personalisation and individual budgets workshop – deployment options, safeguarding, and liability...
TRANSCRIPT
Personalisation and Individual Budgets
Workshop – deployment options, safeguarding, and liability
Belinda SchwehrBelinda SchwehrLegal and Training ConsultantLegal and Training Consultant
Tel: 01252 725890Tel: 01252 725890
Lawful deployment options• Traditional (and non-traditional) contracting by LA staff, with LA money, for
LA functions under statute – but stretching them to their fullest possible interpretation.
• Common law and s2 LGA well-being agency arrangements with LA staff, for use of the Direct Payment for community care type things and for non-community care type things (but subject to well-being policy).
• Formal direct payments for capacitated people using helpers as managers, and for incapacitated people’s surrogates. Both these have legal authority to manage.
• Formal direct payments for incapacitated people using representatives, with arrangements for them to pledge the credit of the service user.
• Indirect payments, through contract, to circles of support, voluntary organisations, user independent trusts, user controlled trusts and self-employed individuals, etc.
• Direct payments to carers for unfettered Carers’ Services and also for some community care services for the end user, within the rules about intimate services.
• S2 well-being financial assistance and service provision to individuals, subject to policy.
• Simply processing payments where a best interests decision maker has pledged the incapacitated person’s ‘credit’, in their ‘virtual’ IB.
• Grants for voluntary organisations to do things, below the eligibility threshold, or outside of community care functions.
What are Indirect Paymentsfor social care services?
• Proper LA ‘Indirect’ Payments do not require capacitated consent on the part of the service user, and are legal under the terms of s30 NAA – payment to an individual, so long as they are carrying on a trade or business, or to a voluntary organisation, such as a UIT that is a company, limited by guarantee – as agent for the local authority for welfare decision making and provision.
• An indirect payment tends to be a payment to an organisation not merely to provide the care, but to decide what to provide, and to organise it, either by buying it or employing it.
• A real life example is found in the East Sussex case involving a company limited by guarantee, directed by 5 people, the mother, stepfather, disability rights worker, advocate and LA care manager.
The drawback of a s30 vehicle…
• Unfortunately it is highly probable that the fact that the provider acts as agent for the authority, even if an individual, triggers the duty to register the provider as a domiciliary care agency – see the Care Standards Act for the trigger scenario, which is arranging (not merely providing) personal care, for people who cannot do it for themselves.
• This would mean that the indirect payment recipient had to CRB anyone it was thinking of employing to do the care work – which would actually be good from the perspective of protection, but off-putting to relatives who would otherwise wish to employ unregistered personal assistants, perhaps.
• And off-putting to government and the Care Quality Commission because of the economics of staffing up to do this much regulation?
The National Assistance Act and the relationship of agency it creates when money is given away by an LA to a
voluntary organisation in an indirect payment
s30. Voluntary organisations for disabled persons’ welfare. — (1) A local authority may, in accordance with
arrangements made under section 29 of this Act, employ, as their agent, for the purposes of that section …
any voluntary organisation or any person carrying on, (professionally or by way of trade
or business), …activities which consist of or include the provision of services for any of the persons to whom section 29 above applies,
being an organisation or person appearing to the authority to be capable of providing the service to which the arrangements apply.
The arrangements can be summarised as follows:
Thus :
i) No payments are made by ESCC either to A and B or to X and Y. All payments under the Contract are made to the Company – the user independent trust.
ii) The Company is a legal entity quite distinct from both A and B and from X and Y: Salomon v Salomon & Co [1897] AC 22.
iii) X and Y do not control the Company. They do not have a majority of the votes on the Board and, since the Trustees act by majority, nor do they have a veto.
iv) The Company is a non profit-making organisation. It can make no distribution to its members and any surplus on winding-up has to be repaid to ESCC. Thus this is not a trust that can be 'broken' by the family under the rule in Saunders v Vautier (1841) 4 Beav 115.
The judge said that that contracts with user independent trusts were a legal way to provide social
care:
See for yourselves: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2771.html
• “LA payment to a user independent trust is on the face of it, within the scope of the statutory power in section 29(1) of the 1948 Act to "make arrangements" for the provision of the relevant services. The use of a user independent trust in this context is intra vires a local authority. It is within the powers expressly conferred on a local authority by section 30(1).
What’s one of these, then?
• “A 'User independent trust' is not, as I understand it, a term of art but merely a label conventionally used to describe the key component in a certain type of arrangement. The particular arrangement under consideration in the present case can be briefly described. It consists of two components….:
What the User Independent Trust really boiled down to – a contract with a company….
The draft Memorandum of Association of the Company provides: - by clause 3 that "The object for which the Company is established is for the sole purpose of providing, or arranging to be provided support, rehabilitation, recreational activities and care to [A] and [B]." - by clause 5 that “…no Trustee … shall be appointed to any office of the Company paid by salary or fees or receive any remuneration or other benefit in money or money's worth from the Company".- by clause 8 that "If the Company is wound up or dissolved and … there remains any money or property it shall not be paid to or distributed among the Members of the Company, but shall be given or transferred to the Statutory Authority responsible under Community Care Legislation to provide support, rehabilitation and care to [A] and [B]."
The other important bit of a s30 arrangement – which is legal, now
The other component is a 'Contract for the provision of support to [A] and [B]' ("the Contract") to be entered into by the Company and ESCC.
What is described as the basis of contract is set out in clause 2. Clause 2.1 provides that: "This Agreement aims to enable as far as is possible flexible provision of care services to [A] and [B] to be arranged by [the Company]. These arrangements will in turn support [X] and [Y] in their role as carers."
Clause 2.3 provides that: "This Agreement establishes responsibilities on the part of [ESCC] and [the Company], as set out in the attached Service Specification … as it relates to the individual care plans for [A] and [B]".
The draft Service Specification provides, that ESCC will pay to the Company the funding identified by ESCC's social services department to meet the agreed needs of A and B, as detailed in their individual care plans, and that the Company will ensure that all services purchased and arranged comply with the agreed care plans.
The judge said there are effectively 6 legal ways to give social services to someone
• “The 1948 Act, read in conjunction with the 1996 Act, contemplates that section 29 services can be provided or paid for by a local authority in four different ways:
• i) by the local authority itself providing the services: section 29(1);• ii) by the local authority arranging for another local authority to
provide the services: paragraph 3;• iii) by the local authority employing a suitably qualified voluntary
organisation or individual to act as their agent: section 30(1); or• iv) by the local authority making a direct payment to the
(capacitatedly consenting) end-user under the 1996 Act.AND• iv) “It would, by virtue of section 111 of the 1972 Act, be intra vires
ESCC to make use of a user independent trust: it would, in my judgment, be intra vires ESCC to make payment of monies to the Company in accordance with the Contract.
• vi) “It would, by virtue of section 2 of the 2000 Act, also be intra vires ESCC to make use of a user independent trust: it would, in my judgment, be intra vires ESCC to make payment of monies to the Company in accordance with the Contract.
• He missed out grants to community organisations to provide services which avoid eligibility, but never mind….
But is that the end of all our problems then?
• The crucial question is – to what extent does s2 allow us to do things that we are forbidden to do, under the community care framework?
• And what about the Dom Care registration point? Arranging personal care for incapacitated people cannot merely be regarded as helping them to help themselves (see following slides).
Capacitated vs incapacitated people – why it matters for personalisation
• Whatever we call it, a ‘helping’ person, who is positively chosen or accepted by the client, with mental capacity, in the context of a direct payment, is a manager, a real representative, acting for that person as his or her agent.
• That means that the services are bought BY THE principal, ie the user, albeit with help, NOT ‘arranged FOR’ that person, which is critically important, if we all want to avoid registration law, in my view.
But informal agency doesn’t last forever
• ‘A’ the service user recognises that he or she needs help sorting out their finances and staying on top of them, and getting services
• ‘A’ recognises that ‘B’ is better at it than ‘A’ is and lets ‘B’ get on with it or takes ‘B’’s advice
• ‘A’ gives ‘B’ certain rights, and a remit, and limits and constrains ‘B’ in certain other respects
• If ‘B’ misbehaves, and ‘A’ has paid ‘B’ for the help, or ‘B’ has held themselves out for ‘A’ to rely on for advice, ‘A’ has a civil remedy against ‘B’, for breach of contract or negligent mis-statement.
• ‘B’’s right to act for ‘A’ falls in once ‘A’ can no longer manage giving instructions or revoke ‘B’’s authority
• How would anyone know ‘A’ has lost capacity?
Capacitated vs incapacitated people – why it matters
• An incapacitated person cannot appoint or choose an agent; he can only have a statutory agent appointed by the Court of Protection.
• Anyone else (– apart from a deputy or attorney – who are lawful surrogates who count AS the person - ) ie a carer, relative, spouse or agency, or trustees, contracting supposedly ‘for’ that person, do so, in law, as either someone else’s agent (ie the LA’s, under an indirect payment) or in their own name….which is kind of important, I feel, for identifying things like who should be taking out insurance, who is liable for injury to client or car worker, who is liable for debts to providers, etc...!
The Care Standards REGISTRATION consequences of small entities arranging or providing personal care
• In England, the arranging of, or the providing of personal care, by 'an undertaking', triggers registration as a domiciliary care agency under the Care Standards Act.
• There are similar rules covering the provision of nursing services (not for merely arranging of them, mind you).
• These registration steps involve expense, a level of bureaucracy and the recruitment of only registered care workers for hands-on personal care tasks.
• The staff, in turn, have to do NVQs etc - so it is not a popular route to go down, even if a 'third party' or 'indirect' payment, as it is known in social care circles, under s29 and s30 of the NAA, has been embraced by the Local Authority, to enable the close family (either informally as individuals, or from within a voluntary organisation), to be in charge of the care of someone too incapacitated to say ‘yes’ to a Direct Payment for themselves, and accept help from a relative to manage the money.
Could it be legal for third parties to be paid to arrange care for incapacitated people, without being registered as a DCA?
The definition of an undertaking in s121 CSA is as follows:“An “undertaking” includes any business or profession and
- in relation to a public or local authority - includes the exercise of any functions of that authority, and - in relation to any other body of persons, whether corporate or unincorporated, includes any of the activities of that body.
So informal groups such as circles of support or ‘Trusts’, whose ‘support’ activities amount to arranging personal care for incapacitated people, could clearly count.
Whether it is being done for profit is not an essential part of the concept – see next slide, s121(5). Neither is whether the activity being done is in the nature of a trade or profession, unlike in s29 NAA, by an ordinary contractor.
The notion of an undertaking must also be able to include private individuals, because individuals come within the definition of excepted undertakings, and that would make no sense, if individuals could not ever count as undertakings in the first place…
Care Standards Act definitions of relevance s4(3) “Domiciliary care agency” means, subject to subsection (6), an
undertaking which consists of or includes arranging the provision of personal care in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.
s121(5) References in this Act to a person who carries on an establishment or agency include references to a person who carries it on otherwise than for profit.
s(6) The definitions in subsections (2) to (5) do not include any description of establishment, undertaking or organisation excepted from those definitions by regulations.
s4(5) “Nurses agency” means, subject to subsection (6), an employment agency or employment business, being (in either case) a business which consists of or includes supplying, or providing services for the purpose of supplying, registered nurses, registered midwives or registered health visitors.
Excepted undertakings (taken from the Dom Care Regulations 2002)
Reg 3. For the purposes of the Act, an undertaking is excepted from the
definition of “domiciliary care agency” in section 4(3) of the Act if the undertaking is carried on by an individual who—
(a) carries it on otherwise than in partnership with others;(b) is not employed by an organisation to carry it on; and(c) does not employ any other person for the purpose of the
undertaking.
Reg 2(3) In these Regulations, the terms “employed” and “employment”
include employment under a contract of service or a contract for services, or otherwise than under a contract and whether or not for payment.
(ie, being engaged by an organisation, or even being grant funded, or doing it as a Representative under the new legislation for incapacitated people’s direct payments, may make no difference).
Legality of third parties being paid to arrange care for incapacitated people, without being registered
An excepted undertaking includes an individual who even though he or she arranges or provides personal care, does not do so on
a) a partnership basis, (this does bring in a notion of doing it for profit, so might let relatives or parents out, if spending their own money, I would say)
b) and is not employed by an organisationc) nor engaged by an organisation to do so, (again this lets parents
and relatives out, if they are spending their own money, but not if they are spending the Local Authority’s money…)
d) and does not employ anyone else (enables parents to buy (registered) services from agencies, but not employ people with an incapacitated person’s direct payment or an IB.)
So an individual care worker can physically provide care to someone else, and not register, if they are a one person set-up, just providing care to people on direct payments, for instance.
An individual parent, however, providing by way of arranging or employing personal care for an incapacitated person, as agent of the authority, would seem to me to be plainly outside this exception to registration….
Who doesn’t have to register?
• Here are some examples, reasoned through:
• A) a brokerage agency merely supporting a person with capacity to spend a direct payment: those people are just being ‘helped’ to make arrangements, for their own care…The CSCI page on whether registration is necessary illustrates this distinction perfectly – none of the people ‘helping’ without any need to be registered, are helping incapacitated people…
• B) parents, informally appointed by their own capacitated son or daughter, spending the person’s own benefits money – this is merely helping the person make their own arrangements, once again;
• C) parents simply spending their own money on agency services for their own adult incapacitated son or daughter, because they are an excepted undertaking - they are not doing it in partnership, and are clearly not acting as any LA’s or PCT’s employee or agent.
Examples of very inconveniently registrable entities, in my view:
A tenants’ association – eg self-funding elderly people, contributing a monthly sum towards their combined care costs, clubbing together to arrange services, including some personal care services, for some of the owner-occupiers who are now incapacitated, without lawful surrogates.
Possibly not - if all the occupants of the flats are capacitated, or if they are incapacitated with surrogates, because the association can then be seen as helping people to make their own individual arrangements.
But bound to be registrable if the Association employs anyone to provide anything that could possibly be seen as personal care.
Examples of other very inconveniently registrable entities
Parents spending their own money to employ other people to care for their relative – they score on two out of 3 of the requirements for exception from registration, but miss out on the third – employing a person. How useless is that?
A care broker acting for an incapacitated person, accessing social care monies for them and then formally contracting ‘for’ the person – the broker can’t be their agent, in law, so would probably be seen as arranging on account of the LA….even if no SLA existed between it and him/her.
A credit union, whether incorporated or unincorporated, actually contracting for personal care services, if any of the ‘investors’ are incapacitated.
Why is Welsh regulation better?Under the 2004 Domiciliary Care Agencies Regs, in Wales, NOT in England
please note, the regulations provide for a wider definition of excepted undertakings than exists in England:
Excepted undertakings …
3. - (1) For the purposes of the Act, an undertaking is excepted from the definition of "domiciliary care agency" in section 4(3) of the Act -
(c) to the extent that it arranges the provision of personal care by an agreement with an undertaking which is registered under the Act and these Regulations.
• This flexibility allows for anyone to arrange personal care without being registered, even for incapacitated people, so long as it is doing it by way of an agreement with a registered entity, ie, under s30 of the National Assistance Act, via a contract with a registered local authority.
• Therefore, unregistered indirect payment arrangements to incapacitated people under s2 Local Government Act 2000 or s30 National Assistance Act are already perfectly lawful, in Wales, because every LA can be registered and should be registered itself, as an arranger of personal care.
Points to remember when dealing with so-called ‘Trusts’ for using IBs
• User Independent Trusts are Trusts that are independent of an incapacitated user – they are a model form of ‘voluntary organisation’ for use in s30 arrangements. Their existence and origins connote incapacity on the part of the client. Therefore when the members ‘arrange’ something, they are doing it FOR the other person, not in the name OF the other person, as would a Deputy or an Attorney.
• ‘Independent User’ Trusts are wholly different – they are circles of support for service users who need help to run a direct payment, but who can, fundamentally, consent and understand that they are ‘in charge’. Calling this form of vehicle a User Controlled trust is much clearer – and as such it can be seen simply as a management agreement as between the client and the circle, granting them dominion over the person’s entitlement to direct payments.
The pros and cons of direct payments, right now
With regard to Conditions on Direct Payments, clients need to know that LAs have these powers, already…
(4) A responsible authority may make a direct payment subject to such other conditions (if any) as they think fit.
(5) The conditions referred to in paragraph (4) may, in particular, require that the payee -
(a) shall not secure the relevant service from a particular person (this means company as well as an individual) ; and
(b) shall provide such information to the responsible authority as they consider necessary in connection with the direct payment.
The law on what happens to the duty to provide, when a person takes a direct payment
Reg 8. — (1) Except as provided by paragraph (2), the fact that an authority make a direct payment shall not affect their functions with respect to the provision under the relevant enactment of the service to which the payment relates.
(2) Where a responsible authority make a direct payment, they shall not be under any obligation with respect to the provision under the relevant enactment of the service to which the payment relates as long as they are satisfied that the need which calls for the provision of the service will be secured by the payee’s own arrangements.
Why direct payments are no good for those needing residential care:
Maximum periods of residential accommodation which may be secured by means of a direct payment
Reg 7. (1) Subject to paragraph (2), a direct payment may not be made in respect of a person who falls within regulation 2(1) for the provision to him of residential accommodation of a period in excess of 4 weeks in any period of 12 months.
The new extension of the DP system to incapacitated people
• Draft Regulation 8 sets out the circumstances where an authority shall make direct payments to persons lacking mental capacity. It is a duty in just the same circumstances as it would be for a capacitated person, ie only if the authority is satisfied that it can meet the needs of the person concerned satisfactorily.
• This regulation contains steps which the authority must take before being satisfied as to the fitness of the managing recipient, one of which is getting a CRB, unless the person is a close relative of the service user. Another is consultation of people living with the service user, close relatives and any friend of theirs, involved in the care.
Criteria for choosing S, the recipient
The authority must be satisfied that the other person (i) will act in the best interests, within the meaning of the Mental Capacity
Act 2005, of P when securing the provision of services in respect of which the direct payment is made; and
(ii) appears to the responsible authority to be capable of managing a direct payment; and
(iii) in all the circumstances it is appropriate for a direct payment to be made to S.
Draft Regulation 10 sets out the amount and payment of direct payments to persons lacking mental capacity. There is a choice about paying gross or net.
I think it would be better to pay gross, where there is any concern that the managing person may have an interest in the assets of the service user remaining as healthy as possible. The authority can still levy invoices for the charges against the person and recover them from the person’s estate or through debt recovery, later.
Applying Conditions to Direct Payments . . . in the future
Draft Regulation 12 specifies conditions which shall be made in respect of direct payments to persons lacking the capacity to consent respectively. In all such cases, S shall— (i) act in the best interests, within the meaning of the Mental
Capacity Act 2005, of P, when securing the provision of services in respect of which the direct payment is made;
(ii) provide such information to the responsible authority as they consider necessary in connection with the direct payment;
(iii) if S is not a person mentioned in regulation 8(2)(a) (ie not a close relative or friend), obtain a criminal record certificate issued under section 113B of the Police Act 1997, or obtain verification that a satisfactory certificate under that Act has been obtained, in respect of any person from whom a service in respect of which a direct payment is made is secured;
(iv) notify the responsible authority if S reasonably believes that P no longer falls within section 57(5A) of the 2001 Act; and
(v) use the direct payment for securing the provision for P of the services for which the payment was made;
… and the payment may be made subject to such other conditions (if any) as the authority think fit.
What does this mean for safeguarding and CRB checks?
• This seems to me to mean that if the recipient manager is not a close relative, the LA shall insist that they get a CRB for anyone that is going to do the work.
• Ie the fact of a close relationship means that the recipient will somehow make a better choice from the small ads, without the benefit of a police check.
• Non-sensical, to my mind.• A professional broker or an organisation (rather than a
close relative or friend) chosen to be a person’s representative will have to get a worker checked, even though that worker is going to be working for a beneficiary of a direct payment.
Relationship to ISA provisionsThis fits with the ISA rules coming into force soon: Those who are closely working, or applying to work, with vulnerable adults will
be required to make an application to the Secretary of State to be "subject to monitoring" .
This will cover everyone engaging in what the Act refers to as "regulated activity" with the permission of a "regulated activity provider".
There are a series of criminal offences to:
a. prevent barred individuals from engaging in regulated activity in relation to children or vulnerable adults
b. ensure that people permitted to engage in regulated activity in relation to children or vulnerable adults with the permission of a "regulated activity provider" are subject to monitoring
c. ensure that relevant employers check an individual's status in the scheme before permitting an individual to engage in regulated activity in relation to children or vulnerable adults
Regulated activities and ‘regulated activity PROVIDERS’
For an activity to be considered as regulated activity, alongside the satisfaction of criteria relating to the activity and/or establishment where it takes place, it must be carried out by the same person, frequently or satisfy the ‘period condition’ ie intensively.
All care and supervision and training and instruction Is regulated activity.
But the definition of a regulated activity provider excludes those on direct payments and those spending direct payments on close relatives or friends:
(5) P is not a regulated activity provider if he is an individual and the arrangements he makes are private arrangements.
(6) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, P himself. [ie buying your own care]
(7) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, a child or vulnerable adult who is— (a) a member of P's family;(b) a friend of P.
[ie individuals buying care for their family or friends do not have to check the list, but can do so if they want to]
AND if the worker works for this sort of an individual, the worker does not have to register to be subject to monitoring.
Other let-outs58 Family and personal relationships
(1) This Act does not apply to any activity which is carried out in the course of a family relationship.
(2) This Act does not apply to any activity which is carried out— (a) in the course of a personal relationship, and(b) for no commercial consideration.
So if the recipient manager is not a close relative of the client, but chooses to employ someone who IS a close relative of the recipient of the service, the worker doesn’t have to register for monitoring but they do need to be CRB’d under the draft regulations for incapacitated people’s direct payments.
Got that, now?
So where does this get us to, for the purposes of personalisation?
• Anyone receiving care in their own home would be ‘vulnerable’• Anyone providing frequent care, supervision or advice, with the permission of a
RAP, would have to become registered to be subject to monitoring.• A Local Authority could report anyone, even a direct payments worker, to the
Independent Barring Board.• BUT ‘RAP’ status does not attach to anyone getting care or advice for themselves –
so a new DP worker who has never been subject to monitoring won’t be obliged to become registered with the ISA to do their job, because they are not going to be doing the job ‘with the permission of a regulated activity provider’!
• A DP client could look to see if the person they want to employ was barred at some earlier point.
• A person buying care for a family or friend is not a RAP, so is not obliged to check that the person is subject to monitoring or barred; and nor are they obliged to buy care from a person who is registered to be subject to monitoring
• A non-individual (ie a corporate structure) buying or organising care for a family member or friend is a RAP, so would have to check that a potential worker was not barred, and could not employ a person to offer to a client, unless the worker was subject to monitoring.
• A representative who is NOT a close relative must get a person CRB’d but if the employee is a close relative of the service user then that person need not register to be subject to monitoring.
Carers’ Direct Payments….• LAs can give a direct payment to a carer, for the carer to spend on
themselves (and there are really no limits to what it can be spent on) or directly, on services directly for the person’s benefit.
• But for the latter, there are rules about it needing to be for community care types of things, and about it not being intimate personal care services for the service user, unless they are ‘asking for’ them or they are absolutely essential to avoid harm, which doesn’t work very well for regular and ongoing personal care packages.
• We get round this in Richmond, by treating a person who can at least show displeasure, as ‘asking for’ the service so long as they are NOT showing displeasure.
• As a matter of policy, we don’t let the carer pay themselves for caring, down either of these routes.
• The idea that the carer is the employer, the employee and the decision-maker is just too boggling for the Revenue and for liability purposes, we think.
The exception from the prohibition in relation to intimate personal care
(2) Where a service is being delivered to the person cared for and—
(a) during the delivery of that service the person cared for asks the person delivering the service to provide a service of an intimate nature; or
(b) the person cared for is in a situation in which he is likely to suffer serious personal harm unless a service of an intimate nature is provided to him and
(i) the person cared for is unable to consent to the provision of that service, or
(ii) the person providing the service reasonably believes it is necessary to provide that service because the likelihood of serious personal harm to the person cared for is imminent;
a service of an intimate nature may be provided.
Can a payment or a favour ever be made/done by the authority, under
other legislation? S2 LGA 2000
• The Local Government Act 2000 section 2 enables a local authority to do anything they consider likely to promote the wellbeing for social, economical or environmental reasons, subject to section 3 which prohibits the use of section 2 to raise money.
• In 2001 Paragraph 6 government guidance stressed that “the purpose of introducing the well-being power is to
reverse that traditional cultural approach, (ie that LAs need specific statutory authority to do anything) and to encourage innovation and closer joint working between local authorities and their partners to improve communities”
What does it cover, in theory?2 (4) The power under subsection (1) includes power for a local
authority to—(a) incur expenditure,(b) give financial assistance to any person,(c) enter into arrangements or agreements with any person, [ie it
could be an ordinary spouse or parent, because the person does not have to be carrying on a trade or a business or be a voluntary organisation]
(d) co-operate with, or facilitate or co-ordinate the activities of, any person,
(e) exercise on behalf of any person any functions of that person, [ie be the person’s agent, with the person’s capacitated consent] and
(f) provide staff, goods, services or accommodation to any person.
What are the limits to section 2 LGA 2000?
• Section 3 of the LGA 2000 limits the use of section 2.
• Section 3 prevents the use of the powers in section 2 if there is a prohibition or restriction or limitation in or under other statutory provisions, and prevents the use of section 2 to raise money (ie make profit).
• It does not prevent a local authority from charging for services provided under section 2 LGA. Fairer Charging would not apply to anything that was not social care services provided to meet eligible assessed needs.
What can s2 be used for, then?
• The provisions of section 2 LGA, known as the well-being provisions, can be used to make payments to enable authorities to provide services or enable service users to access services that do not conform to the traditional model for the provision of social care services.
• It can I think be used to provide social care type services to people who would not be ‘eligible’ for them, in the sense of Fair Access to Care Services thresholds.
• And it can be used for funding things that are nothing to do with social care, so long as they are to do with well-being.
• Crucially, if an LA is going to use this power, it needs to have a well-being policy and stick to it. It cannot simply be used in an ad hoc way, whenever anyone needs some money.
• So it is, an additional funding stream for other things. (ie If you happen to have any spare money.)
The limits to the use of s2 • If it is used to provide community care services or funding to meet
eligible assessed needs, after a statutory assessment of a person’s situation, I think it’s clear that it cannot be used to get around any of the restrictions, limitations or prohibitions in the existing legal framework, precisely because of what s3 says.
• Examples would be the requirement for ordinary residence, under s2 of the CSDPA, for instance, to justify the purchase of personal care;
• Or the rule against LAs placing someone who needs a package of care together with accommodation, in unregistered accommodation.
• Or the rule that we do not give money to the client directly for community care services, outside of the Direct Payments Act (and hence s2 could not be used to give someone the money to spend on long-term residential care and we could not give less than we think they are going to need to secure the service.)
• Or the rule that when we contract with an individual for care under s30 NAA, they must be someone doing it as trade or profession.
• Or the rule that when we in the LA, contract with a provider, then they must be seen to act, in legal terms, on our account, as our agent.
• Or the rule that when we charge for social services, we do it according to Fairer Charging, and not without regard to that guidance.
Unanswered questions, as yet• If it is used to give people access to things that they would be
eligible for, but we give them the money before we even get round to assessing them, so that community care duties are not triggered at all (and so we can’t give a person a formal Direct Payment, because that’s derived from a care plan after assessment), can it then be used to get round restrictions in that community care framework, or the wider local authority framework?
• I think not, personally, even if we could figure out why we’d even want to. Examples:–
• giving a person the money to buy registered nurse nursing tasks; • topping up housing benefit so that the person has enough to pay the
rent, despite having been landed by us with a tenancy of non-excepted accommodation (Commissioner Turnbull’s decision);
• giving a person less money than we know they need, instead of insisting that our only offer needs to be a residential care setting. (ie cost capping the funding for home care to the equivalent residential care price, even when we know the person needs much more care).
Does use of s2 even help us get round the registration problem?
• If it is used to provide money for traditional personal care services, (whether done prior to an assessment of need, or after one), the registration problem still arises where the money is given to someone to arrange care for an incapacitated person.
• Why? – because even if you’re an individual who is being given this financial assistance, for someone else’s care, the ‘excepted undertaking’ rules don’t let you out, even if you’re doing this via any kind of arrangement with an organisation (the LA) (other than in Wales). And this would be the LA’s money you’d be doing it with, after all.
• Even if you say it’s the new kind of direct payment, for the person, despite their lack of capacity, a non-surrogate third party hasn’t got any legal rights over the money, and can only pledge the person’s credit.
• Existing TUPE and employment cases tend to suggest that in this situation the real client or employer can turn out to be the local authority, not the service user.
• In my view, the only way we avoid the registration problem is to use proper surrogates (deputies and attorneys) for incapacitated people’s Direct Payments. And even that’s a bit dodgy.
Other uses of s2 - Local Authority contracts and finance staff acting as purchasing and
paying AGENTS for the citizen…
• The client takes the direct payment in a formal sense, but makes the LA their agent for buying services, in which case the services are privately purchased services, and not community care services, albeit that the contractor and negotiator would be the LA’s staff.
• The possibilities of this route are not mentioned in the CSIP toolkit (or are merely hinted at).
• Capacitated people can make the decision to have an agent, and LAs have legal power to be anyone’s agent, but that doesn’t help for what’s going to happen to incapacitated people…
Pledging the person’s credit?
• For difficult situations where none of the above apply – ‘pledging the credit’ of the user, may well work (and I want the other kind of credit for this idea!)
• What does this involve? An incapacitated person’s relative or carer makes a ‘best interests’ decision about what they think the person needs in the way of care, and promises a provider that they will get paid.
Then the provider could get the money back from the authority, on the say-so of the promising relative or carer.
This would work if the authority was corporate appointee for the person, or simply the holder of their IB.
Pledging the credit….
This utilises the flexibilities in terms of the relative doing the organising, and avoids a formal contract for anything between anyone - which probably avoids a finding that registrable arrangements have been made, but leaves all the parties without any contract at all.
It is not necessarily a direct payment and neither is it the council doing what it traditionally does, which is to contract for services.
The liability issues would be interesting to explore though…and it is a bit surreal that it would not have any contractual underpinning at all. How very modern – not!!
Liability implications for organisations considering becoming agents or brokers
• All ‘true’ agents, acting for other people, owe duties – they are called fiduciary duties, which is a word connoting the utmost good faith, loyalty, absence of a conflict of interest, the agent not benefitting himself, secretly, etc.
• ‘Bad’ agents can be sued by disgruntled clients, just as any other professional service provider can be sued for inadequate work – if it has caused physical harm or financial loss, or is a breach of the contract between the two.
Liability to the client for those acting as brokers
• Breach of Contract (doing something not authorised at all, or doing something authorised but badly, so that a loss is suffered)
• Negligence liability for recommending a provider who was objectively able to be seen at the time as not right for the needs, or the client’s situation, but is now itself not worth suing, or not insured…..
• Negligence liability for inadequate advice on rights, insurance cover and/or health and safety or on the liability implications of the client’s owing a health and safety liability to their own worker.
• Concerns about independence and corruption, if one or two providers are consistently favoured….
Shop for Support – an example of agency and pledging the credit
• A website offers adverts for all sorts of community based local services.
• The client or carer goes online and chooses a service. • The provider provides the service ,or the opportunity or the seat, or
the subscription etc. • The client or carer tells the LA that they’ve had the service. • The LA pays the provider, and deducts the amount from the
person’s individual budget.
• Who is the contract between? • IF the client is a direct payment recipient, him/her and the provider,
with the authority simply acting as payment agent, with duties to the client in contract, notionally.
• If the client is not a direct payment recipient however, the authority is the contractor and is liable to the provider for payment, even if the client doesn’t use the service.
• Would this be good enough for your peace of mind, if you were the provider?
What do the Powers That Besay about monitoring?
• CIPFA’s update for IBs, links monitoring of the spend, with monitoring of the outcomes – which is sensible, and open to sensible contraction and expansion, according to perceived risks.
• The Audit Commission says that once the money has been lawfully spent and proper processes have been put in, the external auditor will have no role to play, regarding the way the client spends the money!
• Can these two positions be reconciled?
Reconciling the positions• I think it all depends on what LAs and the Audit
Commission regard as the law on what a Direct Payment can be spent on, in the first place. That is, if LAs set up DPs lawfully, all the AC is saying is that the external auditors don’t have to look any further.
• These statements very conveniently beg the question of what can a DP be spent on - lawfully. So there IS an issue that needs to be resolved urgently, in public.
• The current and future DP regulations implicitly require the DP to be spent on the type and extent of services which were in the care plan as a result of the assessment and which gave rise to the calculation of the level of the payment in the first place.
Monitoring – 3 reasons why the LA needs to have this set up, as part of the new
structure
• Monitoring how the money is being spent – is relevant to success of the care plan, safeguarding and financial audit
• Monitoring outcomes – is essential for decisions to ‘pull’ direct payments in safeguarding cases.
• Monitoring changes in needs – is essential if the LA is ever going to be able to cut an individual’s RAS on the basis of a change of need in the future (and it’s required under guidance)
• Monitoring brokerage (if the LA contracts it out, ever) is essential to ensure value for money
• Monitoring providers with whom the LA still contracts – is essential because of the LA’s non-delegable duty to meet need, and not be negligent.
Monitoring of Providers, including Brokers
• A few years ago the Local Government ombudsman found Blackpool City Council guilty of maladministration when an amputee died when the care worker, failed to turn up. Why? Because it knew that the contractor was generating a higher proportion of complaints than any other, but did nothing.
• The LGO said the least an authority should do is to risk-assess who were the most vulnerable clients, in light of the contractual defaults, and get them off that provider’s books.
• Failure to monitor could lead to legal liability in negligence for failing to take reasonable steps to prevent reasonably foreseeable harm….
Monitoring of Direct Payments
• There are no statutory rules or regulations about the monitoring of direct payments.
• CIPFA creates guidance which tends to be what is used by LAs.
• This guidance has previously recommended Direct Payment Agreements – for capacitated people, of course.
• This is all being reviewed, in light of the agenda and the extension of DPs to incapacitated people
• Much is said about the ‘Light Touch’ approach which will now be the system for Personal Budgets….
Liability issues for the local authority
• Public law – breach of human rights, eg allowing a person’s helper to deprive the person of their liberty in the community…£££
• Public law – breach of statutory duty – acting ultra vires, procedural unfairness, fettering etc
• Criminal law – wilful neglect, corporate manslaughter, registration offences
• Coroners’ law – system failure accusations• Civil law – vicarious, and/or direct negligence liability £££
££• Deemed employer’s liability ££££• Complaints to the Ombudsman – the LGO – for
maladministration ££
Prevention or cures – avoiding and minimising liability risks
• You can avoid breaching human rights by positively documenting consideration of the Mental Capacity Act principles and Human Rights issues at your Risk Evaluation/Enablement panel – the people doing the decision making at that stage, need to know about Best Interests, the Code of Practice, the meaning of incapacity, and for Human Rights, article 2, 3, 5, 6, 8, 9 and 14 – a day’s training on that would be a good idea.
• You can avoid acting ultra vires by ensuring that your scheme fits within the legal framework and decided case law – legal advice is needed
• You can avoid criminal law charges by acting reasonably and keeping your actions under scrutiny, because you have to be VERY bad to justify prosecution.
• Registration offences can be avoided by asking CSCI whether they have any objections first to structures or deployment options not registering. Your director or lawyer can write those letters.
Avoiding or minimising risks• You can avoid embarrassment in a Coroner’s Court by
explaining why capacitated people can’t be forced to do things by councils – so death by a person’s own capacitated hand is not ‘system failure’. You can minimise risk of negligent death of a client by taking care to consider exercising intervention powers and only not exercising them, with good evidenced based reasons.
• You cannot avoid vicarious liability for employees’ negligence, unless they act completely outside their sphere, or criminally. But supervision should stop this.
• You can minimise the risk of being found directly negligently liable for injury to clients by rigorous and frequent monitoring and documenting the outcomes, and by understanding how safeguarding adults fits around and underneath the whole of Personalisation…
Avoiding or minimising liability risks
• You can minimise the possibility of deemed employer’s liability for people’s PAs by explaining in clear terms to anyone with a DP that they or their Representative will be the employer in law, and what that involves. If you offer training, make it clear that it is free (you cannot sell it to members of the public). It might be marginally safer to ensure that organisations you direct people to for payroll or other employment related help are only grant funded by the council, not acting under contract to you.
• You ought to be able to minimise risk regarding the ombudsman by having a good reason for doing things and having a process which is robust – maladministration complaints are basically about cock-ups, not illegality.
Safeguarding Issues – here are some risky uses of IBs – we have to think of how to avoid these things
or minimise the risk
• The person whose direct payments money has been spent improperly by their helper
• The person whose direct payments suddenly make them the most popular person on a Friday night down at the pub…
• The person whose accommodation provider eg, parent, etc, won’t let the care workers in…
• The person who won’t take advice about liability for his or her staff and who therefore skimps on training, putting them and him/herself at risk…
• The person whose chosen care workers are not good enough to manage risks safely and who don’t understand that a request or an instruction, from a person who is not fully compos mentis, ought not always to be followed…
• The person whose own family carers are themselves incapacitated• The person whose carers behave objectionably, making it
impossible for the person to get care workers to take the job on….
The structure for dealing with these risks, within the context of personalisation
• At the assessment of need stage, a professional may disagree with a client or carer’s view of risk
• At the care planning stage, a professional may disagree with the client or carer’s view of what will meet need
• At the stage of allocating the RAS, a professional may disagree with the indicative guidelines in an individual situation based on what they know from experience of this or other client’s cases
• Vetting a potential representative will have to be done in a similar way to safeguarding – the client will be incapacitated, no IMCA may be triggered because we are talking about home care and direct payments, not a care home placement, but you still need to allow a person to disabuse you of a bad first impression, and that requires a process of some sort, and documenting of reasons
The structure for dealing with these risks, within the context of personalisation
• At the stage of signing off the care plan, and deciding on the deployment model – direct payment or indirect payment or traditional commissioning – the LA may impose conditions on the client, the representative, the surrogate, the provider or the organisation brokering the care, because the default model is always there in the legal framework – the LA must decide what it is prepared to do, and the direct payments framework, the framework of an organisation acting as the authority’s agent, and the traditional contract basis of ordinary commissioning, all provide for conditionality at the behest of the LA. The documentation is critically important for safeguarding purposes.
• Imposing sensible conditions on direct payment holders will be uncomfortable but essential.
• At the stage of reviewing the care plan, the model can be changed if outcomes are not being met, or the way in which they are being met is regarded as unlawful or likely to lead to harm to someone – client or worker.
• Safeguarding Adults processes run alongside and underneath this system, regardless of whether someone is getting a care plan or not – Safeguarding Adults is merely assertive care planning, once an allegation of unmanaged risk of abuse is made, with the Mental Capacity Act remedies via the Public Guardian and Court of Protection there, as a fall back.
What lawful interventions are open to local authorities?
• Making a police referral• Advising and assisting people, who are not yet
incapacitated, with regard to accessing legal advice – helping people to help themselves, effectively.
• Acting as corporate appointee for the management of incapacitated people’s benefits (when no-one else is suitable)
• Introducing people to Private Client departments in solicitors’ firms so that those with assets can get proper surrogate management (albeit at a cost)
• Contracting with Supporting People Providers for supporting clients to manage their own money, as a service that helps to maintain a tenancy.
What lawful interventions are open to local authorities?
• Actually volunteering as someone’s litigation friend to initiate legal proceedings to undo ‘dodgy’ transactions, or get injunctions against those who are bothering someone, or evicting those who have moved in on someone with a view to financial gain.
Is this anyone else’s job? Yes, sometimes it’s the Official Solicitor’s….
• Why might an LA do it instead? Where the person or transaction or problem is affecting or obstructing the delivery of social services – and not otherwise, in my view.
• Using the Mental Capacity Act 2005 – holding people to account
• Applications to search the register, to object to registration and to cancel LPAs etc
• Applying to become a Deputy
Finally….
• Thanks very much for listening and contributing
• Consultancy about the legal framework from my business costs £150 an hour + VAT!
• That’s cheaper than a judicial review or a negligence action.