Norfolk’s Equal Lives wants the providers’ regulator to investigate what it claims are ‘systemic’ failures in care and support planning, citing savage cuts to existing clients’ personal budgets.
There was an early warning of this risk of unlawfulness, with the Clarke case in April 2015, even before the 2014 Act was brought into force.
Mr Clarke, the claimant, a man in his 20s, with severe epilepsy, mental health and behaviour that was challenging, had become ‘ordinarily resident’ in a tenancy in the London Borough of Sutton.
At the time he moved the law was that the new council became responsible for the claimant’s care, in place of the old council (Enfield) even though the old one had funded the move into the supported living setting and had voluntarily paid the specialist epilepsy provider’s fees.
Sutton did not carry out an assessment until five months after the old one ceased to be willing to pay. Sutton concluded that the claimant’s care could be provided in a non-specialist manner.
Professional view
Many providers have been required to offer generalist and specialist rates to councils in re-tendering exercises only to discover that councils are the decision-makers as to whether their clients ‘need’ specialist care – unless providers refuse to admit those clients to their homes, or on to their ‘books’, without their own professional view of the needs being accepted.
The Sutton care plan process costed the ‘need’ at £357 per week compared with the care package the old council had been content to fund for £1,300 per week.
Sutton refused to continue to contract with the old council’s provider, and the young man got an interim injunction from the Court, to prevent cessation of the package in what had been his home for over four years.
The specialist provider’s evidence about its provision included its bespoke alarm system, its staff trained in all emergency medications administration, and highly skilled management of prolonged seizure activity, with access to 24-hour support and monitoring, including waking night staff.
Evidence from a specialist neurologist and an epilepsy nurse documented active epilepsy, night seizures and risk of status related to stress and any non-compliance with medication; injury from falls and one or two unpredictable tonic clonic seizures a month.
During the pre-trial period, the council raised the allocation amount a little and said that Mr Clarke needed “Waking night support for three nights per month, in anticipation that your client will have up to three seizures a month during the night”.
Instead of accepting that the provider’s business model of charging by the week was up to the provider, the council purported to assess as an appropriate response to the above profile of need, the need, or the market rate cost, for the following TIMED services:
- Support for three hours for seven days a week to assist him with taking medication, meal preparation, eating/drinking and showering and bathing
- Support for three hours a week to assist him with cleaning, budgeting and managing bills and correspondence.
In other words, it treated the assessment in the same way as it would have looked at the care of a person who was coping in their own home, but who needed input for specific inputs – instead of acknowledging that the only reason a person with Mr Clarke’s level of needs could feasibly live outside of registered residential care was because of the wrap-around access to supervision and 24-hour support system able to be called upon, ‘beneath’ the specific care inputs needed, on top.
Direct payment
The new council ultimately purported to allocate money for these needs at a level of £661 a week as a direct payment without explaining how it evaluated the claimant’s needs to produce this figure.
Although it had had available to it, the opinions expressed by the claimant’s consultant, GP, epilepsy nurse and care provider, it effectively relied on the judgement of a social worker who did not claim to have any medical skills or qualifications.
In evidence, the specialist provider said: “A waking night’s staff allocation for three nights a month would put Mr C in danger, as it is nonsensical to suggest that assistance with medication is only needed some of the time. Additionally, his seizures are not limited to nights. They are ‘whilst sleeping’. This puts him at risk of death. So, he could easily (and often does) have a seizure whilst sleeping in the morning or early afternoon. That is why he needs 24-hour care. Sleep-in support would not be able to respond to a seizure in time.”
The council maintained that another provider, from whom there was no evidence, would be able to meet all needs, if Mr C moved from his tenancy, to another address.
The judge quashed the decision of the council, ordering it to re-assess the man’s needs, lawfully.
“It is important to keep in mind that this is a case in which the claimant has been in receipt of these services for a number of years, in circumstances in which his medical team and care providers have made it clear that his needs have not decreased. It is to be distinguished from the type of case in which a claimant is seeking services which he has not had in the past.
“The explanation as to the basis upon which three waking nights care a month are included within the package as offered in the hearing before me simply does not make sense and does not address the needs identified in the reports from the medical and other professionals.
“It is also the case that the claimant has a tenancy at his current placement which has been his home for more than four years and there has been no care plan produced from the proposed non-specialist care provider.”
In legal terms, the judge found that the decision was unlawful because relevant circumstances had been ignored.
“…the decision by the defendant failed to give appropriate weight to obviously relevant material and relied excessively on the non-expert view of a social worker in face of a wealth of evidence to the contrary from appropriately qualified and experienced experts. I find that those opinions have not been given sufficient weight in the decision-making process”.
Budgetary pressure
Significantly, for many people facing their first Care Act reviews at a time of extreme budgetary pressure, it was also accepted that article 8 [the human right to respect for one’s private and family life and one’s home] was also engaged.
“I am satisfied that the defendant’s decision that the claimant should be expected to move from his home at which he has a tenancy, to a placement of the defendant’s choosing, in circumstances in which no care plan has been provided by the proposed non-specialist care provider does amount to an unlawful interference with the claimant’s rights to respect for home and private life.”
Automatic right
This does not mean that people have an automatic right to remain in their own home no matter what the cost to the public purse. If the council offers a care home, and it is refused, with mental capacity the council is discharged from its duty to meet the needs. But this is not often imposed on young, active clients, and the duty to meet needs cannot be dependent on moving from one tenancy or owned home to the same sort of accommodation, just to suit the council.
Additionally, in this particular case, there was no evidence that the alternative would even meet the needs, which meant that the council could not show that it had conscientiously balanced the individual’s rights against the economic implications.
The Care Act guidance requires the same sort of balancing (see para 10.27). All reviewing staff and assessors, care planners and Panels, in councils receiving people from elsewhere into their area into ordinary accommodation under the continuity provisions – and those with clients moving out of area, to more expensive areas, under the ‘continuing ordinary residence’ provisions – clearly need to take account of the principle in this case.
The author knows of at least one other case where the responsible council has offered a care package of approximately £700 a week, for a man going into supported living with a new provider, and has suggested that the difference between that and the provider’s fee of £1,000 a week should be seen as a top-up (ie for wants, not needs). That offer has been made without the council’s taking the trouble to explain how £700 even relates to the assessed eligible needs of the gentleman in question, let alone meets those needs, by making the man able to achieve in the relevant domains/outcomes. The Court of Protection became seized of the case, instead of the Administrative Court, where a judicial review would normally be commenced, because the gentleman needs to be deprived of his liberty, to be properly cared for; and hence the Court of Protection’s approval needed to be sought.
It is hoped that the memory of the Clarke case will be enough to ensure that the case never needs to return to the Administrative Court for determination by a judge applying public law principles to the approach of the cash-strapped but ill-informed council.
Lessons from this case
When a person’s needs are reviewed, the council should provide a care plan to show how what they propose meets identified needs appropriately. They can’t just identify a sum of money with no evidence of how it will do so.
They must also show how they have considered relevant circumstances in taking a view, including relevant specialist assessments of need.
Moving a person from a home they have occupied for some time to a placement chosen by a council where no appropriate care plan has been provided may go against Article 8 of the Human Rights Act – respect for one’s private and family life.
The duty to meet needs cannot depend on moving someone from one tenancy or home to similar accommodation to suit the council.
Councils must conscientiously balance the individual’s rights against the costs to their budgets. In carrying out reviews under the Care Act councils need to keep this balance in mind when a client moves to a more expensive area.
Belinda Schwehr
Care and Health Law
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