Best interests and mental capacity
Nicholas Endean | 04.05.2018
30.04.2018 Nicholas Endean
Investigation by the Local Government & Social Care Ombudsman (“Ombudsman”) into a complaint against Wiltshire County Council (“Council”) - Report number 16 015 946 – (“Wiltshire Complaint”)
In the Wiltshire Complaint, the Ombudsman concluded that the Local Authority in this case failed to meet P’s eligible social care needs because it inflexibly and unlawfully used a Resource Allocation System (“RAS”) to calculate P’s personal budget (the amount of money available to meet an individual’s identified eligible social care needs).
Furthermore the Local Authority had unlawfully applied a cap on a personal budget which meant that P was unable to purchase all the care required to meet his eligible social care needs, in particular with regard to the level of respite care and transport provision required by P.
At Moore Blatch, we regularly act for individuals and their families whom are left frustrated with the care and support planning, and annual review process governed by the Care Act 2014 and associated Statutory Guidance because personal budgets are all to often set at levels that are wholly insufficient to meet need.
The Wiltshire Complaint is a decision which many will welcome because the Ombudsman has reiterated the following fundamental principles contained in Sections 1-31 Care Act 2014.
In relation to the issue of the allocation of resources, when a Local Authority calculates an individual’s personal budget, the Ombudsman highlighted that the Care and Support Statutory Guidance states:
“It is important to have a consistent method for calculating personal budgets that provides an early indication of the appropriate amount to meet the identified needs to be used at the beginning of the planning process. Local Authorities should ensure that the method used for calculating the personal budget produces equitable outcomes to ensure fairness in care and support packages regardless of the environment in which care and support takes place, for example, in a care home, or someone’s own home. Local Authorities should not have arbitrary ceilings to personal budgets that will result in people forced to accept to move into care homes against their will” (Paragraph 11.2, Statutory Guidance).
“There are many variations of systems used to arrive at personal budget amounts, ranging from complex algorithmic-based resource allocation systems (RAS), to more ‘ready-reckoner’ approaches. Complex RAS models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as in the case of deaf-blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS model is being used, Local Authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs” (Paragraph 11.23 Statutory Guidance)
All we can hope is the Ombudsman’s decision in the Wiltshire Complaint serves to remind Local Authorities of the fundamental principles of the Care Act 2014.
Local Authorities have a legal duty to follow the care and support planning process in full. The duty to meet an individual’s eligible social care needs is exactly that. Personal budget allocations cannot lawfully be hindered by the imposition of a personal budget cap. Local Authorities must take a person-centred approach to the personal budget calculation process and ensure that RAS calculation models are altered to ensure that personal budgets are sufficient to meet the eligible needs of those with multiple, complex needs, whom are often left with insufficient provision to meet all of their eligible social care needs.
If you have been effected by the issues raised in this Article, please contact Paula Barnes on 02380 718195.