A legal expert has spoken out against local authorities using funding panels to make decisions on all adult social care packages, citing this as “not lawful”.
Speaking to delegates at Community Care Live Manchester last week, Yogi Amin, partner in public law at Irwin Mitchell, criticised local authorities that use funding panels to scrutinise all cases of adult social care packages, stating that this was not lawful in accordance with the Care Act 2014 statutory guidance.
Amin was citing the case of JF versus Merton, where he highlighted how the council had “come unstuck” because financial considerations were “at the forefront of the local authority’s mind”.
He said: “There is a section in the guidance which talk about funding panels not being used for every case and being used for only a portion of cases and that’s something also to look out for. There are some authorities sending everything to a panel when that’s not actually lawful according to the guidance.”
Over-reliance on cost means you ‘come unstuck’
Section 10.85 of the guidance states that panels could be considered appropriate for signing off large or unique personal budget allocations or care plans. However, councils should “refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process, or are in place purely for financial reasons”.
“Judges will say it’s all well and good for local authorities to have a panel, to look at the affordability of packages but when it comes to justifying your assessment [and] your care plan in a court it’s going to come back down to the statutory obligations of a social worker to determine whether the needs can be met and documenting it,” said Amin.
“Over-reliance on affordability and cost is just going to mean you come unstuck.”
Community Care has recently investigated the use of funding panels by local authorities with a survey of more than 400 social workers and a freedom of information request (FOI) to council which revealed that social workers felt funding panels were being used to override their professional recommendations.
More than 20 councils confirmed in their FOI response that all requests for new or increased funding for care packages had to be put to their panel.
Similar assertions were made by Luke Clements, cerebra law professor at Leeds University, at a Legal Action Group event in early 2017 where he claimed funding panels were not being used in accordance with the statutory guidance, and their usage within councils was increased.
Statutory guidance ‘bound together’ with the Act
Amin was leading a session concerning lessons learnt from judgements coming to court under the Care Act.
He asserted that the Act’s statutory guidance is more than a ‘consideration’ for local authorities and practitioners.
Under section 78 of the Care Act 2014, councils must act under the general guidance of the secretary of state for health and social care in the exercise of its Care Act functions. This means it may only depart from the statutory guidance with good reason.
“Anyone thinking statutory guidance was just something we needed to consider – that’s wrong. Statutory guidance is pretty much bound together with the Act as one of the statutory duties.
Only a handful of cases have reached the courtroom since the Act was implemented in 2015, he pointed out.
“As lawyers you always expect a flurry of cases as new legislation comes in – for some people to test out whether the statutes are clear or whether there is some definition needed to the words such as ‘significant’ or what is an impact. But thankfully there has not been a large flurry of cases – there literally are less than a handful of cases on the Care Act.”
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Same conundrum, people arguing their rights to provision of services without due consideration to the cost (my right). Local authorities have a difficult job in meeting what is perceived as my right, by the people who feel they do not get the service they have requested.
Having worked for a number of years in different authorities there is always a version of the panel to justify expenditure, whether this is informal discussion with your manager to agree, or a more formal setting, it is always been reliant on evidence, and ability to justify the work/funding.
Conclusion of this report highlights that it is unlawful and therefore questionable practice. It is noticed that only a handful of cases have progressed this far into the lawcourts, which is understandable as ultimately there is financial implications on all sides regarding agreeing or disagreeing to an outcome.
Wise person once said” you should never fight your battles on your weakest ground”.
People progressing this to the courts may have a legitimate but weak case hence the reason it’s not progressed. Saying this is not lawful will not change situation, as far as I can remember it was not lawful 10 years ago when I worked for another authority, however the expectation to meet and manage outrageous care costs of individuals, care packages for some individuals around £700,000 a year has meant that there has been a lot of arguing at all levels over what is the minimal we can get away with ,to meet the client’s needs in a safe and appropriate manner, not about what family demand is their right.
We are responsible to some degree to the public purse through our actions and ensuring that provision of service for other people may be just as needy, have their needs met not whittled down by people perceiving they have a right for this expenditure. Normal dichotomy too much need and not enough money.
The election result today suggests that at least 40% of the general population support continued Austerity and cuts to Social Care. The Care Act does not reflect the reality that cuts to Social care are going to continue leaving many without vital support.
The emphasis of the “big society” ask your family ask your neighbour, pay for your own care we the tax paying public do not support higher taxes to meet your needs. Also clearly bug business does not wish to pay tax and there are no plans in place to make them pay more tax.
The real scam has just started in the absence of proper and just funding from the Tory Government Local Authorities plan to squeeze the public with outrageous Council Tax increases over the next 2/3 years this was not an issue in the vote today but in time it will become a toxic issue for them. The election today was a green light to keep hurting the poor and punishing immigrants. The Care Act is a nonsense piece of legislation giving lots of legal duties to Local Authorities while at the same time cutting the central government grant to maintain vital public services. The Tories are just criminals in suits cutting everything in the name of their god Austerity. Expect more cuts to vital services we the Tories don’t care.
What about quality assurance? This is normally why Council’s feel that panels are needed, as well as to manage finances. People’s definition of a panel can vary quite extensively. In my opinion a panel
Doesn’t
Make decisions about eligibility
Question the level need identified by the social worker
Make a social worker change their recommendation
Should
Ensure that the assessment and evidence supports the social workers recommendation
Ensure the social worker has applied the law correctly
Ensure the social worker has provided a clear care and support plan that is proportionate to the need identitified in the plan
Ensure the social worker has given consideration to a best value approach where they’ve recommended services
What about social work assistants who undertake assessment and care and support planning. Shouldn’t there be a ratification process of their judgment and recommendation by qualified social workers at some point in the process?
Having attended Mr Amin’s talk I think he would agree with everything you say. The issue is that, if the case comes to court, a named Social Worker needs to be able to say “this is my assessment and in my professional opinion the care package is safe”. Where you will come unstuck is if the Social Worker says “I asked for X but the panel would only agree Y”.
As someone whose mother has a very severe mental health condition combined with severe physical disability can say silo mentalities remain as entrenched as they have ever been and in this part of London the most severely disabled still fall through the gaps. The LA refuses to assess MH conditions or delegate duties appropriately and our mother refuses (like very many) to engage with the MH Trust. So in revolving sectioning door whereby no follow ups ever happen as the hard to engage can be written off as such and no MH support means cant engage with physical disability team.
With the demise of assertive outreach teams in preference for the easier outcomes of IAPT this group doesn’t even get to assert their s117 rights. Her case is pushed from pillar to post for the last 5 years with 13 different assessment periods so far and a LA who refuse to commission independent assessors for cases like hers as hey, they simply don’t have to. She often cant engage, they refuse to act as they should choosing instead to see this as a saving.
To the person who commented on cases being too weak to come to court I can promise you that it needs huge effort to find legal aid and then overcoming the utter fear that those with the power who have failed this far will then retaliate and your loved one will end up locked away long term with their physical care needs ignored and die a premature death through neglect. As that would be the cheaper option. This is what we have become
The Care Act was ambitious . And relied on resources, moral compasses and a rights based approach that are simply not there. For us as the carers our anger is such that at best we wouldn’t trust a health or social care professional as far as we could throw them. The actions and inactions whereby some peoples’ lives are deemed worthless is acted out through panels arguing the toss while the most vulnerable are considered as disposable. Sad that silo mentalities and focussing on what can get away with underpins social care provision.