The Care Act

Issues likely to lead to judicial review

Presented by: Belinda Schwehr

For Care and Health Law

belinda@careandhealthlaw.com01252 725890 / 07974 399361www.careandhealthlaw.com

© Belinda Schwehr, 2015

Why read this presentation?• Advisers who are relatively unschooled in social care law need to understand how this

particular branch of the law works: this is public law, and it’s full of margin for the unique and unpredictable situations in which the job has to be done – it is hard to bring a successful challenge against a council in this sphere, even though when it happens, lawyers think it will change the world. Social services staff are very poorly taught about the interplay between statutes, guidance and caselaw at the degree stage and receive hardly any CPD in it, so the Care Act has been a bit of a shock for them.

• Public law duties are not the same as negligence: councils have a duty TO care, rather than OF care. That is, there are statutory duties to discharge, and that must happen - even if the department runs out of money – the duties are council corporate duties; and if they are not done, the council can be challenged – but not just for doing them in a less than careful way or poorly. That is what the complaints system and the ombudsman are for.

• The courts have actually given councils protection against actions in negligence, or damages for breach of statutory duty, in the social work managerial context – even in safeguarding - for public policy reasons. Councils neither choose to take on these duties – they are mandatory – they are underfunded by central government – usage of tight resources is not normally seen as justiciable – and there is no equivalent to the function of assessment and care planning and provision in private law, in contrast to the position of those in the medical profession and working in the NHS.

© Belinda Schwehr, 2015

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© Belinda Schwehr, 2015

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Things to look for in local practiceWith statutory duties and discretions, the bigger risks arise from a council• Not doing them at all, or taking unfeasibly long about it

– Eg: not providing advocacy where it is acknowledged to be necessary – Not offering direct payments for a particular client group not excluded from the opportunity– Stretching the assessment phase out, by offering prevention again and again, and never saying when they will get to an

eligibility decision• Not doing them sensibly, or in accordance with the guidance, without a good reason!

– Eg: running a waiting list for a scarce resource based on alphabetical order instead of need– Not giving reasons for why an offered package or budget is considered to be enough..

• Not doing them legally, within the words used in the Act or Regs – or ignoring the statutory purpose– Failing to allow a person to require the involvement of a nominated person in a decision where this is required, or

regarding their relative as their informal supporter without getting the person’s consent or making a BI decision.– Imposing a condition on a direct payment recipient that negates the whole point of the offer – choice/control

• Fettering discretion or not doing decision making fairly, so far as procedural fairness rules are concerned... – Failing to consider giving a person direct payments to spend on a close relative in the same household– Not allowing a person to make representations in respect of their position on ability to achieve or what is wrong with

the suggestion that a service available for free locally could appropriately meet a person’s needs.

And with a new piece of legislation, in an era of government cuts, the real risk comes from Not understanding what’s changing, or where to check that out – staff don’t know what they don’t know, or when they are on a legal wobble…• Not following guidance because the staff are not familiar with it – there is no culture of self starting for study

purposes in adult social care…• Not being ready to be challenged, and thus driving people to visit likely looking lawyers…lots of councils are

run on a command and control basis, with staff genuinely afraid to raise questions about legality, and that spreads to the relationship with customers, in the end.

What’s the position about old and new clients?People who are already receiving services and support (including direct payments) prior to 1 April 2015 will continue to receive such support and services under the old law until the local authority completes a review of that person’s case, at which point the new law will apply in respect of that person. In practice, such a review can have one of two basic outcomes: • the local authority concludes the person does not have care and support

needs that they are required to meet under the Care Act (for example because needs do not meet the eligibility criteria), and the authority does not intend to meet any of the person’s other needs; or

• the local authority, having concluded that the person does have needs and that they are going to meet some or all of these needs, starts to do so (assuring itself that existing arrangements fully comply with the Care Act, making any adjustments as necessary).

• In my view, any change to the content, or value of the care plan, means the plan is changing and will need to comply with the revisions section (s27) and any plan – even if not actively changing, will need to comply with s25 – the requirements for a lawful Care Act statutory plan.

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What the DH requires of councils now• Reviews of existing care and support plans will usually take place at least

annually. Therefore, it will usually be most pragmatic for the transition under the Care Act to take place at the point of the planned, regular review. In any event, local authorities must undertake a review within one year of the implementation of the Care Act (i.e. before 1st April 2016).

• If they do not, the Care Act will apply as of this date and anyone who has not been reviewed will be treated as having their eligible needs met under the Care Act until the local authority does, in fact, complete a review and reach a decision in accordance with the Care Act.

• Local authorities must not use existing legislation to underpin care and support planning or provision after 1st April 2015 in respect of cases other than these transitional cases. The purpose of the saving in the Order is to enable local authorities only to continue with existing arrangements pending a review, so as to plan a managed transition over the first year.

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First contact foolishness – nb a non-statutory stage• Not reconfiguring First Contact services, so as to have at least some senior qualified or very

experienced staff up there – with antennae, for sensitive decision-making confidence, and legally aware supervision… regarding for example – who should and could not be offered Supported Self Assessment in terms of capacity; who needs a face to face assessment; who needs an advocate, given their difficulties and the stance of their relatives?

• Setting up implicit thresholds to getting past this point, on to assessment ‘proper’ - like one’s IQ, severe or enduring mental illness, having a diagnosis, etc

• Getting the level, skill factor or even the basic question of urgency wrong for a proper assessment beyond your ‘front door’.

• Not at least offering people ‘a supported self assessment’ if they do have capacity to take part in one, and wish to, (everyone having understood what an SSA really is and is not!) and not allowing them to say who they want involved, and involving them in the process as per the statutory rules.

• Turning people away at this or an even earlier point, without identifying whether you are A) purporting to be actually denying them an assessment and if so, why, B) saying that they have just actually had one from you (without their realising it) and that they’re not eligible – even though some will have deserved an advocate - orC) just saying ‘Try this first, and let us know whether it works....’ without following up

• Saying no on the basis of an ignorant view of ordinary residence rules• Saying no on the basis that they’ve not moved here yet...• Saying there is no point because ‘we don’t do shopping/cleaning/meals/transport etc’!© Belinda Schwehr, 2015

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Advocacy accidents

• Failing to spot someone would experience substantial difficulty, at the right point.• Not having commissioned enough, so that assessment or other stages are delayed. It’s a

duty! • Failing to appreciate that supported self assessment (as defined!) could be offered to the

person if they actually had an informal involver or, in default, an advocate – all it takes is sufficient capacity to take part – that’s not what the guidance says, mind you!

• Forgetting to get the consent of the person to the informal support from their informal involving person – most councils will assume people’s relatives are wanted as supporters

• Finding willing involvers to be inappropriate for obviously challengeable reasons• Finding unwilling involvers to be appropriate, regardless, and thus failing to appoint• Forgetting that alongside advocacy, a person has a right to require a council to involve a

person of their own choosing, and that wider other people are best interests consultees of people lacking capacity, in whose wellbeing they are interested, unless or until a council decides that to be inappropriate or impracticable...

• Overlooking the exceptions to the exception: ie where, notwithstanding the existence of a willing and appropriate informal involver, councils must appoint an independent advocate in any event!! (conscientious as opposed to rabid material disagreements)

• Appointing people who don’t have any training, or knowledge, or working towards the new qualification within a year...

• Appointing insufficiently independent people – tricky because the regs fail to make it clear as to whether it is a contracted advocacy organisation that must be independent, and not otherwise working for the council - or the advocate, him or herself, in person….

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Prevention Pitfalls

• Signposting, without finding out if there are actually vacancies or services out there still!• Assuming that people can buy their own: no good if the services are not affordable to

ordinary people – a perverse disincentive to take personal responsibility, if it’s cheaper once one is eligible

• Not focusing on whether the ‘prevention’ is to prevent one from becoming eligible, or to prevent their becoming even more eligible; or whether it is to reduce their eligible need or to reduce it more so that they are not eligible. This matters because of where the council must put the service: in the plan, which leads on to the chance to take funding as a direct payment, or on the way to an assessment, as an offer to all those ‘suited’ to it for (eg equipment, re-ablement or counselling for motivation). If it’s in the plan, it counts towards the independent budget, unless specifically excluded by Regs.

• Not listening conscientiously as to why a person won’t avail themselves of preventive services, but then taking that into account as relevant to significant impact considerations at the eligibility stage. If councils want to be brave and take it as relevant to significant impact, they’d need to make sure that there was no very good reason, or only a completely indefensible one, like racism, for the person’s having turned down access to preventive or universally available services which were available at the time.

• Getting in a mess about what can be charged for if merely preventive, and what can’t be. There is a separate charging power in the Act and Regs for prevention services, so in principle, councils CAN charge – but not if it’s reablement or intermediate care (a programme…) and nb they can’t charge for equipment they provide in any circumstances. Different if an outside provider is selling the equipment to the person, eg in extra care.

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Fairness fudges: due process rulesThe Act does mark a change in due process requirements – an increase of paperwork and procedural transparency and fairness, in some areas, and a lessening in others, which is of legal interest.

There are legally binding statutory provisions and regulations requiring written reasons - for decisions on eligibility (positive or negative, interestingly), and written reasons for explaining why certain needs will not be met, even if eligible, written reasons for saying no to giving a child an adult’s assessment for transition purposes etc. but no duty to explain in writing why the personal budget amount is considered enough adequately and appropriately to meet the needs. In other words, no reasons for believing the budget to be sufficient.The guidance says councils ‘should’ give reasons, however, and the appeal system would not function without reasons having been aired.

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Assessment aggravations and eligibility embarrassments

• Taking a person’s refusal of assessment at face value instead of following section 11.• Not covering all of the domains that an assessment should cover, in the name of minimum

process or the client’s say-so. The client is not the real decision maker, even if fully capacitated, or even when they’re saying that they’ve not got a particular problem with a given domain within an assessment.

• Overlooking the definition of inability – it is a stretched one. So even if staff start out focusing on the person’s assets and strengths, it doesn’t mean that they don’t count as unable to do something – for instance, if they are getting assistance, so don’t see their difficulty as a big problem….many people will have not been told this!

• Overlooking the need to be carer blinkered in relation to ability or impact – ie forgetting that staff must assess the person’s ability and the impact of inability, without regard to the existence of current help.

• Appearing not to be taking any account of desired outcomes or the person’s own view of the impact arising from the difficulty – this would make it difficult to exercise discretion about meeting non eligible needs at the planning stage too.

• SMT running a panel that goes as far as second guessing staff’s decisions on eligibility but not giving the workforce any steer on what is significant impact on well-being, or how to measure it.

• Paperwork with no spaces for the client/involver/carer/any relevant person’s advocate to assert a different view. © Belinda Schwehr, 2015

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11More elaboration to which councils must have regard because the guidance says so – but is it even correct?

“maintaining a habitable home environment” [note: no reference here to the adult’s ability to do this for themselves….cf the other domains in the regs…]The guidance says this: • Local authorities should consider whether the condition of the adult’s home is

sufficiently clean and maintained to be safe. • [ie consideration of their environment, not the person’s active capability]. The 2 examples in the guidance follow this approach, and treat the fact that the carer

does the cleaning as enabling no finding of eligibility on this domain. Of course if the carer is able and willing then there is no duty to meet the need, but

that doesn’t mean that the person is not eligible in a s13 context. If the person is eligible based on inability to achieve in two or more areas, plus

significant impact on wellbeing, then that is an important finding for process and paperwork under the Act.

The guidance is probably not lawful here: the regulations make needing assistance including even prompting key to the decision about inability to achieve. Plus the guidance itself says to ignore the help from a carer, so is not even consistent with itself.

© Belinda Schwehr, 2015

Ignoring this part of the guidance would be fatalPara 6.106 The second condition that authorities must consider is whether the adult is “unable” to achieve two or more of the outcomes set out in the regulations. Authorities must also be aware that the regulations provide that “being unable” to achieve an outcome includes any of the following circumstances, where the adult:• is unable to achieve the outcome without assistance. This would include where an adult

would be unable to do so even when assistance is provided. It also includes where the adult may need prompting, for example, some adults may be physically able to wash but need reminding of the importance of personal hygiene;

• is able to achieve the outcome without assistance but doing so causes the adult significant pain, distress or anxiety. For example, an older person with severe arthritis may be able to prepare a meal, but doing so will leave them in severe pain and unable to eat the meal;

• is able to achieve the outcome without assistance, but doing so endangers or is likely to endanger the health or safety of the adult, or of others – for example, if the health or safety of another member of the family, including any child, could be endangered when an adult attempts to complete a task or an activity without relevant support;

• is able to achieve the outcome without assistance but takes significantly longer than would normally be expected. For example, an adult with a physical disability is able to dress themselves in the morning, but it takes them a long time to do this, leaves them exhausted and prevents them from achieving other outcomes.

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© Belinda Schwehr, 2015

Care Planning - budget bungles and RAS wrangles• Having a Resource Allocation system that is based on fantasy figures and global deflations and 0 pounds for points

relevant to the outcomes in the regs, without any good reason. • Not making it clear that the indicative allocation is only a benchmark, not an offer, much less a take it or leave it

offer!• Funding up to the cost to the authority, and never any more than that.• Ignoring s25 on what a care plan must have in it. This is not optional.• Ignoring Choice of Accommodation legal requirements or misinterpreting them – eg a policy that we “keep people in

the borough” by reference to the rate there. The Annex on Choice is explicit on taking the rate in the area chosen even if it the move is not “needed”.

• Running a different sort of a RAS for care homes: an arbitrarily low allocation for people needing that response undermines their choice rights, and risks extracting top ups inappropriately

• Running an online purchasing system for framework providers which generates offers against anonymised needs, but treating the lowest suitable offer as the personal budget and anything more as a top up.

• Offering the deployment route of a direct payment without having sorted out how the direct payment version of a PB will really need to be run – capacity considerations, an Authorised Person scheme, signing off of conditions for the award of a direct payment, providing free support or admin services to attract people to this option vs extra budget to ensure people can choose a manager?

• Not monitoring whether DPs are working, and thus spotting safeguarding issues in a timely manner.• Signing off care plans with far too little response or money, to meet needs, with no evidence basis.• Not commissioning services, or funding DPs, for objectively reasonable preference or sufficiency and holding

customers to that inadequate discharge of responsibility = “you can make the savings for us!” • Saying no to funding a direct payment on the basis of evidence as to why it costs a bit more for an individual than for

the council to buy a particular service, or ‘No’ simply because of the cost. • No reasons given for why a given offer of anything is rationally believed to be enough to be appropriate.• Ignoring the MCA at the care planning stage and getting into more Somerset or Cheshire West or Milton Keynes

moments• Ignoring any other relevant and applicable legal principle, including human rights.

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Direct Payment disasters• Giving them to people who lack capacity to request a direct payment, direct to them – and then

regarding them as accountable for misuse – illegal since 2009, as it happens!• Refusing people a direct payment when they have enough capacity to request one, without a good

reason (eg the council doesn’t like their nominee – that’s not enough of a reason even under the new law.)

• Thinking that the council could buy the service for less, because it’s been so good at crushing the market with its dominant purchasing position – and offering less – or offering everyone an Employer and PA rate, even if they are going to use an agency – or a flat rate regardless of the skill factor that a PA would objectively need, such as required for deafblind people…. the offer has to be RATIONAL!

• Getting the role of nominee mixed up with the role of the authorised person to whom the council can give the direct payment separately and accountably

• Treating the presumption that cohabitees and close relatives in the same household will not be doing the work that is funded, as a rule, and never considering necessity, as required by the fact that this is a discretion in the legal framework.

• Not having a clear policy on when or if or in what circumstances, the council will ever fund the administration of the direct payment separately, and/or by close relatives in the same household

• Not ever imposing conditions, so not managing public money properly• Imposing conditions that are unreasonable: like having a payment card as the only option when it’s not

even in a bank account in the person’s name• Paying net, when there is a really good reason to pay gross• Allowing monitoring outcomes to go unaddressed, despite concerns• Not ever recouping unspent money from one particular group - discriminatory• Recouping it too savagely without regard to all relevant circumstances• Not offering s117 clients direct payments unless they have got access to legal aid to use JR!!

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Carer crises• Refusing to treat someone as a carer because they are not doing ‘enough’, in the

council’s opinion…that test has gone!• Telling them that the law is that they must care, or being economical with the truth that

councils need really them to care but have to back fill for meeting eligible needs, if a carer doesn’t want to any longer

• Applying the wrong criteria to them – the regulations have two sets – different ones – easy to overlook that fact.

• Thinking that they can still all just be signposted to a hub for carers’ services – without making it clear that they can insist on an eligibility decision as well that is personal to them

• Trying to give carers a sum of money that has no rational evidence basis, and which would only be appropriate if there was a discretion to meet needs as now, instead of a duty to meet eligible assessed unmet needs of carers.

• Budget limiting the carers’ Resource Allocation system • Ignoring carers of people in care homes – practical and emotional support is enough.• Ignoring carers of people with CHC status• Mixing up the carer charge with the service user or recipient charge in a case where the

person needing the service has consented to receiving replacement care as if it were a carer’s service – only the recipient can ever be charged.

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Ordinary residence ordeals• Not distinguishing between s117 people and everyone else – it is a bit different and all in a mess and all

mired in the transitional provisions in any event.• Not deciding what you think specialist accommodation IS or means: goodness knows what we are

supposed to do about this definition of one of the types where deemed o/r continues: ‘where personal care is available if required…’??

• Not understanding that continued o/r [probably!] turns on the client’s needing personal care, not just care and support

• Not being consistent across different client groups as to whether social care clients who move into personally contracted for accommodation (tenants and licensees) are covered and continue as o/r – it seems to us that Shared Lives clients do move as licensees or tenants, in most cases, because of the way these arrangements are structured in the real world, and will qualify under that rule, not the Shared Lives rule…

• Not understanding the role of incapacity or solutions to it, for those wanting to move as tenants (deputyship leads to accommodation arrangements made privately, not a placement.)

• Not appreciating that the need for the specified type of accommodation has to be put into the Care Plan before O/R can be seen to continue – although this is BOUND to be put right soon, I would suggest, via an amendment to the regs.

• Putting that need in the care plan before the cost of the care has been worked out, and a provider has been found, in complex care and support provision arrangements, and thus falling into dispute in specialist cases where the care is very costly – leading to the spectre of top ups for care, or local out of area providers going into private sector specialist supported living facilities and destroying the viability of them. How cunning!

• Leaving a client in a provider’s setting without an interim contract, because of a dispute….• Not deciding whose job it is to decide, in house.• Not abiding by the new dispute resolution rules and time frames• Mixing up choice rules and o/r rules, just because they appear to be structured in the same way.

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Choice and top-up terrors• Thinking that public procurement obligations for social care require OJEU levels of transparency or

could ever trump ‘choice’ rights• Having an approved provider list and not letting people choose outside that list.• Thinking that the choice right simply passes to the relatives, if the person is incapacitated – the

council is the best interests decision-maker.• Just offering a list of registered providers to those needing timely hospital discharge: it’s the

council’s job to point to the ones that are considered suitable by the authority, which is the decision maker on that particular pre-condition!

• Getting confused about whether the choice right applies to the type of accommodation or setting - instead of the provider of that specific type.

• Thinking that the council can take a figure out of thin air and say that anything above that is a top-up – even if the figure is arbitrarily low.

• Possibly, taking the guidance at face value on there only needing to be one home at the rate offered, for it to be lawful to regard higher prices as top-ups. Offering one home in the area that takes the asserted rate for the package even if it’s horrible - and even if it isn’t, has no vacancies at the time....

• Not using the usual rate in another authority where that’s the person’s choice – and there, of course, the concept of usual rate (ie some notion of average) still applies, because the person won’t have a personal budget for the meeting of needs in another borough.

• Letting the providers double charge by not taking steps against private top ups for things already covered by the council’s contract...

• Not vetting the offeror of the top-up for their own financial standing: it’s the council’s risk – and leaving the client insecure for want of payment!

• Not contracting for the whole amount when the council is acting as the buyer – the rules require it© Belinda Schwehr, 2015

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Reviews risk-running• Not getting everyone onto a Care Act care plan in one year – ie by 2016• Ignoring the regs and guidance as to the longest anyone should go without one, – the

‘expectation’ is annually.• Mixing up service or performance reviews and/or FEES reviews, with statutory review of

whether the package is working to deliver the meeting of needs and outcomes – eg sending out ‘cost brokers’ to do the latter!!

• Ignoring providers’ evidence from reviews and not organising your own or otherwise adopting theirs as yours, formally.

• Rejecting requests for revisions of the plan when it would be unreasonable to do so, on a clear change of circumstances, for instance.

• Automatically refusing review because someone has asked for too many • Revising a plan so as to change the manner of provision or the provider, whilst

contending that there is no suggestion that the person’s actual needs are thought to have changed, without doing a proportionate re-assessment – this is very likely to attract attention because of the old legal principle that care plans are sacrosanct until a lawful re-assessment – particularly where there is a disagreement that the new ‘method’ will feasibly work, or as to whether it will meet the client’s outcomes – and in particularly where the new provider involves a change in someone’s complex personal care provision, or in the place where they actually live or have had long term or extensive day services (because of human rights).

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Charging catastrophes

• Charging a person more than it actually costs the council to provide them with the [discounted] service

• Charging a carer for the service that is actually provided to someone else: RESPITE, SITTING, etc

• Charging for re-ablement in the first 6 weeks, or charging for equipment supplied or commissioned for supply by the council at all, or for adaptations under £1000

• Charging a person based on their joint assets instead of half.• Refusing to deduct disability related expenditure from a person’s means – if the

charging policy takes account of disability related benefits that are non means tested.

• Treating people’s spend on existing debts as depriving themselves of their assets.• Trying to sue a person with grave cognitive impairment without a litigation friend in

place.• Suing a person for care home related charges without asking them to give the

council a deferred payment charge • Not grappling with the potential Consumer Credit Act aspects of non land related

offers of security.

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Safeguarding sloppiness...• Ignoring the client who actively prefers the life they have, even though they know

their loved one’s behaviour is not nice. Their best interests are for them, not the council, in this country, because of human rights. Of course they may be vulnerable in terms of cognitive functioning through dependency, duress, and intimidation, but there are different routes for taking that possibility forwards.

• Ignoring a suspected neglecter or abuser, without having it out with them: they are an MCA best interests consultee unless you decide otherwise, but you have to be up front about it.

• Assuming that you don’t ever have to do a s135 or a Public Health Act removal just because the 1948 Act provisions have been repealed. It’s not always a lifestyle choice, if it’s incapacitated insanitariness, and not knowing what COULD be done is at the very least, maladministration in the safeguarding context.

• Ignoring property protection duties for those in care homes or hospital if they can’t manage to take care of their goods or pets

• Not ever asking the SAB to use the information sharing power that s45 has provided, in support of ordinary level safeguarding.

• Thinking that self neglect is outside the remit of safeguarding: if it’s incapacitated self neglect, it MUST be in.

• Delegating safeguarding formal decision making in breach of the Act.© Belinda Schwehr, 2015

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Thank you for reading this!• Care and Health Law offers legally neutral and well informed training, nationwide,

through a team of trainers, who are all practitioners, trainers or social care lawyers. • We also offer

• ordinary residence consultancy, • alternative dispute resolution services • Care Act compliance consultancy about policies, protocols, and revisions of individual

packages or budgets (eg independent living fund revisions) • The courses suite and the rates and our quality assurance policy and rationale are all

able to be found on the Training and Webinars page of www.careandhealthlaw.com• We never give an opinion about what the law means, without having a reason to

offer up for it.• We believe that Legally Literate Leadership is an idea whose time has finally come,

within adults’ social care…

Belinda Schwehr, Care and Health LawYou can contact me on belinda@careandhealthlaw.com, or 01252 725890 or 07974 399361

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© Belinda Schwehr, 2015