Someone has written in to our one off Q & A service this week, with this question: ‘Can a council withdraw carers’ budgets, for all?’
After I’d picked my chin up off the floor, and ascertained that it did not mean to suggest that carers weren’t ever being assessed, nor that carers weren’t being provided with anything for support – I said that it sounded to me as if the council had decided not to give carers any money, ever, even if they were eligible, for respite or for services, ie as direct payments.
I think that is clearly unlawful as a fetter of a very limited discretion to say No to a request for a direct payment, and that the person could and should refer that stance to the Monitoring Officer.
The question poser said this: she’d been told that she couldn’t ‘appeal’ this stance because “carers’ budgets are discretionary…”. That suggested to me that maybe this council might once have had a policy to offer carers direct payments, previously, but had decided it need not continue to offer them now, because – in its view – there is no duty to provide them in lieu of a support service for a carer….
That would raise questions of the adequacy of consultation before any such change of policy, with regard to the impact on people in the area with protected characteristics, and would make an article 14 Human Rights discrimination challenge at least a possibility, to our minds – specifically for people who had become used to being in charge of their own commissioning of services to meet their own needs.
It more obviously, however, raises the public law question of whether the council has fettered its discretion by effectively saying ‘We are never granting a personal budget in the form of a direct payment – to a carer’.
I don’t think that that would be a policy that a council could lawfully hold, even though councils do have the right to refuse individual carers, a direct payment, on specific grounds, for reasons I shall set out here.
Identifying a personal budget for carers (the actual sum or figure allocated to meeting their needs) who have been found eligible, is not discretionary. That is an obligation under s25 and s26.
Section 26 on the definition of a personal budget tracks back to s24(1) which refers to a carer’s support plan, distinctly from the concept of a ‘care and support’ plan for an adult with needs under s9 -so it must be that carers are supposed to get personal budgets.
And at least consistently with such a budget being able to be turned into a direct payment for the carer, s25(2) says this:
Where some or all of the needs are to be met by making direct payments, the plan must also specify— [implicitly covering both kinds of plan – care and support plans for service users AND support plans for carers being granted a direct payment]
(a) the needs which are to be so met, and
(b) the amount and frequency of the direct payments.
But does it mean that there’s a right for carers, to one, in the sense of a duty to tell someone about them or does this mean that simply because there is no absolute duty to offer them to anyone – it’s legitimate to simply suspend the grant of any new ones as a general position?
We think it isan error of law to say that carers’ Direct Payments are ‘discretionary’ at a policy level and that it’s definitely challengeable if one says ‘No, we’re not obliged to administer those, and there’s no point in asking for a management review of that decision – it’s in our discretion and we’ve decided to stop doing them.’
There is a discretion to say no at an individual level, but it’s limited by the wording in the Act, which we think would apply as much to a carer requesting one, as it would a person with direct needs for care.
When one looks at the Care Act, we do have to say that it is intriguing to discover that the provisions about direct payments all refer to the ‘adult’; the point being that generally the word ‘adult’ in the Care Act is used to refer to the person with the physical or mental impairment in need of the care and support services – with the word ‘carer’ being reserved for an adult person’s informal carer.
It is also fair to say that in the Direct Payment regulations that exist to flesh out the rules in the Act itself, the only references to the word ‘support’ are references to ‘care and support’, not to ‘care and support or support’.
The potential point that might be made by a council under fire for the stance under discussion would be that however politically incorrect it is thought to be to refer to services for people with disabilities as ‘care’, the preferred word being ‘support’, – there is still a difference, which might lead a judge to imbuing it with some significance when interpreting the scope of direct payments for carers. That is, one might say, the Act itself chooses to distinguish between care and support for the person with the impairment and the eligible unmet needs, and the ‘support’ needs of carers.
There’s even recent case law about the meaning of the context of ‘support’, exploring (and confirming at Court of Appeal level) Parliament’s intention regarding choosing the words ‘care and support’, over the old language of ‘care and attention’ for the Care Act. It was held that that had extended the scope of the concept of social care – thus giving valuable interpretative meaning to the concept of support for those who need it. The case is BG v Suffolk County Council.
‘Support’ can now (MUST, now) be understood to extend to raw financial assistance (distinct from cash in lieu of services) for adults OR carers, in situations where there is really no other defensible way to meet eligible needs. That is definitely a development of real use to all sorts of applicants to social services departments.
However, back to the issue under discussion: sections 31 and 32 deal with the main provisions about direct payments and it is clear that they trigger a duty to provide a direct payment, IF a person gets through all 4 conditions for the grant of one.
Intriguingly, these do not mention conditions for carers, and the ‘needs’ mentioned in those two sections are just referred to as ‘needs’ – and not differentiated into needs for care and support or support.
We think that it’s possible that a council’s legal advice could be that that’s at least consistent with there being no duty to turn carers’ BUDGETS into direct payments even if they’re regarding themselves as under a duty vis a vis adults with direct care needs.
Next, section 33(2) says that regulations may be made under the Act which specify (a) cases or circumstances in which a local authority must not, or cases or circumstances in which it has the discretion to decide not to meet needs by making direct payments; I have checked, however, and no regulations to that effect HAVE ever been made, specifically making direct payments into something that a council can decide are optional for carers.
Section 33(3) says this, making it clear that where a direct payment is granted to a carer, the rules as to the spend are the same as they would be for an adult in direct need:
“A direct payment is made on condition that it be used only to pay for arrangements under which the needs specified under section 25(2)(a) in the care and support plan or (as the case may be) the support plan are met.”
This clearly envisages that there will be such things granted, but again, adds nothing to the strength of or even the existence of any obligation to provide them.
The jury would still be out, therefore, on the notion of a duty to provide carers’ direct payments, were it not for another quirky feature of the Act and the Guidance from government which pushes in the other direction.
The chapter in the Guidance on direct payments aims to convey the impression that what goes for the person drawing on services, applies to carers as well, unless it explicitly says so.
It says this in para 12.6:
“This chapter should be read in conjunction with the sections on care and support planning and personal budgets (see chapters 10 and 11), and applies to people in need of care and support and carers equally, unless specifically stated.”
Other paragraphs in the guidance are consistent with the policy being that direct payments are assumed to be a standard aspect of the operation of the Care Act, by government.
12.25 The amount of the direct payment is derived from the personal budget as set out in the care and support plan, or support plan, and thus must be an amount which is sufficient to meet the needs the local authority has a duty or power to meet. The direct payment amount will reflect whether the person is required to make any financial contributions, or is requesting a direct payment for only a part of their care and support requirements.
However this additional quirk in the Care Act, itself, buried deep in the prevention and reduction duty, ie in s2, makes it impossible to argue that sections 31 and 32 do not apply to carers.
The definition of ‘adult’ in the Care Act is as follows:-
2(8)“Adult” means a person aged 18 or over.
That is to say, all adults, whether they are carers or adults in need of care.
So that would mean that it there is a duty, vis a vis carers, or at least a contingent duty – to the same extent as it is for adults with care and support needs:
s31 Adults with capacity to request direct payments
(1) This section applies where—
(a) a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and
(b) the adult requests the local authority to meet some or all of those needs by making payments to the adult or a person nominated by the adult.
(2) If conditions 1 to 4 are met, the local authority must, subject to regulations under section 33, make the payments to which the request relates to the adult or nominated person.
So, coupled with the encouragement in the Guidance to take the position that the rights of carers are the same as the rights of service users, when it comes to conversion of a budget into a direct payment, we would in fact confidently predict that there is a duty to give carers access to direct payments for their support needs, to the same conditionally driven extent as exists for those needing care for eligible unmet needs.
The limited discretion whether or not to grant a direct payment to anyone would be informed by what the council thought of the appropriateness of a direct payment as a means to meet need, the person’s capacity to request one, their capability, regarding management of the payment, with whatever help is available, and their not being from an excluded category of persons for whom they are prohibited.
As with any discretion exercised by a public body, there must be individual and proper consideration of one’s specific request and one’s situation to turn one’s right to services, if one is eligible, into a direct payment – not a blanket policy, and not a fetter in practice against providing them, even in individual cases.
The wider context of support for carers, in the era of assets and strengths
It should not be forgotten that most councils believe that what carers WANT, more than anything else, at their moment of crisis is money. That’s what had made the question puzzling to us in the first place, we have to say.
Councils don’t tend to provide services, commissioned or even simply paid for through what might be called a managed carers’ budget, at all, for carers. Hub-based preventive and reduction services for carers regardless of their eligibility are one thing, and commonplace, as part of the local offer, but not for eligible carers. Money is the default offer, we find.
With regard to the amount, most councils are still operating as if the system before the Care Act existed, and calling their monetary awards for carers ‘Something for Me’ or ‘Carers’ Grants’.
They’re often to be found banding the awards, in terms of the size of annual payments, according to scoring of impact being sustained, (desperation or threats to down tools) or what they carer is saving the council, without being too transparent about that.
Very few are then saying ‘Now account to us as to what you spent the money on, or else we can’t give you any more next year.’
That fits with the payment being a ‘thank you’ even if it’s not a generous one – because it’s likely being awarded without even a carer’s assessment having been done, and thus to carers ‘above’ the minimum national eligibility threshold below which people must not fall, as well as those already suffering, below it.
If the law for carers’ budgets is the same as the law for the budgets of people drawing on services, however, then it’s worth considering the legality of the fact that most councils do not attempt to individuate the amount of the budget for the carer, to the cost of what would most assist the particular carer with regard to the domains in which they were formally assessed and found to have eligible needs.
We think that this aspect of social services practice is wrong in principle, but if nobody challenges it, by referring to the very much more sophisticated approach of community care case law to what is defensibly able to be regarded as sufficient to meet needs, in the context of an adult needing care and support, nothing will ever change.
We do think that a slightly less searching process might be required, to pass muster with the Administrative Court, for carers, if a council were to be challenged. That is because the carer has a choice – whether to continue in a caring role, or not – even if it doesn’t feel like it, given the state of the social services safety net – whereas the person with the eligible unmet needs has no choice in the matter at all.
To that extent, the budget for the eligible carer is always going to feel like more of a negotiation, with give and take on both sides, because the carer is already invested in caring out of the bonds of love and affection and will likely carry on for a good while longer.
But on the other hand, the carer is saving the State untold millions, when the figures are extrapolated from, and added up, nationwide.
So carers’ budgets DO need to keep up with the cost of living if we do not wish to tip our carers over the edge.
Anyway, thanks to that question coming in, CASCAIDr CIC is going to raise a FOI question about it in the next month to see what is actually going on out there in practice.