Personal budgets legal issues arising out of the

Personal budgets – legal issues arising out of the different Scots and English legal frameworks Belinda Schwehr Care and Health Law 01252 725890 belinda@careandhealthlaw. com 1

The hot topics • Maxima for Resource Allocation systems – where are the lawyers, in Scotland, for goodness’ sake? • The principles underpinning appropriate support/care packages delivering Independent Living and longer-term sustainable outcomes • Funding purchasing support to SDS recipients as a key condition for any successful policy • Resource allocation and its impact on the rise and risks in a market approach – especially for providers • Contract issues – for providers selling to individuals, groups and to local authorities and the NHS, when the money supply is the State’s.

What we could talk about today: • Queries arising out of the advice I did for ADASS – related to issues regarding RA Systems, assessment, support planning and ‘sign-off’. The links for this information can be found here, by the way: • • http: //www. adass. org. uk/images/stories/ADASS%20 Personalisation%20 and%20 the%20 law_1 2%2010%2009. pdf http: //www. adass. org. uk/images/stories/Appendix%20 A_%20 Opinion%20 legal%20 impl ications. pdf • Your potential new roles – brokerage, supporting people’s spending; payroll and advisory services; advocacy and Suitable Person or withdrawers’ responsibilities. • Managed Personal Budgets – will you be making contracts with LAs for subcontracting out some of the constituent elements of the service? Or acting as agent for the client, directly, in contract, as brokers? • Engaging the market and dealing with its concerns – on-costs, pricing, TUPE, poaching etc. • Your concerns, for the next piece of advice that ADASS is producing – minimalist legal requirements for commissioning - guidance for all local authorities © Belinda Schwehr, 2010 3

The actual legal framework for personalisation • Assessment – will basically proceed as now – but through a self-directed support questionnaire • Resource Allocation – will basically proceed as now, but through an apparently objective points-andpounds or comparison-with-other-clients system • Care Planning – will basically proceed as now – but it may be called support, or brokerage, and be much broader in terms of what one can use, to meet need. • Routes to the money – will be basically what they are now – either direct payments or commissioned or directly provided services.

OVERVIEW of how personalisation actually works in the current legal framework • There is no such thing as self-assessment – assessment is a local authority function. It can be user-led or self-directed or supported. • Eligibility is a separate issue from resource allocation – it’s governed by the authority’s idea of needs for community care services, as interpreted under (in England) fair access to care services guidance. • Resource allocation is a product of support planning functions and thought processes. • Eligibility depends on not just your situation, but what you have available to you, by way of willing and able help. • Your eligibility does not depend on your financial situation, or on what you could claim benefits for. But the more you can get the more of your own needs you can meet, and that will mean that the burden to the authority will be lessened, such that they authority will be more likely to support your independence in the most independent setting that is financially prudent – your own home, if you are lucky. • The initial resource allocation can only be indicative because until the person has decided what social capital they can reasonably pull in to their life, the extent of their unmet need will not be finalised. • The basis for the initial and final resource allocation must be able to be explained, in principle, by a local authority.

Overview, continued • Brokerage, or help with support planning, involves the decision whether to take a direct payment or not, and hence Direct Payment support organisations are not brokers, automatically. They are either well-being services provided by councils to encourage direct payment take-up, and accountable to the authority, or they might be commissioned by the client, as managing agents for the spending of the direct payment, under the agency power in s 2 Local Government Act 2000. If the latter, the organisation is accountable to the client. It cannot be both, at one and the same time. • Supported or co-produced support plans must be formally signed off to indicate formal agreement and adoption by the LA, and so must contain enough detail to justify the financial resource allocation. • Intelligible reasons for the final allocation of resources or refusal to increase the initial allocation, must be given by the decision-maker • Sign-off MUST indicate whether the person is taking the budget as a direct payment, or as a managed personal budget, or a bit of both. All sorts of liabilities and responsibilities flow from that decision. • The offer may be accepted, accepted and complained about, refused or refused and re-negotiated or either, and then judicially reviewed, but not appealed.

Community care legislation – in England – specific about services • S 117 Mental Health Act – pretty well anything for someone discharged from compulsory section for their mental health aftercare needs • S 29 and s 21 -26 National Assistance Act – general welfare services for disabled people, including the mentally ill, and care in a care home for eligible people without care and attention otherwise available to them • Chronically Sick and Disabled Persons Act s 2 – home based services for disabled and ill people – this applies exactly in Scotland as it does in England. • Sched 20 NHS Act 2006 – health related aftercare from social services • S 45 Health Services and Public Health Act (services for the frail elderly person)

The current adults’ social care framework as interpreted through case law over 10 years – a 4 page overview • • • Anyone with an apparent disability or long term condition is entitled to assessment of needs for services of a community care type. These are defined in s 46 of the NHSCCA 1990 and cover 5 bits of legislation, all worded differently. You have the 68 Act and the CSDPA. LAs are entitled to consider whose needs are ‘eligible’, by reference to Fair access to Care Services guidance based on ‘risk to independence’ arising from the needs, if no social care input is forthcoming. The threshold is local and can move due to finances. Needs that are eligible have to be met, by way of a care plan, setting out the authority’s view of how to meet the needs appropriately and lawfully – and nb, however much it costs, if there’s only one way…There are no waiting lists allowed simply because of resources or budgets – not where duties are involved. Absence of a service has to be got around by the provision of other means to meet need. There is no appeal against a care plan – only negotiation, refusal, a complaint, or judicial review. English authorities get sued ALL the time. People with eligible needs can ask for a direct payment – a cash equivalent of the care plan, to get more control. These cannot be spent on in-house services, (they can here!) but a person can mix a DP with a managed budget and use the latter for in-house services. Since November, the supporters of incapacitated people can ask to be appointed by LAs to manage the money in a direct payment. They do not get any other power or authority. IN Scotland you do it through guardianship or a power of attorney and Access to Funds withdrawing arrangements supervised by the OPG. Belinda Schwehr, 2010 ©©Belinda 2009 8

The elephant in the room: Scotland has waiting lists for social care services, despite its Mac. Gregor judgment – how is that going to work with SDS? ? How do your in-house public lawyers explain it away? It is inconceivable that it would be allowed to be ignored, in England. The Scottish Executive is partly responsible: • “The purpose of drawing up a Protocol which appears to meet the requirements of the Hardie judgment, is to ensure that those who have had needs assessed are not simply placed in a date order queue for services. The Protocol says that they must be systematically reviewed, and when resources become available these must be used for those in greatest need. • We are of the view that the Hardie judgment could be seen as rather contradictory. We are also of the view that the Protocol is a satisfactory document and that it makes any similar case in future less likely to succeed because if it is followed, it ensures the systematic review of those assessed as in need. It should ensure that people’s needs are at the forefront of considerations by the local authority in allocating resources, and that date order queuing without ongoing needs reassessment should no longer be considered an acceptable practice. ” • • How can the above advice, be reconciled with this analysis, in the very same letter from the Scottish Executive? “This case appeared to have crucial implications for local authorities in that it suggested that if someone had a need assessed under S 12 A, then the local authority had a duty to meet that need regardless of available local authority resources. Lord Hardie ruled that the resources available to a Council were irrelevant in coming to a judgment about an individual’s needs. They were relevant however, in coming to a decision about how to meet these needs. He made clear however, that it was not an option for a local authority to do nothing if resources were not available. ” © Belinda Schwehr, 2010 9

Your law, as opposed to England’s Section 12 B sets out in detail the duties on local authorities and laws/procedures in relation to the circumstances under which a local authority can offer to provide a direct payment for community care services; contributions to and repayment of, direct payments by the cared for person; the rules on when and how consent can be granted for a direct payment by or on behalf of the cared for person; who can provide a community care service under a direct payment arrangement the levels of financial contributions permitted to be made by the cared for person in order to contribute to services where the bulk of the service is provided by the direct payment; the scope for subsequent regulations. In particular, the 1968 Act allows further regulations to set down the categories of people who can and cannot be employed to provide a social care service under the direct payment, the circumstances where the local authority can terminate the direct payment and circumstances where payments can be made on behalf of the cared for person. © Belinda Schwehr, 2010 10

Your councils’ duties The Community Care (Direct Payments) (Scotland) Regulations 2003 • From 1 June 2003 local authorities have been under a statutory duty, in terms of the Community Care (Direct Payments) (Scotland) Regulations 2003, as amended ('the 2003 Regulations'), to offer direct payments to all who are potentially eligible, as defined by these Regulations. • Where a person is over 18 and clearly unable to give consent, or is under the age of 18, Regulation 3 of The Community Care (Direct Payments) (Scotland) Regulations 2003 ('the 2003 Regulations') specifies certain categories of people who are able to give consent on behalf of the service user, namely those with parental responsibility, attorneys and guardians who have powers to manage direct payments on the user's behalf. © Belinda Schwehr, 2010 11

Not employing close relatives unless ‘necessary’ The Community Care (Direct Payments) (Scotland) Amendment Regulations 2007 • The 2007 amendment regulations change the rules on employing close relatives for self-directed support under the 2003 regulations. • From 12 November 2007, unless a local authority is satisfied that securing a service from such a person is necessary to meet the beneficiary's need for a service, or that securing the service from such a person is necessary to safeguard or promote the welfare of the child in need, a local authority may not allow certain close relatives to be employed to provide support services (the precise services to which this applies are specified in regulation 4 of the 2003 regulations as amended by the 2007 regulations). • The 2007 regulations expand the list of close relatives of the beneficiary from which services may not normally be purchased. This is in order to reflect modern family set-ups and applies irrespective of where they live. © Belinda Schwehr, 2010 12

Your national guidance on eligibility criteria – what is its status? Your guidance says this: “This document is issued by Ministers as guidance under section 5(1) of the Social Work (Scotland) Act 1968”. That section says this: s 5. Powers of Secretary of State. — (1) Local authorities shall perform their functions under this Act … under the general guidance of the Secretary of State. That means in Scotland what it means in England, if there were any judicial reviews – it cannot be departed from without a very good reason…. ! “ 2. 1 Councils are expected to ensure by 1 December 2009 that their local eligibility criteria and definitions for adult social care and the timescales for accessing personal and nursing care services are compatible with the national definitions and standards set out in this document. ” “ 5. 1 Lord Sutherland’s independent review acknowledged that it is an accepted principle of social care policy that local authorities will manage their resources to focus first on supporting those people who are in most urgent need. [NB there is no mention of the Macgregor case in the Sutherland review – I have searched it, electronically!] “Those clients are entitled to receive such services and it is expected that they will receive them as soon as reasonably practicable and, in the case of personal or nursing care services, not later than six weeks from the confirmation of need for the service. This is the minimum expectation on local partnerships. ” [In Fair Access guidance in England, there is no provision for target timescales because it is accepted that the duty is triggered, as soon as the need is assessed as eligible, and must be discharged within a reasonable time. The state of the budget is not relevant in determining what is reasonable, in principle, and particularly not in cases of a person being found to be eligible for care and attention not otherwise available – logically, those people are the most in need!] “ 7. 6 It is for the Chief Social Work Officer / Director of Social Work to consider the extent to which the local authority’s existing eligibility criteria already meet the requirements of the standard national eligibility framework, or require revision. Each local authority should ensure that their local eligibility criteria are compatible with the national eligibility framework and definitions set out above, as well as ensuring that their arrangements for accessing care services are lawful and have been the subject of an equality impact assessment.

The concept of ‘assessment’ covers 3 main things, in England: • An assessment is not ‘done’ (in the sense of a discharge of the full function) until someone’s needs (for cc services) have been a) identified and classified, b) put through eligibility criteria, resulting in a decision as to which needs are eligible, and then c) care planned for, so that the eligible unmet needs are met appropriately (ie down to the FACS threshold) - in each case, all by the local authority or a lawfully authorised delegate. • ‘Appropriately’ is a woolly word, but it does boil down to three things, from the case-law: – not unreasonably, in professional terms, – lawfully, in light of the rest of general UK law, and – compliantly with UK human rights, properly understood. Belinda Schwehr, 2010 ©©Belinda 2009 14

Where do access Criteria fit? • One central thing is being assessed - risk to independence if no social services are put in – after all one’s friends’/neighbours’/relatives’ willing and able assistance, and access to other things, (health, housing, etc) have been deducted. It is not the person, nor the extent of the person’s disability, itself. • So the system already allows for people to help themselves, or be helped by their families etc. – but it impacts on their entitlement. Belinda Schwehr, 2010 ©©Belinda 2009 15

Where do carers’ services and universally available services fit in? • Eligibility depends on unmet need. • The law is that if a willing and able carer does not want to do the caring any longer, they don’t have to. It’s not down to us to ‘let them off’. The key to wanting to care, is believing that one will be helped, supported, valued and not left to spiral off beyond the end of one’s tether. • Any shortfall between needs and the means to meet them, on the part of the service user, has to be met by social services at that point. • So the more services there are in the public arena, which are accessible by everyone, without special referral routes, the less unmet need there will be, logically. • Those services have to be good, and cheaper than they would be charged for through Fairer Charging, if that is to work. Grant funding means de-commissioning debates every 3 years or so with the voluntary© sector. Belinda Schwehr, 2010 16

Universal services for prevention • If the LA funds them, without a particular care plan in mind, and it wants people to access them without it assessing for them, how is the LA going to ensure that they help this strategic aim, which is to keep people out of the system? • Do people need a referral? • Or can they self -refer if they do an SDS form which makes them out to be ineligible? • Or is it that self-referrers will pay full cost, and council referrals won’t? • How do you get value out of your investment? Belinda Schwehr, 2010 ©©Belinda 2009 17

What might councils decide to leave outside individuals’ PBs? But fund anyway…? ADASS says many councils are now offering preventative activities as part of a targeted but widely offered set of services (often in partnership with health or housing services). And these are implicitly outside of PBs �falls prevention services �intermediate care services that promote recovery �enablement services that help people to regain skills �predictive tools that identify those people most “at risk” of needing more intensive care �community equipment and aids to daily living �community alarms and telecare services �housing services that enable a person’s care needs to be reduced or entirely met (such as specially adapted accommodation or sheltered housing) �housing repairs and handyperson services. © Belinda Schwehr, 2010 18

Care planning duties in legal terms • The authority is obliged to meet the assessed eligible needs, appropriately, suitably, etc • Care planning must be done lawfully in line with the Choice regulations and guidance, and Health & Safety requirements, and any other general UK legal obligations, such as sex and race discrimination rules, and in line with human rights, with regard to dignity, freedom from unlawful deprivation of liberty and from inhuman or degrading treatment. • If the need can be met in more than one way, appropriately, the authority can take the cheaper one, because it’s public money. • If the need can only be met in one way, appropriately, then the cost of any other inappropriate way is completely irrelevant. • Local authorities cannot therefore assume that everyone can have their needs met for the cost of a residential care place, because for some, it would be inappropriate, in terms of professional judgment. • A lack of resources (money in the social services coffer) is legally irrelevant to the duty to meet need appropriately. It is a corporate (LA, not just social services) absolute duty. • A lack of resources - in terms of non-existence of any appropriate services is not irrelevant, but something must be done or arranged in the interim, that is the next best thing. Belinda Schwehr, 2010 ©©Belinda 2009 19

What can the budget be spent on? • • Anything that the legislation comprising the full range of community care services could possibly be stretched to cover – that’s fully 5 Acts of Parliament at this point – 2 in Scotland. A “wireless, TV or similar recreational facility” is the language used in the CSDPA statute, for instance – and it is clearly able to be stretched to cover a computer, if that is cost-effective. But not things that are clearly outside the language: for instance – using the DP to pay off a tribunal claim brought by a Personal Assistant for personal wrongdoing of the employer. – services which are clearly specialist enough to strike anyone as nursing services – NHS money is for that. – speculating on the hedgefund market! • • Not something that it would be unlawful for anyone to buy – like class A drugs. Not in-house services – the consensus seems to be that if a person wants a council -provided service, s/he must leave the cost of that service in the managed part of the budget, and cannot spend a direct payment on buying services direct from the council. That would be different if one’s provider were a local authority trading company. Not anything that the council chose to forbid in advance, because of the reputational damage when dealing with the flak from the media. Not anything that the council refused to approve in the support plan, on grounds of risk management or the impact on others in the community.

Is there a right to choose your domiciliary care provider if you don’t take a direct payment? • LAs are not obliged to guarantee a client a choice of provider, in the home care field, although it is good practice and may be necessary to consult about a change if the service is an intimate personal service. There is no Choice Direction that can be relied on, unlike in the field of residential care provision. Therefore if an authority could find an alternative provider who was willing to take on the service delivery role, understanding the application of TUPE and the impact for its business, a client could find themselves with a new provider, but the same carer, potentially, employed by the new provider. • Taking a direct payment so as to keep the same carer through a direct contract with the old agency, won’t always work, as TUPE transfer on a service provision change by the council, to another agency, for its remaining clients, may take the worker over to the new agency anyway! © Belinda Schwehr, 2010 21

A good approach to support plan sign-off • Is the proposed arrangement or item of expenditure within the language of any one of the Acts covering community care services? • Does it appear to meet the assessed need reasonably, lawfully, and consistently with a person’s human rights? • Does it appear to meet the assessed need consistently with the person’s preferred outcomes, or in some other way, represent particularly good value for the client, in relation to any of their other presenting needs, for instance? • Have we got an evidence basis for suggesting that the needs could be met any more cheaply, and if so, do we want to go ahead and say so, and reduce the resource allocation that person has aimed to spend? • Is the proposal cost-effective in relation to how the council would meet the need, if it had to? • Are there any unresolved concerns about risks associated with the proposal? • If we are thinking of saying No to it or to part of it, what are our reasons, and have we considered our disability discrimination and promotion of equality statutory duties before we go on to do so?

Can service providers be involved in support planning? • They can be involved, but LAs probably already know that whenever they are, providers often apply their own view of what is needed, either because they are making a living from it, or have admirably aspirational ideas about dignity and autonomy and independence, or because they are charitable organisations whose very reason for being is to do things that are wanted, not just what’s needed. • LAs rely on specialist providers to do the major part of assessing need and support planning for them, because LAs believe it is ‘best value’ not to employ specialist staff. LAs can often get the provider to do it for free – and then they adopt it, but then haggle over the actual service price, putting the provider in the inevitable position of having to make savings by reducing the input or quality of service, or to refuse to take the client on. • LAs could always buy in the expertise instead, and then request that the expert works within the initial Resource Allocation given, subject to a professional opinion that it simply can’t be achieved. But that would be outsourcing help with a social services assessment, not funding independent brokerage… • And either way, the outsider cannot make the decision for the council – it can only do the legwork and fact-finding. © Belinda Schwehr, 2009 23

Who is the decision maker for support planning? Elaine Mc. Donald v Kensington & Chelsea London Borough Council • Where a local authority was obliged to meet the assessed needs of a lady who had a neurogenic bladder as a result of a stroke, they were entitled to meet the need in the most economic manner – they could provide incontinence pads rather than a night time carer to take her to the toilet. The law gave the Local Authority some flexibility as to how the needs could be met. AM v Birmingham City Council & University of Birmingham • When the Local Authority made the decision not to provide the Claimant, with a hoist and toilet change table at the University where he had been accepted for degree studies, it was apparent that they had carried out a detailed thought process in accordance with section 49 A of the Disability Discrimination Act 1995. The application for judicial review was refused as although the court could not be assured that decision by the Local Authority had been put through a formal Disability Discrimination Act filter and there had not been a reference to the general duties required by the Act in the decision itself, the substance of the decision was not flawed. © Belinda Schwehr, 2009 24

The detail required within the support plan – the new English FACS guidance says this: 121. Councils should agree a written record of the support plan with the individual which should include the following: A note of the eligible needs identified during assessment; Agreed outcomes and how support will be organised to meet those outcomes; A risk assessment including any actions to be taken to manage identified risks; Contingency plans to manage emergency changes; Any financial contributions the individual is assessed to pay; Support which carers and others are willing and able to provide; Support to be provided to address needs identified through the carers assessment, where appropriate; and A review date. 125. A council should ensure that all service users in its area with similar eligible needs receive support packages that are capable of achieving a broadly similar quality of outcome, even though the particular forms of help offered may differ and be tailored to individuals’ concerned.

Can LAs refuse to sign off a support plan? • LAs can and LAs must refuse, if an aspect of a co-produced plan bothers the decision-makers, sufficiently. • The law says that only local authority staff (or lawful delegates of the council) can conclude an assessment, and an assessment, in legal terms, includes the support plan. • Concerns may arise because the money is insufficient to meet eligible needs, or because the outcomes go further than the eligible needs would compel or it doesn’t look like the money will be spent on the needs. • Until the plan is signed off, and all documentation associated with financial accountability has been completed, the money must not be handed over. • If there is delay in the signing off, which is not the client’s fault, of course the client has every right to get cross. Local authorities are legally obliged to furnish social services directors with sufficient resources for the discharge of social services functions, so that the client doesn’t suffer! Delays between panel meetings must not put the client in limbo! © Belinda Schwehr, 2009 26

Procedural fairness – the newly explicit requirements in the government guidance! 106. Where councils do not offer direct help following assessment, or where they feel able to withdraw the provision of support following review, they should put the reasons for such decisions in writing, and make a written record available to the individual. Councils should tell individuals who are found ineligible for help that they should come back if their circumstances change, at which point their needs may be re-assessed. A contact number in the council should be given.

Top tips for support organisations • Check what you are actually commissioned or grant funded to do – you really do need to know, in order to avoid conflicts of interest and have the right paperwork in place for the different sorts of clients you will be serving. There are 4 types – clients, and legal representatives of incapacitated persons, spending their own or the State’s money, and generous ‘others’ spending their own money, and finally, the State. . . as the direct purchasing customer. • Keep a list of anyone for whom you act under a special status, such as Suitable Person, Guardian, Curator, Deputy, or appointee, or contracted agent. • Avoid being found to be the real employer of a personal assistant, when all you are doing is paying the agreed salary and providing a payroll service, by having clear agreements and protocols. • Stay well out of disputes between clients and their own staff – unless you have been commissioned to mediate or whatever. • Maximise use of Homeshare and Timebanks schemes, or start one, locally, to create social capital. • Know and use the relevant Mental Capacity legislation as if your reputation depended on it – especially if organising pooling of payments. • Know and use the community care legislation, to advance the aims of personalisation.

DPSOs and their roles • • • Direct payment support organisations tend to set people up as lawful employers. They will advise on employment responsibilities in the event of something arising which needs to be managed (eg pregnancy) and some actually provide free or chargeable services, such as payment or payroll services, but they don’t tend to get involved in the ongoing relationship, if it actually goes wrong – probably because of fear of involvement leading to deemed employment responsibility. Who are they working for? What public function are they fulfilling? What are they actually commissioned to do, and under what powers? DPSOs are not provided or funded by councils under any obvious statutory functions. I don’t think that providing these services is incidental to the function of granting DPs and neither is it a carers’ service, although carers may benefit from the scheme. If they are under contract to the council, the council is probably operating them under the s 2 LGA well-being provisions – for the benefit of the area generally. But if this is the case, the service level agreement will be the be-all-and-end all of what their responsibilities are, and what they can do or not do, unless they are otherwise independent, free-standing and have other purposes, whether charitable or not. The DH is aware that DPSOs are in need of guidance and that their services may need to be more closely commissioned. © Belinda Schwehr, 2009 29

Support planning and brokerage • • Brokerage is a new term which covers a number of essential activities all incidental to community care functions on the part of councils. Some authorities are choosing to call their own staff ‘brokers’ and making them the link between care managers and the contracts team. In other places, those two types of staff already talk – imagine that! – in order to ensure that there is a real ‘fit’ between the care plan and what is actually delivered – instead of services driving care plans! Radical stuff… Some authorities are making contracts officers into client-facing staff – as the clients and the provider market both trust the council’s contracts team to be the most obvious clued-up people around…. Others are putting a percentage of the Direct Payment into the client’s Personal Budget, for buying in ‘outside’ brokerage, but there’s not much of it about. Others are making their own staff redundant, and contracting with, or grant-funding, voluntary organisations to do this role, after assessment and initial resource allocation. That can cause a conflict of interest if the ‘broker’ is also a provider. But providers have always been used for support planning, in specialist fields, so it doesn’t really matter who is doing it, so long as help is there, and everyone knows it’s the council’s decision in the end….

Brokerage (and who pays for it? ) Brokerage is sometimes just a new name for social work care planning, supporting people into arrangements with banks and mainstream services, navigation and commissioning, and it could either be done in-house by employees, or contracted in, from outsiders. Either way, it is clear that as a matter of law, if it is paid for by social services money, in a service level agreement model, then the broker‘s working as agent or contractor of the authority is the only way it is possible to achieve this role. In practice that would mean applying eligibility guidance if helping people with their assessment answers, pre-eligibility, and sticking to the RAS, afterwards. This is not independent and won’t be honouring the client’s rights, at least not sometimes. Only if a sum of money goes into the DP, and then counts as the client’s personal budget money, could we ever say it was able to secure independent services such as advocacy that might extend to challenging eligibility and RA decisions. But that means LAs would be saying, effectively, how much they think that kind of input should cost. NB also, under the current system, clients must not be charged for assessment and care management, so if the charging structure applies to the RAS, then this bit must be removed before calculating the charge… If brokerage were not to be paid for within an LA’s contractual arrangement, or via the DP, it might still be grant funded by the authority, in which case it would be a bit more independent. It could be grant-funded for whatever the broker did by way of help for social services clients, but charged for, privately, by the broker, for self-funders’ brokerage. If you are an independent organisation you cannot be at one and the same time, in my view, the clients’ independent broker and the authority’s direct payment support organisation. © Belinda Schwehr, 2009 31

Brokerage continued – independence and knowledge • If the broker person is working in-house to an LA, or as its agent, the person or service will be commissioning comm. care services and subject to public procurement rules. • One alternative is – the LA officer acting as agent for the client, if appointed as such by a capacitated client. That would enable private purchasing. • If the person is truly independent, they may be helping the person access social services, but also helping the person make private arrangements for care through separate contracts – not ‘community care’ care services. • If the broker is supporting the user in their actual choice of provider, this requires some sort of opinion to be expressed as to the pros and cons of services, surely? This is not something that has ever been done before inhouse, other than through star rating systems. • If the broker is to be of any real use, they would need to know: basic housing law, benefits law, health care law, employment law, tax and accounting obligations, and health and safety law. • Those filling the role would need a high level of understanding of the way social care services worked and the inter-relationships with other organisations and services. • They would need contracts with the clients, or the clients’ Suitable Persons/legal representatives for the management of their finances. © Belinda Schwehr, 2009 32

The basics of the different deployment models • The framework for the spending of a PB, depends on whose money it is, under whichever arrangements that the council can lawfully make, when handing out public money… • If the money stays ‘inside’ and with the LA, because the client says no to a direct payment, then it is public money, buying social services, and the LA will be a party to any provider contract. It will be subject to public procurement and standing orders. The LA would be the purchaser, employer, liable organiser for registration, etc. • If it is a Direct Payment, it becomes the money of the client, with which to buy services privately, and the LA will not be a party to the contract, liable under it, or responsible for the service provision.

Deployment routes… • • • There are essentially two ways to take a personal budget – as a direct payment or as a ‘managed’ personal budget. ‘Managed’ – in this context - means the council’s officers concluding the contract for the service, in as personalised a way as providers will allow, or feel it would be necessary or feasible to offer. NB - If the client agrees to have a direct payment, and gives it to someone to manage, the client will obviously think of that as a “managed” personal budget as well, so you do need to be careful here with language. The council managed PB route is always subject to public procurement rules and standing orders. If the council changes providers, TUPE will or at least MAY apply. Direct payment clients’ purchases are not subject to public procurement. They are individual private purchases, even though the money came from local government. With a Direct Payments PB, the client is the purchaser, the employer, the contractor – and thus owes the legal obligations associated with all those roles – and is bound by any legal rules governing direct payments. It could be the council that the Direct Payment client would like to manage the payroll or the payment system for purchases. What is then done by any such council is NOT public procurement – that’s the council choosing to act as the client’s agent – under s 2 of the Local Government Act 2000. And maybe even charge for that service, as it is a discretionary function. It’s not clear whether that is just another way of charging for care management and care commissioning, which could not usually be charged for at all!

Individual Service Funds • An Individual Service Fund is always one thing or the other, out of these 2 deployment routes – it is not a distinct ‘third way’…. It’s an arrangement where X manages the fund for Y. • X might be the provider, and Y might be the local authority purchaser, in a managed PB model. Unless the contract for this money management service is specific, X remains legally responsible for providing the community care service, but can sub-contract out some of these services to others to provide - with the client, hopefully, being the one to drive the choice, despite the provider’s inevitable preference to provide the largest possible percentage of the services. Y pays X something for the trouble. • X could equally be a service provider, where Y is a client who has said Yes to a direct payment. In this model, X is 2 things – a service provider, but also Y’s agent for managing the fund, which can be tricky. • Some authorities are letting Y, the client, choose the council, to be the manager of the Direct Payment, and this can have advantages. For instance, they are providing payroll services for clients who are employing people, or payment services to providers whose goods or services the clients have chosen, from online directories. But this is a matter of choice for the council, and it carries liability risks and involves strategic questions, such as whether or not to charge.

Individual Service Funds • • • An Individual Service Fund is always one thing or the other, out of these 2 deployment routes – it is not a distinct ‘third way’…. It’s an arrangement where ‘X’ manages the budget for ‘Y’. The budget may be a managed budget left with the council – in which case it’s a council contracted ISF. Or the budget may be a budget taken in the form of a direct payment, in which case the client has decided to create their own ISF, with a provider, or a provider/broker. So the manager - X - might be the provider, and the owner of the fund – Y- might be the local authority purchaser, in a managed model. Unless the contract for this part of the role is specific, X remains legally responsible to Y for providing the community care service for the client, but can sub-contract out some of these services to others to provide - with the client, hopefully, being the one to drive the choice, despite the provider’s inevitable commercial preference to provide the largest possible percentage of the services itself. X could equally be a service provider, where Y is a client who has said Yes to a direct payment. In this model, X is 2 things – a service provider, but also Y’s agent for managing the fund, which can be tricky. First of all Y needs to have capacity, or a Suitable Person and maybe even an appointee or joint bank account holder so that the Direct Payment money AND the client’s own contribution by way of assessed charges can be passed onto the provider.

Slivers of Time – avoiding employment responsibilities for individuals • Agency concept – the workers are the agency’s employees • The concept is a brand, an image and a piece of software that enables agencies to manage the aggravation of having many workers who have only a tiny amount of time to offer, as employees. An online diary enables them to indicate when available, and clients can see who is available, online, as well. • Workers are vetted, CRB’d by the employer, registered with the ISA, when required, taxed and NI’d and covered for maternity, redundancy, etc. Belinda Schwehr, 2010 ©©Belinda 2009 37

Tech-ie possibilities • Vouchers – still a contract underlying the voucher • Cards – ditto – store or credit cards, effectively • Slivers of Time – a really good idea, I think, enabling the employee to be employed by the agency, albeit for very ad hoc working • Shop 4 Support – streamlining payment, regardless of who is the purchaser • Agencies who will employ your chosen worker, all other things being equal… like your relatives • Timebanks – social capital outside the budget – carers will bank favours for their loved ones to cash in • Homeshare – social capital outside the budget Belinda Schwehr, 2010 ©©Belinda 2009 38

Is a managed personal budget the same as Councils ‘managing’ a direct payment? • Some authorities are letting Y, the client, choose the council, to be X – ie as the manager of the Direct Payment, and this can have advantages. • For instance, they are providing payroll services for clients who are employing people, or payment services to providers whose goods or services the clients have chosen, from online directories. • But anything then bought by the council wearing that hat, is a private service, purchased on behalf of the client, not a publicly procured service. • Taking on this role is a matter of choice and agreement for the council and the client, and it carries liability risks and involves strategic questions, such as whether or not to charge. • It’s also very dangerous for councils to do it for clients who have not got mental capacity, because it means that any direct payment supposedly being used, is not really a direct payment. • The knock-on risk of that is that any employment of an individual, is quite possibly employment by the local authority, not the service user.

Potential Liability to the client for providers who act as private brokers – including councils • Breach of Contract (doing something not authorised at all, or doing something authorised, but doing it badly, so that a loss is suffered) • Negligence liability for recommending a provider who was objectively able to be seen at the time as not right for the needs, or the client’s situation, but is now itself not worth suing, or not insured for what’s happened…. . • Negligence liability for inadequate advice on rights, insurance cover and/or health and safety or on the liability implications of the client’s owing a health and safety liability to their own worker… • Concerns about independence and competition, if the same one or two providers are consistently recom-mended…. particularly if they are the council’s formal preferred providers.

Typical aspects of council DP-related maladministration or illegality: • Saying: We have re-tendered the whole of our dom care service to a new provider, and the only way you can stay with your current provider is if you take a direct payment and do it yourself. But the case of Essex CC ex p Bucke says that consultation may sometimes be required when changing a person’s in-house provider! • Having no grasp of the need for an explanation of what it means to be an employer (this has already led to an LA being found to be the true employer, in a South Lanarkshire ET case!) (‘Don’t worry, the payroll agency will sort all the hard stuff out…and everything else…’) • Having no grasp of the central importance of consent (at present) (‘The mother is consenting, so that’s good enough, surely – she’s the one who’s going to be doing the managing’). That’s ignoring that Parliament has clearly decided that incapacitated people need more protection than an ordinary DP gives them. . ! • Playing around with what constitutes consent (‘H smiled at the support worker, so he must be saying Yes to a DP’). Learning Disabilities staff are the most prone to do this, because they have been told that any kind of communication about any kind of a choice, amounts to consent. © Belinda Schwehr, 2010 41

DP-related maladministration • Having no rational basis for the calculation of amount (‘So what if it costs us £ 12 an hour? – Let’s just give the client £ 8 an hour’). This has been hardly challenged at all in the courts, so is a massive area ripe for development. Clients should be advised to ask for the authority’s evidence basis, that what’s been offered will actually meet need, given the local market. • Having no grasp of an inflation index being needed, if one is going to avoid effectively cutting the care plan, year on year. Hammersmith & Fulham recently did a volte face on this, after one letter from a law firm. • Poor documentation (ie the contents of the agreement between the client and the authority as to the terms of the payment) – disputes about repayment of saved up amounts, without room for contending that it’s for contingencies, etc. I know of a case of £ 37, 000 being reclaimed. . . • Poor or irregular monitoring of the outcomes, or apathy in light of what is discovered, leading to disputes when a worker or a client is ultimately injured and/or sued for wrongdoing. • Non-reporting of the DP client’s dodgy abuse perpetrator, who just moves on. . but bear in mind the most recent cases on this sort of disclosure. In England, the duty is to report, but the duty dose not exist if the worker is working for a family member or a friend. © Belinda Schwehr, 2010 42

The first reported case on Resource Allocation systems - Savva The Queen on the application of RAFAELA SAVVA v ROYAL BOROUGH OF KENSINGTON AND CHELSEA • • A 70 year old client, who suffers from diabetes, heart and respiratory problems, and is arthritic with poor eyesight. She had a stroke some 10 years ago, and she has been in receipt of care services from the Local Authority since that time. The challenge related to the decision made on 21 st December 2009, and communicated on 22 nd December 2009, to provide the Claimant with a personal budget of £ 170. 45 p per week. On 20 th July 2009, the Claimant completed a Personal Budget Supported Self-Assessment Questionnaire (SAQ). This was completed with the support of her Social Worker. Page 1 of this document states: “Once the form is completed we will let you know as soon as possible if you are eligible for support. If you are, we will tell you how much funding will be available to help meet your needs, taking into account any contribution you need to make. You can then use this information to help you to develop a support plan, with the help of a professional and/or those who are close to you. This plan will tell us how you wish to use this funding to meet your individual needs and objectives. ” There then follows an ‘N. B. ’ “The supported self-assessment is a tool in continuous development and does not guarantee any particular allocation of funding. ” When an allocation of a ‘points score’ of 16 points RAS was translated into a monetary value, it came to £ 82. 91 p per week. Later the points score was adjusted to 28 points and the funding was adjusted to £ 132. 56 p, and this was then increased to £ 170. 45 p. © Belinda Schwehr, 2010 43

The facts of Savva The Response by the Defendant to the Part 18 Request by the Claimant describes the RAS as follows: “The RAS tool is a mathematical tool which has been promoted by the DH and adapted for use by the Council. The rationale behind the tool is to ensure objective consistent needs-based decision making in the context of community care. The RAS tool is designed to help the Panel in its analysis. It generates an indicative budget only. ” The “indicative budget” generated by the November 2009 RAS, when translated from a points score of 28 points to a monetary value, amounted to £ 112. 21 p. This sum, of course, was an increase from the £ 82. 91 p generated subsequent to the July SAQ. This sum was then adjusted to £ 142. 02 p per week. “analysing the claimant’s needs in the round, the panel considered that the ‘indicative budget’ of £ 142. 02 p per week was too low and did not properly meet the Claimant’s needs particularly in terms of meal preparation. Therefore, the panel increased the indicative figure and allocated a weekly budget of £ 170. 45 to the Claimant. ” © Belinda Schwehr, 2010 44

Re the nature of the duty once eligible need has been acknowledged - Gloucestershire The judge went back to Gloucestershire, in which Lord Clyde drew a clear distinction between assessment of need and performance. He said: “Section 2(1) imposed a duty on the local authority to make welfare arrangements for an individual where they were satisfied that in the case of that individual it was necessary in order to meet his needs to make the arrangements. This was not a general but a particular duty and it gave a correlative right to the individual which he could enforce in the event of a failure in its performance. . . The right given to the person by section 2(1) of the Act of 1970 was a right to have the arrangements made which the local authority was satisfied were necessary to meet his needs. The duty only arises if or when the local authority is so satisfied. But when it does arise then it is clear that a shortage of resources will not excuse a failure in the performance of the duty. However neither the fact that the section imposes the duty towards the individual, with the corresponding right in the individual to the enforcement of the duty, nor the fact that consideration of resources is not relevant to the question whether the duty is to be performed or not, means that a consideration of resources is not relevant to the earlier stages of the implementation of the section which leads up to the stage when the satisfaction is achieved”. © Belinda Schwehr, 2010 45

What sort of a RAS? It really doesn’t matter so long as it’s only indicative – it’s no substitute for a proper decision by the authority! Mr Butler submits that the decision of the panel does not constitute a discharge of their legal duty. He submits that the manner in which the Defendant used the RAS tool is impermissible and cannot be used as a starting point, because it imposes an unlawful cap on the budget. I do not accept this submission. As I understand Ms Sackman’s submission, on behalf of the Defendant, if the use of a non-linear RAS tool had been the sole basis for the decision, then there would at least be a persuasive argument that the decision was unlawful. However, Ms Sackman submits that the RAS tool is not the sole basis for the decision, but it is simply a starting point in the assessment process. I agree with Ms Sackman on this point. The RAS has been championed by the Department of Health, and certain local authorities, so I understand, have been encouraged to develop RAS schemes as indicative tools in order to discharge their duty so as to meet all of the service users’ assessed needs. The Defendant has not taken the indicative budget and said that is the final figure. © Belinda Schwehr, 2010 46

On the need for reasons…. The fact that Mrs Savva’s needs score was higher in the November SAQ than it had been in the July SAQ would not necessarily translate into a higher monetary allowance in the personal budget. This is because, first the July budget had been a generous one, and secondly, certain needs do not attract any or any significant extra costs, and that by spending the same money in a different way, increased needs can be met. The Directors of Adult Social Services in their document “Common Resource Allocation Framework” dated October 2009 state that ‘up-front allocation’ means that the person is told, before a support plan is agreed, roughly how much money is likely to be required to fund such support. The same document emphasises ‘Transparency. ’ It says that the RAS should be transparent, which means being clear how decisions are made and making the system public. This guidance from the senior social workers in this field provides support for the view that policy in this area favours a transparent approach which provides service users with clarity on how decisions are made prior to a support and care plan being agreed. Thus, although there is no statutory duty to give the reasons why a Panel arrives at a particular monetary personal budget, all of the documents produced by the Government Departments and by the Association of Directors of Social Services point to transparency, openness, and consultation, prior to the drawing up of an agreed Care and Support plan. © Belinda Schwehr, 2010 47

Reasons for funding sign off and for DPs The personal budget must be sufficient to purchase the services and is needs-led, and it seems to me that the only way in which a service user can be satisfied that the personal budget has been correctly assessed by the Panel is by a reasoned decision letter. The observation of Carnwath J in Radar that service users cannot be assumed to be capable of looking after their own affairs in the context of assessment issues identified in that case, is equally of relevance in the present context. The Court decided that in this situation, the consultee “is left making shots in the dark, in circumstances where the light could so easily be switched on. ” Mr Butler, correctly in my view, draws an analogy with Eisai to this case. In Eisai, an intelligent response is limited because of the failure to release the fully executable version of the model. Likewise, in this case, without being able to properly understand the use made of the RAS, the service user and anyone acting on her behalf, is left totally in the dark as to whether the monetary value of £ 170. 45 is adequate to meet the assessed need of a 28 point score. The process of conversion made by the Panel is not explained to the service user. It should have been underpinned by an evidential base, and it was not. I do not accept Ms Sackman’s submission that just because the direct payment scheme is an ongoing process requiring a continuing dialogue, that it is sufficient for the reasons to be reflected in the Care Plan, and communicated to the service user via the social worker and the support broker. The stage of production of the support plan and the care plan, in my view, is too late for the Claimant to be provided with reasons for the budget. If Ms Sackman is correct, then the reasons for the July decision do not appear in print until the Support plan made available in December. That cannot represent an adequate discharge of the obligation on a local authority to explain the reasons for its decision in this area in a transparent manner. © Belinda Schwehr, 2010 48

Direct Payments as civil rights for article 6 purposes? • The creation of a personal budget and the manner in which a personal budget is utilised are matters that fall squarely within social welfare provision. Applying the judicial reservations advanced by Lord Hoffman in Runa Begum v Tower Hamlets LBC [2003] UKHL 5 and by Lord Hope in Tomlinson, it is my view that this is not an area of law which engages Article 6. © Belinda Schwehr, 2010 49

Should the SDS questionnaire replace our current form? • I would not recommend this because it is unlikely to cover the whole range of services that constitute community care; it is unlikely to give the client a real chance to understand what they have to do to become eligible, and it is unlikely to comply with current guidance on what an assessment must do. • It is most unlikely to give you a proper evidence basis for a decision on mental incapacity, which is critically important for a really good assessment. © Belinda Schwehr, 2010 50

What is the problem with self-assessment ? • There is no such thing as self-assessment, for social care services or funding. • Local authorities cannot lawfully delegate or give away a statutory assessment role to anyone else, without specific statutory authority, without it being an abdication from their legal obligations. • Incapacitated people cannot be left to their own devices with a posted, or downloaded, form, or be assumed to have informed assistance in filling it out. • That would be a breach of the LA’s duty to assess in s 47 of the 1990 Act…and (I believe, given recent case law) potentially negligent. © Belinda Schwehr, 2010 51

The Cornwall Case – impact on personalisation – community care law and ‘self-assessment’ • "B” was a 48 year old man with a moderate learning disability, who presented with challenging behaviour. Since 1993, he had lived in supported living accommodation in Cornwall, paying rent under a tenancy, with three other residents with learning disabilities. • Despite a change in the provider of care for the residents in January 2008 arising from the CSCI report into abuse in the area until August 2008, B was not required to make any contribution towards the costs of his care at C. • However, by a letter dated 8 August 2008, the Authority advised B that it had assessed his liability to contribute and, after a transitional period during which he would pay nothing until October 2008 and only £ 30 thereafter until October 2009, he would be charged £ 68. 50 per week by way of contribution. • Various costs had been claimed by his family as Disability Related Expenditure, and holiday costs, in particular, had been disallowed. It is that decision, to increase his contribution from nil to £ 68. 50 per week, that B challenged. © Belinda Schwehr, 2010 52

Cornwall, continued • The Community Care Assessment Directions 2004 in Paragraph 2, provide: 2 (4) The local authority must provide information to the person and, where they think it appropriate, any carers of that person, about the amount of the payment (if any) which the person will be liable to make in respect of the Community Care Services which they are considering providing to him. " • The judge said as follows: “These directions set a pattern for the general scheme of community care. Decision-making rests in the responsible authority, but their powers are only to be exercised after appropriate engagement with the service user and any relevant carers (who may include for example the service user's parents or other family). Whilst there is no statutory reference to "care plans", "they are essential to the community care process and the subject of detailed policy and planning guidance" (Paragraph 4. 2). In Rixon. . . Sedley J accepted that "a care plan is nothing more than a clerical record of what has been decided and what is planned", but he went on to say that this: © Belinda Schwehr, 2010 53

What the judge said. . . • • • "… far from marginalising the care plan, places it at the centre of any scrutiny of the local authority's due discharge of its functions. As Paragraph 3. 24 of the [1990] policy guidance indicates, a care plan is the means by which the local authority assembles relevant information and applies it to the statutory ends, and hence affords good evidence to any inquirer of the due discharge of its statutory duties. ” “ Guidance as to content of the care plan in "Care Management and Assessment - A Practitioner's Guide" (1991) is that “it should include not only objectives, but also the services to be provided and by whom, other options considered, the cost to the service user, any points of difference between the service user, care planning practitioner and any agency, and any unmet needs. The care plan provides the link between objectives, through the identification of needs and services that are to be provided to satisfy or alleviate those needs, to the cost to the service user. “ © Belinda Schwehr, 2010 54

Can LAs say ‘Here is your up-front allocation and that is that’? • • • No, because Local Authorities have duties to meet individual needs appropriately, and not by reference to assumptions. Every authority has a client who costs more (and who will always cost more) than the highest number of points in the LA’s system will generate. The more evidence-based your local RAS is, in relation to existing clients’ profiles of need and what it costs to meet those needs, the better – but LAs don’t want to be hidebound by traditional ways of meeting need, so those costs can only partly help system design. LAs cannot prudently ignore a client who says ‘This won’t fit where it touches – where’s the LA’s evidence basis for thinking that this sum of money would actually meet the needs that LAs have agreed that I have? ’ Judicial review grounds for challenge hold the clue and the key to lawful decision making – has the authority made a decision on how to meet (or cost the meeting of need) that no other reasonable authority could make? Has it ignored human rights? Has it ignored some other aspect of the legal system that it should have respected in the process? So – authorities need to have a proportionate sign-off process that confirms the final PB allocation based on the original needs questionnaire, the outcome of FACS - based decision about eligibility of particular domains, and the reality of support planning. © Belinda Schwehr, 2010 55

Are councils going to be able to tweak our Resource Allocation formula when the going gets tough? • • • Not for existing clients, unless the LAs want lawyers bearing down on them, they can’t! If LAs just change the points for the future, what would treating similar people, differently, according to the time of the year when they approach the authority, do for the authority’s claim to consistency? Changing the number of points per answer, or the number of pounds per point, would be a change of policy in relation either to eligibility or the range of services the LA considers to be community care services or to the concept of meeting need appropriately. Policy changes need impact assessments and equalities and diversity consultations…. . It is a clearly settled piece of law that although LAs can choose the cheaper of two alternative appropriate means of meeting need, LAs can’t cost-cap a package of care for assessed need, because that would turn a DUTY into a mere DISCRETION and make it resources-led, instead of needs-led (The 1997 Gloucestershire case (!), and Wigan ex p Tammadge). LAs are open to Judicial Review if they knowingly offer less than you think (ie, rationally, and in the opinion of professionals) will appropriately meet the assessed eligible needs. (Haringey ex p Norton no. 2, Sheffield ex p Heffernan and many other cases) LAs can’t cut a current care plan (or therefore its funding, via a DP) without a lawful reassessment, which articulates where the previously assessed needs have disappeared to. (Birmingham ex p Killigrew). Clients therefore have invaluable legal rights, under the current framework! © Belinda Schwehr, 2010 56

Can LAs give all clients the equivalent of residential care costs, even if they won’t go to a care home? • No. • The setting in which the client is going to be, in real life, is key to the support plan, which is what LAs are still going to have to sign off. The support plan derives from the assessment of needs in the first place. • That setting, and who is there, or not there, will govern the actual unmet needs of the person. • And never forget: not all people can be seen as being able to have their needs met appropriately in a care home, and if LAs are considering the allocation for one of these people, the cost of residential care is irrelevant anyway, in legal terms. It’s only the cost of appropriate alternatives that can be referred to. © Belinda Schwehr, 2010 57

Do LAs have to give cost of living increases? Or deflationary reductions, in this particular climate? • Yes because otherwise they are either giving less than they believe is needed to meet need without doing a re-assessment (unlawful) • Or because they are giving away public money that is not, in fact, needed! • Giving index linked variations should depend on engaging brains first as to what index they are going to use. It’s got to be a relevant one. • They cannot ‘bargain’ with an existing client for community care services, to be let off re-assessment or review, just because they’ve volunteered to increase the amount, annually. FACS guidance requires at least annual review. • Purely index linked additions or subtractions would probably not require formal re-assessments, but you can never be sure. The raising of a FACS threshold raising does, even though it is lawful and should apply to everyone, so be careful. © Belinda Schwehr, 2010 58

Can councils impose a condition that the DP be made through a ‘managed’ account - no There is now case law to the effect that a condition that the payment should go through an intermediate account with someone chosen by the authority, is inconsistent with the nature of a direct payment, and such a condition could be justified only if there were (which there is not) specific statutory provision for it. There will undoubtedly be cases in which a degree of monitoring by the responsible authority will be needed, but this can be ensured by its requiring information under a condition of the kind envisaged in regulation 11(5)(b). It would be better to do this sort of an arrangement through a conventional managed account where the LA chooses the provider of the intermediary services, and then gets them to sub-contract. © Belinda Schwehr, 2010 59

A lawful vision for transformation, that’s possible, right now: • Proper support and information, up front, to help people help themselves before falling back on the State for services or funding. • A resource allocation system which is based on the established legal principles of the duty to assess virtually everyone, and of entitlement, after person-centred assessment. • Clarity around the chances of getting extra discretionary spend added to one’s pot, for good reasons, under the local well-being policy. • Assessment forms which distinguish between the questions related to eligibility for social care needs and other types of want or need (the discretionary part, above). • A broad brush menu of what sort of things people can properly spend the distinct parts of their budget upon – and clarity about what is outside that notion. • Proper information available to all, about what’s actually out there. • Honesty to carers about how their choices, ultimately, impact on LAs’ choices about which setting it’s appropriate to meet the client’s needs in, given the duty to be fair to all clients, and to tax-payers. Belinda Schwehr, 2010 ©©Belinda 2009 60

A lawful vision for transformation, that’s possible, right now: • • • A fair and transparent risk enablement and risk management panel stage built into the signing off of support plans (ie. a review process for the purposes of Avoiding Getting Judicially Reviewed or Sued for Negligence…. as well as ‘enabling’ capacitated risk taking). Informed decision-making by LAs, about potential deployment options, with a view to pro-active scrutiny of abuse-risky situations, so as to avoid disputes and withdrawals, later on. Compliance by all – managers, commissioners, brokers and families, with the Mental Capacity Act/your Scots Adults with Incapacity Act. Particularly the consultation bit with providers and close relatives. 100 x the current levels of professional support for contracts officers, to deliver transformation even to those who can’t face the hassle. Clear expectations of incapacitated people’s Representatives, and clarity as a regulated activity provider to who is the real employer, and who needs to register as a or (right now) arranger of personal care. A national independent advocacy system funded through a voluntary levy on providers, per client – so that the current system is made accountable, for vulnerable adults, and no LA can say that the provider (and therefore the advocacy) is tainted by the provider’s own commercial interests.

User-led pooling • People are able, as in private life, to agree to pool their resources if it makes sense to each of them, in terms of getting a discount, (eg bulk buying), getting better value out of a standard fee (eg taxis) or buying a flexible service that can feasibly be shared because the individuals’ needs are likely to be spaced out, or the desired activity needs to be done in a group to be enjoyable. • It will most often be the case when people are geographically situated close together and need that service on the site, or share interests which can be or are better enjoyed, in a group. • Trips, transport, activities, shared supervision at night, ad hoc support during a particular period, own clubs, etc © Belinda Schwehr, 2009 62

Pooled employment or purchasing? • The collective buying of a service has no particular implications for the group – but the contract will either be with a group leader, implying a contract between them and the others as between themselves to pay, or with each of them and the provider, for a share of the service. • A group of people jointly employing staff is harder to run, because each is the employee of all, and conflicts of interest will be bound to arise. When barristers do this they either have service companies through whom the staff’s contracts are operated, or the head of chambers is the employer. • Parents of children with disabilities are often co-ordinated by a council or DPSO employee, so this is where the learning tends to be found. © Belinda Schwehr, 2009 63

Voids and block low-level or top-up services • Some clients will need extra funds injected into a service to make it viable, either individually or in a group. • Others will be getting a RA for an individual support package on top of something else that the council has already block booked, like the low level care and support in an Extra Care Facility, from the on site provider. The package will only be feasibly adequate to meet need because of that other existing provision, which reduced the size of the unmet need in the first place. • These are legal, but whether they are grant funded or provided under service level agreements will determine whether they can be charged for or not. If the provider is not a voluntary organisation, the likelihood is that the arrangement will be a contract, and a contract for things that count as community care services. They could be charged for by the council under Fairer Charging. But the money for them will not be in the person’s resource allocation so it is difficult to see how the charge could be netted off. © Belinda Schwehr, 2010 64

New Roles for providers • Organisations that merely prompt and supervise people now have to register with the Regulator, as it has been deemed to count as personal care. But ‘encouraging’ and ‘checking’ does not require registration…! (in England – don’t know about Scotland!). • The staff may need to be put on new qualifications pathways or vetted in new ways – The regulator’s and CRB and ISA websites are where to look for this and it is changing all the time. • Councils want clients to be given menus of services, not complete packages, so as to enable clients to pick and choose according to what matters to them, within reason (ie the needs have still got to be acknowledged and met). This means that traditional personal care contracts will diminish and service menus need to be much more varied – this will affect the profile of staff you need to take on. Offering help and training to achieve independence, as opposed to offering staff who just do unto others. • A lot more social engagement with existing services in the community that are free will be wanted (called pulling in social capital!), so escorting and transporting will become more important and a presence in the real community will be an indicator of commitment to this….

New/different staff roles • • In terms of HQ staff, every organisation will need people who can organise more personalised pre-admission assessment, contracts, finance and credit control staff, as providers get asked to deal directly with the clients who have got direct payments. You will need to be able to offer staff who are prepared to help people go elsewhere, in groups or in pairs, to spend some of their DP money that has previously been paid to your organisation, and that takes a bit of thought, because of the conflict of interests. When the Supporting People budgets are cut, you need senior contracts staff who will know enough about community care law to trigger re-assessments to get the services put back into the social care budget for the person, or else your organisation will forever be doing more, or the same amount of work, for less money, given your independent duty of care to the clients. I have no idea how you would decide how flexible to be, with clients’ fluctuating demands for services, but I am sure it involves more part time workers, and more zero hours contracts, which have knock-on employment relations implications, I assume. For organisations who deal with incapacitated or impaired people, staff need to know about the limits to best interests decision making – it does not extend to formal money management (other than cash), contracts or tenancies. A housing provider’s role is as landlord an enormous percentage of tenants will have dubious tenancies and this exposes their business to financial and legal risk, if the Housing Benefit income stream wobbles because of the ambiguous status of the tenancies. A skilled and clued-up advocacy arm or link may be needed within or alongside an organisation to deal with clients’ problems when councils try to reduce their direct payments.

Disappearing staff… • • Personalisation involves service provision change, wherever an organised body of staff or one member of staff are dedicated to a particular identifiable task. TUPE therefore gives organisations a chance to change customers without having to make staff redundant, because they can TUPE over. But you could be left without sufficient staff, having trained them at your expense. So that is going to mean incentivising your staff to object to going, and recontracting with them afresh whenever this occurs. If your organisation wins new contracts, you have to be ready for the potential TUPE implications of having to take the old staff from the other provider, on their terms and conditions, regardless of the differences with the terms on which your own staff are employed. You need a member of staff in HR who can advise senior management of the law in this regard, and flag up the need for contracts with councils that underwrite the TUPE costs (separately, if necessary, to the underlying agreed price for the services – it’s legislatively unavoidable risk). You may have staff leaving your services to go and work individually for people who have been persuaded to take a direct payment, and become an employer. There is an interesting tension between paying your staff minimum wage, and then requiring them to sign non-compete covenants in relation to objectively low value services! Covenants in restraint of trade need to be reasonable to be lawful.

What does TUPE have to do with all this? The TUPE Regulations provide employment rights to employees when their employer changes as a result of a transfer of an undertaking. But there’s been an extension of TUPE to cover service provision change, when a purchaser changes purchasing arrangements to a new provider. So re-tenders, outsourcing and bringing services back in house, will tend to have TUPE implications. Employees employed by the previous employer (the ’transferor’) when the transfer takes effect automatically become employees of the new employer (‘the transferee’) on the same terms and conditions (except for certain occupational pension rights). People are naturally worried about the impact on choice and control, in the context of individuals, changing their arrangements for care and support.

TUPE thoughts • Basically, where the purchaser used to be the council, and the purchaser is now the original service user, through a genuine Direct Payment - that is probably not a TUPE situation, so the staff do not transfer to the new provider. I say genuine, because of the Daynes case – more on this, soon. • Where the council was, and still is the purchaser, and it’s just the provider who is different; or the client was the purchaser, and now the agency chosen by that same client purchaser, is different, it is at least possible that TUPE applies. • . . . Especially to a Slivers of Time sort of a set-up where there will be a close link between the original agency worker and the client, instead of the client just having to make do with whoever is allocated by the agency. © Belinda Schwehr, 2010 69

TUPE worries • Supposing the Client has a direct payment and has an employee. And then the Client gives up the DP. The Council re-provides, either by direct inhouse provision or through a contracted agency. What happens to the client’s old employee? No TUPE in my view, the identity of the purchaser is now different. • Supposing the Client qualifies for NHS Cont Health Care – does the employee under a previous DP arrangement, have the right to transfer to the PCT or their chosen agent? I don’t think so – the purchaser is again different. • Supposing the Client has a direct payment and engages an agency. The Client re-commissions from another agency for the same task description. Is there a TUPE transfer because of the service provision change? Possibly, if there was a specific member of staff or team of staff concentrating on the client. © Belinda Schwehr, 2010 70

A TUPE – type worry. . . • Supposing the Client has a direct payment but loses capacity to manage the DP – even with assistance. A relative is appointed by the council to be the Suitable Person. Does the old employee automatically transfer to the new Suitable Person’s employment? • I don’t think so, because the Suitable Person, in law, is not carrying out the client’s contracts ‘for’ them, as statutory agent; the SP is employing the person in their own name, and must be able to decide. Ie the ‘different purchaser’ approach suggests No Transfer, but termination of the worker’s contract with an offer of another one by another person. • If a self-funding person acquired a Deputy or an Attorney took over, there would be no cessation of employment, as those roles do carry with them the authority of a statutory agent. © Belinda Schwehr, 2010 71

The Daynes saga – a TUPE sham! • • A council had a bit of a problem with a poor provider, and ratcheting up the performance ‘carrot and stick’ approach simply did not work. It was ultimately decided to terminate the contract. But the contract was for a clear chunk of service for a particular set of clients who were geographically linked and with similar needs. At the last moment a council officer had the wizard wheeze of suggesting that the council should award direct payments to the clients in question, to avoid the application of TUPE. This was done, and the clients somehow decided (despite their mental impairments) to pool their direct payments and choose the preferred provider of the council. Provider no. 1 did not have any other work for the staff, so suggested that TUPE applied, so as to transfer the staff over to Provider no. 2. Proceedings were launched, and the council was joined in as an interested party. © Belinda Schwehr, 2010 72

What happened? • The tribunal learned all about personalisation over an 11 day hearing with good employment and local government law barristers on the case. • The Chair said that social care policy had to take second place to employment law, and that these direct payments were a sham to avoid TUPE, and should be ignored. • The council had to pay provider no. 2 to get rid of the staff that had been entitled to TUPE over. • The case is actually very helpful, for what it implies: if a direct payment is a genuine choice of the client, it amounts not to a service provision change, by the council, but the cessation of a provision function by the council, and the commencement of a purchasing function by the client, possessed of money which has become his or hers to spend privately. • Putting this another way, if the DP is real, and not imposed or foisted upon the client, the fact that the ultimate ‘human’ purchaser is not the same as the first ‘council’ purchaser, means that TUPE cannot apply. © Belinda Schwehr, 2010 73

Cost broking - paying less than a contract permits…? ? ? • Where demand exceeds supply, providers hold the whip hand. • Where supply exceeds demand, there is competition and opportunity for savings. • In all cases, however, it’s Council-drafted contracts with providers that tend to govern the price that is to be paid for the service, once the provider has said yes. • The contracts are binding until terminated or varied. They tend not to allow for unilateral variation, and that seems fair, at first, to the provider – fair enough to get the client over the threshold. • Contracts sometimes provide for an annual fee review with a view to an increase, based on inflation or legislative change, or the clause sets a formula. ‘Review’ used to imply an increase, but it’s a lovely ambiguous word being interpreted by some councils, now, as a decrease…. • Contracts also tend to allow for individual price variation discussions, at least, once a year, arising out of the annual care needs review to which the client is entitled by law. © Belinda Schwehr, 2010 74

The background to fair cost calculators…. • • In specialist high cost packages, the contracts tend to provide for a particular service, for an individual, for an agreed price, over a period, regardless of small variations in need. Risk is thereby transferred to the provider and the authority doesn’t have to keep coming back to re-assess. In return, and increasingly, outcomes-based support planning gives the provider flexibility and incentive to manage that risk, with less emphasis now, on rigid numbers of hours of 1: 1 specified. A main plank of personalisation – “outcomes” – actually helps both the provider and the purchaser to manage with reduced resources, by euphemistically allowing the ‘watering down of the milk’, so long as the client is happy that their outcomes have been met. If not, it’s not the council’s fault – it’s the provider’s fault, because the provider agreed to deliver the outcomes. Until a client complains, that is, that the legal necessity from the perspective of his individual legal rights is for the council’s contract to be the vehicle through which whatever is in the care plan (– the actual arrangements regarded by the council as likely to meet all the assessed needs) - are delivered.

The problem as I see it: • In that sort of typical contractual framework, there need not necessarily be a term providing for agreement by the provider to reduce their contractually agreed price just because councils tell them that other providers are lowering their prices, having been asked to put their services for a particular client, through a unit costing benchmarking tool. • Certainly, if I was a provider, I don’t think I’d be wanting to sign up to that sort of a deal, not if I was a business with shareholders and not if I was a charity which knew about the Commissioning Compact for full cost recovery, and wanted to honour the expectations of my trustees that we’d still be functional in a few years can and do extend to making such tools the very basis for the review or the annual variation discussion or the actual fees decision, many others in force right now do not - but these providers are still being pressurised to reduce fees. • Grown-up business people should get advice to interpret the full horror of the contracts they may have signed, before making big decisions about this sort of thing, in my view. © Belinda Schwehr, 2010 76

Many home providers have the contractual right to say to the council – if only they knew it – ‘Are you asking us to provide the same amount of care, for less money? – ‘What will you do if we say No, we don’t want to? We think that it’s not that easy to move someone who has public law rights to have their assessed needs met, and their human rights and mental capacity properly addressed. ’ – Or ‘Are you implying that the client needs less than your professional assessors last concluded, because when the cost broker actually visited with the CFC, the client was having a good day? Can we remind you, day to day variations in need were a risk that you passed to us, when you made us name a price when we admitted the client. So you can’t feasibly expect to have it both ways now, can you? “ – Or ‘Are you saying that your cost broker just did an attempted re-assessment? A care review is not the same as a fees review; nor is it a service performance review. ” and – “I don’t think that the people who do the CFC tool are trained to reassess care needs or understand the first thing about the law of mental incapacity, and ‘best interests’ consultation with relatives etc, within the context of a formal re -assessment, if that’s what is really being done here. Our front line staff on the units just don’t have the legal authority to agree a re-assessment of needs with your cost brokers. ’

“We’re offering to pay a Fair Price, after all – this Tool proves it” • • ‘But we have to achieve Best Value’, and ‘We’ve consulted with providers to develop this tool’ and ‘It’s just a negotiation tool’, is what councils say. Best value is the statutory duty on the council to keep under continuous review the way in which it is discharging its functions. In the context of social care, the council has to decide whether to buy services in, or to provide them directly. ‘Best Value’ is not a duty on the provider to share their management accounts with a purchaser, or to help the council to reduce the profitability of the business, unless of course - the provider has actually agreed to do so. If the provider knows this, he or she may say – ‘It’s been nice to see you, and thanks for the advice about the local market, but I’ve got a signed contract. I can’t force you to give me an increase, and I know I can give notice if I don’t want to do the same amount for the fee we agreed last year; but I’m damned if I’m going to give the council an agreed reduction, if there’s no acknowledgement that the care plan should be reduced as well. The council does not have to buy my services – it can buy them from elsewhere, or it can go back to providing, or open up an Local Authority Trading company and compete with me, so long as it takes on the same allocation of risk as we’ve all been forced to take on. ’ 78

Do councils have the right to decide what they want to pay? • • • Not exactly. The law of community care services – judicial review - is that if there is only one appropriate way to meet need, then the cost is irrelevant – that’s how important Parliament actually deemed social care services for adults to be! There is no room within contract law for the idea that councils can manage the price of public services simply by offering to pay what they want to pay – not in private law, if they have already made binding contracts on different terms, and not in public law, because they have statutory duties to meet eligible assessed needs, either through purchasing, or going back to being a provider – however much it costs. Unless, that is, the local market providers have been naïve, unaware or desperate enough to have already signed up to provide services for whatever the council can afford to pay, or they all concede on fees reduction, out of a sense of there being no alternative option, if they want to remain open. Be generous to decent partners, in times of economic hardship, yes, but it’s time to grow up as business people, even if one is a voluntary organisation, in my view. And that means understanding the cost of what is provided, and the public and private law legal frameworks under which it’s been agreed to provide it.

What would happen, if the provider or the client was wellinformed? Councils can move clients to another setting, and change their home care providers, so long as they do it carefully and lawfully. a) They’d have to do an up-to-date re-assessment of need in order to get a new provider to quote for that person. A pen picture of what the client had by way of services, on any given day, is not going to satisfy any other specialist provider enough to make the all-important admission decision – if they know what they’re about, that is. b) The council would have to abide by the client’s public law rights to have their care needs met, consistently with the Mental Capacity Act and the Human Rights Act. The relatives and current care provider will have to be treated as Best Interests consultees. The more capacitated a client is the more important their connections with other people in the care home and in the area will be, and human rights extend to protecting relationships. c) If the council is effectively threatening a formal care review, unless the provider is willing to review the price – proper competent trained care needs reviewers will have to be used – and it may turn out that the client’s needs have gone UP! d) Councils can move the client or the service, on grounds of cost, but they will risk judicial review. The clients will have sufficiently low means as to qualify for legal services funding. © Belinda Schwehr, 2010 80

Equalities etc – if the council raises the local eligibility threshold Chavda v Harrow LBC The courts have considered the nature of public authorities’ equality duties, in particular the meaning of the term “to have due regard”. Councils should note the case of Chavda v Harrow LBC [2007] EWHC 3064 (Admin) in which the council’s decision to restrict adult care services to people with critical needs was challenged. A summary of an equality impact assessment simply stating that implementing the proposal could result in potential conflict with the Disability Discrimination Act 1995 had been submitted to the council in preparation for its decision. The court found that this was insufficient to enable the council to comply with the duties in the 1995 Act and that the decision was therefore unlawful. There was no evidence that the legal duty and its implications had been brought to the attention of the decision-makers, who should have been informed not just that the decision raised implications for equality, but of the particular obligations imposed by the law in relation to those issues.

Equalities in relation to de-commissioning: R (Boyejo) v Barnet LBC (and R (Smith) v Portsmouth City Council (2009) • Barnet LBC resolved to change the way it provided support services to those living in sheltered accommodation, by terminating contracts for onsite warden based services and developing a peripatetic support service, with the retention of an alarm service to all residents in such accommodation. • Portsmouth City Council decided to terminate the provision for sleep-in night time staff at each of certain high level support sheltered housing schemes and to introduce instead a mobile night service. The focus of the Portsmouth case was a preliminary impact assessment carried out by a policy development manager in the Housing Service which concluded that the proposed changes could have no adverse effect or impact on members of equality groups, including disability groups. • The court’s reaction to that was ‘You what? ? ? ’ © Belinda Schwehr, 2010 82

The whole point of this ‘due regard’ duty: • “Members are heavily reliant on officers for advice in taking these decisions. That makes it doubly important for officers not simply to tell members what they want to hear but to be rigorous in both inquiring and reporting to them. ” • “There aspects of the evaluation …which strike me as Panglossian – for example the ignoring of actual outcome in favour of “planned outcome” and the limiting of ‘consequential risk’ to the possibility that charges would not be introduced – and parts of the report to members which present conclusions, without the data needed to evaluate them. ” © Belinda Schwehr, 2010 83

What went wrong? • Both Barnet and Portsmouth had some regard to such impacts on residents as a group, but neither authority in my judgment had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities may involve treating disabled persons more favourably than others. • References in the documentation before the decision makers in each case to disabilities or to rights of equality do not fulfil the requirement of such recognition. • Nor does a general awareness amongst officers or decision-makers of the duty under section 49 A(1). • It follows that in both cases there has been a failure to comply with that duty and in particular sub-section (d). • That alone is sufficient to vitiate each of the decisions. © Belinda Schwehr, 2010 84

Wince time… • Moreover, both authorities chose to consult in these cases. It is accepted by each that once that decision is made, the consultation must be carried out properly. • It must be undertaken at a time when the proposals are still at a formative stage. • Sufficient reasons must be given to allow those consulted to give intelligent consideration and an intelligent response. • There must also be adequate time for such a response. • Barnet involved disabled persons in its decision in a substantive way, but Portsmouth did not. Each of those authorities failed to adopt an approach to mainstream disability equality in the decision challenged and in that regard there is a breach of Code which is a factor supporting the conclusion that each is in breach of its statutory duty. • I have come to the conclusion that the failings in each case are sufficiently serious for the decision to be quashed and for the matter to be reconsidered. “ © Belinda Schwehr, 2010 85