For an update by Julie Morgan AM on the Independent Care Assessment process – click here.
An important ombudsman report has outlined key considerations to be taken when it becomes necessary to move a care home resident (in this case one with dementia).
The resident (aged 91) was funded by a local authority and her home had been chosen as it was near to her husband (aged 90) whose health made it inappropriate for him to travel long distances to visit her. Unbeknown to the husband the home had been in discussions with the Council for over two years about funding levels. In July 2017 it told him that his wife would need to move (as a registration change would prevent it from accommodating patients with EMI needs). What followed was a hasty search by the husband for a suitable care home for his wife – while the local authority acted with insufficient urgency. When the husband chose a care home above the local authority ‘going rate’ he was required to ‘top up the fees’ which the ombudsman thought to be inappropriate: that the ‘grounds on which the Council argued against the suitability of the [home chosen by the husband] (and the appropriacy of the alternatives) were purely financial and not based on any clear, up-to-date sense of precisely what [his wife’s] needs were’.
To access the full report, click here.
Photograph of ‘Maen y Gaseg’ by Richard Jones -@lluniaurich
Think Local Act Personal (TLAP) has published guidance concerning the use by local authorities of pre-payment cards for direct payments / personal budgets. TLAP describes itself as a ‘national partnership’ that includes the Department of Health and Social Care, the Social Care Institute for Excellence and the Association of Directors of Adult Social Services (ADASS) – so this is guidance that courts would consider to be ‘weighty’. The guidance can be accessed by clicking here.
The guidance formalises a report published in 2017 by the Personal Independent Living Strategy Group. It states in clear terms that people cannot be forced to use such cards – something that many local authorities seemed to have trouble understanding.
The 2017 research found that:
- local authorities were spending over £1.2m a year on fees and costs to operate the cards and that two commercial companies dominated the market;
- some authorities were ‘imposing the cards on recipients of direct payments contrary to statutory guidance’;
- the number of people using such cards was set to increase rapidly, as many authorities were making them ‘their default offer’;
- the cards enable authorities to view all transactions in ‘real time’ (raising significant data protection concerns) and to tightly control their use;
- some local authorities were placing blanket restrictions on cardholders using the payment cards to withdraw cash despite clear guidance from the Department of Health that this was not acceptable;
The guidance from TLAP is to be welcomed. It is worth reading in full but includes:
- Payment cards should be an active choice made by the person from a range of meaningful options, including a traditional direct payment paid into an account managed by the person or their representative;
- Each year the local authority should publish a statement detailing the numbers of people they provide personal budgets to, the proportion who use payment cards, and the fees incurred;
- There should be no default restrictions on the places in which and services for which the card can be used;
- Any restrictions on the use of the care funds associated with payment cards should be individually placed and be proportionate to specific, identified, documented and assessed risk.
 Personal Independent Living Strategy Group Payment cards must support not restrict choice and control for users of direct payments (2017).
 For relevant sections of the statutory guidance see for example paras 12.58 – 12.59.
 Statutory guidance’ para 12.59.
 To access the guidance click here.
 Here this is simply restating what is in the statutory guidance paras 12.58 – 12.59.
For many disabled people the cut backs in social care support have been accompanied by steep increases in local authority charges exacerbated by the freezing of threshold allowances for the last nine years. This has meant that any increase in their income has simply been appropriated by their local authority.
Charging is – in effect – a tax on disabled people and it is resulting in great hardship. A 2017 survey commissioned by the Independent Living Strategy Group found (for example) that 40% of people receiving social care support had experienced a substantial increase in the level of charging over the past 2 years and that for a third of the respondents, the increase had been over 50%. For 43% this meant that they had reduced spending on food and 40% had reduced what they spent on heating.
There are rules about how much a local authority can charge (and for what) as well as rules about the process it must follow when seeking to increase charging rates. There is evidence that some local authorities are not following these rules: three requirements that appear to have been neglected on occasions are:
1. Before a local authority decides to make a significant increase its community care charges, it must undertake a valid consultation exercise – as to what it is proposing and the alternatives that it has considered. This is an obligation of common law as well as a statutory obligation – for example to demonstrate that it has had due regard to its Public Sector Equality Duty under Equality Act 2010 s149.
2. Any general increase in charges produced by a policy change of this kind, must result in a personal reassessment: the local authority cannot simply send out demands for increased sums. There are a number of reasons for this requirement. Local authorities are, for example, under an over-riding obligation to ensure that their charging processes are ‘person-focused’ and that individuals are not charged more than it is ‘reasonably practicable for them to pay’ (para 8.2 of the statutory guidance). There is also, of course, a real risk that sending out demands for increased payments – without a person-focused discussion – will result in some disabled and elderly people simply terminating essential care and support on the grounds that they believe that it is unaffordable.
Local authorities are under a duty to meet the eligible needs of disabled people. They do not have to charge (but have a discretion to do this if they wish). A discretion does not trump a duty. The pre-Care Act 2014 guidance said this in explicit terms:
Once someone has been assessed as needing a service, that service should not be withdrawn because the user refuses to pay the charge. The council should continue to provide the service, while pursuing the debt, if necessary through the civil courts.
This obligation was also emphasised by the ombudsman. In this context the Care Act 2014 regime would appear to be no different.
3. In R v Coventry City Council ex p Carton, (a case decided prior to the Care Act 2014 coming into force) the High Court held that it was irrational, unlawful and unfair for a council to have a charging policy which treated income (specifically paid to cover night time care needs) as available to pay for care charges relating to daytime care services. Although the statutory guidance to the 2014 Act (at annex C paras 39 and 40) makes tangential reference to this issue, it falls short of the automatic disregard for night time payments applied in Carton. Some local authorities have interpreted this as an invitation to treat income specifically designated for night time care (ie a PIP or DLA payment) as income available for charging purposes – even if the person’s care and support is only provided during the day. It needs to be restated that if it was ‘irrational, unlawful and unfair’ for the income to be taken into account prior to the CA 2014 – it is (in the absence of statutory authority to the contrary) irrational, unlawful and unfair to do this under the Care Act 2014.
For a general note on how care charges can be challenged – click here.
 It is difficult to put a precise figure on the recent increase in charges, as the number of people receiving support varies and accordingly the income derived from charging – see Association of Directors of Adults Social Services ADASS Budget Survey 2018 p.22 (the 2019 Survey lacks this data).
 See Brian Collinge The charging regulations and injustice at http://www.lukeclements.co.uk/the-charging-regulations-and-injustice/
 John Waters Charging for Social Care: A tax on the need for support? Disability Rights UK (2018) 2017 survey
 See for example R v Coventry City Council ex p Carton (2001) 4 CCLR 41 (at 44D), QBD and Department of Health Fairer charging policies for home care and other non-residential social services June 2013 see for example paras 11, 19, 84 and 101 which states ‘Where changes in charging policies would result in significant increases in charge for some users, this should be specifically explained and considered as part of the consultation’.
 Department of Health Fairer charging policies for home care and other non-residential social services June 2013 para 99.
 Complaint no 99/C/1983 against Durham CC, 9 October 2000.
 R v Coventry City Council ex p Carton (2001) 4 CCLR 41, QBD (at 44G).
 In this case Disability Living Allowance (DLA) payments for night time care needs.
 This finding was then reflected in the relevant guidance – namely Department of Health Fairer charging policies for home care and other non-residential social services June 2013 paras 32 – 44.
A new (7th) edition of Community Care and the Law has been published by the Legal Action Group for details click here.
As part of the Welsh Government’s commitment to tackling unequal outcomes caused by socioeconomic disadvantage, the Deputy Minister, Jane Hutt, has announced that it plans to make ‘rapid progress over the next few months with a view to the socioeconomic duty being commenced later this year’ – click here for her announcement.
Legal research by the International Disability Law Clinic at the School of Law, Leeds University concludes that the Government’s policy of not installing audio recording equipment for all Personal Independence Payment (PIP) assessments and at all Social Security and Child Support Tribunal venues is unlawful.
Key messages from the report (attached) include:
- The policy has a disparate and an adverse impact on disabled people, and lacks objective justification;
- The Department of Work and Pensions’ (DWP) delay in honouring its commitment to put in place recording equipment at every mandatory medical assessment for a PIP, constitutes a breach of the Government’s obligations under the Equality Act 2010, the European Convention on Human Rights Article 6 and the UN Convention on the Rights of Persons with Disabilities Article 13 – as well as its public law obligations;
- The Ministry of Justice’s (MoJ) failure to assess (or indeed to acknowledge) the harm that results from the absence of recording equipment at SSCS Tribunal hearings – constitutes a breach of the Government’s obligations under the Equality Act 2010, the European Convention on Human Rights Article 6 and the UN Convention on the Rights of Persons with Disabilities Article 13 – as well as its public law obligations;
- These failures by the DWP and the MoJ are causing significant and predictable harm to disabled people and would appear to be actionable by way of a judicial review in the High Court;
- The research underpinning this report includes a Freedom of Information Request to the Ministry of Justice (Appendix A below) which reveals that:
- there are no SSCS Tribunal venues in London with recording equipment;
- only 91 (out of 161) hearing centres in England, Wales and Scotland have recording equipment;
- the cost of installing recording equipment is about £1,000 per venue and that the annual maintenance cost is approximately £15.00.
The Welsh Government has published for consultation changes it proposes to make to the Continuing NHS Healthcare Framework (for adults) and its accompanying Decision Support Tool. The consultation document and drafts of the revised Framework and the Decision Support Tool can be accessed by clicking here.
The consultation document states that there ‘is no intention for policy changes made through this process to impact on the eligibility threshold for CHC, which is well-established and based on the consideration of a ‘primary health need’’.
The Welsh Government states that the proposed changes are designed to provide ‘greater clarity and presentational style’ – and that the proposals retain the core principles of the existing Framework which it states as being to:
put people first, involve and engage with them and their representatives throughout the process and ensure decisions affecting them are informed by evidence. There is a continued emphasis on care and support that is focused on need and that is co-ordinated and avoids any unnecessary upheaval to an individual’s way of life.
In relation to the Decision Support Tool, the consultation document states that the changes include an emphasis on the Tool not being used as a ‘scoring mechanism’. It additionally states that the Tool is broadly unchanged, with a ‘few minor amendments’ (although on cursory inspection this is debatable – eg see the cognition change proposed) – the changes being:
- Behaviour – add reference to self-harm as an example.
- Mobility – revise notes. For example, replacing the reference to the 2001 National Service Framework for Older People with a more general emphasis on assessment.
- Nutrition – revise wording and examples in the low, moderate, high and severe categories.
- Psychological and Emotional Needs – clarify wording around the individual’s engagement in the care process.
- Cognition – replace the previous highest level of identified need of ‘severe’ with ‘high’.
- Drug Therapies or Medication – replace references to ‘non-concordance’ with ‘refusal or misuse of medication’.
- Other Significant Care Needs – remove the levels of need in order to better reflect its purpose to capture areas for wider consideration.
The consultation closes on the 21 August 2019.
Photograph of ‘Lyn Padarn’ by Richard Jones -@lluniaurich