Personalisation: the law has to play catch up

A lack of specific legislation to support personalisation means councils are having to be creative to implement the policy, writes our legal expert Ed Mitchell

There is an old joke goes something like this. A man in a strange town is lost. He approaches a passer-by and asks for directions to the station but receives the unhelpful reply: “Well, I wouldn’t start from here.” So it is with the law and personalisation. The governing legislation reflects an earlier era that was often more paternalistic. This means that personalisation strains at the boundaries of the legislation governing adult care services.

Probably the key vehicle for delivering personalisation of adult social services is the direct payment, a cash sum given to a person for them to spend on buying the care services they need. Direct payments are restricted by section 51 of the Health and Social Care Act 2001, which states that payments may only be made to a client who “consents” to them. If they do not have the formal mental capacity to give a valid consent, direct payments are not available.

Extending valid consent

However, this restriction should soon be removed. The Health and Social Care Act 2008 has amended the 2001 act and regulations could be made authorising direct payments to be made to third parties. The third party would then be required to use them to buy the services needed by the client, having first consulted the client before deciding which service provider to commission. Accordingly, the views of a person who lacked the formal mental capacity to handle direct payments could still strongly influence the use made of the direct payment.

The Department of Health has consulted on draft regulations to allow direct payment to be paid to third parties, but no such regulations have yet been made and so the “capacity bar” remains in place.

Individual budgets

The DH’s personalisation guidance (LAC (DH) 2008(1)) suggests that a client with an earmarked individual budget (who decides not to take all or part of it as a direct payment) can decide how that part of it is spent. Currently, this is not fully achievable in the case of care services because community care legislation charges a local authority (and no one else) with deciding which services to provide to meet a person’s needs.

The challenge is to find an approach that pays significant regard to a client’s choices while respecting the fact that the law requires the authority to make the formal decision. The process of agreeing a client’s own plan for services can be constructed to achieve this. If a social worker is content with their client’s proposals for services, the social worker (or whoever has the relevant decision-making responsibility at a particular council) can then make the formal service provision decision that implements those proposals.


Under the NHS and Community Care Act 1990, legally effective self-assessment of care needs is not possible. The act requires the local authority itself (through its social workers) to assess a person’s needs. This means a client’s assessment of need cannot bind a local authority. But, as with individual budgets, if a social worker is content with a client’s self-assessment, they can adopt it as the authority’s formal assessment of need.

It is important, however, that local authorities and their social workers are not lulled into thinking that they can drop out of the assessment process. The courts are likely to seize upon anything that looks like an authority abdicating its responsibility towards a vulnerable adult. In fact, the High Court has already criticised a local authority for relying on a self-assessment that was not a comprehensive analysis of a disabled person’s needs (R(B) v Cornwall CC (2009)). The High Court said: “The authority cannot avoid its obligation to assess needs etc by failing to make an appropriate assessment themselves, in favour of simply requiring the service user himself to provide evidence of his needs”.

Services and grants

The other strand of personalisation involves services and grants for disabled adults. These range from the housing-related support services provided under the Supporting People scheme to Independent Living Fund payments.

Attempts have been made to bundle up these other services and grants to create a single cash pot. This was always going to become bedevilled by legal difficulties because each service and grant is controlled by its own statutory rules or, in the case of the Independent Living Fund, the terms of a trust deed. These difficulties are in effect confirmed by the need to include the “right to control” provisions in part two of the Welfare Reform Bill. If enacted, the bill would allow regulations to be made for the purpose of giving more control to disabled people over the services which they receive (other than community care services). Various regulations would be possible: for example, regulations could allow direct payments to be made to disabled persons or third parties acting for the benefit of a disabled person lacking capacity instead of the direct provision of services or payment of grant.

Some local authorities have tried to overcome the difficulties described above by the use of their “well-being” powers. These are contained in section two of the Local Government Act 2000 and allow a local authority to do anything, including pay sums of money which, for example, they consider likely to promote or improve the social well-being of their area.

Short-term fix

The use of well-being powers are only a short-term fix while the legislative framework catches up with the drive for personalisation. The main downside is that these powers are not attended by the statutory safeguards that accompany the provision of services under legislation designed specifically for the benefit of disabled adults. For example, no one has the right to an assessment of their needs for well-being services nor is it clear whether complaints about the provision of well-being services can be put through the statutory social services complaints procedure.

Service Cuts

Service cuts are so unpalatable that some local authorities find it difficult to admit that they are happening. It is therefore important that local authorities do not seize on personalisation as a means of masking service reductions.

We see some evidence of this in a recent decision of the High Court. JL v Islington LBC (2009) concerned a teenage girl with severe disabilities. The introduction of a new choice-based system for care services coincided with a reduction in respite care. The fact that the girl’s mother had a choice as to how to use the remaining care hours allotted to her clearly did not compensate for the reduction in the care available, given that there was no evidence of an improvement in the girl’s condition. The council’s decision was quashed.

Personalisation is a radical re-engineering of the social care system. In a society governed by the rule of law, however, good ideas cannot displace the law. Until the legislative framework is altered to better fit the ideals of personalisation, local authorities need to find constructive ways of working to balance their desire to deliver greater personalisation with the overriding need to act in accordance with the law. It should be remembered that trying to run before you can walk often leads to a fall.

Essential information on personalisation

Ed Mitchell is a solicitor and editor of Social Care Law Today

Published in the 16 July 2009 edition of Community Care under the heading ‘A legal tangle’

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