Key issues in social care Focus on Wales
Julie Burton Julie Burton Law www.julieburtonlaw.co.uk
Change afoot
The law has not changed yet in Wales
England’s Care Act 2014 came into force in England on 1 April 2015
Wales’ Social Services & Wellbeing (Wales) Act 2014 comes into force on 6 April 2016
Consultations on regulations and codes of practice being issued under the SS&WA currently ongoing
Till then, existing law, some very old and some relatively new, applies
2
Current position • • • • • • • • • • • • • •
NHS & Community Care Act 1990 Local Government Act 2000 National Assistance Act 1948 Chronically Sick and Disabled Persons Act 1970 NHS Acts 2006 Health Services and Public Health Act 1968 Mental Health Act 1983 (as amended by MHA 2007) Carers Acts 1995, 2000, 2004 Care Standards Act 2000 and Health and Social Care (Community Health and Standards) Act 2003 Health & Social Care Act 2001 Children Act 1989 Mental Capacity Act 2005 Human Rights Act 1998 Statutory instruments Codes of practice, guidance
•
And so on………..
Problems/issues arising….. in no particular order (and hopelessly subjective)
Rationing
Respite care
Health/social care divide
Charging
Transition
Mental Capacity Act 2005 and decision making
DOLS
People who need support who don’t neatly fit in social care categories
Direct payments for social and also for health care services
Legal aid (it still exists)
So – time for change? Introducing….
The Social Services & Wellbeing Wales Act 2014
Plus
A raft of regulations and codes of practice
All due to hit the ground running in April 2016 So – are we getting any solutions to the problems?
Rationing (austerity cuts?) now
Social care services is based on an assessment of needs; always has been
Hence it is the needs of the person, not the availability of resources, that determines service provision
But only “eligible” needs require a service response – critical and substantial (for children, position has been less clear)
A failure to provide services to meet assessed eligible need is unlawful and challengeable
Any change to service provision must be based on a fresh/updated assessment
Any change to service provision which is not based on a fresh assessment will be unlawful
So the trick is to obtain a proper assessment of needs, which comes to clear conclusions and hence provision decisions
And not to accept cuts unless a fresh assessment shows that needs have reduced
Resources is not your problem; service provision is…..so another trick is to identify the service that will meet needs i.e. have a solution ready to offer
Rationing/cuts in future under SS&WA?
Well, the new SS&W Act sets out very clearly that service provision is to be based on a full assessment of needs
The SS&WA imposes a duty to assess the needs of adults, children and carers
This has to be done having due regard to the wellbeing of the person being assessed
As before only “eligible” needs require a service response
BUT eligible needs are now defined by proposed Regulations and are subject to guidance under Codes of Practice. These introduce the concept of a National Threshold and the “can and can only” test. In essence this introduces a last resort test. Only if social services believe that they are able and have responsibility to provide a service (the “can” element) and then only if the person can show that they cannot achieve wellbeing outcomes merely with the assistance of others such that social services are required to step in (the “can only” element) – then they are eligible. The draft Code states in terms “the adoption of this process will mean that fewer people will require care and support intervention through the planning and delivery of a care and support plan by local authorities”.
There are exceptions to this can and can only test for abuse/neglect cases
Respite care
Seen as a service to the person needing support services, not the carer
Particularly subject to rationing
If it is identified as a need then it must be provided
Biggest problem is finding it when social services say they have nothing to offer….
Respite services under the SS&WA
No significant change save that this is of course subject to the new eligibility criteria…….
Social/health care divide
Health services are free
Health complete a Decision Support Tool to determine who is eligible for health services e.g. when some one is due to be discharged from hospital and/or when requested
Social care services are chargeable according to means of the person receiving the services
Social services have a discretion to charge for social care services except for residential care services for which they must charge
Historically children services have been free but not so in at least one N Wales local authority area, and more may follow
The trick is to ensure that Health regularly consider whether they are responsible – if there is a change in needs for the worse, get a fresh assessment. Know what the criteria are and be prepared to marshal evidence
Charging under the SS&WA
No significant changes
Unlike England, thus far there is no suggestion of a life time cap for social care charging (in England the introduction of this cap has been delayed)
However, the current cap on charges for domiciliary care that exists in Wales but not in England, currently £60 per week, looks set to continue
Transition
The black hole that opens up at about 16 and doesn’t close again until about 20
This is about social services delivery management – where children services and adult services don’t speak and support differently
The trick is to start badgering very early and never stop.
Transition under the SS&WA
Not specifically addressed so don’t expect any changes….eligibility will be key
But as provision for children is specifically dealt with alongside that of adults, the hope may be for more joined up thinking?
Mental Capacity Act and decision making
Parents of children under the age of 18 have parental responsibility for them and are able to make decisions for them (with exceptions for capable young people from about 15 or 16 onwards)
When a young person turns 18, either they make decisions for themselves or, if they lack capacity to do so, decisions must be made for them in their best interests following MCA principles
The difficult thing for parents of learning disabled children or family members with ABI is accepting that others, not they, make decisions from age 18 on
The trick is to know and understand the MCA best interests checklist and be prepared in advance with evidence of what has been done successfully in the past
And to know that where there is a dispute about how to meet needs in the best interests of some one without capacity, the Court of Protection an be asked to decide
NB some young people with marginal capacity to make decisions for themselves may be able to execute a Lasting Power of Attorney
DOLS
Cheshire West case March 2014 – changed the landscape
Where some one is under complete control/supervision of others and is not free to leave, then they are deprived of their liberty
This is only lawful if either they have capacity to consent and they do consent or if due process of law has been followed
At present this means either an authorisation under the existing statutory arrangements (DOLS, part of the MCA) or via an application to the Court of Protection for specific authorisation
The Court of Protection can authorise a dol for a young person aged 16 plus
Changes to DOLS
The SS&WA does not deal with this
BUT
The Law Commission is currently working on proposals for the wholesale repeal of the existing arrangements and their replacement with a completely new scheme
Watch this space – anticipated new arrangements will be in place by 2019
In the mean time, we have to continue to use DOLS/s21A authorisations
People who don’t fit…
Asperger’s syndrome
ADHD
Borderline LD – 71 IQ
CAMHS v children with disabilities service
Parenting courses……….
The duty is to assess and meet eligible needs. But where some one’s needs are not neatly categorised this can be almost impossible
The trick thus far has been persistence and external evidence gathering
The future?
The duty to assess is very clear
Eligibility criteria may pose a hurdle
These do not apply in cases of abuse/neglect
The problem of social services silos has not gone away
Direct payments for health funded care
In England, health personal budgets exist and operate like direct payments only for health funded care
In Wales there is no provision for health funded DP type care
We need it
There is nothing on the agenda
Can we use personal independent user trusts?
Legal aid
There is still LEGAL AID
This is subject to a means and merits test for challenges to social services decision making
In some children cases it is the child’s means that are considered (but for advice and assistance only, i.e. basic level legal aid, it is the parents’ means that determine eligibility)
There is free legal aid to challenge DOLS authorisations
It is a myth that all legal aid has gone. It has not. Just most of it! Use it!
so
Brave new future
Different and new challenges will arise no doubt
Some old problems continue
Watch out for cross border problems
Remember England has a very different scheme to Wales
And most of this doesn’t happen for a few more months any way!!!