This is the latest in our series of quarterly adult social care update blogs giving readers a snapshot of the most important cases, issues or developments in adult social care. This post looks at developments from January 2017 to April 2017. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments that are covered or if you think we have missed something that should be brought to the attention of adult social care practitioners.
In this post we look at:
- The Spring 2017 Budget.
- New legislation.
- Recent case law.
- Guidance and policy statements.
- Local Government Ombudsman decisions.
- House of Commons Library Briefing papers.
SPRING 2017 BUDGET
Spring 2017 Budget: key implications for local government: Adult social care
On 8 March 2017, the Chancellor Philip Hammond made his Spring 2017 Budget Statement to the House of Commons. The statement included various policy announcements of interest to local government, including a commitment to support the social care system with additional funding.
NEW LEGISLATION
Local Authority Social Services Annual Reports (Prescribed Form) (Wales) Regulations 2017
The Local Authority Social Services Annual Reports (Prescribed Form)(Wales) Regulations 2017 (SI 2017/274) have been made and will come into force on 4 September 2017. The regulations set out the prescribed form for annual reports made by Welsh local authorities under section 144A of the Social Services and Well-being (Wales) Act 2014.
Care and Support (Charging and Assessment of Resources) (Amendment) Regulations 2017
The Care and Support (Charging and Assessment of Resources) (Amendment) Regulations 2017 (SI 2017/555) came into force on 10 April 2017. The regulations amend Part 1 of Schedule 1 to the Care and Support (Charging and Assessment of Resources) Regulations 2014.
Revised Code of Practice on the exercise of social services functions in relation to Part 4 (direct payments and choice of accommodation) and Part 5 (charging and financial assessment) of the Social Services and Well-being (Wales) Act 2014 (Appointed Day) (Wales) Order
The Revised Code of Practice on the exercise of social services functions in relation to Part 4 (direct payments and choice of accommodation) and Part 5 (charging and financial assessment) of the Social Services and Well-being (Wales) Act 2014 (Appointed Day) (Wales) Order (SI 2017/557) has been made. The order appoints 10 April 2017 as the date for the coming into force of the revised Code of Practice (code) on the exercise of social services functions in relation to Part 4 (direct payments and choice of accommodation) and Part 5 (charging and financial assessment) of the Social Services and Well-being (Wales) Act 2014.
Care and Support (Choice of Accommodation, Charging and Financial Assessment) (Miscellaneous Amendments) (Wales) Regulations 2017
The Care and Support (Choice of Accommodation, Charging and Financial Assessment) (Miscellaneous Amendments) (Wales) Regulations (SI 2017/214) came into force on 10 April 2017. The regulations amend various regulations made under Parts 4 and 5 of the Social Services and Wellbeing (Wales) Act 2014.
Social Care Wales (Extension of Meaning of “Social Care Worker”) Regulations 2016
The Social Care Wales (Extension of Meaning of “Social Care Worker”) Regulations 2016 (SI 2016/1251) came into force on 3 April 2017. The regulations widen the definition of “social care worker” under the Regulation and Inspection of Social Care (Wales) Act 2016.
Regulation and Inspection of Social Care (Wales) Act 2016 (Commencement No 3, Savings and Transitional Provisions) Order 2017
The Regulation and Inspection of Social Care (Wales) Act 2016 (Commencement No 3, Savings and Transitional Provisions) Order 2016 (SI 2017/309) has been made.
The order brought into force (with limited exceptions) on 3 April 2017, Parts 2-11 of the Regulation and Inspection of Social Care (Wales) Act 2016.
Social Care Wales (Proceedings before Panels) (Amendment) Regulations 2017
The Social Care Wales (Proceedings before Panels) (Amendment) Regulations 2017 (SI 2017/140) came into force on 3 April 2017. The regulations amend the amend the Social Care Wales (Proceedings before Panels) Regulations 2016.
Care and Support (Area Planning) (Wales) Regulations 2017
The Care and Support (Area Planning) (Wales) Regulations 2017 (SI 2017/56) came into force on 1 April 2017. The regulations specify publication requirements for area plans published by local authorities and Local Health Boards in Wales.
RECENT CASE LAW
Court of Appeal awards claimant costs of successful appeal against committal for breach of welfare order (MM and TK v Devon County Council)
On 12 April 2017, the Court of Appeal issued a decision on the issue of costs and awarded a claimant the costs of her successful appeal against her committal for breach of a welfare order.
The decision will be of interest to local authorities for the Court of Appeal’s reasoning on the issue of costs in a case where the claimant’s own conduct left the council little choice but to instigate proceedings in order to safeguard an adult who lacked capacity to make decisions about his residence and welfare.
For the original appeal, which was decided on 30 January 2017, see Teresa Kirk v Devon County Council.
Supreme Court confirms that Court of Protection does not have power to order care provider to provide, or to fund, care sought by patient’s family (MN (Appellant) v ACCG (Respondent) and others)
On 22 March 2017, the Supreme Court unanimously dismissed the appeal brought by the parents of a profoundly disabled young man (MN) who wanted to their son, who lived in a care home, to visit them at their home. It did so on the basis that the Court of Protection:
- Did not have the power to order the respondent to fund the parents’ plan for MN or to order the providers to do what they were unwilling or unable to do.
- Has no greater power than to make a decision that MN would have made himself. Therefore, the court could only choose between the available options.
Therefore, the Supreme Court held that the judge was entitled to conclude, in substance, that no useful purpose was served by continuing the hearing.
Council’s decision to reduce personal care package of severely disabled adult not unlawful (High Court) (R (Davey) v Oxfordshire County Council)
On 27 February 2017, the High Court rejected a judicial review claim against Oxfordshire County Council’s decision to reduce the claimant’s personal budget from £1651 per week to £950 per week.
The decision will be of particular interest to local authorities, as the court examines in some detail the nature of the well-being duty in section 1 of the Care Act 2014, and analyses the relevance of the United Nations Convention on the Rights of Persons with Disabilities in the context of adult social care provision.
Court of Appeal confirms treatment in intensive care unit does not constitute deprivation of liberty (Ferreira v HM Senior Coroner for Inner South London and another)
On 26 January 2017, the Court of Appeal upheld a decision of the High Court which had found that there was no reviewable error on the part of the coroner who had concluded that a mentally incapacitated woman who died while receiving treatment for pneumonia in the intensive care unit of a hospital was not in state detention for the purposes of section 7(2)(a) of the Coroners and Justice Act 2009 when she died. Consequently, the coroner was not under a duty to empanel a jury for the inquest into her death.
No presumption of extension of limitation period for human rights claims concerning individuals who lack mental capacity (High Court) (AP v Tameside Metropolitan Borough Council)
On 20 January 2017, the High Court refused to extend the limitation period under section 7(5)(b) of the Human Rights Act 1998 and rejected the argument that there is a presumption that the limitation period must be extended, if the claimant is an individual who lacks mental capacity and is reliant on another to bring the claim.
Court of Appeal confirms that private care arrangements in private accommodation amount to a deprivation of liberty (Secretary of State for Justice v Staffordshire County Council and others)
On 22 December 2016, the Court of Appeal upheld the Court of Protection’s decision that purely private care arrangements for a mentally incapacitated individual in their own home, funded by a personal injury award, constitute a deprivation of liberty.
GUIDANCE AND POLICY STATEMENTS
House of Commons Communities and Local Government Committee publishes final report on adult social care
On 31 March 2017, the House of Commons Communities and Local Government Committee (committee) published its Ninth Report of Session 2016-2017 on adult social care.
The committee’s inquiry into the financial sustainability of local authority adult social care and the quality of care provided was launched in June 2016. On 4 March 2017 the committee published a pre-budget report describing the “serious consequences” of the financial pressures on adult social care, urging the government to address the immediate funding difficulties facing the adult social care sector in the forthcoming budget (see Parliament UK: House of Commons Communities and Local Government Committee: Adult social care: a pre-budget report, Eighth Report of Session 2016-17 (4 March 2017) and Legal update, Spring 2017 Budget: key implications for local government: Adult social care).
The committee’s final report analyses the evidence that it received during the course of its inquiry and describes the impact of funding pressures on councils’ ability to meet their statutory duties under the Care Act 2014, and the threat that is posed to the viability of the care provider market.
The report makes several recommendations as to how the funding, structural and other difficulties affecting the social care system should be addressed, and what should happen to ensure that social care is funded sustainably in the medium and long terms.
The report also explores progress on the integration of health and social care innovation in the provision of social care.
DCLG and DH publish integration and Better Care Fund Policy Framework 2017-19
On 31 March 2017, the Department for Communities and Local Government and the Department of Health published a policy framework for the implementation of the Better Care Fund in 2017-19 and proposals for further integration of health and social care by 2020.
LGiU publishes report on impact of cut-price care in home care market
On 21 March 2017, the Local Government Information Unit published a report on the human cost of “cut-price care” in the home care market.
The report focusses upon “the human cost of inadequate care” and looks at why care is priced so low, and how people in the system end up paying for “cut-price care”.
Advice note on Social Work: Essential to Integration issued by Department of Health, Association of Directors of Adult Social Services and the Adults Principal Social Workers Network
On 14 March 2017, the Department of Health, Association of Directors of Adult Social Services and the Adults Principal Social Workers Network issued a collaborative advice note, Social Work: Essential to Integration, regarding the role of social workers in integrated services.
The advice note is aimed at social workers and local authorities, as well as managers and directors of adult social services. It states that social work is essential to integrated care, safeguarding people’s rights when doctors consider compulsory admission or treatment when they may be at risk of or have suffered deprivation of liberty, abuse or neglect.
Law Commission publishes recommendations for new “Liberty Protection Safeguards” scheme and draft Bill
On 13 March 2017, the Law Commission published a final report setting out its recommendations on a replacement scheme for the deprivation of liberty safeguards (DoLS).
Following its four-month public consultation in 2015 on DoLS and mental capacity, the Law Commission has recommended replacing the law with a new scheme called the Liberty Protection Safeguards (LPS). A draft Mental Capacity (Amendment) Bill (draft Bill) set out in Annex A of the report, gives effect to the Law Commission’s recommendations by amending the Mental Capacity Act 2005 (MCA 2005).
The draft Bill entirely replaces the DoLS scheme in Schedule A1 to the MCA 2005, and would introduce a new administrative process contained within a new Schedule AA1 to the MCA 2005, for authorising arrangements to enable the delivery of care or treatment that would give rise to a deprivation of liberty.
The draft Bill would also amend the MCA 2005 in a number of other ways that are aimed at improving decision-making in respect of all people who lack capacity to make particular decisions, including those who are not subject to a deprivation of liberty.
Implementation of the proposed new statutory framework would inevitably have an impact on the financial and staffing resources of local authorities and relevant NHS bodies. However, the Law Commission estimates that the LPS would cost £236m a year in total to administer, which represents a saving of £10m that could potentially be re-invested into adult social care services.
NAO warns plan for integrating health and social care by 2020 at “significant risk” due to financial constraints and pressure on services
On 8 February 2017, the National Audit Office (NAO) published a report examining the progress that the Department of Health (DH), the Department for Communities and Local Government (DCLG) and NHS England have made towards integrating health and social care services.
The NAO warns that progress has been slower and less successful than envisaged and has not delivered all of the expected benefits for patients, the NHS or local authorities. The government’s plan for achieving integrated health and social care services across England by 2020 is therefore at “significant risk”. Although the Better Care Fund (BCF) (the principal integration initiative) has improved joint working, it has not yet achieved its potential. In the face of increased demand for care and constrained finances, the BCF has not achieved the expected value for money in terms of savings, outcomes for patients or reduced hospital activity, from the £5.3 billion spent through the BCF in 2015-16.
The NAO makes a number of recommendations, including that the DH, DCLG and its national partners should:
- Confirm whether integrated health and social care services across England by 2020 can still be achieved.
- Review whether the current approaches to developing, trialling and implementing integrated health and social care services are the most appropriate and are likely to achieve the desired outcomes for integration.
- Set out how planning for integration will occur on a “whole-system basis”, with the NHS and local government as equal partners.
The NAO does not accept the benefits of integrating health and social care at face value and challenges the DH and DCLG to produce compelling evidence, demonstrating that integration leads to better outcomes for patients and will lead to sustainable financial savings and reduced hospital activity.
Social care charging guidance for 2017 to 2018 published
On 8 February 2017, the Department of Health published new 2017-2018 social care charging guidance for local authorities. Under section 78 of the Care Act 2014 (Act), local authorities are required to act on guidance issued that calls on them to exercise their functions under Part 1 of the Act. The social care charging guidance relates to charging functions under Part 1.
LOCAL GOVERNMENT OMBUDSMAN DECISIONS
LGO upholds complaint over council’s failure to ensure adequate transition from children to adult care services
On 14 February 2017, the Local Government Ombudsman (LGO) upheld a complaint by the parents (Mr and Mrs X) of a disabled young person (Y), against Bromley Council (council), concerning the council’s failure to ensure that Y’s transition from children’s services to adult care and support was conducted in a timely manner, and its decision to reduce Y’s respite support package upon his transition to adult care and support.
The LGO found fault causing injustice and that the council:
- Had failed to complete the assessment before Y reached 18.
- Had a clear responsibility to continue to provide services for Y until adult care services were in place so that there were no gaps in Y’s care and support provision. As children’s services had ended their involvement, the council delay in completing the assessment and approving his support package meant Y had been left without the necessary respite care and support.
- Had reduced Y’s support package even though there was no suggestion that Y’s needs had changed. The council had not explanation for the proposed reduction in Y’s existing respite provision, nor was there a record of any discussion with Y’s parents for the change in position.
The LGO recommended that the council pay Y’s parents a sum equivalent to the cost of missed respite and support for the relevant period, and that it should reassess Y’s and Mrs X’s needs and draw up appropriate support plans for them.
The LGO also recommended that the council should review its transition policy and procedures to ensure the transition process runs smoothly so that there are no gaps in the provision of care and support.
The LGO’s decision is reminder that local authorities must comply with the provisions on transition for children to adult care and support in sections 58-66 of the Care Act 2014, and the guidance on transition in chapter 16 of the Care and Support Statutory Guidance.
HOUSE OF COMMONS LIBRARY BRIEFING PAPERS
The House of Commons Library has published the following briefing papers:
- NHS Complaints procedures in England.
- Health and Social Care Integration.
- Disabled Facilities Grants for home adaptations.