Many local authorities have ‘funding panels’ to which social workers have to present cases, in order to get agreement for the care support a person may need. These have been much criticised and the following notes consider the legality of such ‘panels’. Extracted from Luke Clements Community Care & the Law, (6th edn, Legal Action Group 2017) paras 4.80 – 4.115.
For many years it has been not uncommon for social services authorities to use panels (commonly known as ‘funding panels’) at some point in the assessment, eligibility and care-planning process.
Panels create a fault line between the data collection phase of the assessment process and the subsequent decision-making on eligibility and care planning, and they may well make decisions without having relevant information to hand. It might even be too late – the eligibility decision may already have been made. R v Wigan MBC ex p Tammadge is an example: objectively the individual officers had decided that the applicant had eligible needs. However, they were unable to progress this, since the authority’s procedures stated that only a panel meeting was able to make a formal decision on resource allocation; a meeting at which the assessing social worker had little or no role. In quashing that decision, Forbes J held that Wigan’s ‘own professionally qualified staff and advisors’ had concluded that there was a need and it was simply too late for this to be countermanded by the panel.
The statutory guidance acknowledges concerns about the use of panels and cautions against inappropriate use which may cause unnecessary delays or inadequate decision-making (para 10.85):
Due regard should be taken to the use of approval panels in both the timeliness and bureaucracy of the planning and sign-off process. In some cases, panels may be an appropriate governance mechanism to sign-off large or unique personal budget allocations and/or plans. Where used, panels should be appropriately skilled and trained, and local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons. Local authorities should consider how to delegate responsibility to their staff to ensure sign-off takes place at the most appropriate level. In cases or circumstances where a panel is to be used, and where an expert assessor has been involved in the care and support journey, the same person or another person with similar expertise should be part of the panel to ensure decisions take into account complex or specialist issues.
The local government ombudsman has considered many complaints concerning panel decisions. A frequent scenario concerns disabled people with complex needs who require potentially expensive care packages. Their assessing social worker undertakes considerable research concerning available care and support providers and then recommends a particular care plan. The care plan is then considered by a panel and rejected – essentially the social worker being required to trim the assessment of need to fit the budget (to paraphrase Sedley J) – even though no suitable alternative exists.
A 2005 ombudsman’s report is illustrative in this respect. It concerned the placement of a learning disabled adult in a series of inappropriate care homes. His social worker had undertaken a detailed assessment of needs and identified a suitable placement ‘after a long, careful process over many months’. However, her plan was rejected by the council’s Care Purchasing Panel, relying on advice from an acting manager who ‘barely knew’ the service user (he had observed him at most on three occasions in a day centre). The alternative care package proposed proved to be unsuitable and ultimately – once the ombudsman had become involved – a suitable placement was secured. In the ombudsman’s opinion:
Having correctly prepared a detailed assessment in accordance with the statutory guidance, it was wrong for the Council to dismiss all the information gathered in that process, and make a decision on the basis of [the acting manager’s] assurance. The decision flew in the face of the assessment.
A 2013 complaint concerned a need of 10.5 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 or no cogent reasons given for the reduction.
A 2016 ombudsman report concerned an assessor’s identification of an adult having eligible needs for support three times a week with showering, washing her hair and dressing. The assessment was rejected by a panel. The report stated:
I am not persuaded that this panel was purely looking at compliance with the Care Act and cost effectiveness. If this was its remit, it failed to do this adequately. It is possible Miss X’s needs could be met in other ways but with proper care and support planning in consultation with Miss X. Not through a decision in direct contravention of the care manager’s recommendations by a panel who was not involved in the assessment. I found the Council was at fault in the way it dealt with this ‘funding application’.
A 2017 ombudsman’s report concerned a council panel which described itself as a “quality assurance process which looked at quality of work, outcomes and eligibility” (para 30). The panel refused to endorse a social worker’s assessment of the need for a particular support service. The ombudsman cited the Statutory Guidance (para 10.85) concerning the use of panels and observed that, since the council had failed to provide ‘any formal documents to explain’ its purpose, it was not possible to state if it was in place ‘purely for financial reasons’ (para 42). In finding maladministration the ombudsman focused on the panel’s failure to address the Social Worker’s views – stating that it was:
important to note that the Social Worker is best placed to understand [the adult’s] needs as she has met her, whereas the members of the [panel] had not. It is good practice to include the person “involved in the care and support journey” in funding decisions to make sure nothing is overlooked.
Even where a panel is considering a large personal budget – it has to act reasonably. A 2017 ombudsman’s report concerned a transition into adulthood assessment for a disabled young person in a residential college. The social worker in her assessment noted that he would be unable to return to live with his mother as this would put ‘immeasurable pressure on the family and it is something [that she] can no longer cope with’ (para 13). The assessments were delayed, as was a mental capacity assessment and the panel then refused funding for a residential placement.
In finding maladministration the ombudsman stated that the mother ‘was wrongly put in the position of having to care for her son when she had made it clear she could not do this’. The ombudsman was particularly concerned about the delay and the absence at the panel of someone who had been ‘directly involved in assessing’ the young man (as advised by the Statutory Guidance para 10.85).