Can I manage my own care provision?

Statutory duty

The local authority must exercise its functions under the Care Act, including the duty to provide information and advice, with a view to providing care and support with health and health-related issues. This may include a limited duty to provide accommodation when provisions of care are conditional of adequate housing. The local authority must also observe their duty under the Local Government and Public Involvement in Health Act 2007 (as amended by the Health and Social Care Act 2012), and work with their local CCGs and other partners.

This process can be long and cumbersome. The council and their adults care team will not easily accept applicants’ demands and will insist on assessments, reports, and evidence. Whilst the focus of people with care needs is their wellbeing, those whose duty it is to meet their needs will be concerned about the costs, resources, and affordability.

Promoting wellbeing is not always about local authorities meeting needs directly. It will be just as important for them to offer alternatives and provide information so that those seeking care can make informed choices. The Care Act offers an opportunity for people with care needs to avoid queues, delays, bureaucracy, and unsatisfactory standards of care so that they can fund and organise their own support. The local authority may accept such proposals as they represent an easier and more cost-effective option to discharge their statutory duty. This is normally achieved by personal budgets and direct payments to the service users.

Direct payments

A personal budget is the overall cost of the care and support a person with care needs is eligible to receive from the local authority. The budget assessment documents are quite specific, and the local authority should, before this budget is approved, make a detailed assessment of the care needs and provisions they have a duty to provide. The starting point will always be the care needs assessment followed by the care plan. The person seeking an assessment should be involved in both as the care cannot be provided against the recipient’s will, but also must not be denied without discussion with the person with care needs.

Direct payments are a funding choice in personal budgets and gives the care user a chance to take over the organisation and administration of funds and management of their care and support networks. They allow people with recognised care needs to purchase their care and support services directly and make decisions about how their needs are to be met. This is important in order to facilitate an effective open market, promote quality and cost-effectiveness so as to provide a genuine choice to meet the range of needs and reasonable preferences of local people who need care and support services, including for people who choose to take direct payments, recognising, for example, the challenges presented in remote rural areas for low volume local services. Before they receive any payments, the local authority is likely to take the following steps:

• obtain a detailed assessment including, expert reports, with detailed description of the applicant’s needs and how they could be satisfied. This may also include the need for involvement of carers and their needs. The proposed solutions may include a wide range of support and respite services, but carers may seek a range of measures to help them cope with their role.
• make a decision regarding eligibility to receive care and support services including requirements to make contributions.
• agree a plan to meet care and support needs, including detailed cost assessment and level of contribution the care users are expected to make.

What if it is not possible to find common ground?

The evidence is very important and well-documented needs supported by medical records, expert reports, occupational therapist’s assessments, and detailed representations can persuade the local authority that an applicant has care needs that have not been met. This may be followed by negotiation of the funds which will be allocated for this purpose.

If the parties cannot reach an agreement by negotiation, the applicant may challenge their decision by an application for judicial review and, if so, will have to persuade a High Court judge that the decision to refuse or reduce entitlement to care and support is against the law, irrational or procedurally improper. Such action must be brought within three months and may be complex, expensive and risky. For these reasons, it is important to seek legal advice as well as consider eligibility for legal aid before deciding to issue proceedings.