The funding panel policies testing the limits of the Care Act

A Community Care analysis of council policies and procedures for funding panels operating in adult social care has revealed that some are testing the limits of the Care Act 2014.

A freedom of information (FOI) request was sent to English councils asking for the terms of reference documents for any panels in their adults’ services department, and any policy or practice guidance supplied to social workers about how to submit or present cases to these meetings.

A survey also ran on Community Care over the summer asking adults’ social workers to tell us about the most recent case they took to the panel in their local authority.

This research follows our earlier investigation, which suggested funding panels were being used beyond their intended purpose, as set out in the Care Act statutory guidance.

We found then that social workers were concerned panels were being used to prioritise cost savings over peoples’ needs and, in some cases, override their professional recommendations. An FOI request also found more than 20 English councils were sending all requests for new or changes to existing care packages to a panel, which legal experts have since warned is potentially unlawful.

Our latest analysis shows that the policies referenced in some funding panels’ terms of reference documents could leave councils open to legal challenge. Three social workers also told us in detail about their experience of the last case they took to panel.

‘Cost-effectiveness’

Our latest FOI request received responses from 107 of England’s 152 local authorities. Of this, 60 councils said they had a terms of reference in place for the panels they operate, and 55 provided us with a copy of the relevant documents.

We analysed 11 councils’ terms of reference documents in detail. Seven of these covered all adult social care, one was for older people and those with a physical disability, and the rest covered learning disability and mental health.

In two documents we found confirmation of panels being used to agree all requests for funding.

One stated: “This approach applies to all individual spend across the directorate and as such will bring about consistency of decision-making, financial recording, and budget management”, adding “funding will not be agreed outside of this”.

There was a common theme of ‘cost’ running throughout the documents we received. Some communicated the need for social workers to ensure all options are considered before recommending high-cost placements or residential care, while others explicitly stated the panel was in place to scrutinise the cost-effectiveness of proposed care plans.

One council’s terms of reference document for their learning disability commissioning panel, stated that “the purpose of panel is to scrutinise and approve or reject requests for new packages of support, or changes to current support packages, in the context of the use of finite resources, equity, transparent costs, and risk management.”

‘Prioritisation approach’

After seven successive years of austerity, it’s no secret that adult social care budgets are under significant pressure. The latest budget survey from the Association of Directors of Adults’ Social Services (ADASS) in June 2018 reported only a third (35%) of directors were ‘fully confident’ that budgets would be sufficient to meet some of their statutory duties, including those on prevention, wellbeing and having sufficient services to meet eligible needs, in 2018-19.

The Care Act guidance states that councils may take their own finances and budgetary position “into reasonable consideration” when determining how to meet needs, which includes ensuring there is enough funding to meet the needs of the entire local population.

The terms of reference for Derby council’s resource panel revealed a prioritisation system is in place “to target available resources at those in the greatest need”. The system has three categories, with the lowest priority being people in the community who require a “personal budget to develop their independence, confidence and community inclusion”.

The document states that the available budget will be “allocated according to these priorities” and where the budget is not available, “some requests may be held in date order and reviewed on a regular basis to consider the risks” in delaying the start of support.

It is not unlawful to use a prioritisation approach, however the wording of the policy suggests that in cases where the budget is not available, eligible needs are potentially being left unmet.

Under the Care Act, local authorities have a duty to meet eligible needs, except where there is a carer willing and able to meet any such needs, requirements around ordinary residence or charging and financial resources are not met, they are barred from doing so on immigration grounds (section 21), or because the service that would be provided must be delivered by the NHS (section 22) or a local authority in its housing capacity (section 23) instead.

Yogi Amin, a public law solicitor at Irwin Mitchell and expert on health and social care law, said of Derby’s prioritisation policy: “If this system leads to people in the lower priority category not getting an increase in their package or their needs not being met, it will be unlawful.”

Derby council was contacted for comment but declined to add anything further.

‘Blanket policies’

The Care Act guidance also says councils should not set arbitrary upper limits on the costs they are willing to pay to meet needs through certain routes. This would “not deliver an approach that is person-centred or compatible with public law principles”, it states.

In the ‘guiding principles’ document for Southwark council’s older people and physical disability panel, we identified a number of statements that suggested the council was applying blanket restrictions for different types of care. These included:

• No more than 14 days respite per year.
• No more than one day per week for day centre or social activities to meet social isolation needs – the council does “not fund hobbies or pleasure activities”.
• No domiciliary care package should cost more than residential care.

The document also says that the panel will not agree any paid services if the person’s needs are already being met, or can be met, through universal services, family or friends.

Amin said Southwark’s policy was “poorly worded and “most likely unlawful”, adding that it “lacks discretion in assessing needs and care planning in line with the Care Act”.

Jasmine Ali, cabinet member for children, schools and adult care at Southwark council, said the document is “used to support sound decision making” by the panel.

She said: “The guidance document is simply that, a set of principles to ensure fair decision making for people with eligible care social care needs.

“As a council we of course understand that it is incredibly important to consider each individual case when deciding the level of support required to meet individual need.”

‘Strengths-based approach’

Some panel documents emphasised the need for social workers to carry out strengths-based assessments and to ensure options for alternative support through family, friends or the voluntary sector had been fully explored before recommending council-funded care.

For example, one council’s guidance for its social care panel, known as the ‘consistent practice meeting’, stated: “We need to demonstrate that family, friends and community resources are being fully utilised to ensure needs are met and skills gain maximised.”

Another council’s draft terms of reference for its ‘county-wide’ social care panel, said: “The Care Act requires that eligible needs are met – either using a person’s own social network, services available in their community, or as a last resort, with a formal care service.”

A government factsheet states that under the Care Act, the concept of ‘meeting needs’ allows for different approaches, so that a person can get the right level and type of care and support when they need it. It adds: “A person will still be able to receive the same types of care and support as before. If their needs can be best met in a care home, that is what should be arranged.”

The ADASS budget survey identified that in 2018-19, a third of planned savings are “expected to come from developing asset-based and self-help approaches to manage demand for care”. Three quarters of directors also reported that reducing the number of people receiving care and support was “important for them to achieve necessary savings”.

The survey warned this approach risked “falling the wrong side of the line”, adding it would be a “positive aspiration” if the number of care users reduced through councils’ development of asset-based approaches, but “if it is about gatekeeping resources then it risks people in need being left without services, which would be unlawful”.

‘Clumsy wording’

Slough council’s document also mentioned strengths-based assessment and the need to maximise people’s existing networks. The council operates ‘scheme of delegation’ meetings for approving funding and the terms of reference listed eight key principles.

One principle stated: “The support plan should be about how these needs are addressed by carers, family, friends, voluntary sectors etc. and only when these are exhausted, and the needs not being met are critical and need to be met should we look to fund.”

The use of the term “critical” in this context is not compliant with the Care Act – it was previously used in the Fair Access to Care guidance on eligibility for social care. The Care Act sets out a national eligibility criteria based on identifying how a person’s needs affect their ability to achieve relevant desired outcomes and whether this has a significant impact on their wellbeing.

Simon Broad, service lead for adult social care at Slough council, agreed that this wording was “clumsy” and said the council would be reviewing the document “immediately”.

He said: “We did not intend for the word ‘critical’ to be associated with any type of eligibility criteria and we realise to an external audience this could be confusing.”

“Like many councils we are under significant financial pressure and adopting a strengths-based approach to assessment and care planning is a practical and sensible way to ensure that people’s needs are met from a variety of sources.

“This is an approach that is welcomed by people with needs, their families, and social care alike as it promotes independence for the individual and maintains links with communities.”

Judicial review

Another of the  documents we looked at was the terms of reference for Merton council’s adult social care outcomes forum. The council found itself at the centre of a judicial review in 2016, after proposing that a vulnerable man should move to a lower-cost placement.

The claimant’s legal representatives argued at the time that the council had failed to undertake a lawful assessment of the man’s needs and had unlawfully decided to change his accommodation. The council denied that the Care Act assessment was in any way unlawful and argued that the final decision to move the man had not yet been made, submitting orally to the court that “such decisions are made at a funding panel level”.

The judge quashed the council’s decision to move the man and commented that she had not been provided with any evidence about how Merton’s funding panel operated or any policy and procedure, which would enable her to “distinguish between the significance of decisions by social workers and decisions at a corporate level about placements”.

The council now has a comprehensive 10-page document detailing the purpose of its panel, how decisions will be recorded and communicated, and the essential information required from social workers who present cases, which included a case example.

Pete Feldon, a social worker trainer on the Care Act commented: “Merton council has made sure that they cannot be challenged for not being able to demonstrate how a personal budget was determined. But there would appear to be many local authorities that may not be able to do this, as they do not have terms of reference and may not have local procedures that set out how such decisions are made.”

‘Reporting decisions’

Our FOI request also asked councils whether they provide any guidance to social workers on reporting panel decisions to service users and their families, specifically where the outcome has resulted in a change to the indicative budget.

An indicative budget should act as a guide as to what level of funding will be available to meet particular support needs and outcomes, in order to provide a basis for care planning.

Our survey of social workers late last year found almost all (97%) of respondents reporting it was their responsibility to inform the service user if their support plan was refused by the panel. When asked to tell us their experience of doing so, the common theme was that practitioners are left to be ‘the bearer of bad news’ with little support.

Just 14 of the councils that responded to this latest FOI request said they provided any guidance, with five saying this was verbal only and given in training or supervision.

Where councils provided us with further details of this guidance, it mostly made some reference to the support planning process, how changes between the indicative and final budgets would be communicated to service users, and the role of the social worker.

One council said written guidance was currently being developed, but “advice is offered [to social workers] by panel about best value for both user and council”.

Another told us social workers receive guidance on how to inform a person that their support needs will be met and to agree how to do this, which is sometimes done in discussion with managers. They added that where there is any difference between the indicative and final budget then “staff will explain this” to the service user.

A social worker who responded to our recent survey told us he was given no support from his employer to communicate the panel’s decision to the service user and their family.

He said: “The case was discussed in supervision with my manager before it went to panel, but it doesn’t work both ways – the outcome is for me to deal with.”

‘Worrying findings’

Amin said: “The research reveals a worrying picture. It is extremely important that the wording of any guidance or policy is clear and  linked to the duties under the Care Act 2014. Clumsy wording will result in potentially unlawful individual case decisions and eligible needs not being properly assessed and left unmet, with serious consequences for the service user and their family or carers.”

Feldon told us: “It is worrying that nearly half of those local authorities that replied do not have any terms of reference and in these circumstances social workers will be guided by local custom and practice that may not be written down.

“Nevertheless, social workers who recognise the types of poor practice outlined in these findings as applying in their local authority (whether or not they are set out in terms of reference or local policies and procedures), will hopefully be encouraged to challenge them, in the knowledge that other local authorities do not adopt these practices.”