The Challenge of Personalisation: a Legal Perspective

Michael Mandelstam, In Control Conference: Watch out: it’s the law!

Three main challenges

• 1. Potentially radical new social care policy sitting on old law.

• 2. Pressure on resources, staffing, money, time.

• 3. Risk.

1. New policy stuck on to old law• POLICY:

• Putting people first: a shared vision and commitment to the transformation of adult social care. HMG 2007.

• LAC(DH)(2008)1. Transforming social care.• LAC(DH)(2009)1. Transforming social care.• Independence, choice and risk (DH 2007)

• Website: puttingpeoplefirst.org.uk. Various govt. advice on: Resource allocation system (RAS), self-assessment, brokerage

Old law

• LEGISLATION:• NHS and Community Care Act 1990, s47• National Assistance Act 1948, s.21, s.29• Chronically Sick & Disabled Persons Act 1970, s.2• Heath Services and Public Health Act 1968, s.45• NHS Act 2006, schedule 20• Mental Health Act 1983, s.117 (aftercare)

Old/new law

• Health and Social Care Act 2001 (as amended): community care direct payments

• Welfare Reform Act 2009 and: SI 2010/2862: Disabled People’s Right to Control (Pilot Scheme) (England) Regulations 2010 (Supporting People, Independent Living Fund, Access to Work, Disabled Facilities Grants

Why does it matter?

• Lack of detailed Parliamentary scrutiny?• Lack of clarity for local authorities• Lack of clarity for service users• Even for the courts? (R(Broster) v Wirral LBC,

2010)

2. Resources

• Radical new policy being introduced at time of severe cost cutting is not a sought after recipe

• Risk that the new policy and, in particular, the good bits, will be undermined

• Legally the test for decisions in personalisation and personal budgets lies in the old legislation

• This is not always realised

Local authorities containing expenditure

• Local authorities can contain or even reduce expenditure legally but they must do it in the right way

• Route A is lawful: raising the eligibility threshold (fair access to care). And/or meeting people’s eligible need cost effectively

• Route B is unlawful: not meeting people’s assessed, eligible need

Fair access to care

• Critical need/risk independence• Substantial-------------------------------------------------------------• Moderate • Low

• Prioritising need in the context of Putting People First: a whole system approach to eligibility for social care - guidance on eligibility criteria for adult social care, England 2010. Department of Health

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Legal challenges

• R(J) v Islington LBC 2009: RAS type formula used to cut disabled child’s care: need not being met, unlawful

• R(McDonald) v Kensington and Chelsea RB 2010: council meeting assessed need but wishes to do this with incontinence pads adn not a night time carer: council wins case

• R(Savva) v Kensington and Chelsea RB 2010: RAS unsufficiently transparent: unlawful

3. Risk

• Councils to some extent are hamstrung• How far to keep their hands off or on• Acutely aware of underlying old

“paternalistic” legislation, as against potentially radical new ideas

• Also anxious as to how personalisation dovetails with safeguarding

• And the unwise decision of the capacitated but highly vulnerable person

Personalisation: risk, one notion

• “As a general principle, councils should avoid laying down health safety policies for individual direct payment recipients. Individual should accept that they have a responsibility for their own health and safety, including the assessment and management of risk” (Guidance on direct payments for community care, services for carers and children’s services: DH 2009).

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Risk: another notion?

• “However, the local authority remains accountable for proper use of its public funds, and whilst the individual is entitled to live with a degree of risk, the local authority is not obliged to fund it”(Independence, choice and risk. DH, 2007).

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Risk: proportionality

• Proportionality principle relevant to:• Negligence (reasonable standard of care),• Health and safety at work (reasonable

practicability) • Mental capacity (best interests, least

restrictiveness, restraint etc) • Human rights (article 8: justification for

interference by State in people’s lives)

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