there is some other agency with a legal duty – it’s a safety net, both traditionally and legally, trumped by other agencies’ obligations. And the benefits system, for instance, is clearly relevant to social care but definitely not part of the system.
But that doesn’t mean there are no areas of overlap: there are plenty of grey areas between health and social care for instance. NHS functions only trump social care functions where the NHS is required to do something, either by law or because the minister has told the NHS it must (as with ‘primary health need’ triggering CHC status). That makes the edges of the surrounding services extremely ambiguous. So, if in doubt, the advice and information service should stop at pure social care, but be able to deal with people’s foreseeable questions about related things. It should not baldly refer other people elsewhere: it is better to start a file on the client and call it pending – if a housing officer needs to consider a formal homelessness application, for example, because these duties trump adult social care powers. Expectations or provision under formal Housing Act duties can and should be referred to in a person’s Care Act care plan even though the housing service is legally responsible.
Front door services
Should the staff at the front end of the customer journey be qualified?
Within first contact with adult social care functions, it is not necessary for all staff to be qualified social workers – but it is essential that some are, at least, because of the sensitivity and range of the decisions required there in order that the rest of the process proceed smoothly.
These include decisions about: rights to advocacy; who should be offered supported self-assessment if they want it (but not if there are doubts about capacity); the mode, depth, skill factor and timing of assessment and the appropriate team to carry out the assessment; the switching on of targeted preventative services that actually need a referral rather than those that are just accessed after signposting; referral to the equipment or counselling service for activities to prevent or reduce needs; some very basic actual assessment and eligibility for the simplest cases, and the proper handling of urgent needs cases.
Does the first contact function represent a legally risky part of the service for councils?
Only if the staff have no professional supervision and do daft things like signpost to services with no vacancies, signpost to unaffordable services, especially where the grant to that provider was cut, or signpost to obviously inappropriate services – inappropriate either because the person’s needs are not what the particular service is there for, or the service is not defensibly able to be seen as suitable to the particular person who needs to access it.
Can people be charged for prevention services?
The Care and Support (Preventing Needs for Care and Support) Regulations 2014 continue to allow local authorities to make a charge for the provision of certain preventative services, facilities or resources.
Some other specified services must be provided free of charge.
The guidance says that when charging directly for any type of preventative support, local authorities should take reasonable steps to ensure that any charge is affordable for the person concerned and that where a local authority chooses to charge for a particular service, it should consider how to balance the affordability and viability of the activity with the likely impact that charging may have on uptake. It also says that charging for prevention services does not need to follow the method of the financial assessment used for mainstream charging purposes; it could be flat rated; it could be regardless of means; it could be done on a banded basis or by reference to whether one was on particular benefits.
Section 2 of the Care Act provides a power to charge for services which have been secured by ‘taking other steps’, not just commissioning. I think that this means that even where a provider has merely been grant funded, the council could charge for access to that service. The charge then would be a local authority charge. It could still be collected by the provider, of course, if the provider is willing to do this through the conditions of grant.
What if people say no to prevention? Can they be refused assessment?
No. The statutory guidance says that people must still be offered assessment even if they won’t engage with prevention. But I think that depending on whether the reason the client expressed for not engaging was a respectable one (as opposed to a racist, snobbish or a knee-jerk one) then the failure to help oneself might be regarded as relevant to the essential eligibility decision. This is because it could be said by an assessor to go the apparent significance of the impact on the person of the inability to achieve the eligibility domain in question. A coherent reason for not engaging, however, should be properly considered by the staff and recorded, because it could well save egg on face later as having flagged up an inappropriate signposting to something unsuitable.
CHC and self-funders
Are councils legally obliged to ‘checklist’ self-funders with eligible Care Act needs, for the purposes of triggering a continuing healthcare decision support tool exercise by the clinical commissioning group (CCG)? Could a council be liable to pay back a self funder’s charges paid to a care home if it failed to do so?
Councils may do so and they should be on the alert to checklist people with likely ‘severe’ or ‘priority’ needs under the CHC criteria. It would be wrong for councils to treat self-funders any differently from existing publicly funded clients, in this regard, but there is no ‘must’ here: judgments must be exercised carefully, because a person is not entitled to CHC just because they had ‘critical’ or ‘severe’ needs under Fair Access to Care Services and nor because the council thinks it should not have to be involved because the package is expensive!
There is case law (Jones v Neath Port Talbot) that holds that a person needs to challenge a CCG’s CHC decision first, before assuming a council should be refunding social care charges. Where a council officer had lied about having put forward a person for a CCG panel decision, however, the ombudsman did recommend compensation to be paid jointly with the health service, which had also overlooked the client’s need to be screened in for a DST (Herts, 2003).
The OT role
Where is the best place for occupational therapists in the customer journey?
Councils who are thinking strategically will be deploying OTs at various stages as needed: at first contact they can identify potential for reablement or rehabilitation; they are invaluable at hospital discharge for assessment of risks related to going home and the use of assistive technology.
Their involvement in rehabilitative programmes for prioritising the right people and knowing when to stop trying, is crucial, as it is with managing complex care for people who have catastrophic injury/illness/disability, to reduce the impact of disability on the individual and their carers.
They also need to be involved in reviews or safeguarding cases, working with the person, programme provision for specialist needs, contract compliance and monitoring etc.
They can be case holders or expert assessors or advisers to the housing authority, and to all sorts of housing and health professionals, such as those running the Better Care Fund, into which the Disabled Facilities Grant money will have been transferred. And of course being a part of the council’s Prison Team, since their expertise can now claimed for free by the Prison Service!
Are OT functions inherently legally risky?
They are if OTs continue to think it’s ok to be told by management to say any of the following:
- If equipment is over £1000, we don’t have to fund.
- If it’s under £20 you have to buy it yourself.
- It’s not in the catalogue so we can’t provide it.
- That’s health equipment…. that’s social care equipment.
- See if they will buy it first.
- Ordering some non-stock items can take several weeks to source, have authorised and delivered, by which time we are behind our caseload turnover targets due to holding onto cases.
Is the notion of independent living in the UN Convention on the Rights of Persons with Disabilities of relevance for decision-making under the Care Act?
In principle yes, because we signed up to it. But the Care Act statutory guidance says this:
“Although not mentioned specifically in the Act or Regulations, the concept of “independent living” is a core part of the wellbeing principle….The language used in the Act is intended to be clearer, and focus on the outcomes that truly matter to people, rather than using the relatively abstract term ‘independent living,.”
The judge in the recent Luke Davey case agreed that the domestic legal framework presents as being more detailed than the Convention in relation to domains of daily life and wellbeing and held that there was no specific ambiguity in the Care Act in respect of which Article 19 of the UN convention might serve as an interpretive tool.
Belinda Schwehr, Care and Health Law
Tel: 01252 725890