Service users left isolated as councils fail to meet eligible social support needs, say social workers

Legal experts say councils opening themselves up to legal challenge by leaving needs unmet and operating policies that relegate social support below personal care, as revealed by Community Care survey

By Rachel Carter on May 29, 2019 in Adults

Photo: Zadvornov/Adobe Sctock

Disabled and older people are not having their eligible needs to access the community or maintain relationships fully met, as council cuts leave them increasingly isolated, social workers have warned.

Almost two thirds (62%) of 282 practitioners responding to a Community Care survey said they had seen cuts to care packages that had increased people’s social isolation, over the past two years, with half of this group saying the cuts had been driven by financial pressures rather than changes in need or commissioning practice.

Of those who had service users on their caseloads who had assessed eligible needs for support to access community facilities or to develop and maintain family or other relationships, most said these needs were not being fully met.

Social workers we spoke to said there was an implicit hierarchy of need in their local authorities which relegated these social needs below those for personal care.

Lawyers specialising in social care said the practices placed councils at risk of legal challenge.

More on the BBC

The findings of this survey were featured on BBC Radio 4’s You and Yours programme on 29 May, as part of an item on people going without the care they need.

Respondents gave examples of people’s personal support hours being cut to the point they could no longer make trips into the community, participate in social activities they enjoyed, or maintain contact with family and friends. They said the isolation was contributing to mental health problems.

One social worker described how a person with Down’s syndrome was moved from a residential care home “where they were happy, had good relationships and went out into the community” to a supported living placement with only three hours of care a day, and “now sit in their flat alone”.

They added: “We were told to move the person to cut costs and not to worry.

This made me feel very uncomfortable as a professional, but I had to go along with it.”

‘The council is making me more disabled by taking away support

‘We are fighting for funding’ – social workers on the impact of care cuts on people’s lives

‘Hierarchy of needs’

Under section 18 of the Care Act 2014, local authorities have a duty to meet all needs for care and support that meet the eligibility criteria, where these are not being met by a carer, where the adult is ordinarily resident in their area or is present but of no settled residence, and is not excluded on the grounds of their financial resources.

Paragraph 6.114 of the act’s statutory guidance also states that when considering the type of care needs an adult may have, local authorities should note that there is “no hierarchy of needs”.

However, social workers surveyed said councils were failing to consistently meet people’s eligible need for support to develop and maintain family and other personal relationships.

Almost a fifth (18%) of those with service users on their caseloads with this need said it was not being met at all by existing care packages, while 64% said the need was being ‘partially’ met. Just 18% said the need for relationships was being ‘fully met’ for service users on their caseload.

Similarly, only 16% of respondents said service users on their caseload who had an eligible need for support to access and make use of community facilities were receiving care that ‘fully met’ this need, while 66% said existing care packages were ‘partially’ meeting this need and 18% said it was not being met at all.

Sally*, a social worker who spoke directly to Community Care about her experiences, said: “In my council, these packages are definitely seen as inferior or second best in relation to packages that contain aspects of personal care provision or food preparation.

What would be seen as packages that help to keep people alive and maintain their health are certainly seen as a priority.”

Karen*, another social worker, told us: “It’s never been said outright, but there is a common understanding in my council that social support is the least important, when obviously it isn’t.”

Risk of legal challenge

Jamie Burton, a barrister at Doughty Street Chambers who specialises in community care, said: “The downgrading of these aspects of wellbeing discloses a hierarchy of needs that for good reason the statutory guidance advises against. It is for service users to decide what is most important to them and not for councils to dictate in a paternalistic way what needs are deserving of being met and which should be cut to meet budgetary demands.”

He said that, while the precise legal consequences would depend on individual cases, councils were leaving themselves open to legal challenge by such practices.

“You could bring a judicial review and challenge either (a) a failure to meet needs – ie someone who cannot access the community themselves is spending too much time alone and it is impacting on their wellbeing or (b) the council are ‘fettering their discretion’ by applying a ‘one size fits all’ policy to everyone and thereby failing to treat them as individuals.”

Yogi Amin, public law solicitor at Irwin Mitchell, said: “We have seen in practice a number of cases where the Care Act eligibility outcomes to develop and maintain relationships and access the community exist, but the care packages do not practically allow the individual to meet these needs. Leaving individuals in this situation mean that the council will be acting unlawfully.”

He added that if councils were to depart from legal guidance and adopt a hierarchy of needs, they would have to “justify it on the basis that funds are so restricted it is reasonable for them to do so”.

“A council would have to be open, honest and transparent so people know that they are not going to have their needs met in a particular area due to a lack of resources – to not do so would essentially mean hiding an unlawful departure from the statutory guidance,” he said.

Social workers on the impact of cuts on people

“A service user who was blind but determined to maintain independence had their care package cut by our reablement team, who did not think about the wider social aspect of carers supporting the person to get dressed and do buttons up, so that they could continue to go out with friends for a meal twice a week. As a result, the person became depressed but funding was not agreed to keep the carers attending. I still think about this case.”

“A person with a learning disability, autism and social agoraphobia had a personal assistant for minimal hours per week to support them to access their local community – something they hadn’t done for over six years. Their package was cut completely as it was seen as ‘social’ and a ‘hobby’ by a funding panel. They are now isolated again and won’t leave the house, which is impacting on their mental wellbeing”.

“A person with cerebral palsy experienced a reduction in personal assistant hours after a diary of care was completed. They no longer had hours to go out of their flat in the evening, without a family member. This resulted in a period of depression, on and off, which resulted in symptoms of psychosis.”

“A person now has to have a bed bath instead of being assisted to have a shower/bath. A young person with learning disabilities no longer has enough hours to ‘ride the trains’. A person who enjoyed trips out in their wheelchair no longer has enough hours to continue. The list is endless.”

Blanket restrictions

The survey also asked social workers whether their council was placing any restrictions on how much care, or the type of services, it would fund to meet people’s eligible needs for support to maintain and develop relationships and access facilities and services in their local community.

More than half (55%) of respondents said their local authority had some restrictions in place. The common theme from respondents who commented on the survey was that these restrictions are often not written down in policy documents but were communicated to staff, or as one social worker put it – “it’s more of an unwritten rule”.

The Care Act statutory guidance states that when determining how to meet needs, a local authority can take into “reasonable consideration” its own finances, but should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes because doing so would “not deliver an approach that is person-centred or be compatible with public law principles”.

Amin said it would be contrary to the guidance for councils to have a blanket policy, adding that “councils will try and avoid getting caught by not having such a policy written down”.

“The responsibility is therefore on the professionals and those who can challenge the council, such as families of service users or advocates, to prove there is effectively a blanket policy,” he added.

“We’ve dealt with cases over the years where councils might not have a written policy, but actually once you dig down into the detail and the evidence, it’s quite clear that the overwhelming approach is a blanket policy – and that is unlawful and not in accordance with the statutory guidance.”

10 cases of blanket policies

“The council will not provide services to meet the outcomes for maintaining relationships and accessing the community. We also will not provide a service to maintain a habitable home.”
“One day at a day centre per week. No 24-hour care for younger adults and younger clients with physical disabilities have to go into old people’s homes. No choice of support.”
“Six hours a week social access support is the ‘standard’. If you request anything more than this then you have to have a VERY good reason why. I haven’t seen any packages larger than that.”
“When discussing social inclusion needs, I’m constantly told it is difficult to get more than one day.”
“We are told that the service user can buy a phone or use Skype to develop and maintain relationships, rather than be supported to visit family and friends.”
“No choice in nursing or residential care regarding location, the council will only pay for [the] cheapest and people can top up. There is also no consideration given to supporting [people to maintain] meaningful relationships or to engage with the local community they are from.”
“[The] council does not pay for any activities, or hobbies, and certainly no transport. Day centre is capped at two days per week maximum and respite at two weeks.”
“Maximum three hours a week for people with physical disability or none if you have family because ‘you are still seeing people’.”
“There is a limit on hours funded for accessing the community. [This support] is often refused to allow for home care to be afforded.”
“Social isolation is not seen as a significant need, and social needs have to be met privately.”

Transport restrictions

More than three quarters of respondents (81%) also said their council placed some restrictions on funding transport for people to get to an activity that they attend as part of their care package.

One social worker said council managers will “decline any transport costs to social activities”.

The key themes from the examples social workers shared suggested that cuts to transport funding were particularly problematic in rural areas, and in some cases meant a service user might be funded to attend an activity but would be expected to fund travel costs themselves. Or, their carer or personal assistant, without whose support they couldn’t attend, would not be funded to accompany them.

Karen said her council did not fund carers to accompany the person they cared for to an activity.

“It’s not written down and there’s no set policy that says we can’t, but it’s communicated to us that we should be ‘mindful of resources’ and this means not everybody is getting the same support.

“This causes confusion as a practitioner, because you don’t know what you should be telling people and obviously you wouldn’t want to get anyone’s hopes up, if you can’t actually provide that support.”

Sally added: “Within my local authority, we may fund someone to attend a day centre, but will then insist that the person pays the travel costs to get them there and back, which in some cases is certainly unlawful. An eligible need has to be met by the local authority and that includes getting someone to and from a day centre, if that is what is required to ensure that the need is met.”

Sector reaction

A spokesperson for disability rights group Inclusion London said the “shocking” findings showed financial pressures on councils were overriding their duties under the Care Act 2014.

They added: “The findings confirm there is a hierarchy of needs and the needs for building relationships and taking part in the community are not seen as a priority. All the talk of promoting wellbeing and putting a person at the centre is just rhetoric, when in reality the lives of many disabled people are reduced to being cleaned, fed, and left doing nothing, trapped in their home.”

Gerry Nosowska, chair of the British Association of Social Workers, said its members have reported that the adults and carers they worked with were “really concerned” about getting enough funding for the support they need.

“I hear from social workers that they make judgments about the social care support that is necessary and appropriate for people, and are asked by local authorities to reconsider and find alternatives, which leads to delays and stress for people who need help,” she said.

Julie Ogley, president of the Association of Directors of Adult Social Services, said: “Some of these findings are in line with our own budget survey and autumn short survey of directors of adult social services on these issues.

“This includes 71 per cent of directors either had no confidence or partial confidence that their social care budget will be enough to meet statutory duties relating to personal budgets or services to meet eligible needs.”

Ogley said many directors were prioritising the development of asset-based and self-help approaches to people who needed long-term care, adding: “This is about delivering savings long term, but most importantly seeking different and community-based means to meet people’s needs and aspirations. This is with the aim of helping people to avoid the need for more intensive care and support services later on, or to at least delay it.

“Research shows that loneliness and social isolation can be as harmful to health as smoking 15 cigarettes a day. Councils and their social care services are under severe financial pressures, but are working hard to help meet people’s needs in different ways.”

Eligibility criteria under the Care Act

The survey asked social workers practising in England about support for people whose care needs mean they are unable to meet outcome (g) developing and maintaining family and other personal relationships, and outcome (i) making use of necessary services facilities in the local community including public transport and recreational facilities, from the Care Act’s eligibility criteria.

Under section 13 of the Care Act, local authorities must determine whether any of an adult’s needs meet the eligibility criteria, where an adult has been assessed as needing care and support.

The Care and Support (Eligibility Criteria) Regulations 2015 set out three conditions that must be fulfilled for an adult to meet the eligibility criteria for care and support:

the adult’s needs must arise from or be related to a physical or mental impairment or illness;
as a result of their needs, the adult is unable to achieve two or more of the specified outcomes;
as a consequence there is, or is likely to be, a significant impact on the adult’s wellbeing.

The ten specified outcomes set out in the eligibility criteria are:

(a) managing and maintaining nutrition;

(b) maintaining personal hygiene;

(d) being appropriately clothed;

(e) being able to make use of the adult’s home safely;

(f) maintaining a habitable home environment;

(g) developing and maintaining family or other personal relationships;

(h) accessing and engaging in work, training, education or volunteering;

(i) making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and

(j) carrying out any caring responsibilities the adult has for a child.

In judging the impact on the adult’s wellbeing, the assessor must consider the 10 aspects of wellbeing set out in section 1 of the Care Act, which include social and economic wellbeing, domestic, family and personal wellbeing and the individual’s contribution to society.

Section 18 of the act places a duty on local authorities to meet those of an adult’s needs which meet the eligibility criteria, where these are not being met by a carer, if: the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence, and any of the following conditions apply:

there is no charge for meeting the needs;
the adult’s financial resources are below the limit for means-tested support;
the adult’s resources are above the financial limit but the adult asks the authority to meet the needs (though this does not apply when the need would be met by the long-term provision of residential care), or
the adult lacks capacity to arrange their care and support and has no one authorised or available to do so on their behalf. .

When a local authority is under a duty to meet the person’s needs, it must produce a care and support plan for the person, specifying the needs that are going to be met and the cost to the local authority of doing so, which is the personal budget.

The statutory guidance on the Care Act states that the personal budget must be sufficient to meet the needs the local authority is under a duty to or has otherwise decided to meet, based on the cost of quality local provision (paragraphs 11.24 to 11.28).

*Names have been changed

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