By Belinda Schwehr
These questions have been raised with Belinda through her legal training sessions and webinars.
Purpose of the plan
What is the purpose of a Care Act care or support plan, in your view?
Planning is for meeting needs in such a way as to harness all reasonably appropriate informal or free resources and inputs that a person is eligible for, or may be able to rely on, so as to make social care spending a top up wherever possible, based on unmet needs only, whilst designing the response to suit the person’s own preferred outcomes, cost effectively.
Who is the decision-maker?
A capacitated client is the decision-maker on whether he or she accepts the package offered, but a capacitated refusal of a lawful unchallenged offer is something that ends the council’s duty to meet needs.
An incapacitated person can have a best interests decision about whether to take up the offer made for them by a welfare deputy or attorney under the Mental Capacity Act 2005’s principles – and even where there’s no such person, anyone who then implements the package is protected by the Act’s cloak of legal immunity under section 5, if they have followed the MCA code of practice.
Discretion for councils
Are there constraints on the discretion open to the council when discharging the planning function?
Yes, the duty to meet need (and hence the planning that precedes doing that) is not able to be avoided by a plea that there is no more money. It is only as to how the needs are to be met that the resources difficulties of the responsible council are legally relevant.
Secondly, the law is that the council can only discharge the duty to meet needs by making a lawful offer in the first place. That means that it must abide by human rights laws, properly understood; by other English laws such as the Mental Capacity Act; the direct payment regulations under the Care Act, the rules forbidding the purchase of registered nursing care by local authorities; Care Quality Commission registration rules and health and safety rules that apply in the given context; and other Care Act regulations concerning choice of accommodation. A non-compliant element could make the plan unlawful in public law terms.
However, all the decision-making about content and value – in relation to meeting the needs appropriately, and adequately, in terms of professional judgment and discretion, taking resources into account, to a lawful extent – is subject to scrutiny by the courts based on the principles of fairness, legality and unreasonableness. That’s public law.
Duty to meet needs
Who is owed the duty to meet needs, and when does it arise?
Section 18 of the Care Act 2014 sets out the contexts in which the duty arises, and in that sense, to whom a duty, with regard to the meeting of assessed eligible, unmet needs, is owed.
The section makes it clear that coverage of the duty includes people with resources above the financial threshold who need home care – their wealth does not negate the duty and they simply count as full-cost payers. The section also specifically covers all people lacking capacity without anyone else willing and able lawfully to arrange to meet their needs. But there is an explicit exception for anyone whose eligible needs are being met by a carer (and I am confident that this means that the needs will be met by the carer, for the foreseeable future).
Mentally capacitated people who are ‘above threshold’ in terms of their means, but who need registered residential or nursing care, are not owed a duty – there is a discretion to meet their needs, however; and councils should have a policy on their stance in this regard.
Making discretionary contractual arrangements for such people – before they trigger a duty by going below the financial threshold – would mean that the council remains the council of responsibility, when they ultimately deplete below the threshold, even if the placement is made out-of-area at the outset. On the other hand, making arrangements would make the council more of a dominant purchaser in the area, which is supposedly good for so-called market management! It would also make people’s money go a bit further for longer, because of the bulk rates often negotiated by councils.
Care homes who are offered such clients under a council’s framework or spot contract have no obvious means or legal right to know about these clients’ finances, but no doubt feel hard done by when the better-off client is posted through the door as a council client. Some councils are provider-focused and astute enough to appreciate that the care homes on whom these councils depend probably needed these people to pay the private rate, whilst they still could, or at least a top-up above the council’s agreed rate, in order to survive in business. Such councils might have agreed in the contract at least to explore the question of whether there is scope for a top-up, whilst the person is still financially above threshold, albeit formally a council client.
In my view, where a person is lacking in capacity, but wealthy, councils cannot treat an ordinary relative’s choice of more expensive accommodation as triggering a top-up, because it is not the client’s own choice – the Care Act choice of accommodation regulations require the preference to be expressed by ‘the adult’.
The fact that the person once did choose a more expensive home than a council would have wanted to pay for, is not a choice that can properly be treated as a choice for the specific purpose of acknowledging acceptance of liability for a top-up, now: the Regulations require that the choice can only be relevant in the context of a council taking on the provision duty.
The rules as to who can even properly pay a top-up are not easy to avoid: it will not often be possible for a person to pay a top-up for themselves, other than in a formal situation in which their property is being disregarded for the purposes of charging, which is not what we are focusing on here.
The duty arises now, after any eligible needs have been identified, and does not depend on a signed-off care or support plan – and a power so to do, can arise even before the completion of an assessment, in urgent cases.
What is the order in which other agencies’, the voluntary sector’s or relatives’ contributions to meeting needs should be drawn in, when care or support planning?
Logically, first should come any willing and able contributions from relatives, neighbours and friends – subject to the client’s refusal of consent (because that issue engages dignity and article 8 of the European Convention on Human Rights, the right to respect for one’s private and family life, in my view). Then, universal or targeted services that are free to the individual and feasibly appropriate to meet needs should be considered. This should be followed by those of other agencies which have statutory duties, such as the health service (continuing healthcare or other NHS obligations), housing, benefits (so as to enable the person to make as many spending decisions on their own as possible, not for treating them as able to go out and pay for the meeting of their own needs!). Ultimately, agencies with statutory powers that they are willing to exercise should also be considered.
Then, and only then, is a social services department obliged to meet an eligible unmet need.
But if a council takes a ridiculous stance about the ability of a community provider to meet needs then its decision to withhold budget or not otherwise meet need would be judicially reviewable; so articulate reasoning and effective communication between agencies, and legal literacy as to whose duties and powers trump anyone else’s, are clearly required.
Cuts and compliance
Do you think that councils are likely to be care planning in a Care Act compliant way, given the news about ongoing cuts and providers withdrawing from the market, rather than accepting non-viable fee rates?
I think that commissioners are maybe overlooking that the Care Act imposes some legal duties on them, as to what is commissioned, and that a judicial review of the approach to purchasing will not be long emerging.
In the operational context, I think that the training will have focused on assets-based care planning to minimise spending, and not built in some of the due process rights that the Act gives to people.
For instance, there’s the power in section 19 of the Care Act, in all cases (service users and carers), to spend money even if there is no actual section 18 duty to meet needs. But there’s also an obligation in section 24(2), if deciding not to exercise this power, to provide written reasons.
That could be done very quickly by councils on a pro forma, but I haven’t come across any council that is bothering.
To whom does a section 25 care or support plan belong?
I would want to know what the context of the question was before answering, because it all depends, in my view. Preparing the plan is the obligation of the council and so of course the council owns it in that respect. This is not necessarily the same plan as the CQC’s own rules require of care providers – although the provider’s own plan, drawn up for these purposes, may well have been adopted by the council for section 25 purposes.
This is the plan that the Care Act requires to be prepared for everyone found to have any eligible needs – assuming they want the council to meet their needs – and the plan is obviously ‘about’ the person him or herself. The statutory guidance requires person-centredness and a focus on the client’s outcomes, and the contents are assumed to be confidential personal sensitive data. The Act requires that a copy is given to the client and to anyone else the client asks to be given a copy – so in these senses, the copy ‘belongs’ to the client. However, the client’s consent is not always needed for the sharing of the information in the care plan, because of exceptions to confidentiality. My conclusion is that as long as the client has a copy and the council protects its confidentiality lawfully, then its legal ownership is not a significant issue.
What you need to know
What aspects of the Care Act does a care planner need to know about?
In all cases:
- The basics of continuity of care and ordinary residence rules, because responsibility for care planning (not assessment) turns on ordinary residence principles, and continuing ordinary residence rules have changed previous law and practice for some people moving as tenants to some property regarded as supported living;
- Direct payment basics, because of the need to plan for a deployment route for the budget, and give the person enough information to make an informed choice, and to decide whether or not the person has capacity to make the request and would be able to manage the payment alone or with someone else’s help, potentially;
- Charging basics, because within reason, capacitated people must be allowed to weigh up the consequences for their wellbeing on incurring debt, in proportion to the benefits of having their needs met.
And in some cases:
- Hospital discharge rules, because of the need to be clear whether the person qualifies for continuing healthcare or a split package with NHS inputs, and whether an interim bed, pending decision-making on CHC, should be paid for by the local clinical commissioning group;
- Choice of accommodation rules and top-up rules, because of the risk of misleading a person as to whose realm it is to answer the question of whether accommodation is suitable to meet need, before a choice is explored; and secondly, because of the guidance about the proper level of the personal budget if the preferred choice is out of area where the rates differ from those in the home area, and as to the options for who can properly pay a top-up;
- The Mental Capacity Act, because of the presumption of capacity when it comes to risk-taking, unless the contrary is established, and because of the fact that contracted providers will be touching, restraining and ensuring people’s safety, in their best interests, which may trigger deprivation of liberty rules in any setting where cognitively impaired people need to be cared for under close scrutiny.
What legal concerns do you have about cost-capping of budgets for home care, to the equivalent cost of a residential setting?
None, if by cost-capping we are merely positing a comparison being made for consideration by a council’s panel, so that it can weigh the pros and cons of an offer in one setting, over the other; but absolutely fundamental ones if what we mean is a policy that since residential care will always be considered to be an appropriate option, then that is the non-negotiable size of the person’s personal budget – regardless of a care planner’s view as to actual needs, or regardless of actual vacancies at the time in the area, or regardless of the person’s human rights and relationships.
I also think that the policies that I have seen being consulted over, (Bedford’s and Medway’s most recently, and Worcestershire’s and Southampton’s a while back – there may be others) have failed to nail the all-important question: what will councils actually do with eligible people who refuse a residential setting but can’t or won’t find ways of bringing down the cost of meeting their needs so that the council can prudently continue to meet their needs at home? Frogmarch then off against their wills, and call it ‘assisting’ them? Walk away?
The answer is bound to be to “allocate only the equivalent residential cost to their budget”. But how can it be lawful, in public law terms, knowingly to spend less than is professionally believed to be required to meet assessed eligible needs in the person’s own home setting, just because the council has made a choice, for its own reasons, to beg the person to accept this inadequate solution, rather than walk away from the person’s refusal of arrangements in an admittedly not inappropriate setting? A delivered package of a value that is less than is needed would appear to be a decision that “personalisation is a great idea, but just not at night, when it costs us more”.