Risk V Equity V Policy V Purpose in Personal Budgets
One of the great benefits of the NHS Peer Leadership Network is the way that Peer Leaders are allowed to contribute to discussions with central and local NHS staff through the NHS future collaboration network. Lots of questions are asked in general discussions and the response is usually really positive.
On discussing with other future collaboration participants from Peer Leaders, we have noticed the constant questions from Personal Health Budget (PHB) Practitioners on what is and what is not allowed on expenditure. In order to try and help with this I thought it might be worthwhile trying to make some comments on reoccurring themes. Not on particular issues, but a general idea of what the NHS are trying to achieve and what would help both PHB practitioners and PHB users.
Personalisation is being given a huge push by the Government, the Minister for Health and Social Care (Sajid Javid has mentioned it in a number of speeches) the NHS, TLAP (think local act personal) and various other health and care organisations. Not only is their talk but a lot of papers and commitments have been made to push forward with this worthwhile idea via the Universal Personalisation Process. Though there are many different strains to this, this article relates to Personal Health Budgets and risk, equity and polices via the purpose of what is trying to be achieved.
Quite rightly individual departments are conscious that it is public money, the risks have to be managed appropriately. There are also concerns over Equity and that people should be treated fairly across the board. Both these issues most people agree with. It is also appreciated that individual departments have their own policies. The issue for me is when practitioners give more consideration to the risk and equity than the actual need of the individual person or the local policy.
There is always inherent risk in all that people do, there is always a need for robust procedures to ensure that public money is used wisely. However, the risk is always still there. As long as the process you have is carried out effectively, this should not be more than a casual issue for practitioners. It is why it makes it difficult to work with the law and says you have to take "reasonable precautions".
Having carried out many audits of budgets through advocacy both in health and Social Care, you hear of the constant hoops you have to jump through. Budgets are agreed and then require constant approval for spend. This is a waste of time and usually happens to a lack of proper involvement or communication at the care planning stage. In essence there are very few things by way of national policy and the personalisation ethos that money cant be spent on. As long as it is justified. Any checks should focus on the financial checks carried out at the end of the year. Yet people at present firstly struggle to get things approved and then again get questioned at the end of the year. From experience, I can tell you that most practitioners have very little input or know about the financial checks (usually carried out by a separate department or outsourced) and thus feel they need to get it perfect and ensure money is not spent first, contrary to the ethos. If the teams social care and finance actually communicated better, you would resolve a lot of issues. Not only that but you could reduce the work load.
The statutory guidance under the Care Act which follows the principles and ethos of personalisation actually allows a reduction of full checking on people who have been running their own budgets. However, considering the use of prepay cards and third party management of staff and wages, it does feel less personalised than ever. It seems that rather than relaxing usage it is actually being strangled. Contrary to the ethos and purpose and why research from the Kings Fund (see below) shows usage of Personal Budgets dropping drastically.
Moving on to Equity, a phrase thrown around and used in multiple ways. The arguments put forward to me personally as a PHB holder and in a number of my advocacy cases is that we have to be equitable and treat people the same. That as a general rule is a good one. However, in nearly all cases I have worked in including my own, as each person's needs are different it is just not possible to treat people the same nor is it legally required. The Equality Act explicitly states as a premier piece of legislation this Act will sit above and should be given more credence than local polices as presently done. The Act actually states that when a process or policy impedes a disabled person from being treated less favourably that policy or process should be changed. It is not saying that the policy is wrong. It is saying for people who are protected by the Act (age, disability) you may have to make allowances.
A number of cases and ombudsman judgments are listed below which you may like to use to help you think of such situations. It should be again noted that it does not mean change your policy but under the individual circumstances you may have to bend the rules to ensure discrimination does not occur.
Case references
Hardy V Sandwell 2015
Housing benefit case using disability living allowance to say use that:
In my judgment the Council’s approach is an example of indirect or Thlimmenos discrimination because it treats disabled applicants and their disability-related income in the same way as it treats others and their non-disability related incomes. This gives rise to unfavourable treatment to the disabled applicants. DLA(c) is not the same as any other income, but is awarded specially to enable disabled persons in need of personal care to cope better with their disabilities in the way they see fit. Equally, the pattern of expenditure of a disabled person may well be different and more difficult to predict than that of an applicant without a disability, the needs of the disabled may not be consistent or regular and may require considerable one-off expenditure, sometimes at short notice.
Stephenson, R (on the application of) v Stockton On Tees Borough Council
England and Wales Court of Appeal (Civil Division) Jul 26, 2005
Whether family payment rule should be adhered to as a policy or rule. Policy - only must look at individual circumstances DRE payable to daughter due to 80 mile round trip travel and gave up part time job. Not just religious or ethnic.
Norfolk Judicial Review – https://haloabletec.blogspot.
RW V RBWM - JUDICAL REVIEW
https://haloabletec.blogspot.com/2024/03/disability-related-expenditure-case.html
Local Government & Social Care Ombudsman cases
Lincolnshire County Council (21 007 887)
Summary: Mr B complains about the Council's decision not to allow him to use direct payments to employ his mother, who he lives with, as his personal assistant. We found fault as the Council has not properly considered whether there might be exceptional circumstances. The Council has agreed to re-consider Mr B's request and review its procedures.
London Borough of Croydon (21 001 174) – as per Norfolk Judicial Review
Council’s care charging policy is discriminatory. She also complains the Council failed to properly consider her disability related expenditure during a financial assessment. We find fault with the Council for the delay in accepting her disability related expenditure. We also find fault with the delay in the Council completing its review of its care charging policy. Differential impact of its charging policy on the most severely disabled people. The council’s policy had set its Minimum Income Guarantee (MIG) at the bare minimum.
Cambridgeshire C Council not taking DRE in to account
PTSD, OCD –Not re assessed for years food/caravan hobby/ DRE form difficult to understand not have relevant info for him- so should have helped changed it. Also use light touch approach as suggested by statutory guidance. And not do continuous yearly paperwork.
Central Bedfordshire Council in which a woman, who has significant disabilities, was left without proper care and support because of a lack of proper information.
Clearer advice needed to help service users negotiate benefits payments. It should also reconsider the woman's disability related expenditure (DRE) and provide a clear explanation of why it does not consider some costs arise from her disability. The council should also pay the woman £5,000 to acknowledge the impact on her being without adequate care and support for more than two years and a further £2,000 to acknowledge the avoidable distress and frustration caused.
Nottinghamshire man's care package reduced because of financial pressures, Ombudsman finds https:///information-centre/
There are a lot more such cases on the LGO/PHS Ombudsman websites.
In each of the cases above the courts have stated the need to look at the specific case in question and ask yourself is this needed for that person, if it is then it should be allowed regardless of the policy on place or general rule of Equity.
The courts on each occasion have gone back to the original purpose and ethos of personalisation, in essence the giving of independence, choice and control. On reading the judges comments such as in the Norfolk Judicial Review Case - "what is the point of a personal budget if you cannot spend it how you want? "Makes it clear that if challenged on spend, the question asked will be not whether this or that is allowed or can be used for but does it meet the ethos and purpose of what is trying to be achieved. You may ask how does the judge know what is right, well if you read my other blogs you will know that they do not make these things up as they go along they have rules to follow. Thankfully we do not need to be judges, but when making considerations on spend perhaps contemplate on purpose and ethos, under the circumstances rather than Risk, Equity or Process.
One final point on money. A close examination of outcomes vs the effort involved against the purpose to be achieved will also show that the time and effort in complaints, repeated checks and assessments or recouping charges will far outweigh the money recouped or not spent, when officer times and all other costs in such endeavours are calculated. It is always in my view 9/10 better to go with the purpose of meeting needs rather than questioning and checking everything. Prove me wrong?
Comments
Post a Comment