Author Archive for belindaschwehr

Bootcamp Applicants

The Caseworker Bootcamp will be held in the East Midlands on 10/11/12 May.

Venue Location: Best Western Yew Lodge Hotel, Packington Hill, Kegworth, DE74 2DF T: 01509 672518

Places are limited, and we intend to select up to 20 people to share in this opportunity. We will let you know by the end of February, 2019, please note.

For those who want to try, can we say this: we need caseworkers who already know about legal precedent,  the grounds for judicial review, where to find case law, where to find expert commentary on a case, how to apply critical thinking to existing case law, the Care Act guidance and CHC framework (well) and what the effect on the existing case law is, given that we now have the Care Act, etc. There may be a question sent back to you, to give you a chance to show that you do actually have these skills.

There will be a Getting to Know You All session on the Friday night, and dinner out in the local area.

There will then be Workshops on Saturday morning and afternoon, and again on Sunday morning and afternoon. We’ll meet for drinks on the Saturday evening and then see what people want to do for food options. We will finish at 4.30pm on the Sunday.

The workshops will cover the following: 

  • Our Care Act compliance questionnaire, and how caseworkers use it
  • Our standard wording when writing, for instance, to a council’s Monitoring Officer
  • Our wording about the most important pre and post Act case law
  • Discussion of the most common scenarios that we are being called in on
  • Discussion and familiarisation with CASCAIDr’s Litigation Strategy so that we can all spot the problems that need to be considered as good cases to support in order to make more precedent

The cost of the bedroom, lunches and breakfasts x 2 nights is CASCAIDr’s investment in all our futures. If this development opportunity  for YOU would be of benefit to a current employer or to yourself in your own business, we would hope you would be willing to pay for ONE night’s accommodation, however, as we are a charity.

We ask that those who are selected agree to fund their own food and drinks on the Friday and Saturday evenings, and fund their own travel to the venue to arrive, by 7pm Friday evening.

To qualify for CASCAIDr’s subsidy for this unique training opportunity, you need to be able and willing to do freelance work, at least once a month, on a CASCAIDr matter; work that might take 5 – 6 hours and earn you between £250 and £600.

Here’s a link to the sort of cases that we are fielding these days, and their outcomes: https://bit.ly/2SHM6CO

Bootcamp Applicants
Please share:

Analysis of concerns of Human Rights Watch – with CASCAIDr comments on top

Unmet Needs: Improper Social Care Assessments for Older People in England 

Headline report conclusions

“Older people in England are at risk of not getting adequate assistance to live independent, dignified lives due to uneven assessments for social services.”

Some said that assessors appeared not even to understand their disabilities and support needs. In other cases, before beginning an assessment, assessors announced that services would be cut, regardless of an individual’s actual need.

And in some cases services were denied or cut significantly, affecting older people’s health and wellbeing.

CASCAIDr’s comment: seeing these as indications of ‘improper’ assessments is an interesting approach, when any of the above are potentially unlawful assessments, in terms of current and perfectly clear public law and care law principles!

Methodology
Human Rights Watch (HRW) spoke with 27 older people and 20 family carers in 11 LAs: Tower Hamlets, Cumbria, Bournemouth, North Yorkshire, Hertfordshire, South Derbyshire, Essex, Barking and Dagenham, Salford, Dorset, and Surrey.

HRW also interviewed 51 representatives of charities, as well as lawyers, service providers, academics, policy experts, staff from the NHS, CCGs and current and former LA staff.

They also conducted group interviews arranged by partner organisations in supported housing accommodations and community centres in East London, Bournemouth and Poole.

HRW sent letters to the 11 LAs, the DHSC and the MHCLG requesting answers to questions related to the findings. Only three LAs responded: Dorset CC, North Yorkshire CC, and the LB of Barking & Dagenham (see Annex 1 to the report). The other LAs and the ministries did not respond.

Problems with Social Care Assessments

The report contains excerpts of some of the interviews conducted, including the headline quote:
‘[They] just came in with an agenda of cutting my 15 hours per week to 6.5. They announced it. They told me ‘We are not there to give you more, but we are going to cut it.’ They had worked out that that was what I needed [before they arrived].’

Other interviews highlighted what family members saw as unrepresentative assessments, and the difficulty they had experienced in appealing against them.

CASCAIDr’s comment: The idea that one can actually achieve more savings by having staff prepare the clients for the worst, when so doing itself suggest widespread and ‘corporate’ fettering of assessment and care planning judgement, from above, should be a matter of shame for the sector, and it IS of legal significance in public law terms.

Suspension of Services During Appeals

This section details how some people lost services once they had filed an appeal, how the Care Act is silent on the suspensive effect of an appeal, how two LAs stated they have the discretion to maintain services pending appeals, and how the DHSC is currently developing a process for streamlining appeals, to be introduced by April 2020.

CASCAIDr’s comment: Any social care lawyer could have told them that the fact of a complaint or a dispute is no defence to the duty to meet assessed eligible unmet needs.


Lack of External Oversight of Social Care Assessments


This section sets out how there is currently a lack of sufficient oversight and monitoring of assessments to ensure consistent accuracy and objectivity. Three LAs (as above) responded to HRW’s enquiries on monitoring needs assessments and indicated processes for reviewing social care needs assessments are conducted within each council’s own structures, and they were not aware of any systematic independent monitoring or monitoring of assessments by the central government.

CASCAIDr’s comment: There is none, and it is not an accident. There is only the Monitoring Officer’s role, largely unheard of by those who should know about it, judicial review, which usually needs a lawyer and legal aid and the capacity of the law firm to handle the work – OR paragraph 10.86 of the Guidance which requires a proper management review before giving upon securing agreement and just saying ‘Complain or bring legal proceedings if you don’t like it.’ No wonder it’s taking ages to incorporate adult social care into the tribunal system in this country. It would cause mayhem!

International Legal Standards

The report refers to The Right to Health and to Family and Private Life and The Right to Live Independently in the Community. It includes a reference to the UN Committee on the Rights of Persons with Disabilities review of the UK in October 2017.

CASCAIDr’s comment: Brexit Fever and widespread disdain for the ECJ and ECtHR’s influence on our legal system does not bode well for any further incorporation of THOSE principles into domestic law, do they? Just try contending that you should be funded at home, when a care home is cheaper, without referring to human rights, is all we can say, to all those who see no point in the Convention or the UK’s own Human Rights Act.

Report recommendations (in full):

To the UK’s Government

• Ensure that older people have access to the services they need to realize their rights to live independently in their communities with their rights to health and private and family life protected.

• Establish a mechanism to monitor and evaluate social care needs assessments and the staff who conduct them to ensure consistency and equality nationally.

• Ratify the Council of Europe’s Revised European Social Charter.

To the UK Parliament

• The Health and Social Care Committee and the Housing, Communities and Local Government Committee of the House of Commons should examine the impact of austerity measures on local authority social care provision under the Care Act 2014.

To the Ministry of Housing, Communities and Local Government

• Review successful appeals against initial social care needs assessments and collect data about the reasons assessments were identified as problematic; data should consider the age, gender, ethnicity, location, and place of residence of those assessed as well as the types of shortcomings in initial assessments; use this information to make corrections and improvements in the system with a goal of ensuring provision of services to which people are entitled and reducing the number of times individuals must appeal in order to secure social care services.

• Direct local authorities to establish and document clearly the specific reasons to justify services being safely reduced or eliminated pending an individual’s appeal of an initial social care assessment and in all cases to strongly consider continuation of services pending appeals.

To the Department of Health and Social Care

• Include, in the reform of social care appeals processes planned for 2020, the suspensive effect of appeals.

• Execute a plan for the long-term stability and sustainability of the social care system in England to ensure that the human rights of older people are fully respected.

To Local Government authorities

• Ensure the accuracy of needs assessments, including when there are not enough resources locally to meet those needs.

• Document clearly the specific reasons to justify services being safely reduced or eliminated pending an individual’s appeal of an initial social care assessment and in all cases to strongly consider continuation of services pending appeals.

• Ensure that individuals are fully informed of their rights and available options to appeal social care assessment decisions and provide reasonable accommodations to individuals who may require assistance in the appeals process.

CASCAIDr’s comment: does anyone reading this catalogue of woes have any doubts as to the need for this charity, or wonder why we set it up?  

Please donate to our cause, if you see the point of legal rights, here!

Public law principles make all of the above essentials  for good  governance and legality.

They should already by embedded, after 20 years of community care judicial reviews, in the hearts and minds of those supposed to be leading the sector forwards – not back!


Based on a summary written by Adam Webb, and used with permission – thanks Adam

mradamwebb@gmail.com

Please share:

CASCAIDr’s first year of operation

So please donate to keep us going into a 2nd year and beyond, by clicking on:
DONATE to CASCAIDr

How many of CASCAIDr’s first year’s 200 or so clients were

So, please donate to keep us going into a 2nd year and beyond, by clicking on: DONATE to CASCAIDr

What have been the OUTCOMES, for some of CASCAIDr’s most successful clients?

Threatened cuts to people’s packages, services or budgets, have been cancelled or reduced

“MR and SN have nominated your organisation for a Gold #IAMchallengingbehaviour Star Award as you are continually challenging the behaviour of those people and systems that stop people getting a good life.”

Adequate, practicable budgets have been secured (as opposed to arbitrary or blatantly cost-capped budgets) for a person’s own use in a person’s own home

“The reality is that we did not even have to concede any ground!  We are still pinching ourselves to check whether we are not in fact dreaming that this actually happened! For this, we must again wholeheartedly thank you for your support and guidance throughout!”

People have been able to access or enforce proper processes, such as professionally competent assessments, and paperwork including written reasons, after we’d got involved

 “I just had a call from a delightful and sincere sounding lady from Adult Social Care. She is going to speak to the learning difficulties side of social services to see which team should do a new assessment, or if it should be a collaborative affair with the CMHT. She is also arranging a visit from an occupational therapist. I am cautiously optimistic. Thank you both for your continued support. I am so grateful.”

Necessary, wanted and suitable care home placements have been commissioned, when councils had first said ‘We don’t place people in care homes, ever’ – or ‘not in THAT company’s care homes’

 “Just had the call we’ve been hoping for, J has got the funding for [the preferred provider]! Thank you so much for your input, we are thrilled.”

Care Plans that had never been written up before, have been formalised so that people can see what they’re regarded as needing, and can check the cost assumptions

“My Parents and I have read your email and both attachments thank you – they are fantastically well written. I will go to a bank this week and open a bank account in readiness for a finalised budget and plan”. 

Two people were saved from being removed from care homes after living there for over 15 years and 33 years respectively

“They’ve withdrawn the notice and agreed to follow due process. Mrs X is over the moon and so grateful. She would have had no chance at this time of year of finding someone with availability for legal aid work”.

The proper use of the MCA has been forced into people’s Care Act processes where it had inappropriately been left out, so that their needs and human rights have been properly taken into account

“You are a huge hit with K’s mum, and K seems much happier now; in no small way due to the work we have done with you, as we suspect it has helped [the provider] to really think about the situation.”  

Ordinary residence disputes have been magically managed away and the right council has paid up

 “ I explained everything (almost) that you went through with me yesterday about why the way we’d been manoeuvred into taking over the out of area emergency placement, when X council made the contract, and T is incapacitated and J has no status regarding his funds, was unlawful. A new social worker has now been appointed.”

Top-ups for care home rooms, above the council’s offered budget, that had been said to be inevitable, have been cancelled and refunded or the out of area rate taken as the guide price

“I am absolutely ecstatic myself and cannot wait to tell Mum.  It has made me appreciate that we are in a privileged position to have had your help and that for many families this outcome would not have happened.”

Direct payments have been increased or not reduced, and some disputes about misuse or non-use or going back to a directly commissioned package, have been resolved

 “Thank you for the good work that you do with the charity. You have achieved everything you predicted for my brother and for us, as defectors from direct payment difficulties, and compensation on top -we are really grateful.”

People have been found to necessitate care by their own relatives in the same household, and permission has been granted or left in place

 “Thank you for the immediate response and honesty…X has been amazing and I totally understand the position he is in, and truly appreciate the help given in difficult circumstances.”

Care charges have been reduced, by reference to disability-related expenditure evidence, and at least one refund was secured

“..my financial resources will be severely stretched,
for the rest of my life, but I do so appreciate all you do for me.”

Carers have been awarded rationally sufficient budgets for themselves so as to sustain caring –or replacement care has been added to the service user’s package, after carers could stand no more

“With the advice you have provided so far, I feel more confident.  I will deal with this matter on my own now. I would like to say a huge thank you for everything you have done for my mum, and also myself, I have learned so very much from CASCAIDr’s work.” 

People have been supported to challenge CCGs’ Continuing Health Care decisions, and have either succeeded, or got a split package – and some have even got money back – in one case £50K

“The retrospective is awarded from Feb 2014… I’m pleased and very grateful for all your help getting to this point.”

CCGs have been threatened with judicial review for cost-capping and have ended up preparing quasi-Care Act care plans for commissioning an appropriate service and operating DoLS properly

 “Thank you to you and your case worker. I have now gone through the letter and have a few comments and tweaks maybe for your consideration. An excellent letter. I do not know what their defence(s) could be, given all their failures.”

One severely disabled person has been assisted to secure housing from the Housing Authority, in co-operation with service provision from social care, despite also having a history of substance misuse, and assumed reluctance to engage

“My bosses are on board with all this, and our funders also see the importance of this for both this service user and, of course, the potential for other cases to benefit from what we’re learning.”  

People have been assisted to selfprotect, against councils using the Court of Protection as a threat, to deter them from involvement in decision-making or from holding the council to proper account under public law and the Care Act

I’ll paraphrase, but what you said would happen, did happen within a few minutes of LA’s solicitor’s opening comments, the Judge turned on her and said ‘Stop right now! Stop where you’re going right now! I’m not having it! I’m not going to approve your draft orders. We’re all here to decide what’s best for Mr X’s support and it’s entirely proper that Mr Y is included in these decisions. I suggest you speak to your clients and come up with another plan because I’m not having it.’ We were so relieved.”

Complaints have been won and compensation recommendations secured, from the Local Government and Social Care Ombudsman

 “Thanks for all your help. I’m sure we wouldn’t have got the LGO decision without it.”

Providers from the private, public and third sectors have been assisted to stand up for their clients’ rights, and not just their own fees difficulties

“CASCAIDr’s support for our management’s thinking, in relation to what had seemed like an ultimatum from the council, has really helped turned things around for our charity.”

Independent supervision of a fresh assessment after a successful LGO complaint has been provided to a local authority

 “Thank you – that is really useful and helps us frame some of the points in your response to the Assessment and Carers Assessment for us to use in future training and guidance. I really appreciate this additional comment.”

Many more people now know what the local authority’s Monitoring Officer actually has to do, as the statutory officer responsible for governance, with a referral of alleged illegality.

So, PLEASE donate to keep us going into a 2nd year and beyond, and supporting our planned formal Litigation Strategy and our first residential Bootcamp for new Caseworkers in the Spring – by clicking on: DONATE to CASCAIDr

Finally, what sort of matters has CASCAIDr had to try to signpost to other sources of help, as completely out of our scope?

CASCAIDr specialises in public law matters for clients in the health and social care sector, from age 16+ – so we’ve had to signpost away matters to do with children, special education, safeguarding issues, adoption, DWP benefits matters, a negligence claim, a neighbours’ dispute – but not before taking the time to look at the problem. Please do look at our home page before getting in touch, as it all helps to keep us viable!

So, if you’ve got this far, PLEASE donate – to keep us going into a 2nd year and beyond, by clicking on: DONATE to CASCAIDr

Please share:

Podcast

CASCAIDr’s story in podcast form

In 2017, our voluntary CEO broke her leg – and whilst laid up, pondered a central conundrum in adult social care:

  • How does one make it viable to get good legal framework advice out to a person, at a formative moment, if he or she is struggling with the council about legal rights to care funding?
  • If the person is applying for public funding for care, he or she probably hasn’t got enough money to PAY for specialist public law legal advice.
  • Decent legal advice is always going to cost money because of the expertise required to have learned it, and applied it.
  • If advisers couldn’t earn money from the expertise, they’d have no incentive to acquire the knowledge!
  • But if the person with the legal problem, has sufficiently little to qualify for legal aid, they would then have to FIND a legal aid lawyer with a community care certificate, and enough capacity to take their case on….in less than 3 months of the action or omission causing the problem…
  • …Which is no mean feat, if one is on one’s knees with disability or illness or mental ill-health in the first place, and if one doesn’t know whether one has got a legal problem or just a complaint….
  • And if the person’s got just a bit too much money to qualify for legal aid, and fears the loss of services for rocking the boat, then they’ll probably just do nothing…and teeter into an even worse situation.

So she thought and thought, and she researched crowd-funding for public interest litigation.

She discovered that charities can crowd-fund for people’s litigation causes.

She discovered that charities can engage contractors, rather than employers, just like any other business – and pay them, if the charity has the money to do so.

She discovered that charities can even charge for services that are central to their charitable objects, without losing a claim to be acting for public benefit, as long as the charges are low enough.

And she discovered that they can own trading companies in order to trade in services that are not central to their objects, but designed to support the financial resources for the charity itself.

 

 

So, having had her A-ha! moment, she then applied for charitable status for the corporate vehicles that make up CASCAIDr and CASCAIDr Trading Ltd.

She spent her own money on legal advice to contend with the Charity Commission’s many and varied difficulties in grasping what the charity was setting out to do, and how it might work, and why it wasn’t politically motivated.

Its aim was to uphold the existing legal framework, not change the law. That is, to help people access their existing legal rights under the Care Act – a statute passed as recently in 2014, by this government, through a sovereign Parliament made up of democratically elected MPs who presumably knew what they were doing when committing the state’s tax base to funding what the Act says should happen in every single case….

Whilst exercising the minds of the Charity Commission, she managed to find a group of interesting and skilled trustees to support the charity’s operation. She created a structure whereby she has no control over the Charity as a board member, and earns no money for running it. She simply earns a case work fee which is the same as any other case worker can earn, and she has ceased to provide consultancy in her own private capacity, in order to avoid conflict of interest.

CASCAIDr now has trustees, case workers, volunteers, and ambassadors promoting CASCAIDr for free; it has writers and case note creators, reflective practice mentors, IT and social media and SEO support – and a growing number of case referrals and positive outcomes to point to. It has a business plan, a remote book-keeper, bankers, accountants, insurers, a raft of policies, ICO registration, GDPR compliance, and software renewal dates, coming out of the woodwork.

But CASCAIDr is still solvent, because we don’t have to spend all our time applying for grants from benefactors that aren’t sustainable.

We are completely independent, unlike many charities these days, who have become service providers to public bodies, delivering services at fees that enable the council to make the very same cuts that central government requires, in the name of austerity.

Our CEO’s leg has mended and although she is exhausted, she reports that the impact of doing battle for people as ‘better than HRT’.

You can listen to podcasts about the experience of giving birth to this baby, here:

1 Why a charity?
2 And why it took so long
3 How do you think you’ll be able to keep it going?
4 How do you feel now?
5 What is the difference between the free scope work and the chargeable work please?
6 What sort of support have you had so far?
7 Is it right for a charity to spend money on legal proceedings
8 How can ordinary people, and user groups, or parent carer groups get involved?
9 And what about providers?
10  Are you out to get the statutory sector or to support their doing it right?
11 is there a danger of doing too well here? Breaking the system, by enabling people to shout louder?

 

 

 

 

Why are we telling you this?

The point is that anyone can do this too, if the essence of your offer is advice and information and advocacy.

There is no charitable object listed in the Charities Act of ‘giving legal advice’ away, however cheaply you might be prepared to do this and however obviously the normal beneficiaries of charities are going to find your advice, useful.

And you cannot be politically motivated, although most charities’ aims touch on politics in the broadest sense.

But you CAN copy this model above, by using the charitable object of ‘the sound administration of the law’. It’s not specifically listed, and charity solicitors, being lawyers, ought to know about it. But it does exist, by analogy, having been established under the old law before the Charities Act was passed.

And there’s a case on it  which made all the difference to our application in the end – called HDT.

If you think about it, many registered charities’ core purpose is to give advice about people’s legal rights against governmental bodies, without it being seen as engaging in political activity. It’s often called advocacy, but the thrust is always the same – upholding welfare or human rights related law.

  • Housing charities in relation to local authorities’ statutory homelessness decisions, such as SHELTER are an example. Shelter’s charitable objects are the relief of hardship, poverty and distress of those in need, in adverse housing conditions, and the education of the public concerning homelessness and to make available the useful results of research to the public, and its activities specifically include advocacy, advice and information.
  • The Prisoners’ Advice Service and the Howard League for Penal Reform are charitable organisations one of whose main focuses is inevitably advice about rights where the defendant or respondent is a governmental body, the Prison Service;
  • Asylum Justice is another – its objects are legal advice and representation to asylum seekers, necessarily challenging governmental body decisions;
  • Citizens’ Advice Bureaux are advising every day, in relation to public sector child care decisions;
  • and many of the advice charities that advise in relation to social security decisions made by the DWP, such as the FRU, provide legal representation; others are RAISE or
  • The Public Law Project – a charity now, for a very long time. The clue is in the name, we feel!

In the HDT case, the Tribunal – overturning a decision of the Charity Commission about political purposes, held as follows:

We find that “promoting the sound administration of the law” was recognised as a description of a “fourth head” charitable purpose under the “old law” i.e. prior to 1 April 2008 (see s. 3 (4) of the Act) so that it now falls within s. 3 (1) (m) (i) of the Act.

There is no legal authority to support the view that the conduct of strategic litigation before a competent constitutional court is a proper means of advancing the sound administration of the law, but equally we have not been referred to any authority which suggests that it is not an acceptable means of advancing such a charitable purpose.

We take the view that the conduct of the very particular form of litigation supported and engaged in by HDT is an acceptable means of advancing the charitable purpose of promoting the sound administration of the law.

We consider that the public benefit requirement and the question of whether there is any risk to foreign policy from such a purpose falls to be addressed in relation to s. 4 of the Act and that we should be careful not to merge it into our consideration of the definition of a description of a charitable purpose, as the Charity Commission’s submissions seem to suggest that we should.

In any event we find…that the particular type of constitutional litigation supported and conducted by HDT is fundamentally different in nature from the activities found to be objectionable as political in McGovern v AG.

 

So please get out there and do the same thing, if you believe in what you’re doing.

If you build it, they will come!

Our aims, offering and DONATE page – the organisation’s profile and aims, and how to make donations online.

 

Please share:

The impact on individuals of crashing the social care market into the buffers

This video looks what’s really happening in Adult Social Care regarding care home bed shortages, and the lack of homecare services at the price that councils can afford.

Please share:

Sourcing HOUSING after college or a stay in an Assessment and Treatment Unit

This video looks at why there are so many people deemed to be clinically fit for discharge from assessment and treatment units but not able to leave, because of the complexity of the regime for accessing suitable housing – separate to the regime for getting s117 aftercare.

Please share:

Is it lawful for LAs to have a policy of always choosing the cheaper option

Please share:

Insufficient home care to go round – market management meltdown

Please share:

How are we really doing with the care act

Please share:

Disappearing Direct Payments

Please share: