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 August to October 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:
- Recent case law.
- Decisions of the Local Government & Social Care Ombudsman.
- Guidance and policy statements.
- House of Commons Library briefing papers.
- Featured blogs.
- Recent Ask queries.
RECENT CASE LAW
Nursing care by registered nurse in care home covers time spent directly or indirectly on nursing care (Supreme Court) (Forge Care Homes Limited and others v Cardiff and Vale University Health Board)
The Supreme Court has unanimously allowed an appeal by the appellant care homes against a decision of the Court of Appeal which had held that Local Health Boards were only obliged to pay for care home residents’ NHS funded nursing care that is clinical or medical care, by a registered nurse and not for the provision of other services by way of social care.
The decision provides much needed clarification on the responsibility for funding non – nursing care for care home residents and will be welcome news to local authorities particularly in view of their constrained adult social care budgets.
Council permitted to consider additional care home revenue streams in accommodation rates assessment under pre-Care Act 2014 costs framework (Court of Appeal) (Torbay Council v Torbay Quality Care Forum Limited)
The Court of Appeal (CoA) has held that Torbay Council had been permitted to include additional revenue received by care homes when calculating its accommodation rates under the National Assistance Act 1948 (NAA 1948) care regime.
In calculating its “usual costs” for provision of an elderly resident’s accommodation in a care home, pursuant to the NAA 1948 and accompanying directions and guidance, the council had included certain sources of revenue available to care homes, including fees from third party top-ups, privately paying residents and residents receiving additional financial support from the NHS. The High Court had upheld a judicial review challenge brought by Torbay Quality Care Forum Ltd, an association representing independent care homes in Torbay, holding that this was unlawful.
By a majority, the CoA upheld the council’s appeal against the decision and decided that it had been permitted to consider these factors.
The case considered the former care provision and costs framework, which was substantively replaced by the Care Act 2014 (CA 2014) after the High Court’s judgment. While it is of significant financial consequence to the parties and of interest to the care sector, the impact of the judgment on the current regime for commissioning care services must be considered in light of the market shaping duty under section 5 of the CA 2014, the current care and support statutory guidance and tools on calculating fees in order to fully assess the impact of this decision. The statutory guidance requires local authorities to set reasonable fee levels that allow for a reasonable rate of return by independent providers that is sufficient to allow the overall pool of efficient providers to remain sustainable in the long term. The judgment also serves more widely as a reminder of the significance of statutory guidance in local authorities’ social services functions.
Court of Appeal upholds local authority’s substantial reduction in personal budget of severely disabled person (R (Davey) v Oxfordshire County Council and others)
The claimant (D) sought judicial review of the decision of Oxfordshire County Council (council) to reduce D’s personal budget and to revise his care and support plan pursuant to the CA 2014. The effect of these decisions was to set the personal budget at £950 per week, a substantial reduction from the previous budget of £1651 per week. Morris J dismissed the claim and D appealed to the CoA.
The appeal was dismissed for essentially the same reasons given by Morris J in his judgment:
- The judge’s critical finding, that no sufficient evidence had been provided that the changes in the pay and conditions of D’s personal assistants had resulted or would result in the break up of the existing support team, was a finding which the court considered the judge was entitled to make on the evidence before him.
- The Department of Health’s Care and Support Statutory Guidance made clear that a personal budget should reflect local market conditions. The judge was entitled to accept evidence about local market conditions in the area of D’s home, together with the indication that if those conditions changed the council would be bound to revisit the issue. The court did not consider that it was unlawful for the council to decline to set the personal budget at a level which enabled D to pay more than the local going rate.
- The judge was entitled to find that the council had made provision via the personal budget for D to continue to engage in social activities and that the limited curtailment of D’s personal assistants did not amount to a breach of section 1 of the CA 2014. Further, the court found that the possibility of reduced opportunities of day trips accompanied by his personal assistants was not capable of vitiating the impugned decisions on the grounds of failure to take account of a material consideration or was in any way otherwise Wednesbury unreasonable.
This decision will be of particular interest to local authorities, as this is the first case in which the CA 2014 has been considered in the CoA. It will also be welcomed by authorities because the court has essentially adopted the reasoning of Morris J’s judgment which it described as “meticulous and comprehensive”. The case also provides helpful guidance on the nature of the duty to promote individual well-being in section 1 of the CA 2014.
High Court finds that section 21 duty under NAA 1948 not triggered in ordinary residence case (R (Barking and Dagenham) v Secretary of State for Health)
The High Court has dismissed a judicial review claim concerning a determination by the Secretary of State that the London Borough of Barking and Dagenham (BD) was responsible for funding the care of an individual (HR) as the section 21 duty under the NAA 1948 had not arisen.
HR has autism and a moderate learning disability. Prior to August 2012, he lived with his parents in Redbridge receiving respite care at accommodation in Barking funded by the London Borough of Redbridge (R) under section 29 of the NAA 1948. However, HR preferred to stay at the respite care facility in Barking and at the request of his parents remained there in August 2012. After around eight months, R concluded that it was best for HR to remain at the Barking accommodation under a supported living placement.
BD and R disputed who was responsible for funding HR’s care as BD was not satisfied that he was resident in its borough. This dispute was referred to the Secretary of State who determined that HR had been ordinarily resident in Barking from June or July 2013 and BD was responsible for funding his care. BD judicially reviewed this decision.
The High Court dismissed the appeal holding that the duty under section 21(1)(a) of the NAA 1948 was not triggered and HR was ordinarily resident in Barking during the eight-month interim period and BD was responsible for funding HR’s care.
Local authorities currently dealing with ordinary residence disputes under the NAA 1948 regime are therefore likely to find this decision of interest when assessing who is responsible for funding.
No duty on local authority or CCG to fund mother’s visits to patient detained under MHA 1983 (High Court) (R (CXF (acting by his mother, his litigation friend)) v Central Bedfordshire Council and another)
The High Court has held that the defendants (a local authority and clinical commissioning group) were not required to fund outings for the claimant’s (CXF) mother under section 117 of the Mental Health Act 1983 (MHA 1983) while he was detained in hospital under section 3 of the MHA 1983.
CXF’s mother had judicially reviewed the defendant’s decision to refuse to continue funding her visits and allowing her to take part in her son’s outings from hospital once he had reached the age of 18. She had argued that on such occasions he had “ceased to be detained” and had “left hospital” triggering the duty on the defendants under section 117 of the MHA 1983 to provide after-care services to CXF and therefore to continue o fund her visits.
The High Court dismissed the judicial review application holding that the section 117 duty had not been triggered as CXF had not “left hospital”, simply been granted temporary leave and continued to be detained while on these outings accompanied by two members of hospital staff.
This decision will clarify the position for local authorities and clinical commissioning groups approached for after-care funding provision, in particular when the duty to provide funding under section 117 will be triggered.
COP considers whether family members should act as Part 3A representatives in severe DoL cases (SCC v MSA and another)
The Court of Protection (COP) has considered whether a family member should act as a Rule 3A representative under the Court of Protection Rules 2007 in a case involving significant physical interventions and restraint where an individual (MSA) was deprived of their liberty.
During proceedings relating to MSA’s continued deprivation of liberty, the Official Solicitor had raised the point of whether it would be appropriate for MSA’s mother (JA) to act as his Rule 3A representative (this was a purely academic point as JA did not wish to be appointed) in view of her role in implementing MSA’s restrictive care arrangements which constituted his significant deprivation of liberty.
The COP concluded that in line with earlier case law (NRA and others  EWCOP 59 and Re VE  EWCOP 16) there was no blanket prohibition on friends or family members acting as Rule 3A representatives in such cases but that additional scrutiny should be undertaken in cases where significant deprivation of liberty was involved. The COP also recorded a number of issues which should be considered in other similar cases.
Confirmation that court order not required where there is agreement over treatment withdrawal under Mental Capacity Act 2005 (COP) (M v A Hospital)
The COP has ruled that where there is agreement between clinicians and family members of a patient in a minimally conscious state there is no need to bring legal proceedings before it.
The case concerned M, who suffered from Huntington’s disease (a progressive neurological condition). M’s condition had worsened with time and her mother (Mrs B) had sought an order that it would be in M’s best interests (as required under the Mental Capacity Act 2005) for clinically assisted nutrition and hydration (CANH) to be withdrawn and palliative care to be provided. The application was initially made as a deprivation of liberty application, however, since the application had been made the law had changed meaning that such an application was not necessary.
This ruling has made it clear, that in similar cases, where all parties are in agreement and the relevant clinical guidance has been followed, the decision to withdraw CANH can be made without the need for a court order while still complying with the Mental Capacity Act 2005. However, it has been reported that the Official Solicitor intends to appeal this decision, so it seems that further scrutiny of this area of law is likely.
Observance of religious custom and practice not in best interests of incapacitated adult (COP) (IH (Observance of Muslim Practice))
The COP has held that an incapacitated adult (IH) who had a profound learning disability and functioned intellectually at the developmental level of a one to three year old, should be relieved of the obligation to fast during Ramadan. The court also concluded that it was not in IH’s best interests that his pubic and axillary hair should be trimmed in accordance with Islamic custom for capacitous followers of Islam.
The principles outlined by Mr Justice Cobb for the purpose of determining best interests in the context of Islamic cultural and religious practice and observance, will be relevant for decision-making in other cases involving similar issues, and more generally to local authority adult social care services that have responsibility for Muslim adults who lack capacity.
DECISIONS OF THE LOCAL GOVERNMENT & SOCIAL CARE OMBUDSMAN
Council at fault for placing person needing care package at home in unsuitable care home environment due to lack of available provision (Investigation into a complaint against Lincolnshire County Council (16 007 469))
The Local Government and Social Care Ombudsman (LG&SCO) has upheld a complaint against Lincolnshire County Council (council) which had placed the complainant’s wife (Mrs A) in a dementia unit, even though she did not have dementia.
Mrs A had physical disabilities and received a package of home care delivered by an agency and arranged and funded by the council. Following a successful operation on her hip, Mrs A was discharged from hospital to a dementia unit in a care home outside the county where she remained for ten months, as none of the council’s home care providers had capacity to deliver Mrs A’s home care package when she returned home.
The LG&SCO found that the council was at fault when it allowed Mrs A’s placement in residential care to continue for ten months and for placing her in a dementia unit.
The LG&SCO’s investigation and its comments in relation to the council’s home care commissioning model provide important learning points for councils that change how they commission care and support. In this case, the council had agreed contracts with a smaller number of care providers, each solely responsible for delivering home care in their zone. However the newly contracted provider in Ms A’s area did not have sufficient capacity to meet her care needs.
LG&SCO criticises council for failing to follow proper procedures when banning visitor from care home (Investigation into a complaint against Nottinghamshire County Council (16 009 251))
The LG&SCO has upheld a complaint against Nottinghamshire County Council (council) concerning its decision to ban the complainant from visiting his partner’s mother at the care home where she had been placed by the council.
The LG&SCO decision is a useful reminder of the steps that should be taken by councils and care homes that wish to ban individuals from visiting a care home resident, and the importance of following the advice set out in the Care Quality Commission’s (CQC) good practice guidance Information for people on their visiting rights in care homes (2 November 2016), relevant passages from which are referred to in the LG&SCO’s investigation report.
GUIDANCE AND POLICY STATEMENTS
On 30 October 2017, the Parliamentary Under-Secretary of State for Health, Jackie Doyle-Price, in a written statement to the House of Commons, announced the publication of the government’s interim response to the Law Commission report on mental capacity and the deprivation of liberty.
On 26 October 2017, the CQC launched a consultation on proposed changes to regulatory fees for health and social care providers in England. The CQC has previously increased fees payable by health and social care providers in 2016-17 and 2017-18 for inclusion on the CQC register of providers, to fulfil the government’s commitment to reduce grant-in-aid funding to public regulatory bodies.
On 13 October 2017, the National Audit Office (NAO) published a report on the CQC and its regulation of health and social care. The NAO has previously reported on the CQC in 2011 and 2015, finding that there were issues surrounding its ability to monitor its own performance (among other things).
On 11 October 2017, the government published its response to the Communities and Local Government Select Committee’s report on adult social care.
On 11 October 2017, the Local Government Association published Adult social care funding: State of the nation: October 2017, a report on the funding of adult social care. The report examines the immediate outlook for social care funding and the actions that are required to secure the longer term sustainability of adult social care.
On 10 October 2017, the CQC published a report on the state of health care and adult social care in England 2016-17.
On 3 October 2017, the National Assembly for Wales Finance Committee launched an inquiry into the cost of caring for an ageing population.
On 28 September 2017, Cardiff University published a report on welfare cases in the COP. The report came out of two statistical studies on the COP’s health, welfare and deprivation of liberty jurisdiction; one using the COP’s own case files and the other using freedom of information requests made to local authorities concerning their involvement in COP welfare litigation.
On 22 September 2017, the British Red Cross published its report, Prevention in Action, looking at how the prevention measures in the Care Act 2014 are being implemented and how local authorities are providing preventative services.
On 11 September 2017, the Department of Health published a consultation on proposed changes to the various regulations governing the NHS Standard Contract (Accountable Care Models). These new models of care are intended to promote integrated care service provision (including primary care, community and hospital care, and social care services).
HOUSE OF COMMONS LIBRARY BRIEFING PAPERS
The House of Commons Library has published the following briefing papers:
- Adult Social Care Funding (England).
- Health and Social Care Integration.
- Supporting and safeguarding adults with learning disabilities.
We have published the following blog of interest to adult social care practitioners:
RECENT ASK QUERIES
We have published the following Ask query:
- Do individual carers or people authorised to manage direct payments on behalf of a direct payment recipient have any obligation to register with the Care Quality Commission?