The Challenge of Personalisation: a
Legal Perspective
Michael Mandelstam, In Control Conference:
Watch out: it’s the law!
Three main challenges
• 1. Potentially radical new social care policy
sitting on old law.
• 2. Pressure on resources, staffing, money,
time.
• 3. Risk.
1. New policy stuck on to old law
• POLICY:
• Putting people first: a shared vision and commitment to
the transformation of adult social care. HMG 2007.
• LAC(DH)(2008)1. Transforming social care.
• LAC(DH)(2009)1. Transforming social care.
• Independence, choice and risk (DH 2007)
• Website: puttingpeoplefirst.org.uk. Various govt. advice
on: Resource allocation system (RAS), self-assessment,
brokerage
Old law
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LEGISLATION:
NHS and Community Care Act 1990, s47
National Assistance Act 1948, s.21, s.29
Chronically Sick & Disabled Persons Act 1970, s.2
Heath Services and Public Health Act 1968, s.45
NHS Act 2006, schedule 20
Mental Health Act 1983, s.117 (aftercare)
Old/new law
• Health and Social Care Act 2001 (as
amended): community care direct payments
• Welfare Reform Act 2009 and: SI 2010/2862:
Disabled People’s Right to Control (Pilot
Scheme) (England) Regulations 2010
(Supporting People, Independent Living Fund,
Access to Work, Disabled Facilities Grants
Why does it matter?
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Lack of detailed Parliamentary scrutiny?
Lack of clarity for local authorities
Lack of clarity for service users
Even for the courts? (R(Broster) v Wirral LBC,
2010)
2. Resources
• Radical new policy being introduced at time of
severe cost cutting is not a sought after recipe
• Risk that the new policy and, in particular, the
good bits, will be undermined
• Legally the test for decisions in personalisation
and personal budgets lies in the old legislation
• This is not always realised
Local authorities containing
expenditure
• Local authorities can contain or even reduce
expenditure legally but they must do it in the
right way
• Route A is lawful: raising the eligibility
threshold (fair access to care). And/or meeting
people’s eligible need cost effectively
• Route B is unlawful: not meeting people’s
assessed, eligible need
Fair access to care
• Critical need/risk independence
• Substantial
------------------------------------------------------------• Moderate
• Low
• Prioritising need in the context of Putting People First: a whole
system approach to eligibility for social care - guidance on
eligibility criteria for adult social care, England 2010.
Department of Health
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Legal challenges
• R(J) v Islington LBC 2009: RAS type formula
used to cut disabled child’s care: need not
being met, unlawful
• R(McDonald) v Kensington and Chelsea RB
2010: council meeting assessed need but
wishes to do this with incontinence pads adn
not a night time carer: council wins case
• R(Savva) v Kensington and Chelsea RB 2010:
RAS unsufficiently transparent: unlawful
3. Risk
• Councils to some extent are hamstrung
• How far to keep their hands off or on
• Acutely aware of underlying old “paternalistic”
legislation, as against potentially radical new
ideas
• Also anxious as to how personalisation
dovetails with safeguarding
• And the unwise decision of the capacitated
but highly vulnerable person
Personalisation: risk, one notion
• “As a general principle, councils should avoid
laying down health safety policies for
individual direct payment recipients.
Individual should accept that they have a
responsibility for their own health and safety,
including the assessment and management of
risk” (Guidance on direct payments for community
care, services for carers and children’s services: DH
2009).
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Risk: another notion?
• “However, the local authority remains
accountable for proper use of its public funds,
and whilst the individual is entitled to live with
a degree of risk, the local authority is not
obliged to fund it”
(Independence, choice and risk. DH, 2007).
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Risk: proportionality
• Proportionality principle relevant to:
• Negligence (reasonable standard of care),
• Health and safety at work (reasonable
practicability)
• Mental capacity (best interests, least
restrictiveness, restraint etc)
• Human rights (article 8: justification for
interference by State in people’s lives)
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