This blog was contributed by Clive Newton, Age UK’s National Development Manager – Care and Communities.
Five years on from the publication of Putting People First and Transforming Social Care, it’s time to take stock. Have older people entered the promised land of choice and control? Are they receiving personalised services, tailored to their individual needs and preferences? Did the £520m Social Care Reform Grant deliver the intended transformation in the way care and support is designed and delivered?
Unfortunately, from the point of view of most older people with care and support needs, the answer to all these questions is a resounding ‘no’. There hasn’t been a ‘strategic shift to prevention and earlier intervention’. The system remains crisis-driven, with ever-tightening eligibility criteria. Self-funders receive little or no support. And even those older people who are eligible for a personal budget rarely experience any real sense of choice and control. What went wrong? Continue reading “Is personalisation failing older people?”
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.
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 Councilappeared 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’.