Council’s personal budget limit ‘risks legal challenge’, expert warns

A proposal by Southampton council to limit personal budgets for care at home risks legal challenge, a leading expert has warned.

The council is considering reviewing care packages costing over £500-a-week for people with physical or learning disabilities who are supported at home. A report setting out the proposals outlines three broad steps:

1. If a person’s care package costs over £500 it will be reviewed to find the “most cost effective way possible” to meet their needs;
2. If their needs could be met more “cost-effectively” at a nursing home, residential care or extra care housing placement, then the personal budget will be set at the cost of that placement;
3. A person could still opt to spend their revised personal budget on home care. However, they would need to fund any additional costs above the personal budget level unless there were “exceptional circumstances”.
4. Southampton said the proposals stemmed from concerns a “disproportionate” amount of its adult social care budget was spent on a “relatively small” number of people whose needs could be met in residential care or extra care housing.

The £500-a-week trigger for reviews is based on bringing costs more in line with fees for residential and nursing home placements. The council says its standard rates are £486-a-week for nursing homes and £368-a-week for care homes.

People impacted

The proposal would see the personal budgets of 212 existing clients reviewed. The group most affected is adults with learning disabilities, where one in five people supported at home have care packages over £500-a-week. The £500-a-week threshold would also apply to all people newly assessed as needing support.

The council’s cabinet will consider the proposals at a meeting in February. If approved, they will come into force in April 2016.

Belinda Schwehr, legal consultant at Care and Health Law, said elements of the proposals risked leaving the authority open to legal challenge.

The council said it was confident the proposals “fully accord” with its statutory duties under the Care Act and were not an attempt “to impose any blanket cap” as budgets would still be set on a case-by-case basis.

Care Act duties

The Care Act 2014 statutory guidance states: “The local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles.

“The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.”

Southampton said: “We would carry out a thorough assessment of those individuals’ needs and set a personal budget at a level that will enable those needs to be met in full. Working with individuals, their families and independent advocates, as appropriate, the options will be clearly explained and regard will be had to individual preferences, wishes and feelings.

“As part of the review, we would [also] consider all possible ways in which the care package could be made more cost effective, for example through direct payments or with a different care provider.”

Potential challenges

Schwehr told Community Care the decision to apply the threshold to all new clients meant the proposal was “effectively a blanket policy”.

She said: “The council is at pains to reassure the public that this is not the case without explaining on what grounds exceptions would be made.

“The assumption that a care home would always be appropriate to meet needs is outside the Care Act legal framework as well as constituting ‘fettering’ of the all-important care planning decision by staff.

“A cost comparison [between care settings] can only be made at all if there is an alternative setting that is not therapeutically inappropriate and, also, if staff cannot be told how to decide that logically prior and separate question [about the appropriateness of a placement] as opposed to cost.”

Another “real problem” with the cost cap identified by Schwehr was its potential impact on people who didn’t feel a move to residential care was appropriate and also:

• Lacked the capacity or means to challenge the care planning decision to make an offer that would require them to move from their homes, and;
• Lacked the means to ‘top up’ their council-funded care to stay at home.

She said: “In that case, a cap of £500 a week on what was actually delivered, into their own home, rather than forcing the move, would effectively amount to a decision to knowingly leave assessed eligible needs unmet. That is clearly judicially reviewable on all sorts of grounds.

“Southampton appears to be saying that people without the means ‘will be assisted to move’, but the council is not saying what they will do if very needy people or their relatives simply refuse to accept the offer.”

Councillor David Shields, Southampton’s Cabinet Member for Health and Adult Social Care, said: “It is important for everybody to recognise that we are not proposing to impose any blanket cap at any level on home care costs, as clearly set out in the impact assessment.

“The proposals for how the council would set a personal budget fully accord with the councils statutory duties including those under Care Act, its regulations and guidance and no decisions would be made without a thorough assessment and having full regard to individuals’, carer’s and families preferences, wishes and feelings.

“It is very important to remember that no decision on this issue has been made. The council is engaged in an open and meaningful consultation exercise and consequently welcomes all views on the proposal to inform its decision.”