Challenging reductions in care services

Councils must meet the eligible social care needs of disabled and older people as well as those of carers. The duty to meet eligible needs is one that exists regardless of the resource problems a local authority may have.

Although local authorities should review care packages at least once a year, the Statutory Guidance stresses that the ‘review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget’.[1]

If, as a result of a reassessment, the support package is reduced or changed in a significant way, then the law requires that the council provides a detailed and convincing explanation as to why this is happening (for example because the person’s condition has improved substantially).[2]

This will include reasoning that gives ‘appropriate weight to obviously relevant material and [does not rely] excessively on the non-expert view of a social worker in a face of a wealth of evidence to the contrary from appropriately qualified and experienced experts’ [3]

The fact that a local authority has financial problems or is using a Resource Allocation System[4] (‘RAS’) is not a lawful reason.  Eligible needs must be met and the support cannot be cut unless there is convincing evidence as to why the previous support is no longer required.  Local authorities cannot adopt rigid policies or ceilings on care – for example ‘we only provide a maximum of four weeks respite care a year’.[5]

Because local authorities must meet the eligible needs of disabled and older people (and carers) it is unlawful for authorities to impose arbitrary limits on what they are prepared to pay for care packages. Eligible needs must be met regardless of cost: as the Statutory Guidance to the English Care Act explains, a local authority’s finances are relevant when it decides how to meet the eligible needs of an individual ‘but not whether those needs are met’ (para 10.27). The Statutory Guidance goes on to stress that authorities ‘should not set arbitrary upper limits on the costs [they are] willing to pay to meet needs through certain routes’.  Although the guidance in Wales is less explicit – the legal position is, in this respect, the same as in England.

The following two cases illustrate the approach taken by the Ombudsman to cuts in care and support packages.  Although these decisions were taken prior to the introduction of the Care Act, the law in this respect has not changed.

  1. A 2013 complaint against Thurrock Council concerned a need of 10½ hours support for a disabled parent which was reduced by a ‘resource panel’ to 6 hours ‘based on ‘other cases’. The Ombudsman found this to be maladministration as there was no evidence / no cogent reasons given for the reduction.
  1. In a 2012 complaint against Lambeth Council, the Ombudsman held that where a council is providing care services (such as respite care), then the presumption is that it should continue to provide this level of care, until such time as it undertakes a new assessment and provides a revised care plan indicating that different care support is required. In the absence of such action any reduction in support by the council may constitute maladministration.

 

Authorities must not assume a carer is willing or able to provide any care – including additional care arising from a reduction in the care package.  It will be maladministration for such a reduction to occur without assessing the carer and explicitly clarifying (and recording) whether she/he is ‘able and willing’ to provide the additional care.[6]

A 2016 ombudsman report[7] concerned an adult with significant leaning difficulties who lived with his parents. His care package had for many years included 50 days of replacement care to enable his parents to have a break.  On review this was reduced to 14 days although his needs had not changed and the sustainability of his parents in maintaining their support was recorded as at risk.  In finding maladministration the ombudsman held that the council had to provide an explanation as to the reasons for the reduction: that it ‘needs to show what circumstances have changed to warrant this reduction in respite provision’. In the ombudsman’s opinion it was not acceptable for the council to state that it would offer emergency respite if the need arose:

The parent’s need for ‘weekends away and a little social life are not emergencies but part of a planned sustainable support regime’. The Council’s assessment does not address these sustainability issues and the guidance says the impact on the carers’ daily lives and non caring activities must be included.

On occasions a local authority may suggest that although a person’s eligible needs have not changed, the funding can be cut as the need can be met by a less expensive method.  The explanation may be that a different care agency is available that can provide the necessary care at a lower cost.  Where this argument is raised, various things should be understood, including:

  1. The cheaper arrangements must actually exist, as opposed to being a hypothetical alternative.[8]  It is not acceptable for the authority to reduce support on the basis of a supposed care package (that does not at present exist) – especially if it is conjectural as to whether this package will actually meet the need and will actually prove to be cheaper.  The local authority is required to point to an existing functioning arrangement and be able to demonstrate that this new arrangement will meet the assessed needs (see below) and also demonstrate that it will be significantly cheaper.
  2. The alternative support arrangement must meet the person’s eligible needs.  Care plans need to be detailed statements[9] spelling out how the eligible needs will be met by the provision of the necessary support – including the fine detail – the “how, who, what and when”.[10] By way of example, not infrequently a key component of a care and support plan is to maintain continuity and to ensure that the paid carers have specific training and / or skills.  Where continuity is crucial – for example because the disabled person becomes distressed by changed routines or has had bad experiences of previous changes – then this could be a significant factor weighing heavily against any change.[11]
  3. The Care Act in England and the Social Services and Well-being (Wales) Act 2014 in Wales require local authorities to promote the wellbeing of adults in need and carers and to do this in a way that satisfies certain underpinning principles.[12]

These include the assumption that the individual is best placed to judge their well-being and the duty to promote their control over their day-to-day life, including over the care and support they receive.  This means, that the care planning process is ‘central to the provision of person-centred care and support that provides people with choice and control over how to meet their needs’.[13]  Para 1.19 of the Statutory Guidance to the Care Act states that ‘independent living’ (within the meaning of Article 19 of the UN Convention on the Rights of People with Disabilities) ‘is a guiding principle of the Care Act’.[14]  Article 19 stresses not only the right of disabled people to ‘full inclusion and participation in the community’ but also their right to choose where they live and with whom they live’ (and that they are not obliged to live in a particular living arrangement) as well as their right to a range of social care services ‘necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community’.

On occasions a local authority may state that an eligible need should be funded from the person’s benefits (for example from their Disability Living Allowance (DLA)).  This too is unlawful as illustrated by a 2017 ombudsman’s case.  This concerned a reduction to direct payments support package, not because the person’s needs had changed, but because the local authority considered that some of her eligible needs (relating to the ‘nutrition’ and ‘maintaining a habitable home’ outcomes) should be paid from her DLA.  This was held to be maladministration: there is ‘nothing in the Care Act 2014 or the statutory guidance which allows the Council to require a person to use their benefits this way’.[15]  In this respect see also a note in this series concerning cuts to local authority transport services where a similar argument is used – to access this click here.

[1] Para 13.4 and see also See for example Local Government Ombudsman complaint no. 15 008 823 against Knowsley Metropolitan Borough Council 16 June 2016.
[2] See for example complaint no 15 016 495 against Norfolk County Council 31st August 2016 where the ombudsman considered that that the council had failed to explain the basis for its decision to reduce a care package.
[3] R (Clarke) v Sutton London Borough Council [2015] EWHC 1081 (Admin) para 28.
[4] A computerised system that tries to predict the approximate cost of a person’s care needs, based on various basic parameters.  For a discussion of RAS see Lucy Series & Luke Clements Putting the Cart before the Horse: Resource Allocation Systems and Community Care The Journal of Social Welfare Law [2013] (2) 207-226.
[5] Para 13.4 and see also See for example Local Government Ombudsman complaint no. 15 008 823 against Knowsley Metropolitan Borough Council 16 June 2016.
[6] Complaint no. 15 020 384 against London Borough of Bromley 7th September 2016 and see also complaint no. 15 006 613 against Sheffield City Council 17th March 2016.
[7] Complaint no 15 013 201 against Sefton Metropolitan Borough Council  23rd August 2016.
[8] R (LH and MH) v Lambeth LBC [2006] EWHC 1190 (Admin).
[9] See for example the revised Statutory Guidance to the Care Act para 10.36 and in Wales The Care and Support (Care Planning) (Wales) Regulations 2015 and the Part 4 Code of Practice (Meeting Needs) to the Social Services and Well-being (Wales) Act 2014.
[10] R (J) v Caerphilly CBC [2005] EWHC 586 (Admin).
[11] In R v Avon CC ex p M (1999) 2 CCLR 185, QBD the disabled person had a psychological attachment to a particular service and although objectively an alternative was suitable, the court held that the individual would not accept this alternative due to his psychological condition.
[12] Detailed in section 1 Care Act 2014 and sections 2, 6 and 7 of the Social Services and Well-being (Wales) Act 2014).
[13] See for example the revised Statutory Guidance to the Care Act 2014, para 10.31.
[14] The Welsh Guidance echoes this statement – see para 56 of the Part 2 Code of Practice (General Functions) and Quality Standard 1 of the Code of practice in relation to measuring social services performance.
[15] Complaint No. 16 012 715 against Haringey LBC 12 June 2017 (para 36)