Meeting needs and being ‘flexible’
What can be done when a disabled person’s or a carer’s assessed social care needs are not being met – either because no care and support is available or because what is being provided (or proposed) is demonstrably unsuitable?
A good starting point is to reiterate the basic legal position. Local authorities have a duty to meet eligible social care needs regardless of any financial problems they may have. This applies in England and in Wales.
The Statutory Guidance to the Care Act 2014 makes clear that an authority’s financial difficulties are only a relevant consideration when it decides ‘how a need should be met but not whether the need is met’ (para 10.27). This means that if there are genuinely two ways of meeting a need, then an authority can opt to meet the need in the less expensive way. The Statutory Guidance qualifies this by stressing that this ‘does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value’ – and this principle does not generally apply if one of the options involves placing a person, against their wishes, in residential care.
If the assessed need is, for example, the provision of support for 10 hours a week, then the authority is obliged to ensure that 10 hours is provided; if the assessed need is for care that requires certain skills – then care of this description must be provided; if the assessed need is for continuity of care (ie that there are few if any changes in the carer providing the support) then this must be provided; and so on. This duty applies equally to situations where the disabled person or carer chooses to have a direct payment. So, the amount of a direct payment must always be sufficient to enable the recipient to secure the care and support that has been assessed as being required and the authority must explain how the amount has been calculated.
A 2022 English ombudsman’s report illustrates some of these legal principles. Two disabled siblings were assessed as needing one-to-one care from skilled support workers. The council’s direct payments policy only allowed their mother to pay support workers a maximum of £8.21 an hour which was not enough for her to secure the skilled support they needed. The Council however paid a provider directly for their care at a rate of £25 an hour.
The mother contacted the council, concerning the provider’s failure to have suitably trained staff as well as its failure (at times) to have any staff available to meet all the hours assessed as required. She asked for a direct payment to enable her to purchase the care they needed. She had identified suitably qualified care workers who could meet the assessed hours at a rate of £25.00 per hour and she wished to pay them directly. The council refused to pay this rate without explaining why.
In finding maladministration the ombudsman’s report noted (among other things) that the council had consistently failed to explain why it would not pay her at a rate of £25 an hour. It also noted the absence of any evidence that the council had considered its duties under the Equality Act 2010 to make reasonable adjustments to its policy – to treat people with different disability related needs, differently.
All too often in such cases, a person’s eligible care and support needs are not being met – because the authority is simply refusing to pay an amount sufficient to secure the necessary care and support. This problem applies regardless of whether the need is for residential or non-residential care and whether the council is paying the provider directly or the individual is opting for a direct payment. By way of example, a 2017 English Ombudsman’s report concerned an excessive delay by a local authority in finding a suitable residential placement for a young man with severe learning disabilities. It concluded that the delay was not due to the lack of possible placements but was driven by inappropriate ‘cost considerations’. Eligible needs must be met and if the only available option is more expensive than the authority wants to pay – then (like it or not) the authority will have to pay up.
A 2001 English ombudsman report arose from a son’s complaint about the failure of the council to provide a ‘putting to bed’ service for his father, when the agency providing the service on behalf of the council withdrew its provision. His parents were both extremely distressed by the withdrawal of the service – and as the report notes – both died within weeks of the service being withdrawn. At para 33, the report states:
It cannot be easy to arrange for home care in the rural parts of the County’s area, and even the best contractual arrangements must fail from time to time. But it seems to me that when a service failure occurs, the Council might well have to seize any realistic opportunity to make the service good. Here it had such an opportunity. Another home care contractor offered to provide the weekend putting to bed service … but only if the Council would pay its staff travel costs over and above the flat rate fee for providing home care. Doubtless there are many tussles between the Council and its providers over such arrangements and I can understand why the Council might have considered this a precedent and the thin end of the wedge, but what was that to [the complainant’s parents]? It seems to me that [his father’s] home care was entirely sacrificed to maintain the purity of the Council’s contractual arrangements … . This was a classic case of the Council fettering its discretion, and was maladministration.
A strategic planning duty
It is beyond doubt that failures to meet the assessed needs of disabled people and carers are not isolated, ‘one-off’ local difficulties. Failures of this kind are endemic and symptomatic of a wholesale failure of care and support provision in England and Wales. A May 2022 Association of Directors of Adult Services report notes that in England over half a million people were waiting for an assessment, care, direct payment or a review – an increase of 28% from the position 6 months previously. In August 2022 the Health Foundation referred to the ‘desperate’ state of the social care workforce, with 1 in 10 posts vacant (a 50% rise in the last year). In July 2022 a Local Government Association publication referred to chronic Personal Assistant (PA) recruitment problems – highlighting ‘low pay’ as the single greatest cause and that the ‘most urgent action [required] is for funders to enable PA pay to reflect local market conditions’ as well as authorities placing fewer restrictions on how such payments can be used by people supported by a PA.
Although there are problems with using the language of ‘markets’ when it comes to providing vital personal social care and support there is a duty on the local authorities to ensure that there is an adequate capacity on the ‘supply side’ to meet the care and support needs of their populations. This is made explicit in the Care Act 2014 section 5 which imposes on authorities a duty to ‘promote the efficient and effective operation of a market in services for meeting care and support needs’ in terms of (among other things) ensuring that it has a ‘variety of high quality services to choose from’. This duty is mirrored in the Social Services and Well-being (Wales) Act 2014 section 5 (which covers disabled adults and children, and carers) and in relation to disabled children and their carers in England, although not explicit, it must also be a basic public law duty.
Authorities can do a great deal to ensure that they discharge this duty. They must of course identify ‘supply side’ shortages and prepare plans as to how these will be addressed – for example, by developing their own ‘in-house’ support services, partnering with the independent sector, ensuring that their direct payments rates are adequate to attract a sufficient number of PAs and so on. This is not happening.
A duty to be ‘flexible’
There is another duty on public bodies of considerable relevance in the context of severe shortages of care and support services. It is the obligation to demonstrate flexibility.
In 1996 the High Court, in the ‘Rixon’ case, indicated what it expected an authority to do when confronted by a shortage of this kind. The case concerned a profoundly disabled young adult, Jonathan, who had day care support needs, which the authority considered should be addressed by way of a placement in a day centre. The problem was that there was no day centre provision available for people with impairments such as Jonathan’s. He was therefore, in effect, put on a waiting list for support of this kind. When challenged, the authority argued that it was doing its best to secure a suitable centre and that in consequence, it could not be in breach of its social care duty ‘to meet needs’.
The High Court disagreed. In its opinion the authority had:
simply taken the existing unavailability of further facilities as an insuperable obstacle to any further attempt to make provision. The lack of a day care centre has been treated, however reluctantly, as a complete answer to the question of provision for Jonathan’s … needs. … [the legal duty] is needs led and not resources-led.
In Jonathan’s case there were – in effect – two key additional things that the authority had to establish (ie, in addition to putting him on a waiting list). Firstly, it had to demonstrate that it was taking urgent steps to address the shortfall in day centre provision (for example by having active plans to develop a supply of additional support – either by providing this ‘in-house’ or by commissioning this from the independent sector). Secondly, it had to demonstrate what it was doing, in the interim (ie before the ‘ideal support’ became available), to ensure that his needs were being met in the best way possible. In a word, it had to demonstrate that it was being ‘flexible’ – and this, the local authority had signally failed to do. It had not provided anything – it had simply treated the ‘lack of a day care centre … as a complete answer to the question of provision’. That was unlawful.
There will almost always be different ways of meeting an individual’s social care needs – some more suitable than others: suitable from the perspective of the individual and their family / suitable from the perspective of the local authority.
In deciding what should be done in such cases, authorities must adopt a person-centred approach – and with it, the assumption that the individual ‘is best placed to judge their well-being’.
On this basis, in the Rixon case the local authority should have put in place interim arrangements so that Jonathan was provided with (for example) one-to-one community based personal support pending the day centre place becoming available.
Being flexible will often require the local authority to ‘loosen up’ – to be less rigid in the way it operates and for it to exercise its discretion. This may involve a significant increase in its hourly rates or allowing family members to be employed under a direct payment arrangement or for an agency to paid instead of a PA or simply extending the range of things that a direct payment can be used for.
The ethical framework guidance issued during the Covid-19 emergency, defined the principle of ‘flexibility’ as ‘being responsive, able, and willing to adapt when faced with changed or new circumstances’. It advised authorities that in order to ‘ensure flexibility, those making decisions should be prepared to’:
- respond and adapt to changes as and when they occur, for example in the event of new information arising or changed levels of demand
- ensure that plans and policy have room for flexibility and innovation where necessary
- provide people with as much opportunity as possible to challenge decisions that affect them in the time that is available
- ensure that the health and care workforce is supported to work collaboratively across disciplines and organisations, as agile and resilient as possible
- review organisational practices, standard approaches and contractual arrangements that may obstruct these ambitions.
The English local ombudsman has stressed that the duty on authorities to act flexibly – ie to respond and adapt to changes as and when they occur – means that every individual care and support plan should anticipate likely difficulties and contain details of contingency arrangements to address these (even if it is difficult to predict exactly what may arise).
Direct payments and ‘flexibility’
A key underpinning principle of direct payment arrangements is to provide personalised care – putting the carer/ disabled person in control of the way their needs are met. As the Statutory Guidance to the Care Act 2014 explains:
12.3 Direct payments … provide the platform with which to deliver a modern care and support system. People should be encouraged to take ownership of their care planning, and be free to choose how their needs are met, whether through local authority or third-party provision, by direct payments, or a combination of the 3 approaches.
At para 12.4 the Statutory Guidance notes that the processes adopted by local authorities to manage direct payments ‘must not restrict choice or stifle innovation’ (a point reiterated at para 12.59 when emphasising that the use of pre-payment cards cannot be mandatory nor may they ‘limit choice and control’ as direct payments should ‘encourage flexibility and innovation’.
2018 guidance issued by the National Institute for Health and Care Excellence (NICE) suggests that direct payment plans should be flexible to ‘accommodate changes to a person’s priorities, needs and preferences’ and that in order to facilitate this, local authorities should consider ‘agreeing a rolling 3‑monthly budget so that people can use their money differently each week’.
There is a need in such cases for the authority to have identified clearly the outcome for which the direct payment is made. If the need for a ‘break’ is to enable the carer to de-stress / have a break from her usual routine – then a holiday with the disabled person may meet that need (particularly when the Care Act 2014 s1(3)(a) states that carers / disabled people must be assumed to be best-placed to judge their well-being). In similar terms, if the need is for the disabled person to be able to socialise / address his sense of isolation, then the taxi fare to an activity he wants to attend may be an appropriate way of achieving this outcome.
The care and / or support plan must be drafted in such a way that makes clear what is, and what is not, a permitted use of the direct payment and there must be evidence that the individual has had this fully explained to them, that they have understood any restrictions and that the local authority then monitored the arrangements.
Any restrictions on the use of the direct payments must be rational and ‘the minimum necessary for achieving the purpose for which the’ direct payment was made (Care Act 2014 s1(3)(h)).
The care and/or support plan must be reviewed (at least annually). The local government ombudsman has held it to be maladministration for a local authority not to review a direct payment arrangement for 3 years and then to reduce it without a sufficiently detailed assessment (or without sufficiently cogent evidence and reasons to justify the reduction for the individual in question).
Two 2023 decisions illustrate the ombudsman’s requirement that councils demonstrate ‘flexibility’ concerning the use of direct payments.
- The first decision concerned a council’s failure to explain why direct payments could not be used for some activities (eg swimming, cooking and horse riding) which meant that the ombudsman was unsure how it reached its decision. The ombudsman also held that if a council argues that some costs of admission to activities can be met from the individual’s own finances, it must explain why it has decided that these costs can reasonably be met by the individual.
- In the second decision the ombudsman referred to Covid Guidance that reminded families that ‘It has always been possible under the Care Act and direct payment regulations for you to use your direct payments flexibly providing it continues to meet your assessed needs. We expect LAs and CCGs to be as flexible as possible when you have made reasonable decisions to use your direct payment differently in a way that keeps you safe and avoids your care breaking down.’
Where an individual’s assessed need is not being met (quantitatively and/or qualitatively) then the local authority should be notified and required to take immediate action to resolve the problem. If the problem concerns a failure by an agency commissioned by the authority (or indeed a failure of an in-house service) then the authority is under a duty to rectify this urgently. In this context the English local government ombudsman has suggested that, in normal circumstances, a reasonable timeframe would be ‘within two weeks’. The same holds true for problems encountered by a recipient of a direct payment – who is (for example) unable to recruit suitable PAs and so requests that, in the interim, the authority directly commissions the care and support needs. If, however, the individual wants to continue with a direct payment – then the authority is under a duty to ensure that ‘the system works properly’ and that ‘people’s needs continue to be met when difficulties with recruitment and other unforeseen circumstances arise’. If the individual can provide evidence that it has not been possible to recruit PAs at the hourly rate specified by the local authority – then the authority will have to provide cogent reasons as to why it is not prepared to increase the rate (if that be the case) – and in doing so, to demonstrate that it has had ‘due regard’ to its duties to act flexibly and to make reasonable adjustments under the Equality Act 2010.
A role for local disabled people’s / carers support organisations
Many local disabled people’s / carers support organisations will be very familiar with the inadequacies of the care and support arrangements in their area: very familiar with shortages of the kind discussed above. An important role that they can fulfil is to document these problems. To survey disabled people / carers in their area to quantify the extent of the problem and to record cases (anonymised if needs be) of individuals who have been adversely impacted.
Reports of this kind (which could also include material from the authority’s Adult Services / Children’s Services Committee minutes etc) are of great importance for two reasons. The first is that they can be shared with the authority and accompanied by a forceful request that it take radical action to address this ‘market’ failure – as it is statutorily required to do (as outlined above). The second reason is that it will be powerful evidence that disabled people and carers can use when challenging failures of their care and support arrangements – including, for example, when seeking an increase in the hourly rate for their direct payment.
Other relevant links include:
 In England the duty to meet an adult’s eligible needs is imposed by the Care Act 2014 section 18 (adults in need) and section 20 (adult carers in need) and for disabled children and their carer the duties derive from the Chronically Sick and Disabled Persons Act 1970 section 2 and the Children Act 1989 section 17 (in this respect see for example R v Wigan MBC ex p Tammadge (1997–1998) 1 CCLR 581 and see also Complaint No 16 011 569 (Lambeth LBC 2018) para 37). In Wales the duty (for adults and children and their carers) is imposed by the Social Services and Well-being (Wales) Act 2014 sections 35-45 – and see generally Welsh Government Part 4 Code of Practice (Meeting Need) 2015 and ‘Care Planning’ in Rhydian Social Welfare Law in Wales.
 Statutory GuidanceSto the Care Act 2014 para 10.27 and see also Challenging reductions in care services accessible at http://www.lukeclements.co.uk/resources/challenging-reductions-in-care-services/
 Statutory GuidanceSto the Care Act 2014 para 10.27 and see also Challenging reductions in care services accessible at http://www.lukeclements.co.uk/resources/challenging-reductions-in-care-services/
 For the position in Wales see Part 4 Code of Practice (Meeting Need) 2015 para 139 and in England (for adults) see Statutory Guidance para 11.7 and for children (see Department of Health, Guidance on direct payments for community care, services for carers and children’s services England, 2009 (amended 29 October 2010), para 111.
 As the ombudsman notes at para 21 ‘To put this into context, the national living wage at the time was £8.72 an hour’ and at para 25 it states that (this ‘was below the national minimum wage for people aged 25 and over at the time’.
 Complaint no 16 015 248 Lancashire CC, 7 November 2017.
 Complaint no 99/B/00799 against Essex County Council, 29 March 2001.
 See L Allen and C Tallack A short-term drive on international recruitment is no quick fix for social care Health Foundation 22 August 2022 and see also Wales Centre for Public Policy briefing Challenges and Priorities for Health and Social Care in Wales December 2021.
 Think Local Act Personal Report ‘Personal Assistant Survey – The Forgotten Workforce’ (The Local Government Association 2022)
 See for example Luke Clements ‘Now and then’ in Legal Action, October 2022.
 The Part 2 Code of Practice (General Functions) para 38 and chapter 3 sets out in greater detail the obligations on local authorities and Health Boards to work together to ensure that the necessary care and support is available.
 See for example, R v Islington LBC ex p Rixon 1 CCLR 126 – discussed below.
 R v Islington LBC ex p Rixon 1 CCLR 126 129 B.
 Ibid para 130 G-H.
 Ie the duty under the Care Act 2014 section 1(3) and the Social Services and Well-being (Wales) Act 2014 section 6(3).
 Department of Health and Social Care ‘Responding to COVID-19: the ethical framework for adult social care’ (updated 28 April 2021 and withdrawn 1 April 2022).
 Complaint no 16 010 036 against Sheffield City Council 3 April 2018 para 76.
 NICE 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 para 1.3.11.
 See for example reports no 17 018 117 against Lancashire CC (2019) and no 18 010 441 against Cheshire West & Chester Council (2019).
 Complaint against Lincolnshire CC No 16 019 120, 8 August 2017 para 13.