By Belinda Schwehr, Care and Health Law
Readers will be aware that the Care Bill provides a legal right for the very first time for councils to contract out mainstream social work functions related to assessment, resource allocation and care planning. By contrast, social care service provision functions, have always been able to be secured through contractual arrangements with providers.
This means that anyone could be commissioned to do this sort of work. Instead of having an outside organisation do all of the fact finding, make a recommendation, for instance on eligibility, and then have this returned to a local authority employee for decision, this change means that the outsider could actually apply the threshold, make the decision, and bind the council for whom it was acting.
Practical uses to which this power might be put
If a council decides to take this step, it might do so in bulk, having secured the agreement in advance of a corps of the social work staff to turn themselves into a social enterprise, perhaps; or merely do so in part, as and when needed for workload spikes or specialist assessments.
In particular, it might contract out portability-related assessments, in connection with the new duty to tell people who need services what they might qualify for, if they come to settle in the area of their own volition.
Councils might contract out their input into continuing healthcare reviews too, since a person placed out of area by a clinical commissioning group can very easily have their eligibility for CHC removed following review without the old local authority with ordinary residence being told. The council on the spot at the time will have no interest in defending the removal of CHC eligibility, because the liability will return to the old council to pick up commissioning the service user’s needs.
A practical use to which the power could easily be put, in terms of the policy to prevent and reduce need before it triggers the national minimum threshold, would be for reablement providers to make the eligibility decision at the end of the period of reablement. The provider could then work with the person’s carer or neighbours, whom they would know by then, to determine what informal support should be assumed to be available, and then make the ‘duty to meet need’ decision that the Care Bill envisages.
Another use would be for NHS staff on hospital discharge teams – outside of a proper partnership agreement whereby the functions could always have been cross-delegated – making eligibility and provision decisions regarding social care services for those found to be ineligible for CHC. Maybe that’s not quite such an attractive thought for directors of social care services!
Competencies and accountability
Councils will need to be careful in setting out the specification, and individual workers will need to think hard, if they wish to avoid the sort of criticism that ensued for Cambridgeshire and an independent social worker, in one of the leading cases under the current legal framework, heard by the Supreme Court in 2012.
This involved an appeal by a disabled service user that the £85,000 personal budget he had been allocated was irrational and not supported by adequate reasons. An independent social worker had assessed his needs and costed them at £157,000. The court dismissed the appeal and found in respect of the independent social worker:
Mr C’s .. report, dated 10 December 2009, was a most unhelpful document. It was not an expert’s report: it was a presentation of what the appellant and his mother wanted. Mr C’s costings totalled £157k. Into his figures he brought forward the suggestion that paid care for the appellant was required to be purchased for 14 hours … on each day of the year… Mr C did not suggest that, in his expert view, paid care of that magnitude was necessary, still less did he explain why such should be. He said only that it was “reported” that it was necessary: the “report”, of course, had come from the family and no doubt in particular from the mother…Unfortunately the uncritical endorsement of the wishes of the appellant and of the mother by Mr C in his addendum report led them to believe that he had become entitled to provision of such magnitude.”
It is worth noting that the Cambridgeshire case (KM) is the best possible guide to what the current legal framework requires of social care assessment and planning and funding allocation staff. There will need to be consideration of those steps under the new bill, although the pathway to a duty to meet unmet eligible needs is being changed significantly.
There is as yet no requirement that this function be entrusted only to an independent social work practice, as was defined in the pilot scheme, managed by a qualified social worker. Regulation making power exists in the bill under which a requirement could be added, by government, but we still await the regulations.
There is, however, a very great commissioning burden to ensure that the successful bidder is competent. Authorities can decide what constitutes competence of any assessor or care planner, but if it gets that concept wrong in principle, or if the service provider messes up by misunderstanding the law governing social care assessment, resource allocation and care planning, the council is the liable party, in relation to remedies.
That would include, for now, judicial review, or, potentially, recourse to the independent appeal system that is mooted as an answer to the anticipated demand for review and redress for inappropriate approaches to decision making.
The council might commission this service in and obtain contractual indemnities in the normal way. But for liability claims ultimately brought against it, based on what the provider has done or not done, there will be no escaping local authorities’ non-delegable duties in the Care Bill’s legal framework.
As the Cambridgeshire case shows, outsourcing this function is not the same as commissioning the opinion of an independent social worker, in the context of dispute resolution or professional debate; and nor is it the same as commissioning independent advocacy, or independent mental capacity advocacy.
Potential conflicts of interest
Those who commission the service will need to think about the implications for conflict of interest, which were never properly addressed by proponents of personalisation when it first became fashionable.
If a service provider is to be the assessor, as well as the provider, can that organisation’s employee properly straddle the two horses without ‘bigging up’ the approach to what is needed, even if that is merely done by way of aspirational practice, say, by a charitable entity, and not just motivated by cynical profiteering?
And if a charity ends up doing this kind of input for a council, can it honestly say it is doing it for full cost, in terms of Charity Commission rules that a charity must not subsidise the duties of the State for less than full cost?
Take a support provider who has got really involved in individual service funds and brokering the use to which a direct payment is put, in conjunction with the service user, and then starts to do this kind of assessment work.
The service user might ask, ‘great, in principle, but who are you actually doing this for, now?’. The answer can no longer be, ‘well, you, of course!’. The provider will have at least three hats on: delegate of the council for assessment and review; agent of the client for the management of the direct payment; and provider, acting in its own interest, in relation to a contract with either the client for the services provided under the direct payment, or the council, for any contracted managed support being paid for directly.
Exclusion of safeguarding functions from this power
Safeguarding functions cannot be delegated; and I think that this must mean the council’s duty to make enquiries cannot be delegated, not the actual making of the enquiry once one is triggered, and the decision as to what can or should be done.
That is because a safeguarding enquiry is, in effect, an enquiry made under social care assessment powers; and a safeguarding response that is not merely a referral to another agency for its own actions, is the delivery of a social care service.
It may well be, however, that a council’s statutory safeguarding board might recommend that this form of investigation is not delegated, or that if the fact-finding part of a safeguarding investigation is ‘sent out’ to a commissioned body or individual, it should still come back to the case conference setting for a formal multi-agency decision. Putting the decision into effect will, of course, be the duty of whichever body is the one whose statutory functions are engaged by the decision. We will have to await the guidance on this issue as well.
Care Bill workforce training developments
It turns out that the government will be funding the provision of free training materials for social care staff affected by the Care Bill, and train the trainer sessions in the summer.
The consultation put out on behalf of the government by Skills for Care seeks to identify, through a survey, the range of staff affected, the breadth of material wanted, and the depth and detail to which the Care Bill training needs to go.
However, as for the intermediate and advanced levels of training needed, for staff – or contracted out social work decision makers who can bind the council for who they are functioning under the new power – it seems a reasonable assumption that the sector needs legally literate trainers to manage legal risk and provide a service within a system that is accountable, lawful and fair.
Academics have berated the lack of legal literacy in social work and social care, and it’s always part of the problem in serious case reviews and judicial reviews, and applications to the Court of Protection. But when the adults’ social care sector is being given brand new legislation, hugely complicated by the Dilnot provisions, which were inserted into a bill that was just supposed to consolidate significant legal principles, it is potentially a very serious risk management issue. And since the bill is intended to come into force next April, it is a very urgent one as well.