Challenging social injustice in adults' social health and care service

Challenging Social Injustice in adults’
health and social care services
1
By Belinda Schwehr
CASCAIDr
belindaschwehr@cascaidr.org.uk
07974 399 361/01252 560856 (helpline)
© CASCAIDr 2020

So what’s the problem then?
• Since the 1990s, the adult social care system has necessarily turned on professional
judgements made by council staff about people’s relative needs, across different client groups.
• Money has got tighter, and often, managers have got (ssssh!) less legally literate and more
desperate to make the budgets they’ve got at their disposal, go further. Making savings often
means promotion!
• Councils have stopped providing services directly and now buy them in for clients; and in some
places, they exercise a dominant purchasing position in the market, which has forced the prices
down, so that older private clients NOT going via the council pay a higher price for the same
service and subsidise council clients.
• As austerity has deepened, people have found their services cut or altered, even if their needs
haven’t changed.
• Advice centres have shut, legal aid has been squeezed and lawyers had ceased to be interested
in offering this field of expertise
• But it’s been 5 years since the Care Act, and there have now been 10 or so cases that have re-
litigated all of the pre-Care Act principles …so it’s not professional not to know about them…
• AND the LGSCO is so fed up with councils that the investigators are now being told to let rip at
councils with language like: ‘breach of the Care Act’ / non-compliant / unlawful under the Care
Act. AND the LGSCO has to follow the law, and there’s been a legal development of great
interest to lawyers – restitution for breach of the Care Act, based on all the money councils
thought they were saving if they were doing dodgy things that weren’t lawful!
• 68% of complaints in adult social care were upheld last year, many for breach of the Care Act.
© CASCAIDr, 2020 2

But budgets do not determine Care Act functions.
There’s a body of law called public law in this country,
and it says as follows:
• Public bodies are the decision-makers, and their decisions are
assumed valid and proper, unless challenged, but they do have
to act
– Rationally
– Lawfully
– Fairly
– And compliantly with human rights
In times of financial hardship, those rules are easily ignored in
relation to adult social care law because vulnerable
dependent people tend not to bite the hand that cares for
them.
© CASCAIDr, 2020 3

Specific Covid-19 Challenges
o rationing and prioritising, instead of meeting needs,
o greater reliance on informal care, because people are
at home, AND scared for their relatives – with or
without welfare calls or reviews
o shenanigans regarding ‘closing’ day services even
though they do not need to be shut,
o allowing supported living providers to behave as if
they were running care homes, regarding the
management of the environment
o Blanket refusal to permit face to face assessment or
BIA or advocacy services to run, visiting, etc.
© CASCAIDr, 2020 4

The Care Act customer journey
• It’s more linear, with separate stages – but in real life, it is still being done all at once, in a supposedly
holistic way, either because that is what happens in all the best places, or because that’s what’s least
burdensome and no-ones got enough staff! No problem with that, legally, though, as long as all the
mandatory bits are included!
• Information and Advice - and referrals elsewhere where appropriate – housing, health, MH etc;
• First Contact – many different roles and functions, eg advocacy rights, prevention, equipment and
reablement, triage and signposting, and assessment mode decisions,
• Prevention: specifically, reablement, counselling, and equipment for some
• Independent Advocacy rights – potential for bringing about fundamental change in the sector
• Assessment – identification of all strengths and all round difficulties and another go at prevention,
maybe, with pausing where something could lessen impact for the longer term
• Eligibility decision – 3 conditions, requiring significant impact on wellbeing in two or more areas called
outcomes, but really meaning areas of daily living
• Indicative resource allocation – in most councils, based on a conversation with carers about ongoing
informal support, and an exploration of what anticipated setting or service responses would cost. NB,
this is not mandated by the Act – only the Guidance
• Care or support planning, using absolutely anything that is free before identifying remaining unmet need
the client wants to have met by the council not being done or accessible through other means
• Finalisation of plan, deployment decision, charging assessment and finalisation of the personal budget
• Contract called off, or spot purchased, or a direct payment set up…
• Review within a year, and revision when needed.
© CASCAIDr, 2020
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Required: advance notice of what it’s all about!
And sensitivity to the implications of being assessed, itself!
Advocates must agitate for these things.
Para 6.38 To help the adult with needs for care and support, or the
carer, prepare for the assessment the local authority should provide in
advance, and in an accessible format, the list of questions to be covered
in the assessment. This will help the individual or carer prepare for their
assessment and think through what their needs are and the outcomes
they want to achieve.
Para 6.40 Local authorities should also consider the impact of the
assessment process itself on the individual’s condition(s). People may feel
uncertain and worried about what an assessment involves and may find
the process itself to be strenuous. Local authorities should therefore
give consideration to the preferences of the individual with regards to
the timing, location and medium of the assessment.
© CASCAIDr, 2020 6

Formal funded Advocacy Rights under the Care Act
• There are now legal rights to independent advocacy for people with
cognitive difficulties, for representation and support with assessment,
care planning and revisions to plans.
• There are new advocacy rights within the safeguarding sphere, too, to
keep the vulnerable adult at the centre of the process.
• Councils must fund these rights, when triggered, so it should mean
that all vulnerable adults, without anyone willing and able to help
them with involvement, should now have someone who’s clued-up to
support them in discussions about their council’s views about their
needs on assessment, and their budgets during care planning.
• The duty is not one where shortage of financial resources is a legal
excuse for not discharging the duty! It’s what the council’s ‘reserves’
are for, in legal terms, because it’s a duty.
© CASCAIDr, 2020 7

Supporting the person’s involvement in the assessment
Para 6.30 Putting the person at the heart of the assessment process is
crucial to understanding the person’s needs, outcomes and wellbeing,
and delivering better care and support.
The local authority must involve the person being assessed in the
process as they are best placed to judge their own wellbeing. In the case
of an adult with care and support needs, the local authority must also
involve any carer the person has (which may be more than one carer),
and in all cases, the authority must also involve any other person
requested.
The local authority should have processes in place, and suitably trained
staff, to ensure the involvement of these parties, so that their
perspective and experience supports a better understanding of the
needs, outcomes and wellbeing.
© CASCAIDr, 2020 8

Mandatory (‘MUST’) process provisions which we all
need to know about – and what the guidance draws on:
s9(5) A local authority, in carrying out a needs assessment, must
involve
(a) the adult,
(b) any carer that the adult has, and
(c) any person whom the adult asks the authority to involve or, where
the adult lacks capacity to ask the authority to do that, any person
who appears to the authority to be interested in the adult’s welfare.
Think about the implication of this – this means that capacitated
people can ask for their current or preferred provider to be involved,
not just rely on the authority to treat an existing provider as a best
interests consultee, when and only when the person lacks capacity.
Or a private advocate – if a person can find one/afford one!
© CASCAIDr, 2020 9

Others’ rights to see someone else’s Care Plan?
• Councils are obliged to compose care plans by s24 and s25 of the Care Act for all clients. Even ones
having direct payments. These should state the overall budget and HOW it meets the eligible
assessed needs, and any care charges part of that overall budget, which are a separate matter.
• This is largely being ignored, often because people still have not had a Care Act needs assessment,
since the Act came in, which is indefensibly unlawful, but there we go.
• People’s informal carers are supposed to be INVOLVED in care planning, s25(3) but involvement is
not defined, and councils are slippery about it, in our experience. It does not mean present,
necessarily, but it does mean more than merely TOLD what’s going to be in the plan – it might not
mean ‘get a copy if the individual says NO to that’, however – personal sensitive data, after all.
• A carer is entitled to be involved regardless of the views of the client, please note. But I bet if a
person (even a person with less than full capacity on this specific issue) begged a council not to
involve their parent, a council would take advice and not involve the carer, any more than
minimally, because of concerns about confidentiality and human rights.
• It’s different if you hold a power of attorney/deputyship for welfare, however. You count AS the
person in that situation, with their rights to documents etc. A capacitated client can insist on a
care plan – s25(9) – and can ask for it to be copied to anyone else they like. So - a carer can get
one, if the client asks for them to be given one.
• But if the client lacks capacity, the care plan will only be disclosed to anyone (other than a welfare
deputy or attorney, who can expect a copy as if they were the client him or herself), IF the council
thinks it’s in a person’s best interests. We find that they tend to refuse to hand out copies
regarding people with less than full capacity, particularly if they think that the existing or emergent
care plan holds legal risk for them. To be squeaky clean, staff should make a reasoned decision on
not sharing, in that situation, in writing.
© CASCAIDr, 2020
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Involving carers in an adult’s plan, anyway
10.40. In considering the person’s needs and how they may be met, LA must
take into consideration any needs that are being met by a carer.
The person may have assessed eligible needs which are being met by a carer
at the time of the plan – in these cases the carer must be involved in the
planning process. Provided the carer remains willing and able to continue
caring, the LA is not required to meet those needs.
However, LA should record the carer’s willingness to provide care and the
extent of this in the plan of the person and also the carer, so that the
authority is able to respond to any changes in circumstances (for instance, a
breakdown in the caring relationship) more effectively.
Where the carer also has eligible needs, LA should consider combining plans
of the adult and the carer, if all parties agree, and establish if the carer
requires an independent advocate.
© CASCAIDr, 2020 11

What does the Act do to the system for carers?
• The whole time, the crucial driver has been sustaining carers, because they save councils
money. Whatever they choose not to do, councils might have to do instead, or buy in, if it
was to cover eligible assessed and now unmet need.
• The new Act makes the notion of evaluating the amount of practical care a carer is ‘doing’
obsolete, at least for the purposes of their status or their eligibility – but it is not necessarily
irrelevant to how much support the carer might get, however, in terms of a support plan or
a budget to spend.
• The reason virtually anyone could now count as a carer is that the big idea is ‘the more the
better’, because that’s more social capital to draw in, so long as carers still feel appreciated
and not exploited… and the rules say that ‘practical or emotional support’ is enough.
• The value of the input that the carer is saving the council may be far more than it would cost
to meet the carer’s specific personal needs and help with the impact: the Act allows councils
to pay for that latter sort of solution, rather than always meeting the cost of delivering
alternative care to the person cared for, on the footing that most carers WANT to care, and
contribute massive added value.
• Under the new Act, the discussion with carers needs to go up a gear - to the effect that of
course they don’t HAVE to care, but that withdrawing, if they feel they have to, inevitably
affects the cost/benefit analysis for supporting the needy person in their preferred setting, as
it all comes out of public money.
• This is a simple legal truth, and not in any sense meant to be suggested as a cold threat!

Decision-making by carers – their rights
• What legal rights do Carers have to make decisions on or behalf of the adult they care
for and support?
• They have the same rights as anyone else, regarding an ADULT relative or friend, but a
little greater protection than paid staff.
• That is to say, that they cannot assault or restrain, medicate, transport or feed a
capacitated relative against their will. That’s a crime and a civil assault.
• They can do any of those things safely, under the Mental Capacity Act, if they follow the
steps in the law and Guidance for deciding that their loved one lacks capacity on the issue
in question and that what they’re doing is in the person’s best interests. Just like a paid
worker, not doing the thinking properly makes the person liable to an action for damages,
in theory, at least.
• They can’t ask for direct payments or sign contracts or employ someone on behalf of a
relative, or friend, without legal authority.
• That role might come from being asked to do it – that is agency. If the person lacks
capacity to know that they might need to ask for help to achieve something then they
haven’t got the means to authorise their relatives to do anything formally on their behalf,
and that is why a friend or relative may need deputyship in the end, and why a person can
themselves ask to be seen as the Authorised Person for the management of a person’s
direct payment.
• But not even an attorney or welfare deputy can consent to deprivation of liberty on
behalf of the person they have deputyship for.
© CASCAIDr, 2020
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So does the carer have a right to stop caring, say, if they want to work?
You might not think so, given that all the council has to do is to ‘have regard’ to the carer’s work,
or their wish to work/participate in education training or recreation.
s10(6) A local authority, in carrying out a carer’s assessment, must have regard to—
(a) whether the carer works or wishes to do so, and
(b) whether the carer is participating in or wishes to participate in education, training or recreation.
The thing is, though, they are entitled to, IF THEY CHOOSE TO, because they can’t be stopped,
and the cared for person then is owed a duty themselves, regarding the newly unmet needs.
However, councils know that carers won’t stop, unless they feel that their loved one will be
alright.
There is no legal duty on a council to do all of what a carer might have been doing just on the
footing that he or she thought it was essential. And there is no duty to provide aspirational levels
of care – only that which is adequate and appropriate. And that’s just not good enough for some
carers to feel confident.
Rather than be transparent about that legal truth, most councils prefer to leave it unstated and
hide behind ‘cuts’ or a doctrine of ‘natural support’ or simply assuming willingness to continue.
A particular favourite is leaving an indicative budget in the plan, without specifying how it’s
supposed to meet all the needs, but also without specifying what the carer is understood to be
willing and able to continue to do.
That’s why we need to have legally literate trustworthy professionals, working on social work…
© CASCAIDr, 2020
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Case law on the centrality of the carer’s
willingness, for the service user’s plan
• CP v NE Lincs, 2018 https://bit.ly/2ISmLV6
• An indicative budget for the service user him or herself must be transparent and explicit.
• There is no such thing as ‘natural’ support - and informal carers’ willingness as well as their ability
to do what they have been doing or might do if asked, must not be assumed.
• Proposed plans pre finalising the budget had failed to state a personal budget; none had any
breakdown of the figure.
• The duty to specify the personal budget for the adult required a transparent figure which set out
how the persons’ needs could actually be met by various elements within it.
• …The duty is a clear one derived from section 26 of CA 2014 and any failure to provide a
transparent budget in a care and support plan represents a prima facie breach of that duty
which … would be susceptible to legal challenge by way of judicial review, assuming that it was
otherwise uncorrected.
• An adult’s family carer is under no obligation to meet the eligible needs of the adult and any
plan must be contingent on such care being withdrawn, or the local authority being made aware
that the carer is not in a position to cope.
• Unlawfulness could … be identified … where there had been a refusal to review in response to a
complaint, or insistence on family care in the light of clear evidence that the family was
unwilling, or that there had been an irrationally low level of care identified on the assessment.

CP v NE Lincs in the Court of Appeal –
restitution for breach of statutory duty
• The Court held that if a council breaches the Care Act, with regard to the Care Plan requirements,
(and provides an unlawfully inadequate personal budget) then it is acting unlawfully, and must
pay what it would otherwise have been obliged to pay towards the person’s care plan, if it had
acted lawfully.
• If that person has incurred a liability to pay, even a person lacking in capacity to have contracted,
then that is the measure of what the council would have to reimburse, as a matter of public and
private law principle.
• “A breach of a statutory duty is a breach of statutory duty. It is, by definition, unlawful
conduct. Unlawful conduct by a public body cannot merely be discounted or ignored.
• Moreover, s. 26 [of the Care Act] is no minor matter. A local authority’s statutory duty under
s.26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support
needs is fundamental to the operation of the care and support scheme which the Care Act 2014
underpins.
• In the present case, having found the Council in breach of its statutory duties, [the judge in the
High Court] should have gone on to hold that the Council had acted unlawfully and, accordingly,
was liable in principle to compensate CP in respect of any monetary shortfall, in accordance with
normal public law principles of legal accountability of public bodies.” LJ Haddon Cave
• That’s very cheering for a service user, isn’t it?

What the guidance says about the right approach to the domains
Para 6.104 …The following section of the guidance provides examples of how local
authorities should consider each outcome set out in the Eligibility Regulations when
determining the adult’s eligibility for care and support: the effect of the guidance is
inclusive and embraces more than the bald words in the regulations, in our view.
Eg managing and maintaining nutrition
• Local authorities should consider whether the adult has access to food and drink to maintain
nutrition, and that the adult is able to prepare and consume the food and drink.
being appropriately clothed
• Local authorities should consider the adult’s ability to dress themselves and to be appropriately
dressed, for instance in relation to the weather to maintain their health.
being able to make use of the home safely
• Local authorities should consider the adult’s ability to move around the home safely, which could
for example include getting up steps, using kitchen facilities or accessing the bathroom. This should
also include the immediate environment around the home such as access to the property, for
example steps leading up to the home.
maintaining a habitable home environment [note: no reference here to the adult’s ability….]
• Local authorities should consider whether the condition of the adult’s home is sufficiently clean
and maintained to be safe. A habitable home is safe and has essential amenities. An adult may
require support to sustain their occupancy of the home and to maintain amenities, such as water,
electricity and gas.

18
Summary of any public body’s care planning duties
• The authority is always obliged by public law – even though it doesn’t say so specifically in
the Care Act – or the NHS CHC National Framework - to meet the assessed eligible unmet
needs, appropriately, suitably, reasonably, lawfully etc.
• This concept has a special meaning: to be challenged, the offer has to be unfeasibly and
inconceivably unreasonable, or mistaken in terms of an error of law, and unfairly processed
- and that turns on how well the staff are trained to function and explain their views.
• This is where professionally competent social work-informed opinion and evidence trumps
everything, and why it’s madness for a council to dumb down its workforce: they have to be
able to explain their views to a judge, in a case where the legality of the offer is disputed! The
older and greyer they are, the better, frankly…
• Care planning must done procedurally fairly, properly putting assumptions to the client or
family, not operating on the basis of those assumptions, covertly; and with sufficient
transparency to amount to giving the person a fair chance of obtaining what Parliament
intended.
• Care planning must be done lawfully in line with Choice regulations and guidance, and
relevant Health & Safety requirements, and any other general UK legal obligations, such as
sex and race discrimination rules, CQC registration rules, Direct Payment regulations and the
requirements of the Mental Capacity Act…when they apply, which is not always in care
planning, even if the person lacks capacity. The sector is not sophisticated enough to know
when and when not, a care planning decision IS one that must be arrived at or implemented
through an MCA culture.
• Care planning has to be done in line with human rights, with regard to dignity, as part of
respect for a person’s private and family life, freedom from unlawful deprivation of liberty
and from inhuman or degrading treatment (ie the most obviously relevant rights in play, even
if we ever manage to Brexit!!)
© CASCAIDr, 2020
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More general principles
• Since this is all public money, the law is that if the eligible needs
can be met in more than one way, ‘appropriately’, the authority
can offer the cheaper method, after taking all relevant factors into
account.
• The funding body is always the decision maker. But it cannot use
cost as the only relevant consideration in making a lawful offer –
the law is person-centred, needs-led, and it always has been. So
it’s a judgment on what is objectively reasonably required, taking
account of the person’s subjective relationship with their
condition, and the condition itself.
• The wishes and feelings of the individual are a lawfully relevant
essential consideration, but not determinative.
• Emotional and psychological wellbeing are lawfully relevant
essential considerations because anxiety and distress are part of
the definition of inability to achieve. Refusing to engage in
balancing those against cost is an unlawful approach. Unsuitable
accommodation, we think, is even more central. Refusal to accept
informal care, likewise.
© CASCAIDr, 2020
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Relevance of anyone’s dissent, disagreement etc
• Refusal of what’s finally offered, to a capacitated person, usually means that that
person is saying ‘Thanks, but no thanks’. That is sufficient to let the council off the
hook….to discharge the duty to meet needs that would otherwise arise from the
decision that the situation necessitated the Council’s help or money to meet needs.
• Someone else’s refusal is not a bar to the decision being lawful. Not without MORE
thought.
• Refusal by an incapacitated person’s welfare deputy COULD be treated as a refusal by
the person in need. So refusing on the grounds that the offer isn’t even lawful is a
very important thing to be able to articulate, so as to deter a council from assuming
one is just saying no thanks…
• Refusal by a person, or an incapacitated person’s relative or advocate could be seen
as either a useful and legitimate legal challenge, ie to the suitability of the offer, or to
its legality for other reasons. Such principled standing up for people’s rights amounts
to saving the commissioning body from massive egg on face, potentially. Do not
punish it by seeing it as abuse or obstruction without really trying hard to see it
from their viewpoint first!
• Obstruction or dissent by others could be seen as a serious safeguarding matter,
depending on the circumstances – but is not able to be counted as somehow a refusal
for the person in need which discharges the commissioner from having to continue to
determine how to meet need: relatives have no right to obstruct a person’s access to
their own social care rights – but most councils won’t be comfy explaining this to the
very people who can complain, go to the Monitoring Officer or issue JRs.

Who is in charge of care planning, in legal terms?
10.27 “In determining how to meet needs, the local authority may also take into
reasonable consideration its own finances and budgetary position, and must comply
with its related public law duties.
This includes the importance of ensuring that the funding available to the local authority
is sufficient to meet the needs of the entire local population.
The local authority may reasonably consider how to balance that requirement with the
duty to meet the eligible needs of an individual in determining how an individual’s needs
should be met (but not whether those needs are met).
However, the local authority should not set arbitrary upper limits on the costs it is
willing to pay to meet needs through certain routes – doing so would not deliver an
approach that is person-centred or compatible with public law principles.
The authority may take decisions on a case-by-case basis which weigh up the total costs
of different potential options for meeting needs, and include the cost as a relevant
factor in deciding between suitable alternative options for meeting needs.
This does not mean choosing the cheapest option; but the one which delivers the
outcomes desired, for the best value.”

What about when there’s
NO agreement on a care plan or budget?
10.86 In the event that the plan cannot be agreed with the person, or any
other person involved, the local authority should state the reasons for this
and the steps which must be taken to ensure that the plan is signed-off. This
may require going back to earlier elements of the planning process.
People must not be left without support while a dispute is resolved.
[This is because the duty to meet the needs arose immediately after the
finding of eligibility, please note: the duty in s18 is not dependent on a care
plan having been brought into existence or signed OFF].
If a dispute still remains, and the local authority feels that it has taken all
reasonable steps to address the situation, it should direct the person to the
local complaints procedure. However, by conducting person-centred planning
and ensuring genuine involvement throughout, this situation should be
avoided.
[why no mention of the Monitoring Officer remedy here, or judicial review
for illegality, unreasonable insufficiency or lack of transparency? Odd, eh?]

The ‘final’ Personal Budget
• 11.10 The personal budget must always be an amount sufficient to meet the
person’s care and support needs, and must include the cost to the local
authority of meeting the person’s needs which the local authority is under a duty
to meet, or has exercised its power to do so. This overall cost must then be
broken down into the amount the person must pay, following the financial
assessment, and the remainder of the budget that the authority will pay.
• 11.25 The Act states the personal budget must be an amount that is the cost
to the local authority of meeting the person’s needs
• This must be detailed in the Care and Support or Support Plan
• The final Personal budget will be ‘the cost to the local authority’ of meeting these needs,
and will be “transparent - so that people are clear how their budget was calculated”
• 11.4 It is vital that the process used to establish the personal budget is transparent so
that people are clear how their budget was calculated, and the method used is robust so
that people have confidence that the personal budget allocation is correct and therefore
sufficient to meet their care and support needs…
• This should be justifiable in terms of a basically reasoned decision as to why the final
offered allocation is thought to be adequate to achieve the meeting of the assessed
needs in the manner agreed by the Council in the Care and Support Plan, taking into
account the individual’s specific situation.
– Agreed here is euphemism for offered….and signed off.

What about all the personalisation rhetoric
about ‘choice’, then?
• Apart from the choice of a particular care home or other placement (a contracted placement
only, not a tenancy in supported living, even though the it can BE specified accommodation, the
only other choice ‘rights’ a person has in the context of adult social care are
• to refuse to be assessed, in the first place – s11
• to refuse consent to being represented by one’s relative or friend as an informal supporter, so
that funded advocacy can be triggered, if one prefers; s67
• to refuse consent to one’s carer being given a copy of the care plan – s25
• to refuse to be financially assessed – although this results in being deemed to be a full cost
payer if the person is a service user (or if not a service user, one’s carer not getting any funding
for direct substitute services)
• and to refuse services, in which case the council is discharged from its duty.
• All the other choices – even co-production of a plan or having the budget as a direct payment
- require a local authority’s agreement or approval.
• We at CASCAIDR do not think that this is ‘wrong’, in any absolute or moral sense – it’s the law
that the UK Parliament brought in, if one cares about sovereignty ‘n all that, these days!
• But we do think it’s wrong that duties in an Act of Parliament, are simply not funded, because
no party is prepared to have the debate or ask people to pay more in tax or for national
insurance. It is the nation’s biggest victim of Brexit politicking, and then Covid, in our view.
• And we do think it’s wrong if public functions become part of the nationwide culture of making
the customer do the work, and waiting until the customer pushes you for something.

What about making people live together and share their budgets?
S25 contains rules about combining a care plan/budget
s25(11) A local authority may combine a care and support plan or a support plan
with a plan (whether or not prepared by it and whether or not under this Part)
relating to another person only if the adult for whom the care and support plan
or the support plan is being prepared agrees and—
(a) where the combination would include a plan prepared for another adult, that
other adult agrees;
(b) where the combination would include a plan prepared for a child (including a
young carer), the consent condition is met in relation to the child.
(12) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the plans being combined
and does so agree, or
(b) the child lacks capacity or is not competent so to agree but the local authority
is satisfied that the combining of the plans would be in the child’s best interests.
…
(14) The regulations may in particular specify that the paragraphs in question do
not apply as regards specified needs or matters [this option has not been taken up]
© CASCAIDr, 2020
25

Revisions: is it only changes in NEEDS that trigger
revision of a care plan, or is that not the law?
• Is it lawful to reduce an adult’s support plan / personal budget following
a review if an adult’s needs are not deemed to have changed?
• Is a full reassessment required?
• It need not be unlawful to reduce an adult’s support plan or budget, even
if the needs or the level of dependency have not changed, as long as there
is some other change afoot that would logically affect the plan, such as a
drop in prices, or a new way of providing assistance.
• In any case where the plan is to be changed, (except perhaps where it is
just as to a provider’s identity, providing the exact same non-residential
service), there must be a proportionate re-assessment, but not a full one,
necessarily.
• S27 says so. Time to get reading! 

(1) A local authority must—
(a) keep under review generally, care and support plans, and support plans, that it has
prepared, and
(b) on a reasonable request by or on behalf of the adult to whom a care and support plan
relates or the carer to whom a support plan relates, review the plan.
(2) A local authority may REVISE a care and support plan; and in deciding whether or how to do
so, it—
(a) must have regard in particular to the matters referred to in section 9(4) (the impact of
needs, the client’s wishes and outcomes etc) (and specified in the plan under section 25(1)(d)),
and
(b) must involve*—
(i) the adult to whom the plan relates,
(ii) any carer that the adult has, and
(iii) any person whom the adult asks the authority to involve or, where the
adult lacks capacity to ask the authority to do that, any person who appears to
the authority to be interested in the adult’s welfare.
[*this is why the right to advocacy can be triggered for finalising revisions, but not mere
reviews, in our view, despite what the Guidance says – and if that seems incredible to you, see
s67(3) which instances s27(2) for advocacy and not s27(1)!]
S27 - Review and revision of care and support plan
or of a support plan

27(3) [merely says the same as (2) about revising carers’ support plans]
Then
27(4) Where a local authority is satisfied that circumstances have changed in a
way that affects a care and support plan or a support plan, the authority
must—
(a) to the extent it thinks appropriate, carry out a needs or carer’s assessment,
carry out a financial assessment and make a determination under section 13(1),
and
(b) revise the care and support plan or support plan accordingly.
(5) Where, in a case within subsection (4), [a perceived ‘change of
circumstances that affects the plan’] the local authority is proposing to change
how it meets the needs in question, it must, in performing the duty under
subsection (2)(b)(i) or (3)(b)(i), (the involving duty) take all reasonable steps to
reach agreement with the adult concerned about how it should meet those
needs.
© CASCAIDr, 2020
Regardless of whether there has been a review, there are rules
about what MUST happen when certain sorts of change occur:
28

A ‘Who’s Who’ of direct payments…
• The adult is the person whose personal budget, assessed eligible needs and whose plan, the direct
payment relates to.
– That person will either be regarded as someone who
• Has capacity to request direct payments, or
• Lacks capacity to request direct payments
– And be either
• A person with care and support needs, or
• A carer with support needs
• A nominated person is a person whom an adult with capacity to request a direct payment nominates to
receive the direct payment on their behalf
– The nominated person must agree to receive and manage the direct payment, but in doing so (in
our view) acts only as the agent of the individual, whose own direct payment, the payment
remains …. along with all the liability risk and responsibilities
– NB the rules are different for Personal Health Budgets – the regulations say even nominated
persons take the money as principal, not as agent. No doubt to put a further yard or mile
between the NHS and liability for someone’s actions if a patient is harmed by misuse or non-use.
• An authorised person is a person who can request as well as receive direct payments to spend on
meeting the needs of an adult who does not have capacity to request direct payments – ‘authorised’
sometimes refers to the notion of being ‘authorised under the MCA’ and sometimes just means
‘authorised by the LA’ to do the holding and operation of the direct payment.
– The authorised person is taking in their own personal name, as principal – not as agent for the
service recipient - which means THAT PERSON taking on all legal responsibility as employer, and
bill payer, where relevant.
– This makes perfect sense when you remember that they’re doing it for someone without capacity
to request the Direct Payment.
• The council has to approve of the nominated helper or authorised person!
© CASCAIDr, 2020
29

Who can be an authorised person?
The law says this:
• someone authorised under the Mental Capacity Act 2005 to make
decisions about the adult’s needs for care and support,
[one might think that that means a welfare attorney or deputy but it
does not appear to be the case – even a finance and property deputy is
potentially someone with that much power, if you think about it,
because the reason people give these powers to loved ones and
professionals is so that they can be maintained appropriately should
they ever lose capacity…]
or
• another person whom the person authorised under the Mental
Capacity Act 2005 agrees with the council to be a suitable person to
make direct payments to,
or
• if there is no Mental Capacity Act 2005 authorised person, a person
the council considers a suitable person to make direct payments to
[Care Act 2014 32(a),(b) and (c)]

The deployment routes for Personal Budgets…
• There are essentially two ways to take a personal budget – as a ‘managed’ personal
budget or as a direct payment.
• A managed direct payment is just a variety of the latter direct payment route, and
there are several variations of even that concept. So the language really matters, and
councils are fudging it!
‘Managed’ – in the context of a personal BUDGET
• means the council’s officers using the budget to pay for council provided or council
contracted services, in as personalised a way as they or a suitable provider will allow,
or in the latter case, feel it would be necessary or feasible to offer to get the business.
• That means a commissioned package, where the council is the purchaser, and the
individual is just the recipient.
• The council managed PB route is always subject to public procurement rules (such as
they are, in adult social care) and the council’s standing orders.
• If the council changes one of its commissioned providers, TUPE will or at least MAY
apply.
• If the council agrees with a provider that the provider could and should work with
the client or family and not take ALL the money for its own services but ‘LOOK AFTER
IT’ for the client, and use the money for sub-contracting or appointing others to do
aspects of the overall plan, agreed by the client or family, that’s being called an ISF or
third party route. BUT IT IS STILL A COUNCIL-COMMISSIONED / MANAGED PERSONAL
BUDGET.
• To be a direct payment, the client has to be PAID the budget, even if the council IS
then nominated to manage it!

THE Direct Payments question – is ‘more expensive’
a want or a need? It all depends…see the Guidance
Andrew
• Andrew has chosen to meet his needs by receiving care and support from a PA. The local authority has a block contract
with an agency (agency for PAs) which has been providing support to Andrew twice per week. [so not an employee PA]
• Andrew would now like more flexibility in the times at which he receives support in order to better meet his needs
by allowing him to undertake other activities and consider employment.
• He therefore requests a direct payment so that he can make his own arrangements with another agency, which is happy to
arrange a much more flexible and personalised service, providing Andrew with the same care worker on each
occasion, and at a time that works best for him.
• The cost to the local authority of the block contracted services is £13.50 per hour. However, the more flexible support
costs £18 per hour (inclusive of other employment costs). The local authority therefore increases Andrew’s direct payment
from £67.50 to £90 per week to allow him to continue to receive the care he requires. The solution through a direct
payment delivers better outcomes for Andrew and therefore the additional cost is reasonable and seen as value
for money as it may delay future needs developing.
• The local authority also agrees it is more efficient for them to allow Andrew to arrange and commission the hours he wants
to receive support and handle the invoicing himself.
Comment: the acid test of the legal issues swirling around here is what if the same agency provides the same service but it
costs more to a direct payment employer than it would to the council – no guidance is given on that!!
George – who just wants a direct employee
• Following George’s assessment of needs, the local authority work out an indicative personal budget of £135 per week,
based on their block contract rate of £13.50 per hour as an indication of the potential costs to meet his needs.
• During care planning, George states that he has a neighbour that has recently trained to become a personal assistant, and
George indicates a preference to use a direct payment to employ the neighbour instead of an arranged service.
• The local authority is satisfied that George will be able to manage the direct payment and that he understands his
responsibilities as an employer. George wants to pay the PA above the Living Wage and has provisionally agreed a rate of
£9.00 per (out of date now.)
• The local authority agrees to this as George agrees that it will meet his needs and outcomes. The final personal budget is
adjusted to £110 per week which factors in the new hourly rate, plus an additional allowance for employment
responsibilities (PAYE, NI, insurance)

So, this is how people working in social care can help
clients get, and then keep, their care packages:
All Council and providers’ assessment staff and advocates, need to know off by heart,
the following aspects of the customer journey:
• The scope of the broad definition of well-being in s1(2) – so that they can help both
the person and the council identify the way in which the person’s difficulties are or
will, would or could impact on that whole statutory range of well-being aspects of
their life, if they had no help;
• The detail of how a council must SHOW that it has gone about promoting well-being
in the right way – the matters to which it must have regard in s1(3);
• The list of activities that must be considered in an assessment in the Eligibility
Regulations – activities of daily living, or domains common to us all, in any ‘normal’
lifestyle – but perhaps deliberately called outcomes in the regulations – so that an
assessor can say ‘I considered the outcomes’ and imply that that is all that’s needed,
whereas the client’s desired outcomes ALSO NEED TO BE RECORDED!
• Is the person unable? Using the extended definition of not being able to do
something – which is helpful to the person, because it allows one to count as unable,
even if one CAN do something on the list, but not without assistance - (including mere
prompting), or significant pain, distress, endangering self or others, etc. (in the
eligibility regulations, also)
• BUT REMEMBER: There are no eligible needs, unless there are two or more areas of
inability to achieve as defined, and none, not without consequential significant impact
on well-being, deriving from these inabilities (separately or together) to do these
particular tasks.
© CASCAIDr, 2020
33

From the social worker’s perspective, now:
• It is not hard, with all due respect. There is a set approach. Identify all the needs that you can feasibly
identify, without regard to whether they are for the council or some other agency to meet.
• Look at the eligibility regulations, and go through the areas, within the list, with the person and their
family and anyone else with any light to throw on the situation – an advocate or current provider for
instance
• Record any of those inabilities to achieve, applying the regulations based approach to what constitutes
inability, sensibly.
• Ignore whatever a family or friend is doing to manage risks, because you must be carer-blind.
• Decide – having paid a lot of attention to the views of the service user, whether there is significant
impact on well-being for that person, arising from the deficit, or likely to arise.
• Using the definition of well-being, as an indication of the purpose of social care, decide whether the
impact being asserted, or professionally perceived, is significant impact to relevant aspects of well-being
in s1, thus deciding whether the need giving rise to that impact is eligible.
• Decide whether it is a need that is met already, or should be met by another agency with a duty, or a
power and a stiff word or two from us, under the duty of co-operation; or could be met, with a bit more
support for carers? If it’s met, or must be met or should be met, councils don’t have to meet the need but
they do have to organise the meeting of it if it requires another agency to be persuaded to fund.
• If not met, get into care and support planning, and accept a duty to fund meeting the need, subject to
means thresholds etc and the right of a well-off or incapacitated person to have their needs met in any
event, albeit possibly at full cost or full cost + a fee to cover commissioning costs.
• If there are some needs that are not eligible, or there are some outcomes sought by the person that are
outside the statutory scope of well-being, but which would create additional value overall, if they were
met, consider funding those needs anyway, under the power.
• There we go. Sorted. Not THREE conversations, as such, but a logical linear way through the law.
© CASCAIDr, 2020
34

• The CASCAIDr website is found at www.CASCAIDr.org.uk It explains what we
do, our model - and some of our successes, here: https://bit.ly/2SHM6CO
(cut and paste please, it won’t work direct from the powerpoint)
• A referral form can be found here: CASCAIDr's referral form for advice - we do
not start cases off without one, other than in exceptional circumstances! We
are an online charity, working on a shoe-string.
• Donations are of course welcome, and can be processed on CASCAIDr's
Donation Button along with Gift Aid, to make the government (ANY
government, through HMRC!) pay an extra 25% towards the costs of
responding to austerity!
• CASCAIDr can be contacted on belinda@cascaidr.org.uk if you’d like to
volunteer to help in any way
© CASCAIDr, 2020
35

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