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NHS continuing healthcare and adult social care blog | August 2022 review

This month, Kirstie Lennox provides a round up of news which includes consultations on how the charging reforms in relation to the cap on care costs would operate in practice and proposed changes to the Mental Capacity Act 2005 Code of Practice as well as Ombudsman and Court of Appeal decisions.
  • The department of Health and Social Care have produced a consultation on statutory guidance which would implement a lifetime cap on care costs. On 7 September 2021 the Prime Minister announced that from October 2023, the government will introduce a new £86,000 cap on the amount anyone in England will need to spend on their personal care over their lifetime. The reform will improve how social care in England is paid for and what care users should contribute. The result is what the government believes is a credible, deliverable and sustainable new charging system.

This consultation seeks views on the statutory guidance that sets out how the charging reforms would operate in practice, subject to Parliamentary approval.  To read the full article, click here.

  • The joint consultation on proposed changes to the Mental Capacity Act 2005 Code of Practice from the Department of Health and Social Care and the Ministry of Justice closed on 14 July. The draft Code of Practice  emphasises 'granularity' in how to think about capacity assessment, tackling in more detail some of the problems that have been identified in practice, such as fluctuating capacity and so-called 'executive dysfunction'. It also provides clearer guidance about the role of wishes and feelings, beliefs and values in the making of best-interests decisions in light of the extensive body of case-law determined under the MCA 2005. This article explores the responses of professional bodies to the consultation.  For more information, click here.
  • A care home wrongly prevented a daughter from visiting her mother for almost two months during a COVID outbreak, the Local Government and Social Care Ombudsman has found. The findings came after a daughter, referred to as Ms Z, complained she had been denied access to her mother, referred to as Mrs X, at Sunrise of Esher care home between 12 March and 2 May in 2021 despite being granted essential care giver status. In his findings, the Ombudsman said the care home had been wrong to prevent Ms Z from visiting her mother even when there was an active outbreak given her essential care giver status and instructed the provider to apologise. To read the full article, please click here.
  • The Court of Appeal ruled that a council wrongly stopped funding family holidays for two disabled brothers by adopting a “restrictive and wrong” interpretation of the Care Act 2014. The council, which had financed the holidays since 2013 for the brothers, made the decision on the basis that it no longer included holiday travel and accommodation in personal budgets because they did not constitute care and support needs. It also found that the men’s mother, SQ, was meeting all of their eligible needs, so there was no requirement for the council to provide any funding. Lady Justice Nicola Davies agreed with the High Court that the decision was based on a “restrictive and incorrect interpretation” of needs under the Care Act. Her judgment, with which fellow judges Lord Justice Phillips and Lord Justice Baker agreed, quashes Suffolk’s November 2020 decision to end the brothers’ direct payments.

In response to the ruling, a spokesperson for Suffolk County Council said: “The Care Act remains a relatively new piece of legislation and these proceedings were pursued with the aim of securing clarity as to how the Act should be interpreted and applied. Whilst we accept this judgment, we are disappointed. Suffolk County Council remains committed to properly, and fairly, assessing needs to ensure that our limited resources are used to support our residents in a way that is fair. We will carefully consider this judgment and ensure that our practice guidance is updated to reflect this outcome.”  For more information, click here.

  • Stockport Council has launched an urgent review into cuts it made to people’s direct payments after a legal challenge forced a “complete U-turn” in one woman’s case. The reversals came after a disabled woman’s family challenged the authority’s decision to cut her direct payment last year. The reduction was on the grounds that the woman – who is autistic and has learning disabilities – was no longer permitted to use it to visit relatives at the weekend. This removed the woman’s ability to have contact with her family at weekends and had a devastating impact on the woman’s quality of life. Following the legal challenge, the council reversed its decisions, reinstating the woman’s previous level of direct payments.  To read the full article, click here.
  • Heads of local councils have urged the Government to delay the implementation of its social care reforms to avoid making pressures on services worse. The Local Government Association has written to health and social care secretary Steve Barclay urging a six-month delay – to April 2024 – to the introduction of the cap on care costs, more generous means-test for care and arrangements enabling self-funders to access care at council rates.

It also called for ministers to delay by at least 12 months the reintroduction of Care Quality Commission assessments of local authority adults’ services, due to come into force in April 2023 at the earliest. The LGA said there would otherwise be a risk of councils being “set up to fail”.  For the full article, click here.

  • The Local Government and Social Care Ombudsman has criticised Liverpool City Council for not ensuring two teenage siblings with significant needs were provided with the support they should have received  for 18 months. The boys’ mother requested a personal budget from the local authority  so she could source her own care support for the siblings. However, instead of the council giving the mother the £25 per hour it was prepared to pay its provider, it only allowed her to pay £8.21 per hour. She found this amount insufficient to commission the special support the siblings needed. Following the Ombudsman’s involvement, the council has agreed to apologise to the mother and pay her £7,200 to acknowledge the missed support and distress caused to her children and a further £1,000 to acknowledge the distress and uncertainty caused.  For further details, please click here.
  • The Law Society have expressed concerns at the replacement of the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS) and fears that without substantial changes, this will result in weakened safeguards for vulnerable people. The Law Society’s response to the Government consultation on changes to the Mental Capacity Act 2005 code of practice made clear that the code must uphold the rule of law by ensuring the scenarios used to explain how a DoL is defined are legally correct - if the Government wishes to change the definition of how a DoL is defined, this should be attempted through legislation “with an opportunity for robust scrutiny of the proposed changes”.  To read the full article, please click here.
  • The latest figures carried out by the Association of Directors of Adult Social Services (ADASS) shows that almost 300,000 people are now waiting for an assessment of their needs by social workers, an increase of 90,000 (44 per cent) in five months. One in four has been waiting longer than six months. At this rate of increase, the number waiting will hit 400,000 by November, double the total 12 months previously. Sarah McClinton, ADASS President, said: “These new findings confirm our worst fears for adult social care. The picture is deteriorating rapidly and people in need of care and support to enable them to live full and independent lives are being left in uncertainty, dependency and pain."  To read the full article, please click here.



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