Personalisation should not be used as a cover for making unfair budget cuts to care packages, writes Polly Sweeney, a solicitor in the Public Law Department at Irwin Mitchell LLP
Plans to cut a severely disabled man’s care package by 70% were reviewed following a legal challenge, resulting in a cut of 14%. But, many others with complex needs face potentially catastrophic cuts because of the failure of resource allocation systems and council funding panels to adequately account for their needs, says Polly Sweeney, the solicitor who brought the case.
Serious questions about the adequacy and appropriateness of using resource allocation systems (RAS) to assess people with complex needs are raised by the case of Tarik Zavadil, a 27-year-old man with profound learning disabilities and epilepsy, cerebral palsy, who is unable to speak and registered blind.
His case also highlights the importance of family carers such as Tarik’s mother, Lorraine, within the assessment process, and what can happen when their skills and experience are ignored.
Lorraine is a tireless and devoted advocate for Tarik and is an incredibly experienced carer who absolutely understood her son’s needs.
When faced with the indicative budget, which cut the funding for her son’s package by about 70%, Lorraine at an early stage put together a detailed and comprehensive support plan that evidenced why his needs could not be met for the allocated sum, and crucially, the serious adverse impact on Tarik of losing his carers, with whom he had developed close bonds and attachments.
Tarik’s case, and Lorraine’s support plan, went to a quality assurance panel in March 2011, and Tarik’s indicative budget was increased slightly; but the final approved sum still represented a cut to his care budget of over 50%.
The council concluded that, despite Lorraine’s detailed evidence, Tarik’s needs could be met by a single live-in carer paid at agency rates.
Over the next few months, Lorraine met with councillors and heads of service and continued to fight against the proposed cuts. Her tenacity and determination meant she was able to negotiate some small further increases in the council’s offer of funding along the way, but none of them was sufficient to retain Tarik’s existing care team.
Lorraine came to our law firm, Irwin Mitchell, when she had almost given up. The legal challenge was undoubtedly based on the very specific facts of this particular case; however, it focused on what was considered to be the council’s failure to consider the following key factors in their process of assessing and allocating Tarik’s personal budget:
a) The impact upon Tarik of losing his existing care team and his identified need for continuity of care;
b) That his needs could not be met by a model of care which is based upon the use of low-paid live-in agency staff;
c) Tarik’s contractual obligations as an employer of a carer and the additional costs associated with the employment of carers.
As a result of our legal intervention, the council agreed to undertake a full re-assessment of Tarik’s needs. This included obtaining an independent report from a clinical psychologist.
The independent expert confirmed that changes to Tarik’s care arrangements could potentially have had serious psychological and emotional consequences for him, potentially worsening his disability with possible fatal consequences.
With key evidence, it was possible to further negotiate and agree with the council a reasonable figure, which made savings where possible but still enabled Tarik’s essential needs to be met.
While the case was a victory for Tarik and his mother, it cannot be forgotten that the indicative budget which the council first proposed for Tarik in December 2010 represented a cut in funding of 70% of Tarik’s personal budget and, on the evidence which is now available, the reduced package did not meet Tarik’s needs.
The council insisted throughout this case that the 70% cut was only ever an indicative figure, and the process of moderation would ensure that if the amount was not sufficient, it could be increased to ensure Tarik’s needs were met. However, there are real dangers in putting forward indicative budgets for individuals with complex needs which are not based on thorough assessments.
Sadly, it is my experience that many carers do not understand the complexities of the RAS process with the result that insufficient indicative budgets are often accepted without challenge.
However, even where individuals do not accept the indicative budget, the moderation and appeal process itself too often does not work and, as was seen in Tarik’s case, the final allocation does not meet the assessed needs with potentially catastrophic effects.
Local authorities are under a duty to ensure that the system they use for allocating indicative budgets is sound, and that they can evidence how an individual’s assessed needs can be met from the allocated sum.
Tarik’s case acts as a reminder to all of the dangers of relying upon desktop calculations, self-assessments and indicative budgets when assessing individuals who have profound disabilities and complex needs.
Personalisation should not be used as a cover for making unfair budget cuts to care packages.
Bournemouth Council’s response
Judith Geddes, executive director for adult and community services, says:
“We have always agreed that Tarik’s welfare was the priority, but we also have a duty to provide appropriate care at a fair cost to the taxpayer. This has never been about a reduction in care provision but rather a reduction in the level of funding necessary for an agreed level of care. The council has never proposed anything other than a 24-hour care package for Tarik, and any proposed reduction in funding was always considered following detailed assessment of Tarik’s needs, in consultation with Mrs Zavadil. We would reject any assertion that the decisions reached were resource-led rather than needs-led. We always have and will continue to have Tarik’s needs firmly in our mind at every stage of decision-making regarding his care.”