Social Welfare Update: Court of Protection: Personal health budget with third-party brokerage; lack of alternative options

Tuesday 28 May 2019

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The focus of the dispute was the proposal for a third party brokerage organisation to administer AJ’s personal health budget.

Although by the end of the proceedings there was only one realistic option on the table, the case highlights that where there is a breakdown in relationship between family and public body, and a very large home care package needed, recourse to the court may be unavoidable. 

The facts of the case

AJ, a man of 24 who has autism and learning disabilities and sometimes challenging behaviour, had lived in the family home full-time since 2014 after his schooling came to an abrupt end. The CCG funded and interim care package under which AJ’s parents were paid £4,816 per week to pay for carers including themselves. 

The CCG applied to the court for determinations as to AJ’s capacity, care and residence asserting that the relationship between family and CCG had broken down, that the current arrangements were not satisfactory due to lack of oversight of AJ’s care, and could not continue as they were not in accordance with direct payments regulations. 

There followed a series of directions hearings when orders were made to facilitate the assessment of AJ in the context of an “absence of a co-operative, flexible working relationship between AJ’s family and the funders of his care”.  After that, the CCG said it had the information and assessments it needed to formulate a care plan.  It proposed to fund the same amount of care at home but instead of making direct payments to the parents it proposed that payment of carers and management oversight would be carried out by a third party brokerage organization, as in its view “an additional layer of CCG commissioned clinical governance and oversight” was essential. It was not prepared to continue to fund the care package on any other basis. Thus this was the only viable available care option for AJ, the alternatives being remaining at home with no funded home care package or moving into residential care. The Official Solicitor on behalf of AJ supported the brokerage proposal. The parents, who were unrepresented, did not agree with the involvement of the third party brokerage, saying they did not need this assistance.

The judge's decision

In her determination of AJ’s best interests, HHJ Hilder identified that no party contended for the only other potential options - no paid-for home care package at all or residential care. The CCG was not prepared to continue the current interim home care arrangements (a point which the parents had failed to take on board). The principle in N v ACCG & Others [2017] UKSC 22 was applicable: the court only has power to make a decision that P could have taken; it can only choose between available options. 

The judge went on to hold that the process referred to by the UKSC at paragraph 39 of “independent investigation...coupled with negotiation… in which modifications are made to the care plan and areas of dispute are narrowed” had been fully pursued. Moreover it was right that such large funds should be administered in a way that was open, transparent and impartial and that would not be the case if AJ’s parents managed the funds using a large part to pay themselves without any system of oversight. Of the narrow range of options available the home care package with brokerage was very clearly in his best interests.

It was held that AJ was deprived of his liberty by virtue of the home care arrangements, which would be authorised with a court review in 12 months’ time. 

Read the full judgment here: Harrow CCG v IPJ, IJJ and AJ (by his litigation friend, the Official Solicitor) [2018] EWCOP 44, HHJ Hilder, 20 April 2019 

Bethan Harris is a member of the Garden Court Chambers Court of Protection team.

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