Identifying a new (appropriate) care package

Whenever you need a council to do something that requires the provision of a non-standard service – one where there is no ‘off-the-shelf’ solution – you are likely to encounter a problem.

Asking a builder to build something to a standard design is likely to be get a quicker response than asking for something different.  Asking a social worker to provide a standard care package will likewise get a quicker response than asking for a ‘one-off’ personally tailored package of support.  Of course the builder can simply say ‘sorry I am too busy – you’ll have to sort this out your self’.  Legally social services departments can’t say this: they have a duty to meet eligible needs – even if the need is not an easy one to meet.

In such cases the authority must – without delay – develop a ‘plan’ that will lead to the suitable care arrangements being made (and in the meantime must provide the best support it can).  I provide an outline of what must be done in the Cerebra Accessing Public Services Toolkit p17 (under the section ‘Too difficult to think about’) and a specimen letter than can be used when writing to the local authority (No. 7 page 32).  I have also written a post’ about how this can work in the context of transition plans – see ‘Difficult questions require a plan’.

Sometimes the problem will arise because of a service breakdown – an existing suitable service ceases to be available or for one reason or another the disabled person is no longer able to use that service.  In the 2017 edition of my Community Care book[1] I have an extract that deals with this situation – which can be accessed by clicking here.

Not infrequently a local authority will push the problem back on the disabled person or the family – saying that the only option is for them to sort it out themselves by having a direct payment.  This is unlawful.  Direct payments are a choice and cannot be forced on the unwilling.  The ombudsman has held that it is maladministration not to directly commission care but to put individuals in a position where they feel that they have to have a direct payment instead (and commission the care themselves).[2]  The ombudsman considers that in general that directly commissioned care should be available within a reasonable timeframe (for example within 2 weeks of the assessed need being identified). [3]

The local authority may say that a person will have to go into residential care because the cost of their care in the community is above a particularly level.  I have a guide as to how to challenge this difficulty which can be accessed by clicking here.  Authorities should also be reminded in such cases that the Statutory Guidance stresses (at para 1.19) that duty to promote wellbeing ‘is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention).   Supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Care Act’.

The UN Committee responsible for the Convention has stated[4] that the Article 19 duty includes the obligation to ‘develop a concrete action plan’ to ensure that the right independent living within the community becomes a reality for disabled people and that it is unacceptable for disabled people to be confronted by a ‘lack of options to choose from’ for example where ‘informal support by the family is the only option’ or ‘support is unavailable outside of institutions’ or where ‘housing is inaccessible or support is not provided in the community, and when support is only provided within specified forms of residence like group homes or institutions’.[5]

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[1] Luke Clements Community Care and the Law 6th edition (Legal Action Group 2017).
[2] Complaint against Lincolnshire County Council No. 16 019 120 dated 8th August 2017 para 13.
[3] Complaint against Lincolnshire County Council No. 16 019 120 dated 8th August 2017 para 13.
[4] General Comment (No. 5) to the UN Convention on the Rights of Persons with Disabilities para 38
[5] Ibid para 25.