Personal Budgets : LAs Still In The Driving Seat ?

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Interesting article in today's Guardian which looks at the repercussions of :

1. The fallout from the recent Luke Davey case

2. The effects of the Care Act 2014

3. LA interpretations and proceedures

https://www.theguardian.com/social-care ... ncils-care

Personal budgets: why do councils still call the shots on care ?

Councils still assess eligibility and allocate resources, but we’ve known for decades that letting people choose and pay for their own care works better


Two recent high court judgments – Oxfordshire v Davey and Merton v JF – highlight the ways councils assess eligibility for social care and allocate resources. One vital issue they underline has so far gone completely under the radar: personal budgets.

When the Care Act came into effect in 2014, it was hailed as the most significant change in social care law for 60 years. A key measure was to make it a legal duty for councils to provide all service users with a personal budget.

The change was built on the premise that an up-front allocation of money would empower a person to choose the support they think will work best for them – instead of councils controlling what their needs were and how to meet them. The allocation would be calculated using a resource allocation system, a formula predicting how much support they would need, which could be adjusted once the person’s actual needs were known. The person would then be given the cash as a direct payment to manage themselves or the local authority would handle it as a council-managed budget. But either way, the same principle – a person should choose their own support using a sum of money – would apply.

The two high court judgments both concerned service users seeking legal redress against councils that had significantly reduced their levels of support. They brought into sharp focus how decisions were made about what services would be provided and at what cost.

But in the two very detailed court judgments – totalling 35,000 words – there is not a single mention of an “up-front allocation” or “resource allocation system”. These concepts played no part in either claimant’s case against the councils, nor in the councils’ defences, nor in the judges’ deliberations. It’s as if the personal budget strategy did not exist.

The term personal budget is used, but it means no more than the financial value of services the councils offered to meet the needs it had decided were eligible. This is precisely the meaning given to personal budget by the Care Act, which leaves unchanged the power of councils to decide what needs it will meet and what resources are required to meet them.

The effect is that “personal budget” simply replaces “care package” to describe the offer made to a person. Stripped of its transformative ambitions, it has become a phantom policy. New words to describe the same old, same old.

Yet politicians and social care leaders continue to proclaim the transformative ability of personal budgets. Surveys of personal budget holders carried out by Think Local Act Personal (TLAP), for example, have created a false and misleading narrative. Asking people if their personal budget has improved their lives is bound to elicit a different response if people understand personal budget to simply refer to the services they receive.

( Snake oil salespersons ... as predicted by ... CarerWatch ...almost a decade ago when this " Idea " was first muted.

Many micro enterprises have sprung up since their introduction with the private investors happy to collect their profits and dividends at the expenses of the end user ... the caree , and in many cases , our caree !

A continuation of the Government' s failure to protect and insulate it's most vunerable citizens. ).


The most recent survey adds a new question, perhaps amid concerns that councils may not even be telling people what their up-front allocation is.
Worth reading the whole article in full as it touches apon several issues of paramount importance to carers and carees alike.

Usual comments section ... first few make VERY interesting reading !
On the same subject , an older article from the Guardian :

https://www.theguardian.com/social-care ... shire-east
Care dispute highlights lack of clarity over personalisation.

Local government ombudsman’s ruling over disabled man’s direct payments illustrates how much uncertainty remains over flagship policy

What are the limits of people’s choice and control over their care and support? Should there be any? Or does the state have a duty to ensure that risks are minimised and taxpayers’ money is used appropriately?

The principle of personalisation is now embedded in the care system, at least in England. But there is continuing uncertainty over how far it should be taken, as illustrated by a dispute between a council and a disabled young man who wants to use his direct payments to employ his mother for 76 hours a week for his care and for support with social activities.

Under national guidance (pdf), councils may “where necessary” allow recipients of direct payments to employ a family member living in the same home as their personal assistant (PA). After a long wrangle, the council in this case, Cheshire East, has conceded the point but is balking at the payment of one individual for as many as 76 hours – twice the length of a typical working week and worth a weekly wage of almost £800.

The local government ombudsman (LGO) has now ruled that Cheshire East has been wrong to cite working time regulations, which limit the average working week to 48 hours but which offer the employee an opt-out. It has told the council to reconsider the matter, “balancing choice and risk”.

The family involved in the case is not being identified. The young man suffered a serious spinal injury while playing sport at university in September 2013. His mother, a lone parent, then gave up her job to become his carer.

A key incident in the case occurred soon after the young man was discharged from hospital three months later. On a night out with friends, he was highly embarrassed to run into a care worker who was giving him reablement support at home. After this, he became reluctant to have care workers attending to his needs.

Those needs were formally assessed by the council in May 2014 as requiring 56 hours a week care – including washing, dressing, help with continence and one hour of support during the night. In June, the assessment was amended to include a further 20 hours for sport and leisure activities.

It was not until August last year, by which time the family was struggling financially, that the council agreed that the mother could be employed as a PA. But it insisted she could not exceed the hours stipulated in the working time regulations. By this stage the family had complained to the LGO and it was only after repeated interventions by the ombudsman’s team that the first direct payments, based on a 48-hour week, were made in October.


Again , worth reading the whole article to see the whole picture which emerges.

Comments section and .... a worthy opener from one of our former , most respected , members to boot !

The problem in this case seems to be that the council were thinking of themselves as employers, but social work teams have - at best - a very shaky grasp on employment legislation. In one sense, it's a good thing in this case that their error was on the side of caution. Some advice/assumptions on the employment front have been too cavalier and potentially costly!

That being said, it seems to be a shame that they didn't at least check with their own HR team or with ACAS first. Would have saved a lot of hassle for everyone.
Whilst the Luke Davey has been reported in full elsewhere ( Care Act thread ) , time for the second case to be recorded ... as mentioned briefly in the opening posting :


R (JF) v Merton LBC ~ High Court Social Care Law Assessment judgment
July 17, 2017 admin


R (JF) v The London Borough of Merton [2017] EWHC 1519 (Admin) concerned a young man (JF) with complex needs. The High Court held to be unlawful: (1) an assessment undertaken by Merton LBC; and (2) a decision that he could be moved to different accommodation.

Summary

JF was 24 at the date of the judgment. He had lived in his current setting (a residential college) for many years. He is (among other things) non-verbal, highly anxious and this is exacerbated by any change to his routine or environment, however minor: ordinarily he requires 1:1 supervision (2:1 when in the community).

For over 15 years he has received support from a multidisciplinary team that includes speech and language therapy, physiotherapy, psychiatric input and other therapeutic and support provision.

The council decided that JF could be moved to an alternative setting and based its decision on a pre-admission assessment undertaken by the provider of the alternative setting (rather than undertaking a lawful and detailed assessment itself). The local authority accepted that its decision was motivated in part by a wish to cut costs.

Pivotal to the success of this claim is the failure of the Merton LBC to apply the ‘well-being principle’ in the Care Act 2014 section 1.

Importantly the court held (reiterating the regulations) that an assessment will be unlawful if it (para 47) :

fails to assess the impact [of the adult’s] needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act;

fails to assess the outcomes that [the adult] wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes;

fails to have regard to the matters specified in Care and Support (Assessment) Regulations, regulation 3(2) [their wishes and preferences; the outcomes they seek; the severity and overall extent of their needs];

The court held that in relation to people such as JF, inevitably this meant that the local authority must have regard to the views expressed by his parents , is neither appropriate nor proportionate.

The court additionally found that (para 61):

No reasonable local authority would terminate the placement of someone with JF’s complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs.

One problematic element to the judgment concerns the question of whether the local authority was required, in its assessment, to decide how the transfer from JF’s current setting to the proposed setting would be managed (given that he was highly averse to change).

The court held that an assessment under Care Act 2014, section 9 is not required to deal with transitions of this kind: that it is a ‘statement of static current needs’ (para 56). This may be academic as the Care and Support Plan would have to deal with this issue – but arguably this is an inappropriately narrow interpretation. The direction of travel of the Act is that if an assessed need can be met in an alternative (cheaper) setting, a local authority can then take steps to terminate the current placement and ‘transit’ the individual to the other setting. However it is quite possible that some individuals might not survive the transition – or might suffer such harm as to make wholly unreasonable any attempt to move them: the mere fact that life can survive on Mars does not justify a journey that will kill them.

Concluding comments

The judgment noted the limited legal authority relating to assessment under the Care Act 2014 and it is this which makes this case significant.

The Court has confirmed that the local authority exercising its functions under Part 1 of the Act which includes assessment of need, has a duty to promote the well-being of the person being assessed and that in doing so must have regard to the dimensions of well-being set out in statute. The onus is on the local authority to demonstrate that it has had regard, not only to the individual’s wishes but also to their circumstances.

The barrister acting for JF – Alexander Line of Outer Temple Chamber said at the conclusion of the proceedings ‘this case is a recent and important example of a successful challenge to a needs assessment under the new statutory regime, and of the application of the ‘well-being’ principle in section 1 of the Care Act 2014 as an effective litigation device’.

Ann James and Luke Clements


Professor Luke Clements .... known to a few of us for around a decade.

Ideal person to bolster our supporting organisation's " Think tank ".