The unlawfulness of Bristol's proposed Fair & Affordable policy

A key part of the campaign against Bristol Council’s proposal to cease supporting people to live at home if the cost is greater than residential care was distinguished legal opinion. Two barristers from Doughty Street Chambers very generously gave their time free of charge. They said the Council’s proposal was unlawful. 

However, we question the two assertions upon which their opinion rests. 

The first assertion is that a person’s wishes, in this case to remain at home, is ‘central’ to a Care Act assessment. In their view this means the extent it elevates a person’s wish to become an ‘eligible’ need and therefore a legal duty to meet. But we don't think the Care Act actually goes that far, it merely says a council needs to ‘have regard’ to the person’s wishes. They can do so to the extent they choose, which they do in the context of it being only needs, not wishes, that determine resource allocation decisions. Therefore wishes hold minimal power under the law.

The second assertion is that denying a person the resources they require for Independent Living is a breach of their rights under Article 19 of the United Nations Convention on the Rights of Disabled Persons. But the UN is clear that the resources for Independent Living are social, economic and cultural rights. The resources required to meet this category of rights are subject to progressive realisation through political decision making (see article 4(2)). Member States are not legally obliged to provide the resources at the point of need, but to work toward having sufficiency of resources.

This should look much like the NHS, where waiting lists demonstrate in real time the gap between needs and resources and it is only through political will that wait times can be reduced and a greater number of needs met. It is not left down to the individual to fight the system alone, the transparency of unmet need in the NHS creates communal public pressure. The opposite is the case in social care.

If there is ever a judicial review in social care, the Council’s lawyers would almost certainly win the argument. This is particularly so given the long history of courts reluctance to get involved in what they see as legitimately the responsibility of the democratic decision making processes.

All that having been said, the Campaign is, however, very clear that Bristol’s proposal is indeed in breach of the Care Act. But we believe that to be so for very different reasons. 

What follows is our own submission to the Council’s consultation process setting out why we believe their proposal was unlawful. 

The issue is far more important than merely academic and goes far beyond halting what was a deeply flawed strategy by Bristol. The correct interpretation of the Care Act is fundamental to a new and better future for social care rooted in the vision the Care Act has made possible but has not yet realised.

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THE UNLAWFULNESS OF BRISTOL CITY COUNCIL’S PROPOSED ‘FAIR AND AFFORDABLE’ POLICY

Campaign for Real Care

The Campaign is indebted to Joe Lawton, solicitor at Lawstop, for his support in developing this statement.

Bristol City Council’s proposal, whereby if a care package to remain at home would ‘exceed the affordability of residential care’ to ‘consider residential or nursing home placement’, would require three breaches of the Care Act 2014 and failure to deliver a fourth:

1. Restriction of what is considered a need calling for care and support in breach of section 9(4). 

2. Misapplication of the term cost-effectiveness as defined by paragraph 27 of the Statutory Guidance (see parts 3.7, 3.8(1st), 3.8(2nd), 3.12).

3. Failure to treat the person as best judge of their own wellbeing in breach of section 1(3)(a).

4. Failure to deliver the requirement to know the current level of demand (section 5(2)) and plan for sufficient amount of service to meet all need (section 5(3)).

Restriction of what is assessed as a need calling for care and support in breach of section 9(4) 

Section 9(4) of the Care Act creates a specific legal duty for all needs for care and support to be identified in the context of the nine areas of wellbeing as set out in section 1(2) of the Act:

‘A needs assessment must include an assessment of the impact of the adult’s needs for care and support on the matters specified in section 1(2)’.

The position was confirmed in the Davey v Oxfordshire judgment:

‘….if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on wellbeing matters set out in s.1(2)) then there is a breach of the statutory duty. There is, thus, a duty on the part of the local authority to assess these factors’.*

*Oxfordshire’s success in satisfying the Court it had met 9(4), despite making a 40% cut to Davey’s support which Davey contended was financially driven, rested on the Court accepting that it was the social worker’s professional judgement that the 40% lower level of support would better meet all his needs for wellbeing with the higher level of support being detrimental to his wellbeing.

Also, R (JF) v LB Merton [2017] EWHC 1519 (Admin), in which the claimant was successful:

‘In my judgment the Needs Assessment must specify what JF’s needs are and it must do so on a rational basis. If the Assessment failed to assess the impact of JF’s needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act, then it is an unlawful assessment. Likewise, if it failed to assess the outcomes that JF’s wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful. If it fails to have regard to the matters specified in Regulation 3(2) as set out in paragraph 30 above, it is unlawful. If the author failed to have regard to the wishes and preferences of the individual (expressed here to a degree by the Guardians, his parents), then it is unlawful. If it is neither appropriate nor proportionate then it is unlawful.’

Bristol’s proposal rests on the view that to live in the place the person would regard as their home is merely a preference, or wish, not a need:

‘3.7 … ‘In some cases this might mean that the service offered by the council will not be the one preferred by the individual with eligible needs’.

A person’s section 9(4) assessment, considered alongside their wishes, could conceivably make residential care appropriate. It is more conceivable that it is the preference of all those currently supported at home at a cost above residential care to remain in their own home. However, a preference, or wish, for something does not preclude that something also being a need for wellbeing, and perhaps of the most fundamental order. Thus, we all wish to live, we all wish not to be cold or hungry. 

• Few would dispute that to live in the place we regard as our home is what we would wish because it meets needs fundamental to our wellbeing. 

• The wellbeing areas in 1(2) clearly embraces that view.  The nine areas of wellbeing include:

• Living somewhere suitable.

• Personal dignity.

• Mental health and emotional wellbeing.

• Having control over day-to-day life (including over care and support and the way in which it is provided. 

• Contribution to society.

Any one or all of these areas of wellbeing may require the individual to live in the place they call home.

Indeed, Bristol currently concurs with this view. Local authorities only have authority under the Care Act to spend public money on what they deem to be ‘need’. They have no authority to spend public money on ‘wishes’ or ‘preferences’. The fact that Bristol currently commits resources to enable people to live in their own home means, de facto, they agree these resources are being used to meet needs under the Act. The proposed Fair and Affordable Care Policy would reclassify these needs as being mere preferences, and therefore would cease to make a demand on the Council’s resources under the Care Act.

The only justification offered for this reclassification is financial, which section 9(4) does not allow.

Misapplication of the term ‘cost-effective’

Making cost-effective use of public money is key to the Council’s proposed policy. 

The Council correctly takes its meaning of cost-effectiveness from paragraph 10.27 of the Statutory Guidance to the Care Act.  However, the Council quotes only one part of 10.27. The Equality Impact Assessment that justifies the policy notes:

‘Paragraph 10.27 of the statutory guidance states that local authorities may take into reasonable consideration its own finances and budgetary position’.

This is a highly selective quote. It fails to include the full paragraph, which goes on to qualify the extent to which councils may take its resources into account:

‘The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value’.

This makes it clear that cost-effectiveness cannot compromise the outcomes to be achieved. Both cost and outcomes must be weighed. This is not reflected in the proposed policy at all.  

If a person who is capable of remaining in their own home, and so wishes, is removed to institutional care, there will almost certainly be a major loss of ‘outcomes desired’ by the person. 

The Council’s claim to be applying paragraph 10.27 can only correctly rest upon the ‘outcomes desired’ being those desired by the Council, not the person. Outcomes are determined by the needs to be met. The ‘outcomes desired’ by the Council will have been determined following the breach of 9(4) to restrict ‘need’ to the more basic needs that characterise the ten eligibility outcomes in the Regulations rather than the nine wellbeing areas.

The truncated version of paragraph 10.27 of the Statutory Guidance to define cost-effectiveness allows cost-effectiveness to be used as a smokescreen for what is in effect cost cutting behaviour by unlawfully cutting the range of what the Council considers to be need. 

Failure to assume the person is the best judge of their own wellbeing

Section 1(3)(a) of the Act requires councils to have regard to:

‘… the assumption that the individual is best-placed to judge the individual’s well-being’

This is qualitatively different from the person’s wishes. These are addressed in 1(3)(b). A judgement about one’s wellbeing, as distinct from what one wishes for, requires the person to have weighed their needs. Whilst not giving absolute power to the individual to the extent the Council must accept the person’s judgement, it is an important legal provision that gives substance to the policy rhetoric about the importance of empowerment of the individual through their assessment. 1(3)(a) would require the Council, if it disagreed with the person’s own judgement about their wellbeing needs, to set out the reasons for disagreeing. Financial reasons alone would not be allowed by the Act.

Bristol’s proposed policy addresses only 1(3)(b) and disregards 1(3)(a).

Final thought

Councils have to conduct an ‘Equality Impact Assessment’ on any new policy they wish to introduce that may have an impact on equalities and discrimination. Bristols’ assessment in relation to this policy states;

‘the policy only formalises how adult social care staff can and should already practice’.

The above critique therefore applies not only to the proposed policy, but potentially to the Council’s entire modus operandi.