It is problematic to have guidelines as to the cost of services to be provided to any particular client, even if the guidelines relate to the band of need into which the assessment placed the client. If the guideline is regarded as any more than general guidance (ie if it is seen, even in practice, as a cap or a ceiling) then it would arguably bypass professional care planning and turn designing a care package into something based on resources, which would be unlawful, once statutory duties to provide services appropriate to meet need had arisen. It would be better if the word ‘target’ was substituted for ‘guideline’ or ‘ceiling’.
Whilst a senior care professional might legitimately disagree with a junior member of staff as to what was adequate for a particular profile of needs, no authority should set cost ceilings for actual delivered packages of care, as opposed to referring to them for an indication that it is not appropriate to keep someone at home. This is because those ceilings will be set by reference to general situations of need, not those specific to individuals, whose care plans must be appropriate for them. Thus ‘ceilings’ can only be guidelines. Using them to justify putting in less than is known to be needed is courting legal challenge, because it is obvious that the authority is in breach of duty. And using them to determine that the person must go to residential care can also be fraught with difficulty, because a residential placement might not even be appropriate, in social work terms, for a particular client.
When acting as lawyers, we advise that cost guidelines should not be included in Community Care Plans or policies or practice guidance AT ALL for any client group or service, because of the temptation in practice for care managers and senior decision-makers to come to regard these as ceilings. The danger that then inevitably arises is that care planners concentrate on fitting services to the ceiling, rather than providing services to meet need. When someone comes along whose needs require more than the cost guideline, good practice and the law require not that he or she be given as much as possible within the cost guideline, but that the authority considers whether the fact that the cost of meeting the user’s needs exceeds that guideline actually indicates that he or she deserves to be in a higher category of need, or even qualifies for some funding from Health. The bottom line in law is that assessed needs must be met and met appropriately.
It is very telling (regarding the essential difference between ceilings and guidelines) that the local government ombudsman has said that the imposition on one client group of a ceiling (elderly clients) whilst not on others was unfair and discriminated against older people (reference 96/C/4315 involving Liverpool CC).
Another problem that can arise with cost guidelines or ceilings it that care planners are often expected to work out what the net cost of the proposed care package is, taking into account the effect of the domiciliary charging policy, and compare that to the cost of a residential placement for that person, taking the Residential Charging Framework into account.
This means that the service package which is put together and chosen as the cheapest of the adequate options, as far as the authority is concerned, inevitably turns upon an individual’s financial circumstances. That is not lawful for the assessment of domiciliary care services, which turns on necessity, not on the financial circumstances of the individual. Only the charge for what is to be provided, which is subject to discretionary and local disregards, can be determined by a financial assessment, not the decision as to what is appropriate to meet the assessed need.
As to cost differentials in the ‘guidelines’ applied, as between client groups, there is no reason in law why people from different client groups exhibiting the same degree of need and dependency should necessarily cost the same amount to care for, especially when one appreciates that different needs require different levels of attention to produce an acceptable quality of life, and that the law requires that once needs have been acknowledged as necessitating local authority intervention, then the needs must be met. If a guideline is applied to anyone who counts as an older person, for instance, there will be people in that group who are just frail, and there will be some who are much worse off, in terms of dementia chronic illness, etc.
This problem gets worse if an authority tries to integrate all client groups into an overall matrix of levels of need, and tries to put cost guidelines across the board, for instance for everyone in level 2 of need. If one tries to integrate younger physically disabled persons, learning disabled and mentally ill clients into a standard cost guideline structure for level 2 needs, it will mean in practice that these clients will be consigned to cost guidelines which are known in advance to be incapable of meeting the assessed needs – for instance, in line with costs for the ‘elderly’, who are not physically disabled or the elderly, mentally impaired or physically ill clients who are bedbound and not even wanting to go on shopping trips!
Given this potential vulnerability of cost guidelines, but bearing in mind that Authorities will probably be loathe to give up cost guidelines, is there a compromise? We think that the preferred option would be to introduce cost guidelines specific to each client group based on the average costs of providing a particular quality of life, given the particular challenges presented by that particular client group. These guidelines could go in client group documents, not the overall guidance.
It may also be worth noting that the one form of cost ‘ceiling’ that an authority is allowed in law to have, and to apply, which is particularly relevant to the any client group not able to live independently in homes of their own, is the ‘usual cost’ that the authority is prepared to pay for residential or nursing accommodation. But the significance of that ceiling is more for determining whether a particular home’s fees require a top-up from a relative before the individual has a right to access a place there under the local authority’s contract, rather than what the overall cost of the care package might be for people from a certain client group. The cost ceiling has to be related to the anticipated cost of providing for the assessed needs, and it must be obvious that an appropriate home for a physically or mentally disabled client or impaired person costs more than it does for a merely frail person, whatever their age.
Specifically Related questions:
When can the authority take the cost of two alternative options for meeting need into account?