Planning and purchasing: shifting the cost to the client

Planning and purchasing: shifting the cost to the client

There seem to be a few tricks being played on the local authority side in adult learning disability care planning and purchasing. These need to be called out, says Belinda Schwehr, who explains three common ruses

This article is the second in a two-part series looking at the most troubling issues in health and social care law and practice seen at CASCAIDr. Part one in the previous issue (CL 31:4) examined problems with due process

Local authorities seem to be adopting tactics that appear underhand around planning and buying care and activities for people with learning disabilities.

These include shifting the cost of activities to personal allowances, reorganising staffing ratios so people have to top up payments for activities, and saying eligible needs have been met by low-level underlying support contracts.

Activities funded out of a personal allowance

This arises where a care home (or a prospective alternative provider) is persuaded by commissioners to drop their price or lower their tender.

Usually this generous move, fuelled by concern about competition or loss of a client, is justified by an agreement where the commissioner removes previously paid-for activities from the contract specification, and the provider removes them from the support plan.

Generally, it is the cost of the entrance into the activity itself that is being cut, not the support that goes with the activity. However, because the provision was previously ’24 hour care’, providers had paid for those activities out of the contract price. After all, it was not the client who was making any contractual arrangements with anyone for any entertainment, day care or stimulation – it was all part of their entitlement, by way of care planning, through the council.

“If a commissioner wants to change provider and

impose that on a client, the care plan has to be revised”

Of course, this sort of a change is easiest done when someone is moving between care homes, because a service user’s relative assumes that what was included before will be available again. It is then the new provider, rather than any commissioner, who has to explain to the relative: ‘No, sorry, that’s not included in our support plan. It’s ok though, to pay for the activity out of your relative’s personal allowance. If you want to.’

The outcome is that the client’s personal allowance – their £24.90 per week for personal items that are not social care needs at all – is now seen as available to meet what were previously seen as necessary arrangements for meeting the person’s assessed eligible needs.  So most people’s relatives who are undertaking the role of appointee say ‘yes’ to that suggestion, then end up paying themselves for the person’s toiletries and clothing.

Clever, eh? No doubt highly paid consultants have come up with this wheeze – but it is not lawful.

The vast majority of relatives do not know that, if a council’s care plan is revised so as to make a large change to provision to meet need, the service user is entitled to due process and a rational and transparent consideration of whether their needs have changed.

In our scenario, the needs have not changed at all, but the inputs for the person have changed – either because the provider has produced a different internal support plan or because the local authority has not met any resistance in issuing a new Care Act care plan.

Hopefully, from the council’s perspective, the new plan will not look too different from the previous one, which was probably expressed in a fluffy outcomes-focused way, with some wording along the lines of ‘happy, safe client … 24 hour care….’.

The Birmingham ex p Killigrew case, which predates the Care Act, established the proposition that if a council is going to say that a person’s needs have changed, to justify a cut in the budget/plan, there has to be a rational articulation by a professionally competent person explaining where those needs have evaporated to.

If a local authority commissioner wants to change provider and impose that on a service user, the council’s care plan has to be revised – and only after a lawful proper assessment. Anything that was considered necessary previously to meet need, but is no longer being offered, has to be analysed as to:

What need did it actually meet?

Does that need still exist?

How should it still be met?

Resource difficulties are not relevant to whether a need is met, only to the means. Whatever is in a care plan has to be delivered in kind, if not exactly as it is written, unless or until a lawful reassessment and plan have replaced those previously in force.

“since the activity is more intensively staffed than clients

need, they will have to top up, if they want to take part”

Activities that are too highly staffed for the person’s needs, so they have to top up

This wheeze involves a council getting together with a provider offering day care as part of the commissioned care package.

The clients might be in a care home or in supported living; the essential point is that activities are included in the commissioner’s contract requirement.

In a contract review – well out of relatives’ sight after the commissioner has negotiated a massive cut in the overall payment to the provider, the provider will be invited to say what the staffing ratio for those activities is. This could be, for example, one staff member to three service users.

The provider will then say it has been agreed with the council that service user A is of a higher functioning level than ‘the others’ so needs supervision only on a 1:4 ratio, while that service user B is presenting less risk than before, and will be fine with 1:5.

The outcome will be that, since the activity being provided is more intensively staffed than service users need, and the council only funds needs and not wants, well, if they still want to take part, they will have to top up, privately…

Where the client is charged by the council for the provision of the activity as part of their budget, I think that the client can properly say that they need to claim that extra cost as disability related expenditure, even if it is not an eligible need. It is still a need, even if it is not eligible, because one cannot send only a portion of oneself to a day care place.

I can think of no reason why this is unlawful, as long as the care plan is properly revised and the council therefore knows the provider is making this private charge.

Unlike care home top-ups, the payment will have to be made by the client to the provider rather than to the council.

However, if the council is not told and is paying the provider the whole fee for the activity, then it is just plain double charging and fraudulent. This is because it is charging two people for the same thing, the council on the one hand, and the service user or relative on the other.

“A slight change in how needs are described justifies

providers using cheaper, unregulated support staff”

Eligible needs met by low-level underlying support contracts

A variation on the above theme, which I have come across recently, is this: the service user is assessed with Care Act paperwork, and inabilities to achieve are found along with significant impact, so there is eligibility. But, when it comes to care planning, no budget is provided, because the need is regarded as met by something else.

That something turns out to be an underlying, separate contract with the provider – paid for by the council, not as an individual service agreement but rather through a block contract for all the clients to receive a standard ‘wellbeing’ or welfare service, rather than an individually commissioned contract for each person’s eligible needs.

Sometimes, there is a clue as to this sort of a device: you might find that the service user has a tenancy in a housing association where the provider is or used to be the housing management service for the landlord, when Supporting People monies were available. That company may not have been a registered provider with Care Quality Commission at that point, and might not have registered when it became a requirement to do so if the service involved ‘prompting together with supervision of personal care tasks’. (This requirement made most Supporting People providers offering care in the home into registrable entities.)

Whatever the registration status of the provider, you find that the service user will have been freshly evaluated by the provider to need only prompting, rather than prompting together with supervision. This is a clue that supposedly eligible needs will be met by something other than by a Care Act personal budget, because prompting together with supervision counts as registrable personal care that must be done by properly regulated workers, who tend to cost more than mere support workers.

Mere ‘prompting’ does not require a provider to be registered with CQC, and can be provided by unregulated workers, even in an organisation registered for the provision of personal care. So this slight change in the way a person’s needs are described by the provider justifies the employment of unregulated support workers who are paid less than those who are regarded as delivering ‘care’.

In this way, the provider can offer savings to the commissioner. Also – and this really matters for the work my organisation CASCAIDr is doing – there is no enforceable right to any particular amount of ‘support’ outside the Care Act, as opposed to care and support inside this legislation. Public law principles do not and cannot do much to preserve whatever is being paid for, when next year even further cuts are made, all over again.

This explains – does it not? – why commissioners in many councils are so obsessed with the idea that supported living is a different service to home care. Such devices are being used to thin out people’s Care Act personal budgets.

Belinda Schwehr is chief executive of  legal advice charity CASCAIDr ( and owner of the Care & Health Law consultancy. She has been a barrister, solicitor advocate and university law lecturer