Under the Coronavirus Act, it IS now open to councils – and may well already be necessary – to use the normal legal framework duties as powers only, and to prioritise service provision on the basis of severity or imminence of need only, abiding by human rights.
The problem now may be the sheer shortage of staff and services, not the money, any longer.
The facts still remain, however, that
a) councils’ senior management teams will need to make lawful and considered recommendations (in the name of the elected Members) for policies and strategies regarding the powers to do all that the Care Act used to ‘oblige’ councils to do (ie how to prioritise, ethically and lawfully, even for assessment, and who should be charged, not charged, or just charged later) – the Guidance to which all councils must have regard places an enormous weight on the thinking of the Principal Social Worker, please note
b) front line staff and team managers obviously and urgently need to know how to assess, evaluate and ‘order’ apparent needs relative to each other by reference to type and extremity, and how to recommend the content of care plans or budgets, based on competent human rights aware considerations, and scarcity of resources, not just money. And there’s already been a derogation from human rights in a care home case this week, so this is no small ask…
c) Section 27(2), on revision of existing care plans, has NOT been included in the provisions that are capable of being suspended or modified.
That means that involvement of service users and their carers BEFORE any revision of a care plan – is still a continuing legal obligation.
Whatever involvement might mean to a judge, notification of an arbitrary decision, just taken back at HQ or on an online meeting of the SMT, is not likely to be lawful, we would suggest.
We want to help, rather than hinder, councils facing difficult times, so here are some free ideas for thinking about, sooner rather than later:
- You might develop a policy on screening for assessment for instance, or an online route into supported self-assessment, or issue a statement of categories of service users or types of needs that aren’t going to be thought to be able to sustain a cut.
- You might issue some clear advice and information about a policy for letting people’s relatives be paid out of the direct payment, albeit that they live in the same household. If it’s not necessary now, when would it ever be?
- Or it could be a policy that your council has decided upon for deferring charges for social care, for the duration of the crisis, perhaps, or using its discretion for increasing the Minimum Income Guarantee?
- It might be about a council’s indication of the sort of situations where the council publicises in advance that there would be a breach of human rights if the needs were not met – or what criteria it’s going to use.
Our guess is that your legal department will be overstretched themselves, busy prioritising cases about children’s welfare, right now, and will not have time to train all your staff on any of the above.
CASCAIDr’s Trading Company will gladly do so, by webinar, so that you can offer staff the safety and convenience of listening to the material on their own, whether self-isolating or still at work. The recordings will be part of the package.
Our CEO Belinda Schwehr is known not just as a compelling and experienced adults’ services trainer, but for her neutrality and fidelity to the legal framework as it is, at any given time, not merely how we would like it to be. She is fluent in the language of human rights, as well as social work and care, having trained many thousands of staff on the Human Rights Act – before designing training on the Mental Capacity Act, Continuing NHS health care law, s117 law, and the Care Act itself.
Fiona Bateman, our Chair, is an expert on safeguarding, nil recourse to public funds and Continuing NHS health care, as well as the Care Act, MCA, human rights law and mental health, as well as guidance for multi-disciplinary support for rough sleepers.
Sue Inker is our resident expert on all things MCA / DoLS / Community DoL / CoP, and will be available for consultancy over Zoom, as well. She has been involved recently in mapping the NHS constitution to human rights articles, to domestic legislation and to the regulatory framework, so this expertise in safeguarding and human rights could also be of immense help.
Our Trading Company’s training fees
The webinars will be available from 8 April – £750 in total for 4 hours, broken down to 2 sessions of 2 hours each (a discount from our standard fee to non-charities – we do absolutely get that this is not the time to price gouge, but our Trading Company’s role is purely to support the charity, please note).
Content of Session 1
The first webinar will look at the emergency powers legislation (in force now, but awaiting Guidance and regulations about suspension);
- what it does to the Care Act functions of assessment, review and choice of accommodation/continuity;
- what giving a choice to councils whether or not to adopt the easements, in Guidance that is itself not able to override the law as to suspension of the duties, could possibly mean for legal challenge or liability risk later on;
- and how senior management can use existing equalities and ethical principles to develop a lawful policy and strategy for organising screening, assessment and review functions, for management of existing and future clients’ care and support needs;
- lawful policy development on meeting existing or new and otherwise eligible needs in NON Human Rights cases (existing and new) will be addressed, focusing on significant impact/critical risk, in the context of this crisis;
- suspension of charging functions and expansion of Disability Related Expenditure deductions will be addressed;
- discussions with providers, as to fees, will be addressed.
Content of Session 2
The second webinar will look at the invidious question of using a human rights approach to evaluation and decision-making about actual care plans (for front line staff and panel members)
- a focus on decisions at the point of hospital discharge, where the framework for CHC assessment is also altered in ways that are unclear, given that NHS provision functions do not give rise to enforceable duties in any event;
- a focus on honest conversations with informal carers – and the questions that must be asked before a cut or a refusal of care;
- we will discuss policy development on when it either is or is not, ‘necessary’ to permit close relatives to be paid out of a direct payment – whether or not the government has got around to issuing the guidance that has been promised, by the time of your webinar;
- and we will include a suggested template for decision-making in the online paperwork.
Councils can buy just the recordings – if you can’t spare any of your own staff to participate in person
Councils can buy them separately or together, depending on your needs.
Or you can set up a date for live sessions for £125 extra for bespoke versions of either of the two (ie £375 + £125 for either one, in live form).
- You might find that more useful, say, if your SMT is already making plans but wants a ‘sense’ check of them, as soon as the law is finalised.
- Or you could have Session 2, live, for the team managers who are going to have to moderate front line staff’s recommendations that seem either inadequate or excessive, or just not rational or evidence-based, in relation to what the law will still require.
You can commission a further webinar recording on the changes to the Mental Health Act too, for the same price of £375, but we have to prioritise preparation for the Care Act changes, so we will be offering that slightly later.
If you need legally literate consultancy, instead of or on top of training, all three of CASCAIDr’s training team can provide it to groups of staff, by phone, or through Zoom (for which all you need is your laptops) – for our standard hourly fee to any public body of £200 an hour.
The income will directly support CASCAIDr to continue to support members of the public to ensure that they are treated as lawfully as the new regime will stretch to!
Please email email@example.com if you want to set up a specific date for bespoke sessions, or firstname.lastname@example.org, if you need urgent consultancy.