LONG TERM CARE FUNDING & SAFEGUARDING ADULTS: Is this a budget I see before me? (with apologies to Macbeth)

By Lawrence Tudin 3rd February 2014

Safeguarding might not be something which we would usually associate with that element of our work relating to long term care funding, such as claiming or challenging decisions regarding Continuing Healthcare (CHC) funding or disputes with Local Authorities regarding, for example, effective assessments. We might generally see this as the province of, for instance, Wills and Powers of Attorney where we need to consider carefully who our client is and whether they have or lack capacity, to ensure that we see the client on their own to advise and take relevant action where we suspect that pressure/undue influence has been brought to bear by third parties, to be aware of the long-standing SFE strategy and the more recent Law Society guidance relating to elder abuse, and to ensure that these practices are transmitted to trainee and junior lawyers with whom we work.

But long term care funding? Yet, if we look carefully, not at the processes, rules and regulations relating to long term care funding and the eligibility for such funding themselves, but rather at how these are implemented, then a different and perhaps startling perspective arises, which might affect, if not what we do and how we do it, but the approach which we take to long term care funding work.

I start with the now apparently generally accepted view that long term care for adults can simply not be afforded and therefore needs to be rationed, arising out of current fiscal conditions (although this appears to have been an argument for the last two or more decades). Indeed, even in the Coughlin case it was stated that provision of a care service “is not an absolute duty to provide, as a comprehensive health care system will never be achieved due to the limits of human and financial resources”. And yet, if we look at the economic position just after the Second World War, when the NHS and welfare provisions were established, there was truly very little money and the national debt was a greater proportion of GDP than it has recently been or is now. So why was a whole care system able to be established then, but cannot properly be funded now? It seems to me that one of the factors, if indeed not the reason, is political will.

If we have a legal look at the question of lack of resources and how this applies to provision of long term care services – both CHC and social care provided by the various health authorities and local authorities respectively, we remember that there was a rash of cases around this issue in the mid- 1990s (when this issue was uncertain following the implementation in 1993 of the NHS&CC Act 1990) such as the Sefton and Gloucestershire cases. More recently, there has been another spate

Page 1 of 6 of cases around this issue, perhaps most notably the Pembrokeshire case (2010) and the Birmingham, Isle of Wight and Sefton (again) cases in 2011.

The 1997 Sefton case made it clear that Councils are not disallowed from taking financial resources into account. It is when and how this occurs that is important:

“Councils are also reminded that they may take their resources into account when drawing up their eligibility criteria against which they assess individuals’ needs, and when deciding which services will be provided to meet those needs. However, this does not mean that councils can take decisions on the basis of resources alone. Once a council has decided it is necessary to provide services to meet the eligible needs of an individual, it is under a duty to provide those services.”

In the Gloucestershire case, it was said of Local Authorities that “…once they have decided that it is necessary to make the arrangements, they are under an absolute duty to make them. It is a duty owed to a specific individual and not a target duty. No term is to be implied that the local authority are obliged to comply with the duty only if they have the revenue to do so. In fact, once under that duty resources do not come into it.” and that:

“The right given to a person….is a right to have the arrangements made which the local authority was satisfied were necessary to meet his needs. The duty only arises if or when the local authority is so satisfied. But when it does arise then it is clear that a shortage of resources will not excuse a failure in performance of duty.”

However, notwithstanding the above, Councils are obviously allowed to look to cost effectiveness - per RV Kirklees ex p Daykin (1998):

“Once needs have been established, then they must be met and cost cannot be an excuse for failing to meet them. The manner in which they are met does not have to be the most expensive. The Council is perfectly entitled to look to see what cheapest way for them to meet the needs which are specified.”

Perhaps most tellingly, in re T (a minor)(1998):

Page 2 of 6 “There remains the suggestion that, given the control which central Government now exercises over local authority spending, the court cannot, or at least should not, require performance of a statutory duty by a local authority which it is unable to afford…My Lords I believe your Lordships should resist this approach to statutory duties.

…The argument is not one of insufficient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power…”

It is therefore clear, and has been from early on, that although public authorities can take resources into account in a limited way, once a duty to provide services is established, then that duty must be fulfilled and those services must be provided, regardless of resources (save that the most expensive manner of provision of services does not need to be provided if there is a cheaper and valid alternative).

Clearly then, if a public authority can show that a cheaper alternative for meeting an assessed care need is available, or that a person is ineligible for receipt of care then (in the latter case) the duty does not arise in the first place or (in the former) the cheaper alternative will enable the authority to meet its duty.

But what if the cheaper alternative does not in fact meet the individual’s needs, and yet is still the alternative applied? Or what if a person is found ineligible for the provision of services, when that person is, or subsequently proves to be, indeed eligible? Is this merely a question of one judgement as opposed to another, or is there ever evidence of public authorities – whether nesciently or deliberately – making decisions which are unlawful because they are based primarily on budgetary considerations?

I set aside those instances where decisions turn on fine questions of law and/or of judgement, and can both be validly made and validly challenged. The Courts will then decide.

What I am referring to are those instances where it is clear, or even blindingly obvious, that the proposed cheaper option for meeting an assessed and determined care need will not in fact meet that assessed/determined care need, or where a person is inappropriately found to be ineligible for a care need, thereby enabling the public authority to evade its duty.

Page 3 of 6 Two brief practical examples from personal experience (of which no doubt everyone reading this will have many of their own):

 Walter (North West) – a war veteran in his 90s, double amputee and wheelchair bound, registered blind, 24-hour oxygen availability requirement because of emphysema, in receipt of 3 1-hour domiciliary care visits per day funded by direct payments. On review of care needs when he developed pneumonia, care need requirement reduced to 1 15-minute visit per day. He died a few months later.

 ABC care home (south Midlands) – highly specialized small care home caring for learning disabled adults with autism and severe challenging behaviour. Extremely successful outcomes – one resident attending college, one selling his painting on e-bay, no recurrent hospital re-admissions as previously. Local authority propose a 5% funding cut, with the threat that if ABC don’t accept, other providers would.

Reverting to Walter a little later, the ABC care home matter was all but resolved when, at a meeting with the Local Authority and after a detailed exposition as to why the outcomes for the residents of the care home represented good value for money by the provision of care which could not be replicated locally elsewhere, one exemplar of which was the absence of repeated hospital admissions which had been a pattern for the residents previously, the head – yes, the Head – at the relevant department quite shockingly stated that “I don’t fund hospitals so I don’t (care)”. QED – this was a budget we saw before us.

With health authorities, there are, if anything, wider opportunities for them to evade responsibility, by both process and by decision.

Unlawful policies as to process are not uncommon. Witness the health authority that, contrary to the National Framework, purports by policy totally to disallow claimants for CHC and/or their family/representatives to be engaged in the assessment and/or decision making process, but purports to meet its National Framework obligations by considering the decision made with them after the event. Or the CCG, through its CSU, which divides the simple Multi-Disciplinary Team (MDT) meeting process into three meetings – an information gathering process (including the claimant/family/representative), the “scoring” process without such presence (i.e. in secret), and a further “feedback” meeting with the claimant/family/representative to explain the decision.

And of course, with regard to evasion of duty by decision making, there are those decisions which are blatantly inappropriate and are often overturned and challenged without much argument, or

Page 4 of 6 which require the obtaining of independent assessment and/or other steps to be taken, at expense and distress to the client, which they often do not wish or are unable to pursue.

These are only the tip of the iceberg. What of all the lay-persons who are not told of their long term care funding rights, such as the right to a CHC assessment on discharge from hospital, and are accordingly not afforded these rights? Or are simply told “You’re not eligible”, and accept this because they are so informed by a person in a white coat or in authority?

So, is there indeed a general attitude abroad, which leads to a pretence that the “best interests of the client/service-user/patient are being taken into account whilst what is really occurring is that the monetary and budgetary best interests of the public authority are really of greater concern. It is not, in all of this, being said that any particular individuals are at fault, but rather that there is a systemic and endemic view of how long term funding decision making by public authorities should be approached. Witness the view of a senior Lord and politician, that it would be unfair to expect the working population to foot the bill for looking after an ageing generation. The implication of this is that certain segments of the population can decide how their tax should be spent and the corollary of this is that it would be unfair to expect those without children to foot the bill for schools, or those who do not drive for roads, or pacifists for wars. None of these would be acceptable, so we have to ask what is the seemingly ageist and discriminatory attitude that allows views such as that above to go unchallenged. It is the same attitude that allows a Local Authority unlawfully to refuse a s47 NHS&CC Act requirement for an assessment to be carried out on the entirely incorrect basis that the referring advocate had no standing to request such assessment, which could only be made by a GP; or which leads lay-persons to be kept in the dark as to their funding rights on discharge from hospital.

As above, the question then is one of whether these incidents occur out of ignorance on the part of public authorities, or from deliberate mis-information or withholding of information. How difficult would it be for a simple leaflet to be given to every, or to every relevant, patient on admission informing them of their rights to claim CHC funding on discharge?

And what if it is the case that there is an awful lot of deliberate, and therefore unlawful, policy- creation (in addition to the above, consider the policy of one Local Authority which requires a financial assessment to be conducted before a care plan, based on a care-needs assessment, is formulated), process-management and decision-making going on within public authorities? For me, merely contesting the outcomes, in the proportionately few cases which come to our attention as lawyers, is not the end of it.

Page 5 of 6 If it is the case that Local and/or Health Authorities are deliberately manipulating the decision- making process and/or are knowingly arriving at a decision, often in the face of evidence to the contrary, that nonetheless fits their own budgetary requirements, is this not more than mere cynicism and disingenuousness, not to say more than mere unlawfulness? If an institution deliberately and knowingly denies a person’s right to funding, thereby withholding or reducing or keeping for themselves from that person such funding/money, for unlawful reasons, is this much different from financial abuse where a private individual withholds or takes from a vulnerable person their money? Where money is deliberately and knowingly kept from vulnerable individuals by institutions in circumstances which are or transpire to be unlawful, is this not then tantamount to institutional financial abuse?

Even if it is, it is unlikely ever to become a ground for challenging a decision. Nonetheless, the stark understanding that it is a budgetarily-driven mind-set that drives many local and health authority decisions, that many decisions are made for budgetary reasons and are therefore likely to be unlawful in one way or another, and that if this is deliberate it is tantamount to institutional financial abuse of the vulnerable individual adversely affected by such unlawful decisions, should lead us as solicitors to be not only more vigilant, more knowledgeable, more perspicacious and more tenacious, but also more passionate about what we are doing, whilst remaining dispassionate and professional in how we go about our work in challenging such decisions if, indeed, “this is a budget I see before me.”

It may ultimately be said that Walter died from lack of care and, accordingly, neglect. In my view, Walter died from institutional financial abuse leading to lack of care and neglect. Walter should not have died and, as lawyers, we must do what we can to ensure, if not that Walter does not happen again, then that Walter happens again as little as possible.

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