THINGS COMMISSIONERS SHOULDN'T DO TO AVOID LEGAL CHALLENGES

Belinda Schwehr's article on Commissioner's duties makes interesting reading

What should councils try not to do, by way of commissioning, if they are anxious to avoid legal challenge?

Here are some suggestions: they should not:

  • fund packages that are clearly inadequate or irrationally costed, (eg paying less this year for 2-1 care than paid last year for 1-1 care), because of the Care Act statutory guidance requiring that personal budgets are sufficient to meet the person’s needs;
  • make cuts without reassessments – the statutory guidance is clear that review should not be the occasion for a surprise, or an ‘arbitrary’ cut, implying that a change in needs is required;
  •  use their bargaining positions unconscionably – for instance, demanding a discount and taking one by virtue of being able to starve the provider into acquiescence;
  • agree to the charging of top-ups to council clients’ families, with providers, without being clear what ‘standard’ appropriate care and support would look like, and that such care is available for the money that the council is happy to pay;
  • refuse to contract for services for carers, on the basis that they can all just have a direct payment – direct payments are a choice for most, but not an obligation for any, customers who are carers.

Commissioning duties

Do the notions of ‘promoting wellbeing’ and ‘person-centredness’ mean anything, in legal terms, to the people who buy in services, and negotiate rates, but who aren’t social work trained?

Yes, the duties in section 5 of the Care Act to promote diversity and quality in the provision of services are duties: they must be discharged. There’s no measurable degree set down, to which they have to be done, but they are mandatory in nature. So it is highly probable that there will be a judicial review before long, about a council not being able to show how or whether it took diversity, sustainability or quality into account when sticking to a lower price than was asked for.

What can be bought by way of social care, now, and how?

Anything set out in section 8 is lawfully able to be bought as social care, as is anything that’s rationally able to be linked to the concepts in that section – because the list is by way of example only, and the words used are as vague as possible, for reasons of flexibility (for instance, ‘facilities’, ‘goods’ and ‘accommodation’ of any sort).

The models for securing that these services exist to a lawful extent are through contracting, delegation to partners, funding by way of a direct payment, and grant giving to fund preventative services or services through which to meet needs, without the council meeting them directly.

Partnerships with health

What are the legal mechanisms for “partnerships” between councils and the health service?

They are as they have always been, in relation to health: section 75 partnerships under the National Health Service Act 2006, and section 256 grants under the same Act, from health to social services. These powers used to be known as partnership pooling and joint commissioning powers under the Health Act 1999 and section 28A funding, under the National Health Service Act 1977 – so commissioners ought to know about them by now!

In addition, there have always been secondments, and the provision of part-time or even parallel employment contracts; and partnerships can also be achieved through the lending of public bodies’ systems and equipment. Finally, there is ordinary notion of ‘agency’ whereby one party acts on behalf of the other such as where a local authority acts as agents on contracts between the clinical commissioning groups and health providers, for continuing healthcare beds. In these cases, the council does the work, but the contract is constituted between the health commissioning body and the provider.

Some of these arrangements attract organisational legal responsibility for inadequate discharge of the other body’s functions (delegation pursuant to statutory powers), whilst others (eg agency) do not; and some enable a person from one body to act as if they were employed by the other. Others merely involve co-operation or a subsidisation of one body’s functions by the other, for a lawful reason under statute.

An example is section 256 grants for people who used to have their needs met for free in NHS hospitals, who were then supported to live in the community instead – it was a better use of the NHS’s money than commissioning, because the clients were magically treated as chargeable social care clients. This is still lawful in theory, but case law ensures that anyone can be entitled to be re-assessed as wholly qualifying for NHS continuing health care, even if they have been part-funded by social services in the past.

Co-production of care plans

Is there a legal right for a customer to co-produce their care plan, and choose who their provider is?

The legal basis for so-called co-production for plans is found in section 24 of the Care Act, and is not a right, but a discretion. It’s a discretion that receives strong reinforcement in the statutory guidance, so everyone who is aware of that should treat it as the norm, but it is not an absolute right.

That is because there will be plenty of people who lack capacity to make relevant decisions and won’t have welfare representatives with formal authority to take decisions on their behalf; the council is the decision maker under community care law, and therefore under the Mental Capacity Act also, when it comes to delivering that which has been thought to be in the best interests of the person, even without the person’s consent.

A person electing not to take a direct payment has no right to choose a specific provider for home care, although most councils have made arrangements with more than one, in order to maximise choice.
If one wants real choice of home care provider, one has to take a direct payment or make sufficient savings to be a private payer for care.

Self-funders

Can a well-off person insist on being contracted for by the council, at council rates?

Yes, if they need home care, in which case they can be treated as a full-cost payer for care, and charged for the process of being commissioned for at no more than the actual cost (whatever that might mean). The answer is ‘no’, however, if they need care in a care home. Section 18(3) of the Care Act (which provides for self-funders to have their eligible unmet needs met on request) has not been brought fully into force as yet, hence this difference.

People who are excluded from insisting on being commissioned for could still be placed in council-contracted services at the discretion of the council, for a good strategic reason, in which case the person would acquire continuing ordinary residence, even if they are charged full cost, for accommodation that is physically out of the funding council’s area.

Capacity issues

If a person lacks capacity, do they have a right to be contracted for by the council?

Very nearly: section 18 provides for this right, but goes on to make an exception, which is people who have someone authorised under the Mental Capacity Act or otherwise in a position to make care arrangements for them. Those authorised under the MCA would mean a welfare or financial attorney or deputy, but people ‘otherwise in a position to do so on the adult’s behalf’ is somewhat ambiguous.

That might mean a joint account holder who is still running the account, even if they shouldn’t, once the other has come to lack capacity; or a person with access to the person’s account, through electronic banking, although they shouldn’t be accessing it once someone has become too incapacitated to tell them to stop.

The exception was probably intended to cover someone who is willing to pay for their relative directly, in their own name, thereby making a private contract and physically placing the relative in a home or arranging for services to the relative’s person, under the protection of the MCA. It wasn’t aptly worded, because a son or a daughter does not act ‘on behalf of their parent’ when spending their own money in this way; but it is presumed it was put in because the social care world cannot wait for deputyship to be arranged when arranging hospital discharge.

Capping care packages

Can a council cap the cost of a packaged delivered into a person’s own home, by reference to the equivalent cost of residential or nursing care, appropriate for the individual’s profile of need? Does it make any difference to the answer whether the person has capacity to request this or agree to it?

They can try, but they will be successfully judicially reviewed if they do, because they will be knowingly funding an insufficient package of care for the meeting of the needs, in the given setting. That is not the same as weighing up the competing costs of two appropriate settings and then offering the cheaper of the two – which is lawful.

It is not enough to legalise this practice, to cite ‘choice’, or for a person to request being given the lower cost in cash, or to agree to it; the competent professional working for the council would need to be formally persuaded either that the shortfall in services would be met by a friend, relative, neighbour or other informal input, in order that the acknowledged needs be met, or that the council’s original assessment of the size of the need was not correct for some reason.

If a person has not been told what they will get if they refuse the care home package being offered – and it has to be suitable, vacant, and willing to take the person, not simply exist in theory – they cannot be regarded as having had the chance to make a capacitated decision as to the consequences of refusing the care home, and therefore they cannot be made subject to the Deprivation of Liberty Safeguards.

Commissioner-provider relations

Do councils have to pay providers what they ask, or do providers have to take what councils offer?

A concluded contractual deal is always a choice, entered into by two parties, so the answer is ‘No’ – and it makes no difference whether one is considering the question from the viewpoint of the council or the provider. The only difference is this: councils are burdened by the enforceable statutory duty to their clients to meet need, if people have been found eligible. Councils can’t pretend that this duty doesn’t exist, and if they don’t buy in adequate services, because they can’t get to an agreement on fees, they’d have to provide the services directly to meet need.

Providers can give notice, hand contracts back, and walk away; and sometimes, they must, because they can’t trade insolvently, and they can’t short-change the client in relation to the content of the contractual obligation (eg cheat on the care plan they signed up to). This is one of the most unattractive ‘benefits’ of outcomes-based commissioning for eligible customers: such specifications can make it easier for the provider to make more and more savings on the care plan, as long as the outcomes are still met.

Providers also have duties to their staff, duties to the clients in the law of negligence, regulatory duties and duties in national law to pay the minimum wage and to operate the counting of working time, correctly.

A charitable provider with a power to trade is not allowed to agree to take less than it is going to cost it to honour the contract, because that is subsiding the public sector’s duty, and that is why councils have an enforceable obligation to pay due regard to the cost of care when negotiating fees.

That is, the cost to the provider, and the charge being asked of the council, in terms of whether it’s still best value to purchase than to provide services directly (no contest there then!) and also in relation to what is the right sum to announce as the rate that the council will pay for standard appropriate care for people with varying levels of need. Above this rate a top-up payment for a person’s presumed wants (rather than needs) would have to be paid by a lawful payer of a top-up, before the service user could enter the home as a council client.

Councils can move clients from one provider to another to save money, but not (if a person’s package includes accommodation which is now their home) without conscientiously engaging with the question of the impact on their needs, their wellbeing, and their human rights. People’s relatives have a right to be involved in the customer’s reassessment in such situations because they are all carers providing emotional or practical support; and also best interests consultees, under the Mental Capacity Act, if the person lacks capacity to make relevant decisions and it is practicable and appropriate to consult them.

Belinda Schwehr, Care and Health Law

Tel: 01252 725890

Email: belinda@careandhealthlaw.com

Website: www.schwehroncare.co.uk