Section 1 of the Care Act refers to the concept of a person’s wellbeing, and one of the things it includes is a sense of control over one’s day to day life, including over care and support provided and the way in which it is provided.
But the duty in relation to wellbeing is simply to promote it, by considering the impact of the person’s condition on the features in s1, and the impact of the services proposed on those features, too. There is no duty to deliver ‘control’ or any given amount of it, as described above.
Co-production is widely spoken of as ‘the way to do things’ but it is not a term which appears in the Act. Power to enable a person to prepare their care plan jointly with the council, and the right to a supported self assessment (where one takes the lead in setting out one’s situation in the way in which one wants, in order to provide facts and wishes to the council) do both exist in the statute.
The invitation to co-produce the plan is a power only, not a duty; and the latter right is limited by concepts of capacity to engage with the process.
‘Choice rights’ exist in the Care Act or under regulations which arise at the Care Planning stage. But these are not rights to choose where to have one’s needs met, as between a care home and at home.
That is a right given only to those who can afford to make their own minds up and self-fund in a setting of their choice, and it does not come from the Care Act. It comes from not needing social services funding or contractual support to secure a placement or make arrangements for care at home.
The right to choose a particular preferred provider of a care home – if one is agreeing to go in to a care home for one’s care, is subject to the preferred home being suitable, in the council’s view; having a vacancy; being willing to do business on standard council terms, other than as to price, and lastly, on the price not being more than the personal budget that’s been set for the person, unless they have a relative who will pay a top up.
Most councils are at risk of being said to be asserting an arbitrarily low rate for the rate locally that is needed to acquire appropriate accommodation for a standard sort of a client: the lower the asserted rate, to the council, the higher the top up will be – and the relative should only be paying for wants, and not the needs that must determine the adequacy of the plan and in turn the budget.
Choice rights to one’s preferred domiciliary care provider, do not exist, under the Care Act, despite the rhetoric of co-production and personalisation.
The council, if it is commissioning a package of care for a person separately to their accommodation, does not owe any right to choose at all. That is why most councils commission home care from no more than a small number of stable and viable large providers; too many small ones would de-stabilise the market, the theory goes.
If one wants to choose a home care provider, one needs to elect to ask to convert one’s budget into a direct payment, making oneself the commissioner – the purchaser of a service from a care provider, that is, or a direct employer of a person offering care work.
There is a ‘right’ to a direct payment but only if the council agrees that the person seeking one, , actually meets the conditions in the Care Act. The conditions are fairly open-textured, with much room for disagreement as to whether they ARE met or not, and limited hope of persuading a reluctant council, if it is minded to refuse.
‘Choice rights’ do not arise even then, in terms of a free choice as to what to spend a direct payment on. It must be spent on meeting assessed eligible needs, and subject to regulations-based rules as to whom it can be spent on.
The only other rights to choose, that is, to impose one’s will on the council, in the context of adult social care are as follows:
- to refuse to be assessed, in the first place – s11 – if one can hold on to the presumption of capacity and not be regarded as being at risk of abuse or neglect…
- to refuse consent to being represented by one’s relative or friend as an informal supporter, so that funded advocacy can be triggered, if one prefers; s67 Care Act
- to refuse consent to one’s carer being given a copy of the care plan – s25(9) Care Act
- to refuse to be financially assessed – although this results in being deemed to be a full cost payer if the person is a service user (or if not a service user, to one’s carer not getting any funding for direct replacement care services)
- and to refuse the offered services, after a proper Care Act process has explored the situation, in which case the council is discharged from its duty.
We at CASCAIDr CIC do not think that this is ‘wrong’, in any absolute or moral sense – it’s the law that the UK Parliament has brought in.
But we do think it’s wrong that the duties in an Act of Parliament, are simply not funded, because no party is prepared to have the debate or ask people to pay more in tax, or for national insurance.
And we do think it’s wrong if public functions become part of the nationwide culture of making the customer do the work, and waiting until the customer pushes the council (or an ICB) for their due entitlement.