Costs ceilings and choice over home care packages

It appears that a number of health bodies and councils operate ‘cost ceilings’ – ie limitations on what they are prepared to fund in particular cases.  Not uncommonly this will take the form of a financial limit on the total weekly cost of home care services that can be put into any one household, or a maximum permitted sum on any home support package (the implication being that if the package costs more, then a residential support plan will be preferred) or a rigid limit on how much will be paid for a residential care or nursing home.

Blanket policies of this nature are unlawful, in that they would amount to a fettering of the health or social services body’s duty to meet an assessed need.  Policies of this kind make resource questions determinative, rather than being ‘no more than one factor in an overall assessment, where … the individual disabled person will always be the paramount consideration’.[1] Where such a policy would promote institutional care over non-institutional options, it would also offend the legal presumption in favour of independent living.[2]

Health bodies and councils are permitted to have policies that refer to a particular costs figure as a ‘guideline’ rather than a fixed ‘ceiling’ – provided: there is a logical basis for the ‘guideline figure’ (ie the process by which it has been calculated are transparent and rational); it is not an arbitrary figure dreamt up in the fog of a council meeting;[3] the council has undertaken an Equality Impact Assessment[4] as to adverse impacts it may have on people with protected characteristics (ie disability, sex, age etc); provided there is evidence that the figure is adjusted in appropriate cases – and not subject to the individual having to establish that their circumstances are ‘exceptional’.[5]

A 1998 local government ombudsman report[6] considered a council imposed financial ceiling (of £110.00 per week) on the level of domiciliary care it was prepared to fund. The ombudsman found that in setting the limit the council had ‘fettered its discretion’[7] since there was no evidence that it had ever exceeded the limit and that such a fees’ policy was unfair and unreasonably discriminated against older people.

Of course in most cases a public body cannot ‘force’ someone to live at a particular place: the key issue is whether the individual or their family can require the public body to fund their chosen care package.

In seeking to answer this question, the starting point is the duty in the Care Act 2014 section 1 (and the Social Services and Well-being (Wales) Act 2014 section 5) is to promote the ‘well-being’ of the adult in need and ‘well-being’ has much the same meaning in both England and Wales. In England well-being includes ‘control over day-to-day life including the nature of care provided’ (section 1) and in Wales it includes ‘the importance of promoting the adult’s independence where possible’ (section 6).  This does not mean that public bodies have to provide funding for a person to live independently in their own home regardless of the cost – but it does create a presumption that the person’s wishes over issues such as this should take precedence unless there are sound reasons to decide otherwise.  It does mean, however that public bodies cannot simply take the cost of a residential care home as the benchmark figure for other care packages.  A 2018 ombudsman report concerned a local authority that had taken this approach.[8]  The social worker refused to increase the adult’s support because it considered that her existing package was “almost the rate of residential care” and this view was echoed by a more senior officer who stated that the package was “too substantial and reflects residential care rather than home care therefore it needs to be cut back significantly”.   The ombudsman held this to be maladministration stating:

While councils must always have due regard to the public purse, care provision should be based on assessed needs and where there is no evidence of appropriate assessment such remarks may be indicative of attempts to inappropriately ration limited resources.

 

In the 2017 edition of my Community Care book[9] I deal with the question of how the courts decide what weight to give a person’s choice over where they live (eg to live in their own home rather than being placed in a residential care home).  The relevant extract is as follows:

2.31 ‘Choice’ (or more strictly speaking ‘preference’) is only given statutory expression in the CA 2014 in section 30, which provides for regulations[10] to enable adults to express a preference for particular accommodation. The ‘Choice of Accommodation’ scheme is considered at para 8.243 below.

2.32 The courts have distinguished between ‘preferences’ and ‘needs’. In R v Avon CC ex p M[11] the applicant, because of his learning disabilities, had formed a fixed psychological attachment to a particular home which was more expensive than the alternative proposed by the local authority. A complaints panel heard uncontroverted evidence concerning his psychological needs and unanimously recommended the placement in the more expensive home. The local authority refused. Henry J, in finding for the applicant, stated as follows:

Here, there was a clear finding by a body set up for detailed fact finding that M’s needs included his psychological needs and, unless that finding could be disposed of, the authority was liable to meet those needs. Without that finding being overthrown, there were not two options before the social services committee, as the paper suggests, there was only one: to meet M’s needs, including his psychological needs.[12]

M’s attachment to the particular home was a ‘need’ not a ‘choice’. This point was picked up in R (Khana) v Southwark LBC[13] where the applicants were demanding a care plan that the local authority considered inappropriate. The Court of Appeal dealt with the claim in the following terms:

In some circumstances, instanced by R v Avon CC ex p M[14] … a person may have a need … as distinct from a preference, to reside in a particular place. Here, it seems to me that Mrs Khana … is in reality seeking to insist, as against Southwark, on the – no doubt strongly held – preferences or beliefs of Mrs Khana and her family as to what community services should be provided to Mrs Khana and in what way. Under the relevant legislation and guidance, Southwark must take into account Mrs Khana’s and Mr Karim’s beliefs and preferences, but the assessment of any needs regarding, inter alia, accommodation and how to provide for them rests ultimately with Southwark.[15]

2.33 The courts have, therefore, treated the principle of ‘user choice’, not as a fundamental right, but as a relevant consideration that must be taken into account by the authority. It is probable that this approach will continue under the CA 2014, albeit that authorities will be expected to provide more detailed reasons and supporting evidence where they decide not to agree to such a course. It follows that the preferences of an individual in relation to his or her care and/or support plan should (except in relation to choice of accommodation placements[16]):

1)  be fully taken into account by the authority; and

2)  be accommodated in the care and/or support plan, so long as the local authority does not consider it inappropriate or too expensive.

However, if an authority propounds a plan that does not comply with the service user’s preferences, the authority must:

3)  give cogent reasons for so deciding and highlight those parts of the plan where there is disagreement.

Advice on ways of challenging fixed polices or cost ceilings is provided in the Cerebra ‘Accessing Public Services Toolkit’ (2017) page 14.

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[1] Hirst LJ in R v Gloucestershire CC ex p Barry (1997–98) 1 CCLR 19 at 31G, CA.
[2] In England the right to ‘independent living’ is expressed with force in the Statutory Guidance at para 1.19 which states that ‘Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act’ – and this is echoed in the Welsh Part 2 Code of Practice (General Functions) para 56.
[3] Complaint nos 90/A/2675, 2075, 1705, 1228 and 1172 against Essex.
[4] Under Equality Act 2010 section 149.
[5] See for example Letter Equality and Human Rights Commission to Clinical Commissioning Groups 24th October 2017 which stated to require ‘exceptionality’ does not ‘allow the decision-maker properly to undertake … a full evaluation of the particular personal considerations in favour of care provision … as required by [among other things] Article 8 ECHR, Article 19 of the UNCRPD, the PSED … .’ [PSED is the Public Sector Equality Duty under Equality Act 2010 section 149].
[6] Complaint no 96/C/4315, against Liverpool City Council 20 August 1998; (1999) 2 CCLR 128. A sum of £10,000 compensation was recommended by the ombudsman.  A similar 2016 ombudsman report (and similar ombudsman conclusion) concerned a council’s policy of only providing a maximum of four weeks respite care a year see Local Government Ombudsman complaint no. 15 008 823 against Knowsley Metropolitan Borough Council 16 June 2016
[7] Where a public body has a fixed policy see Cerebra Problem Solving Toolkit pages 12 and 24.
[8] Complaint No. 16 017 084 against Hertfordshire County Council 13 August 2018 para 17.
[9] Luke Clements Community Care and the Law 6th edition (Legal Action Group 2017).
[10] Care and Support and After-care (Choice of Accommodation) Regulations 2014 SI No 2670.
[11] (1999) 2 CCLR 185, QBD and see also Complaint no 15 019 312 against London Borough of Barking & Dagenham, 8 June 2016 which concerned a similar fact context.
[12] (1997) 2 CCLR 185 at 196E.
[13] [2001] EWCA Civ 999, (2001) 4 CCLR 267.
[14] See para 2.32 above.
[15] [2001] EWCA Civ 999, (2001) 4 CCLR 267 at 281H.
[16] See para 8.243 below.