By Colin Slasberg
The High Court’s use of the Care Act to quash Merton’s decision to transfer a service user (JF) to a cheaper service has raised hopes the act might yet deliver on the promise to lead social care away from being rooted in a resource led view of need to one authentically person centred.
The judgment may indeed prove to be such a watershed moment. However, caution must be exercised – the greater chance is that it will not.
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At the heart of the judgment was the court could find no evidence of who actually made the decision to move JF’s placement, when, within what policy or upon what evidence of need.
The social worker told the court that the ‘funding panel’ makes such decisions, always ensuring that the choice will meet the person’s needs.
However, glib assurances were not enough for this judge. She searched for evidence that the decision maker (whoever that was) satisfied him or herself that the cheaper service would meet JF’s needs. The search was in vain. All Merton could provide was a statement from the provider of the cheaper placement that they could meet JF’s needs. Merton trusted this implicitly, as if commercial interests played no part.
Meanwhile JF’s view (advocated by his parents) was that the current, more expensive placement was necessary. The higher price paid for a range of on-site therapeutic services that were key to his well-being. These would not be available in the cheaper placement.
Such thinking actually satisfies the Care Act requirement to demonstrably link need, well-being and resource. Merton put this plainly superior view in the box marked ‘service user’s preference’ – something to record, but not allow to influence their thinking.
So Merton have been well and truly called out by this judgment. But celebration would be premature. The judge made very clear it is not for courts to change decisions made by a ‘public body to whom parliament has entrusted the decision making’.
Courts can, however, require those bodies to follow any processes laid down by Parliament to making such decision. This was where Merton failed. The Care Act requires that decisions about resources are based on an assessment of needs to promote well-being. They have been told to revisit the assessment and do it lawfully. How will they set about this, and what lessons will all other councils learn from this judgment?
Merton have three options. The first is to learn from a recent case involving Oxfordshire council.
Courts set a very low bar for credibility when councils claim that their decisions are based on needs not resources. If deciding ‘need’ based on resources was a crime, any jury would almost certainly have found Oxfordshire guilty beyond any reasonable doubt in the case of Luke Davey.
The thinnest of rationalisations will suffice. However, one crucial ‘rule’ of this game is the social worker must fully claim the thinking to be theirs and theirs alone. This appears to satisfy courts the assessment is about need, not resources. The real decision makers must remain anonymous and hidden.
The second option is to accept that JF’s own view is the more Care Act compliant view, use it as the basis for the council’s view and then fund the more expensive placement. The problem is that if Merton have decided the higher cost is unaffordable, where will the money come from? Within a fixed budget, this means the higher cost will be borne by lower allocations of resource to other service users. Is that fair?
The third option is again to accept JF’s view, but, if the more expensive placement really is unaffordable, to fund only the less expensive placement.
This will be on the basis the cheaper service will be able to meet those parts of his assessed needs the council places itself under a duty to meet. It can do this if it restricts such needs to a safety net only.
Those parts of his assessed needs that require the expensive placement will not be met. JF will experience raised levels of distress almost certainly resulting in more challenging behaviours. It would be very much second best.
JF and his parents would of course prefer the second option. It might well be Merton’s most pragmatic option having made such a hash of the case to date. It would follow in the rather dishonourable tradition familiar to practitioners of those with the strength to contest having the greatest reward.
But the option that would really signal this case as a watershed moment would be the third. The council would not be in a dispiriting and costly dispute with JF and his parents about what JF’s needs are. This would extend to the myriad of others who do not have the tenacity to pursue a judicial process and about whom we know nothing.
The council’s officers would cease to contort the assessment process to give their political leaders the comfort that all needs are being met. The reason for JF’s suffering would be perfectly clear to all – lack of resources. A better option was available, but unaffordable.
The democratic process that determines funding levels would be changed by this new information. Not just JF, but all service users would stand a chance of getting the resources they require as the democratic process matures. The system would know for the first time the true level of funding required for social care
This excellent judgment made clear it is not for the judiciary to right the wrongs of a system that is politically driven. That remains a matter properly for political leaders. This will require sector leaders to start telling them like it is.
Colin Slasberg is an independent social care consultant