Excellent report on the “cost of caring”, and how this can be reduced by preventitive measures, by Newsnight Scotland last night.  This was the first in a series of such programmes.  I am also looking at this issue in a series of articles: “Scotland’s care industry”.  The first two parts can be found in our “Publications” section above.

The programme outlined the many challenges we face.  The main issue being the increasing cost of caring for our ageing population.   That though is not the only issue.  Others include:  the quality of our health and social care services, standard of our care homes, who owns and runs these care homes, how we pay for these services and care homes, how do we divide the cost of these services between the individual and the state, how do we improve the health and well-being of our later years and do we need to restructure our health and care services.

There is also a question of perception.  This issue is not all all negative.  The fact that our population is living longer is a good thing.  As part of this debate the positive aspects of this issue need to be publicised.  This is also not just a question of money.

The programme is available on the BBC iPlayer.

The scenes shown in the BBC Panorama programme were truly shocking.   To date 12 people have been arrested in connection with the inquiry being conducted by the police.

The Panorama programme was contacted by whistleblower Terry Bryan who alerted the BBC with his concerns about some staff.  Mr Bryan, a senior nurse, acted after his concerns were not followed up by the home’s management or the Care Quality Commission (CQC).

The CQC published its report yesterday on its inspection of services provided at Winterbourne View.  A independently-led serious case review has already been announced by the CQC.

A number of concerns have already been raised both regarding the report published yesterday and the larger question of whether the CQC is the right body to conduct a review of the care system in England.

One point on the report published yesterday by the CQC.  The CQC defence in this matter seems to be that Castlebeck, the owners of Winterbourne View – now closed, misled them.  That is simply not good enough.

The report and a press release from the CQC can be found here.

An article from the Guardian dated 7 June can be found here.

A report from BBC news on yesterday’s report can be found here.

The UK Government’s Office of Budget Responsibility’s first annual “Fiscal Sustainability Report” was published this week.   The Report has warned that government debt will reach 100% of GDP by 2058 as a result of demographic changes within the population.

17% of the UK’s population is currently over 65, expected to rise to 26% by 2061.  The effect is likely to be particularly acute in Scotland which has received lower numbers of immigrants than England making the country’s age profile even older; the care costs associated with an ageing population here are expected to rise by 74% by 2031.

Two comments sum up nicely the debate that is currently ongoing on this issue.

“David Kern, chief economist at the British Chambers of Commerce, said: “Only greater productivity and higher growth in the private sector can pay for public-sector services and public-sector pensions in the future.”

“Michelle Mitchell, Age UK charity director, said: “If we plan sensibly and carefully calibrate long-term spending and taxation decisions, there is no need for national debt to increase alongside life expectancy.”

The report can be found here.

An article from the Scotsman on this issue can be found here.

Background

This appeal concerns the question of whether the Royal Borough acted unlawfully in seeking to amend Ms McDonald’s care package by substituting her night time carer with provision of incontinence pads or absorbent sheets when Ms McDonald was not in fact incontinent.

This case shows how cruel ill health can be.   Some 30 years ago Ms McDonald was the prima ballerina of Scottish Ballet.  In 1999 Ms McDonald suffered a stroke leaving her with severely limited mobility.  She also suffers from a small and neurogenic bladder which means she has to urinate two or three times a night.  Up until now she has dealt with this by using a commode with the help of a carer provided by the Royal Borough as part of her care package.

In November 2008 the Royal Borough proposed instead that the appellant should use pads, avoiding the need for a night-time carer.  The Royal Borough argued that this would provide Ms McDonald with greater safety (preventing the risk of injury whilst she is assisted to the commode), independence and privacy and in addition reducing the cost of her care by some £22,000 per annum.  Ms McDonald’s care plan was reviewed in November 2009 and April 2010.

Ms McDonald seeks to challenge this proposal.  Ms McDonald maintains that the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity.

Earlier judgments   

The High Court dismissed Ms McDonald’s arguments and held that it was open to the Royal Borough to meet Ms McDonald’s need, identified in her needs assessment as “assistance to use the commode at night”, in a more economical manner by the provision of pads.

The Court of Appeal disagreed holding that the clear language of Ms McDonald’s needs assessment could not be extended in a way proposed by the High Court and at the time proceedings were commenced the Royal Borough was in breach of its statutory duty.  However, as the Royal Borough did not implement the proposal outlined above and had reassessed Ms McDonald’s care plan Ms McDonald had no substantial complaint.

Supreme Court judgment

By a majority of 4-1 Ms McDonald’s appeal was dismissed.

Reasoning

Ms McDonald put forward four arguments (The Supreme Court’s reasoning is outlined below each heading):

1.       The care plan reviews did not in fact contain a reassessment of her needs

In accordance with the “Fair Access to Care Services” guidance issued by the Secretary of State, the care review plans could and did in fact incorporate a review of Ms McDonald’s needs.  Care plan reviews are usually drafted by social workers and not lawyers and thus should be construed in a practical way.

2.       The decision breached Ms McDonald’s rights under article 8 of the European Convention of Human Rights    

Ms McDonald had not established interference with her article 8 rights.   However, even if article 8 interference was established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well-being of the Royal Borough and the interests of other service-users and (b) a proportionate response to Ms McDonald’s needs by affording her greater privacy and protection from injury.

3.       The decision was taken in breach of section 21 of the Disability Discrimination Act 1995  

Under section 21 the Royal Borough may not operate any “practice, policy or procedure” which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them.   Ms McDonald failed to show that the Royal Borough’s decision could properly be characterised as “practice, policy or procedure” and thus the Royal Borough did not breach its second 21 duty.   Even if that were not so, the Royal Borough’s acts would have been justified as constituting “a proportionate means of achieving a legitimate aim” within the mean of section 21D(5) of the 1995 Act.

4.       The Royal Borough failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the Disability Discrimination Act 1995 (now superseded by comparable provisions in the Equality Act 2010)

Where the Royal Borough is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, it may be entirely superfluous to make express reference to section 49A of the 1995 Act.  It would be absurd on the facts of the present case to infer a breach of section 49A from an omission to refer to that section in any of the Royal Borough’s documentation.

Dissenting opinion  

The dissenting Justice would have allowed Ms McDonald’s appeal on a different basis outlined by Age UK in its intervention, namely that it was irrational for the Royal Borough to characterise Ms McDonald as having a need different from one she in fact has.

A full report of the decision is available from the Supreme Court here.

Two local authorities in central Scotland are set to begin sharing more services.  Clackmannanshire and Stirling councils have been jointly running education and social service departments since March 2011.  Now, a report due to be submitted on 11 August will recommend that the authorities begin sharing IT and personnel services as well.

The report from the BBC can be found here.

Health Secretary Nicola Sturgeon said: 

“We are working on a strong presumption – supported by the landlords, and underpinned by our contingency arrangements – that older people will not be moved.  The welfare of all the residents will be maintained with minimum possible disruption. 

“The Scottish Government is working with COSLA and other partners such as ADSW [Association of Directors of Social Work] and SCSWIS [Social Care and Social Work Improvement Scotland] to ensure continuity of care for all residents in Southern Cross care homes in Scotland.

“This formal announcement signals the start of a process to break up the southern cross group on a consensual basis, it does not mean that the business has gone into administration, or that any care homes will close in the immediate future.”

The background to this statement is the announcement on Monday of this week that Southern Cross is to transfer all of its care homes to other operators.   

The Scottish Government has issued two revised codes of practice under the Adults With Incapacity (Scotland) Act 2000.

Code of Practice for Continuing and Welfare Attorneys.  The revised code can be found here.

Code of Practice for persons authorised under intervention orders and guardians.   The revised code can be found here.

The Adults with Incapacity (Scotland) Act 2000 was introduced to protect individuals with incapacity and to support their families and carers in managing and safeguarding the individuals’ welfare and finances.

“The Report of the Commission on Funding of Care and Support” was published last week.  Although this report looks at the situation in England, and was commissioned by the UK coalition Government, the issues raised and the recommendations made are of direct relevance to us here in Scotland.

Extracts from the four key findings:

1. The current adult care funding system in England is not fit for purpose and needs urgent and lasting reform.
2. The current system is confusing, unfair and unsustainable.  People are unable to plan ahead to meet their future care needs.  Eligibility varies depending on where you live.
3. A major problem is that people are unable to protect themselves against very high care costs.   The current availability and choice of financial products to support people in meeting care costs is very limited.
4. Most people are realistic about the need for individuals to make some contribution to the costs of care in later life, but they want a fairer way of sharing costs and responsibility between the state and individuals.

Extracts from some of the main recommendations:

1. To protect people from extreme care costs we recommend capping the lifetime contribution to adult social care costs that any individual needs to make at between £25,000 and £35,000.   We think £35,000 is an appropriate and fair figure.
2. Not everyone will be able to afford to make their personal contribution, and those currently just outside the scope of eligibility for means-tested support are not currently protected.   To address this, means-tested support should continue for those of lower means, and the asset threshold for those in residential care beyond which no means-tested help is given should increase from £23,500 to £100,000.
3. Those who enter adulthood already having a care and support need should immediately be eligible for free state support to meet their care needs, rather than being subject to a means test.
4. Universal disability benefits for people of all ages should continue as now.
5. People should contribute a standard amount to cover their general living costs, such as food and accommodation, in residential care.   We believe a figure in the range of £7,000 to £10,000 a year is appropriate. [1] 
6. In reforming the funding of social care, the UK Government should review the scope for improving the integration of adult social care with other services in the wider care and support system.   In particular, we believe it is important that there is improved integration of health and social care.  [2]

Estimated cost

The estimated cost of these proposals is £1.7bn per year rising to £3.6bn by 2025.

Two examples from the Report may help explain how this would work in practice.  

Example 1:

Alice lived alone in her own home worth £180,000.  She had dementia and needed to go into a residential care home when she was 83 for the last 5 years of her life.

Under the current system

Alice’s daughter needed to arrange for Alice’s home to be sold in order to be able to use the money to pay for Alice’s care.   Alice had to pay for all her care and living costs in full until she died, spending £165,000 from her pension income and housing wealth.

Under Dilnot

Alice would initially need to contribute in full to her care and general living costs.  After two years she would have contributed £35,000 towards her care and reached the cap.   From then on, the state would pay Alice’s annual care costs of £18,500.  Alice’s general living costs would be paid out of her pension income.  Alice would be able to keep 80% of her wealth.

Example 2:

John has a stroke at the age of 85.  He could no longer manage at home and entered a care home costing £28,500 a year.   He lived in the care home for four years before he died.  Prior to this, he lived on his own, in a house which he owned outright and was worth £140,000.  He had £220 a week from his own pension and the state pension.

Under the current system

John had to contribute all his income except for £22.60 a week and use his housing assets to pay for his care.   He continued to pay for his care in full until he died, spending £74,000 from the value of his home.

Under Dilnot

John would pay the first £35,000 of his care costs and after two years he would reach the cap and then receive all his care without charge.  He would continue to contribute £10,000 a year towards his general living costs.  This would be done through his pension income.

John could choose to use his housing assets to pay for the £35,000 (taking out a deferred payment from the local authority), and still have £105,000 left, three-quarters of his wealth.

Reaction to this report in England

UK Government Ministers responded cautiously.  The health secretary, Andrew Lansley, described the Dilnot report as “an immensely valuable contribution” but warned that the UK Government needed to “consider carefully” the “significant costs” of reform.

Age UK welcomed the proposals. [3] Michelle Mitchell, Charity Director at Age UK, said: “Age UK welcomes the Dilnot Commission recommendations, which set out a clear blueprint for the long term sustainable reform of social care.

The Guardian said:  “Life is littered with potential financial catastrophes, from costly-to-treat illnesses to house fires, but in most cases the risks are pooled, whether through the state or the insurance market.    When it comes to care those with more than £23,500 are on their own, facing potentially unlimited liabilities.   The results are dire.  One in five retirees will clock up costs of more than £100,000.  Some 20,000 people are forced to sell their homes every year.  So Dilnot’s plan is very welcome as a way of staving off ruin for an unlucky minority.”

The Daily Mail took a different view: “The £35,000 doesn’t cover charges for bed and board; those could reach £10,000 per year.  And anyone wanting more than bog standard levels of care will pay extra.  So the middle classes will still face massive costs – while those on benefits will pay nothing.”

 Conclusion

This is a good and more importantly a timely report that points to the questions that we in Scotland also need to ask and answer.

In my next article I will look at latest thinking on this issue in Scotland and in particular what our main political parties said prior to the recent Scottish General Election.

James Aitken
Legal Knowledge Scotland

The article from the Scotsman can be found here.