Author Archives: Stephen Lowe

Rights and resources – Supreme Court social care ruling

Local Authorities have statutory duties to provide social care to people who need it, but at the same time have finite resources. The way in which local authorities should reconcile their duties towards individuals with sound budget management appeared to have been established by the so called ‘Gloucester judgment’ (R v Gloucestershire County Council, Ex parte Barry).  This judgment ruled that local authorities could take their resources into account in setting their eligibility criteria for social care, but if someone met the criteria the local authority had an absolute duty to meet eligible needs. The local authority could not, once eligibility was established, use resources as a justification for not meeting needs.

However in the past couple of years the implementation of personalisation combined with unprecedented funding cuts has resulted in the relationship between rights and increasingly limited resources once more being tested in court, with the most recent case, R. (on the application of KM) v. Cambridgeshire County Council, going all the way to the Supreme Court.  This case was flagged up in advance as one which might overturn the ‘Gloucester judgment’ though in the event this did not happen.

Photo: Rosie O’Beirne

The main issue at stake in this case was the use of ‘Resource Allocation Systems’ (RAS) to calculate a personal budget. RAS are often used to allocate an amount on the basis of a standardised questionnaire. This means that the budget calculated might not be enough to meet the individual’s needs. However it is often not clear to the person how the budget has been worked out, or what needs the budget is supposed to meet, so This makes it impossible for the person to challenge the amount allocated on the basis that it is not enough.

However the law has not changed; local authorities still have duties to fully asses the needs of the individual, to consider whether they are eligible for support, and to ensure that eligible needs are met. In 2010 an important case, R (Savva) v Kensington and Chelsea Royal London Borough Council, underlined this point. Whilst the court agreed that a local authority could use a RAS to work out an approximate, or indicative, budget, it remained the case that once eligible needs had been established on the basis of an assessment of individual needs, the council was under an absolute duty to provide services that would meet those needs, or a personal budget with which to purchase them.

The person was also entitled to know how their budget had been worked out. The judge gave an indication of the level of detail required concluding that ‘I would consider it adequate to list the required services and assumed timings… together with the assumed hourly cost. That would not be unduly onerous. I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done.”

All of this creates a fairly consistent picture, but during 2011, R. (on the application of KM) v. Cambridgeshire County Council appeared to overturn this position, with the Appeal Court concluding that in allocating a personal budget ‘the  local authority are not obliged to meet an individual’s needs in absolute terms’. This caused considerable alarm and resulted in a number of representative organisations supporting a further appeal to the Supreme Court (Age UK did not intervene as no older people were involved).

The Supreme Court judgment, announced last month, reconfirms the position established by Savva and concludes that the view expressed by the Court of Appeal was erroneous and based on a misunderstanding of the Savva case.

 So the law effectively remains as it was. Local Authorities have an absolute duty to meet assessed needs and must be able to show that a personal budget has been worked out on the basis of a proper assessment, and that it is sufficient to meet needs identified by that assessment.  The decision re-enforces the point made in Savva that a local authority must explain how it has calculated the person’s budget – the court notes that ‘failure to meet eligible needs may prove to be far less visible in circumstances in which it [the local authority] has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer’.

Age UK are calling on the Government to urgently reform the care system. More than130,000 people have signed our Care in Crisis petition calling for reform of England’s care system. Find out more about the campaign and how you can get involved.

Care in Crisis 2012; the Architecture of Reform

Age UK’s Care in Crisis report is not only focused on the current funding crisis in social care; it also sets out what Age UK wants to see from a reformed care system. This vision has its origins in the detailed consultation and engagement which we undertook with older people in the run up to the 2010 social care white paper.

Vision is that everyone who uses care should be able to say the following;

  • I receive the care and support I need with no chance of being left without it:
  • My care and support services are high quality and safe:
  • I am able to live safely and with self-respect:
  • I am able to plan in advance before needing care:
  • I am able to pay for care in a fair and transparent way:
  • The system is clear and easy to understand:
  • No family member or friend is forced to sacrifice health, career, social life or future economic security to care for me

These priorities are based on the belief that older people, like everyone else, need to change, to grow, to adapt and to play a full role in society as citizens. The current system all too often seems to assume that all of this ends at the age of 65, after which care and support just needs to keep people safe.

In reality, however, many people face major transitions in older age. The onset of illness or disability, being diagnosed with dementia, loss of close family members, or entering a care home are all major trials of life which call into question people’s identity and future aspirations .  Care and support should be available to support people at all stages of their lives and to help people to manage transitions and life changing events.

Older people who need support may want to move to be nearer to relatives. However if someone depends on local authority care and support, moving to another local authority area can be a bureaucratic nightmare; so care packages should be portable.

Older people still want to be active, to be involved in society, the community and family and to make a contribution. Being able to achieve these aspirations is often important to people’s self image, and to their conception of dignity. So care and support should help older people to live with dignity, to be part of a community and to maintain family and social relationships.

People also need to be active as citizens. In our society, in theory if not always in practice, people should be able to challenge arbitrary decisions by the state. For people who need care and support it is particularly important that decision making is transparent and open to challenge, as the results of poor decision making by public bodies can be catastrophic for the individual. So the recommendations of the Law Commission review of adult social care law – which are to a large extent about clarifying and rationalising decision making by public bodies – should be fully implemented.

No one should ever be refused care without a proper individualised assessment of their needs, and it must be clear where accountability for decisions made by statutory bodies lies.

Many older people welcome the opportunities to manage their own care and support (though others may not). So people should be able to obtain appropriate information and support to negotiate the system and if they wish, to arrange their own care. This includes access to advocacy, and to new roles such as support brokers or care navigators.

The full set of policy calls are set out in Care in Crisis 2012.

Age UK are calling on the Government to reform the adult social care system. Find out more about Age UK’s Care in Crisis campaign and how to sign up to our petition.

Read Care in Crisis 2012

 

 

 

 

 

Health Select Committee report – a compelling case for change

The Health Select Committee report on Social Care is clear and unequivocal in saying that current funding for social care is inadequate, and that planned efficiency gains cannot be achieved without fundamental reform. We agree.

The reforms which the committee has in mind are nothing if not radical. A single health and social care system for older people is proposed, with a new legal framework which should cover both health and social care.

To achieve this the committee proposes a single local commissioning process. This should set its sights beyond just health and social care to include other services such as housing. Integration of commissioning would be led by a single high powered commissioner, whose role would be to overcome conflicting local priorities and to ‘create agents within the system who have both the ability and the incentive to drive the necessary process of fundamental change in service provision’. The commissioner would be accountable to NHS Commissioning boards, Local Authorities, service users and to local democratic arrangements.  A single outcomes framework would replace the current Adult social Care and NHS outcome frameworks.

Integration is seen as being not an objective in itself but ‘an essential tool to improve outcomes for individuals and communities’. A pragmatic approach to integration, with the emphasis on integrated processes and outcomes, is very welcome. Proposals that the commissioner should be accountable to the local community and to services also deserve strong support. We look forward to taking part in the debate that this report is sure to stimulate.

In the meantime, we hope the government heeds the commission recommendtion that it should press on with reform, and should implement the Dilnot Commission’s recommendations on care funding as a matter of urgency. We couldn’t agree more.

Age UK are calling on the Government to reform the social care system. Find out more about Age UK’s Care in Crisis campaign and how to sign up to our petition.  

Citizens or consumers? How older people can influence care and support services

About fifteen years ago I worked for a local authority developing a ‘user involvement’ strategy for social services. It wasn’t an authority noted for gung ho radicalism, so I had to put my disability rights background on one side and adopt a ‘total quality’ approach focussed on how user empowerment could be part of a wider quality system.  I was then completely wrong footed when the Director of Housing and Social Services pointed out that in housing the local authority had been much more radical than anything I had advocated and were putting real power in the hands of residents by transferring all housing stock to a tenant management co-operative. The co-operative would take decisions about resource allocation including potentially sensitive issues such as which housing stock would be refurbished first.

So, fifteen years later, how far have we moved on? Are people who use social services in control of how those services are planned, managed and commissioned? The Joseph Rowntree Foundation published a new report ‘Involving Older People in Service Commissioning – more power to their elbow’’ last week.  (http://www.jrf.org.uk/publications/involving-older-people-more-power-to-their-elbow). The report concludes that, despite increased policy emphasis on user voice and choice, there are few examples of older people having a real say in commissioning or service planning.

Perhaps the most interesting part of the report is it’s analysis of how local authorities are involving older people. This analysis argues that, broadly speaking, local authorities take one of two approaches, viewing older people either as citizens or as consumers. Citizen involvement seeks to involve the whole community, including older people who are now in good health and might find it difficult to anticipate future needs. It is not focussed on services but on how councils can promote continued independence and wellbeing. In contrast consumer involvement is more limited. It seeks to involve existing service users and the focus is on improving the quality of services. Consumer user involvement is usually initiated and led by service providers.

Current government policy does indeed seem to reflect a dichotomy between ‘democratic’ involvement. Involving the community (citizens) in decision making as part of the localism agenda and a ‘consumerist’ approach to personalisation, turning ‘service users’ into ‘budget holders’ who will be able to exercise power as customers. Reliance on the latter approach alone has been criticised by some, including Age UK, for failing to take account of the imperfections of social care markets or the barriers to service users acting as empowered consumers. It’s also a far cry from the emphasis on mutual and peer support which underpinned the philosophy of ‘independent living’ developed by disabled people from the 1960’s onwards.

The other problem with this dual approach, based on wide democratic involvement and consumerism is that it leaves out a third group – people who do not meet eligibility criteria for local authority care but who need support to remain independent or know that they are likely to in the near future. This group do not qualify as ‘service users’ but neither is their perspective that of the general citizen – the availability of good social care services is a much more important and pressing issue.

The Rowntree report includes in depth studies of two local authorities, Salford and Dorset, who are seen as models of good practice. In both cases one of the keys to bridging the gap between ‘citizens’ and ‘service users’ seems to be the involvement of Older People’s forums and of organisations arising from the ‘POPPS’  (Partnerships with Older People Programme) projects. Older people were involved  influencing the planning and development of extra care housing, helping to redesign older people’s mental health services, and redesigning hospital and community services.

So there are a whole range of ways in which older people can take control of services. Rights, democratic control, involvement of service users and of groups representing a broader range of older people, personal budgets, good quality systems,  with effective mechanisms for giving a voice to service users, mutual and peer support, and outright service user control should all be on the agenda.