Where councils are going wrong in their implementation of the Care Act

By Belinda Schwehr

CASCAIDr (Centre for Adults’ Social Care – Advice, Information and Dispute Resolution) has been open for five months now as a legal advice charity. We’ve set out here the worst of what we’ve been asked for help on, so far.

People’s expectations being managed downwards by the front line being allowed (or instructed?) to be gloomy about the future

This tendency presents as the message, before a decision has been taken under the Care Act, or before a review has been finished, to the effect that there have ‘got to be cuts’.

In legal terms, this loose language could indicate predetermination or a fetter of assessment or care planning discretion; it could indicate a disregard of the principle that resources are relevant to how needs must be met, but not to whether. 

Pressure on unpaid family carers to keep on caring, even though they might be desperate to stop

This can happen through taking the family carer’s current input into account when assessing ability to achieve, contrary to the regulations and statutory guidance.

According to the guidance, carer input must be irrelevant to assessment but even the example in the guidance presents a scenario where a mother’s willingness to keep the place clean is just assumed, such that the man is not considered to be in eligible need (paragraph 6.112, case study 2)!

It also happens during care planning, through assuming that family input is willingly and appropriately delivered, through avoidance of anything able to be called a proper conversation with a carer, let alone a carer’s assessment for their own needs, by reason of the support load they’ve taken on.

The CP v NE Lincolnshire Council [2018] case, a judicial review challenge against the provision offered to a 22-year-old woman with complex and multiple disabilities, reiterates that an indicative allocation cannot be set on the assumption that informal carers’ ongoing willingness can be taken for granted.

Lack of any clarity at hospital discharge pressure points as to responsibility for paying for the next bed

This problem revolves around the lack of certainty about the difference between an ‘interim’ or ‘discharge’ to assess bed on the one hand, and a reablement or rehabilitation or intermediate care bed on the other. None of them can be charged for, that much is clear, under the Care and Support (Preventing Needs for Care and Support) Regulations 2014, so that makes it seem simple, and a great incentive to leave the hospital.

But if the NHS has put someone who has passed the continuing healthcare checklist but has not yet had a CHC assessment into a particularly lovely care home under a discharge to assess policy and they then stabilise so much by the time the person is formally assessed that they don’t qualify for CHC, there is a very good chance that the person and the family will now regard that home as the only home where the relative should stay – courtesy of the local authority, not the NHS, any longer.

If it’s a reablement placement/package that is needed, and wanted, but there is no reablement vacancy or staffing, then should the person be charged straight away for the next best thing, an ‘ordinary’ home care package? Or is that indefensible, because reablement should be free? To our minds, it is asking for trouble, to charge.

In areas where home care staffing has run out, people are being put into care homes as the next best thing

That is, they are being placed in a respite bed, sometimes, at a low charge; or with the local authority’s acknowledgement that it should pay, because it has not been able to meet its obligations. Most often though, the person has been given an assurance that no greater charge than what the charge for home care would have been, will be levied.

Instead of just commissioning that which the person has been found to be in need of, outside of the commissioning framework if necessary, or at a higher price than usual, the person then sits in that care home, deteriorating.

Then, the council reassesses the person and says that they now ‘need’ to stay in a care home, and if they want to stay in that one, a top-up will have to be paid.

Despite the Local Government and Social Care Ombudsman  having done a sterling piece of work on inappropriate processes before top-ups are even discussed, the ‘You need to move your mother’ mantra continues. And this is never more wrong than in the situation where it was home care that should have been delivered, because it was what a professional thought was needed, in our view.

Indicative up-front offers of low and flat rate levels of services which inevitably convey a ‘Take it or Argue With Us (and At Your Peril)’ approach

Common examples of this are found with respite or transport; or with standardised approaches to issues such as disability related expenditure and policies on discretionary decisions such as whether ever to allow close relatives to be paid from the direct payment.

These no doubt consultancy-led approaches inevitably put the burden on the vulnerable client to assert themselves in every case, and thus amount to risk transfer, instead of abiding by the law of care planning.

At some point, the offers being made will be indefensibly low, but accepted, or will amount to a fetter on practitioner’s exercise of their professional judgment in care planning, but will be offers that a council gets away with and which therefore contributes to the lowering of the bar for all.

The Care Act statutory guidance requires councils to be open to the possibility, in relation to determining eligibility, that the impact of the same difficulty in achieving an outcome might well cause two individuals different degrees of impact (paragraph 6.110). The R (JF) v London Borough of Merton [2017] case on assessment absolutely requires attention to individuals’ desired outcomes (albeit not the delivery of them in all cases!) for a lawful and valid assessment in the first place.

Scoring for the crucial question of what is needed to meet the person’s needs being done by a resource allocation system (RAS) where the configuration of the values entered into the computer program bears no relationship to the actual cost of appropriate types or levels of care in the local market (or other obviously relevant considerations)

This includes: eligible domains with a nil score; supervision costs in supported living assuming a saving from the presumed presence of other residents in the setting; and allocations for ‘round the clock’ needs ignoring the breaks that even a live-in carer on unmeasured time has to be given under the Working Time Directive, and ignoring the weekly commission that is charged by agencies for an introduction to such a person who will count as a worker for employment law purposes, but as self-employed with the HMRC.

Alterations to the RAS with no valid rationale

One example of this was the reduction in a budget from £60,000 to £20,000 to £3,000 in three years, on the footing that the woman’s ‘lifestyle’ has changed. Indeed, she was at a special school for the first one, and the budget paid for the school holidays; and she was living at her parents’ home and going to a day college for the second one. The parent provided much care, under sufferance, but without challenging the council formally. The daughter was still at home and going to the same college for the third indicative budget! One of the items on the scoring sheet says ‘daily check to see if safe’ so was clearly pre-set for people in supported living, not a parental home.

The recent CP v NE Lincs case reiterates that an indicative allocation must be rational and transparent, supported by a plan, to check the thinking.

Repeat assessments from different agencies, at the outset, and then again whenever there is a challenge to an indicative allocation, instead of combined or joined-up ones by staff trained to do more than just one thing (‘a carer’s assessment’ or a ‘children and families’ assessment, or a CHC decision support tool process)

This problem intensifies when a person has been placed out of area through choice or necessity, we think, because councils aren’t using the freedom to buy in a statutory assessment from a company – whose staff might just be better qualified and able to be more than merely competent, single issue assessors.

Related to the fall back of reassessing (because ‘so much time has gone by since we first started’!) is chronic delay in relation to decision-making about funding levels for the contents of the notional care plan, without anything being delivered in the meantime – this must be saving millions for councils, but the needs have been found to be eligible, already. This has got to stop!

The assumption that a rate for direct payment clients can be set in advance to be a by-the-hour rate, on a one-size-fits-all footing

Councils often apply a direct payment ‘rate’ across the board for all clients who want one.

It stands to reason that a person who is going to pay an agency for x hours of care is going to need more money than a person who is going to employ someone directly.

The national minimum wage case involving Mencap – the charity’s challenge to an employment tribunal decision in favour of one of its workers in relation to sleep-in payments, upheld by the Employment Appeal Tribunal, was heard by the Court of Appeal in March – will of course affect any employer when the judgment comes out, depending on the breadth of the ruling. But an agency will always be making a profit, and an individual simply acting as an employer, will not.

There’s a similar assumption being made that a live-in care rate can be treated as the cost of care, even though a local authority will not buy live-in care from an agency that merely introduces self-employed people to service users (no doubt for fear of being found to be a formal employer) and even if the person in question does not agree to see their home shared by someone who might actually live in, as opposed to just doing a sleep-in on a shift pattern.

The final piece in this jigsaw is the assumption that a council can simply refuse to meet one’s needs in one’s home ‘unless’ one moves to supported living where shared care offers savings to the council.

CASCAIDr’s view is that the discharge of a duty can never be made conditional upon a person needing to burden themselves with a move to accommodation paid for by them, or an invasion of their personal space, unless they want to agree to that, to avoid some other less attractive (but still lawful) option, in relation to the person’s preference, for meeting their needs, being offered.

CASCAIDr knows that some people will accept any proposal, and that some people’s parents will care until they drop, in order to avoid an offer limited to funding to live in a care home. But the thing that seems to escape their notice, or that they are not told, is that most public bodies would never actually be able to justify proposing a care home, if a person is under the age of about 50, and get away with it, in the first place, without being challenged on balancing of human rights, the person’s wishes and feelings, the real evaluation of what is needed, the pros and cons of different settings and likely lack of even conceivably suitable care homes (let alone ones with vacancies) when measured against social work professional consensus.

If such a thing as professional consensus even exists any longer, of course.

Chronic absence of finalised written care plans

Section 25 care and support plans are the record that renders councils accountable, in public law terms, for the decision as to how much of anything is enough to be able to be seen as defensibly meeting the needs.

We hardly ever see one these days – it’s as if nobody ever gets that far, or can be persuaded to shoot themselves in the foot by writing one out.

The need for a council care plan has been the law since the late 1990s, when the statute made no mention of them. The judges read that requirement in, in the name of due process. The Care Act made care plans an explicit ‘must’ duty for all clients under section 25.

Written care plans are the only way it is possible to spot the difference between a defensible care plan and one that is irrational, one that disregards obviously relevant considerations from the assessment, or is unlawful for breach of the guidance or a statutory provision.

A Care Act journey is not ‘done’ until a care plan exists. Nobody should be shoved off towards complaints until the job has been finished!

A missing care plan also means that when it comes to review, the service user or carer doesn’t know what inputs the council or CCG has actually been thinking it’s been paying a provider for, whether that menu was delivered or watered down, and thus whether or not what has been paid for has ‘worked’, or if not, why not!

Chronic delay in reaching a final decision: the lower the indicative offer, and the better informed the person, the longer it takes to resolve a dispute, and the more exhausting it is for all

A classic example we’ve seen is a man who has been supported to live in the community after many years of a narrow and overly-sheltered institutional lifestyle. His package was to be cut from five hours a day to three, and it has taken seven months to get the offer up to 4.25 hours before a ‘decision’ is even made.

The council steadfastly refuses to be drawn at all, on how the man’s needs have lessened. Clearly they have not, and that is why no explanation can be given.

We are not saying it’s unlawful to reduce his package, because his needs haven’t changed, please note.

The law is simple: any cut, whether driven by a change in circumstances of the client, or of the council, just needs to be explained, and rationally reflected by reasoning, en route to the written care plan, so that it’s clear as to what it is, in essence, that was needed before, but is not needed now, or why something else will be regarded as sufficient (See R v Birmingham City Council ex parte Killigrew [1999])

We’ve just heard the council is giving up by the way. Can you imagine the wasted staff time on this exercise?

Entrenched positions being taken about who bears the brunt of the fact that the council never really thought about mental incapacity, when it conferred direct payments on any set of parents who were inclined to step up, in return for the supposed benefits for their relative with learning disabilities

People who have been holding (in name, at least) a direct payment for years are now being told that they cannot have one as they haven’t got capacity to request one, and thus their parent – who is their PA – cannot both hold and manage and be paid under the direct payment – causing massive upheaval.

This may be at least not inappropriate, or unfair, if a proper finding of lack of capacity has been made and a authorised person scheme set up, under section 32 of the Care Act. No authorised person, to whom the direct payments are made, should expect to be the employer and employee at the same time.

But it seems harsh if a direct payment has been working for years and the adult has been at some visible level, consensually benefiting from the parent helping to ‘manage’ the payment and the employment relationship, as agent for the service user – not being the actual formal employer and employee at one and the same time.

Blanket positions being taken that it’s not necessary to allow a parent in the same household to be paid from the direct payment, even though the evidence is that the care cannot be purchased for love nor money, in the area, at this point; not, at least, at the rate being paid via the direct payment

The regulations allow the presumption against paying a family member from the same household as the direct payment holder to be set aside if the local authority considers it is necessary to do so.

If the parent were to be willing, no doubt at minimum wage, to fill that gap in commissioning efficiency, how could it not be regarded as ‘necessary’ to authorise this?

We would say it was the very best way of avoiding legal action if the council’s commissioners have been so inept as to not manage the market effectively enough under the section 5 duty, or have been left short of the means to do so by members of the council who know no social care law? A duty is a duty!

Belinda Schwehr is chief executive of CASCAIDr