Blog
This blog is my contribution to airing issues in those areas in which I have usefully overlapping expertise: Autism, Law, Education, Social Care, Health and Criminal Justice.
Some of my Care Act focussed posts are also available on my guest blog at Schwehr on Care
But here I also blog about broader issues.
Feel free to contact me if you would like to discuss any of the issues I raise further or if you have questions or topics you would like to see me post about here.
“Google it” – how NOT to do advice and information
Those local authorities working hard on implementing the Care Act know that section 4 says that
“A local authority must establish and maintain a service for providing people in its area with information and advice relating to care and support for adults and support for carers.”
Those who have read a little further into section 4 know that this service must provide information and advice across an extensive range of areas, including of course essential information about how the social care system under the Care Act operates in that local authority’s area (s.4(2)).
Having been in the room when several local authorities were struggling with working out how they might go about collecting and co-ordinating all the necessary information I am well aware that this is a demanding new requirement on local authorities. Many authorities have worked hard on innovative ways of drawing together information and have been disseminating their shiny new leaflets, posters, websites and other resources since the beginning of this year.
Not so everywhere however.
Just last month (4 months after the Care Act came into force) a client of one local authority was told that her care package was going to be reviewed and that a new assessment would be carried out under the Care Act. She had the temerity to ask for details of that authority’s assessment process under the Care Act.
The response she received (now framed for posterity on my wall) would seem to me to fall a little short of what the Care Act had in mind. Attached to a copy of her previous assessment, on a compliments slip bearing the local authority’s letterhead were the handwritten words:
“Information re: the Care Act can be found via the internet.”
Parallel universes
Somewhere out there is a parallel universe. In that universe (let’s call it Universe B), laws work rather differently.
The Care Act is passed and councils are given information and some (admittedly limited) lead time to prepare to implement this new law before it comes into effect on 1st April 2015. Anyborough council is vaguely aware of these developments. But, in Universe B, where Anyborough council is located, laws are merely interesting suggestions and not really laws at all.
Anyborough council decides that it will review its ways of doing things, its policies and its forms in its own time and at a leisurely pace. After all, “coming into effect” just means that they could consider doing things differently at some time after April 2015. If they fancy it. When the right staff are in place. When policies come up for review on their internal rolling schedule. When someone digs the right piece of paper out of the bottom of the filing cabinet.
When clients mention the Care Act, Anyborough council staff look carefully at the council policies to see whether their council has decided to opt for that particular provision in their latest policy draft. Or not. Because, here in Universe B, Anyborough policies are absolute and must be abided by in all situations. So if an Anyborough policy and the Care Act should disagree, then clearly the law was merely an aspirational suggestion and not to be taken seriously. Whereas of course, council policy is the way the world works. Period.
Unfortunately for Anyborough council, the courts which judicially review the decisions of councils in Universe B exist in Universe A. In Universe A there is this rather funny idea called the Rule of Law. In Universe A, local councils have to abide by laws passed by the national parliament whether they like them or not. In Universe A, local councils are free to make policies and to exercise their discretion only as far as the law says they can. And in Universe A, laws come into effect when parliament decides they do.
Sooner or later, I fear, Anyborough council may have a rather traumatic experience when it finds Universe B colliding with the reality of Universe A. Perhaps it would be less traumatic for Anyborough Council to consider taking up ordinary residence, voluntarily, in Universe A, before that happens?
Charging before a financial assessment is carried out?
I have come across a case of a client being sent an invoice (and a demand for immediate payment) before the care planning process has been completed and before a financial assessment has been undertaken. This appears to be the usual practice of the council in question. The amount seems to be quite moderate. It could be argued that this is a nominal amount. And I can understand the rationale. Presumably, and understandably, the council’s intent is to make it clear to the client as early as possible that social care is a chargeable service and get them acquainted wth the idea of paying for it.
So far, so good. The difficulty is I can’t find a lawful basis for this under the Care Act!
If services are already in place at this pre-completion of the care plan stage (and they are in the case in point) then I can only see two potential scenarios.
(1) The services are being provided under s.19 powers to meet ‘urgent needs’. This is the most plausible legal basis for the service currently in place in this case since a positive eligibility determination has already been made. If this view is correct, then the power to charge for them comes from s.14. But the s.14 power is dependent on a financial assessment under s.17 and it is clear from the wording of s.17 (“thinks that it would charge“) that the financial assessment must be carried out in order to determine the level of charges before charges can actually be levied.
(2) The other possible view (though with less basis I think) would be to argue that the services are being provided as preventive services under s.2. There is a separate power under s.2 to charge for these services and use of this power does not require a financial assessment under s.17. So fine then? Well the problem is that Reg. 3(2) of the Prevention Regs requires that “(2) A charge must not reduce the income of the adult concerned below the amount specified in regulation 7 of the Care and Support (Charging and Assessment of Resources) Regulations 2014(A) (minimum income guaranteed amount).”. Given that no financial assessment has been carried out and no financial questions of any kind have been asked of the client to date, how can the council possibly know that the charges it is demanding would not reduce the adult’s income below the minimum income guarantee level? I cannot see how a council can get around this without carrying out some sort of financial assessment even to levy charges for a preventive service.
So, I sympathise with the rationale, but I think this approach may need some reworking. The trouble with invoicing people for charges without a statutory basis for making the charge is that there aren’t going to be any options, if clued-up people decline to pay.