We will seek advice and support challenges, regarding the legal principles around the following issues:
A. Flawed Care Act assessments, and Care Act journeys
arising out of any of the following
- rationing of assessments, based on shortage of staff, despite the long-established principle that such circumstances are not legally relevant to the discharge of the assessment duty
- ill-informed use or placing of the conversations from a 3 Conversations approach,
- processes that lead to only an indicative budget and a charging assessment, but no eligibility decision (usually because a duty is triggered by one of those!)
- processes that lead to an indicative budget but no individuated care planning (sometimes on the footing that the charge would exceed any potential budget!);
- care plans that have only outcomes written up, no inputs
- rationing of advocacy through poor or non-existent attention to ‘substantial difficulty’ as a trigger for considering participation and involvement needs and rights
- refusals to join up different bits of an assessment which span maybe health, mental health, Care Act, and substance misuse teams’ opinions
- assessments which are made dependent on the client doing something first, such as engaging with a specific piece of tech, or a person with a particular title or task, such as a re-ablement team or occupational therapy appointment or re-ablement service, or a ‘maximising independence’ officer
B. Direct Payment issues in general
various issues regarding rates, management options and scope
- refusal of differentiated rates, according to the type of arrangement the recipient is intending to use (employment vs going to an agency vs an ISF) and disregarding the incidental and unavoidable extras arising from that preference
- refusing to uplift direct payment rates in line with the national minimum wage increases, year on year – and having no or insufficient regard for the local ‘quality’ market rate as per the Guidance
- taking the view that it is not appropriate to spend direct payment monies on anything other than the cost of staff, regardless of the breadth of the person’s eligible domains of need
- taking a fettered approach to characterising all activities for the budget user as matters of choice, and not as matters of need, and thus effectively obliging the person to spend their own benefits or money on the meeting of their own needs
- taking a fettered approach to when it might be necessary to allow people to pay their close relatives in the same household for care out of the direct payment
- practices whereby managed accounts are imposed on people despite their mental capacity with regard to a managing the money (eg using payment of a grant or contract price for the managed account provider as the justification for putting the direct payment through a route, over which the council has control)
C. Arbitrary (or care home cost-related) capping of home care after eligibility decision-making
affecting indicative or finalised budgets,
- without conscientious balancing of all relevant considerations,
- including a proper identification of the needs in the relevant environment,
- or ignoring the evidence basis as to the lowest practicable cost of meeting them in that environment, if councils will not treat declined offers of residential or nursing home care as discharging them from their legal duty to meet the need;
- the mental capacity principles regarding informed assumption of risk in relation to a cost-capped budget, by the person in question,
- the careful balancing of the person’s human rights against the rights and interests of others,
- the state of the care home market within a reasonable distance of the location where the person would need to be cared for, if they were NOT to remain at home
- the existence or otherwise of any suitable vacancy in a setting willing to take the client on
- the rationality of the evidence basis for the council’s asserted rate for meeting people’s and the particular individual’s needs in a care home, in the first place
D. The nature of the duty to meet needs, in terms of well-established community care legal principles
with regard to the question of what has become of the Care Act duty to meet eligible unmet need – and when does failure to meet need become unlawful by reason of unconscionable delay which should give rise to restitution on CP v NE Lincolnshire lines (Court of Appeal 2019) – including factors such as
- whether the plight of people, left without a care plan, or the services in the care plan, in place, has become non-justiciable despite it having been the law for over 25 years that the duty to meet needs is an absolute, individually enforceable duty, if it is the only way to meet eligible unmet needs, and that it is not a duty that can be allowed to be downgraded into a discretion?
- whether government policy regarding its preference to see adult social services commissioned from the private and voluntary sector, rather than delivered by council-owned or managed services, is any justification for treating the duty to meet need as something less than a duty, when the law has always been that if the services cannot be bought, then the council’s duty is to provide what has been written up in the care plan, itself?
- …and given the fact that there is a mandatory duty laid upon adults’ social services councils to ensure that any council’s Director of Adult Services is able to secure adequate staff for assisting him/her in the exercise of his functions (which include the Care Act duty to meet eligible unmet needs), under legislation dating back to 1970?
- whether asserted non-existence of the staff or services in the market, via contractual commissioning arrangements, renders the duty unenforceable, and whether that is something that must simply be overcome by raising the fees paid by councils to the market, given that the law has always been that if there is only one adequate way of meeting the eligible unmet need then that route must be taken, regardless of the cost?
- … and given the scope of the commissioning duties IN the Care Act, consideration of whether it’s legal to take a commissioning approach that it’s acceptable to spend no more than an internally set figure, (ie remaining within the departmental budget and not considering use of reserves) on trying to find care, stimulate the market to raise the salaries paid, etc, or develop new services?
E. Supported Living commissioning practice
regarding any of the following approaches to meeting the needs of people with less than full capacity
- councils’ mere signposting eligible clients to landlords of specific “supported living” houses where shared care has already been organised with a provider, without consideration of whether the person has an accommodation-related need which compels provision of the housing as well as the care;
- ignoring the need for the person or a lawfully authorised proxy to agree a tenancy or other form of rights of occupation before any care plan can be based on any such accommodation, nearly 16 years after the Mental Capacity Act came into force;
- making the meeting of the person’s needs effectively conditional upon a person or their authorised representative taking up a tenancy and committing to paying rent, but only in a house where it suits the commissioners of the care, for the person to be cared for.
- ignoring the factor of suitability of living accommodation as part and parcel of the duty to promote the person’s wellbeing
- ignoring s25(11) of the Care Act which lays down that care plans (and hence personal budgets) cannot be combined without the agreement of all clients (with no provision for a parent’s agreement or even a welfare attorney’s decision);
- failing to ask the question, whether, if there is no other option for meeting needs that is defensibly professionally regarded as acceptable, (ie no care home or other setting where the person’s human rights could defensibly be met in any competent professional opinion), and the person is regarded as incapable of securing a private sector tenancy, and not regarded as homeless by Housing officers – why does the person not qualify for accommodation-related provision under the Care Act?
F. Disregard by the Monitoring Officer of his/her s5(2) Local Government and Housing Act 1989 responsibilities
regarding likely contraventions of enactments or rules of law, in light of the Parliament’s intention that these officers should actually deliver dispute avoidance and risk management work behind the scenes to avoid judicial reviews (on pain of a report to all councillors having to be issued)
- the relevant test being only a likely contravention of an enactment or rule of law
- the Act making the duty an individual responsibility not able to be delegated to a complaints officer or head of service
- the Act requiring councils to equip Monitoring Officers with resources for external advice when needed (eg when there is a conflict of interest, were the internal adult social care legal staff to be professionally embarrassed, having already advised the ASC team on the matter referred to the Monitoring Officer)
- the Monitoring Officer’s statutory duty not being dependent on a complaint having been brought, or regarded by the council as an adequate alternative remedy.
G. Inadequate s117 assessment and care planning
for people under s3 of the Mental Health Act etc, awaiting discharge from psychiatric hospital
- with frequent use of a Care Act approach, in lieu, leading to an unlawful charge for social care which should be seen as part and parcel of free aftercare
- practically always ignoring the possibility that the statutory aftercare purpose could not defensibly be met without specialist accommodation because the intensive specialist mental health aware supervision that IS required would be meaningless without a home for it to be delivered within – thus triggering an ‘accommodation related’ need for actual direct provision of housing;
- disregarding at least 4 ombudsman reports flagging this issue about accommodation related support up for the attention of the sector;
- assessors and care planners not asking themselves the right question regarding the question of accommodation-related needs
- paying insufficient regard to the AK case (2021) in which judicial review was the obvious remedy for indefensibly bad and delayed s117 care planning
- ignoring the nature and standard of the duty as being one of ‘best endeavours’ and instead allowing commissioning to remain fettered and constrained in advance by irrelevant considerations such as an internal budget set for the maximum funding to be allocated to the client’s needs;
- failing to ensure that commissioners are trained in the legal framework for benign deprivation of liberty in the community if it is properly authorised by the CoP.
H. Continuing Health Care
the stance of Integrated Commissioning Boards towards people with Continuing NHS Healthcare status regarding care planning, with regard to
- failing to accept that care planning is amenable to public law principles at all;
- failing to accept that the NHS complaint system is not an adequate or alternative remedy to judicial review where the care plan is being impugned on the basis of breach of public law principles
- failing to treat public law principles governing community care functions, established from since before the Care Act was introduced, as relevant to their functions despite Continuing NHS Healthcare being in lieu of personal and social care under the Care Act
- making personal health budgets in the form of cash payments impossible to secure, manage or implement, for a wide range of reasons, which do not withstand scrutiny in light of the regulations;
- making split packages for non-qualifying CHC people, untransparent and unchallengeable as to the financial division
- treating additional payment agreements with care homes or home care providers as something that they are in a position to forbid;
- failing to pay restitution for breach of CHC responsibilities.