Belinda Schwehr addresses how councils can take steps to avoid legal challenge in their commissioning practices

By Belinda Schwehr

These questions have been raised with Belinda through her legal training sessions and webinars.

Avoiding legal challenge

What should councils try not to do, by way of commissioning, if they are anxious to avoid legal challenge?
Here are some suggestions: they should not

  • fund packages that are clearly inadequate or irrationally costed, (eg paying less this year for 2-1 care than paid last year for 1-1 care), because of the Care Act statutory guidance requiring that personal budgets are sufficient to meet the person’s needs;
  • make cuts without reassessments – the statutory guidance is clear that review should not be the occasion for a surprise, or an ‘arbitrary’ cut, implying that a change in needs is required;
  • use their bargaining positions unconscionably – for instance, demanding a discount and taking one by virtue of being able to starve the provider into acquiescence;
  • agree to the charging of top-ups to council clients’ families, with providers, without being clear what ‘standard’ appropriate care and support would look like, and that such care is available for the money that the council is happy to pay;
  • refuse to contract for services for carers, on the basis that they can all just have a direct payment – direct payments are a choice for most, but not an obligation for any, customers who are carers.
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