Good Administrative Practice during the response to Covid 19 – from the Local Government Ombudsman – with legal commentary from CASCAIDr

The LGSCO has published this guidance in the first week of May 2020, having closed to complaints in March.

The LGO covers most local government functions, not just social services, but CASCAIDr has looked at the guidance from the Adult Social Care perspective, because that’s the focus of the charity, both before and during Covid-19 – and particularly because of the changes made to the Care Act (easements, as they are called) under the Coronavirus Act passed in March and brought into force for schedule 12 changes to social services as of 31st March.

“The Covid 19 crisis is placing unique pressures on care providers and councils. We recognised this by suspending all our casework activity that would have demanded information or other action by these organisations. We took this step in the wider public interest, to protect the capacity of councils and care providers to deliver vital frontline services.”

Commentary: we do not know of any legal power by which the LGSCO took this decision on what is a statutory responsibility, under the 1974 Local Government Act but are sure that it will be explained, later. It is true to say that the LGO’s function to investigate matters is a power and not a duty, but the context of that function is the exercise of a discretion regarding whether a particular complaint qualifies for investigation by the LGO – not a discretion simply to close the doors.

It’s a bit like a council saying – having adopted the Care Act easements – ‘Right – assessment of needs isn’t a duty any longer, it’s just a power, and we’rve decided we’re not even going to screen people for the question as to who we should focus our assessment resources upon.” The Easements guidance makes it clear that “The Coronavirus Act does not give authority to block, restrict or withdraw whole services.”

So we have to say that it’s not clear to us that the LGO has even GOT the power to abdicate from the statutory function imposed by Parliament.

“We expect councils and care providers to respond appropriately to any complaints during this time of national emergency.”

Commentary: given the likely seriousness of a person’s concerns in the Covid crisis we do not think that the Complaint System is fit for purpose, because of the lack of any finite date by which the complaint must be dealt with, or rather, the lack of any sanction if the council exceeds 6 months. The LGSCO offered the only backstop source of redress for abject delay, and the LGSCO has shut down. This means that members of the public have now only got the choice of resorting to asking a councillor for help, the Monitoring Officer, or seeking legal advice with a view to going to the Administrative Court for judicial review, all of which would still require the council to respond.

“Resources are stretched, redeployed and operating under emerging and fast changing rules and guidance. But, whilst we understand their responses may look different to those we would expect during normal arrangements, we think that all urgent and serious public concerns should still receive attention.

When normal services resume, we will inevitably investigate complaints about what happened during this crisis phase.”

Commentary: we are not sure whether the LGSCO means the ombudsman’s normal service or normal services from councils. The latter may not resume for 2 years – or a council might go in and out of the easements. We have no idea how long the LGSCO thinks that the public interest requires that organisation to suspend its own statutory role.

“We have a power to publish principles of good administrative practice. These apply equally well under crisis conditions. They are designed to act as a compass, not as a map. The compass will work equally well, no matter how rough the terrain is to be crossed.”

Commentary: these principles are principles of public LAW, and should be described as such. That’s why they work over any terrain – public law and human rights have not been suspended by the virus.

“This short guide is therefore intended as an addendum to these principles. It is structured around the same six principles. It is intended to be helpful in encouraging organisations to reflect on practice during the crisis, and to make clear the standards we expect and the way we will consider complaints when we investigate downstream.

Although we have yet to investigate complaints that originate from actions during the crisis, this guide draws on learning from cases reviewed as part of our recent report about managing change – Under Pressure.

1.    Getting it right

  • Basic record keeping is vital during crisis working. There should always be a clear audit trail of how and why decisions were made, particularly summarising key reasons for departing from normal practice.”

Commentary: a review of the LGSCO’s past year of reports suggests that record keeping had sunk to indefensibly low level in the name of ‘streamlining’ the ‘burdensome’ requirements of the Care Act. Some councils will be thinking that they’re doing a great job of staying on THIS side of the easements, at stage 2, only to discover later that they’ve not been complying with the Care Act recording duties for some years, and should have announced going into easements from 1st April onwards!

  • “Where you are working with new organisations to deliver services during Covid, or using existing partners in new ways, ensure your organisation keeps proper oversight and direction. Where you delegate responsibility to others (e.g. voluntary sector), responsibility remains with your organisation”

Commentary: the duties under the Care Act are non-delegable – that is why – whether a council has contracted with a provider for a care package, or delegated a social work function TO an organisation, the duty owed to the member of the public, which was ultimately to meet the needs appropriately, remains with the council. Even if the duty has become a power, and a power only, nobody expects it to be possible to say ‘Well we did what we could, but you weren’t owed a duty of care and therefore there’s no possibility of liability to you for foreseeable harm that we should not ever have allowed to happen’. The LGSCO is warning councils here not to forget that if they’re paying providers to do anything, they have to monitor the delivery of that service because of the responsibility owed to the ultimate service recipient.

  • “Where Covid is causing you to devolve decisions to a more local level, make sure those decision makers can access prompt, appropriate legal advice where necessary.”

Commentary: the Easements guidance warned against councils trying to use authorisation Panels for budgets or packages, in the same way as normal, because there just won’t be time. So this is saying make sure that if less experienced staff are going to have an enlarged budgetary authority under the council’s delegation scheme, they can access legal advice. The irony here, from our perspective is the implication that those PANELS ever took legal advice about their decisions, their recording, their reasoning and their public law obligations. Case law would suggest not! (the Merton case from 2017)

  • “Where re-deploying back office resources to the frontline, care should be taken that this does not undermine the organisation’s ability to maintain essential operations.”

Commentary: We’re not sure what resources might be in mind here – charging officers might be being used for advice and information, perhaps, if financial assessments have been suspended under the easements.

2.    Being service-user focused

  • Where new or adapted policies and procedures are brought in, ensure frontline staff are clear about any new expectations so they give the right advice to service users.”

Commentary: in our experience, it’s remarkably difficult to translate the strategic vision of senior managers into a written policy and from there, clear instructions to front line staff as to how to HOLD the difficult conversations that they’d be needing to have with members of the public. And in public law terms, there’s often a legal way of saying things, and a shorter or more direct form that oozes illegality, so every word matters.

  • “Even where national rule changes allow raised thresholds for action, ensure you properly consider the individual circumstances of each case.”

Commentary: the Easements as they are known actually suspend Care Act duties for assessment, reviews and care planning documentation but the government has asked councils to hold off adopting the changes until they absolutely can’t cope with the Care Act as it was originally written. The Easements guidance requires the continuation of person-centred assessment and care planning in so far as councils do it at all, and to decide not to, one would still have to have a thought process in the first place – so we think it’s a false saving to fail to consider people’s circumstances…

  • “Emergency working will cause backlogs in access to many, now lower priority services. Try to plan ahead for phased return to normal working, considering a triage approach where fair and appropriate to the service area, rather than necessarily ‘first in, first out’.”

Commentary: this is where senior management’s strategic vision is most important. It’s not about reviewing high cost cases any longer, but about telling the most critically needy people that they will not be regarded as lower risk, and getting onto those who are.

3.    Being open and accountable

  • The basis on which decisions are made and resources allocated, even under emergency conditions, should be open and transparent. Any new criteria, thresholds and timescales should be clear to service users and staff.”

Commentary: The councils who have adopted the Easements have not publicised what they were doing in a standard way, and there is no duty to do that – only a request that notification is made to the DHSC. But it was written up in Community Care the week after it first started to happen. CASCAIDr’s reaction to that range of easement flavoured steps is that most of what is described is simply operating under the Care Act, if done carefully and that ONLY ONE of the councils in question, really needed to make the decision to notify the DHSC. That is indicative of the lack of legal literacy amongst staff and PSWs, we would have to say. We would guess that 50% of social services local authorities are also doing what is described in this article, and rightly not notifying the SoS about it at all, because it is just flexing or even FOLLOWING the Care Act to the letter.

  • “Decision reasons should be clear, evidence based and where necessary explained in the particular context and circumstances of that decision.”

Commentary: that is advice from pure public law – the duty to be rational and transparent is part of the always developing common law of our country – the part that applies to public bodies, everywhere.

  • “However, normal expectations on the need to consult service users and stakeholders may not be feasible or appropriate. You should document and explain departures from normal practice.”

Commentary: this is an interesting exercise in bet hedging: the public sector equality duty hasn’t been suspended, and the duty to involve hasn’t been suspended with regard to revision of any existing care plan, and the duty to consult best interests consultees, as an inherent and essential part of operating under the Mental Capacity Act hasn’t been suspended…

Indemnities, retrospectivity for the delivery of the easements, and various central government assurances of ‘whatever it takes’ have been given, however, so legal risk management is not likely to be the first thing on anyone’s mind.

4.    Acting fairly and proportionately

  • If you use new or revised policies and processes this should not lead to arbitrary decisions and actions. Ensure you have a clear framework for fair and consistent decision making and operational delivery.”

Commentary: avoid arbitrariness and any suggestion of predetermined or fettered discretions.

  • “Decisions to change practice without consultation should be documented. You should commit a timescale to review any new practice to ensure exceptional working doesn’t become the ‘new normal’.”

Commentary: only history will tell whether this exhortation made any difference at all…

5.    Putting things right

  • Although complaint handling capacity will probably be reduced for a time, it is important authorities can still deal effectively with the most serious and high-risk issues that are brought to them.”

Commentary: Yes, the Easements guidance says

‘Local Authorities need to ensure that there is a clear and transparent pathway for people with care and support needs, carers and providers to quickly raise concerns should they believe either the decision or the care package is in breach of the European Convention on Human Rights.’ (Annex B)

  • “We have suggested authorities use the following approach:

Commentary: You can probably see why we don’t think there’s much value in anyone complaining about concepts of legality, eligibility, rationality, transparency and fairness, when there is no legal framework other than public law which is not part of the training of local authority social workers anyway….

  • “Plan for a return to normal in complaint handling, making sure the crisis does not turn into longer term erosion of the organisation’s capacity to listen to concerns.”

Commentary: Running a complaint system is a statutory obligation, particularly in a field of endeavour that admits of no appeal rights! You might think that the same was true of the LGSCO’s oversight of failures in the complaint system…

6.    Seeking continuous improvement

  • Continue to use complaints as an effective and immediate form of feedback during the crisis. Complaints can continue to tell you where new challenges are developing and where things are going wrong.
  • While most staff focus on short term responses to the crisis, keep a longer-term view to ensure the authority is prepared for downstream consequences and plans for recovery and normalisation.
  • In a time of rapid change, try to ensure you don’t lose critical organisational memory. Staff used out of their normal areas during the crisis will likely return afterwards, risking loss of critical records and memory.”

Commentary: We think that what happens ‘afterwards’ depends on what form of finance is provided to local government – across the whole range of its functions – because that is what will determine the extent to which extra staff can be taken on to cope with the backlog – not just of complaints but of Care Act Easement Flavoured Assessments, going back to “normal service”.