ASSESSMENT & PERSONAL BUDGETS

ASSESSMENT & PERSONAL BUDGETS Simon Garlick Ben Hoare Bell Solicitors Email: simongarlick@benhoarebell.co.uk Tel: 0191-275-2640

Prioritising Need Guidance 2010Paragraph 128 ““Transforming social care” describes as an essential component of transformation the “clear, up-front allocation of funding to enable (people) to make informed choices about how best to meet their needs, including their broader health and wellbeing”.

Paragraph 128 (cont’d) To support the delivery of personal budgets, many councils have begun to explore Resource Allocation Systems (RAS) as a way of determining how much money a person should get in their personal budget to meet their needs.”

The law on assessment The duty on the local authority to assess is still that set out in s.47 NHSCCA 1990 which involves: • A duty to assess an individual who may be in need of community care services • A duty to decide whether the individual’s needs call for the provision of services

Community Care (Assessment) Directions 2004 “In assessing the needs of the person under s.47…a local authority must…consult the person…and, where they think it appropriate, consult [the] carers.” The local authority must also “take all reasonable steps to reach agreement” on the community care services which they are considering providing.

R(B) v Cornwall County Council Pure self assessment is unlawful. A local authority “cannot avoid its obligation to assess needs…by failing to make an appropriate assessment of themselves, in favour of simply requiring the service user himself to provide evidence of his needs”.

The political context • Choice and control • Acting preventatively • Dignity • Personalisation– placing individuals “at the heart” of the process

The political context (cont’d) • Budgets contracting – 27% over 4yrs • McDonald v Royal Borough of Kensington & Chelsea

Personal budgets A personal budget is what “the authority considers needs to be spent in order to meet that individual’s eligible needs”. Right to Control (Pilot Scheme) (England) Regulations 2010

Direct payments Health & Social Care Act 2001 s.57 In law a personal budget paid as cash is a direct payment. The duty is to pay “the reasonable cost of securing the provision concerned”.

Resource Allocation Systems (RAS) Prioritising Need Guidance paragraph 130 “Calculating what resources should be made available to individuals should not detract from a council’s duty to determine eligibility following assessment and to meet eligible needs. Rather a RAS should be applied as a means of giving an approximate indication of what it may reasonably cost to meet a person’s particular needs…”

Resource Allocation Systems(RAS) (cont’d) ADASS Guidance – “ball park figure” Case law – “starting point”

Resource Allocation Systems(RAS) (cont’d) RAS have no statutory basis and have attracted criticism R(JL) v Islington LBC 2009 “It is hard to see how a system such as this one, where points are attributed to a standard list of factors, leading to banded relief with a fixed upper limit, can be sufficiently sophisticated to amount to a genuine assessment of …needs.”

Resource Allocation SystemsThe Process • Supported self assessment questionnaire • Adjust for non eligible needs • Adjust for informal care • Total up number of points • Multiply by value per point • = “indicative budget”

Resource Allocation Systems The Process • Developing the support plan • Moderation (adjustment) • Final budget figure

Eligibility Criteria • The supported self assessment questionnaire should record all presenting needs • Not all needs are eligible for services • Eligibility criteria – critical, substantial, moderate, low (Prioritising Needs para 54)

Using the personal budget • Calculating the value of the package is not the same thing as agreeing to direct payments • Direct payments are voluntary • Mix and match

Practical advice in dealing with RAS process • Insist on a face to face assessment • Ask for a carer’s assessment • Provide as much information as possible including medical evidence • Informal care only relevant if carer “able and willing” to provide care

Practical advice in dealing with RAS process Privacy in assessment – the service user and the carer

RAS in the courts • R (Savva) v Royal Borough of Kensington & Chelsea – the local authority should list “the required services and assumed timings…together with the assumed hourly cost” • R (KM) v Cambridgeshire County Council – disagree saying that “the nature of the RAS, which it is legitimate to use as a starting point, does not admit of such a calculation result” – judgment awaited from Supreme Court.

Carers and personalisation: Improving Outcomes (DoH paper Nov 2010) “The personalisation of services and support to promote choice, control and independence for carers, tailoring solutions around the individual and the family.”

Carers and personalisation: Key Principles • Carers as expert care partners • Early intervention and prevention (including the carer’s support) • Making self-directed support processes work for carers

ASSESSMENT & PERSONAL BUDGETS