What the Care Act means for choice of care and accommodation for service users

By Belinda Schwehr, Care and Health Law

Over the last fortnight, I’ve looked at some of the inconsistencies in the eligibility assessment section of the draft guidance on the Care Act 2014, and this week, I am going to focus on what the Act and guidance offer in relation to choice.

Choice has meant a number of different things, over the years, in social care: it was first mentioned with regard to choice of a care home anywhere, subject to caveats, via a council-funded contract, back in directions and guidance issued in 1992.

Then it became integral to the notion of the preferred deployment route for care as between a direct payment and a commissioned package, when direct payments were brought in, in 1996.

Later on, it was hijacked as the essential difference between a personal budget and a direct payment, when in fact the legal basis for a personal budget was either a direct payment or a commissioned package.

And finally, once it was appreciated that there was no difference between a personal budget and a direct payment, choice became the aspiration of commissioning officers in relation to what they could persuade providers to do by way of variation within a council-commissioned package, whilst ideally not paying them a penny more for that flexibility.

No legal right to choice of non-residential services

Throughout this period, it is worth noting:

• There has never been a legal right to choose the non-residential care provider of one’s personal preference, unless one consented to a direct payment and did one’s own contracting; at most, there was a right to be consulted about a change of provider, in the context of longstanding and personally significant services impacting on one’s private life, but no guarantee of even a carer of the preferred gender, as the case of R v Essex CC, ex p Bucke [1997] shows.
• All the case law has ever managed to establish, in relation to choice, was that a person has every right to participate in, influence, and make representations about assessment and care planning decisions, and to refuse actual services, if capacitated; however, the state is the decision maker in assessing what are wants and what are needs, in sifting eligible needs from other needs, and about the appropriate response to eligible needs, even in matters where human rights guarantee respect for one’s home and private life, and subject only to challenge on necessarily strong grounds for judicial review. If anyone doubts this they need only look at Elaine McDonald’s case about the council’s right to stand back and watch the NHS provide incontinence pads for a mobility need for a woman who was not in fact incontinent.

So what does the Care Act offer by reference to ‘choice’? Those who have followed its progress since the Law Commission’s consultation will know that it does not actually change these fundamentals of the existing legal framework. But how the service using public, or the workforce in social work and care, are supposed to understand that, given the rhetoric and the tenor of the draft statutry guidance is another matter.

Who is the decision maker?

As discussed last week, the critical notion of a need’s significant impact on wellbeing determining eligibility does connote choice, in my view: it enables one’s capacitated choice to reject the offer of a service that is meaningless to one’s own system of values about outcomes, even though a social worker thinks that one should jolly well care about it!

But the converse is not the legal truth: there is no right to enforce the delivery of either the nature, or the amount of the service or funding which one would like, or thinks that one deserves. For instance, feelings, beliefs and wishes should be taken account of, but not necessarily allowed to shape the finalised care plan. And ‘supported self-assessment’ is to be offered as a choice, but is defined as: “An assessment carried out jointly by the adult with care and support needs or carer and the local authority. It places the individual in control of the assessment process to a point where they themselves complete their assessment.” But it does not put them in control to a point where they make the statutory decision on eligibility, which is the key to obtaining a package or money!

Leaving this sort of thing unclear, perhaps for political reasons, will make the implementation and training of the workforce appreciably harder than it really needs to be, in my view.

Own home versus care home?

The most telling area for that debate to be played out, no doubt in court, will be the balancing of choice to stay in one’s own home and receive services, when the cost of so doing, even after all community based and informal support has been drawn into the mix, is substantially more than it need be for the person to be cared for, appropriately, in a care home.

Now, the definition of a legal personal budget is the cost to the council of meeting the needs, and we are emphasising choice and control, it is my legal fear that councils will reason to themselves that it is right and proper to give the client a sum of money towards staying at home, even though needs will go unmet. Training of the workforce, or at least the management, by trainers with legal acumen would explain the possible approaches in this context, for the purposes of prudent management of legal risk!

Choice of accommodation

More complex aspects of choice emerge from the chapter which explores the extension of choice of accommodation, to the supported living and extra care sector. The guidance makes it clear that it is not a choice of provider sector or setting that one is being guaranteed a choice of, but a choice of a particular provider of care, within settings of that particular type that has been deemed to be needed.

To enable top-ups to fees be made to enable choice of accommodation across supported living as well as residential care,

the comparison is no longer the ‘usual’ rate that the council expects to have to pay for the provision, but the level of the personal budget allocated to that particular person.

This means that decisions could be harder to challenge, because it requires an understanding of the issue of rational sufficiency – the guidance’s stipulation (page 156) that the level of the personal budget must be sufficient to meet the person’s eligible needs and their reasonable preferences as to how needs are met. (I will cover this further in the next article).

It also narrows the field of people who could conceivably bring the challenge to the service user and possibly a carer, instead of enabling a charitable organisation or a provider association to commence battle.

Ordinary residence rules

When one appreciates that the rules for deemed continued ordinary residence when one moves to premises out of area for supported living, turn on one having been assessed as having needs which can only be met in supported living, one sees that this is a means of handing more control to councils as to where people can take up tenancies.

If I choose to go from one area to another, under the Act, and that choice includes my need to be in supported accommodation or extra care, my choice to sever my connection with my old authority does not in fact signify anything under the new rules on ordinary residence. I am still the old council’s responsibility, whether I like it or not, and regardless of whether the new area operates a more generous charging policy or approach to eligibility.The simpler option of embracing the idea that people can have care anywhere where they are living, if they are eligible, and funding it, is not adopted.

My right to choice between providers of that same sort revolves around the cost of the care service, not the accommodation, because the accommodation is not being paid for by the council, in the case of supported living. But this means that top-ups are going to be charged for better, higher-quality care, not just the environmental aspects of the setting, and that is a new departure for top-ups.

It is hard to justify why the contracted for top-up should operate in non-residential care packages within supported living or extra care, where the care must be legally completely separate from the accommodation arrangement, avoidance of the registration rules for care homes, when in fact the top-up concept is not being promoted in relation to ‘ordinary’ home care services in a person’s own home. I think that this difference in policy is driven by the desire not to deter take-up of direct payments, which allow for the council’s charge to be netted off the direct payment, and the recipient to be forced to pay directly for additional services out of their own pocket.

Limiting choice of care home

The value of choice has changed markedly, too, even when the context is choice of a care home. The guidance suggests that one need only be offered one home with a room that is vacant at the authority’s personal budget rate, to justify treating any excess over that in the fee of any other home, as a top-up.

Before, the notion of ‘usual’ rate logically involved an average of the market rate at any given time for council-funded beds. Offering the client a choice of, say, three homes, where these were the three cheapest homes that were fit to be registered, has been the practice in many authorities to date, even though it was not a lawful iteration of choice, as described in the choice directions guidance. But now it will be acceptable.
It doesn’t mean that the council can have an arbitrarily low rate for standard packages, because it must still be a rational figure; but if one ‘horrible’ home is chosen as the test of the rationality of the rate, and always has vacancies, because no-one wants to go there, a right to choose does seem rather bereft of benefit! And that message in the guidance may itself have to be challenged, it is suggested, via judicial review, as the guidance must itself be based on a proper application of public law principles. The real issue is, once again, the adequacy of the funding settlement underpinning the introduction of this legislation.
‘Choice’ must therefore be understood as an unruly beast to tame, in anyone’s view! And it will be interesting to see what the Skills for Care materials being prepared for the sector’s Care Act workforce development needs make of the sort of complexity covered in this article. Next week I will look at choice and direct payments.