Practical Law

This is the second 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 November 2015 to January 2016. 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:

• New legislation and guidance.
• Care Act 2014: developments.
• Local Government Ombudsman decisions.
• Deprivation of liberty.
• Mental health.
• Health.

NEW LEGISLATION AND GUIDANCE

Regulation and Inspection of Social Care (Wales) Bill 2015-16 receives Royal Assent

On 18 January 2016, the Regulation and Inspection of Social Care (Wales) Bill 2015-16 received Royal Assent to become the Regulation and Inspection of Social Care (Wales) Act 2016.

The Act:

• Provides for the registration and regulation of those providing care home services, secure accommodation services, residential family centre services, adoption services, fostering services, adult placement services, advocacy services and domiciliary support services. It also provides for the registration, regulation and training of social care workers.
• Amends the Social Services and Well-being (Wales) Act 2014 in connection with the regulation of the social services functions of local authorities.
• Renames the Care Council for Wales as Social Care Wales.

A majority of the provisions of the Act will come into force on a day appointed by the Welsh Ministers.

Welsh Government announces new requirement for domiciliary care workers to be registered from 2020

On 12 November 2015, the Welsh Government announced that, from 2020, all domiciliary care workers must be registered in order to work in the social care sector.

The new registration requirements are set out in the Regulation and Inspection of Social Care (Wales) Act 2016. The Act sets out a comprehensive system for the regulation of the social care workforce. The new arrangements for domiciliary care workers will come into force on 1 April 2017.

A provisional timetable has been set to give the social care sector sufficient time to prepare for implementation of the new requirements. A three-year development programme for domiciliary care workers will start in April 2016, with the register opening in 2018, requiring workers to be registered by April 2020.

The registration requirement will be extended to adult residential workers who will be required to register by 2022. A similar development programme will be established for these workers starting in April 2018, with the register opening in 2020.

Social Services and Well-being (Wales) Act 2014: codes of practice and statutory guidance published

On 21 December 2015, the Welsh Government published several sets of statutory guidance and codes of practice under sections 169 and 145 of the Social Services and Well-being (Wales) Act 2014. Local authorities must act in accordance with the requirements in the codes when exercising their social services functions. Local authorities and Local Health Boards must have regard to the statutory guidance in relation to partnership arrangements under section 166 of the Act.

Care and Support (Charging) Wales Regulations 2015: charging for care and support

The Care and Support (Charging) (Wales) Regulations 2015 were made on 27 October 2015 and will come into force on 6 April 2016.

Section 59 of the Social Services and Well-being (Wales) Act 2014 gives local authorities the power to make a charge for providing or arranging for the provision of care and support to meet a person’s needs.

The regulations:

• Set out the requirements that must be followed when determining the amount of the charges that apply in relation to care and support that a local authority is providing or proposing to provide in connection with its functions under Part 4 of the Act.
• Give local authorities a power to charge for any services that they might provide in carrying out their duty to provide preventative services under section 15 of the Act or their duty to provide assistance under section 17 of the Act.
• Set out the requirements that apply when a local authority makes direct payments to meet a person’s need for care and support.

Care and Support (Deferred Payment) (Wales) Regulations 2015: universal deferred payments

The Care and Support (Deferred Payment) (Wales) Regulations 2015 were made on 27 October 2015 and will come into force on 6 April 2016.  The regulations deal with the entry by local authorities into deferred payment agreements under section 68 of the Social Services and Well-being (Wales) Act 2014 and also:

• Set out when a local authority must enter into a deferred payment agreement with an adult and the conditions associated with doing so.
• State that a local authority must not enter into a deferred payment agreement unless it obtains adequate security for the payment of the required amount. “Adequate security” must be a charge by way of legal mortgage which is at least equal to the amount required plus any interest and administration costs.
• Deal with the time for repayment of the required amount, how a deferred payment agreement can be terminated and the terms and conditions that should be included as part of a deferred payment agreement.

Care and Support (Financial Assessment) (Wales) Regulations 2015: financial assessments

The Care and Support (Financial Assessment) (Wales) Regulations 2015 were made on 27 October 2015 and will come into force on 6 April 2016. They set out the way in which a local authority must carry out a financial assessment of a person’s financial resources for the purpose of charging for care and support under section 59 of the Social Services and Well-being (Wales) Act 2014.

Care and Support (Review of Charging Decisions and Determinations) (Wales) Regulations 2015: review of charging decisions

The Care and Support (Review of Charging Decisions and Determinations) (Wales) Regulations 2015 regulations were made on 27 October 2015 and will come into force on 6 April 2016. The regulations make provision for the review of charging decisions made by a local authority under Part 5 of the Social Services and Well-being Wales Act 2014.

Care and Support (Direct Payments) (Wales) Regulations 2015: direct payments

The Care and Support (Direct Payments) (Wales) Regulations 2015 were made on 21 October 2015 and will come into force on 6 April 2016. These regulations set out the circumstances when a local authority is either required or permitted to make direct payments under Part 4 of the Social Services and Well-being Wales Act 2014 as a way of meeting a person’s needs for care and support.

National Independent Safeguarding Board (Wales) (No 2) Regulations 2015: membership and constitution of the National Independent Safeguarding Board

The National Independent Safeguarding Board (Wales) (No 2) Regulations 2015 were made on 30 October 2015 and will come into force on 25 November 2015. The regulations make provision for the membership and constitution of the National Independent Safeguarding Board (Board) established under section 132 of the Social Services and Well-being Wales Act 2014.

Care and Support (Provision of Health Services) (Wales) Regulations 2015: arrangements for the provision of accommodation together with nursing care

The Care and Support (Provision of Health Services) (Wales) Regulations 2015 were made on 18 November 2015 and will come into force on 6 April 2016. The regulations specify the relevant Local Health Board or clinical commissioning group from whom a local authority in Wales must obtain consent when it is exercising the power in section 47(6) of the Social Services and Well-being Wales Act 2014 to make arrangements for the provision of accommodation together with nursing care by a registered nurse, for an individual. The regulations require local authorities to establish arrangements for resolving disputes between the authority and a health body as to whether a service or facility should be provided under a health enactment, and they also specify the provisions that must be included in those arrangements.

Care and Support (Business Failure) (Wales) Regulations 2015: duty to meet needs in the event of provider failure

The Care and Support (Business Failure) (Wales) Regulations 2015 were made on 18 November 2015 and will come into force on 6 April 2016. The regulations set out the meaning of the term “business failure” for the purposes of the temporary duties under sections 189 to 191 of the Social Services and Well-being Wales Act 2014. The temporary duties require local authorities to meet the care and support needs of adults or support needs of carers, in circumstances where the care provider is no longer able to do so because of business failure. The regulations also list the events that will constitute “business failure”.

Care and Support (Choice of Accommodation) (Wales) Regulations 2015: preferred accommodation

The Care and Support (Choice of Accommodation) (Wales) Regulations 2015 were made on 27 October 2015 and will come into force on 6 April 2016.

The Regulations apply to cases where a local authority is meeting the care and support needs of adults and children through provision of care home accommodation under Part 4 of the Social Services and Well-being (Wales) Act 2014.

The regulations:

• Specify the circumstances in which the obligation to provide or arrange for the person’s preferred accommodation applies and the conditions that must be met in order for the local authority to be required to provide or arrange for the person’s preferred accommodation to be provided.
• Set out the “additional cost condition”. Where the cost of an individual’s preferred accommodation is more than the cost that the local authority would usually expect to incur in providing or arranging for the provision of suitable accommodation of that type to meet the needs of the person concerned, the local authority is not required to provide or arrange for the provision of that accommodation unless the additional cost condition is met.
• Provide that a local authority must give written reasons for a refusal to provide or arrange for the individual’s preferred accommodation.

CARE ACT 2014: DEVELOPMENTS

House of Lords library note published on quality and viability of adult residential care sector

The House of Lords library has published a library note on the quality and viability of the residential care sector in light of the government’s decision to delay implementation on the cap on care costs to April 2020.

The library note includes an overview of:

• Recent developments in relation to the cap on care costs and the extension to means-tested financial support.
• The Care Quality Commission’s most recent analysis on the quality and viability of the residential care sector, in its report The State of Health Care and Adult Social Care in England 2014 – 2015.
• Questions in Parliament since the announcement of the decision to postpone the cap on care costs and related measures, including questions about the impact the postponement will have on patients, residents of care homes and their families and carers, and the quality of adult social care.

Care and support planning process to be completed within a reasonable time (R (D) v Brent Council)

On 9 November 2015 the High Court held that a council had not unreasonably delayed making a decision about suitable accommodation for the claimant (D), or in preparing his care and support plan.

In May 2015, D (a young man with autism spectrum disorder and severe communication difficulties), was assessed by Brent Council as needing suitable care and accommodation when he left his independent specialist school at the end of July 2015.

D’s mother and litigation friend (SA), expressed a preference for residential care, however the council wished to explore the option of supported living for D, but by October 2015 had yet to make a decision about his accommodation.

SA sought permission to apply for judicial review, challenging the council’s failure to:

• Make a decision about D’s placement by July 2015.
• Prepare and review his care and support plan.

The High Court refused permission. Sections 24 and 27 of the Care Act 2014, and section 2(1) of the Chronically Sick and Disabled Persons Act 1970 did not impose a time limit for the decision and care planning process. The Care and Support Statutory Guidance requires that the process should be completed in a timely way envisaging delays may occur. In this case it was clear the council had not acted unlawfully provided the decision was made within a reasonable period of time depending on the circumstances of the case, which included the council’s obligation to consider relevant options for meeting D’s needs.

The decision gives useful guidance on timings when making care and support decisions.

House of Commons Committee of Public Accounts concerned over Care Act 2014 new burdens

On 2 December 2015, the House of Commons Committee of Public Accounts (committee) published a report on the Care Act 2014 first-phase reforms and local government new burdens.

The committee expressed concern that the Department for Communities and Local Government has not been sufficiently open and transparent in identifying and assessing new burdens on local authorities, such as those associated with implementing the Care Act 2014. The Committee has warned that reductions to local government budgets are impacting on councils’ ability to implement the Care Act 2014 in full, with the risk that people will be denied the support they need and existing services will be adversely affected.

The committee recommends that:

• Within the next three months the Department of Health (DH) should specify how it will build on its quarterly monitoring of the Care Act 2014 and be ready to respond quickly and effectively to emerging problems.
• The DH’s planned review of the Care Act 2014 should examine whether local authorities are meeting their statutory duties and assess additional cost pressures. The DH should also develop a plan for implementing the Care Act 2014 Phase 2 (cap on care costs) and report on this to Parliament in this Parliamentary session.

LOCAL GOVERNMENT OMBUDSMAN REPORTS

Local authorities must give clear advice on disability payments

On 20 January 2016, the Local Government Ombudsman (LGO) published a report on a complaint by an adult social care recipient, relating to direct payments she received for home care, required due to a disability. Central Bedfordshire Council was alleged to have been inconsistent about what was covered by direct payments, failing to follow government guidance and increasing the complainant’s contribution without carrying out a financial assessment.

The LGO found that the council:

• Failed to keep adequate records of meetings, the complainant’s care needs assessment and whether the personal budget they had calculated was correct.
• Wrongly failed to deal with the complainant’s non-payment or to inform her of changes to her assessed charge, later backdating the charge she was said to be liable for.
• Did not follow its complaints procedure.

These failings meant that the complainant did not have a support plan that adequately reflected her needs, had not had an accurate assessment since 2010, was likely to have been wrongly charged and had received less care and support than she could have. The LGO therefore held that she had suffered an injustice.

The LGO recommended that the council apologise, confirm it would not seek to reclaim any unpaid contributions and write off any debts it was attempting to recover. It should also arrange for a new care needs assessment to be carried out and a new support plan to be prepared. It should provide a clear explanation of why it does not consider some costs to be disability-related expenditure. It should also pay the complainant £5,000 for her inadequate care and £2,000 for her distress.

The report underlines the importance of providing full information to vulnerable adult social care recipients and of keeping thorough records.

Councils must offer families affordable options when arranging care or nursing home accommodation

On 19 January 2016, the LGO published its report on a complaint against Solihull Metropolitan Council, which had charged a family top-up fees for three years for their father’s nursing home placement.

The council had contacted 13 nursing homes to enquire whether they had any vacancies for the complainant’s father who initially required temporary respite care. Only one of the homes contacted accepted residents at the council’s standard rate, and it did not have any vacancies at that time. This meant that the family only had a choice of more expensive nursing homes. The council informed the complainant that a top-up fee was payable, which she paid and continued to pay when the placement was later made permanent.

A complaint was made to the LGO, which found that the council was wrong to charge a top-up for the duration of the placement and that it should have provided the complainant with information that would have enabled her find a home for her father that accepted the standard rate.

The council was ordered provide a written apology to the complainant, refund the top-up that had been paid and pay £300 in compensation for the time and trouble spent pursuing the complaint.

The decision is a reminder that individuals cannot be asked to pay a top-up towards their accommodation because of market inadequacies and that councils must ensure people have genuine choice of accommodation.

Annual review of adult social care complaints

On 12 November 2015, the LGO published a report reviewing the complaints the LGO has considered during 2014-2015.

In 2014-2015, the LGO received 2,803 complaints about adult social care, representing an increase in 18% on the number of complaints received in the previous year.

The report focuses on specific lessons for residential care and home care, the two areas of social care support that received the most complaints, and makes three main recommendations:

• There should be clear accountability within an organisation for accepting and responding to complaints.
• People should be signposted and given support to make a complaint. Councils should therefore take steps to ensure that information about making a complaint is accessible to individuals and that the role of the LGO is properly explained to them.
• Complaints should be handled positively and people should feel confident that a concern or complaint about their care will be heard, understood and listened to appropriately.

DEPRIVATION OF LIBERTY

Court of Protection overturns previous decision which refused to authorise deprivation of liberty even though no alternative accommodation available (North Yorkshire County Council and another v MAG and another)

The Court of Protection (CoP) has allowed an appeal against a previous decision by it, which had refused to authorise a deprivation of liberty (DoL) in respect of an individual (MAG) even though there was no suitable alternative accommodation available to him at that time.

The CoP allowed the appeals against its previous decision by a local authority and clinical commissioning group holding that the original judge had failed to ask the correct questions when considering MAG’s situation. That is, firstly, whether it was in his best interests to live in the property recognising that there was no alternative available offering a lesser degree of restriction, and secondly, whether the accommodation was so unsuitable as to be unlawful breaching MAG’s rights under Article 5 of the ECHR. If these questions had been asked it was likely that the DoL authorisation would have been granted as the judge would have answered the first question in the affirmative and the second question in the negative.

Department of Health responds to Law Commission consultation on mental capacity and DoLS

On 11 December 2015, the Department of Health (DH) published its response to the Law Commission’s consultation on mental capacity and deprivation of liberty.

The DH raised a number of concerns in relation to the Law Commission’s proposals stating that some were “unnecessarily complex”. Areas of particular concern included the Law Commission’s proposals:

• For automatic tribunal referrals. The DH stated that it could prove problematic for tribunals to mirror the existing judicial referral process and could result in an increased cost, which could be better spent elsewhere in the health and care system.
• To introduce a formal legal process to appoint a “supporter” to assist with decision-making. The DH felt that this was overly legalistic and could overlap with existing systems (such as advocacy schemes).
• To introduce new legislation to ensure existing legislation relating to supportive care was properly implemented.

The DH has confirmed however, that it will not be making legislative decisions without having seen the Law Commission’s final recommendations and a summary of the responses to the consultation.

Care Quality Commission reports concern over number of unauthorised deprivations of liberty in care homes and hospitals

On 8 December 2015, the Care Quality Commission (CQC) published its sixth annual report monitoring implementation of the deprivation of liberty safeguards (DoLS) in the Mental Capacity Act 2005 (MCA 2005), in which it outlines concerns over the number of unauthorised deprivations of liberty in care homes and hospitals.

The report states that, since the Supreme Court judgment in P v Cheshire West and Cheshire Council [2014] UKSC 1, applications under the DoLS scheme have increased from 13,715 in the year ending March 2014, to 137, 540 by March 2015, and a backlog of applications received by local authorities has reached 56,835 applications where the outcome was not decided by March 2015.

The CQC expressed particular concern at reports that some local authorities are advising providers to delay, stagger or minimise applications, thereby increasing the likelihood of persons being unlawfully deprived of their liberty.

The CQC made a number of recommendations in its report including that:

• Providers must take action to meet the requirements of the MCA 2005 and its codes of practice, including that for the DoLS scheme.
• Providers are to ensure they have clear policies and procedures relating to the DoLS scheme.
• Local authorities must not advise providers to delay or inappropriately minimise their applications under DoLS.

MENTAL HEALTH

Welsh Government signs concordat to improve care and support for people in mental health crisis

On 10 December 2015, the Welsh Government, police, NHS, councils and other agencies signed an agreement to improve the system of care and support for people in a mental health crisis.

The Crisis Care Concordat for Wales commits the organisations that have signed up to it to work together to intervene early and, if possible, to reduce the likelihood of people posing a risk to themselves or others as a result of a mental health condition.

A key part of the approach is to substantially decrease the use of police custody for the purpose of detaining people with mental health conditions. People suspected to have mental health issues and who are detained under the Mental Health Act 1983 (MHA 1983), should be assessed within three hours and should not be held in police custody for longer than 12 hours. Young people under 18 who experience a mental health crisis should never be held in police custody, save in exceptional circumstances.

Care Quality Commission reports inconsistent application of Mental Health Act 1983 and code of practice

On 10 December 2015, the Care Quality Commission (CQC) published its annual report monitoring how providers are applying the safeguards in the Mental Health Act 1983 (MHA 1983) and the standards and guiding principles in the MHA 1983 Code of Practice (code of practice).

The report concludes that application of the MHA 1983 and the code of practice continues to vary and that this is having a direct impact on the quality and safety of services that patients receive. The CQC found that there was a lack of support available to help patients to be involved in their care and treatment and insufficient access to advocacy. The report recommends that mental health services should:

• Ensure staff have the skills and knowledge to understand the safeguards provided by the MHA 1983, and their role in helping patients to be involved in decisions about their care and recovery.
• Review local governance frameworks to ensure services have the necessary information and data on the way that the MHA 1983 and the code of practice are being applied.
• Use the findings in the report to reflect on local practice and make improvements

HEALTH

Public can publish reviews of care homes on NHS website

The NHS website has been updated to include information about the performance of every care home in England. Care homes have been added to the NHS Choices site, which lists performance data for each one, including its level of safety, staff turnover and food hygiene standards.

Publishing the data is intended to enable comparison between different care homes and the public monitoring of homes’ performance. Users will also be able to leave ratings of between one and five stars and reviews to help other members of the public assess the services provided by care homes.

Healthcare devolution agreement signed and accompanying pilots launched across London

On 15 December 2015, the Department of Health (DH) and HM Treasury announced that it had signed a health devolution agreement, which will devolve healthcare to local leaders in London (including local authorities, clinical commissioning groups, the Greater London Authority and NHS bodies).

The agreement will include a number of devolution pilots across London including:

• The London Borough of Hackney will be running a health and social care integration pilot, integrating heath and social care budgets and the joint provision of services.
• The London Borough of Haringey will be running a pilot looking at how existing flexibilities in planning and licensing powers can be used to develop new approaches to public health issues.

Those involved have also agreed to look at the NHS estate in London.