A council’s plans to review high cost community care packages could see more disabled people move to residential care if they cannot afford top-up fees for home care.
A ‘fair care policy’ approved by North Somerset council last night promises to review new applications for home care packages that exceed the cost of meeting the same eligible needs through a care home placement. The policy will apply to packages costing the council £500 a week or more.
Where reviews find “insufficient” council funding is available for a person’s “preferred” package, the council will propose an alternative placement or offer the option of paying top-up fees. The council estimates the policy will save £700,000 over the next four years.
An impact assessment suggests the changes could lead to an increase in residential care placements and a reduction in community care packages among the service user group affected, although the council believes this would be “marginal”. The move will also “mitigate” a shortage of local domiciliary care capacity, particularly in rural areas, the report added.
‘Choice and control’
Disability campaigners fear the policy could leave people with no option but to move into care homes if the council deems their support “unaffordable” and they can’t pay top-up fees.
Liz Sayce, chief executive of Disability Rights UK, said: “The wording is subtle – we think it would be helpful to make it clearer – but it does state that the change ‘could lead to insufficient funds being available for the package of support preferred by the individual’ and an alternative being offered.
“If that means only offering residential care when the individual wants support to live at home and be part of the community – that risks contravening human rights. And where in this is the choice and control that should govern social care policy?”
The Care Act statutory guidance says councils should not set “arbitrary upper limits” on the costs they are willing to pay to meet needs through different types of care. Legal experts told Community Care any blanket policy to restrict home care packages in line with residential care costs would expose a council to legal challenge.
‘Not a cap’
A North Somerset council spokesman said the ‘fair care’ proposals were not introducing “a cap or limit” on packages, adding: “It is merely guidance as to when the policy is likely to be applied. The actual value of the award will be determined on an individual basis according to individual circumstances.”
The impact assessment said the council will give due consideration to people’s rights to a private and family life under the European Convention on Human Rights when reviewing packages. The policy will aim to ensure “maximum independence” is achieved for people “within the financial limits of the resources available,” it added.
North Somerset currently provides community care packages offering more than 30 hours of community support a week for 158 disabled people. The group currently receives a total 13,731 hours of care and support a week, an average of 87 hours each.
The ‘fair care’ policy will be applied to new care package applications. The council does not intend to apply it to existing service users unless “significant” changes require their needs to be re-assessed.
The legal view
North Somerset’s ‘fair care’ policy isn’t the first time a council has looked to review community care packages against care home costs. Last year Southampton council shelved proposals to limit personal budgets to the cost of care home placements that could meet needs.
With the funding crisis in adult social care leaving councils under pressure to find cost savings, but the Care Act guidance setting out strict rules around applying “arbritrary” ceilings to certain care options, what are the issues in reviewing home care against residential care costs?
Jamie Burton, a barrister at Doughty Street Chambers, said: “The big question is how these policies will be operationalised in individual circumstances, but there is a real risk here of unlawful decision-making.
“Where a person wants to live at home and critically they have been assessed as having needs that can be met at home, then that is what should happen.
“However, these policies suggest that those people who cannot ‘top-up’ council funds for their preferred package of care are not going to be able to have their care needs met at home. That is a very legally risky strategy.”
Luke Clements, cerebra professor of law at Leeds University, said: “A blanket policy of restricting domiciliary care packages to the cost of residential care would be unlawful. It would conflict with the independent living guiding principle of the Care Act 2014.
“The primary aim must be to promote independent living and a fixed policy that limits the options to the cost of institutional care is making ‘cost’ determinative, not ‘needs’.”