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03.Nov.2010

The personalisation agenda is set to fundamentally change the way in which supporting people funding is allocated. Ronnie Tong and Nick Billingham look at some of the legal issues facing providers of care, including social housing providers who also provide support services or who work with third party support providers.

The proportion of service users on personal budgets in the last year has already doubled so personalisation is already under way. Some 13% of disabled adults, older people and carers who used community services were receiving personal budgets in 2009-10, up from 6.7% in 2008-9. It is estimated that this trend will continue with more and more service users taking control of their budgets.

Personalisation

Historically, individuals in need of community services would have their needs assessed by a social worker and then be told what services they require and the provider of that service. The Personalisation Agenda now places more control in the hands of the service user. Every eligible person who receives support provided by statutory services will have the choice of personal budgets under Personalisation. This will mean that service users will be able to manage their own budgets and buy their own support services.

The idea is that giving more choice to service users will potentially make them more independent. However, with the increase in service users opting for personalised budgets this will create a number of problems for service providers.

Reduction in funding

When service providers tender for services from local authorities, a budget is normally agreed to be paid to the service provider for the duration of the contract to provide support services. However, if a number of service users opt for personal budgets during the life of that contract, it is likely that the local authority will reduce the funding to the service provider. Local authorities will make direct payments to the individual service users so they can purchase their own support services.

The service providers overheads, such as staffing, will remain the same but with a reduction in the funding by the local authority this will potentially make the cost of the running the service financially impracticable. Service providers may then have to make decisions in terms of either cutting overheads (e.g. redundancies, reductions in pay etc) in order to make the provision of the service financially viable or in the worst case scenario serve notice of termination on the contract.

Changes in the business model

Service providers that normally rely on large scale supporting people contracts may have to start considering targeting self-funding customers, which will mean establishing a different business model. Service providers will also have to adapt the manner in which they market themselves and rather than telling purchasers what services they can offer, they may have to start listening to purchasers to establish the type of services they require.

TUPE

One of the biggest concerns for service providers who historically rely on large scale contracts is the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE). Traditionally when a service provider inherits a contract from another provider there is a service provision change under TUPE. The new service provider will inherit all the employees who were working on the undertaking which is being transferred to the new service provider.

In theory, a service provision change could occur if a service user decided, under personalisation, to purchase care services from another provider. If there has only been one employee working for that individual service user, it is possible that the employee could transfer to the new service provider under TUPE.

However, in the case where an employee is working for three service users and all three services users decide to purchase services from three different providers it is unlikely that TUPE will apply due to the fact that the services have fragmented to such a degree it would be impossible to identify which new service provider the employee should transfer to.

If the employee did not transfer to the new service provider this could potentially result in the employee being made redundant. Furthermore, if the employee originated from the local authority and remained on his/her original terms and conditions, redundancy costs and associated pension liabilities could be significant.

One way service providers could mitigate against this would be to ask the contracting local authority to indemnify them against redundancy costs in such situations. However, it is highly unlikely that a local authority would agree to such an indemnity particularly if this is sought after the contract has been entered into.

Alternative staffing models

Another way to mitigate against potential redundancies is to reassess the manner in which service providers staff their schemes. Due to the uncertainty of the required staffing levels for the duration of a large scale contract, employers may opt to place more employees on zero hour contracts or hire ‘bank workers’.  However, this can cause problems in terms of the quality of service provided if the zero hour employees or bank workers do not work regularly and are unfamiliar with the policies and procedures of the employer.

Conclusion

Whilst the idea of personalisation seems to give great benefits to individual service users (more independence, greater choice, cheaper services etc) it does present a number of concerns for service providers. In particular service providers who are tendering for large scale contracts at present should bear in mind the possibility of losing a number of service users through personalisation and consider whether they would be able to operate the services with a reduction in funding due to personal budgets.

And in the housing management context

One issue which is exercising registered providers (RPs) in the care and support sector is the extent to which residents who accept a package of support services can withdraw from some or all of those services on the basis that they should be able to pick and choose as a result of the Personalisation Agenda.

For example, some residents in a sheltered housing scheme may decide they don't need or want warden services and want to spend their support money elsewhere. The question naturally arises whether they can do that unilaterally and what then happens to the warden if support payments reduce or stop as residents decide to buy other support services. Quite possibly the warden may have to be made redundant.

And of course, Supporting People (SP) authorities are also going to be looking to support providers they contract with to provide more flexible, innovative services. In other words, if services are not wanted by residents and the RP is not able to provide services which residents want, the RP is unlikely pass a QAF inspection and could risk decommissioning anyway.

So how do RPs in the supported housing sector deal with this? The answer from government and support advice agencies appears to be that support providers will need to be more flexible in how they provide support so that the residents have a greater choice in how they spend their individual budgets. This should mean that residents are less likely to try to withdraw from the support provided. But "should" is not really good enough. So how do RPs protect against residents withdrawing from services?

One option which has been piloted already is for the support recipient to be required under their support contract to pay towards certain 'core services' and then have an option to choose from a menu of optional services. There is no reason why the recipient of the support should not be required to choose from options made available by the particular support provider. So long as wide enough choice of services is provided in addition to the core services (which could include for example a warden service or an alarm call service) then the objective of personalisation and choice is achieved without undermining the scheme itself.

Of course, the extent to which support services can be treated as core services and others as optional services depends on the nature of the scheme. For example, an RP running a women's refuge could justifiably require an incoming tenant to accept a menu of standard support services with very little, if any, optional services. This is simply because the needs of women in a refuge are likely to be very similar and the support required very similar. The same could apply to a residential care home or an extra care scheme.

The issue of choice and optional services really arises in the context of schemes where the needs and backgrounds of the residents are more diverse. So, in a sheltered housing scheme, one increasingly finds very different needs as between 55 year olds and 80 year olds living in the same scheme. In these situations, the expectation will be that the RP provides a lot more choice, and the core (obligatory) services will be more restricted.

In summary, choice is a key ingredient of personalisation but choice does not mean a free for all.

Ronnie Tong is a solicitor specialising in employment and Nick Billingham is  a partner and head of the housing management department at Devonshires. Ronnie can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it., while Nick can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

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03.Nov.2010

In February 2010 the Law Commission published a consultation paper containing detailed proposals for the reform of adult social care law. On 14 September 2010, the government published its detailed response. Lee Parkhill and Dawn Braithwaite examine its approach.

In its White Paper Equity and Excellence: Liberating the NHS, the government cited its intention to bring together the Law Commission’s proposals on reforming adult social care law and proposals from the Commission on funding of long-term care, into a White Paper in 2011. The government’s response to the Law Commission’s proposals provides an indication as to how policy, and law, is likely to develop in this area when the 2011 White Paper is produced.

An interesting theme in the response was the government’s desire to change the language in this area; the term “community care services” was described as “outdated”. The response also stated that the term “social care needs” does not “reflect people’s experience nor encourage innovative responses” and suggested the term “needs for care and support” might be more appropriate term to adopt.

Although the government suggesting employing some new language, which the Law Commission had not proposed, the government and the Law Commission both agreed with the principle that the current legislative framework for social care is outdated and needs modernising. The government’s view is that expectations have changed and the social care system needs a legal framework that promotes personalised care, increases choice and control and can be used and understood by those that need to access support.

Set out below are the proposals on which the government agrees with the Law Commission, those in respect of which the government expressed reservations and those the government would like to consider in more detail before reaching a decision.

Proposals for changes to the overarching principles and processes which met with the government's approval

These included:

• Creating a set of defining statutory principles for adult social care law, to provide an overarching sense of the purpose and outcomes that social care should achieve
• Making assessments ‘need’ and ‘outcome’ focused rather than being focused on suitability for a particular service
• Using ‘co-produced’ self assessments as opposed to assessments being wholly created by professionals. However the government stated it does not currently see a role for pure self assessment
• Maintaining the current divide between health and social care, however the government stressed its desire to see greater integration between health and social care in service delivery, and this is evident in their response to some other key proposals, in particular in relation to the assessment process
• Retaining the current law which permits direct payments in social care
• Giving local authorities a power to request assistance from certain authorities, e.g. for assistance in assessing a service user or for assistance in providing services. The requested authority would be under a duty to give due consideration to the request. The government said it would like to give further consideration as to which bodies could be approached by the local authority, and whether the obligation on the other agency (‘to give due consideration to the request’) would change current practice.
• Establishing a legal duty to provide services for those ordinarily resident in a local authority’s area, and a power to provide services to those not ordinarily resident in the authority’s area. There would also be a duty to provide accommodation services needed urgently, regardless of ordinary residence
• Making clear that the responsibility for providing services to carers should rest with the local authority in which the cared for person lives
• Creating a power for local authorities to assess 16 and 17 year olds, to help improve transition between child and adult services, and
• Creating a statutory duty on local authorities to publish information on local services.

Proposed changes to specific services which met with the government's approval

These included:

• standardising the rules on determining which bodies are responsible for services under the Mental Health Act 1983, s. 117. The ‘ordinary residence’ test, which is relevant to most other services, does not currently apply under s. 117 but the government supports making ‘ordinary residence’ the applicable test
• Clarifying the roles of the NHS and local authorities under s. 117. The government is also, provisionally, in favour of splitting the duty so, for example, the NHS duty could be terminated while local authority s. 117 provision to an individual continues
• Extending the ‘Choice of Accommodation’ directions and the additional payment regulations to cover accommodation provided under s. 117 so individuals would get a legal framework to enable them to exercise choice over their accommodation provision, and would be able to pay a ‘top up’ for more expensive accommodation if they wish.

Proposals, or questions posed by the Law Commission, which the government expressed some hesitation about endorsing

These included:

• the proposal to enable portability of services by introducing (i) an enhanced duty to co-operate when service users move areas and (ii) creating a national portable needs assessment and national eligibility criteria. The government’s response acknowledged the problem here but added it is keen to consider the views of others before reaching a conclusion on the proposal
• the proposal to create a right to request an assessment. The government expressed concern that this could burden local authorities with vexatious requests, and also lead to a focus on the assessment process rather than delivery of services. The government is keen to consider responses from others on this issue
• the proposal to create a wider duty to assess carers (applicable not only to carers providing substantial care on a regular basis) and making the carer’s appearance of need the trigger for the assessment duty arising, as opposed to it being triggered by a request for assessment. The government was positive about this proposal’s focus on outcomes and the experience of the carer, as opposed to being focused on specific criteria. However the government said it would like to hear more about current practice, and would like to consider the resource implications for local authorities of the proposed changes.

Proposals where the government was undecided

These included:

• creating a mandatory national eligibility framework for carers services, which local authorities would have to use to decide whether or not to provide services to carers
• defining community care services by a short and broad list of services. The government expressed reservations about language, disliking the term ‘community care services’, and expressed a desire to avoid a list of services acting as a constraint to innovation in the type of services offered to meet needs. The government said it would prefer to see a list of activities which could achieve outcomes, but noted the difficulty of finding the right language to compose such a list
• placing a statutory duty on local authorities to produce a care plan for people who have assessed eligible needs. The government made a few suggestions about how this proposed duty could be altered including a suggestion that the duty should be in terms of ‘co-production’ with the individual. However the government recognized the legal complexity of establishing co-production given the need for a clear decision making processes, the need to determine legal entitlements and local authorities’ wider responsibilities to ensure consistency and fairness to all service users. The government also thinks this duty should reflect greater inter-agency working; the government said that other key agencies, such as the NHS, should play their full part in care planning to ensure that the resulting services are joined up from the outset. The response added it would be important to ensure that the duty does not lead to multiple care plans which would impede a multi-agency approach. The government is keen to discuss this proposal further with the Law Commission and is also keen to see the responses of others before reaching any firm conclusions.

Some of the proposals to abolish laws which met the government approval

These included proposals to:

• Abolish section 21, National Assistance Act 1948. This provision places a duty, and in some cases a power, to provide residential accommodation to people in need of care and attention. The Law Commission proposed that this be repealed, and that local authorities could use mainstream powers (under the proposed new legislation) to provide residential care. The important change would be, the Law Commission suggested, that eligibility would depend not on meeting the definition in s. 21 (being in need of care and attention not otherwise available) but on meeting the new general eligibility criteria. The government agreed in principle with this proposal but expressed concern to ensure that existing entitlement is not lost and suggested that further information be obtained, from ADASS, as to how s. 21 is currently used to ensure that current practice is not constrained and to ensure that any change does not overburden housing authorities.
• Abolish s. 47, National Assistance Act 1948. The government agreed in principle with the proposal to repeal this provision, which empowers local authorities to apply for a court order to authorise the removal people, who are living in insanitary conditions, who are in need of care and attention. The power is infrequently used and concern has been expressed that use of the provision be inconsistent with the Human Rights Act 1998.

Proposals on adult safeguarding and asylum seekers

The Law Commission’s proposals on adult safeguarding were, overall, received with less enthusiasm than other proposals. The proposal to retain a duty on local authorities to safeguard the property of people who are admitted to hospital or residential care was approved of, as too was the proposal to repeal of s. 47 of the National Assistance Act 1948 (see above). However three other significant proposals in the area of safeguarding were not endorsed at this stage, with the government indicating a desire to further consider policy on the issues. The three proposals were:

• a proposal the impose a duty on each social services authority to establish an adult safeguarding board, and to set out in law the functions and membership of the board, a legal requirement to share information and a duty to contribute to serious case reviews
• a proposal that an enhanced duty on relevant agencies to cooperate should include specific provision to promote co-operation in adult safeguarding investigations, and
• a proposal that ‘No Secrets’, or it successor, be linked clearly to a local authority’s statutory function to safeguard adults from abuse and neglect.

The government also signaled that further thought needed to be given on the issue which the Law Commission raised about services for asylum seekers. The government’s response states that it is considering the prohibition on people subject to immigration control accessing some adult social care services where they are solely destitute, or because of the physical or anticipated physical effects of destitution. This has been a high profile area, generating a great deal of litigation, so local authorities will be keen to hear the government’s further thoughts on this complex issue.

Conclusion

The law on adult social care law is extremely complex, with much of it being over 60 years old. The need for reform is clear, and the government is clearly committed to reform. The challenges involved in the task are considerable and they are unlikely to be eased by the sensitive policy issues associated with funding social care. Health and social care providers and commissioners will no doubt find the government’s response to be an interesting insight into current thinking, which we can expect the government to explain in more detail when the 2011 White Paper is published.

Lee Parkhill is a senior solicitor and Dawn Braithwaite is a partner at Mills & Reeve. Lee can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0121 456 8420. Dawn can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it. or on 0121 456 8224.

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03.Nov.2010

Opportunities to rationalise the NHS estate effectively will need to be considered in the context of the local public sector estate generally, a report by TPP Law has argued.

The report – Asset Management in Health and Social Care – said much greater emphasis is likely to be placed on efficiencies achievable through joining up with local authorities and other public sector bodies.

Co-location of different public services where the relevant bodies are working jointly could lead to the twin benefits of improved customer experience and cost savings, the firm added.

Peter Hill, Associate Director of TPP Law, said: “The healthcare and social care environment is of key importance to the patient experience, as well as being important for staff. Better outcomes for health are unlikely to be maximised unless the NHS estate can make a positive contribution to this.”

Hill suggested that this positive contribution could be brought about by selecting from a range of estate and asset management solutions tailored to local healthcare needs.

These solutions might involve an NHS body alone, joint working with another public sector body, partnership working between the NHS, third sector and social enterprise, or with the private sector.

“Whichever is chosen, solutions which provide both transformational change of patient experience and realisation of a sound estate strategy will be preferred; providers should be willing to offer innovative means of delivering both,” he added.

The report suggested that innovative asset management could prove vital if the coalition government’s radical reforms of the NHS are to work.

Under proposals contained in the government’s White Paper, strategic health authorities and primary care trusts will be scrapped, with primary power being put into the hands of GP consortia.

Mark Johnson, managing director of TPP Law, said: “Services may go mobile or be based around non-traditional locations. As care pathways are redesigned and cost pressures bite, the trend for moving services into the community will continue and remote working for health and social care professionals will proliferate. Cost savings from joint working and co-location will come to the fore.”

The report warned that efficiency in asset management in terms of good space utilisation, energy use and low lifecycle costs alone will not be enough.

It said the process of moving services away from acute provision back into the community is likely to be accelerated as a result of looming financial pressures. Another major development will be the opening up of the healthcare and social care markets to new providers including the third sector, social enterprise and “right to request” spin-out organisations.

A copy of the report can be downloaded here.

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28.Oct.2010

The quality of serious case reviews (SCRs) continues to improve but nearly one in six are still judged to be “inadequate”, Ofsted said today.

The watchdog looked at 147 SCRs for its Learning lessons from serious case reviews 2009-2010 report. It found that 42% were judged good, 42% adequate and 16% inadequate.

Ofsted warned that many of the cases reviewed “reveal the persistence of some key issues in practice which have contributed to shortcomings in the protection of the children involved”.

The report found that:

• The most common characteristics of the incidents were physical abuse or long-term neglect
• A consistent finding was a failure to implement and ensure good practice “even though established frameworks and guidance were available”
• There was often insufficient consideration of the child’s individual views and needs
• Statements from parents or other family members were not sufficiently challenged.

Ofsted’s report also revealed that “too often” agencies failed to share early enough information that could have contributed to a better understanding of children and their families. “For example, some parents within these reviews were receiving support from adult social care, adult mental health, substance misuse, housing and probation,” it said.

The SCRs covered incidents affecting 194 children. Some 90 of the cases related to child deaths, with the rest involving serious incidents. 

Of the 194 children involved, 119 children were known to children’s social care services at the time of the incident. 90 children were receiving services as children in need, of which 49 were the subject of child protection plans. Some 31 of the children who had died were receiving children in need services.

Christine Gilbert, Her Majesty’s Chief Inspector, said it was encouraging to see that more reviews were being judged good, with fewer reviews inadequate.

She added: “The case studies highlight the complexities of the situations which social workers and others are responding to. In undertaking these reviews, agencies have been able to reflect on what happened and learn from their experience. They have identified gaps in their approach and most important, have agreed actions to improve the protection of children and so reduce the chances of such serious incidents from happening again.”

Baroness Shireen Ritchie, chairman of the Local Government Association’s children and young people board, said: “The death of even one child is one too many. The number of cases of this type being reported to Ofsted is down by nearly 50% compared to the previous 12 months but there is no room for complacency.”

Ritchie stressed that social workers were part of the solution not the problem, and had protected tens of thousands of vulnerable children at a time when their workload has been growing.

She added: “It is the over-riding aim of every council in this country and indeed virtually every parent – that we do everything within our power to keep every child safe from harm.

“Councils are working tirelessly to improve how they identify and protect children at risk from neglect and abuse, and an outside perspective does help. When things tragically go wrong they need to be examined. There is important work to be done within the police and NHS as well as at a local government level, and Ofsted also has a role to play in making things better.”

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28.Oct.2010

A recent judgement suggests that the courts will take a robust approach to determinations of deprivation of liberty questions on an interim basis. This could put significant obligations on local authorities and PCTs to review the position, writes Alex Ruck Keene.

In BB v AM & Ors [2010] EWHC 1916 (Fam), Baker J was concerned with a thirty-one year old Bangladeshi woman known as BB. She was said to have very complex needs, being profoundly deaf and with a diagnosis of schizoaffective disorder and probable learning difficulties. It was accepted by all parties to these proceedings that for material purposes BB lacked the capacity to decide where she should live.

On 19 April 2010, BB was removed from the family home by support workers employed by Tower Hamlets Community Mental Health Team following reports that BB had been assaulted by her parents. She was admitted to the Roman Ward at Mile End Hospital which is managed by the East London NHS Trust. On 29 April, the Official Solicitor filed an application in respect of BB in the Court of Protection. On 6 May, NHS Tower Hamlets (formerly Tower Hamlets PCT) authorised BB’s deprivation of liberty under a standard authorisation under the Mental Capacity Act 2005. On 28 May, BB was transferred to the Old Church Hospital in Balham, managed by the South West London and St George’s Mental Health NHS Trust. On 7 June, BB’s deprivation of liberty was authorised by that Trust under an urgent authorisation under the 2005 Act.

Following a sequence of events that are not relevant here, on 5 July, the Official Solicitor wrote to the other parties indicating that it appeared that there was no longer any lawful authorisation for BB’s deprivation of liberty and that in the circumstances it would be necessary to restore the matter to court pursuant to the President’s order. The matter came before Baker J on 7 July. At that hearing, a number of matters were resolved by consent, including residence and contact. Baker J was, however, asked to make a declaration that BB was currently being deprived of her liberty at Old Church. As he identified (paragraph 6), that was a necessary preliminary step because, if a person is ineligible to be deprived of liberty, a court may not include in a welfare order any provision which authorises that deprivation of liberty. Plainly this issue only arises if the circumstances in which the person is being accommodated amount to a deprivation of liberty.

Baker J held (at paragraph 12) that the statutory provisions contained in the MCA 2005 do not appear on their face appear to extend to making declarations as to whether or not circumstances amount to a deprivation of liberty. He concluded that it might be that the court’s power to make such a declaration arose under its inherent jurisdiction, and noted both that no party sought to persuade him in this case that he had no power and clearly it was necessary to make a decision on the question whether circumstances amount to a deprivation of liberty and to recite that decision in the order seemed eminently sensible.

Baker J summarised the statutory provisions contained in the MCA, and in particular those in Schedule 1A relating to eligibility to be deprived of one’s liberty, endorsing in the process the approach taken by Charles J in GJ v Foundation Trust [2009] EWHC 2972 (Fam). Having done so, he drew the points together as raising the following questions (paragraph 25):

“(1) Are the criteria in sections 2 or 3 of the Mental Health Act met in BB’s case and if so would the hospital admit her under the Mental Health Act if an application was made? In other words, is she suffering from a mental disorder warranting assessment or medical treatment? If yes, BB is ineligible to be deprived of her liberty. If not,

(2) Do the circumstances of her detention considered together amount to a deprivation of liberty having regard to the guidance set out in the DOLS Code of Practice?”

On the facts of the case, Baker J held that the medical evidence was that BB was not “detainable under the Mental Health Act because she is happy to stay in hospital and take medication. She has made no attempts to leave. She reports being happy. She changes the subject when asked about her home and family but she does so without showing any negative emotion or particular interest… if she said she wished to be discharged or to return home, we would assess her mental state and assess for detention under the Mental Health Act. It might be she would be easily persuaded to stay; it might be she would be detainable”. In the circumstances, he found (paragraph 27) that she was not ineligible to be deprived of her liberty within the meaning of the eligibility requirement in Schedule 1A of the Mental Capacity Act, and as a result the Court was not prevented from including in a welfare order provision which authorises deprivation of her liberty.

Baker J then concluded as follows on the question of whether BB was deprived of her liberty:

“30. In considering the submissions, I have, as recommended in the guidance in the DOLS Code of Practice, had regard to the rapidly expanding case law in this field, including not only the decision of Charles J in GJ v Foundation Trust (supra), and my own decision in G v E, A Local Authority and F (also supra), but also the recent decision of Parker J in Re MIG and MEG [2010] EWHC 785 (Fam) and the very recent decision of Munby LJ (sitting at first instance) in Re A, A Local Authority v A [2010] EWHC 978 (Fam).  It is necessary to have regard to these authorities because, whilst all cases turn on their own facts, it is important that there should be consistency in the interpretation provisions.

31. Furthermore, it should be borne in mind that I am only deciding this case at an initial stage, on the basis of limited evidence, and with limited opportunities to consider the details of BB’s circumstances. There is of course a danger that such an assessment will be somewhat superficial. It is, however, important to take a proportionate response to these matters. The courts simply do not have the time and resources to spend lengthy periods of time considering arguments at an interim stage as to whether or not detention amounts to a deprivation of liberty. The court has to make a quick and effective assessment at the interim stage on the best available evidence.

32. To my mind, having regard to all the factors identified in the DOLS Code of Practice and the circumstances of BB’s current accommodation at Old Church Hospital as set out in the evidence before me, I conclude that she is being deprived of her liberty. She is away from her family, in an institution under sedation in circumstances in which her contact with the outside world is strictly controlled, her capacity to have free access to her family is limited, now by court order, and her movements under the strict control and supervision of hospital staff. Taking these factors altogether, the cumulative effect in my judgment is that BB is currently being deprived of her liberty and I so declare.”

Comment

This case is of some importance both for its confirmation of the approach taken by Charles J to the interaction of the MHA and the MCA in GJ, and also for the clarification regarding the approach to be taken to assessments of the deprivation of liberty. The comments made by Baker J as to the need for consistency of approach is welcome although does, again, raise the stark issue of the difficulty of dissemination of judgments.

Somewhat more troubling, perhaps, is the indication that the courts will take a robust approach to determinations of deprivation of liberty questions on an interim basis. Whilst limited judicial resources available (adverted to by the Court of Appeal in G v E [2010] EWCA Civ 822, discussed in our previous update) mean that this is a reality, in many cases, an interim conclusion as to whether or not a situation constitutes a deprivation of liberty is likely to hold sway for many months, with significant consequences in terms of the obligations upon the relevant local authority/PCT to review the position.

Alex Ruck Keene is a barrister at 39 Essex Street (www.39essex.com).

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27.Oct.2010

Local authorities must maintain strong defences against fraud as they make significant cuts to budgets, the Audit Commission has insisted.

In its report – Protecting the public purse 2010 – the watchdog called on councils to address fraud risks in significant areas of expenditure such as adult social care.

The Audit Commission pointed to the expansion of personal budgets as a potential problem. “If the full benefits of the new approach are to be realised, safeguards will be needed to protect vulnerable people and to prevent financial loss,” it warned.

A clear policy on the appropriate use and unacceptable misuse of personal budgets should be established and communicated to budget-holders, the watchdog said. Whistle-blowing arrangements for staff, care providers and the public should also be promoted to encourage early identification of potential abuse.

The report added that more needed to be done to prevent and detect fraud and other illegal activity in procurement, the single largest area of councils’ expenditure at £80bn a year.

The Audit Commission also urged local authorities to maintain their strong focus on housing and council tax benefit payments, with councils uncovering around 63,000 frauds and £99m of fraudulent payments in 2009/10.

In total, fraud amounting to £135m was detected by councils in 2009/10, with 119,000 individual cases of fraud. Nearly 1,600 properties with a replacement value of £240m were recovered from unlawful tenants by 60 councils. In addition, 48,000 fraudulent claims for council tax discounts were stopped – this increased the local tax base by £15m.

The Audit Commission called on councils to implement good practice, including adopting a zero-tolerance policy towards fraud, working with partners in the public and private sectors to overcome barriers, and taking legal action to recover fraud losses.

Its specific recommendations for councils included:

• Continuing to focus on benefit fraud risks and use the National Fraud Initiative and other data matching schemes
• Working together in county areas to share the costs and benefits of single person discount fraud
• Using the Audit Commission’s comparator tool to decide whether to take more action on SPD fraud
• Checking claims for other council tax discounts are not fraudulent
• Making sure recruitment processes for permanent and temporary staff are secure
• Using recent advice from CIPFA and the Office of Fair Trading on procurement to ensure they are doing enough to prevent and detect procurement fraud and other illegal activities such as cartels
• Keeping a comprehensive record of any frauds perpetrated against them
• Using the report’s checklist to assess whether their counter-fraud plans and actions are effective.

The Audit Commission also issued a number of recommendations for registered housing providers (including councils). These include: undertaking tenancy audits to ensure only properly authorised tenants occupy properties; treating unlawful tenancy cases as fraud, recording them as such and taking immediate action when they identify them; working with other housing providers to develop joint incentives to tackle housing tenancy fraud, such as sharing specialist investigative staff; and using DCLG guidance on awareness-raising and the reporting of suspicions.

The report added that “where appropriate”, legal action should be taken to target fraudulent profits made out of housing.

Cllr David Sparks, vice-chairman of the Local Government Association, said: “Local authorities work hard to clamp down hard on unscrupulous fraudsters who cheat the tax payer and take money that could be spent on the genuinely vulnerable. Benefits are there to help the needy – not line the pockets of the greedy.”

Sparks added that the £135m recovered last year could now be spent supporting those in genuine need, housing the homeless, caring for the elderly and supporting the infirm.

“The success of these councils demonstrates the importance of them being equipped with the necessary powers to identify and catch those trying to steal from the public purse,” he argued.

“Local authorities adopt a zero tolerance approach to this sort of abuse. At a time when councils will be struggling to find money to balance their budgets next year, local authorities will come down hard on those trying to steal money intended for the sick and the elderly."

Andrew Gillett, a partner specialising in fraud at law firm Weightmans, said it was vital that the good work of the Audit Commission and the ongoing progress made by the National Fraud Authority did not go to waste.

He argued that counter fraud activity was now more important than ever before. “Cuts now may provide short term savings but in the long term, they will simply cause more public suffering at a greater cost to local authorities,” Gillett said.

The Weightmans lawyer added: “While continuing with progress already achieved, future fraud fighting activity should also be concentrated towards local authorities’ procurement exercises.

“The Bribery Act, due to come into force in April 2011, will crack down upon those contracting with local authorities’ and their desire to win contracts and an organisation's propensity to accept bribes.

“Local authorities should implement processes, training and procedures around the Bribery Act so they can enjoy direct savings from procurement projects untainted by fraud– worth £80bn a year – without falling foul of tougher fraud and bribery regulations.”