Author Archive for belindaschwehr

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:

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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.

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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

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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!

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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.

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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!

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Attention: care home owners – support for doing the right thing for Covid-19 patients and their families

CASCAIDr’s written a guide about going to hospital, visiting, getting a ventilator and getting out of hospital for people who run care homes and the wider public, for reference and use during the Coronavirus crisis.

We’ve done this because of the concern nationwide that people in care homes are not only getting ill, but also seemingly dying in large numbers in care homes, which can only mean that they’re not getting to hospital even though they can’t all be deteriorating within minutes.

We think that if they’re not getting to hospital, it must be because of fears or decisions being made by desperately ill and possibly dehydrated or feverish or semi-conscious people – or their relatives, a GP, a paramedic, or a care home manager. We are not saying that that’s wrong or always inappropriate, please note!

But we don’t think anyone would want it to happen under pressure, or for want of legal awareness, or up-to-date information, or by dint of misinformation gleaned from the media, instead of well-informed consideration of all relevant considerations.

So – please, study it, distribute it to staff, print it off and pass it on to relatives – with our thanks and compliments for the work you are doing.

It’s called 10 things all Care Home Managers should know – and it’s for promoting good practice and preventing misinformation around DNAR/CPR, hospital visiting, access to ICU and discharge.

It should be useful for residents, family members and advocates, as well as for providers, commissioners, social workers and safeguarding staff.

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Training Offer for the Coronavirus crisis period

Under the Coronavirus Act, it IS now open to councils – and may well already be necessary  to use the normal legal framework duties as powers only, and to prioritise service provision on the basis of severity or imminence of need only, abiding by human rights.

The problem now may be the sheer shortage of staff and services, not the money, any longer.

The facts still remain, however, that

a) councils’ senior management teams will need to make lawful and considered recommendations (in the name of the elected Members) for policies and strategies regarding the powers to do all that the Care Act used to ‘oblige’ councils to do (ie how to prioritise, ethically and lawfully, even for assessment, and who should be charged, not charged, or just charged later) – the Guidance to which all councils must have regard places an enormous weight on the thinking of the Principal Social Worker, please note

and

b) front line staff and team managers obviously and urgently need to know how to assess, evaluate and ‘order’ apparent needs relative to each other by reference to type and extremity, and how to recommend the content of care plans or budgets, based on competent human rights aware considerations, and scarcity of resources, not just money. And there’s already been a derogation from human rights in a care home case this week, so this is no small ask…

c) Section 27(2), on revision of existing care plans, has NOT been included in the provisions that are capable of being suspended or modified.

That means that involvement of service users and their carers BEFORE any revision of a care plan – is still a continuing legal obligation.

Whatever involvement might mean to a judge, notification of an arbitrary decision, just taken back at HQ or on an online meeting of the SMT, is not likely to be lawful, we would suggest. 

We want to help, rather than hinder, councils facing difficult times, so here are some free ideas for thinking about, sooner rather than later:

  • You might develop a policy on screening for assessment for instance, or an online route into supported self-assessment, or issue a statement of categories of service users or types of needs that aren’t going to be thought to be able to sustain a cut.
  • You might issue some clear advice and information about a policy for letting people’s relatives be paid out of the direct payment, albeit that they live in the same household. If it’s not necessary now, when would it ever be?
  • Or it could be a policy that your council has decided upon for deferring charges for social care, for the duration of the crisis, perhaps, or using its discretion for increasing the Minimum Income Guarantee?
  • It might be about a council’s indication of the sort of situations where the council publicises in advance that there would be a breach of human rights if the needs were not met – or what criteria it’s going to use.

Our guess is that your legal department will be overstretched themselves, busy prioritising cases about children’s welfare, right now, and will not have time to train all your staff on any of the above. 

CASCAIDr’s Trading Company will gladly do so, by webinar, so that you can offer staff the safety and convenience of listening to the material on their own, whether self-isolating or still at work. The recordings will be part of the package. 

Our CEO Belinda Schwehr is known not just as a compelling and experienced adults’ services trainer, but for her neutrality and fidelity to the legal framework as it is, at any given time, not merely how we would like it to be. She is fluent in the language of human rights, as well as social work and care, having trained many thousands of staff on the Human Rights Act – before designing training on the Mental Capacity Act, Continuing NHS health care law, s117 law, and the Care Act itself.

Fiona Bateman, our Chair, is an expert on safeguarding, nil recourse to public funds and Continuing NHS health care, as well as the Care Act, MCA, human rights law and mental health, as well as guidance for multi-disciplinary support for rough sleepers.

Sue Inker is our resident expert on all things MCA / DoLS / Community DoL / CoP, and will be available for consultancy over Zoom, as well. She has been involved recently in mapping the NHS constitution to human rights articles, to domestic legislation and to the regulatory framework, so this expertise in safeguarding and human rights could also be of immense help. 

Our Trading Company’s training fees

The webinars will be available from 8 April – £750 in total for 4 hours, broken down to 2 sessions of 2 hours each (a discount from our standard fee to non-charities – we do absolutely get that this is not the time to price gouge, but our Trading Company’s role is purely to support the charity, please note). 

Content of Session 1

The first webinar will look at the emergency powers legislation (in force now, but awaiting Guidance and regulations about suspension);

  • what it does to the Care Act functions of assessment, review and choice of accommodation/continuity;
  • what giving a choice to councils whether or not to adopt the easements, in Guidance that is itself not able to override the law as to suspension of the duties, could possibly mean for legal challenge or liability risk later on;
  • and how senior management can use existing equalities and ethical principles to develop a lawful policy and strategy for organising screening, assessment and review functions, for management of existing and future clients’ care and support needs;
  • lawful policy development on meeting existing or new and otherwise eligible needs in NON Human Rights cases (existing and new) will be addressed, focusing on significant impact/critical risk, in the context of this crisis;
  • suspension of charging functions and expansion of Disability Related Expenditure deductions will be addressed; 
  • discussions with providers, as to fees, will be addressed.

Content of Session 2

The second webinar will look at the invidious question of using a human rights approach to evaluation and decision-making about actual care plans (for front line staff and panel members)

  • a focus on decisions at the point of hospital discharge, where the framework for CHC assessment is also altered in ways that are unclear, given that NHS provision functions do not give rise to enforceable duties in any event;
  • a focus on honest conversations with informal carers – and the questions that must be asked before a cut or a refusal of care;
  • we will discuss policy development on when it either is or is not, ‘necessary’ to permit close relatives to be paid out of a direct payment – whether or not the government has got around to issuing the guidance that has been promised, by the time of your webinar;
  • and we will include a suggested template for decision-making in the online paperwork.

Options

Councils can buy just the recordings – if you can’t spare any of your own staff to participate in person

Councils can buy them separately or together, depending on your needs. 

Or you can set up a date for live sessions for £125 extra for bespoke versions of either of the two (ie £375 + £125 for either one, in live form).

  • You might find that more useful, say, if your SMT is already making plans but wants a ‘sense’ check of them, as soon as the law is finalised.
  • Or you could have Session 2, live, for the team managers who are going to have to moderate front line staff’s recommendations that seem either inadequate or excessive, or just not rational or evidence-based, in relation to what the law will still require.

You can commission a further webinar recording on the changes to the Mental Health Act too, for the same price of £375, but we have to prioritise preparation for the Care Act changes, so we will be offering that slightly later.

If you need legally literate consultancy, instead of or on top of training, all three of CASCAIDr’s training team can provide it to groups of staff, by phone, or through Zoom (for which all you need is your laptops) – for our standard hourly fee to any public body of £200 an hour.

The income will directly support CASCAIDr to continue to support members of the public to ensure that they are treated as lawfully as the new regime will stretch to! 

Please email gabesusman@cascaidr.org.uk if you want to set up a specific date for bespoke sessions, or belinda@cascaidr.org.uk, if you need urgent consultancy.

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CASCAIDr’s Translation of the Easements Guidance

As promised, CASCAIDr’s translation or ‘alternative’ interpretation of DHSC’s guidance on the Care Act modifications. Click here to view the document.

If practitioners and public want more like this, you need to donate whatever you can, on our button on the right, please, or here: https://bit.ly/2QZZyDc otherwise CASCAIDr can’t continue to function and won’t survive the Coronavirus crisis.

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Our approach to the Coronavirus Crisis – what CASCAIDr can do for you

CASCAIDr – the All Adults’ Care and Health specialist legal advice charity – is compelled to go into a different mode for the duration of the Coronavirus crisis.

Advice charities are not getting any hint of financial support, and small charities will become insolvent very quickly, it is feared.

In all honesty, we can’t hope to cope with NEW clients’ individual legal issues – not to any deep level or to a resolution – not if there’s no clear law to use, to enforce the Care Act duties that will shortly be suspended – downgraded into powers only – apart from where NOT meeting the needs would amount to a breach of human rights …

  • We will still offer a steer for free, to anyone who needs one, and makes a referral on our online referral form here – for as long as we can.
  • We will refer people who need ongoing legal work to legal aid law firms with capacity to take work on, in compelling cases – we can’t hope to achieve what a regulated law firm can in an emergency, and we can’t ethically charge for trying, or wasting precious time.
  • This is going to be our main output for a while: we’re going to provide free template letters online, for the following groups of people to use in their own names – but in the fervent hope of donations, however small, with Gift Aid ticked wherever possible, via https://bit.ly/2WCNHhZ.

The letters will need to be adjusted, to suit one’s individual circumstances but are intended for the following:

  • New candidates for a care package, being screened out or left unfeasibly long
  • Current service users facing apparently arbitrary cuts to existing care plans, or any cuts, implemented without some genuine involvement of the adult and any carer first
  • Anyone being offered services that are inconceivably inadequate or inappropriate in nature
  • Informal carers being manipulated or forced into doing more than they feasibly feel able to
  • Relatives of those facing going into an unsuitable care home
  • Providers facing unilateral cuts to their fees or refusals to review clients when evidencing increased client needs

If you can think of others that are needed, we will do it! Email ideas to belinda@cascaidr.org.uk please!

  • We can also provide expert advocacy under s27(2) and s27(3) for anyone who needs it before a revision of a current care or current support plan. We will necessarily have to charge a low hourly rate for that work, but it can be done over the phone or by way of Zoom (online video conferencing software, for which you need only a link and a smart phone or a tablet). Email belinda@cascaidr.org.uk if you need to arrange some of that…
  • Finally, we’re going to run a page for members of the public to use to report good practice and policies as they emerge, from Councils and Care Trusts – you can find out about that, here.

Please note that our Trading Company will also be offering top-notch training by webinar/webinar recordings – to councils’ and Care Trusts’ staff. All net income goes to support the charity, of course. You can find the link here.

The training content covers how to do what they now must do, as lawfully as possible, with regard to probably the most difficult conversations – and decision-making – that those practitioners and managers have ever been obliged to face …

So if you’re a front line worker, a team manager or a senior manager and want that to be available, please mention it to your Head of Service now.

The offer has already gone out to all Directors and Principal Social Workers in the next day or so, and available after April 8, if we can possibly manage it, and publicised here

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