1. The Challenge of Personalisation: a Legal Perspective Michael Mandelstam, In Control Conference: Watch out: it’s the law!

2. Three main challenges • 1. Potentially radical new social care policy sitting on old law. • 2. Pressure on resources, staffing, money, time. • 3. Risk.

3. 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

4. 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)

5. 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

6. 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)

7. 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

8. 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

9. 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 Michael Mandelstam 2011

10. 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

11. 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

12. 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). Michael Mandelstam 2011

13. 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). Michael Mandelstam 2011

14. 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) Michael Mandelstam 2011