I’m afraid this is a rather short, but depressing, post to bring to your attention the decision of Worcestershire County Council to pass its maximum expenditure policy (MEP). I wrote about the policy previously here, the grass roots Spartacus campaign produced a report on the proposal called Past Caring, available here. Following the publication of Past Caring Worcestershire decided to extend the consultation, and information which the report criticised Worcestershire for not putting on the consultation website was subsequently added.* Worcestershire’s response to Past Caring does not address the concerns about human rights at all, although it’s recent cabinet documents (here) state that they see no conflict with Article 8 (Article 5 is simply not discussed). The response also says that the Council will provide more details on what ‘exceptional circumstances’ it will depart from the policy in, but I can’t see anything on the consultation portal which mentions this. I’ve tried to find this policy for older adults online elsewhere on their website, but with no success, so we’re still none the wiser as to what kinds of exceptional circumstances WCC might increase expenditure above the value of a residential care placement. In any case, this information was not presented as part of the consultation.
Due to other commitments I don’t have time to go into great detail in response to this decision. I just wanted to point to a few key issues from their most recent comments on the proposal. The MEP already applied to over-65’s, and I’ve no idea whether this policy was consulted upon when they introduced it for older adults. The policy is objectionable for any age group; this is an example of using equalities to ‘level down’ rights and protection.
The council still insist that nobody will be forced into residential care by the policy. I suppose it depends on what you mean by forced. They say:
‘It was noted that application of the policy could result in services being delivered that would not be people’s first choice about the way they receive care. In such circumstances there will be a range of options discussed with service users, including arrangements liked shared living, assistive technology and other types of appropriate support to meet assessed eligible needs rather than expectations. This aims to balance available resources with the duty to meet assessed eligible need and to do so in a way that was transparent, equitable and enables the best use of resources. It is expected that this will lead to an agreed positive outcome in most cases. An appeals process will be available if required (see also paragraphs 23 – 27).’ 
They say elsewhere:
‘There was a concern that many people would be forced into residential care – this is not the intention of the policy. The purpose of the policy is to use the cost of residential care as a starting point for the reasonable cost of meeting needs in the community and working with individuals to develop a package of care that balances choice and cost in a context that recognises choice is not limitless.’ 
’21. The cost of a residential home for the individual will only act as a benchmark for comparison with a community care package. Nobody will be forced to live in a residential home as a result of this policy, although some service users may feel it to be more appropriate to do so. It is important to be clear that there may be times when the Council cannot safely meet a person’s needs in the community and it may be that residential care is most appropriate to meet their assessed eligible needs. This decision, however, is based on a best interest assessment for the person concerned where they lack mental capacity.’ 
Let’s start with people who have capacity. If a person wants to live in their own home and their needs can be met in their own home for less than the cost of residential care using ‘assistive technology’ or other support, then great. But I don’t understand how the MEP is relevant to this – as councils should, in any case, be looking for the ‘best value’ way to deliver care. A person could have assistive technology and highly cost effective support in their own home, yet it still cost more than a residential care placement. If a person is happier living in shared lives accommodation than wherever they are currently living, then great – but if the reason for wanting to stay at home is family, familiarity or just wanting (reasonably enough) to live in your own home, then Shared Lives isn’t really a solution to the problem.
The situation the council seems to be skirting around actually discussing is when a person’s needs simply cannot be met in any other way than by support which costs more than the value of a residential care home placement, or through a placement in a residential care home. In such circumstances where a person has capacity the council is correct that they cannot compel a person to move into residential care (well, I suppose in some cases they could try guardianship, but that would be a pretty bad idea if it resulted in a deprivation of liberty which couldn’t then be authorised under the DOLS). Being made to choose between living with unmet care needs – which could potentially have very serious consequences for health and wellbeing – or moving into residential care, can be a form of extralegal coercion (see the brilliant discussion of this in Interights submissions to Stanev v Bulgaria, 2012). Hobson’s choice is no choice, no matter how the council try to dress it up as not getting your ‘first choice’.
Let’s think about people who are said to lack capacity. According to the council, ‘there may be times when the Council cannot safely meet a person’s needs in the community and it may be that residential care is most appropriate to meet their assessed eligible needs’. In those circumstances, it will usually be the council itself that makes the Hobson’s choice between a person living with unsafe levels of support in the community or moving into residential care. That person’s wishes and feelings will be one factor amongst many considered in this “best interests” decision. It is entirely possible that people will, on the basis of a best interests decision, be required to live in residential care even if they do not want to, even if their families do not want them to, because the alternatives in the community are so inadequate. People without capacity may, contra the Council’s claims to the contrary, be forced to move into residential care. Hopefully the Council will remember to apply the deprivation of liberty safeguards if they do so; and hopefully if they are forcing a person who is objecting to being removed from their home into residential care they will apply to the Court of Protection. But the point is this: the Council’s claim that ‘Nobody will be forced to live in a residential home as a result of this policy’ is quite simply a claim they cannot make. The only other alternatives are for the council to say they will always find the resources to support them safely in the community (which would contradict the entire policy), or to say they would always make best interests decisions for people to remain in the community if they wanted to even if it was unsafe. Either they have not thought about this hard enough, or they are simply being disingenuous about the nature of best interests decisions where there is only one real choice on the table.
It remains to be seen if the council receive any legal challenges on the basis of this policy.
Spartacus report on the Work Capability Assessment
The Spartacus Campaign have also just published a report on the Work Capability Assessments for Employment and Support Allowance. The report is called the The People’s Review of the Work Capability Assessment and for anybody with an interest in welfare and disability rights it is well worth reading.
*This information included cabinet minutes from 19th April which included important information about potential savings and objections from local carers, and a draft of the MEP policy itself. The council had posted this information online elsewhere on its website, but didn’t seem to think it was relevant to the consultation so hadn’t actually posted it on the consultation page of their website. After the report the information was added to the consultation website itself on 13th and 16th July (according to an FOIA response from WCC).