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What do you think of it so far?
Care Act predictions and likely legal illiteracies
Norfolk Community Advice Network
Care Act Networking Event
17th June 2015
Norwich City Hall
Robin Murray-Neill, Independent advice, support and training
on behalf of Belinda Schwehr
Care and Health Law
belinda@careandhealthlaw.com
01252 725890 / 07974 399361
www.careandhealthlaw.com
© Belinda Schwehr, 2015
Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•… To make advice, information,
prevention and independent
advocacy accessible, to help
people to help themselves, first
and foremost
– The risk: the existence of these things depends on councils spending money to
ensure accuracy and comprehensiveness (ie info and advice) and the knowledge and
skills base (ie advocacy) – and replace what’s actually closed, due to the cuts (ie
resurrecting prevention services)
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•…To put wellbeing first, by
requiring its promotion
– The risk: the woolliness of the features that make up wellbeing, makes this duty
legally unenforceable in all but extreme situations – so woolly that it’s almost
impossible to prove that a council wasn’t actually trying.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•To deliver person-centred
assessment and care planning
– The risk: public confidence in this intention was raised sky high by the spin
accompanying the Act and may well implode, on the realisation that decision-making
is left in the hands of council officers. The fact that there is no time limit on the
period that the customer journey should take, or the number of times a council can
offer prevention suggestions to someone on may be grossly exploited, with minimum
risk of challenge.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•… Consistency, through the
national minimum eligibility
threshold, based on an ‘assets’
and strengths-based approach
– The risk: determinedly upbeat assessors make people reluctant to present themselves
as unable to achieve, with consequential significant impact, and hence lose eligibility.
Plus the absence of any national assessment form template may lead to chaos.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•…widespread supported self
assessment
– The risk: customers believing that this simply MUST mean that they get to decide
whether they are unable to achieve, or whether they are experiencing consequential
significant impact; and councils being so attached to online processes that they end
up offering this mode to people lacking capacity or to people who should have had an
advocate. Or even allowing the scoring of a form to determine consequential
significant impact, instead of the customer’s representations on this topic, being
appropriately considered by a professional, and their judgement applied.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•… new rights for carers
– whilst omitting to include a chapter in the guidance that would alert them to these
new rights.
– The risk is either too many carers get the idea that they don’t have to care, and that
the State will pay – or councils fail to get the funds from government to support
willing carers, and thus do not meet the funding shortfall arising from the
demographic timebomb of all those people with cognitive impairments, and no
relatives to help them.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
• …promises to deliver personal
budgets and direct payments
– whilst making getting one’s services through the council the most economically
rational thing we would all naturally want to do.
– The risk is that people will realise that a direct payment only makes sense if the
budget is enough to cover the extra cost associated with being an individual
purchaser – and then there will be litigation about whether that extra cost is to be
denied on the basis that a direct payment is a want rather than a need, or that the
customer will just have to make savings, given the legal definition of a personal
budget: the cost to the council of meeting needs….
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•… promises to make
safeguarding personal
– without giving any further clues about what councils can and cannot legally do, to
intervene in very personal aspects of a person’s life.
– The Act only does three things, really: it makes the threshold for an enquiry very low,
without distinguishing abuse and neglect from accidents or negligent harm; it gives
enormous discretion to councils as to what constitutes a good enough enquiry, and
who should do them – and puts partners’ relations with each other before and after
safeguarding scenarios on an uneasy footing - by making Safeguarding Boards
mandatory and governed by rather vague provisions focusing on co-operation.
– Meanwhile the case law continues apace, highlighting that councils are still legally in
the dark about whether or how calling a process ‘safeguarding’ makes any difference
to duties and powers towards the vulnerable.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•The Act promises freedom to
disabled people to be able to
move around the country and
live where they wish…
– but makes deemed continuing ordinary residence (a relationship with
one’s current council) depend on whether the care planning staff put
some magic words into one’s care plan before one goes
– Even the DH’s Legal Literacy materials point this out as an area of
ambiguity and potential challenge – with new rules about o/residence
and s117 liability having seemingly been drafted by sleepwalkers!
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•Promises to ease transition
from children’s services to the
less politically sensitive adults’
services culture
– but makes Children’s Services continue to pay, until adults services is
ready and it suits everyone else! The risk here is that well informed
parents will appreciate that asking for a transition assessment just
brings the day closer when Children’s Services stops funding, and
Adults has to start; and why anyone would want that day to be brought
forwards is beyond me. A duty to co-operate would have to have miles
more teeth in it, to avoid turf wars there, I believe.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
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• Promises providers that
commissioners will work in
partnership
– but does not explain that it isn’t actually illegal to use the fear of competition that
exists between providers, in order to keep the price low; nor that elected Members
might be better off letting social care off the cuts, rather than making all Directors
take the same cuts, given that there’s a big legal difference between a statutory
duty, and a mere discretion.
– The message needs to be that Reserves do sometimes have to be spent – if the
market keels over, for instance, from commissioning which is too harsh for
‘sustainability’.
– The political message is that a mixed economy of care works well, whereas in reality,
there is no partnership with the private or voluntary sector – the relationship is one
based on market forces. actual inter-dependency, but legal illiteracy about why, on
both sides. What a basis for a relationship!
© Belinda Schwehr, 2015
Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•Promises to make integration
the natural way forward for
maximising the value of ‘the
local health and social care
pound’
– but makes access to the money for it, now safe in the Better Care Fund,
depend on meeting NHS targets – instead of acknowledging that agencies
have been able to integrate by way of pooled budgets and swapped
functions, since 1999 – and it hasn’t worked yet!
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
•…that no-one need spend more
than £72K on one’s care costs
– but ensures that one has to live for at least 4 years in a care home, which is not
statistically likely, before the council has to pay for free care. The risk is that the
Dilnot provisions will be watered down in a post-election negotiation; or that the
market remains disinclined to provide information and advice without the prospect
of there being a financial product to sell, for covering against the cost. The real
concern is destabilisation of the care home market, once the private client subsidy
evaporates, leading to the very uncomfortable need for social workers to take
people home with them from work, since the legal duty is either to purchase – or
else to go back to providing…in order to meet assessed, eligible, unmet needs.
© Belinda Schwehr, 2015
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Let’s compare what we’ve been told the Act will
deliver or achieve, with the real world situation….
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•… to re-professionalise the
workforce to make defensible
decisions
– but gives them no guidance on what is significant impact.
– The answer is to teach them that they are the decision makers, and they have the
power to create consensus about that – consensus that would be respected by the
courts, as long as it was articulated well – that’s what we mean when we focus on
what judicial reviews do – they address unjustifiable arbitrariness, not
professional differences of opinion.
– There is no doubt that advocacy will raise everyone’s game over time. But unless a
culture of reading is reintroduced, and personal responsibility for one’s remaining
up to date, I don’t see any means by which councils are to be held to account for
the level of Care Act knowledge, and the skill in using that knowledge, of the staff.
© Belinda Schwehr, 2015
Other headline changes
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• Fines for delayed discharges to become discretionary, because of
good joint working and the better Care Fund agreements between
Health and Social Care
• A streamlined charging system with a new focus on mental
capacity regarding finances and sharing financial information
• Deferred payment arrangements for anyone meeting
financial/other criteria, and a principle of debt recovery only after
you have offered a deferred payment
• New quality standards for providers
• New human rights status for providers
• A new criminal offence about false and misleading information
• A new proactive duty of candour
• A new form of appeal, by 2016.
© Belinda Schwehr, 2015
Some scenarios to challenge your thinking!
• A council spends £14 an hour on care. An eligible person wants
£16 per hour, by way of a direct payment - not for a luxury
service but because the local market charges individuals more
than it charges the council, because you of course, buy in bulk
and pay quickly and accept a standardised service.
• What would you expect your staff to say?
• A person with epilepsy wants to go to live in Sutton in a
specialist provider’s flats on HB – he wants you to continue to
pay for him, and the flats count as ‘specified accommodation’.
Trouble is, the care package charge is £2300 a week. There is
no cheaper competitor there, but there is one here.
• Must the council accept liability for the person’s
understandable desire to move to somewhere else?
© Belinda Schwehr, 2015
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• A carer who is well informed about carers’ rights is on a package that costs £375 a
week – it covers respite. The service user’s other needs cost £450 a week to meet.
The cost of a residential care service is £650 a week.
• Is it going to be your council’s policy to continue to support the carer’s interest in
caring for ever, no matter what the cost?
• A person refuses assessment – it’s known that they are living in squalor, without
amenities, but it’s not known why. The neighbours are beside themselves about the
risk to others. The person tells your staff that it is their life, and their choice.
• Does the council think that self neglect triggers the duty to make a safeguarding
enquiry? Can it afford to, in terms of the resources thereby needed?
• The council’s asserted usual rate or guide price for care home care, is £450 a week
but only 20% of care homes in the area take that rate – the rest ask for top ups. The
providers are also lobbying for an increase in the standard rate, and threatening to
bring judicial review proceedings. Officers tell members that the mood is angry.
• Does the Council simply accept insufficient funding from central government
rather than make a fuss about the irrationality of the funding settlement? Or
expect staff to manage within budget, regardless of the mandatory nature of the
duty to meet the needs. Or expect private sector businesses to make savings year
on year, even though the cost of provision is not remaining the same?
© Belinda Schwehr, 2015
Why read this presentation?
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Advisers who are relatively unschooled in social care law need to understand how this particular branch
of the law works: this is public law, and it’s full of margin for the unique and unpredictable situations in
which the job has to be done – it is hard to bring a successful challenge against a council in this sphere,
even though when it happens, lawyers think it will change the world. Social services staff are very poorly
taught about the interplay between statutes, guidance and caselaw at the degree stage and receive
hardly any CPD in it, so the Care Act has been a bit of a shock for them.
Public law duties are not the same as negligence: councils have a duty TO care, rather than OF care. That
is, there are statutory duties to discharge, and that must happen - even if the department runs out of
money – the duties are council corporate duties; and if they are not done, the council can be challenged
– but not just for doing them in a less than careful way or poorly. That is what the complaints system and
the ombudsman are for.
The courts have actually given councils protection against actions in negligence, or damages for breach
of statutory duty, in the social work managerial context – even in safeguarding - for public policy
reasons. Councils neither choose to take on these duties – they are mandatory – and they are
underfunded by central government – and usage of tight resources is not normally seen as justiciable –
and there is no equivalent to the function of assessment and care planning and provision in private law,
in contrast to the position of those in the medical profession and working in the NHS.
So public law is all that there is, for ensuring any kind of consistency. Even that will disappear, if we are
not careful, once the so-called ‘appeal’ system is brought in – there will be 150 councils making 150
different sorts of decisions on the very same legal provisions, and no-one taking them to court any
longer, because the probably non-legally qualified (and free) external reviewer will highlight the most
extreme, and the councils will settle the appeals without any precedents ever being set.
© Belinda Schwehr, 2015
Things to look for in local practice
With statutory duties and discretions, the bigger risks arise from a council
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Not doing them at all, or taking unfeasibly long about it
– Eg: not providing advocacy where it is acknowledged to be necessary
– Not offering direct payments for a particular client group not excluded from the opportunity
– Stretching the assessment phase out, by offering prevention again and again, and never saying when they will get
to an eligibility decision
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Not doing them sensibly, or in accordance with the guidance, without a good reason!
– Eg: running a waiting list for a scarce resource based on alphabetical order instead of need
– Not giving reasons for why an offered package or budget is considered to be enough..
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Not doing them legally, within the words used in the Act or Regs – or ignoring the statutory purpose
– Failing to allow a person to require the involvement of a nominated person in a decision where this is required, or
regarding their relative as their informal supporter without getting the person’s consent or making a BI decision.
– Imposing a condition on a direct payment recipient that negates the whole point of the offer – choice/control
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Fettering discretion or not doing decision making fairly, so far as procedural fairness rules are concerned...
– Failing to consider giving a person direct payments to spend on a close relative in the same household
– Not allowing a person to make representations in respect of their position on ability to achieve or what is wrong
with the suggestion that a service available for free locally could appropriately meet a person’s needs.
And with a new piece of legislation, in an era of government cuts, the real risk comes from
• Not understanding what’s changing, or where to check that out – staff don’t know what they don’t know, or
when they are on a legal wobble…
• Not following guidance because the staff are not familiar with it – there is no culture of self-starting for study
purposes in adult social care…or even private reading!
• Not being ready to be challenged, and thus driving people to visit likely looking lawyers…lots of councils are
run on a command and control basis, with staff genuinely afraid to raise questions about legality, and that
spreads to the relationship with customers, in the end.
© Belinda Schwehr, 2015
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What’s the position about old and new clients?
People who are already receiving services and support (including direct
payments) prior to 1 April 2015 will continue to receive such support and
services under the old law until the local authority completes a review of
that person’s case, at which point the new law will apply in respect of that
person. In practice, such a review can have one of two basic outcomes:
• the local authority concludes the person does not have care and support
needs that they are required to meet under the Care Act (for example
because needs do not meet the eligibility criteria), and the authority does
not intend to meet any of the person’s other needs; or
• the local authority, having concluded that the person does have needs and
that they are going to meet some or all of these needs, starts to do so
(assuring itself that existing arrangements fully comply with the Care Act,
making any adjustments as necessary).
• In my view, any change to the content, or value of the care plan, means
the plan is changing and will need to comply with the revisions section
(s27) and that any plan – even if not actively changing, will need to
comply with s25 – the requirements for a lawful Care Act statutory plan.
© Belinda Schwehr, 2015
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What the DH requires of councils now
• Reviews of existing care and support plans will usually take place at least
annually. Therefore, it will usually be most pragmatic for the transition under
the Care Act to take place at the point of the planned, regular review. In any
event, local authorities must undertake a review within one year of the
implementation of the Care Act (i.e. before 1st April 2016).
• If they do not, the Care Act will apply as of this date and anyone who has not
been reviewed will be treated as having their eligible needs met under the
Care Act until the local authority does, in fact, complete a review and reach a
decision in accordance with the Care Act.
• Local authorities must not use existing legislation to underpin care and
support planning or provision after 1st April 2015 in respect of cases other
than these transitional cases. The purpose of the saving in the Order is to
enable local authorities only to continue with existing arrangements pending
a review, so as to plan a managed transition over the first year.
© Belinda Schwehr, 2015
First contact foolishness – nb a non-statutory stage
• Not reconfiguring First Contact services, so as to have at least some senior qualified or
very experienced staff up there – with antennae, for sensitive decision-making
confidence, and legally aware supervision… regarding for example – who should and
could not be offered Supported Self Assessment in terms of capacity; who needs a face
to face assessment; who needs an advocate, given their difficulties and the stance of
their relatives?
• Setting up implicit thresholds to getting past this point, on to assessment ‘proper’ - like
one’s IQ, severe or enduring mental illness, having a diagnosis, etc
• Getting the level, skill factor or even the basic question of urgency wrong for a proper
assessment beyond your ‘front door’.
• Not at least offering people ‘a supported self assessment’ if they do have capacity to
take part in one, and wish to, (everyone having understood what an SSA really is and is
not!) and not allowing them to say who they want involved, and involving them in the
process as per the statutory rules.
• Turning people away at this or an even earlier point, without identifying whether you
are
A) purporting to be actually denying them an assessment and if so, why,
B) saying that they have just actually had one from you (without their realising it) and
that they’re not eligible – even though some will have deserved an advocate - or
C) just saying ‘Try this first, and let us know whether it works....’ without following up
• Saying no on the basis of an ignorant view of ordinary residence rules
• Saying no on the basis that they’ve not moved here yet...
• Saying there is no point because ‘we don’t do shopping/cleaning/meals/transport etc’!
© Belinda Schwehr, 2015
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Advocacy accidents
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• Failing to spot someone would experience substantial difficulty, at the right point.
• Not having commissioned enough, so that assessment or other stages are delayed. It’s a
duty!
• Failing to appreciate that supported self assessment (as defined!) could be offered to
the person if they actually had an informal involver or, in default, an advocate – all it
takes is sufficient capacity to take part – that’s not what the guidance says, mind you!
• Forgetting to get the consent of the person to the informal support from their informal
involving person – most councils will assume people’s relatives are wanted as supporters
• Finding willing involvers to be inappropriate for obviously challengeable reasons
• Finding unwilling involvers to be appropriate, regardless, and thus failing to appoint
• Forgetting that alongside advocacy, a person has a right to require a council to involve a
person of their own choosing, and that wider other people are best interests consultees
of people lacking capacity, in whose wellbeing they are interested, unless or until a
council decides that to be inappropriate or impracticable...
• Overlooking the exceptions to the exception: ie where, notwithstanding the existence of
a willing and appropriate informal involver, councils must appoint an independent
advocate in any event!! (conscientious as opposed to rabid material disagreements)
• Appointing people who don’t have any training, or knowledge, or working towards the
new qualification within a year...
• Appointing insufficiently independent people – tricky because the regs fail to make it
clear as to whether it is a contracted advocacy organisation that must be independent,
and not otherwise working for the council - or the advocate, him or herself, in person….
© Belinda Schwehr, 2015
Prevention Pitfalls
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• Signposting, without finding out if there are actually vacancies or services out there still!
• Assuming that people can buy their own: no good if the services are not affordable to
ordinary people – a perverse disincentive to take personal responsibility, if it’s cheaper once
one is eligible
• Not focusing on whether the ‘prevention’ is to prevent one from becoming eligible, or to
prevent their becoming even more eligible; or whether it is to reduce their eligible need or to
reduce it more so that they are not eligible. This matters because of where the council must
put the service: in the plan, which leads on to the chance to take funding as a direct payment,
or on the way to an assessment, as an offer to all those ‘suited’ to it for (eg equipment, reablement or counselling for motivation). If it’s in the plan, it counts towards the independent
budget, unless specifically excluded by Regs.
• Not listening conscientiously as to why a person won’t avail themselves of preventive services,
but then taking that into account as relevant to significant impact considerations at the
eligibility stage. If councils want to be brave and take it as relevant to significant impact, they’d
need to make sure that there was no very good reason, or only a completely indefensible one,
like racism, for the person’s having turned down access to preventive or universally available
services which were available at the time.
• Getting in a mess about what can be charged for if merely preventive, and what can’t be.
There is a separate charging power in the Act and Regs for prevention services, so in principle,
councils CAN charge – but not if it’s reablement or intermediate care (a programme…) and nb
they can’t charge for equipment they provide in any circumstances. Different if an outside
provider is selling the equipment to the person, eg in extra care.
© Belinda Schwehr, 2015
Assessment aggravations and
eligibility embarrassments
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• Taking a person’s refusal of assessment at face value instead of following section 11.
• Not covering all of the domains that an assessment should cover, in the name of minimum
process or the client’s say-so. The client is not the real decision maker, even if fully
capacitated, or even when they’re saying that they’ve not got a particular problem with a
given domain within an assessment.
• Overlooking the definition of inability – it is a stretched one. So even if staff start out focusing
on the person’s assets and strengths, it doesn’t mean that they don’t count as unable to do
something – for instance, if they are getting assistance, so don’t see their difficulty as a big
problem….many people will have not been told this!
• Overlooking the need to be carer blinkered in relation to ability or impact – ie forgetting that
staff must assess the person’s ability and the impact of inability, without regard to the
existence of current help.
• Appearing not to be taking any account of desired outcomes or the person’s own view of the
impact arising from the difficulty – this would make it difficult to exercise discretion about
meeting non eligible needs at the planning stage too.
• SMT running a panel that goes as far as second guessing staff’s decisions on eligibility but not
giving the workforce any steer on what is significant impact on well-being, or how to measure
it.
• Paperwork with no spaces for the client/involver/carer/any relevant person’s advocate to
assert a different view.
© Belinda Schwehr, 2015
More elaboration to which councils must have regard
because the guidance says so – but is it even correct?
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“maintaining a habitable home environment” [note: no reference here to the adult’s
ability to do this for themselves….cf the other domains in the regs…]
The guidance says this:
• Local authorities should consider whether the condition of the adult’s home is
sufficiently clean and maintained to be safe.
• [ie consideration of their environment, not the person’s active capability].
The 2 examples in the guidance follow this approach, and treat the fact that the carer
does the cleaning as enabling no finding of eligibility on this domain.
Of course if the carer is able and willing then there is no duty to meet the need, but
that doesn’t mean that the person is not eligible in a s13 context.
If the person is eligible based on inability to achieve in two or more areas, plus
significant impact on wellbeing, then that is an important finding for process and
paperwork under the Act.
The guidance is probably not lawful here: the regulations make needing assistance
including even prompting key to the decision about inability to achieve. Plus the
guidance itself says to ignore the help from a carer, so is not even consistent with
itself.
© Belinda Schwehr, 2015
Care Planning - budget bungles and RAS wrangles
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Having a Resource Allocation system that is based on fantasy figures and global deflations and 0 pounds for points
relevant to the outcomes in the regs, without any good reason.
Not making it clear that the indicative allocation is only a benchmark, not an offer, much less a take it or leave it
offer!
Funding up to the cost to the authority, and never any more than that.
Ignoring s25 on what a care plan must have in it. This is not optional.
Ignoring Choice of Accommodation legal requirements or misinterpreting them – eg a policy that we “keep people in
the borough” by reference to the rate there. The Annex on Choice is explicit on taking the rate in the area chosen
even if it the move is not “needed”.
Running a different sort of a RAS for care homes: an arbitrarily low allocation for people needing that response
undermines their choice rights, and risks extracting top ups inappropriately
Running an online purchasing system for framework providers which generates offers against anonymised needs, but
treating the lowest suitable offer as the personal budget and anything more as a top up.
Offering the deployment route of a direct payment without having sorted out how the direct payment version of a
PB will really need to be run – capacity considerations, an Authorised Person scheme, signing off of conditions for
the award of a direct payment, providing free support or admin services to attract people to this option vs extra
budget to ensure people can choose a manager?
Not monitoring whether DPs are working, and thus spotting safeguarding issues in a timely manner.
Signing off care plans with far too little response or money, to meet needs, with no evidence basis.
Not commissioning services, or funding DPs, for objectively reasonable preference or sufficiency and holding
customers to that inadequate discharge of responsibility = “you can make the savings for us!”
Saying no to funding a direct payment on the basis of evidence as to why it costs a bit more for an individual than for
the council to buy a particular service, or ‘No’ simply because of the cost.
No reasons given for why a given offer of anything is rationally believed to be enough to be appropriate.
Ignoring the MCA at the care planning stage and getting into more Somerset or Cheshire West or Milton Keynes
moments
Ignoring any other relevant and applicable legal principle, including human rights.
© Belinda Schwehr, 2015
Direct Payment disasters
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• Giving them to people who lack capacity to request a direct payment, direct to them – and then
regarding them as accountable for misuse – illegal since 2009, as it happens!
• Refusing people a direct payment when they have enough capacity to request one, without a
good reason (eg the council doesn’t like their nominee – that’s not enough of a reason even
under the new law.)
• Thinking that the council could buy the service for less, because it’s been so good at crushing the
market with its dominant purchasing position – and offering less – or offering everyone an
Employer and PA rate, even if they are going to use an agency – or a flat rate regardless of the
skill factor that a PA would objectively need, such as required for deafblind people…. the offer
has to be RATIONAL!
• Getting the role of nominee mixed up with the role of the authorised person to whom the
council can give the direct payment separately and accountably
• Treating the presumption that cohabitees and close relatives in the same household will not be
doing the work that is funded, as a rule, and never considering necessity, as required by the fact
that this is a discretion in the legal framework.
• Not having a clear policy on when or if or in what circumstances, the council will ever fund the
administration of the direct payment separately, and/or by close relatives in the same household
• Not ever imposing conditions, so not managing public money properly
• Imposing conditions that are unreasonable: like having a payment card as the only option when
it’s not even in a bank account in the person’s name
• Paying net, when there is a really good reason to pay gross
• Allowing monitoring outcomes to go unaddressed, despite concerns
• Not ever recouping unspent money from one particular group - discriminatory
• Recouping it too savagely without regard to all relevant circumstances
• Not offering s117 clients direct payments unless they have got access to legal aid to use JR!!
© Belinda Schwehr, 2015
Carer crises
• Refusing to treat someone as a carer because they are not doing ‘enough’, in the
council’s opinion…that test has gone!
• Telling them that the law is that they must care, or being economical with the truth
that councils need really them to care but have to back fill for meeting eligible needs, if
a carer doesn’t want to any longer
• Applying the wrong criteria to them – the regulations have two sets – different ones –
easy to overlook that fact.
• Thinking that they can still all just be signposted to a hub for carers’ services – without
making it clear that they can insist on an eligibility decision as well that is personal to
them
• Trying to give carers a sum of money that has no rational evidence basis, and which
would only be appropriate if there was a discretion to meet needs as now, instead of a
duty to meet eligible assessed unmet needs of carers.
• Budget limiting the carers’ Resource Allocation system
• Ignoring carers of people in care homes – practical and emotional support is enough.
• Ignoring carers of people with CHC status
• Mixing up the carer charge with the service user or recipient charge in a case where the
person needing the service has consented to receiving replacement care as if it were a
carer’s service – only the recipient can ever be charged.
© Belinda Schwehr, 2015
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Ordinary residence ordeals
• Not distinguishing between s117 people and everyone else – it is a bit different and all in a mess
and all mired in the transitional provisions in any event.
• Not deciding what you think specialist accommodation IS or means: goodness knows what we are
supposed to do about this definition of one of the types where deemed o/r continues: ‘where
personal care is available if required…’??
• Not understanding that continued o/r [probably!] turns on the client’s needing personal care, not
just care and support
• Not being consistent across different client groups as to whether social care clients who move
into personally contracted for accommodation (tenants and licensees) are covered and continue
as o/r – it seems to us that Shared Lives clients do move as licensees or tenants, in most cases,
because of the way these arrangements are structured in the real world, and will qualify under
that rule, not the Shared Lives rule…
• Not understanding the role of incapacity or solutions to it, for those wanting to move as tenants
(deputyship leads to accommodation arrangements made privately, not a placement.)
• Not appreciating that the need for the specified type of accommodation has to be put into the
Care Plan before O/R can be seen to continue – although this is BOUND to be put right soon, I
would suggest, via an amendment to the regs.
• Putting that need in the care plan before the cost of the care has been worked out, and a provider
has been found, in complex care and support provision arrangements, and thus falling into
dispute in specialist cases where the care is very costly – leading to the spectre of top ups for
care, or local out of area providers going into private sector specialist supported living facilities
and destroying the viability of them. How cunning!
• Leaving a client in a provider’s setting without an interim contract, because of a dispute….
• Not deciding whose job it is to decide, in house.
• Not abiding by the new dispute resolution rules and time frames
• Mixing up choice rules and o/r rules, just because they appear to be structured in the same way.
© Belinda Schwehr, 2015
31
Choice and top-up terrors
• Thinking that public procurement obligations for social care require OJEU levels of
transparency or could ever trump ‘choice’ rights
• Having an approved provider list and not letting people choose outside that list.
• Thinking that the choice right simply passes to the relatives, if the person is incapacitated
– the council is the best interests decision-maker.
• Just offering a list of registered providers to those needing timely hospital discharge: it’s
the council’s job to point to the ones that are considered suitable by the authority, which
is the decision maker on that particular pre-condition!
• Getting confused about whether the choice right applies to the type of accommodation or
setting - instead of the provider of that specific type.
• Thinking that the council can take a figure out of thin air and say that anything above that
is a top-up – even if the figure is arbitrarily low.
• Possibly, taking the guidance at face value on there only needing to be one home at the
rate offered, for it to be lawful to regard higher prices as top-ups. Offering one home in
the area that takes the asserted rate for the package even if it’s horrible - and even if it
isn’t, has no vacancies at the time....
• Not using the usual rate in another authority where that’s the person’s choice – and there,
of course, the concept of usual rate (ie some notion of average) still applies, because the
person won’t have a personal budget for the meeting of needs in another borough.
• Letting the providers double charge by not taking steps against private top ups for things
already covered by the council’s contract...
• Not vetting the offeror of the top-up for their own financial standing: it’s the council’s risk
– and leaving the client insecure for want of payment!
• Not contracting for the whole amount when the council is acting as the buyer – the rules
require it
© Belinda Schwehr, 2015
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Reviews risk-running
33
• Not getting everyone onto a Care Act care plan in one year – ie by 2016
• Ignoring the regs and guidance as to the longest anyone should go without one, –
the ‘expectation’ is annually.
• Mixing up service or performance reviews and/or FEES reviews, with statutory
review of whether the package is working to deliver the meeting of needs and
outcomes – eg sending out ‘cost brokers’ to do the latter!!
• Ignoring providers’ evidence from reviews and not organising your own or
otherwise adopting theirs as yours, formally.
• Rejecting requests for revisions of the plan when it would be unreasonable to do
so, on a clear change of circumstances, for instance.
• Automatically refusing review because someone has asked for too many
• Revising a plan so as to change the manner of provision or the provider, whilst
contending that there is no suggestion that the person’s actual needs are thought
to have changed, without doing a proportionate re-assessment – this is very likely
to attract attention because of the old legal principle that care plans are sacrosanct
until a lawful re-assessment – particularly where there is a disagreement that the
new ‘method’ will feasibly work, or as to whether it will meet the client’s outcomes
– and in particularly where the new provider involves a change in someone’s
complex personal care provision, or in the place where they actually live or have
had long term or extensive day services (because of human rights).
© Belinda Schwehr, 2015
Charging catastrophes
34
• Charging a person more than it actually costs the council to provide them with the
[discounted] service
• Charging a carer for the service that is actually provided to someone else: RESPITE,
SITTING, etc
• Charging for re-ablement in the first 6 weeks, or charging for equipment supplied or
commissioned for supply by the council at all, or for adaptations under £1000
• Charging a person based on their joint assets instead of half.
• Refusing to deduct disability related expenditure from a person’s means – if the
charging policy takes account of disability related benefits that are non means
tested.
• Treating people’s spend on existing debts as depriving themselves of their assets.
• Trying to sue a person with grave cognitive impairment without a litigation friend in
place.
• Suing a person for care home related charges without asking them to give the
council a deferred payment charge
• Not grappling with the potential Consumer Credit Act aspects of non land related
offers of security.
© Belinda Schwehr, 2015
Safeguarding sloppiness...
• Ignoring the client who actively prefers the life they have, even though they know
their loved one’s behaviour is not nice. Their best interests are for them, not the
council, in this country, because of human rights. Of course they may be vulnerable in
terms of cognitive functioning through dependency, duress, and intimidation, but
there are different routes for taking that possibility forwards.
• Ignoring a suspected neglecter or abuser, without having it out with them: they are an
MCA best interests consultee unless you decide otherwise, but you have to be up
front about it.
• Assuming that you don’t ever have to do a s135 or a Public Health Act removal just
because the 1948 Act provisions have been repealed. It’s not always a lifestyle choice,
if it’s incapacitated insanitariness, and not knowing what COULD be done is at the very
least, maladministration in the safeguarding context.
• Ignoring property protection duties for those in care homes or hospital if they can’t
manage to take care of their goods or pets
• Not ever asking the SAB to use the information sharing power that s45 has provided,
in support of ordinary level safeguarding.
• Thinking that self neglect is outside the remit of safeguarding: if it’s incapacitated self
neglect, it MUST be in.
• Delegating safeguarding formal decision making in breach of the Act.
© Belinda Schwehr, 2015
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36
Thank you for reading this!
• Care and Health Law offers legally neutral and well informed training,
nationwide, through a team of trainers, who are all practitioners, trainers or
social care lawyers.
• We also offer
• ordinary residence consultancy,
• alternative dispute resolution services
• Care Act compliance consultancy about policies, protocols, and revisions of individual
packages or budgets (eg independent living fund revisions)
• The courses suite and the rates and our quality assurance policy and rationale
are all able to be found on the Training and Webinars page of
www.careandhealthlaw.com
• We never give an opinion about what the law means, without having a reason
to offer up for it.
• We believe that Legally Literate Leadership is an idea whose time has finally
come, within adults’ social care…
Belinda Schwehr, Care and Health Law
You can contact me on belinda@careandhealthlaw.com,
or 01252 725890 or 07974 399361
© Belinda Schwehr, 2015