Author Archive for belindaschwehr

Summary of Counsel’s advice about the Norfolk Case

By publishing key points from the Advice received from Zoe Leventhal and Emma Foubister, counsel who acted for SH in the Norfolk case, CASCAIDr hopes to help many others who may be in a similar situation and experiencing discrimination that may be unlawful, regarding their care charges.

You can read the advice in full, here: Click here

Other local councils must consider the ruling and examine whether their policies could be discriminatory to ensure they are fulfilling their Public Sector Equality Duty and that they are not breaching the Human Rights Act. While other councils’ policies are not automatically unlawful merely as a result of the decision in SH’s case, if the policies are considered to be discriminatory, they must take steps to correct this.

The judgment in the Norfolk case found that there was an unjustified difference in treatment between, on the one hand, the severely disabled (with needs which result in higher assessable benefits and no realistic access to earnings from employment or self-employment, which are disregarded) and, on the other hand, everyone else receiving council services covered by the Charging Policy. Their treatment was different because the Charging Policy meant that a higher proportion of SH’s income (and of other severely disabled people in the same position) was assessed as available to be charged than theirs, and the result was that she was charged disproportionately more than they are.

Belinda Schwehr, CASCAIDr’s CEO, welcomed the Advice. She said this: 

“I believe that this authoritative Advice will be useful for people in many different situations, if paying council charges for care, and for those who manage other people’s money in their best interests (through appointeeship, deputyship or power of attorney). 

The Advice was commissioned so that it can be referred to when individuals are engaging with councils as to their own charges under local policies – in most cases, policies that are very similar to the one which was found to be unlawful in Norfolk. 

It will enable the wider public to take action from a well-informed perspective, whether as individuals or groups, and to ensure that local authorities remember that they are accountable to a legal framework, even when operating under discretion, and in difficult circumstances. 

It will undoubtedly help bring about changes in many councils’ policies, whatever they think of the Norfolk case itself. It may dissuade some councils from enforcing a number of clients’ charging debts. It may even lead to some refunds – refunds to people whose situations mean that they need to keep every single penny of income that they possibly can.”

We would like to thank Leigh Day, solicitors who supported our work, and everyone who donated to our CrowdJustice page to fund the legal advice. This page remains open for further work on this matter, and of this kind, in future.

See here for making a donation if you possibly can: https://www.crowdjustice.com/case/disabled-and-done-over/

Special thanks are due, too, to Kaylee Lindsey, a CASCAIDr assistant, whose many years of helping people with charging sagas inspired this project.

In summary, Counsel has now advised as follows:

“…policies which:

(a) reduce the MIG to the statutory minimum;

(b) choose not to disregard certain disability benefits;

(c) have poorly functioning DRE schemes; and

(d) do not consider alternative approaches,

are likely to be discriminating against severely disabled people.”

There may also be other categories of claimants who are in an even worse position than those in SH’s cohort.

All Councils have an ongoing duty to keep their charging policies under review because of the PSED, the Human Rights Act obligation not to act contrary to human rights, as well as their other legal obligations (e.g. under the Care Act) and general public law principles.

In that regard, the Norfolk case and its outcome is a relevant consideration, of which all councils must take note. It would not be appropriate simply to assert that it is believed to be “wrongly decided”. It identifies an approach which is discriminatory, and which would require to be justified, if a similar approach was not changed. It doesn’t make other policies automatically unlawful, however similar they are; but “if a council has a similar policy and has similarly failed to engage with the Guidance and/or consider the potentially discriminatory impact of the policy, then it is highly likely that it is also acting unlawfully in the same way as Norfolk was.”

Each council needs to make a decision about whether its policy needs to be changed, and if so, how to change it, and then come to a view about the consequences flowing from those changes. There’s no necessarily correct way to be sure of avoiding the discriminatory impact flowing from a policy with similar impact.

If councils’ policies are accepted to be discriminatory, or found by a Court to be so, then refunds based on recalculated charges should follow, because the charges will have been rendered under a policy that should then be regarded as void.

A local authority’s complete failure to respond to or engage with communications on this issue (whether from individuals, corporate appointees or interested groups) could be maladministrative, but it is not expected that councils will behave in that way. Any such referral to the Ombudsman “could be supported by evidence that there are vulnerable clients, such as those who are mentally impaired or need protection from abuse, who would be unable to investigate the matter themselves”. Counsel would expect that councils adopting good practice would proactively seek to address these issues and repay any charges found to have been unlawfully levied under a discriminatory policy, in line with the various legal obligations which require them to do so, and as Norfolk has done.

WHAT ALL THIS MEANS, in CASCAIDr’s view…

Not automatically discriminating – other councils are not bound by the case, in a direct sense, even if their policies are the same as Norfolk’s was. They are entitled to take advice about it and act in accordance with that advice, and they can then be challenged. The credibility or authority of such a view remains to be evaluated when it is disclosed in the course of correspondence about the policy. CASCAIDr called having a similar policy ‘presumptively unlawful’, when first writing to councils earlier on this year.

Putting councils on notice – we wrote to all councils on 22 January 2021 here: https://www.local.gov.uk/letter-centre-adults-social-care-advice-information-and-dispute-resolution and have heard back from about 100, so far, but mainly only to tell us they are ‘awaiting’ advice. From some, we have heard nothing at all. We have also researched most of the policies of councils in England, so we know which ones have policies that must be seen as in the danger zone.

Separate Advice taken for the council sector – we believe that the council sector has now received its own leading counsel’s separate Advice, and that councils are considering it regionally. THIS Advice, though, obtained by CASCAIDr, will no doubt also be considered – every council is in a different position and entitled to make its own mind up.

FOIs as the next step, after a reasonable period – we are happy to wait a while longer before following the suggestion made in this Advice: “Where this has not been effective, a next step may be to use the Freedom of Information Act to elicit further information about the steps taken since the decision in SH and/or whether an updated EIA has been undertaken since that decision (see further below).” When we move to that step, starting with the councils who have not responded to us at all, the FOIs will be made public.

Complaints and the LGSCO – if they think that the case was wrongly decided, councils might well make it clear that they will not be amending policy by virtue merely of individuals’ complaints, because complaints are not apt for matters of legality. That would not shut off the LGSCO (Ombudsman) route, because, in fact, it is not a prior complaint, that is the statutory pre-condition to the Ombudsman accepting jurisdiction, but the question whether the council has been afforded “a reasonable opportunity to investigate the matter, and respond“. Then again, the Ombudsman’s system is not able to make decisions as to what the law is, only ‘fault’ and ‘injustice’. However, the Ombudsman’s team IS experienced in upholding complaints as to when non-compliance with well-known decided case law itself amounts TO fault, and awarding compensation for that kind of injustice.

Implications for those in current debt from charges – individuals who do not pay their charges, or do not pay them in full, may ultimately force councils to test the validity of the charges in another way, if the council sues for recovery of the charges – because the debtor can raise the unlawfulness in the local civil court, as a defence. The County Court Judge is bound to follow the Norfolk case as binding legal precedent on the issues at stake. Any client without sufficient capacity to instruct a solicitor would need a willing litigation friend, to represent their interests, before they could even BE sued, and the Official Solicitor is unlikely to be willing to provide that service without the council undertaking to pay the person’s costs. So if your council’s policy appears to be ‘doing a Norfolk’, bear that in mind – but also that you won’t get legal aid if it comes to the crunch, in that sort of action.

Public law claims for refunds – where more than just change for the future is wanted, locally, individuals’ claims for reimbursement of sums representing unlawful charges, would need to be made in the Administrative Court, if councils refuse to accept that they are bound by the Norfolk decision and must make such refunds.

Limitation – the monetary claim can wait 6 years from the date of any instalment of the charge, such that if the charging policy may always have been unlawful for the whole of the last 6 years since the Care Act came into force in April 2015, and has not ever been revised, claims started sooner, rather than later, now, will serve to maximise the amount liable to be paid. That means that although there is time in most areas (where policies have only been in force for 2-3 years) to engage in correspondence on behalf of large groups of people, leaving it a long time before deciding when to draw a line under just corresponding, does not make sense.

Night time care needs’ disregards, and DREs as a concept – any council taking the view that the DRE element of its policy was or is the means by which it can mitigate against the discriminatory impact inherent in NOT applying a higher than minimum MIG, locally, faces a hard task in defending that stance. The judge did not think that a DRE disregard, as a concept in its own right, nor Norfolk’s own policy on DRE, nor the DRE disregard it awarded specifically to SH, were enough to justify the impact of the measure taken, although the judge was sympathetic to the financial difficulties in which councils operate. Not even a standard policy for disregarding a portion of PIP, as if for private funding of night time needs, where no services were being funded by Norfolk, was sufficient.

DRE policy – counsel’s Advice identifies some other challenges that could be made to DRE policy, regarding supposed lifestyle choices, activity entry fees, and arbitrary limits on transport. Councils are not entitled to refuse to consider DRE disregard requests, nor to re-consider those, however, simply because they believe that their charging policy is not discriminatory or that the Norfolk case is wrongly decided. DRE reviews are likely to be the way most councils allow for discretion in individual cases in order to avoid legal action.

SDP recipients – there is reason to expect that the charges being levied on people who are in receipt of Severe Disability Premium within their income-related benefits may be being even more severely discriminated against than those in the position of SH in the Norfolk case. That premium is paid to cover the assumed extra costs of just getting by, when severely disabled and living alone, or without informal help, yet councils do not routinely allow any part of that extra income to be kept, even though it is clearly disability related income.

Future challenges to charging policies – we think that these may be made in five ways, by individuals, or by more than one individual or groups (either unincorporated associations or groups with a legal personality):

a) Through the Monitoring Officer route, as CASCAIDr used in January 2021, but describing the alleged likely contravention of the Equality Act, Care Act and Human Rights Act in terms relating specifically to the individual or group and to the contents of the local charging policy. That route is not the same as the ordinary complaint system, and is free to anyone who can set out the allegation in clear enough terms. The Monitoring Officer is usually the council’s Head of Law, and is under a statutory duty to consider the referral and come to a view on whether there is a likely contravention of an Act or rule of law. See Counsel’s advice for some further information about that duty.

b) Through correspondence to the Financial Assessment department setting out the reason one thinks that the charging policy version under which one has been charged was unlawful in light of the Norfolk case, and suggesting that seeking legal advice would be prudent before replying, because the correspondent isn’t ‘appealing’ as such, or necessarily complaining, but raising the point that the financial assessment function hasn’t been carried out lawfully. One would always ask that discretion under regulation 15 be exercised, with written reasons why not, if not.

Some potential areas to focus on are

  • That might be because of the local approach to counting IN income in the first place
  • Or about how the Minimum Income Guarantee regulations and Guidance were interpreted by that council
  • Or because of a DRE policy that is able to be presented as discriminatory, fettered, unlawful or irrational
  • Or because of the way in which the DRE policy has been applied, in practice – oppressively or unfairly in all the circumstances.

c) Through a formal letter before action to the legal department after all such prior correspondence has achieved no or no adequate reconsideration of the policy, or of one’s charges (or of one’s DRE if the DRE was the major bone of contention) – explaining one’s intention to bring Judicial Review proceedings in the Administrative Court. The council must reply, setting out its reasons for rejecting the alleged illegality – usually within 14 days. The letter before action must comply with the Pre Action Protocol for Judicial Review Proceedings to protect the proposed claimant against a costs order for putting the council to legal advisory effort. There is a fee to start such an application, although one can represent oneself and the application is able to be made without physically going to court or speaking. One can get legal aid to fund legal advice and representation but capacity in that sector is VERY limited at this point.

d) Through letters to the press or to councillors, or scrutiny committees – the political route, effectively.

e) Through waiting to be sued for an alleged debt in the local county court, and then raising the point as a defence.

CASCAIDr has sourced some interest from legal aid law firms who will be willing and capacitated to work with us (after screening by us, as to the basics of one’s claim (for a £35 flat rate fee that you can pay online) by taking forward certain types of referrals from us. The details are here: https://www.cascaidr.org.uk/legality-check/

No-one is obliged to work through us, for this route to legal aid advice, but the number of law firms able to help in these cases is small, and we think that having your situation pre-screened and joined up with what the relevant council has or has not said to us in correspondence, will help when it comes to getting over the threshold!

If one does not qualify for legal aid, on the means test, one will need to go to a private sector law firm and pay a fee for the drafting of the letter or the issue of proceedings, but perhaps be offered a beneficial rate if you are a group of people, instead of just one.

CASCAIDr does not distinguish between clients on the basis of means. We charge for all our charging work at our low-cost charitable rate of £125 an hour, after the £35 basic check, but Covid has ensured that we, too, have limited capacity to help individuals. So we welcome approaches from groups who might well want some hand-holding, but who are happy to be self-starting!

That crisis in legal aid, and awareness of public law’s importance in community care, is what has led to this initiative in crowdfunding, our first, for this Advice from counsel.

We hope that it will assist many people to take steps themselves, to assert their right to pay no more than the law allows for their social care services – but we will be here as a fall-back, if not.

Have YOU got The Voice for asserting people’s legal rights to care funding?

This Spring, to signify emergence from dark times, CASCAIDr is investing in training up members of the public – and people working in health and care – to embed a culture of legal awareness of community care law – in readiness for the further integration of health and care – and maybe even a review of how we fund care in this country.

This is CASCAIDr’s bid to further legal literacy amongst tomorrow’s leaders in adult social care and health … and skill up the public as well, to be better able to self-advocate, efficiently and assertively, in an increasingly brutish decision-making culture.

Belinda Schwehr, CEO, will be running the programme, with contributions from other specialists. Even now, 3 years into nurturing CASCAIDr, an experiment in harnessing a charitable model for the provision of specialist legal advice, she still burns for the subject, and for spreading the word!

  • The Public Level course is designed to create strength in the community at a grass-roots level for building legal literacy for use in networks, peer-support and self-advocacy groups.

If you believe in the values of co-production and person-centredness but don’t see much of it in practice, and flounder when it comes to changing that, you could use this course to stop feeling helpless or passive – and take ownership of the means to do something about it.

  • The Professional Level course is intended to train up a new generation of advice workers, independent advocates, social workers, social work academics, paralegals and junior lawyers – to become expert in community care law – so that accountability is not mere pie in the sky when health and social care try to operate under two different legal frameworks. 

Just like on ‘The Voice’, survivors of these courses will get the benefit of over 20 years’ worth of the coaches’ experience and legal insight –

  • At the Professional Level – into 26 topics within the Care Act, past and current case law, and a chance to do case studies and even work experience, if good enough.

Graduates of the professional level course could earn money through CASCAIDr as contractors – either as fact finders or caseworkers, within 6 months of starting. We hope to be able to accredit people’s experience for the SQE route to becoming a solicitor.

  • At the Public Level – anyone lasting the distance on the public course will have learned a good deal about 12 broad aspects of care law, which they can take back to their existing roles, or to their peer-support groups, family carer groups, or advocacy services.
Both courses last one year – so you can fit this in around your day job, or other commitments. You need to do an hour’s reading per week, and find the time for the fortnightly lecture, monthly Q&A session or the recording.


Cost/Scholarships/Bursaries

The cost of the Public level course is £35 for the year and Covid culture and tech means that we can take large numbers.

The cost of the Professional level course is £350 for the year, with scholarships or bursaries for strong candidates, from donations we have attracted.

Entry to the latter is competitive, due to the limited number of places, likewise any application for financial help.

Delivery

All online sessions and lectures are via Zoom meeting with breakout rooms for group working, with recordings for those who cannot attend the live session.

They will be delivered out of work hours – probably Wednesdays at 7pm for 1.5 hours at most (breakouts remaining open for anyone whose circle wishes to continue). They will be scheduled fortnightly for the Professional course, starting 12 May and once a month for the Public level (probably 19 May and mid September depending on numbers).

Entry criteria

There’s no need for formal legal qualifications for either course.  Our best caseworkers haven’t always had them!

For the Public Level course you’ve just got to be interested enough to be prepared to do the Guided Learning and Supported Study reading, every week. You will not be helped, outside of a learning circle, but you will be encouraged, enthused and motivated – and there will be many lightbulb moments….

You can start on the Public level and apply to move to the Professional Level, if you find it is too basic.

To apply for the Public level course, please send an email to sebpark@cascaidr.org.uk outlining why you’re interested in the course and its relevance to you, and indicating whether you want to be considered for a free place with reasons why you should be given one. Places will be allocated first, and decisions made at the end of the month as to the free places.

Even if you want to do the Professional level course, all you need is to be able to convince us that you already have the following knowledge, skills and attitudes:

  • Familiarity with the adults’ social care system, ie the Care Act, and the thrust of the Mental Capacity Act…
  • Understanding what sort of law applies in this sector; the difference between the Administrative Court and the Court of Protection, and how law actually works in the context of local authority and public sector culture…
  • Knowing what you don’t yet know; an inquiring mind, internet research skills, and an appreciation that all is not quite what it seems, in adult social care law…
  • Intellectual acceptance that there’s a difference in legal terms (even if one wishes there was not) between what a person wants and what a person could defensibly be said to need out of public money, when the legal test is NOT ‘the best life a person could possibly have’…
  • That one magical thing: legal acumen – which means an ability to make a judgment about what someone thinks or says happened, and what they can prove probably happened, to a reasonable standard – often having to cut through distressed streams of consciousness on a referral, to probe them quite hard…and then paraphrase the essence of the problem
  • A belief in the power and value of public law for good, and its consistency with traditional social work values of accountability, non-discrimination, anti-oppression and anti-arbitrariness.

A cv and a covering letter is required for the Professional level course.  If you make it past that hurdle, there will be one written exercise, for a place; or two, if you would like to apply for financial assistance for taking up that place.

Please note that if you are currently working in a CCG, a local authority ASC or legal department – or for a law firm or advice service, you are most welcome to apply for the Professional level course, but we cannot extend financial help – we are a charity. You may of course be paid for by your employer and it will count for CPD points, if you complete the course. There are no ‘sides’ on these courses.

To apply for the Professional level course, please write to sebpark@cascaidr.org.uk with a proper cv, not an electronic standard one, and a covering letter explaining what you’re currently doing, and how and why you think you meet the above criteria.

  • Explain your existing general legal knowledge, knowledge of public law in particular and knowledge and USE of the Care Act in particular.
  • For the Professionals’ course, please indicate whether you NEED money off or whether you would be prepared to pay, if not offered financial assistance.

Our Third Year’s impact, despite Covid-19

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!

A post on our CEO’s local neighbours’ site: a call to compassion

DOESN’T IT MAKE YOU CROSS!!

That boy is playing out during lockdown again, where are his irresponsible parents? Well, he’s got learning difficulties and many other problems one can’t see; he can’t be kept indoors for his own safety and for the mental wellbeing of his mother and himself, he needs that time outside.

See that man who drove an hour for a pit stop coffee. Not essential? Disgusting rule breaker! He just lost his mother to Covid-19 and needed to take an hour out when he cannot see a single friend or family member in his darkest hour.

That woman who’s taken her kids into the supermarket – 4 squealing kids she can’t control – all under 5! Is she trying to risk her kids’ health? What is she thinking?! That woman is a single mother and has no other choice, as able people have taken all the home delivery slots and her husband left them for dust for his secretary, 6 months ago.

That car is parked again at the neighbours! They’re not from the same household! The woman in the house tried to take her own life and the one parked outside is the only face she’s seen who is stopping her trying again to leave this earth.

How has she managed to get abroad and how dare she post pics on social media – Why not me! Fuming? That girl is a nurse and has worked 6 months straight off, saving lives of others’ loved ones and friends and colleagues without a single full day off and has been running on fumes for so long, her mental health took a hard hit and she needed that break to recoup to come back and fight the fight again.

He’s out working, he’s not an essential worker! Surely he should be home? That man is a newly self-employed single dad. He can’t claim, he doesn’t qualify for the government help schemes. He has no choice to continue his work to keep his roof and feed his kids.

“That woman’s out all the time, never in the house, I’m going to report her”. That woman finds every excuse to leave the house to escape her abusive boyfriend who has started beating her senseless sinking into a vicious circle of drinking after losing his job due to lockdown.

Just a few examples of many that could be anyone.

Everybody’s story is different, everybody’s circumstances are different. Nobody knows what battle someone is facing on a daily basis, the struggles people face behind closed doors.

So I’m trying hard not to judge what I see, and not to assume I know or understand why.

“Be kind”, I’m learning to say to myself, and be humble and mind your own business! Look after your own affairs, I’m learning – and be safe.

I’m trying to remember to reach out to friends and family and check in on my loved ones.

We may all be in the same storm but we are not all in the same boat; we are all fighting the same war but everyone’s battle is different. And what tough battles they are!

CASCAIDr’s Q & A fund-raising campaign for 2020

Every year we raise money for the London Legal Support Trust – which supports voluntary sector organisations which provide legal advice about welfare law.

And that includes us, of course – so helping the LLST, helps us – and we really appreciate whatever you can donate this year.

Normally we walk a long, long way, but this year, we’re doing 10 days of answering 10 challenging LEGAL questions, instead.

These will be put up on social media, and as replies to questions posted, roughly one an hour between 9am and 7pm, for two weeks, with time off at the weekends!

They can be about the System in General and Advocacy (MON 28); Assessment and Eligibility (TUES 29); Budget Sign-Off and Care Planning (WEDS 30); Cuts and Revisions (THURS 1) and Supported Living, Ordinary Residence, and Housing Issues (FRI 2).

The second week, on the day the LLST  Walk would have happened, we’ll be doing Covid-related questions, Easements and Carers’ issues (MON 5); Mental Capacity and Choice (TUES 6); Direct Payments, “Managed Accounts” and Health Budgets (WEDS 7), Continuing Health Care and s117 aftercare (THURS 8) and Charging and Financial Assessment (FRI 9). Oh yes – and Human Rights, at any time!

They’re all drawn from the work we do daily (and we’d soooo love to be asked one that’s new! – if you’re up for that personal challenge!?)

Every day, at 1pm, the 3 juiciest questions in the subject areas above, will be answered and discussed, and the video made available on YouTube.

We want to get the sector talking about law again, in this era of ‘anything goes’, and we will do whatever it takes to make it interesting!

The ground rules are as follows:

No question can be more than 100 words long.

It can be made up of several parts, but that’s the limit.

You can post a question HERE below, in the Comment box, anonymously, or you can leave your name on it – it’s up to you.

We want you to anonymise the name of the council or CCG, or care provider, AND the name of the person it’s about.

We won’t feature your question if you’re really asking for legal advice via this route, about a specific problem. We want you to make your question a GENERAL one, in terms of the wording please, and we have to trust you to do that.

We’re doing this because even though we can’t walk during social distancing, we can use what we know, to spread the word even further, about people’s rights – right to something that most people had hardly heard of, before Covid – whilst others have always had to depend upon it, and local authority’s grasp of the legal framework underpinning it, for a decent quality of life, independence and dignity.

The law needs to matter! Otherwise, who gets what is just arbitrary, and able to be manipulated.

That is not fair to the fearful, the uninformed, or to incapacitated people

and nor is it fair to the tax paying public, either.

We want questions from service users, family carers, care providers and social workers please – from advocates, care and support brokers, direct payment support staff, peer support groups, other charities and from any activist law firms or campaigners.

No holds barred, as long as it’s on one of the topics set out above!

Our aim is to inspire 1000 people to give £10 each.

If we succeed, we can become a proper law firm, acting through authorised solicitors, with a regular crowd-funding capacity – and therefore extend our support into the issue of judicial review proceedings, without recourse to the legal aid system.

We think that that will have an impact on the local authority and CCG world of resource allocation and commissioning. More than that, though, we hope to revive interest in legal principle, as a strategic tool for ensuring that we do all GET what Parliament intended, even if no political party in living memory has ever fully funded what it collaborated over legislating for.

So PLEASE DONATE

HERE, please, not our usual button on our website, please – CASCAIDr’s Virgin Money Giving fundraising page link for this campaign can be found, here:

https://uk.virginmoneygiving.com/CASCAIDr20

Here is an example of the sort of question we mean, below, where one would normally put a Comment:

What to say if your direct payment is not set up to cover the cost of PPE

To the duty worker for Direct Payments

My [relative/friend/partner] (who has confirmed that I am authorised to write in on [his/her] behalf) has a sizeable personal budget, from the council, based on assessed eligible needs for personal care and other services at home; it is paid as a direct payment and used to employ [one/two/three] PA[s], directly.

I am aware that in order to comply with the Care and Support Guidance, and be sufficient in public law terms, so as to be a lawful payment, the budget ought to cover the legal obligations of an employer. We cannot expect the PA[s] to pay for the PPE on the wages paid; that would not be reasonable on the part of any employer.

We have done the recommended risk assessment; the nature of the care provided has made us sure that we should be supplying (as a matter of legal obligation for the health and safety of both the PA[s] and the direct payment holder) proper PPE. [Name of the person] is not in the clinically vulnerable category but funding for PPE no longer turns on being in that group.

PPE for personal care was not ‘normally required’ before Covid, and my [relative/friend/partner]’s personal budget was not calculated to cover this cost.

We need to spend £x [put the amount in] a week to provide for the recommended reasonable level of care: single use disposable gloves, single use disposable plastic aprons, multi episode fluid-repellent face masks and surgical masks for non-direct contact input.

We think that the council should be increasing the size of the budget to cover the PPE or be supplying it to the employer, from what we can tell from the Guidance and national practice forums.  

Updated guidance for anyone with a direct payment dated 10 July 2020 says this:

“The government consider all PAs to be key workers, meaning they are eligible for provisions such as care for their children at local schools and PPE.

If your PA does not live in the same accommodation as you, there are a number of circumstances in which it is recommended that they wear more PPE than normal. These situations are described below in the section on wearing the right PPE and apply even if you do not have COVID-19 symptoms. If your PA has a clinical need for PPE as outlined in those situations, they are eligible to receive this.

If you or your PA cannot get PPE in this way, your direct payment is not set up to fund PPE, or different/additional PPE needed during the COVID-19 pandemic cannot be funded through your existing direct payment, you should contact your LA or CCG that provides your direct payment. They will help you to get the PPE you need.

This guidance applies whether you have symptoms of COVID-19 or not.

These recommendations apply:

• whether the client you are providing personal care to has symptoms or not, and includes all clients, including those in the ‘extremely vulnerable’ group undergoing shielding and those diagnosed with COVID-19

• whenever you are within 2 metres of someone (client or household member) who is coughing, even if you are not providing direct care to them

• to all personal care, for example: assisting with getting in/out of bed, feeding, dressing, bathing, grooming, toileting, dressings etc. and or when unintended contact with clients is likely (e.g. when caring for clients with challenging behaviour)

• whatever your role in care (i.e. applies to all staff, care workers, cleaners etc.)

The guidance sets out that:

  • when providing personal care which requires a PA to be in direct contact with you (for example, touching) or when within 2 metres of anyone who is coughing, the PA should use disposable gloves, a disposable plastic apron and a fluid-repellent face mask. Eye protection may be needed if there’s a risk of droplets from the individual reaching the PA’s eyes (for example, caring for someone who is repeatedly coughing or who may be vomiting)
  • new disposable gloves and plastic aprons must be used for each individual episode of care (for example, washing, directly helping take medication etc), whether the person has symptoms or not. Surgical and fluid-repellent face masks can be worn continuously for multiple episodes of care, providing the PA does not touch or remove the face mask in between each action. Eye protection can also be used continuously, dependent on a risk assessment. See the conditions in which this should be undertaken
  • when the PA’s care and support does not need them to touch you, but they need to be within 2 metres, gloves and an apron are not needed but a surgical mask is. For example, when your PA is removing medicines from their packaging, or preparing food
  • if you or any members of your household are in the ‘extremely clinically vulnerable’ category and have received a letter to ‘shield’, as a minimum, your PA needs single-use disposable plastic aprons, surgical mask and gloves. A fluid-repellent face mask is needed instead of a surgical mask, if direct contact is required. See more details on who should be shielding

The new guidance says this:

Getting appropriate PPE is very important, and LAs and CCGs have overall responsibility to ensure that you get the PPE you need to stay safe and receive the care and support you need.

Your direct payment might already be set up for you to buy the PPE you need. If this is the case, and you can buy this locally, you should do this first.

If that is not possible, you should speak to your direct payment support organisation, who may be able to help you in getting the PPE you need locally.

If that is not possible, you should speak to your LA or CCG urgently, who will help you to get the PPE you need. You should do this in advance of any of your PPE stock running out so there is time for that PPE to be delivered to you.

If your direct payment is set up so you have the money and responsibility for getting it, but you cannot buy it locally, your LA or CCG will get this for you from a national line.

The government guidance says to contact the commissioner of your direct payment who can provide assistance – and it should be noted: “If you cannot get PPE in this way, or the direct payment is not set up to fund PPE, ask the local authority or CCG that provides the direct payment to help get the required PPE.

Please would you refer the matter to your line manager, and from there to the legal department, before coming back to me about this difficult matter. The benefit to the council of my [relative/friend/partner]’s taking the direct payment and employing a person directly, does mean, we are sure, that the direct payment must cover the full cost of meeting the employer’s obligations.

Etc etc”

Please consider making a donation to CASCAIDr on the big yellow button on the right – every donation is appreciated.

10,000 steps for front line legal advice – 8th June 2020

The London Legal Support Trust has helped US out, in the Covid-19 Crisis, and we really want to give something back. So, CASCAIDr caseworkers and volunteers are walking for justice, in their own gardens, or in a public garden, for 10,000 Steps for Justice.

This is not directly for CASCAIDr (because we hope to do 10K for this charity in October); this is for the LLST itself, to distribute funds to other legal advice organisations who need the support as much as we do.

The Lord Chief Justice invites us here to get involved  https://www.youtube.com/watch?v=1uAU5uuUVDE. All legal advice organisations are facing unimagined difficulties with furloughs, family worries and adapting to the challenges of the COVID-19 outbreak – they’re all staffed by human beings!

How you can get involved:

Many of you probably DO 10,000 steps a day, for personal goal-keeping. You may have missed out the odd day, too, over the last 2 months!?

So, we’d be so pleased if you would dedicate your steps to US (or commit to catching up!) on that particular day. You could bounce you steps on a space hopper, attempt a 3-legged race/egg and spoon challenge with your household, juggle as you march on the spot, or dress up, to lift spirits on the streets.

Please let belinda@cascaidr.org.uk know if you’re willing – and then you can help us spread the word amongst your own circle of interested supporters.

Our CEO Belinda is aiming for at least 2500 of her own step-count ON STAIRS over the course of 8th June, to make amends for the weeks of sitting there, during lockdown, and thinking about what’s going to become of adult social care and the UK’s social work safety net, after the crisis passes!

Donations: – we get that it might not feel comfortable to ask friends and family for donations at this time. So, we’re also saying it’d be just fine if our walkers would consider ‘self-sponsoring’ – or if past clients and supporters could donate your daily coffee allowance, weekly commute or monthly gym membership. 

Here’s our Virgin giving page if you can make a contribution: https://uk.virginmoneygiving.com/CASCAIDr10000Steps

CASCAIDr’s Q&A session, live with CoProduce Care 06/05 2020 – on care home deaths


CASCAIDr’s CEO Belinda Schwehr was delighted to do a Q&A on the possible link between deaths in care homes and the primary agenda of the government of saving lives by protecting NHS capacity, as the guest of Sophie Chester-Glyn’s CoProduce Care.

You can see the video by clicking here and download a transcript here, below, but please do consider donating to CASCAIDr’s survival during the Covid-19 period, via our button on the right.

We can’t be this obsessed about public law and human rights, without financial support, as it all takes study and thought!

The Care Act Easements – which side of the line is your council operating on?

PLEASE do DONATE TO CASCAIDr, during Covid-19 – for the continuation of legal framework ANALYSIS:  every little helps!

Our donation button is on the right of your screen…                

We’ve done this post, because the number of Ombudsman’s findings of non-compliance with the Care Act, as we know and love it, over the last year, suggests to us that it’s surprising that more councils in this country haven’t used Covid-19, for claiming the legal protection from findings of public law unlawfulness, that has been provided to councils, effectively, by the Easements, for a maximum of 2 years, under the Coronavirus Act.

7 councils have announced adoption, as of May 12, but here’s our analysis of what can be done lawfully under the Care Act in the ‘good’ times – and would only count as stage 2 and not needing the Easements – and what can’t – and what sort of a system for assessment and care planning therefore compels adoption of the Easements, assuming it can be justified by depletion of staff, increased demand or logistics or provider issues…

There’s a list of behaviours at the end which we don’t think could ever be defensible, even if a council HAS adopted the Easements, because public law and human rights principles do still govern all adults’ social care services!

1.  Stage 2 – ‘flexing’ on the Care Act ‘proper’ side of the Easements line

Use of a competent third party to carry out needs assessments as trusted assessors /delegates /contractors

Assessments using the telephone or video calls – because the Covid-19 context is a very good reason for departing from the normal Care and Support Guidance

Deferring assessment, whilst feasibly suitable, available and appropriate prevention and reduction services or help from willing community resources are investigated and considered

Pausing assessment once commenced and deferring any outcome to assessment, whilst trying out reablement services, equipment, counselling, prevention and reduction services, or carers’ hub or volunteer services

Offering supported Self-Assessment to those able to engage with it, before finalisation through corroboration with others – providing Care Act advocacy if that’s what ability to take part would require

Suspending face to face needs assessments, including people thought to be less than fully mentally capacitated (Care Act ‘proper’ Guidance requires that that be done but the virus may constitute a very good reason for departure), as long as a video call were still offered as a viable alternative – and exceptions are genuinely considered

Persuading, by way of accurate information to capacitated people (or their formally authorised welfare LPA holders) that Assessment would not be the best way for the needy person to proceed, given their wealth or a waiting list for provision of services based on actual scarcity

Paying genuine regard to the wishes of the individual for the manner of the assessments even if those wishes cannot be complied with

Taking account of an individual’s fluctuating needs and providing for the minimum, but assuring of immediate uplift or providing for a contingency if there is evidenced deterioration, later on

Suspending “non-essential homecare services” for people who have current support from family or friends, as long as they agree that they are willing to do it, for now

Raising the delegated authority of front-line staff to cut down delay on implementation of packages

Dropping a Resource Allocation Tool, or Panel Process for authorising spend to make support provision faster – management accounting tools and panel process are not a statutory or even recommended by Care Act ‘proper’ Guidance

Ceasing to give people an up front allocation or an indicative budget – this has never been required by the Act, and Covid-19 is a rational moment to depart from this recommended essential step in Care Act ‘proper’ Guidance, which is only guidance

Putting off charging until later, as long as basic information about likely charges and charging periods are given and the fact of financial assessment at a later point is made clear

Limiting the choice of providers – that’s legal under the Care Act other than where Choice of Accommodation rules forbid it – i.e. for home care, day care, any service where there is no right of choice other than by the means of a capacitated person choosing a direct payment to do their own commissioning, or an incapacitated person’s Authorised Person coming forwards

Choosing to regard a person as having ‘been’ financially assessed after a ‘light touch assessment’ (after they’ve refused to be assessed or have refused co-operation, or after the council has acted on evidence, with the person’s consent (e.g. as to their benefits status) regarding the person’s relative poverty)

Rescheduling reviews or otherwise failing to meet the recommended target of review ‘no less than annually’ – it’s not statutory under the Care Act ‘proper’

2.  Examples of activities which mean that councils DO NEED to claim the cover of the Care Act Easements – or else risk misleading the public, as to the current state of their rights

Screening people for the decision as to who ‘should’ be assessed under the Care Act, using criteria related to the apparent urgency or imminence of people’s problems related to health or social care issues, rather than a mere appearance of need for care and support

Applying a notion of ‘regular and substantial support’ to the question whether a person counts as a carer who could even qualify for a carer’s assessment of their support needs

Running a waiting list for assessment, based on shortage of assessment staff – that approach treats the function as a power rather than a duty, and there’s case law on that!

Using staff who are appreciably less familiar with the Care Act or social work functions for delivering assessments than those who would ordinarily be doing that task – that might be ok under Easement, as long as they are supervised by skilled and experienced staff

Omitting to provide information to those seeking assessment, as to the nature and scope of the assessment process, in advance of doing an assessment of whatever extent is now on offer

Even if your council justifies using ‘Conversations’-based approaches, normally, (e.g. by offering them up front but reverting to full Care Act assessment for those who know that they can insist on it), now – during Covid-19 times – using a risk- and emergency-based approach with new clients, or those requesting reviews: for example

What needs to change to make you safe and regain control?

– if Conversation ONE has met prevention and reduction obligations, then this next Conversation does not meet the Care Act’s approach to eligibility or to the essential equivalence of all the factors on the s1 list of wellbeing features in the Care Act. Depending on how this question were to be fleshed out, it does not seem to address all of the Care Act domains. So, it can’t be an assessment under the Care Act ‘proper’

And how can we help make that happen? What offers do I have at my disposal, including small amounts of money and using my knowledge of the community to support you?

–  this requires the Easements because it implies that there are limits, borne of what is available through that particular officer’s spending authority, to what will be allocated, and that any such small sums, or whatever is known to exist in the community will be offset for any later identification of a sum of money to be offered, regardless of sufficiency or its suitability, which is not compliant with public law principles, and therefore not compliant with the Care Act ‘proper’

How can I pull them together in an ‘emergency plan’ and stick with you (like glue) to make sure it works?

“… rather than assessing them for services, we must stick with them and not even think about eligibility or longer-term support until the immediate crisis is over

–  this needs the Easements because it risks being a more short-term approach than the Act allows at the stage of care planning and sign off, forever driving a person round and round the council’s Contact or Duty systems, instead of ensuring that the person’s assessed eligible needs are met, and the impact reduced to something less than significant, for the foreseeable future

– if the person has not even been assessed as eligible before this ‘emergency’ plan is created, then there would logically need to be a frequent reconsideration of whether there ‘now’ needed to be a ‘proper’ assessment and eligibility decision – and the lack of continuity inherent in speaking to a new person every time the person called the council would very quickly alienate those seeking help, we think…

– the emergency plan can’t be regarded as a Care Act care plan, in the absence of an eligibility decision, so the Easements are necessary here: the Care Act (as established in public law) provides for the significant impact generated by a person’s condition and their deficits in daily living, to constitute a legal status (eligibility) and – thereafter – for their eligible assessed needs to be managed down by a care or support plan which allocates sufficient resources for meeting unmet needs appropriately – and for some time into the future – at least until a scheduled review, which would normally be in one year’s time, after an initial review to check that the funded input is working

Refusing a person’s request to do a supported self-assessment – this is a right, normally, for anyone with capacity to take part in such a process – or not providing Care Act advocacy to assist a person to achieve that capacity – one would be outside the normal regulations if taking this stance

Competently assessing by some or other adequate means, but going back to the use of thresholds such as Critical or Substantial, for eligibility decision-making, from the concept of Fair Access to Care Services guidance, pre-Care Act

Scoring domestic, leisure, recreation or community inclusion aspects of daily living as less important, somehow, than keeping an obviously dependent person safe and hygienically managed

No longer following the original Care and Support Guidance, without anyparticularly good reason – the Act allows it to be disregarded, if it is merely inconsistent with the new Easements specific Guidance, but that must mean for those councils who have adopted the Easements

Taking a person’s access to willing informal support as relevant to the IMPACT of their condition or difficulties, and therefore to their eligibility for a budget – and not merely relevant to the evaluation of what is needed to meet the shortfall in means available to that person to meet their needs – Care Act ‘proper’ Guidance forbids that approach at the assessment stage

Not providing a written reason for an eligibility decision, one way or the other – that’s a duty, normally, under s13

Not involving an informal carer in the assessment of a person asking for services – that’s a duty, normally, under s9

Making a written record of whatever new form of assessment is in current use, but not sharing a copy with the client – that’s a duty, normally under s12

Departing from Choice of Accommodation rights – those are a duty-based part of ‘business as usual’

Writing up a care plan without complying with s25 of the Care Act ‘proper’, as to contents – Easements Guidance says that’s acceptable as long as the provider knows what is required of it

Leaving charges out of a Care Plan under s25 – Easements Guidance says that’s acceptable, as long as the council’s stance on whether it will be retrospectively financially assessing is made clear

Letting people without a welfare power of attorney make decisions about what is best for their incapacitated relatives, and for example to refuse services for the needy person on the basis of cost – we doubt that even the Easements can make this acceptable, but that’s what has been put into the Coronavirus Act!

Blanket suspension of Transition Assessments of children approaching adulthood – normally a duty under the Care Act ‘proper’ unless a council explains why not

3. Practices or policies that even adopting the Easements could not conceivably legitimise, because public law and human rights principles will not permit it!

Disregarding the original Care and Support Guidance without formally adopting the Easements and then following the specific Easements Guidance issued under the Coronavirus Act.

Trusting people with no knowledge, experience of social services or the Care Act, or human rights, to do assessments, and without supervision – incompetent assessment would defeat the statutory purpose

Refusing assessments altogether, in terms of new requests – this would defeat the statutory purpose altogether and fetter the exercise of the remaining power to assess, which is unlawful

Refusing requested reviews, regardless of the strength of the evidence regarding a change of circumstances – this would defeat the statutory purpose altogether and fetter the exercise of the remaining power to review

Refusing assessments when requested, on the footing that the council is only assessing people if they meet criteria of a blanket nature – e.g.  have no-one at home with them’ or have an IQ under 70, or are ‘known to be severely mentally unwell’, or have ‘a formal diagnosis’ of a condition on a locally drawn up list – or ‘is ordinarily resident’ – or only if they ‘have NRPF’ as part of their immigration status; all these approaches would all be a fetter of the remaining power to assess

Assuming that mental incapacity is not relevant to the manner of assessment that should be offered – this would be irrational in a public law sense, as it is a self-evidently relevant consideration

Treating wealth above the upper capital threshold as a reason for refusing an assessment – this is not permitted by the original Care Act OR the Easements

Running a waiting list for assessment based on shortage of assessment staff and ordering this list irrationally, according to features of the person or client group, in the context of the statutory purpose (e.g. hair colour, alphabetical order) – this would be unlawful in a public law sense

Leaving a person waiting for whatever form of assessment IS being offered, for an unconscionable period, given the evidence as to the urgency of their unmet needs, or imminence of serious impact to their wellbeing – this would defeat the statutory purpose or be regarded as irrational or as unfair OR as a breach of human rights

Suspending Care Act independent advocacy rights – this is not permitted by the Easements for REVISIONS and may not be permitted by public law or human rights if a council is CHOOSING to assess/care plan, because involvement is part of underlying legal principles anyway

Systematically excluding or completely ignoring domestic, leisure, recreation or community inclusion aspects of daily living from scoring systems for who gets help and how much help – the power to apply a human rights based approach to needs does not permit the blanket exclusion of these aspects of need – article 8 and article 3 are relevant here and people must be allowed to assert that assumptions about what matters to most people should not be applied to them; also the help must still be rationally sufficient and appropriate to the needs, in order to meet public law requirements, regardless of the Easements

Using a computerised resource allocation system as the only determinant of what people should get by way of a finalised budget – public law does not allow the use of a resource allocation system for the determination of what would appropriately meet needs of an individual, after those needs regarded as eligible for meeting have been identified – the most relevant consideration for a finalised budget is a reasonable evidence base for the going market rate for services of the amount, skill factor and character in question

Suspending direct payments as a route for deploying a personal budget – direct payments conditions for the choice of that deployment route have not been affected by the Easements

Imposing direct payments as a route for deploying a personal budget – the requirement of a person’s capacitated request for a direct payment has not been affected by the Easements and provision is still the default method

Revising people’s care packages by standard letter, simply informing them of a change – this is still a breach of s27(2) (service users) or s27(3) (carers) and changes without involvement and compliance with these sections of the Care Act is specifically forbidden IN the Easements guidance

Refusing to ‘involve’ service users or carers in any revision of a care or support plan – see the last example

Cutting a care plan simply because particularly vital services have closed, due to social distancing – the fact that the services are no longer available, is of no legal relevance to the existence of the needs (i.e. the deficits in daily living activities, generated by the person’s condition) or the impact to wellbeing being sustained through not having access to the services, so the council must identify a realistic alternative in the interim, if a breach of human rights would otherwise arise. We do not think it is acceptable to force carers into unpaid service, just because they are at home, but the council is still the decision-maker as to the needs

Suspending Safeguarding functions or preventing anyone who has been assessed or care planned for, from suggesting that the outcome of the process constitutes a safeguarding concern – this is not permitted by the Easements and safeguarding is a duty that cannot be delegated, and such referrals are a backstop way of managing legal risks, anyway

Making a written record of whatever new form of assessment is in use, but not sharing a copy with the needy person – this would be a breach of public law and human rights principles for involvement and participation, even if the Care Act had never existed (unless psychological harm to the person was apprehended)

Not writing down the assessor’s thinking on assessment, at all – this would simply be evidence of incompetence and make getting a service organised, impossible, defeating the statutory purpose

Taking the view that the willingness of an informal carer (or otherwise) to provide care or support is not an essential conversation to conduct, when evaluating the situation of the needy person – we think that this contravenes the carer’s human rights and would be contrary to public policy, because it would create disproportionate risks as between vulnerable adults and unwilling stressed-out relatives

Taking a blanket approach and deciding that there were no circumstances in which a close relative in the same household should be permitted to be paid to meet the needs of an eligible cared for person, regardless of the circumstances and consequences – a fetter of discretion on an aspect of the Care Act not affected by the Easements; a potential breach of human rights; and ignores the fact that the person’s close relative may be the only feasible way of meeting the needs regarded as eligible by the council, and that nobody can be made to work for free in this country (yet)

Putting down the hourly rate for direct payments clients for paying PAs, during a time of scarcity of care staff, without an actual evidence base for believing that people will work for less – this ignores the most obviously relevant consideration for the determination of what amounts to a sufficient budget to meet the needs, and ignores s26 of the Act which is unaffected by the Easements

Using anything other than a rational evidence basis regarding the current market rate for securing services with which to meet whatever needs of the individual have been regarded as compelling the use of the s19 power to meet needs – this would be a breach of public law case law that was established long before the Care Act (the key principles being rationality and transparency)

Applying an arbitrary financial limit to any individual’s finalised budget – this amounts to an institutionalised, systemic constraint on professionals’ evaluation of what is needed to meet the needs selected for being met

Applying an arbitrary / fettered / blanket approach to any decision as to what sort of setting would be appropriate for an individual, whether by reference to cost, registration status or the age of the individual – see above, and it’s a policy that can amount to disregarding the obvious fact that it cannot ever be said that all people in every area CAN feasibly be regarded in professional terms as ABLE to get their needs met appropriately in given settings

Disregarding the Mental Capacity Act – the Act is unaffected by the Easements during Covid-19

Ignoring the duty to promote wellbeing in relation to any assessments, reviews, care planning, sign offs of any packages or revisions that ARE done – section 1 is unaffected by the Easements

Ignoring case law on human rights in the context of social services, when discharging assessment and care planning functions – this is clearly indefensible in legal terms because of the way in which the Easements specifically make Human Rights into ‘the’ bottom line criterion for the continuing s18 the duty to meet needs

Ignoring professional concerns in the face of obstruction by any third parties who do not seem to have the best interests of an incapacitated or vulnerable needy person in mind – this would be abdicating professional responsibility in the face of evidence that would alert any ordinary reasonably competent professional to the need to consider intervention over the top of those third parties, through safeguarding or recourse to the Court of Protection or the inherent jurisdiction of the High Court

Not providing a clear and transparent route 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 – this would be disregarding an edict in the Easements guidance which is expressed in mandatory terms – we recommend the PSW, the Director or the Monitoring Officer, not Complaints

Refusing to take contractual responsibility for clients in respect of whom there is no willing and able provider to take or keep the person into a care home, in order to care for them for the remainder of the required isolation period, post Covid-19 illness – this would be ignoring human rights, and the fundamental notion in the Care Act that there is a social services safety net in this country and ignoring the fact that the NHS has been committed to paying for every single person’s post-hospital stay follow-on care, by the Hospital Discharge guidance.

CASCAIDr’s Q&A session, live with CoProduce Care 30/04 2020

CASCAIDr’s CEO Belinda Schwehr was delighted to do a Q&A on the detail about the Care Act easements, as the guest of Sophie Chester-Glyn’s CoProduce Care.

You can see the video here, and download a transcript here, but please do consider donating to CASCAIDr’s survival during the Covid-19 period, via our button on the right.

We can’t be this obsessed about public law and human rights, without financial support, as it all takes study and thought!