Authors:Professor Luke Clements
Last updated:2023-09-18
LAG Community Care Law Conference 2017: Matching the rhetoric of rights with reality
On 10 February 2017, delegates gathered in London for this year’s LAG Community Care Law Conference. Professor Luke Clements gave the keynote speech, thanking those at the frontline of social care work and highlighting the work of the Local Government Ombudsman in ensuring local authorities perform their duties under the Care Act 2014. This is an abridged version of that speech.
Anticipating the negative, I have been asked if I could come up with some positive comments on the plight of adult social care law – and that of course is a challenge. It is such a bleak austere time. Yes, the Care Act 2014 is in large measure a good thing that will leave England no worse off than under the old regime, but it is at risk of becoming detached from reality. A reality where local authorities and the NHS openly propound unlawful policies: inflexible pre-payment cards in lieu of the right to a direct payment; charging for assessments; rigid limits on the cost of independent living packages; and so on. The reality is greater hardship for those on the margins and anxiety about the future; about the next reassessment; about the next cutback. Crippling concerns about an uncaring government’s policy, slashing away at the adult social care budget: a budget that accounts for less than two per cent of public expenditure. That much we all know and deplore.
There are, however, positives. At the macro level, I remain convinced that we will see significant and positive inflows of funding into social care; that the pendulum that has swung to the right for the last 50 years will turn, as it has every 50 or so years since the origins of the Poor Law. For this to happen, we of course require an opposition – but it will materialise and I believe it will be sooner rather than later.
Moving from the macro to the micro, I think we should celebrate the role played by the vast majority of social workers who have continued an honourable and long tradition of subverting the harsh elements of social care policy. Harking back once more to the Poor Law, the evidence is that very many of its resettlement officers did a great deal to humanise and ameliorate the impact of that brutal system. I am incredibly grateful to the vast majority of frontline social services staff who do their best to argue for proper care and support packages. Time and time again, we see assessments showing the social worker had identified needs and argued for support, only for their hard work to be frustrated further down the line by senior managers and legally dodgy funding panels.
Secondly, I’d like to thank the Department of Health for the generally excellent Care Act statutory guidance – a department that is being emasculated and losing its crucial experts and, with them, its vital ‘policy memory’. In the new sixth edition of Community care and the law there are several places where we are less than flattering about the guidance, but that should not mask the fact that it is generally very good. It was put together at breakneck speed and I for one am very glad it is there.
Finally, I’d like to thank, and dwell for a short while on the work of, the Local Government Ombudsman and its investigating officers. They are not infallible – and the zeal with which they ‘gate-keep’ fills me with despondency on many occasions – but I am incredibly grateful to them for the work they do and incredibly angry at the savage cuts their service has experienced.
I’d like to highlight a few recent reports, not least because I don’t think they get the publicity they deserve. These shed considerable light on several interpretive uncertainties we have concerning the Care Act.
The eligibility criteria,1Care and Support (Eligibility Criteria) Regulations 2015 SI No 313. for example, require that to be eligible an inability to achieve an ‘outcome’ must have a ‘significant’ impact on the individual. The statutory guidance unsurprisingly avoids telling us what ‘significant’ means.
An ombudsman’s report on a complaint against Milton Keynes2Complaint No 15 001 422 against Milton Keynes Council, 20 September 2016. concerned the reassessment of an adult who had been receiving a support package. The reassessment found that, due to her mental health conditions, it took her significantly longer than would generally be expected to achieve outcomes associated with work, accessing community services, maintaining hygiene and maintaining a home environment. Nevertheless (unlike the first assessment), it concluded that these difficulties did not significantly impact her well-being.
In finding maladministration, the ombudsman noted the absence of any explanation as to why her well-being was not significantly impacted by her difficulties, and this was maladministration. This omission was compounded by the failure to provide reasons as to why she was considered to be no longer eligible for the support she had previously been assessed as needing.
What we take from this is an evidential burden: that where there is cogent evidence that an adult in need or a carer is unable to achieve specific outcomes, the onus is on the local authority to explain why this is not ‘significant’. We also see the ombudsman requiring that the eligibility criteria should be viewed through the lens of the well-being duty, not least in relation to reassessments which result in a diminished care package. In this respect, the statutory guidance is welcome: a ‘review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget’ (para 13.4).
Another question on which the guidance is to be commended concerns its blunt comments about funding panels. At para 10.85, it accepts that panels may have a role to ‘sign-off large or unique personal budget allocations and/or plans’; however, ‘local authorities should refrain from creating or using panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons’. The misuse of panels is something that the ombudsman has been criticising for many years. A recent complaint against Brighton and Hove Council3Complaint No 15 017 591 against Brighton and Hove City Council, 30 August 2016. noted that a care manager had assessed the disabled person as having eligible needs but the council’s ‘funding panel’ had overruled this. As the ombudsman’s report notes:
I am not persuaded that this panel was purely looking at compliance with the Care Act and cost effectiveness. If this was its remit, it failed to do this adequately. It is possible Miss X’s needs could be met in other ways but … [n]ot through a decision in direct contravention of the care manager’s recommendations by a panel who was not involved in the assessment (para 20).
In order to avoid panels being criticised in this way, some authorities have stipulated that care managers cannot express a view on eligibility: this must be left blank for the panel to complete. In a report concerning Bromley,4Complaint No 15 020 384 against Bromley LBC, 7 September 2016. the ombudsman would appear to have ruled out this approach: reports from assessors that go to a ‘panel’ must include a recommendation from the assessor as to her or his professional opinion as to what care is required.
While the Care Act is largely a consolidating Act in relation to adults in need, it is verging on the revolutionary in relation to the legal rights of carers. Of course, this has not – so far – been apparent to carers. The ombudsman has issued a number of very welcome reports concerning the rights of carers. For example, a report concerning Surrey Council5Complaint No 16 003 456 against Surrey County Council, 8 September 2016. highlighted not only the requirement to involve carers in the hospital discharge process, but also the duty to assess a main carer before the discharge occurs. A 2016 complaint concerning Bromley6Complaint No 15 020 384 against Bromley LBC, 7 September 2016. held that authorities must not assume a carer is willing or able to provide any care (including additional care arising from a reduction in the care package): it will be maladministration for such a reduction to occur without assessing the carer and explicitly clarifying (and recording) whether she or he is ‘able and willing’ to provide the additional care.
One of the major imponderables about the Care Act is the extent to which the well-being ‘principle’ will be an operating factor. A series of reports have concerned the application of this principle to the key ‘outcomes’ in the eligibility criteria.
A report concerning Hammersmith and Fulham Council7Complaint No 15 011 661 against Hammersmith and Fulham LBC, 21 July 2016. concerned a person with visual impairments. Her argument that she needed help to (among other things) sort clothes so she did not wear stained or inappropriate clothing, check the contents of her fridge, read cooking instructions, and have an escort to help her on occasional shop trips was rejected. In the council’s opinion, the Care Act outcomes on dressing did not require clothes to match or to be clean and she could make more use of long-life foods, her freezer, and ready meals.
In finding maladministration, the ombudsman held that the council had failed to recognise:
the importance to an adult’s personal dignity of wearing clean, presentable and appropriate clothes; and
that ‘fresh food is essential to meet nutritional needs, and consumption of fresh food once it has started to perish carries a significant health risk’ (para 24).
While on the question of dressing, a delightful 2016 report concerning Dorset Council8Complaint No 15 014 893 against Dorset County Council, 1 September 2016. considered an assessment that recorded a need for help with dressing but no support to help undress. With impeccable logic, the ombudsman held that if a person needs assistance with dressing then they will need assistance with undressing, observing that ‘[b]eing appropriately dressed for bed is equally as important as being dressed in day clothes’ (para 44).
A complaint against Birmingham Council9Complaint No 15 015 721 against Birmingham City Council, 7 September 2016. concerned an adult who was unable to manage getting in or out of her bath. The occupational therapist decided that there was no need for a level access shower as she was able to maintain her hygiene by strip washing at the sink. There is a well-established line by the ombudsman that ‘the right to bathe with dignity is the entitlement of everybody’10Complaint Nos 02/C/8679, 02/C/8681 and 02/C/10389 against Bolsover District Council, 30 September 2003, para 19. and here again the ombudsman proved inflexible. Cross-referring to the disabled facilities legislation11Housing Grants, Construction and Regeneration Act 1996 s23(1)(f). and its guidance12Delivering housing adaptations for disabled people: a good practice guide, Department for Communities and Local Government, June 2006. the ombudsman found there to be a duty to facilitate the disabled person’s access to a bath or shower.
What we see in this brief review of these welcome decisions is that very many social workers are doing their best but being pushed back by unlawful panels; and that if one can actually get to the ombudsman (an endurance achievement in itself) then there is every hope that there will be an intelligent analysis of the facts, the law and the requirements of the statutory guidance.
This is certainly not enough, but it is positive. We need to ensure these reports are widely circulated and we need to give credit and thanks where it is due: to the vast majority of people working at the coalface in social services, to those who drafted the statutory guidance and to all who sail on the Local Government Ombudsman ship – may it long stay afloat.
1     Care and Support (Eligibility Criteria) Regulations 2015 SI No 313. »
4     Complaint No 15 020 384 against Bromley LBC, 7 September 2016. »
6     Complaint No 15 020 384 against Bromley LBC, 7 September 2016. »
10     Complaint Nos 02/C/8679, 02/C/8681 and 02/C/10389 against Bolsover District Council, 30 September 2003, para 19. »
11     Housing Grants, Construction and Regeneration Act 1996 s23(1)(f). »
12     Delivering housing adaptations for disabled people: a good practice guide, Department for Communities and Local Government, June 2006. »