Feature

posted 14 Jun 2004 in Volume 9 Issue 4

Public law developments: Summary and update

Lynne Bradey, a solicitor at Wrigleys, examines recent guidance on choice of accommodation and top-up payments, and The Community Care (Delayed Discharges etc.) Act 2003.

Part one: Choice of accommodation and top-up payments

In Autumn 2003, the Department of Health issued guidance notes on the combined effect of The National Assistance Act (Choice of Accommodation) Directions 1992 and The National Assistance (Residential Accommodation)( (Additional Payments and Assessment of Resources) (Amendment) (England) Regulations 2001. Brackets were in fashion back in 2001.

The guidance (www.doh.gov.uk/directiononchoice/naactguidance.PDF) sets out what is and is not allowed in terms of ‘topping up’ care-home fees, where the resident or her family can pay the cost of the resident staying in a more expensive care home than she would otherwise have been offered.

I will refer to the resident as ‘she’ in this article, both because the majority of care-home residents are female and to avoid further unnecessary punctuation.

The purpose of the directions and the regulations was to provide the resident with the opportunity to obtain and even, it is submitted, enforce choice. The guidance provides that: “Even where not required to act in a certain way by the directions or the regulations, councils should make all reasonable efforts to maximise choice as far as possible within available resources and the law.”

Councils should, therefore, take account of the spirit of the regulations as well as the letter. Spirit can, however, be difficult to pin down, let alone enforce. It is naturally ethereal. To the elder-care adviser, it can sometimes seem as hard as plaiting soot.

The guidance covers permanent and temporary placements, including respite placements, made by local authorities under S21 of the National Assistance Act 1948 in residential and nursing homes and in other settings.

Preferred accommodation

If a person expresses a preference for particular accommodation, the council must arrange it as long as:

It is suitable in relation to the resident’s assessed needs. Just because it meets registration standards or the requirements of a council’s policy that does not mean it will automatically be suitable for that particular person, and even if it does not meet those standards, it may still be suitable. The council should, however, not place people in care homes that do not meet the legal requirements for providing care under the Care Standards Act 2000 (so far as it is actually in force) and any other relevant law;
It would not cost the council more than it would expect to pay for a placement for someone with those needs. This should be a figure (the ‘contract’ or ‘standard’ rate) set by the council for a planning period or altered in response to significant changes in the cost of providing care. The council should set different figures for different groups of people, if the cost of providing care for them is different. Respite care may be more expensive than long-term care, and caring for someone with special needs may cost even more. The cost ceiling should be set as if the possibility of top ups did not exist. If the resident did not ask for more expensive accommodation, but that was all that was available, the council should make up the difference themselves, and not charge this back to the resident. The practical ‘requirement’ of top ups in some areas with limited care beds remains unlawful but can prove hard to challenge in individual cases;
The accommodation is available and the person in charge is willing to provide a place there subject to the council’s normal terms and conditions. Councils should make sure that a person waiting for a place in a home is cared for in the interim. The Community Care (Delayed Discharges etc.) Act 2003 will probably mean that it is not attractive to provide this care in hospital anymore. A resident should not pay more for their temporary care than that which they have been assessed to pay for the permanent care they are waiting for.

If a council decides not to arrange a place for someone in their preferred accommodation, it must have a “clear and reasonable justification for that decision, which relates to the criteria of the directions and is not in breach of the regulations”. The council should make “reasonable efforts to take account of the individual’s desires and preferences” and make sure the prospective resident, their family and carers realise the consequences of failing to come to an agreement. If the prospective resident or carers unreasonably refuse to come to an agreement, the council is entitled to consider that it has fulfilled its statutory duty to assess and offer services and can tell the person to make their own arrangements. What is or is not ‘reasonable’ is a factual one in each case. It is clear from cases examined and referred to ECA readers that many local authorities simply ignore individual wishes as to whether or not a particular care bed is desired. There often appears to be a confusion of policy, politics and vested interests at play in making the final placement decision. This is not only unsatisfactory, it is unlawful.

It is important to note that the preferred accommodation does not have to be within the geographical boundaries of the funding council. It does, however, need to be within England and Wales, as special rules apply to Scotland. The council is allowed to use the usual costs in their own area rather than the area the resident is placed in to decide whether to fund a place in particular accommodation, but if it is necessary for the patient’s assessed needs to be placed in another area, the council cannot do that and must meet the additional cost itself.

For example, if I live in Hastings, but decide that I would like to be in care in Llangollen in Wales because I like the scenery, steam trains and restaurants, Hastings Council can use Hastings care fees as their usual cost. If, however, my assessed needs require me to have specialist treatment only available in Llangollen and not in Hastings, or even require me to be near my family who, say, live in Wrexham, Hastings cannot refuse to fund me on the basis that the home costs are more than they would be in Hastings.

More expensive accommodation

Sometimes a person may decide not to enter accommodation offered by the council and may choose accommodation that costs more than the council is prepared to pay. In these circumstances, it is possible for the resident, relatives or friends to ‘top up’.

The top up should be the difference between what the council would expect to pay and the actual fees. The only way a resident may top up their own care fees is if they are subject to the 12-week property disregard, that is, during the first 12 weeks of permanent care when they own a property but the other capital they have is less than £19,500, or when they have agreed deferred payments with the council, usually when they are selling their home and the money is not available to them yet. The resident cannot lawfully top up in any other circumstances.

A third party can top up without these restrictions. The third party could be a relative, friend, trust or even a charitably inclined solicitor (it has happened within living memory) as long as they are able and willing to pay. They cannot be a liable relative already making maintenance contributions under S42 of the National Assistance Act, although this is likely to change at some point in 2004. The council must be satisfied that the third party will be able to top up for the duration of the arrangements, or if the top up is being set against the value of the home to be sold, that there is sufficient value to allow this to continue. The council also needs to set out the consequences of the top up not being paid, which will normally be that the resident will be moved.

They also need to make it clear that a rise in the resident’s income will not always reduce the amount of the top up because of the effect of means testing and that if the fees rise, this might not be in line with the council’s agreed costs and the top up may rise by more than half of the difference.

It is important to remember that the council remains responsible for the whole of the fees with the third-party top up being treated as part of the resident’s income, even if all parties agree that the third party should pay the home direct rather than the council.

Summary

The key aspect of the regulations and directions is the idea of increasing a resident’s choice both in placement in care charged at council rates and in more expensive accommodation. It is hoped that ECA readers will be able to apply suitable pressure on any recalcitrant local authorities. Cases that may be of interest to other readers may be referred to the ECA editor subject to normal confidentiality requirements.

Part two: The Community Care (Delayed Discharges etc.) Act

Outline of the Act

The Department of Health has issued guidance on the impact of this Act, which has been with us in ‘shadow form’ since 1 October 2003 and which came into full force on 5 January 2004.

The basic aim of the Act is to make sure that people who should be in community care rather than in hospital are moved there as promptly as possible, both for their own benefit and that of other patients waiting for beds. Financial penalties are imposed on local authorities that fail to comply, effectively meaning that they are purchasing the care from the NHS. As the reader would expect, the cost of this is set higher than the normal cost to the local authority for caring for the person outside hospital. There is, therefore, a significant incentive for the local authority to arrange placements sooner and reduce ‘bed blocking’.

The financial-penalty scheme is based on a Scandinavian model, which has been very successful in reducing delayed discharges. The government has committed £50m this year and £100m per year for the next two years to support the development of services to tackle delayed transfers.

The provisions of the Act relating to reimbursement only apply in England, although the National Assembly for Wales can decide to implement them in Wales. Until this is done, the charges will only apply to patients in hospital in England who are ordinarily resident in England. There is no provision currently for Scotland or Northern Ireland.

The aim of this article is to provide a basic guide to the Act and deal with the main points without becoming bogged down in the minute detail. Full guidance can be found in Health Service Circular/Local Authority Circular HSC2003/009 : LAC (2003)21. There is also a helpful ‘frequently asked questions’ at www.doh.gov.uk/reimbursement/qanda.htm.

Who does the Act apply to?

In short, the Act applies to adults who require acute medical care, who are ready to be discharged from hospital and need community-care services. This does not include people paying privately for their hospital treatment but does include patients being funded by the NHS in private hospitals. There are exceptions for some types of treatment.

Acute medical care is defined as: “Intensive medical treatment provided by or under the supervision of a consultant, which is for a limited time after which the patient no longer benefits from that treatment.”

This important definition does not include maternity, mental health, palliative care, intermediate care or care provided for recuperation/rehabilitation. These areas will not be included unless parliament decides to extend the scope of the Act. The Act not only applies to emergency admissions, but also to surgical patients and patients undergoing elective treatment.

The Act applies to patients from the age of 18 upwards, not only to the elderly, who are usually mentioned in connection with bed-blocking issues.

Just because a person is not on an acute ward, for example, because there is no space on one, this does not mean they cannot be receiving acute care. The assessment is based on the patient and their treatment, not on whether they are in ward H1 rather than B2.

Even if a patient is waiting for another type of treatment later, they should not be excluded. The example given in the guidance is that of a person suffering from dementia who is admitted for treatment for a broken hip. If the council cannot provide that person with support to leave hospital in the meantime, the charges apply. If, however, the patient is under the care of a consultant psychiatrist, other than for an initial check, they would be classed as receiving mental health care and the Act would not apply.

The guidance states that even if a person is receiving treatment in a category to which delay charges do not apply, their assessment and placement should still be timely and appropriate.

The author can see there is scope for some figure juggling in the application of the Act.

Communication and notices

The NHS should inform the local authority’s social services department that a person in their care is likely to need community care and should give a proposed discharge date. This should have been done since 1 October 2003. This is called the ‘assessment notification’ and can be issued up to eight days before admission if it is known that the patient will require care on discharge. It must be written, but the information contained can be minimal. The NHS should send this to the council for the area in which the patient is ordinarily resident, or if the patient is of no fixed abode, the council covering the postcode from where the admission was made. The council can tell the NHS body that it thinks another council is responsible but if the NHS does not agree, the council must proceed anyway.

Social services then have two days or until the intended discharge date if later, to assess the patient and their carer if appropriate and another day to provide the services required. If the assessment notice is served after 2pm, it is treated as being served on the next non-excluded day (excluded days are Sundays and public holidays). That will change in March 2005 as the NHS and social services should be moving more towards seven- day/24-hour operation by then. Once a delay has started, Sundays and public holidays are charged in the same way as other days. Charging does not start until 11am on the first day of delay.

The NHS must also tell the patient and carers and social services of the actual discharge date when this is known. This is a discharge notification. Social services must know by 5pm on the day before discharge on a Tuesday to Friday, and 2pm on Friday, if the discharge is Saturday. Presumably the deadline for notifying a Monday discharge is also 2pm Friday, although Mondays are not specifically dealt with. Services should be provided by the day after the discharge notification.

Both the assessment and discharge notices must be in place and the time limits breached before delay charging can start.

If there is a dispute about NHS continuing care and why the patient is not eligible for this, the clock cannot start ticking until the original decision not to provide continuing care has been upheld.

Both types of notices can be withdrawn in several circumstances, for example, if the patient has died, discharged themselves or made care arrangements of their own, is resident in a different council area or will not now be admitted to hospital when anticipated. The NHS could decide that the patient will receive continuing NHS care after all. There is a lot of emphasis on efficiency and not letting paperwork stand in the way of patient care.

Delay charges

Delay charges came into effect on 5 January 2004. The guidance provides that: “If a patient remains in hospital because the council has not put in place the services the patient or their carer need for discharge to be safe, the council will pay the NHS body a charge per day of delay.” There are also duties on councils to provide an appropriate range of support to avoid unnecessary admissions in the first place.

The cost per day of delay has been set at £100 throughout England with a higher rate of £120 for London and parts of the South East. This is only payable where the sole reason for the delay is that social services have not complied with their obligations. If there is also a reason connected with the NHS, the charge will not apply.

There are different charging arrangements for different types of people:

Council assesses and arranges. If the council assesses and arranges care for someone, even if they have to self fund part or all of that care, the council is liable to reimburse the NHS for a delay in assessment and/or provision of care. This will apply to a large number of patients because the 12-weeks’ property disregard will mean that many people with a home as their main asset will be funded by the council for at least the first 12 weeks of care. Social services delaying arranging care in a patient’s own home will also be caught by the Act;
Council assesses and family arranges. If the council assesses a person but they or their family are making their own care arrangements, the council is only liable for delays in assessment, not provision of care. It may be strategically useful to ensure that family and social services co-operate throughout the process towards discharge with the adviser notifying social services and the NHS in writing that the family considers that social services are handling all the arrangements rather than the family direct and that the family are merely helping ensure that these arrangements are being effected in accordance with the single assessment process and the guidance on choice. As social services have an obligation to work positively with the patient and the carers to effect an appropriate care package this should be possible. This should secure the delay charge will apply against the local authority and may thus prove a useful ally in ensuring that appropriate arrangements and choice are truly effected in accordance with the existing rights of the patient. This may seem cynical and manipulative but this sub-heading could all too easily be abused as a ‘loophole’ by more aggressive and hard-pressed local authorities. They would simply claim the delay had nothing to do with them. It is also open to family and advisers to point the finger at social services and make the facts known in writing to the NHS that the delay is, for example, because there are simply no beds available without an unacceptable top-up fee or in the right geographical area, that is, the local authority has failed to meet its legal responsibilities;
Self-helpers. If a person chooses to have no help at all from social services, there is no liability for delays. If a person has only had some advice from social services but no formal involvement, there is also no liability.

Primary care trusts should work with other NHS bodies to identify the main causes of delays in their local area and channel appropriate investment to resolve it. Strategic health authorities have a duty to establish dispute resolution panels, which are similar to continuing care adjudication panels. There will be an independent chair and a representative from a local authority and the NHS, different ones from the parties involved. Their role is described in the regulations and further regulations will be issued giving guidance on their composition and implementation. More guidance is given in The Continuing Care (National Health Service Responsibilities) Directions 2004. The Chair, NHS and Local authority members can be in post for up to three years and can be re-appointed at the end of their term. These posts cannot be filled by people who have been convicted of a criminal offence in the last five years, dismissed other than by redundancy from the NHS or Local Authority and people who have been removed as Charity trustees, along with various other minor matters. If one of these starts to apply during their term of office, they can be removed by the Strategic Health Authority, as can also be the case where the SHA thinks that it is not in the best interests of the health service that a person should continue. Their papers should eventually prove interesting reading if made available. It is conceivable that they may be a helpful catalyst for change in the direction of better care for elderly and other vulnerable people.

Summary

When considering the effect of the Act, bear in mind that it should tie in with the regulations and directions on patient choice and top ups dealt with elsewhere in this article. The intention of the government seems to be to apply this type of delay charging more widely in the NHS in the future. It is likely that this type of approach is here to stay if it proves as successful in England as in Scandinavia.

Readers should note that the Act does not override the duty to effect an appropriate needs assessment and care plan in accordance with the National Service Framework for Older People and the single assessment process. Discharge must be in accordance with those sets of guidance and the Directions on Choice referred to in the preceding sub-section. It is not a charter to aid the local authority or the NHS in discharging patients into accommodation that they are neither suited to nor that they or their carers agree to. It is clearly aimed primarily at recalcitrant local authorities and not patients who are rightly unhappy with inappropriate discharge arrangements. It is the metaphoric ‘kick’ to ensure appropriate local authority arrangements are made to secure patient’s existing rights under the preceding guidance are actually forthcoming within a reasonable time. Readers should seek to ensure that it is not used as leverage by either the NHS or the local authority for any improper purpose. Local authorities that have allowed the care sector in their area to run down to inadequate levels, as many appear to have, may finally begin to feel the effects of their policy. It is hoped it will spur corrective action, such as setting more realistic rates payable to care providers.

Lynne Bradey is a solicitor at Wrigleys. She can be contacted by e-mail at: lynne.bradey@wrigleys.co.uk or by telephone on: 0114 2675588.