Personal Budgets: the tail and the dog

The law is clear: a disabled or older person’s eligible needs must be met, either by the council arranging the services or by providing a direct payment sufficient to enable these needs to be purchased.

Although councils are required to tell people what their care support needs ‘cost’ – ie the amount of their personal budget[1] this figure must always be enough to meet their eligible needs.  This means that the assessment of eligible needs comes first and the calculation of what the cost is of meeting these needs (ie the personal budget) comes second: the dog wags its tail (and not vice versa).

Some councils tell individuals that they have been allocated an ‘indicative budget’ of a specified sum.  This amount is sometimes calculated using a computer algorithm known as a RAS (Resource Allocation System).[2] In general a person in this position might be advised to tell the council that she / he is not interested in what their indicative budget is – that they want their eligible needs met (as the law requires).  To repeat the point – their eligible needs must be met and the council must pay enough to ensure this happens. Of course if the person wants to have a direct payment to cover some or all of their needs – then this payment must itself be sufficient to cover the eligible need.

Disabled and older people have a right to a proper assessment[3] undertaken by a skilled person designated by the social services department, who must identify what the person’s ‘needs’ are for social care support (including equipment etc).  In deciding which ‘needs’ are eligible for support, the assessments must ignore any support provided by a carer. The eligible needs must be detailed in an intelligible way and the disabled person must be given a copy of this and an opportunity to explain which parts are not agreed (in which case an attempt at resolution should be undertaken).   A care and support plan must then be drawn up specifying how the eligible needs will be met.

The care and support plan must describe not only what needs the person has (in qualitative terms) but must also quantify these – eg how often the person needs help, when, where, how and who will provide this support – ie by one or more people with specific skills etc.  The person’s personal budget that then results must be sufficient to enable these eligible needs to be provided.  The courts and ombudsmen have said that councils must be able to explain how this has been calculated – and that this must relate to the assessment (ie not to some generalised ‘indicative amount’).[4]

So, for example, if a person has been assessed as eligible for care and support during the day (eg because his or her carers are not willing or able to provide this at such times) then the council must arrange for the care and support at such times.  It can do this by arranging such support itself or by commissioning a third party agency to provide the care. If the disabled person or his or her family / friends are willing to arrange this care – then the council must provide sufficient funds (by way of a direct payment) to enable care support of a suitable quality to be purchased to meet this need: the council cannot specify some arbitrary figure (ie an ‘indicative amount’ or a ‘RAS’) – the figure must be demonstrably sufficient to purchase the ‘assessed needs’ of the disabled person.  As the Statutory Guidance to the Care Act makes clear (para 10.27) – councils’ finances are relevant when they decide how to meet the eligible needs ‘but not whether those needs are met’ adding that councils should ‘not set arbitrary upper limits on the costs [they are] willing to pay to meet needs through certain routes’.

One might ask what the point is of a personal budget: a question posed by many academic writers.[5]  I have answered this question in the following terms:[6]

Personal budgets are an ideological construct – the basis of which is that commodification is a good thing and that providing more than 1.3 million people[7] with details of how much their care package costs is a cost-effective exercise that improves the quality of their care.[8] It is not something that is done for NHS patients, and the evidence as to its effectiveness is far from promising.[9]

 

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[1] Care Act 2014 section25(1)(e).
[2] The research suggests that such figures are almost always incorrect – see, for example, C Slasberg, P Beresford and P Schofield, ‘The increasing evidence of how self-directed support is failing to deliver personal budgets and personalisation’ in Research, Policy and Planning(2013) 30(2), 91-105 and L Series and L Clements, ‘Putting the cart before the horse: resource allocation systems and community care’ in Journal of Social Welfare and Family Law(2013) 35 (2), pp207–226.
[3] Almost invariably a ‘face to face’ assessment – seesee Luke Clements Community Care and the Law 6th para 3.95 and National Institute of Health and Care Excellence (NICE) guidance  People’s experience in adult social care services: improving the experience of care and support for people using adult social care services NICE guideline [NG86] (2018) para 1.3.5.
[4] R (KM) v Cambridgeshire CC  [2012] UKSC 23 para 28 and see also local government ombudsman reports on Complaint No. 16 016 273 against Derbyshire CC 19 March 2018 and Complaint no 13 006 400 against Cornwall Council, 26 February 2015.
[5] See for example Sarah Carr  ‘Personalisation, participation and policy construction: a critique of influences and understandings’ in Beresford Critical and radical debates in social work (Policy Press 2014)  27 – 33. 
[6] Luke Clements Community Care and the Law (2017) 6th ed para 10.04
[7] A significant proportion of whom have limited mental capacity, inadequate advocacy support, limited experience of making social care choices, and not infrequently encounter the system when in crisis.
[8] For details of the policy origins of personal budgets, see Luke Clements, ‘Individual budgets and irrational exuberance’ in (2009) 11 CCLR 413–430.
[9] See, for example, Richard Titmuss, The gift relationship,George Allen & Unwin, 1970.