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.”