Some frenzied activity in the media over the last couple of weeks has pointed to how significant adult social care is becoming as an economic, political and legal issue.
Let’s start with the UK Supreme Court case of KM (R (KM) v Cambridgeshire County Council) where confusion has reigned to the extent that, in a remarkable step, the court had to intervene to put right misleading reporting of the case.
KM is “a profoundly disabled man” of 26 who lives with his mother and siblings. He challenged Cambridgeshire County Council’s determination that £85,000 a year from the council would cover his needs to the extent of discharging the council’s duties under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.
As a result of the grounds on which the Supreme Court had granted leave to appeal, the belief had grown among disablement and care charities that the case would put right a bad judgment in R v Gloucestershire County Council ex parte Barry (1997).
Put simply Barry was a case about whether, and at what point, a local authority could take account of its resources when considering the social care needs of a disabled individual. The judgment of the majority seemed to suggest resources could be taken into account when deciding which of someone’s “presenting needs” should be met – ie deciding “eligible needs”. The judgment is not a model of clarity, however, and has caused confusion ever since. Part of the problem is the post-code lottery of some authorities being willing to meet a broader range of needs than others.
What the charities want is the maximalist position – that needs must be assessed (at stage one of the process) without looking at resources and then that those needs must be met.
But Barry and KM were looking at two different issues since KM had in fact passed stage one and stage two: The council had assessed his needs and agreed on his eligible needs. The crucial question in KM was not connected with resources; it concerned identifying the reasonable cost of providing the services.
The Supreme Court suddenly realized it had granted an appeal on the issue in Barry when in fact it wasn’t relevant to KM. The court indicated at the time of the full hearing it would not, in fact, consider Barry. However, the charities continued to think otherwise, partly owing to wishful thinking – they wanted KM to be about revisiting Barry even though it wasn’t.
The confusion was perhaps not helped by Lord Wilson’s judgment in KM, in which he seemed to strike a strangely contorted position by suggesting Barry was wanting in some way and hence should be looked at in the light of a gloss on it from Lady Hale’s judgment in R (McDonald) v Kensington and Chelsea (2011) (paragraphs 69 to 73) in which she prefers the minority judgment in Barry. Lord Wilson then added his own, wholly obiter, comment: “Insofar as it was there held [ie in Barry] that constraints upon resources were also relevant to what I will describe as the first stage [assessment of needs], there are arguable grounds for fearing that the [House of Lords in Barry] fell into error”.
KM was about the reasonableness of the decision on the level of resources to be offered to KM after his needs had been assessed – unlike Barry. But since the charities had hoped or expected it would deal with Barry, when the KM judgment came through they rushed out statements asserting KM was a landmark judgment that had “clarified” Barry to the extent of overturning its central premise.
‘Insofar as it was held in Barry that constraints upon resources were also relevant to what I will describe as the first stage [assessment of needs], there are arguable grounds for fearing that the House of Lords fell into error’ Lord Wilson
To look at the Guardian story, based on the charities’ comments, and the original item in Community Care (now amended) one would have thought a great victory had been scored for disabled people in need of social care. In fact KM himself had lost, and as regards Barry, nothing had changed. As a result of the confusion, the Supreme Court actually went as far as contacting Community Care to have the matter corrected (which it did) and maybe even the Guardian (which didn’t – though commenters had sought to put the Guardian right a couple of hours or so after the story was posted).
So what does KM deliver? Simply that once needs are assessed and an amount of money is applied to those needs, the local authority must be able to justify the amount it has given; it must be able to show how the needs can be met within that budget. The court felt the £85,000 Cambridgeshire had assigned under its resource allocation system was reasonable; the council was criticized only to the extent that it failed to tell KM how the money could best be spent to meet his eligible needs.
Among things that the council assessment can take into account is the potential for an individual’s family to offer care.
Which brings us to the other big media non-story in care of the last week or so. This was the Daily Telegraph revelation: “Carers to be given respite holidays”.
This suggested there would be “new rights” for those caring for their elderly parents to receive help from local authorities. Carers would no longer be “second class citizens”. (The paper does not mention those caring for disabled people, but presumably the same will apply to them.)
Care services minister Paul Burstow is quoted as saying: “if we don’t provide [carers] with the right support they are unable to carry on with their caring responsibilities.” The law would now recognize carers’ rights, according to recommendations that had been made by the Law Commission.
Again the current position is that councils are required to assess carers’ needs under S.1 of the Carers’ (Recognition and Services) Act 1995 (a piece of Tory legislation) but not necessarily to meet them. These rights were beefed up to an extent under Labour, in particular in the Carers (Equal Opportunities) Act 2004.
This said local authorities doing the assessment must consider whether the carer intends or wishes to work or undertake educational activity.
The current position, however, is not that people can, as a matter of policy, be denied local authority assistance. Again local authorities must make rational decisions on individual cases and must not fetter their discretion – for instance by excluding carers as a blanket policy from service provision. And carers have been assessed for and received respite holidays for many years.
The case of R (Hughes) v Liverpool City Council  EWHC 428 (Admin) suggested that failing to support a carer if it meant the carer could not continue to provide care could be a breach of Article 8 of the European Convention (right to family life).
‘If we don’t provide carers with the right support they are unable to carry on with their caring responsibilities’ Paul Burstow
Hence the Law Commission insisted that its proposals largely clarify the position rather than giving extensive new rights. Admittedly the Commission has an incentive to minimize the impact of its recommendations (to get them accepted). The Government, of course, also has an incentive to big up the relatively modest proposals it has accepted to prove it is doing something about social care – and that is what it did via the good offices of the Daily Telegraph.
Gratifying though it might be to learn in advance that the government is going do what it always said it was going to do – implement those parts of the Law Commission report it agreed with – the Telegraph story, clearly placed there by the Government for the new parliamentary session, takes us no further. It does, though, set the public agenda. It places the emphasis squarely on the Big Society, traditional family unit sort of care, in particular the notion that carers should hold down a job alongside their caring duties. The “new legal rights” are in effect rights to ensure you get on and do it yourself with perhaps a little added confidence about the local authority assistance available.
The elephant in the room that the Government wishes to avert our eyes from, of course, is the Dilnot report, a far more thorough-going and radical approach to the funding of adult social care by an economist with a social conscience (there are such people). Unfortunately this suggested the state, meaning everyone in general, must take more responsibility for adult social care and that more money must be made available. That would never do – and nor is it likely ever to happen under this government.
R (KM) v Cambridgeshire County Council  UKSC23
Note: The Guardian, on the basis of ethical standards, would not seek to make substantial corrections to its items on the web after the event.
Good backgrounder on the whole issue by Allan Norman is here: