In 2020 we got off to a good start, pointing out to Dominic Cummings, in a letter delivered to his London address (not Barnard Castle…) that councils probably owed £150m to people by way of restitution for non-compliance with the Care Act.
The Court of Appeal had made financial reimbursement (for money spent or labour provided) into a viable remedy for breach of the statutory duties in the Care Act, in October 2019 in a case called CP v NE Lincs.… and we had ourselves got £76K back for a family, just by knowing how law works.
We suggested to Mr Cummings that the government (any government!) probably needed to think of a seemly way of organising that exercise – perhaps by grant funding us to work out which cases had a legally strong basis. A bit like the NHS funds Beacon for providing credible continuing NHS healthcare legal advice, we thought…
But then Covid-19 landed, and all bets were off.
Firstly, it led to the suspension of the legal framework that underpins our very existence and our tools for the job, and secondly, it radically affected the availability of reliable expertise in the specialist field of law we work with, which was already very thin on the ground.
The Care Act was modified, but councils were told to pretend that it wasn’t, unless they really, really needed cover for doing less than what’s normally expected of them, by the law – through the concept of the Care Act ‘Easements’.
A year later, no councils (not blue, red, yellow or green…) seem to feel the need for that cover. But no council that is ‘prioritising’ and ‘rationing’ services by reference to what they’ve got, rather than commissioning to meet needs adequately, is legally ‘safe’, in fact.
When we guestimated that £150m needed to be paid back, we weren’t even thinking of charging law.
But by the end of 2020, Norfolk County Council had been held to be making unlawful charges. The impact of that decision looks set to trigger a restitutionary exercise across the country of as much as £1m per authority, ON ITS OWN, just for that bit of wrongdoing, never mind the value of all the other Care Act breaches…
In this coming year, CASCAIDr will either collapse from the tsunami of need for specialist legal advice – or make sufficient money to survive and make more of a difference. Please apply to join us as a caseworker if you are really strong at public law – we pay decent rates, to keep the expertise going.
Please also look out for our Reversing the Charges campaign on Crowdjustice, https://www.crowdjustice.com/case/disabled-and-done-over/ and please give generously, either there, or HERE on the button on the right, if you care about community care law and legal rights.
We’ve done more briefings and education this year than we expected to, about Covid Easements and human rights, DNARs, the relationship between care homes, the NHS and local government, and the regulations about visiting. Our CEO has been on R4’s ‘Today’ and ‘You and Yours’ programmes and Co-ProduceCare’s podcasts.
We ran a fundraising campaign for 10 days of posting and answering 10 questions per day, about the most common legal problems that people have to contend with, and made about £6,000, which was great.
On the public law side, cases about cuts, day care closures, young people transitioning into supported living (or not!), providers needing to raise their prices to direct payment clients, having only just realised that they ARE their clients, providers’ fee disputes with councils, and the general breakdown of due process around reviews (fuelled by pandemic pressure) have filled up our days….
We’ve been involved in some shocking cases that sadden and appal us, as legal thinkers, about the way the social care world is headed.
For example, cases where …
- a council has failed to pick up responsibility for a woman in a care home without anyone else to arrange payment for her, until the person had no money left at all, whilst telling the relatives that they would have to pay a top-up;
- a council has told vulnerable adults that they couldn’t have direct payments even though they’ve all had enough capacity for tenancies -organised by the council’s own social workers – AND had a corporate helper to nominate as their DP manager;
- a supported living provider told service users they could not go to day care because they lived in shared accommodation; a care home said that a resident could not go home to their families (it was part of their care plan) and expect to be re-admitted; that they could not be visited despite being in the last few days of their lives, or because the Xmas visiting guidelines from government were simply being countermanded by the local authority which had placed the person so that both it and the hone owed human rights to the man in question…
- a housing association, used to getting rental voids paid for by a care provider in supported living, had thought that it had the legal power to tell the care provider that it had decided the care provider wouldn’t be able to provide the care to the council’s clients living in that house any longer, despite having nothing to do with the care contract at all;
- where a woman had been paying for her mother’s live-in care for over a year and the council had allowed that to continue on the basis that there was no evidence the mother needed anything more than a standard offer of 4 visits a day;
- a council had failed to do a proper assessment of a man, where a review (policed by us) led to an increase in 10 hours a week of care – nearly double what he had been having – he will now get restitution because he paid for the shortfall himself.
- a council had not put up its direct payment rates for 5 years, leading an elderly man to consider equity release, and self-ration his care plan down from 34 hours a week to 27, just to get by;
- a care provider had threatened to sue an ex-client’s mother for the fees that the council had failed to pay, until we became involved and resolved the matter;
- a CCG had messed up a budget for a gentleman by failing to realise that the salaries it had agreed to fund for the man’s care team, inevitably carried on-costs that needed to be part of the personal health budget -and blamed the man’s wife for paying the ‘wrong salaries’;
- a council had left a person’s placement in a care home underfunded to the tune of £16,000, in comparison to what it was paying for similar clients in the same home, for at least 5 years;
- a council had informed a couple with autistic spectrum disorders and hugely complicated inter-dependencies that it could not ‘find’ a provider to meet their needs (until we got involved and pointed out that that would be a breach of statutory duty)
- a council and CCG had failed to provide a man with a s117 care plan and instead used the Care Act, ignoring the scope and purpose of aftercare services altogether;
- and at least three cases where hospital discharge arrangements during one of two periods of special NHS funding responsibility were royally cocked up through simple lack of grasp of the legal framework by all the public authority staff – in two of which the daughters of the discharged patient ended up in dispute with the council about who should have been doing what.
On the charging front, too, we have
- got a judgment of over £19,000 worth of charges and alleged misuse of a direct payment set aside
- got £6,000 of charges debt wiped out, because of appalling behaviour by a charging team regarding Disability Related Expenditure
- prepared to launch our first ever crowdfunding campaign called Reversing the Charges – Disabled and Done Over? – to help people get back between £300 and £3000 each in unlawful and discriminatory charges that councils have made.
These developments have nothing to do with party politics. The nation is now facing the consequences of deeply entrenched management thinking – driven by the ideology of austerity, that has prevailed, with majority public support – that public service authorities don’t need funding to get the law right or manage their own governance.
We see no way back from that, other than decisions from the Administrative Court that underline that there ARE consequences – just occasionally – for skimping on legal literacy.
Finally, although we don’t ‘do’ safeguarding work, we have had to flex our stance a little for several clients needing help when suddenly finding themselves on the wrong end of CoP proceedings, unable to get legal aid, themselves, unable to present as a litigation friend for their relative, given the thrust of the allegations made against them, and unable to get the Official Solicitor to listen to them about the ‘public law’ wrongs regarding the unsuitability of what’s been being offered by the local authority, in the first place – never mind the Mental Capacity Act wrongs.
It has been those positions, taken by dint of necessity by the persons’ relatives, which has led to these doughty informal supporters being cast as people who are somehow ‘obstructing’ the delivery of the care in the best interests of the needy relatives.
We’ve provided advice in those situations as to how to get the matter stayed and heard properly in the judicial review court, where there is no danger whatsoever of Official Solicitor bothering to say that the person is not a suitable litigation friend.
We have to say that we find it astonishing that the legal professional world and the judiciary in the CoP seemingly see nothing wrong in the practice of issuing in the CoP rather than dealing with a public law argument. It means that the jurisdiction of the Court of Protection being strained so far beyond the doctrine of necessity and notions of best interests that it may as well be called the Administrative Court-Lite, – ie a court with public authority parties before it all the time, but without the ‘inconvenience’ of public law principles and precedent, on which community care law depends, to hold it back!