Care and support planning

What the law says

If the local authority decides you have eligible needs, they have a duty to meet those needs, unless those needs are met by carers or by other organisations. The Local authority can choose to meet non-eligible needs too.

There is no fixed way of how needs can be met. The only big exceptions are:

• The local authority cannot provide or do what the NHS should do,
• They cannot provide or do what the housing department should do.

Besides those exceptions the local authority has to be satisfied that the proposed option is necessary to ensure you can achieve the outcomes in a way that promotes your wellbeing.

It would be unlawful for the local authority to restrict the ways in which needs could be met.

The process

The Local authority must involve you and your carers in the care and support planning process. When thinking of the best way to meet your needs they should take all reasonable steps to come up with the option on which you both agree.

However, legally local authorities can insist your needs could be met in a different way, especially if their preferred option is better value for money. This will be lawful as long as their preferred option will help you to achieve the outcomes you want to achieve and will promote your wellbeing.

During the care and support planning process, local authority should tell you what your indicative budget is. See the section about personal budgets. You could also decide how to manage your support, so it is the best time to ask for a Direct Payment.

It is worth remembering that it is unlawful for local authorities to have ‘blanket policies’, such as not paying for certain types of support. Local authorities cannot impose upper limits on support packages.

If the support you need is not available locally and the local authority is suggesting an out of area placement, you should ask them what steps they are taking to put this support in place where you live.

The law requires local authorities to make sure that:

• You are involved and influence the care planning process
• Your wishes and preferences are considered
• You are given information in accessible formats and have time and support to consider possible options
• You have an advocate if you are eligible for advocacy support
• your carer or any other person you want is involved in the process.
• They give you a copy of a support plan in a format that is accessible to you.
• The plan is completed in a timely fashion proportionate to your needs.

Tips to get it right

• Think how would you like your needs to be met: Make sure you tell social workers what your thoughts are. Think why your preferred way is best for you.
• Make sure you are involved in the process: despite what the law says, in reality many people just get told what their support package will be. You should make it clear that you want to be involved in the decision-making process. Ask for a meeting to discuss your ideas about how your needs will be met with a social worker. Make sure you comment on the care and support plan you receive from your local authority, always ask for a copy and if necessary make a Subject Access Request if necessary.
• Think how much flexibility you need and make sure it is reflected in your care plan: Sometimes people feel they have very little control over how their support works, one of the reasons for this is overly prescriptive care and support plans. If for example your Care and support plan prescribes in a very detailed way how your support will be organised every day, you will find it difficult to make day to day changes in how support is provided.
• Ask for explanation early on: although the local authority can disagree with you about the way to meet your needs, they have to start with an assumption that you know best what is good for you. If they insist on an option that will not work in your opinion, ask them to explain how their way of meeting needs will promote your wellbeing.

Reviews and revisions

There is a difference between a review and revisions. If the local authority wants to change your support package, they need to follow the right process.

Local authorities are required by law to review the care and support plans. A review is a process by which the local authority and you, consider whether the care and support plan is working and whether your needs or outcomes have changed.

Small changes to a care plan which can be accommodated within the existing personal budget can be made during a review.

A revision is effectively a reassessment of needs, followed by a fresh decision on eligibility and a new care and support plan. Significant changes to your support package can only be made after a revision. You should be involved in both reviews and revisions and if necessary have an advocate.

If you disagree with the review outcome or how it was done you should:

• Obtain a record of a review and evidence of how you were involved;
• Get a copy of the review decision
• Ask them how they considered all aspects of their wellbeing duty.
• Evidence of how they took reasonable steps to reach an agreement with an individual concerned.
• If a change is significant, you could ask for a new assessment.
• And importantly, you should ask the local authority to reinstate your support package until your disagreement is resolved.

Challenging decisions

If you disagree with the local authority’s decision, you should raise concerns as soon as possible. When raising your concerns, think if it is possible for you to argue that:

• Their preferred option will not meet your needs. For example, you need support workers with specific qualification and skills, and this is not reflected in the care plan. Or you need support to get out of your home and meet with friends and family, but social workers want to refer you to an organisation that organises events for Disabled people.
• Their preferred option will not help to achieve agreed outcomes: for example; your agreed outcome to continue education, gain employment and live in your own home, but the local authority suggests they cannot support you in the community and you need to move into a care home.
• Their preferred option will have a negative impact on your wellbeing: for example the local authority suggests you use continent pads instead of help to go to a toilet. You can argue how this will have an impact on your dignity, physical or mental wellbeing.

Ask for explanations and evidence of how their preferred option meets the points above.

You can also challenge decisions if the local authority did not follow the right process:

• Did not include you in the development of your care and support plan;
• Did not refer you to an advocate, when you met the test
• Did not obtain an agreement from your carers that they will meet some of your needs.
• The local authority did not take steps to make the Care and Support planning process accessible for you and did not provide information in accessible format.

The process

You should try and challenge as quickly as possible. Raise the issue initially with the social worker. It is important to give them a deadline to respond. If the issue has not been resolved or there is no response, you should make a formal complaint, using local authority’s complaints procedure or consider legal action, see below.

Collecting evidence

When challenging decisions about your care and support plan it is important to collect the evidence. Can you get evidence from other professionals that their suggested way of meeting your needs will not meet the criteria set out in the Care Act?

Many people are not even given a copy of their care and support plan. You should ask for it if you are in this situation and if necessary use the rights you have under the Data Protection legislation to ask for copies of the documents.

Making a formal complaint

Each local authority should have a complaints procedure. Ask for a copy of it. If you need this document in alternative formats make sure you let them know. Providing a policy in alternative formats should be considered as a reasonable adjustment under the Equality Act 2010. Complaints are usually investigated by a different person to the one whose actions or decisions you are complaining about. They will usually ask a person concerned to explain their actions or decisions, check if they are reasonable and communicate their opinion to you.

When making a complaint you should:

• Make it clear this is a formal complaint and ensure it is registered as such.
• Set out the facts and be clear what you are complaining about. Is it about a decision, or the way you have been treated?
• Set out the law or local policy and explain how the local authority did not follow it.
• Say what you would like to be done as a result of this complaint: a decision to be changed, an apology, a change in practice.

When thinking about the outcome you want to achieve, think about possible wider implications of your complaint: if other people are likely to be affected by the issue you are complaining about, or if it is possible to do something to prevent the same problem from happening again.

Examples of wider outcomes

• Asking the local authority to publish information on its website or to change the wording of the information it already has
• Asking to make changes to their policy or practice

See The Public Law Project’s guide Making an Effective Complaint to a Public Body for more practical tips about making a complaint.

If you are not happy with the response to your complaint

If you are not happy with the outcome of your formal complaint you generally have 2 options available to you: the local government and social care ombudsman or legal action. We consider both of those processes below in greater detail. It is worth noting that you might be able to start legal action without having to go through a complaints procedure.

Ombudsman

What they can consider: Complaints about maladministration: where the local authority did not follow its procedure, delays.
Time limits: 1 year
Risk and costs: free
Representation: People usually represent themselves or are represented by advice and advocacy organisations
Outcome: Ombudsman cannot enforce its decisions, but usually local authorities agree to implement them. Ombudsman can make decisions about individual cases and policies. Decisions are not an authoritative interpretation of the law, but can be used to support the argument in future complaints
Key advantages: Free, accessible, can consider a wider range of cases compared to judicial review proceedings. Can make recommendations to change policy.

Judicial review

What they can consider: Whether or not the decision or failure to act was lawful. Did the local authority follow the procedure set out in law. Did it consider all the factors it must consider. Did the decision breach your human rights. Was it discriminatory
Time limits: As soon as possible and no later than 3 months from when the decision was made.
Risk and costs: Judicial review is costly, but some people can get legal aid, which will pay for all the costs
Representation: People are usually represented by solicitors
Outcome: Can change policy, can have an impact on other individuals in the same situation. Local authorities must obey decisions made by courts.
Key advantages: Decisions made by courts can help to change policy or practice beyond the respondent in the case. You get better quality of representation and much higher scrutiny of the decision or the policy.
Courts can make interim orders, for example order to keep your support in place before final decision is made or to put support in place urgently.

Local government and social care ombudsman

An ombudsman is a person appointed to investigate complaints in a particular area of public body decision-making. Their service is free, independent and impartial. A complaint to an ombudsman could be a way to resolve an issue. An ombudsman does not have the power to force a local authority or a social care provider to change its decision, but their recommendations are usually followed.

The Local Government and Social Care Ombudsman (LGSCO) can investigate complaints about the decisions, actions or inactions of local authorities. It can also investigate complaints about private care providers, such as care agencies, care homes, etc., even in cases when a person pays for their care. If a package is funded by both the local authority and the Clinical Commissioning Group, you can still complain as the LGO has a joint team with the Health Service Ombudsman. So both aspects of your complaint will be considered and you will have a single point of contact.

You cannot complain to the ombudsman before you go through the local authority’s complaints procedure. You have to complain within 12 months of the original decision.

You have to be personally affected and experience an injustice. If your particular problem has been resolved by a local authority but you want them to make a bigger change, the ombudsman may decide not to investigate your complaint.

There are a variety of ways to start a complaint, including by phone, via email, filling in an online form or by post.

The ombudsman will investigate complaints when there is a maladministration – a fault by the council or another organisation and which results in you experiencing an injustice. Examples of such situations include:

• A local authority did not follow the law or its own policies,
• A local authority took too long to act or make a decision,
• A local authority did not follow the right process when making a decision, for example did not involve you in the assessment and care planning process or or did not give you information you were entitled to know.

How will a complaint be investigated?

The case is allocated to an investigator, who will look at all the documents, contact you and speak to the organisation that supports you. They may ask for additional information, and will then contact the local authority and ask for their view. After gathering all the necessary information the investigator will draft a decision, and ask for your comments before reaching a final decision. They will usually send you copies of the local authority’s written responses, but will not necessarily pass on minutes from their phone conversations with them.

The decision of the ombudsman is final; however, if you can prove that it was based on factually incorrect evidence or you have important new information which is relevant to the case, you could ask for a review. Decisions of the ombudsman can be challenged through a judicial review if they are legally incorrect, or the decision was taken unlawfully.

The ombudsman publishes its decisions on its website, although these are made anonymous.

Taking legal action

When a public body has acted unlawfully or their decision/action breaches human rights, this can be challenged through a legal action. This could either be done through a process called Judicial Review or by bringing a legal action under the Human Rights Act. Since the Human Rights Act applies to private care providers it can also be used in private legal actions against them.

Judicial review is a process in which the judge will look at the lawfulness of a decision, action or inaction of a public body, including the local authority’s decisions about social care. The judge will assess whether the law has been applied correctly and whether a public body followed the right process. The court plays a supervisory role: it won’t determine whether a decision was right or wrong based on the facts. The court can overturn a decision, order the local authority to take a certain action or prohibit it from making a certain decision or taking action. The court can also ask the local authority to take certain actions until the case is resolved, for example put the support in place or keep existing levels of support, while a cut to support package is disputed.

For more information about Judicial review see the Public Law Project’s guide: An introduction to Judicial Review

Sometimes the local authority’s decisions about your social care support will have an impact on your human rights. Find out more information about your human right and how they are relevant to your social care support in our Human Rights Guide.

When considering legal action it is worth thinking about the following things:

• Time limits: There are strict deadlines for starting a legal challenge. For judicial review it is 3 months and for breaches of human rights it is 12 months from the date of the decision. Is your case still within those time limits? It is also important to remember that lawyers will need time to investigate the case.
• Funding legal advice: would a person you support qualify for legal aid? Are there other sources of funding? If a problem is widespread and a particular person cannot get legal aid, you could look for another person in similar situation.
• How serious the situation is: although it may take a long time for a case to get to court, it may be possible for lawyers to secure an interim solution while the case is being considered.

It is also important to remember that not all cases reach court. Sometimes the involvement of solicitors can help to resolve the issue or clarify the situation.

If you decide to contact a solicitor, it is best to approach solicitors who specialise in community care. You can check the list on our website for solicitors who specialise in advising Disabled people. You can also use Find a Legal Aid Advisor tool on the Gov.uk website to find a solicitor who can give advice for people eligible for Legal Aid or Find a Solicitor on the Law Society’s website.

Further information

The Law Society’s Using a solicitor guide
For a list of solicitor firms, who are experienced in offering legal advice to Disabled people See a list on our website