This situation must arise all the time. I came across it a great deal when I worked in domiciliary care – the point at which the local authority refused to put in place that extra visit. Historically this has arisen more frequently for older people, as there weren’t so many sources of funding for support to remain in their own homes. With the closure of the Independent Living Fund and policies like Worcestershire’s Maximum Expenditure Policy, this scenario is going to arise more often for younger people. Yet despite this situation being potentially quite frequently occurring, I am a little uncertain about how – at law – local authorities are supposed to proceed.
It all starts with an old(ish) public law case called Khana v London Borough Of Southwark . In that case, Mrs Khana had been offered a care home placement by Southwark, which she refused. She, and her family, wanted to be provided with accommodation where she could be looked after by her daughter. In part this was related to her cultural heritage as an Iraqi Kurd, whereby it ‘would be contrary to Kurdish custom and culture as their older people are seen as being intrinsic to the family unit’ . There were also concerns that in a care home she would be placed in a non-Kurdish speaking environment. In fairness to Southwark, they had offered a joint placement for Mrs Khana and her husband, but this was still unacceptable to them. The critical point for our purposes, however, is that it was the view of the local authority that ‘the only way in which Mrs Khana's needs can properly be met is for her to go into a full time residential home’ . So the question arose: given that Mrs Khana had refused the offer of a residential care placement, were Southwark obliged to make an alternative offer of support to her, which they believed would not meet her assessed eligible needs? The Court of Appeal found that they were not:
‘I would wholly endorse Mr Drabble's general submission that s. 21 of the 1948 Act and s.47 of the 1990 Act contemplate an assessment by the local authority of a person's accommodation needs, which takes very full account of their wishes, including the very fundamental aim of preserving the independence of elderly people in the community and in their own homes for as long and as fully as possible. A certain degree of risk-taking is often acceptable, rather than compromise independence and break family or home links. But, where a local authority concludes, as Southwark did here, that "the only way in which Mrs Khana's needs can properly be met is for her to go into a full time residential home", and makes a corresponding offer, and where this assessment and the reasonableness of the offer made cannot be challenged as such, then the local authority has in my judgment satisfied its duties under the legislation.’ The Court of Appeal went on to find that since Mrs Khana had unreasonably refused the local authority’s offer of a residential care placement which would meet her eligible needs, the local authority had discharged their public law duties to her until such time as she changed her mind .
A number of puzzles arise out of this ruling. In the first place, the Court of Appeal placed reliance on the fact Mrs Khana's unreasonable care refusal discharged the local authority's duties towards her, but they did not consider relevance of her mental capacity to make such decisions. Capacity is not mentioned once in the Court of Appeal’s judgment, which in today’s post-Mental Capacity Act 2005 (MCA) world seems unfathomable. Yet in the High Court judgment (Khana and Karim v London Borough of Southwark (2000) WLR 1791525; available on Westlaw, but I can’t find it for free anywhere else) it is clear that Mrs Khana was found to lack the capacity to make decisions about her care and residence (paragraph 16).
In fact, the High Court and the Court of Appeal’s reasoning around Mrs Khana’s capacity appears confused. In the High Court, Hallett J comments that ‘Mrs Khana cannot be compelled to accept the accommodation provided’  – yet this is clearly incorrect today in light of the MCA and the deprivation of liberty safeguards (not to mention guardianship). The Court of Appeal goes on to say that ‘there seems to be no basis for concluding that, if these proceedings failed, she or anyone acting for her, would refuse to take up the residential place that remains on offer’ . This suggests that one factor influencing the Court of Appeal’s judgment is the presumption that either Mrs Khana will change her mind, or some (unspecified) other person will decide she should accept the placement on her behalf. Aside from the fact this contradicts Hallett J’s assertion that Mrs Khana cannot be compelled to accept the residential care placement, it seems highly unfortunate that the Court of Appeal did not dwell longer on who would have the authority to make this decision for her. Prior to the MCA this was, at best, unclear, but post-MCA it would most likely be the local authority themselves (with conveying an objecting person to this new placement being a substantial grey area).
So to recap, Hallett J seems to think the local authority would have discharged their duties to Mrs Khana in circumstances where she has refused the residential care placement, they have not compelled her to accept it nor offered any alternative care, and where she lacks capacity. This is strikingly at odds with a common presumption in care services that a local authority’s obligations towards a person who lacks capacity do not simply terminate with care refusal. See, for example, this passage from the Serious Case Review into the murder of Stephen Hoskin (see this news story for summary):
'A person’s refusal to receive care and welfare support has legal force when: it is made by a person with capacity; it is premised on appropriate information about the consequences of disengagement; and it is made free from duress. Minimally, Steven’s ‘choice’ should have prompted a dialogue in order to ascertain the circumstances surrounding his decision, the factors that prompted the decision to discontinue his social care support, and to consider whether a more effective working relationship with Steven could be created. 'Admittedly Serious Case Reviews are not a source of law or even particularly strong legal understanding. We have not yet seen a case which confirms the extent to which a local authority may be held responsible for the harm which befalls a person as a result of their refusing care services, where that refusal is (later deemed) incapacitous, but where the local authority chose to accept it as discharging their duties towards them. I suspect such a case cannot be far away, and that it would gain strength from rulings like Rabone.
To return to Khana, the Court of Appeal ruling appears problematic for another reason. In situations like our fictional service user, Albert’s, there appear to be two possible options:
- The local authority are not obliged to provide any support at all if the person chooses to remain at home; or
- The local authority are obliged to provide some care for the person if they choose to live at home (up to the limit of their resources), but the decision maker (whoever that is) will need to make an informed decision about the risk of having some unmet eligible community care needs.
But it is not entirely clear that Khana is authority that a local authority should never sign off a care plan which does not meet all of a person’s assessed eligible needs. In the first place, the Court of Appeal appear unconvinced that this will, in fact, follow for Mrs Khana, as they seem to think she’ll end up in the care home anyway as she’ll change her mind or somebody else will decide that for her. Secondly, the Court of Appeal also make obiter remarks to the effect that if a person is already living in their own home and refuses a residential care placement, the local authority may ‘do the best it can’ . If Khana is authority for anything, therefore, it is that a local authority cannot be compelled to provide an inadequate care plan in new accommodation. It remains an open question whether they can (or must) provide an inadequate care plan for a person in accommodation which already exists if they refuse a care home placement.
It seems to me that where existing alternative accommodation exists, Option 2 must be a possibility. It must (surely) be irrational to say that a local authority must either meet all of a person’s assessed eligible needs in residential care, or meet none of them in their own home if the person chooses to remain there. Surely there must be circumstances where a local authority can sign off a care plan which only meets some of a person’s assessed eligible needs, on the basis that the decision maker has understood and accepted the risks attached to that? This must be especially so in light of the importance of respect for home and family life under Article 8 - especially if one reads it in light of Article 19 of the UN Convention on the Rights of Persons with Disabilities.
These complexities are exacerbated where it is alleged that a person lacks the mental capacity to make such a decision. In fact, I suspect deciding that a person lacks capacity and bunging them in a care home anyway is a common device used to circumvent such tricky issues. Yet the ruling in CC v KK (2012) means that, in theory at least, local authorities must address this question. In CC v KK Baker J made clear that one cannot approach the assessment of a person’s capacity to choose between living in their own home or residential care accommodation with a ‘blank canvass’:
‘The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed. I find that the local authority has not identified a complete package of support that would or might be available should KK return home, and that this has undermined the experts' assessment of her capacity. The statute requires that, before a person can be treated as lacking capacity to make a decision, it must be shown that all practicable steps have been taken to help her to do so. As the Code of Practice makes clear, each person whose capacity is under scrutiny must be given "relevant information" including "what the likely consequences of a decision would be (the possible effects of deciding one way or another)". That requires a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which option would be supported. In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support. I am not satisfied that KK was given full details of all practicable support that would or might be available should she return home to her bungalow.’ This suggests (to me) that we must confront the question of whether or not local authorities must be obliged to generate alternative care plans to support a person in their own home, even where they feel that such care plans could not possibly meet all of a person’s eligible needs. This is an issue which arises prior to best interests decisions, as these alternative care plans will be necessary in order to assess a person’s capacity to choose between the options.
Rulings like CC v KK, and research by Emmett and colleagues, suggest that local authorities cope with this ambiguity about the need to generate alternative, undesirable and risky care plans by conducting capacity assessments and making best interests decisions with only nebulous, unspecified, alternatives to care home placements on the table. Perhaps they have been relying on Khana as a basis for refusing to produce care plans for options which they feel carry risks and do not meet all of a person’s assessed eligible needs. I wonder how long it will be before the courts are called upon to revisit Khana?