Readers may recall that Southampton consulted about offering people a care home instead of home care, if care in a person’s preferred setting was costlier than the council could have paid in a managed environment.
Southampton withdrew its proposals but Medway has taken up the challenge, consulting on a similar basis. Bedford seems to have finished its consultation and has already implemented a slightly amended policy.
The plans all have in common the aim of limiting care packages in a client’s home to one or more flat rates, per week, on the basis that a bed in a care home will be the same cost.
Councils say they will ‘assist’ those unable or unwilling to pay for their own care needs at home, or prevail upon others in their network to meet the cost above and beyond that limit, to move into a care home.
Exceptions
Councils also say that they will not have a ‘blanket’ policy but will make exceptions, taking full account of the duty to be person-centred, and place wishes, feelings and needs, at the centre of the process.
Some councils see this as applying mainly to elderly people because their care home fees tend to be flat-rated for ease of commissioning; others see a need to apply the same policy to people with learning and other disabilities, presumably to avoid discrimination, but this is less likely because a residential care package for a person with learning disabilities may not be cheaper than in an own home setting.
Some councils are framing their policies with regard to the gross equivalent cost; others are using net costs, offering the value of a residential care home, after the client’s legitimate contribution has been factored in, and expecting people to take that net sum of money and spending it, and their own money, on meeting their needs.
Exceptions
For physical and learning disability clients, the range in Bedford goes from £570-£2,500 a week, because of variations in need. It seems to be accepted that if the lower end of that range was a starting point, people with needs above this level in their own home would be treated as exceptions – but it’s not clear what these people would be an exception to. The policy document said that for such people alternative methods of care and support, not alternative settings, will be tried, an ambiguity that needs to be clarified.
Clearly these policies raise questions – of legality, human rights, care planning discretion, the relevance of resources, and the interpretation of the duty to meet needs. I agree that living at home is a ‘want’ rather than a need for most people but I do doubt that a policy of cost capping fits with the Care Act framework.
What is legal under the Care Act?
It is legal for councils to take their resources into account in relation to how they meet needs, not whether they meet them.
Councils are also – despite the rhetoric about personalisation and user-led assessment – the final decision-makers about what is an appropriate way to meet needs in a particular case.
But in both cases, this discretion is subject to judicial review (legal proceedings challenging the validity of the decision) for unreasonableness, unfairness, illegality, breach of the person’s article 3 or 8 human rights, or for what’s called ‘fettering of discretion’, if what is described as a general policy is, in practice, going to be implemented as a concrete rule.
Review trigger
Bedford’s policy does not go that far: it uses the equivalent cost as a review trigger and the occasion for a discussion. And it would only be applied where a person could, in the opinion of staff, be appropriately cared for in either setting. Medway is clearly committed to doing needs assessment too.
However, it’s the relationship of the proposal to the staff’s approach to the care planning process that is unclear. Is it still needs-led, budget-led or even service-led? The Act and the preceding law have always been clear: it must be needs-led, and by the needs of the individual in question, not some hypothetical average person.
A person does not have a human right to live in their own home, or in a non-care home environment, if living there with one’s needs being appropriately met would involve relying on the State to fund that care. Article 8 of the ECHR guarantees respect for private and family life and the home, but not a guarantee that one will always be able to be cared for, there, for ever, courtesy of the State. Article 8 explicitly includes a reference to the economic wellbeing of the area as a legitimate qualification of that whole human ‘right’.
There is nothing wrong in letting people volunteer to meet the first chunk of their own currently unmet needs, by offering informal help through friends, relatives, neighbours, or through the use of their own resources – councils are only obliged to meet unmet need, just as under the old law.
There is nothing legally wrong, if there are two alternative adequate settings for meeting the particular needs of a person, in a council’s offering to fund the cheaper of the two. That well-established principle is set out in paragraph 10.27 of the guidance, along with the prohibition on ‘arbitrary’ ceilings on care costs in particular settings. That’s always been the law since the Lancashire case, and the Care Act doesn’t change that principle.
Unlawfully
A person has every right to refuse to accept what is offered, or to accept it but then challenge the decision, via a line manager’s review or judicial review proceedings, that the care home setting would be therapeutically appropriate. But in so doing, even if the judge agrees that the council has acted unlawfully, the person does not get to tell the State what he or she wants instead. The council decides and can only be challenged by way of judicial review for indefensibly unsuitable offers.
However, the all-important care planning decision is the one by the staff member as to whether a person’s needs can even be appropriately met in a care home setting – ie. therapeutically beneficial and would not de-skill them. That is the whole basis for not putting young people with learning disabilities, terminally ill young parents with children, and elderly persons who can still recognise their home surroundings and partners, and cope, into care homes.
The needs to be met will refer back to the domains/’outcomes’ in the eligibility regulations. One is not eligible for a care home, or homecare any longer: one is eligible, effectively, for care planning, and two different settings or ways to meet need can be compared where both could be offered by the council.
They will inevitably be unequal in many ways: one will cost less and one will offer more of some things, such as safety and company, and less of others; for instance, autonomy, privacy, peace and quiet. Whether one or the other suits a person’s needs better will all depend on the perspective through which they see their home, care homes, and their situation.
Clearly, for some it would be indefensible that the cheaper of the two was even theoretically adequate. The extent of the impact of one’s assessed eligible needs in one’s own home may be less than in a care home, but the environment, including the state of one’s home; for example, whether there is someone else there, will inevitably affect the cost of reducing the impact of what one is not able to achieve, in each setting, to a no longer significant level.
And if it would not promote well-being, and in fact detract from well-being, can a council actually drive such a policy all the way home and risk challenge? What would that do for the reputation of the parties involved in the cross-party design of the Care Act and the reverence for the well-being principle, that the law is supposed to enshrine?
Other points of concern
- The legitimacy of the rate within the level of care home being regarded as equivalent in the first place. In areas where top-ups are running high it is probable that the council isn’t paying a justified rate for the cost of standard care home care at all. This is now beginning to be the case for people with learning disabilities as well.
- How the nursing element of a nursing home can be forced out of the CCG, since it is clear that the council could not provide for
the nursing care in the community within their own statutory
functions.
- Whether the same approach will be taken by CCGs – or CCGs with split package clients – and how all elements will be taken into consideration in the
comparison.
- The charging implications: why isn’t the amount that a person is being asked to spend on their own home care, always to be treated as disability related expenditure, since it is spending on need that the council has required to be satisfied has
been met.
Neither of the councils have given any detail of what exceptional circumstances would be for not applying the policy. Someone having both the gumption and the means to bring judicial review proceedings is not a principled reason for deciding when the policy should not be applied.
Nowhere in the consultation documents have Members been told of other options, such as cutting other discretionary budgets, raising the council tax or digging up the reserves coffers. Nowhere is it acknowledged that duties and values can trump budgetary targets.
RIP, legal literacy?
Belinda Schwehr
Care and Health Law
