No such word as ‘can’t’
All too often disabled people and families are told that a local authority can’t meet a particular support need because (for example) it can’t find anyone (or any organisation) willing or able to meet the need. Classically this may be a respite care service for a young person with very high support needs – but it can also be support that is needed in the evenings or at weekends etc etc.
In the Cerebra ‘Accessing Public Services Toolkit’ we provide nine categories of ‘commonly occurring problems’ and ‘there is no such word as ‘can’t’’ is one of these.
Local authorities must do everything reasonable to meet an eligible need and they cannot refuse to meet a need an eligible need on cost grounds (cost is only relevant when they have more than one way of meeting a need). So if, for example, a disabled young person has been assessed as needing a number of episodes of respite care – then the authority is under a duty to find a way of meeting that need.
Where the local authority states that no such support can be found in its area – it is often worth asking the rhetorical question “If a wealthy person had this problem would they have been able to secure this support service?” The answer will almost invariably be yes, and of course, the local authority has substantially more resources available to it than most wealthy people (and is also under a statutory duty to meet need of this kind).
Where a local authority is saying it can’t meet a need – it should be asked what it has done to try and identify a suitable provider. How many providers has it contacted? How many of them offered to meet the need but had their offer refused on cost grounds? Has it offered to increase what it pays (ie to a provider or by paying a higher direct payment rate)? Has the authority placed advertisements inviting prospective providers to come forward? Has the authority considered employing someone specially to meet the need? Has the authority considered an imaginative personal budget arrangement? Has the authority considered appointing an agent who whose sole job is to identify and secure support services to meet the assessed need? And so on. Also of great importance – has the authority kept you fully informed and involved throughout?
Legally once a need has been identified as an eligible need the authority is under a duty to meet that need and under a duty to take all reasonable steps to secure that the support is provided without delay. It is demonstrably unreasonable (and indeed unlawful) for a local authority to point to a supply-side problem and then say “there is nothing more we can do”. Local authorities are under a statutory duty manage their local care markets to ensure that there is are sufficient care and support services to meet need in their areas.
When confronted by this problem a disabled person or family should ask the local authority to state – within a short period – exactly what it has done in order to identify suitable care and support to meet the eligible need (it may also be useful to make a data subject request – see www.lukeclements.co.uk/resources/data-protection-making-requests/). If it fails to provide adequate evidence then a complaint will normally be necessary: not only about the failure to provide the relevant care / support – but also the failure to take reasonable steps to secure its provision.
Posted 8 March 2020