Capping care budgets: Has the Care Act Force Awakened?

January 28th, 2016

We’ve all been to, or worse still, given, a year’s worth of thrilling talks on the Care Act 2014 and the revolutionary changes it will bring. Yet now in late Jan 2016, as we hoover up those last pine needles from the living room carpet and prepare to enter the first year after (“year 1 CA” as I call it), the sun is still in the sky (just), there’s even less money to fund social care – witness the slashing of local authority funding of public health – carers assessments join the (long) queue behind DOLS assessments, and the galaxy looks much like it did last year. That once shiny new claimant toy, the public sector equality duty, lies in the corner, like a double-bladed light-saber in need of batteries. Yes slowly, quietly, there are rumblings in far off worlds – with apologies to Southampton, but one needs to keep a theme going …

One of the young starlets of the pre-Care Act First Order was the maximum expenditure policy. This involves local authorities insisting that if a person’s needs can be met for less cost in a care home, their social care budget is capped at the cost of such a placement, effectively forcing the person to either live at home with inadequate funding, or move into a care home. This mechanism saved local authorities money, and has been used by many authorities over the last few years.

The policy gained a measure of judicial approval in the case of R (D) v Worcestershire CC [2013] EWHC 2490 (Admin), in which challenges to Worcestershire’s maximum expenditure policy were rejected. That case is frequently cited as authority to support the legality of such policies.

What then, you ask, of the stirrings in far off worlds? In the last few months Southampton City Council consulted on such a proposal, there to review all care packages costing over £500p.w., and if needs could be met for less cost in a care home, cap the budget at the cost of such a placement. Southampton’s proposal attracted a backlash, and a fortnight ago it was dropped.

Why would a policy which many local authorities rely on to deliver much-needed cost savings now be dropped? A clue may lie in a dim dark corner of the Care Act. Enter paragraphs 11.7 and 11.22 of Annex A of the Care and Support Statutory Guidance, which state that “… the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option” (para 11.7), and that “Local authorities should not have arbitrary ceilings to personal budgets that result in people being forced to accept to move into care homes against their will” (para 11.22).

Also see paragraph 1.18 of the same Guidance, which states that “independent living” is a “core part of the wellbeing principle”, and that wellbeing “includes matters such as individual’s control of their day-to-day life, suitability of living accommodation … and crucially, requires local authorities to consider each person’s views, wishes, feelings and beliefs …”. Paragraph 1.19 of the Guidance states that the principle of wellbeing covers the “key components of independent living”, and that supporting people to live “as independently as possible, for as long as possible” is a “guiding principle of the Care Act”.

This Guidance is underpinned by section 78 of the 2014 Act. While such guidance does not have to be slavishly followed (R (Khatun) v Newham LBC [2005] EWCA Civ 55, [2005] QB 37, para 47), it does have a measure of jedi force: local authorities will usually be required to act in accordance with statutory guidance unless there is a good reason for departing from it: R v LB Islington, ex p Rixon (1996) 1 CCLR 119, QBD, 123. I doubt that financial pressure alone would suffice.

Interestingly, in the Worcestershire case, the local authority assured the claimant that the policy would not lead to the person having to move into residential care. However it is difficult to see how, generally, that would be the case. If savings are to be achieved, this can only be done by imposing on individuals cheaper care arrangements than they want for themselves.

So what then of the First Order’s darling, and D v Worcestershire CC? Well, it should be pointed out that the case only concerned challenges of failure to consult and breach of the double-bladed light-saber, I mean public sector equality duty. The case goes no further than demonstrating that on a particular set of facts such a policy may survive those two forms of challenge. Up against the newly awakened force of paragraphs 11.7 and 11.22 of Annex A, the First Order may have a real fight on its hands.

Jonathan.Auburn@11kbw.com
twitter: @jonauburn11kbw

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