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25.Nov.2011

The Local Government Ombudsmen has expressed concern that an adult care charging policy adopted by a county council could – even when properly applied – have lead to charging decisions that did not meet the objectives of relevant government guidance.

The concerns were raised by the Ombudsman, Dr Jane Martin, following an investigation into two complaints made against Northamptonshire County Council.

The LGO also warned that similar problems could still arise even though the local authority had adopted a new policy.

In her report, Dr Martin concluded that the local authority had failed to undertake regular reviews of care packages for two disabled service users.

She said Northamptonshire had failed to take the complainants’ circumstances fully into account in the charging assessments.

In one case, the council failed to properly assess the charge for community care services provided to a disabled man. This was because it took account of his disability-related income but not his disability-related expenditure. It also failed to review his care package properly, including when his brother gave up work to care for him.

Northamptonshire was also at fault in its handling of a disabled woman’s care package. According to the LGO, this included:

• Delay and a failure to properly review her care package through a face-to-face meeting
• Failure to properly assess her financial contribution, and
• Failure to ensure that her income remained above the minimum level of income support plus 25%.

Dr Martin found maladministration in both cases. She called on Northamptionshire to review the Fairer Contributions Policy 2010 to learn the lessons from this complaint. The authority had – in its submissions to the LGO – defended its use of a banded charging policy.

“In making this recommendation, I accept that the charges in this complaint were assessed under the council’s previous charging policy,” Dr Martin said. “However, the current Fairer Contributions Policy 2010 retains many of the same characteristics, including a banded charge which takes account of disability related income without individually assessing disability related expenditure or clearly indicating what allowance has been made for disability related expenditure.

“It appears that if the complainants had been assessed under the current policy then similar problems would have occurred.”

The LGO also said the council should ensure its care plan review procedures “provide for reviews to be undertaken by staff who are skilled in assessment, with adequate care management authority and who will be seen by service users to be reasonably independent of the service they are currently receiving”.

In relation to the first complaint, Dr Martin said Northamptonshire should undertake a further financial assessment “and as part of this consider exercising discretion to waive future charges, and consider building the exercise of such discretion into its charging policy”.

She also recommended that the council waive any charges that have accrued on the man’s account to date; pay him £500 for the failure to review his care package; and pay his brother (who complained on his behalf) £300.

In relation to the second complaint, the LGO said Northamptonshire should pay the disabled woman £1,650 for the failure to carry out a review and reassessment in a timely manner; pay her and her husband £250 to reflect their time and trouble in pursuing their complaint; and pay them a further £500 in recognition of the additional financial pressure that they faced when the charge was being applied.

Northamptonshire County Council has accepted the LGO’s recommendations.

A spokeswoman for the authority said: “Since the time of these complaints we have reviewed and updated our charging policy, following consultation with customers which saw 60% of respondents agree or strongly agree that the banded charging approach made it easy to understand how much they would be charged for services in a timely manner.

“We have also updated the wording on the relevant paperwork to make clear to everyone that they are entitled to a full financial assessment, and that we will honour whichever assessment has the lowest cost. Carers are also entitled to their own assessment to look at what help they may be entitled to.”

She added: “We will be reviewing the report to assess whether any further action needs to be taken in light of the recommendations.”

Details

23.Nov.2011

A loophole that means “hundreds of thousands of older people” in home care lack protection under the Human Rights Act should be closed, the Equality and Human Rights Commission has said.

Publishing the final report in its inquiry, Close to home: older people and human rights in home care, the watchdog argued that “at a minimum” all people in receipt of publically funded home care should be protected by the Act.

The EHRC inquiry said it appeared that commissioning was not being consistently used to protect human rights effectively, and that some commissioning practices made the negative experiences that some older people described more likely to happen.

"Although practices varied a great deal, very few seemed to be consistently underpinned by local authorities' awareness of their duties under the Human Rights Act, including their positive obligations to promote and protect human rights," it said.

Local authorities appeared to have "a patchy understanding" of these obligations, the EHRC added.

The inquiry discovered very few local authority contracts for home care specified that the provider must comply with the Act. The EHRC argued that this oversight undermined the quality of care that older people were getting.

“The evidence given to the inquiry indicates that where human rights are embedded into the way home care is provided – from commissioning to service delivery – high quality care is delivered without necessarily increasing costs,” it argued.

The EHRC also expressed alarm at research showing that one in three local authorities had already cut back on home care spending and a further one in five planned to do so within the next year.

It suggested that the low rates that some local authorities paid for home care raised “serious concerns” about the pay and conditions of workers, including payment of the minimum wage.

“The low pay and status of care workers does not match the level of responsibility or the skills they need to provide quality home care,” it argued. “A high turnover of staff as a result of these factors has a negative impact on the quality of care given to older people.”

The inquiry found that half of those surveyed – older people, family and friends – reported real satisfaction with their home care.

However, the EHRC also said there was disturbing evidence of poor treatment breaching some individuals' human rights. This included “physical or financial abuse, disregarding their privacy and dignity, failing to support them with eating or drinking, treating them as if they were invisible, and paying little attention to what they want.”

Other key findings from the final report included:

• Commissioning practices often focus on a rigid list of tasks rather than what older people actually want
• Ways for older people to complain about their home care “are either insufficient or not working effectively”
• Evidence from the home care industry indicated that social activities were some of the first support services to be withdrawn when local authorities cut back their spending on care services. However, these activities are key to avoiding the social isolation and loneliness experienced by many older people
• Age discrimination was a significant barrier to older people getting home care. The inquiry found that people over the age of 65 were getting less money towards their care than younger people with similar care needs, and were offered a more limited range of services in comparison
• Local authority phone contact lines can screen out older people needing home care without passing them on for a full assessment – which the EHRC said was unlawful.

In addition to closure of the HRA loophole, the EHRC recommended that the government, the Care Quality Commission and local authorities work together better “to build human rights into home care and make sure that abuses are detected faster and dealt with more effectively”.

The watchdog said clear and robust guidance on human rights was needed for councils and older people.

Sally Greengross, Commissioner for the EHRC, said: “It is essential that care services respect people's basic human rights. This is not about burdensome red tape, it is about protecting people from the kind of dehumanising treatment we have uncovered. The emphasis is on saving pennies rather than providing a service which will meet the very real needs of our grandparents, our parents, and eventually all of us.

“This inquiry proposes some steps that would make sure human rights are protected in future – including changes to the law so that, at a minimum, all people getting publically funded home care are protected by the Human Rights Act. Currently this is not the case.

“Most of us will want to carry on living in our own homes in later life, even if we need help to do so. When implemented, the recommendations from this inquiry will provide secure foundations for a home care system that will let us do so safely, with dignity and independence."

Yesterday the CQC unveiled plans for an inspection programme of care home services. The programme, which will start in April and cover around 250 providers, will focus on three outcomes: respecting and involving people who use services; care and welfare of people who use services; and supporting workers.

CQC Chief Executive Cynthia Bower said it shared the Equality and Human Rights Commission’s concerns, adding that the three outcomes were ‘gateway’ issues that would lead to the examination of a range of rights-based issues.

In its response the Local Government Association said the inquiry’s results were “symptomatic of a social care system that is underfunded and in need of urgent reform”.

Cllr John Merry, Vice Chair of the LGA’s Community Wellbeing Board, said councils were facing long-term triple pressures of insufficient funding, growing demand and escalating costs, which had been compounded by recent government funding cuts.

He added: “Despite their best efforts, [councils] are having to make tough decisions about the care services they can provide. Carrying out homecare inspections will help to make the service more accountable and transparent and in turn help boost the public's confidence that people in need are being properly looked after.”

Cllr Merry warned that there should be no one-size-fits-all approach, stressing that different councils faced different pressures in adult social care and decisions needed to be taken locally.

“Simply to select a specific charge or service as a barometer of a council's approach to care is misleading,” he argued. “As well as direct services, adult social care is also tied into a council’s public health, leisure, housing, transport and technology initiatives.

"Reforming adult social care is one of the most important issues this country is facing and governments can’t keep dodging the question of how to properly fund it. The longer ministers procrastinate, the more our population ages and the worse things will become."

The EHRC's final report comes amid predictions that the legal system could be "swamped" with court cases between care home providers and local authorities over fees.

Earlier this month the High Court ruled that a decision by Sefton Council to freeze care home fees for a second year running was unlawful. Staffordshire County Council meanwhile agreed to reconsider the level of its fees after being threatened with judicial review by the Fairer Fee Forum.

Philip Hoult

Details

18.Nov.2011

Almost half of the savings made by single tier and county councils (STCCs) this year have come from planning, housing and cultural services – even though they only cover 16% of service spending, research by the Audit Commission has revealed.

The watchdog warned that – with 60% of the total reductions yet to come – these services “cannot deliver similar savings every year”, adding that many councils would face “difficult decisions about how to meet their funding shortfall in the next few years”.

The Audit Commission’s Tough times report examined how local authorities were coping with “unprecedented” reductions to their income as well as the cutbacks they were having to make to ensure financial stability.

“Most local authorities are taking the right steps to make efficiency savings but have also had to reduce the quality and quantity of services,” the Audit Commission said. “Charges are going up in many councils.”

This research revealed that four out of ten councils planned to tighten eligibility criteria in adult social care. Such moves have led to a number of high profile judicial review battles this year. Lancashire County Council and Manchester City Council were successful in fending off challenges, while Birmingham City Council and – earlier this month – the Isle of Wight Council lost.

Other significant changes in approach being implemented by single tier and county councils (STCCs) are:

• Five out of six councils were planning to reduce the quantity or frequency of some services within cultural services
• Three out of four councils were planning to increase charges within environmental services
• Almost half of councils were planning to reduce service standards in highways and transport.

The report – which was based on a survey of auditors and analysis of councils’ budget data – found that while most councils were managing well, “a small number of councils may struggle to balance their books”.

Nine out of ten councils were well prepared for reductions and would deliver their budgets but the remainder were “at risk” of not meeting their budget for 2011/12, the watchdog said. Those most exposed were ones which faced large budget reductions but also had weak financial management.

Michael O'Higgins, Audit Commission Chairman, said: “We all know that councils, like the rest of the country, are experiencing tough times. They have seen their funding from government fall and their local income reduce.

"So far, councils have responded well to these challenges, and auditors believe that most will balance their books this year. Many have also protected the most vulnerable people in their area. But with more reductions to come, and wider economic problems intensifying the pressure, councils need to prepare for a potentially rocky road ahead.”

The Audit Commission pointed out that councils had seen their funding from central government fall by £3.5bn this year. They also expected to lose a further £1.2bn, in real terms, from locally generated income, with income from fees and charges as a result of the downturn.

The report found that most councils were not planning to make significant withdrawals from their reserves this year, and that some planned to increase them.

“Reserves alone cannot be used to balance budgets in the longer term, but there may be scope to use them more than currently planned - to give councils time to achieve sustainable efficiencies,” the Audit Commission said.

Philip Hoult

Details

17.Nov.2011

The Court of Appeal last week handed down a landmark ruling in relation to deprivations of liberty. Ben Troke and Neil Ward assess its impact.

“Deprivation of Liberty” has always been a slippery concept, in a health and social care setting, but with huge risks if you get it wrong. A deprivation of liberty without lawful justification, and due legal process for scrutiny, would be a breach of the person’s rights under Article 5 of the European Convention, with all the adverse consequences of possible liability in damages, or punishment in legal costs and, increasingly, very public criticism in court and the media, especially in the cases of public authorities which fall foul of this.

The Court of Appeal Judgment in P v Cheshire West and Chester Council (9 November 2011) raises fundamental issues which seem likely to significantly reduce the number of cases where there is found to be a deprivation of liberty in the first place.

P was a 39-year-old man with learning disabilities and autism, who lacked capacity to make decisions about his accommodation and care. In April 2011 a judge held that he was deprived of his liberty in his local authority placement at Z House, as staff had complete and effective control of his life, sometimes using a “body suit” zipped at the back to prevent him getting to his continence pads, which he had a habit of eating.

The Court of Appeal says, in essence, that this care was required as a result of his condition, was “normal” for people like him, and therefore no deprivation.

Lord Justice Munby’s thorough review of the case law revisits two key issues – “purpose”, and “normality”, which the court also wrestled with in the case of “MIG and MEG” (known as “P and Q” in the Court of Appeal).

He accepts that subjective good intentions do not render innocuous a situation that would otherwise be a deprivation of liberty (though he does think that acting in bad faith could turn a situation into a deprivation of liberty) (para 71). He distinguishes this from the objective issue of the aim of the restrictions, put in terms of the "purpose" or "reasons", which he says must be relevant to whether or not a situation is a deprivation of liberty (para 75-76). This may seem a fine distinction, but its real significance is clear when Lord Justice Munby goes on to look at the context and "normality" of the placement.

He said the key is to assess the “relative normality” of P’s life, taking into account the particular care needs arising simply from his physical or mental condition. It is not appropriate to compare P with a healthy adult, who would clearly be deprived of his liberty in these circumstances. “Some adults are inherently restricted by their circumstances”, and the court of protection is dealing with adults “with significant physical and learning disabilities whose lives are dictated by their own cognitive and other limitations”. The appropriate contrast to draw is with “the kind of lives that people like [P] would normally expect to lead” (paras 86, 97 and 102). There may be those who find the language of judging X’s care according to the life expected by "people like X” (para 102) a little uncomfortable, in the context of trends towards individual care and personalisation.

The Court of Appeal said that the first instance judge failed to see that the restrictions and limits on his life at Z House were nothing more than "the inevitable corollary of his various disabilities" (para 110), and “there was nothing to show the life he is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead…." The reality is that P was "living a life which is as normal as it can be for someone in his situation", and therefore he was not being deprived of his liberty (para 110, 116).

This is hugely significant, and seems to raise a number of issues which the courts will have to continue to clarify over the next few years.

Since the introduction of the Deprivation of Liberty Safeguards (DOLS), massive effort has been spent on education that a "deprivation of liberty" is not necessarily a bad thing, or inappropriate, but simply requires scrutiny and lawful authorisation (whether through DOLS in a care home or hospital, or the Court of Protection in other circumstances). Anecdotally, one of the reasons given for apparent underuse of DOLS is that professional staff understandably find “deprivation” a pejorative term, and are reluctant to recognise it in the care provided which is, usually, assessed in good-faith to meet the needs of P’s physical and mental condition. Lord Munby’s judgement, perhaps, shows that they have been right all along.

If it is right that restrictions imposed simply to meet the needs of P’s condition are by definition not a deprivation of liberty, it becomes difficult to imagine a situation that would be a deprivation that could nevertheless be lawful (whether by DOLS authorisation or by Court of Protection order) as being in P’s best interests, necessary and proportionate, and the least restrictive option. It would seem that all the conditions that are required to make any deprivation lawful will, in effect, mean in most cases that there is no deprivation at all. Education and training that has emphasised the need to separate the primary question of whether there is a deprivation of liberty from the secondary question of lawful justification may now have to be revised.

As with the health and social care system as a whole, the issue of choice is paramount. If there is no realistic alternative to his current placement and circumstances, then it seems there is no deprivation of liberty (para 58). Taken together with the recent high-profile case of Neary v Hillingdon, it seems the most likely circumstances where a deprivation of liberty is found to exist arise when a family and a public body offer competing proposals for care, and in particular where the state tries to assert some control over what would otherwise be family life, protected by article 8 as much as article 5.

If that is the case, we may wonder if there is a discriminatory effect against those vulnerable people, lacking capacity, who do not have family offering alternative proposals, who may therefore be deemed not deprived of liberty, and will not have the benefit of any scrutiny of their care, either through DOLS or the court. The experience of recent scandals and reports about care of the most vulnerable in society might encourage a public view that more procedural scrutiny and safeguards are required, rather than less. The deprivation of liberty safeguards were introduced because the European Court of Human Rights found that HL was deprived of his liberty at a mental hospital where he was detained as an informal patient, for which the common law doctrine of “necessity” was insufficient justification or safeguard. Lord Justice Munby observes that this is a far cry from cases in which someone is in a family or foster home, or small residential unit. Despite this observation, apart from the fact that in HL his foster carers wanted to bring him home it is difficult to see why such there is a significant difference. The purpose or aim of the hospital managers in HL was to keep him safe and to care for him in what was believed to be the best way possible in his best interests, the same purpose or aim as the local authority in this case.

In the absence of family, or others, pressing for an alternative, the reasoning in Chester seems to risk going full circle - back to before HL and DOLS - re-establishing deference to a professional assessment, with any restrictions put in place in good faith according to the physical and mental health needs being deemed not to be a deprivation of liberty, without significant scrutiny and perhaps not so very far, in practice, from the old common law idea of "necessity".

Strictly speaking, there may be no need to bring cases to the court if it is not felt, or disputed, that there might be a deprivation but we tentatively suggest it would be prudent to continue to seek confirmation from the court where there is any doubt. Lord Justice Munby hints at this when he says that many cases coming to court will be fairly obviously no deprivation - for example “if someone is being cared for by their parents, friends or relatives in a family home …or in a foster placement or its adult equivalent in small specialist sheltered accommodation” (para 103) - and the court will be able to deal with most cases of this type "fairly but at the same time simply and quickly… on the basis that there is no deprivation of liberty" (para 104).

This would certainly ease the pressure a little on public authorities, the Official Solicitor and the court, who are all currently snowed under with applications, particularly in the wake of Neary, but it remains to be seen whether the notions of "purpose" and particularly "normality" in turn raise more questions than answers.

This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it. are partners at Browne Jacobson. Ben can be contacted on 0115 976 6263 while Neil can be reached on 0121 237 3927.

See also: Local authority wins appeal in landmark ruling on deprivations of liberty

Details

15.Nov.2011

A county council has agreed to reconsider its decision on the fees payable to residential care home providers for 2011/12 in the face of a potential judicial review challenge.

Staffordshire County Council had been threatened with legal action by the Fairer Fee Forum, which represents some 200 providers in the area.

According to the consent order, the council will now conduct "a fair, transparent and comprehensive review of the usual costs of providing care home care locally, and of any other factors, including local factors, relevant to the usual costs of providing care home care locally, so as to inform the [council's] decisions as to the level at which it ought to set its standard rates for care home provision".

The two sides have also agreed to develop a new contracting model, which could – amongst other features – see fees based on the quality of services provided.

Staffordshire said it would work with the sector to “support them in seeking efficiencies from the products and services they buy, to allow greater resources for investment in the improvement of quality and value for money of their services”.

Cllr Matthew Ellis, Cabinet Member for Adults and Well Being at Staffordshire, said: “I am delighted that we’ve reached a voluntary agreement with [the Fairer Fee Forum], without the potential cost to taxpayers of a judicial review. We live in challenging times and we have been working closely with the care home sector in Staffs to look at ways to assist them in meeting some of the financial challenges.

“This agreement is a common-sense solution which has the potential to put the care home sector in Staffordshire on a firmer footing for the future. I look forward to continuing to work with the sector now that this issue is settled.”

In a statement the English Community Care Association, whose chief executive Martin Green is chairman of the Forum, said: “The agreement between both parties resulted in a more beneficial outcome than any court ruling for the FFF and its members. The agreement means a fresh decision on care home fees will be undertaken coupled with an independent review of the process to ensure that Staffordshire County Council has complied with all their duties.”

Green added: “I have previously stated that we have tried to positively engage local authorities and to educate health commissioners, but these efforts have never borne fruit. The bottom line is that the only way to move a PCT or a local authority these days is through the real threat of legal action or litigation and this has been proved today."

The ECCA’s chief executive said there were other cases involving local authorities that had reached the permission stage of judicial review proceedings or are at the initial stages of a legal challenge.

News of a deal between Staffordshire and the Fairer Fee Forum comes just days after the High Court ruled that a decision by Sefton Council to freeze fees for a second year running was unlawful.

Over-50s group Saga has meanwhile warned that the legal system could be “swamped” by cases on care home fees. It urged the government and policymakers to put social care to the top of the agenda.

Philip Hoult

Details

15.Nov.2011

There is every danger that the social care and legal systems could be “swamped with costly and time-consuming claims and challenges” over local authority payments to care home providers, over-50s group Saga has warned.

The comments from Saga’s Director-General, Dr Ros Altmann, come after last week’s ruling in the Sefton Council case, where His Honour Judge Raynor QC concluded that the authority’s decision to freeze fees for a second year was unlawful.

Dr Altmann said:
"Until the Government properly recognises the need to fund social care properly, these challenges will keep coming and local authorities will remain under pressure. Consider this: A hospital bed costs around £2,000 a week. A week's social care whether in a care home or domiciliary costs between £400 and £700 depending upon needs and location.

"We have to take a step back and consider the bigger picture: in the space of just a few days a number of local authorities have been told that cutting or freezing budgets to spend on the most vulnerable in our society is unlawful. This leaves all councils with a huge problem and will potentially leave local authority budgets in chaos.”

Acknowledging that local authorities had been forced into this position because of cutbacks and austerity measures, Saga’s Director-General said councils were in a very difficult position. But she added that the victims were the people least able to fend for themselves.

Dr Altmann said Saga was aware of further impending legal challenges and court cases. She called on government and policymakers to move social care funding issue needs “swiftly to the top of the agenda".

"The cases and judgments this week are individual victories, but they are also precedents for other claims and challenges,” she said. “That means there is now every danger that the social care and legal systems could well be swamped with costly and time-consuming claims and challenges.”

Saga’s Director-General said the key was unlocking and unblocking the social care system with proper investment and commitment, releasing NHS beds by taking the elderly and vulnerable out of hospitals and back into the community, and saving billions of pounds.

She added: “The sooner we grasp this nettle with proper radical reform, the better. Social care must be valued more highly - since it can be just as life-threatening to withhold social care from those who need it, as it would be to withhold medical care."