Author Archive for belindaschwehr

R (on the application of CP by her father and LitF, JP) v NE Lincolnshire Council

… is a fantastic judgment from the Court of Appeal (announced 3 October 2019) about the parallel statutory duties owed by a local authority under the Care Act 2014 and the Children and Families Act 2014, and the overlapping Tribunal and JR routes to a remedy for breach of these Acts.

Fundamentally, the Court held that if a council breaches the Care Act, then it is acting unlawfully, and must pay what it would otherwise have been obliged to pay towards the person’s care plan, if it had acted lawfully.

If that person has incurred a liability to pay, even a person lacking in capacity to have contracted, then that is the measure of what the council would have to reimburse, as a matter of public and private law principle.

Implications for anyone in a struggle with a council about the Care Act functions

For any council using a Three Conversations Model to save time with assessment and encourage so-called assets and strengths-based professional evaluations which assume that friends and family are willing to meet needs informally, that council might be wanting to make it a whole lot clearer in its public offering of advice and information, that anyone who wants a proper Care Act assessment or budget or plan is welcome to one, one that complies with the due process requirements in the Act and in the Assessment Regulations.

People should refer the council to para 10.86 of the statutory Guidance and demand the management review that it recommends, so that the council can put right any non-compliance with legislation, without further ado.

The implications for us, as a charity seeking to resolve disputes by polite reference to public law legal principle:

CASCAIDr corresponds with many councils’ senior management, legal departments and Monitoring Officers every week.

Sometimes, dealing with the responses we receive, makes us feel as if we learned our law in a parallel universe, and not just last century.

We were therefore much cheered at this judicial assessment of NE Lincolnshire’s attitude:

“The Council resisted CP’s claim at every turn and conducted what turned out to be a fruitless rear-guard action for the next 18 months.”

We are regularly told that we are wrong to say that a breach of a statutory duty gives rise to the independent mandatory duty of a council’s Monitoring Officer (under legislation promoting good governance, dating back to 1989), to report the matter to Members, if they can’t otherwise sort it out.

We use this remedy to help people avoid getting stuck in the complaints system, and avoid having to get adversarial and threaten judicial review.

But we’re often told by these lead governance officers that when a dispute arises between a citizen and the council about the discharge of Care Act duties, regarding the adequacy of a budget, care plan or the processes required by that Act (one where we’ve carefully probed and identified all the ways in which the council has not abided by the plain words of the statute or the regulations) – we are told that their own governance duties are not triggered because (in some way that is never explained), that particular sort of dispute is not about contravention of an enactment or a rule of law.

And they say this even though the Ombudsman does not himself hold back in describing this sort of misconduct as breach of the Care Act when considering councils’ allegedly unsatisfactory handling of complaints that have been made.

So some of these luckless officials will be hearing politely from us, shortly, with this excerpt from the Court of Appeal’s Lord Justice Haddon-Cave’s judgment, which sums up our ‘Old School’ understanding of public law, as WE learned it, rather nicely:

A breach of a statutory duty is a breach of statutory duty.  It is, by definition, unlawful conduct.  Unlawful conduct by a public body cannot merely be discounted or ignored. 

Moreover, s. 26 [of the Care Act] is no minor matter.  A local authority’s statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins. 

In the present case, having found the Council in breach of its statutory duties, [the judge in the High Court] should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall, in accordance with normal public law principles of legal accountability of public bodies.

That’s very cheering, isn’t it?

We’ll be doing an analysis of the case as soon as we can and will provide links to a public copy of the judgment as soon as it’s up somewhere for free.

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A considered riposte to the question posed by Peter Feldon “If unmet need is so rife, why are there so few complaints about it?”

Having taken some time off from managing the flood of referrals received weekly about dodgy practice in adults’ social work, to read Mr Feldon’s article, in Community Care, my jaw dropped.

It doesn’t feel as if nobody’s complaining, HERE!

However, on a more careful reading, it may just be that it’d been inappropriately edited with a title that didn’t QUITE fit the content.

Whatever the reason, though, I have some suggestions to make as to why there might well be fewer complaints than one would expect, given the current national outpouring about unmet need, the further delay to the Green Paper and examples everywhere of the funding crisis, now highlighted by Panorama’s 2 part TV documentary.

Mr Feldon cites the slew of articles and sources, referencing massive unmet need, and then says this:

            “Yet, very few people actually complain about decisions not to meet their needs where these do not meet the eligibility criteria.”

Unmet needs that do not meet the eligibility criteria are not needs that there’s a duty to meet anyway – they are a social problem, not a legal problem, and that’s always been the law. And it’s quite hard to assess someone as INeligible, if one is doing assessment properly, these days (and not just using a 3 conversations model!) – because the criteria are based in law and not mere Guidance, and the Guidance exhorts councils to read the criteria in an expansive and inclusive way.

However, for most people, the devil lies in the detail of the care plan; Mr Feldon went on to say this:

“However, there are a significant number of people who complain about their needs being under-met; this occurs when a person – judged to meet the eligibility criteria – believes their personal budget is insufficient to meet their needs.”

He cites 315 complaints made to the LGSCO where the investigation appeared in the ombudsman’s category of assessment and care planning. The yearly figures have gone down a bit from that level, since 2016, but say approximately 300 a year, in that category. There was ONE example out of 23 cases actually mentioning “unmet need”, where the decision was overturned regarding ineligibility of need. In the other cases, “The most frequent reason for needs being unmet was as a result of delays, most commonly in assessment/reassessment or putting in place elements of the care and support plan.” Delay in and of itself is usually explained in reasonable terms, and is not usually what lawyers would call unconscionable, but just unfortunate. Mr Feldon did not say whether these complaints had been successful or not but it would not be surprising if the LGSCO tended to give councils the benefit of the doubt in most cases of delay.

However, Mr Feldon went on to say –

There were nearly 300 upheld complaints in this three-year period that include reference to personal budgets and, of these, one of the main complaints was about reductions in the personal budget, resulting in some of the individual’s eligible needs not being met or being under-met.”

To my mind, that is one third of all social care complaints about assessment and care planning over three years, where the complaint was upheld that some eligible needs had not been met.

That is surely not a small proportion or a small tally, on any footing.

The case law says (and always has said) that unmet eligible need is unlawful. The LGSCO’s remit, however, is maladministration (now called ‘fault’), not legality.

Moreover, if something is alleged to be positively unlawful, the LGSCO may refuse jurisdiction altogether and refer the complainant to the court system – although the possibility of using legal proceedings is not conventionally regarded as feasible by the LGSCO for most people, in terms of financing them, or the relationship of dependency that may be affected for the worse.

So – our reasoning is that if the LGSCO regularly said that council conduct was in ‘breach’ of the Care Act, or ‘unlawful’, the LGSCO would be criticised for usurping the role of the courts, undermining the protections for councils (ie the need for formal permission for judicial review proceedings from the Administrative Court; the three month time limit; and the practical hurdle presented by the qualification requirements for legal aid funding) that are legitimately and lawfully enjoyed by social care departments.

These days the LGSCO reports use the euphemism ‘not in line with the Care Act’ – see for example the most recent successful complaint against Barking and Dagenham, where a catalogue of incompetence is set out, for all to wince at, because the behaviour regarding top-ups is so widespread.

Secondly, the LGSCO can’t proceed with a complaint without being satisfied that the complainant has given a chance to the council to resolve the matter. The ombudsman has conventionally expected a complaint to be made via the formal social services complaints service, but this is not what the law actually says.

Rather, the law requires that the matter has been brought to the attention of the council with an opportunity to investigate and respond, and there is another way of achieving this, which is using the Monitoring Officer remedy.

We mention this because Mr Feldon’s article does not explore how many first level complaints or referrals to the Monitoring Officer about unmet need may have been successful in the same period.

CASCAIDr has been using the MO remedy for over a year now – so all those cases should be added to the tally as well, where councils have shifted their position and seen the error of their ways – the ILLEGAL error of their ways.

In order to work out whether unmet need is defensible in a given case, or not, one needs to be well enough informed to be able to pinpoint the bit of the Care Act where the council has maybe gone wrong, in legal terms.

It’s not hard to do that, if you know how public law works (the law regulating the behaviour of public bodies). One simply needs to have recourse to the wording of the Care Act and Regulations to sort out the things that a council is legally OBLIGED to do from the things that the council MAY or should do – the latter are powers, and not obligations. It is by having done that exercise that CASCAIDr has produced a Care Act questionnaire with section numbers and case law included, for our own caseworkers to go through, with our clients. It provides a framework for the sort of probing of the facts, and the contents of the letter that must then be written, if one is going to access either the management review that one is entitled to expect in the case of a disputed care package or budget, (see para 10.86 of the guidance recommending this process and REASONS being stated, before a person should even be asked to complain) or the Monitoring Officer’s attention (no mention of that governance officer’s duty is even made in the Guidance!).

Whatever one thinks of the editing, however, there’s a problem in the content of Mr Feldon’s commentary, itself, in our view:  

“It is understandable that addressing unmet need per se is not at the forefront of complaints because there is no statutory definition of the term. In fact, there is no reference at all to individual unmet need in the Care Act and the accompanying Guidance. The legislation recognises that individuals will have care and support needs that are not eligible, which local authorities will mostly not meet, and these are described as ‘non-eligible needs’. There is a duty to explain the decision not to meet needs and provide information and advice to individuals to assist them in preventing, reducing and delaying needs that have been determined as non-eligible, and this must be done in writing. But there is no obligation to determine or record whether non-eligible needs are met or unmet.”

We have to disagree with Mr Feldon as to that analysis of the legal framework.

In public law terms, the requirement of identification of any needs for care and support, and then of the needs which are Care Act eligible needs, and then of the eligible needs that are going to be met by the council – means that any eligible needs that are NOT intended to be met will all be able to be derived from the process laid down in the statute by a process of elimination. If there is a good reason for not meeting eligible needs, then that is not unlawful, but if there is no such justification, its existence is unlawful. Simple, really, we think.

Here are some obviously valid legal reasons for not meeting eligible unmet need:

  • It is someone else’s duty although two agencies are empowered to provide the same sort of service. Eg health inputs when the person’s eligible needs are in fact enough to amount to the CHC construct of ‘primary health need’; housing needs when the person’s need for accommodation is not essentially associated with the practicability of delivering the care and support that is needed; education needs when the person needs the education in order to fulfil educational potential and not merely to access it as an aspect of wellbeing;
  • It is someone else’s choice to meet the need: eg an agency that is not bound to do so, but is willing – such as a CCG willing to make a health contribution to the council in recognition of needs at night being objectively health-related, or its funded input representing health-related deterioration prevention, or something like that;
  • Or, alternatively, the clear, capacitated choice, and most usually, the choice of a willing and able informal carer, or someone who wishes to contribute funding to meet the need, such as a charity, the ILF (when it existed) or the person themselves, or their finance deputy if they lack capacity. Anyone can of course, choose, still, to spend their own money or benefits on meeting their own needs, and may well appreciate that they or their loved one will get a whole lot more choice and control, if they do so;
  • The fact that the person is not ordinarily resident in the area;
  • The fact that the person has needs for a placement in a residential or nursing home and is above the financial threshold and not also lacking in mental capacity to contract for themselves (or if capacity is lacking, that person has nobody lawfully authorised and / or willing to arrange the necessary care for that person, in their own or anyone else’s contractual name).
  • The fact that the person in question, having heard what they might be able to be provided with, says ‘Thanks, but er, no thanks’.

That legal analysis is derived from the fact that s13 of the Act says this must be done, after an eligibility decision is taken: 

(1) Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2) Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

(3) Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority’s area.

This has been the law since 1995, when the 1990 legislation was first interpreted in the Gloucestershire case to turn on the council sector’s judgment as to

  • what sort of situation necessitated (under the CSDPA 1970) or ‘called for’ (under the 1990 Act) any council to meet needs determined to be eligible;
  • what constituted a rational and lawful approach to the concept of eligibility
  • what constituted a lawful approach to allowing resources difficulties to move the line (when councils could themselves MOVE that line, locally),
  • how MUCH of a service to provide to meet needs – a decision that must be based on a competent lawful judgement in the first place, not driven by a departmental limited budget.

This sort of writing was available then to anyone with the internet: (I know because I wrote it!)

“In Gloucestershire, ‘unmet need’ finally received judicial attention.  It need no longer be a matter for anxiety, for fear that acknowledging a need creates absolute liability to provide for it, such that unmet need is necessarily unlawful.  Unmet “human” need may now be openly acknowledged to arise, in fact, but it will now be unlawful in only one situation.  Unmet need outside the eligibility criteria will exist lawfully within what is contemplated by statute.  It is only if a need has been acknowledged, as such, and the authority has also acknowledged that it must intervene to provide something, but then run out of money, or otherwise failed to meet need appropriately, that the need will be ‘unmet’ in both human and in legal terms, and also unlawful. 

If this clarification encourages recording of actual unmet need, then the planning process will eventually benefit. The whole idea of recording unmet human need is to encourage service responsiveness and strategic planning for the future.”

It’s true that a lot of effort is made these days by councils to avoid even identifying that need may not really be thought of as met by what is being offered, and even more so, where the need has been deemed to be eligible. Here are some examples of how they try to get away with that:

  • Councils don’t assess needs, or eligibility, in terms of services into which the client will then be squished, just because they’ve been bought by the council in advance, any longer (in theory, at least but try telling that to a commissioner of respite or reablement services that are going spare!): the Guidance tells them not to, but this makes it even easier to be vague about the amount of any particular service that is actually regarded as needed to meet the need;
  • Councils don’t specify inputs as much as they used to in care plans, because sector leaders and think-tanks have told them that outcomes-based specification is much better for ‘flexibility’ and person-centredness. It’s true, but it also enables fudging by providers and commissioners, and reduction of one-to-one hours and other expensive elements of a package without the outcome of ‘a happy safe client’ actually being noticeably lacking – if they’re photographed on a good day, for the review!
  • Councils don’t like to record any view as to how many HOURS of need, their weekly rate is actually supposed to cover, for live-in care clients, Shared Lives clients, or for an individual in supported living or under a block contract arrangement.
  • Councils don’t evidence their reasons for setting the rate for DP clients to employ their PAs at (the law says it must be sufficient to reflect the local market and half of Europe has gone home, so it can only be going up, logically?). The guidance says it must reflect appropriate quality provision as well!
  • Councils allow providers to put unregulated workers onto tasks that have been subtly re-worded so as to avoid even counting as ‘personal care’ tasks for regulated workers only (eg by changing ‘prompting together with supervision’ in a contract or a plan, to prompting … and prompting and er, just prompting….) so even if the company is still CQC registered, many of its staff are not regulated and so are cheaper to employ.

The legal truth is that anyone who knows what they’re doing with the law can FORCE a council to acknowledge unmet eligible need. When one factors in the CP v NE Lincs case it’s even easier. That case assured all informal unpaid carers that they can actually expect the bit that they are going to carry on doing, to be recorded in the s25 Care Plan, so that the personal budget being offered, inclusive of their charging contribution, can actually be seen to cover all the rest of whatever has been identified as eligible! Or more often these days, NOT to cover the rest, rationally and feasibly adequately!

“…The duty is a clear one derived from section 26 of CA 2014 and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which … would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected.” 

Councils have been trying out prioritisation for years, out of desperation or sheer ignorant collusion with an ideology of austerity, regardless of the rule of law, and leaving it unclear as to when a priority is so low that it won’t ever be met. Here’s an example from Community Care’s back catalogue in this vein:

            “The terms of reference for Derby council’s resource panel revealed a prioritisation system is in place “to target available resources at those in the greatest need”. The system has three categories, with the lowest priority being people in the community who require a “personal budget to develop their independence, confidence and community inclusion”. The document states that the available budget will be “allocated according to these priorities” and where the budget is not available, “some requests may be held in date order and reviewed on a regular basis to consider the risks” in delaying the start of support.”

The lawyer’s comment on that at the time was this:

“It is not unlawful to use a prioritisation approach, however the wording of the policy suggests that in cases where the budget is not available, eligible needs are potentially being left unmet.”

To be clear: waiting lists within reason and when lawfully ordered, are not ever going to be easy to prove to be unlawful in public law terms – even where there is a duty to meet need – because there is also a reasonable time allowed for discharging any legal duty. So the context, the urgency and the impact of leaving the need unmet for even a short while are all necessarily relevant considerations for professional judgement, and these really pressing cases are resolved as soon as one sends a letter to the Monitoring Officer in councils where senior management has preserved any notion of ethics. It has never been legal to downgrade a duty to a discretion by treating financial difficulties as an excuse for not discharging the duty, say, unless or simply until it suits the authority better. This was established in 1997 in the Sefton case, and in the South Lanarkshire case in Scotland in 2002, where the duty to place people in residential care was emphasised to be a duty, regardless of available resources.

So it is all there, for those who want to fight back.

A third factor in complaints being low, though, is this. Faced with a county-wide ‘blanket’ cut to service levels or funds, or a ‘Take It or Leave It’ approach to indicative budgets – one would need to get over all the natural tendencies that vulnerable and dependent people invariably struggle with – eg fear of loss of current funding, or hostilities, given the power balance is hugely uneven; suspicion or even paranoia and absolute certainty that it will only go badly for them if they raise their heads above the parapet to challenge what has been done; even resigned stoicism if they read the newspapers and see it’s happening everywhere, but don’t actually know that a council is not allowed to use its budget position as a reason for not discharging the statutory duty, and that there is a LINE, under which a council cannot go, just because it is hard up!

The identification of that line, we do absolutely grant Mr Feldon, is a matter for the courts, not the ombudsman, who concentrates on poor process rather than the sufficiency or unreasonableness of the outcome – but when the process is set out in statute and regulations, and councils ignore the law, or the outcome is so choke-worthy as to suggest that no rational decision- maker could have arrived at it, if they understood how the interpretation and governance of law works, the LGSCO really has no option but to castigate authorities for maladministration – or what is now called ‘fault’. Those thinking of going to that organisation, should take heart from the statistics, and not delay.

Those natural tendencies – all deterrents to saying to a social worker’s manager, in writing: ‘Do you really mean that? That’s what’s supposed to meet my needs, then, is it?’ led us to set up CASCAIDr. Someone has to point out that all this is wrong: not just a little bit wrong, but the very antithesis of social work professionalism and values. Those values should not be able to be destroyed by austerity; they should have been able to survive councils being squeezed by central governments – of any political persuasion. In fact the profession has allowed the value of the social care safety net to be diluted by ignoring the legal truth that care planning MUST be individuated and needs-led and turn upon professional judgment, not managerial edict. If sector leaders had pointed that out to government, the Care Act might not have been passed into law in its current form, but it was, thankfully.

However, instead of delivering on its promise, its open-textured references to discretion and sufficiency and transparency have been exploited to the maximum; the discomfiture should be that some Adults Services Directors and Monitoring Officers have been very well paid for participating in that systemic dilution, whilst their employing councils still owe statutory duties to the public, of which their elected Members may be blissfully unaware.  

Our conclusion is that whilst one can lead horses to water (make legal literacy more accessible) one cannot make them drink (ie use law to enforce their rights) if the poor horse is afraid of the gate (ie of the social worker, care manager or Panel) or can’t see what’s over the other side (concerns about conflict, victimisation, etc), or is worried about whether a shoe will come off (withdrawal of the current offering) or has a rider (advocates? brokers? family member?) who just doesn’t know how to get the best out of the track (the Care Act ‘customer journey’) or the horse itself (the service user’s own views and comments).

Belinda Schwehr

CASCAIDr

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Council at fault after delaying authorisation of ten hours’ additional support for over two years, the ombudsman finds

Council did not provide direct payments for support that it had identified was needed, and asked for evidence of how money not received had been spent.   

Mr X is a disabled man whose mobility and daily living is impacted by health conditions. North Tyneside Metropolitan Borough Council assessed Mr X following an operation and identified the need to increase his support by ten hours per week (taking the total support he needed to 38 hours), but it then delayed authorising the increase by over two years.

When Mr X complained to the Council about the extensive delay, it asked him to evidence the payments he had made to his Personal Assistant for the additional hours, whilst knowing Mr X had not received the money to pay for the additional hours.

This caused Mr X significant and unnecessary distress over a number of years, whilst his Personal Assistant suffered financial losses from providing the necessary care without pay.

Two years after the assessment and decision to increase the budget by ten hours, Mr X was assessed again and based upon the same information as two years previously, the Council decided without explanation that he needed nearly a third less support, causing additional distress to Mr X.

Following the ombudsmen’s involvement the Council agreed to pay to Mr X the missing payments, backdated to the date of the previous assessment of his increased needs, to enable him to pay his Personal Assistant for the care already provided; pay the Personal Assistant £300 in recognition of his unpaid support provided to Mr X; re-assess Mr X and pay him £150 for his inconvenience; to review its processes to ensure current and future funding authorisations are not delayed.

Key Legal Issues

Delayed Payment Authorisation for Identified Care and Support needs: The Council was found at fault for delaying by over two years the authorisation of an additional ten hours of support per week which it had identified was needed.

Unreasonable Requests for Evidence: The Council was found at fault because it asked Mr X to evidence payments he had made to his Personal Assistant for the additional hours, whilst knowing Mr X had not received the money to pay for this. The unreasonable request further delayed the payments.

Reduced Support without justification: The Council was also found at fault because two years after the assessment which increased Mr X’s support needs to thirty eight hours per week, it undertook another assessment based on the same information, yet this time reduced his support needs to twenty six hours per week without any justification.

Discussion:

The Care Act 2014 places a duty onto local authorities to carry out an assessment for any adult who appears to require care and support, regardless of their potential eligibility for state funding.

Once an adult’s needs are sorted into eligible or non-eligible needs, the person is entitled to have the eligible ones met, although the local authority is in charge of making the decision as to how much care or funding is ‘needed’ for adequately and appropriately meeting those needs, which is a woolly concept in this day and age!

That decision is subject only to judicial review, for irrational, unreasonable, un-evidenced, unarticulated or fettered (over-rigid) decision-making.

Fortunately, there are 20 years of cases about councils who have been doing it that badly, so lots of examples which councils’ lawyers are obliged to tell the staff about.

One such case (called Killigrew) says that if a social worker thinks that the needs have diminished, s/he needs to be able to articulate their evidence basis for that conclusion. They can’t just be told to Go Forth and Subtract, just because the department is looking at a budget deficit.

There’s also a Monitoring Officer in every council, personally responsible for reporting illegality when it is referred to him or her, to the council’s elected members, unless of course the social care staff decide to behave properly after the Monitoring Officer’s intervention.

The local authority must also provide the person with a copy of its decision on eligibility. The individual’s care and support plan must include a personal budget which informs the individual about the money allocated to meet the identified needs.

The personal budget must be a sufficient amount to meet the individual’s care and support needs, and be transparently calculated, with any aspect being met by informal care by friends or relatives identified so that the calculation of the sufficiency of the amount for the rest of the need can be made accountable.

Mr X was therefore legally entitled to have his needs met, and for his personal budget to be an amount sufficient to meet his care and support needs, without delays and without ridiculously unreasonable requests.

The Ombudsman found that whilst the Council was entitled to a view that some support it had previously provided was for needs that were not now eligible but that it must keep in mind the flexibility and personal choice that direct payments were intended to promote. It should also consider that after a two year history of delaying payment for assessed eligible needs, the move by the Council to reduce its view of the man’s support needs would lack credibility.

The full Local Government Ombudsman’s report can be found at https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-011-515#point1

Considerations for Professionals

• How efficient are your processes for authorising funding requests?

• How well does your system identify delays in funding requests and how quickly are these delays able to be addressed? CASCAIDr will be coming after councils guilty of unconscionable delay, because it’s unlawful!

• Are your requests for additional information when reviewing use of direct payments, reasonable and valid, in the context of the overall situation – your own Panel’s or finance department’s conduct, and your knowledge of market conditions? Un-joined up ‘command and control’ culture can lead to massive Egg on Face, if anyone even cares about that, these days…

• Is there a justified reason underpinned by a solid evidence base for a reduction in care and support needs, and is there any conflict with the personal choice and flexibility supposedly integral to Direct Payments? If you calculate a budget set by reference to a rate per hour, do you allow the client to pay less for more hours, or more for fewer, without cavilling with them about that later? Or do you suggest that either way, they should be paying you back the money on the footing that they did not NEED the service they’d bought!! Get a grip, if so!

Questions for Clients / Service Users

 Have you faced significant delays when awaiting funding decisions for identified care and support needs?

 Have you experienced unreasonable requests for information, which further delayed the processes?

 Have you had your increasing care and support needs reduced without justification?

 If so, it’s all unlawful, and can be put right, but most probably only if you’re a bit legally literate.

 You can be supported to use law and legal principle, via the dispute resolution services that CASCAIDr provides – the worse the behaviour is, the more likely it is to come within our Free Scope area of work.

For advice and support, please contact: advice@cascaidr.org.uk or make a referral on our top menu bar Referral Form link

Please donate via CASCAIDr’s Online Donation Page – top right of this site – the MyDonate button.

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A council successfully defends a cut to a Care Act care plan by phasing in a big cut, slowly


CASCAIDr’s CEO has long suggested during training sessions that mincing towards meanness is much harder to challenge, even with use of public law principles, in the context of adults’ social care or CHC services, than making a giant cut overnight.

If commissioners aren’t care aware, and care managers and reviewers are risk averse or incentivised to make immediate savings, of course too MUCH risk or too LITTLE risk will be factored into any programme of cuts.

Such is the impact of no longer training social work students in how LAW actually WORKS, or front line public sector staff and senior managers in “difficult conversations”, it is suggested.

However, in a recent case, Lewisham Council has shown that massive cuts can be justified, as long as they are implemented slowly and the impact is genuinely monitored.

That, we have to say, is defensible social work, rationing public money properly, but it is not the modern way.

Making a judgment as to a Court’s reaction, in cases like this, is one of the reasons why CASCAIDr exists. This would not have been a case that we would have been likely to lend our support, all the way to court, although just as in the pre-Act Cambridgeshire, and post-Act Oxfordshire cases it seems that it was the proceedings that succeeded in MAKING the council do the job properly in the end. What a waste of resource, is all we can say.

In the 2018 ‘VI’ case, R (VI) v Lewisham LBCthe claimant was a long-term recipient of social care services – firstly, commissioned services and then through direct payments.

She was a 55-year-old woman with muscular dystrophy, who was bed- and wheelchair-bound and who required carer support for all personal care. She had reduced dexterity in her hands. She was continent, and used to wearing pads during the day and night if no carers were expected, although she did not like having to do so and the pads sometimes overflowed.

She’d been used to having 104 hours a week for a number of years including a specification for double handed care 3 times a day and night time care through a sitting service. Then a hoist was fitted, but no change was made; the council very fairly openly admitted to its failure to review being the reason the planned cut was not made when first assessed for.

En route to the final plan for the cut, the council had said this in writing, rather unfortunately:

“Lewisham is unable to provide an overnight service to enable you to continue to be supported to the toilet during the night. Lewisham has limited resources and that requires that we ensure we make the best use of the resources for all clients. Lewisham social services believe that pads are the solution to managing incontinence over the night time period and that is an approach used for all clients with similar needs. It has therefore been recommended that your night time need should be managed through the use of incontinence pads. The use of pads is considered a practical and appropriate solution to your night-time toileting needs.”

The judge agreed that a decision in the terms of that sort of communication could not amount to an assessment complying with the Act, because it was a generic decision relating to the management of incontinence rather than one reflecting a consideration of the Claimant’s individual needs and well-being.

[We agree and often use this argument: that’s a policy change about what is appropriate or not in relation to the duty to meet needs and we don’t see why it should not have been consulted over. But in light of the McDonald case, if it HAD BEEN CONSULTED OVER PROPERLY, it cannot be said that the policy was automatically unlawful, however – it all depends. What is clear is that it would not be lawful if it had been automatically appliedthat would have been a fetter of discretion.]

By 2016, Lewisham had completed a care and support plan that reduced the Claimant’s hours to 52 hours a week.

In practice, though, even now, no reduction was implemented, apparently due to administrative oversight and the Claimant continued to receive direct payments at the rate of 104 care hours a week.

[It is perhaps no wonder that people despair of social care ever running efficiently with cases such as these!]

What happened eventually?

By 2018, the proposed cut was going to take the care down to 40 hours a week, mostly by removing the night time hours allocated within the 104 hours.

The claimant alleged that Lewisham’s latest review conclusion that her needs for care and support could be met through a reduction of over 50% in her carer hours from what it had once been set at, was irrational.

It was said that since her condition was degenerative, cogent reasons were therefore required for concluding that her care needs had reduced from the previously assessed level.

The basis on which the Defendant asserted that the Claimant’s needs had hitherto been ‘over-provided for’, was ‘flawed’, it was asserted. Over- generosity can be a justification for a cut, of course, because it’s all coming out of public money, and all the council need ever do is to meet need appropriately, not aspirationally!

The Claimant also contended that failure to co-operate with NHS services, particularly over occupational therapy and physiotherapy, had flawed the assessment of the Claimant’s needs and ignored the best way to prevent care needs arising in the future.


An MDT meeting had ultimately been convened at the Claimant’s home, attended by the Claimant, two social workers and two district nurses.Ms Dawson’s typed note of the “MDT Outcome” stated as follows:

“Trial 6 week period agreed for reduction of care package, removing the night time care of 7 hours for incontinence support, pad changing and body turning with close monitoring from DN [district nurse] x2 weekly.

Exact plan to be confirmed and agreed alongside start date with DN and [the Claimant]. [Direct payments] team to be informed of change to care plan.

To be reviewed as ongoing via DN assessments/visits.”

This plan was to be reviewed at 6 weeks by the social worker, with district nurse visits twice a week in the meantime to monitor and record.

In August the council completed a care and support plan for the Claimant including a reduced care package of 40 hours a week, based on four one-hour single handed personal care visits a day (3 visits on Sunday) (27 hours in total), 7 hours a week meal preparation, 3 hours weekly domestic and shopping support and 3 hours weekly community support.

The Claimant made the point that the 22 August 2017 plan and 23 August 2017 letter flowed from the generic June 2016 decision and did not attempt to assess the impact on the Claimant’s well-being of the removal of her night time care.

But the social worker’s evidence was as follows:

i) The incontinence service had recommended the use of more robust pads in 2017, which were supplied.

ii) The Claimant had not sought medical advice about faecal difficulties, and there was no evidence of her having raised this with social workers or the occupational therapy service. There was no sign of any link between such episodes as had occurred and the reduction in the care plan.

iii) There was no evidence of pressure sores occurring since the care plan reduction. Further, “District Nurses have been very closely involved, their professional opinions have been sought in order to be confident that there are no significant risks of pressure sores, that toileting can be managed through use of pads and a specialised mattress used to address the issue of positioning and assist pain management, and that the Claimant is not being placed in unnecessary risk.”

In March 2018 the Defendant finalised the care needs assessment and sent it to the Claimant.

[i] “[The Claimant] was formally diagnosed with Muscular Dystrophy … in 2007. … It was reported that there is ‘no treatment or cure … and the condition is slow progress … won’t be ambulant … will need a wheelchair.”

[So the fact of degeneration was clearly acknowledged as relevant to considering what was needed.]

[ii] “[The Claimant] was assessed in June 2016 as she was receiving a 104 hours weekly care package. This identified double handed care. However, through further assessment and review discussion [the Claimant] confirmed that she did not use the service as double handed as it was not needed and instead had used the hours to implement a night time carer service seven days a week.

The view presented by the DNs at the MDT meeting was that given [the Claimant’s] equipment and level of mobility, removing her night care allocation would not put her at significant risk of developing pressure sores.

To manage risk, we agreed that the DNs would visit twice weekly to monitor pressure areas. This was also to manage [the Claimant’s] understandable anxiety. Currently the district nurses continue to visit [the Claimant] twice weekly. All their reports state that her skin is intact and no evidence of pressure sores.”

Lewisham therefore contended that the Claimant’s stance amounted to little more than a disagreement with the outcome of the assessment. A careful reading of the assessment demonstrates that it:

  • was completed with multidisciplinary input from both health and social work professionals;
  • fully involved and consulted the Claimant;
  • had clear regard to the factors as required by section 9(4);
  • complied with the provisions of the Act, regulations and guidance; and
  • took into account all material considerations.

Lewisham also contended that the woman had failed meaningfully to consider any alternative more suitable avenue for dispute resolution, including ADR or by exhausting the Defendant’s own complaints process and, if necessary, escalating any complaint to the Local Government and Social Care Ombudsman.

[That submission was not taken up by the judge, and we think that that is a further indication that the courts will not often be persuaded to regard arguable cases as able to be resolved by way of a different jurisdiction that does not encompass matters of illegality.]

The judge agreed that certain of the statements in the assessment are expressed in a somewhat conclusory way:

[x] (“Joanne explained that there is no evidence suggesting that there is a need for this additional intervention“)

[xx] (“It was explained that this is not based on assessed need and therefore not approved“).

“Those passages might be said to lend support to the Claimant’s submission that the decision-maker has taken the 2016 and 2017 decisions as read, without actually performing an assessment of the Claimant’s needs and the impact on her of the reduction in care.”

The point might also be made that passage [ii], referring to the June 2016 decision, appears to be erroneous in assuming that the Claimant herself had used spare care hours to implement night care, whereas in fact the 2011 and 2014 assessment both concluded that the Claimant required night care.”

“Viewing the assessment in the round, I consider that the decision-maker has not simply adopted the 2016 and 2017 decisions but has had regard to all the current circumstances in considering the Claimant’s needs and well-being.”

“The assessment acknowledges that the Claimant’s condition is degenerative (passage [i]). It notes that the trial removal of night care in August 2017 followed consultation with district nurses. It considers the evidence as it currently stands in relation to the Claimant’s toileting needs, including the series of reports from the district nursing team referred to in passage [xiv] reporting an absence of pressure sores and intact skin.

“The Defendant has also recognised that this is a matter which needs to be kept under careful review, and has continued to do so with weekly district nurse visits and periodic social worker visits.”

“The fact that the Claimant complained of wet leggings after outings on Sundays of approximately 5-5½ hours highlights the need for close monitoring of her needs at night during a longer period.”

“However, viewing the assessment as a whole it is not possible in my judgment to conclude that the Defendant’s approach has been irrational or that it has failed to have regard to the prescribed factors including the Claimant’s individual well-being.”

The judge said, with regard to pain, that it was noticeable that physical and mental health, of which pain relief and pain management would form part, were not included in the list of specified outcomes forming part of the eligibility criteria for Care Act purposes (see § 56 above). However, he said, “physical and mental health and emotional well-being” is one of the well-being factors referred to in section 1(2) of the Act and counsel for the Defendant was right in my view to accept that pain is therefore a relevant consideration when taking a decision under the Act.”

[CASCAIDr would comment here that the very definition of achieving the domains in the criteria includes reference to achieving but only with significant pain, anxiety or distress, or endangerment to self or others, or a much longer time to achieve the task, so it is ridiculous to suggest that such things are not part and parcel of task of considering the best value way of meeting ‘outcomes’!]

Fortunately the judge went on to say this: “It would follow that when deciding how to meet an eligible need, a local authority should take into account the fact (if the case) that one way of meeting the need is more likely to avoid or alleviate pain than an alternative way of meeting the eligible need.”

“I agree with the Defendant that the assessment gave holistic consideration to the well-being factors, including the impact of the revised care package upon the Claimant over the period of six months since it was first introduced in August 2017.

The Defendant has monitored (and continues to monitor) whether the Claimant has any additional eligible care needs that may have arisen as a result.

There is no or very limited evidence to support the Claimant’s assertion that her mental health and physical well-being have significantly deteriorated to the extent that the care package needs to change.

Neither the district nurses nor the evidence from the Claimant’s GP has given reason to believe that the removal of night time care has led to deterioration in the Claimant’s physical or mental well-being, whether in the form of pressure sores, increased pain or mental health problems.

The assessment does assess the Claimant’s eligible needs against the specified outcomes of relevance to the Claimant’s particular circumstances. The materials available, including the Claimant’s own evidence, do not identify accessing and engaging in work, training, education or volunteering as being of day-to-day relevance to the Claimant.

That position may change, but as matters stand I do not consider the assessment to have been unlawful on this ground.”

On the role of the target or general duty concerning integration with health services in the Care Act: the judge said this:

“I do not consider that the general duty in section 3(1) of the Act, or the associated provisions of the guidance, impose an absolute requirement to have specific health (including in this case physiotherapy) input during the course of making an assessment of care needs.

In the present case the assessment noted that an occupational therapy assessment had been completed on 9 September 2017, and that the Claimant had a profiling bed, mobile commode, powered chair and agreement from management for provision of a seating matters chair (see passage [vii]).

It specifically considered the Claimant’s complaint about having insufficient care hours in order to attend seated exercise groups and concluded that the current hours should be sufficient ([xviii]).”

If that assessment were to turn out to be incorrect or doubtful, then a reassessment may well be required, but I do not consider it possible to conclude that the Defendant’s decision in its March 2018 was unlawful as a result of failing to take account of needs for physiotherapy services.”

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LGO decision on financial abuse through non-payment of social care charges

This LGO’s decision from July 2018 offers some guidance on LA duties where vulnerable individuals have a DWP appointee. 

Background

The service user, a young woman, had disabilities causing deficits regarding keeping herself safe and living independently. She lived with her father who acted as her DWP appointee; he dealt with her correspondence and managed her finances.

She received a DP to support delivery of her care, and in her direct name; she was financially assessed as able to make a contribution. He father failed to pay most assessed contributions for 18 months or so, running up a debt of about £2000.

She was deemed to have capacity to choose her father to look after her finances, and initially said she wished him to continue doing so, which the DWP took serious account of. But he continued to let arrears mount up for another year, and the debt increased; the daughter then expressed a wish to take more control of her finances, and she moved into supported living.

The father agreed with the LA that he would stop acting as appointee but he did not action that agreement.

When the care staff at her tenanted accommodation realised she didn’t have enough money to meet her costs, they raised a safeguarding alert with the LA.  The LA neither held any strategy meeting or formally assessed her capacity and said the debt created did not constitute “significant harm” (this was pre-Care Act) – but did contact the DWP

Eventually the DWP revoked the father’s appointeeship.  The LA said the debts – by now totalling almost £3000 – were the daugher’s responsibility and would not be waived. The daughter got a representative to tell the LA that she didn’t fully understand how to manage her finances, but could do so, with support.

The Ombudsman held that the LA realised that that the woman needed help with her finances because the DWP had appointed Mr X as her appointee in the first place. They were aware that the father was not spending the daughter’s money in her best interests, and may not have understood his responsibilities.  It was aware that the daughter was kept short of money.

Findings of the LGO

The LGO view was that the LA should have completed a capacity assessment around finances.  If the LA was relying on the statutory presumption it should have recorded that it was doing so because there was enough doubt to raise the need to consider whether the presumption was rebutted. 

It should have supported the woman to manage her own finances if with support, she would be able to manage her finances; if she had capacity the LA should have considered other ways to support her vulnerabilities and sought her consent.

The council failed to give the daughter sufficient information or support to make an informed decision about who should manage her finances, and to ensure she understood the DP agreement she had signed.  It failed to meet her communication needs or consider appointing an advocate. It LA failed to consider properly whether she was or could be subject to financial abuse and failed to protect her from significant harm (a substantial debt).  It was aware that she didn’t wish to challenge her father due to her fear that it would damage their relationship but should have thought about what that could expose her to, in a more structured way.

Recommendations of the LGO

The LGO recommended that the LA should waive all arrears (almost £2000) accruing after it realised that the father was not paying the daughter’s assessed contributions; pay her £350 for the avoidable distress, time and trouble caused to her and ensure that assessments and support plans address finances adequately when there is any indication that the person needs support in that area; and finally, ensure communication needs and safeguarding concerns are appropriately recorded.

Considerations/learning for councils  

How do you ensure that appointees are clear, regarding their obligations to pay assessed contributions on behalf of the person for whom they act?

And how does this sit with a council’s need to exercise their discretion, conscientiously, to consider discounts from assessed income, for DRE – private expenditure from the funds, which are, after all, still the client’s funds, over which the council has no preferred creditor status?

Does the existence of an appointee act as a ‘flag’ for any council or CCG that the person they act for is more likely to be vulnerable/ require additional safeguards?

How effective are the council’s mechanisms for ensuring that vulnerable individuals understand their financial obligations e.g. regarding acceptance of DPs? 

How good are the capacity assessments around being able to understand the basics of a direct payment in the first place, let alone manage the payment and management obligations, such that an Authorised Person may be needed, to hold a budget as a principal, not merely as the manager (the agent) of a capacitated client? 

How good are councils at supporting individuals to have capacity around managing their own benefits based finances and/or make informed decisions about others managing them?

How do councils arrange to act quickly to avoid debts accruing to vulnerable individuals, particularly where someone else is not making required payments on their behalf?

How promptly do councils or CCGs raise alerts with the DWP if they have concerns about an appointee’s actions?

Do they ever use the specific duty of co-operation, if the DWP seems reluctant to engage with them – this would force the DWP to respond in writing, under the Care Act, s7.

How would your local safeguarding professionals respond to situations such as this?

The decision can be found at – https://www.lgo.org.uk/decisions/adult-care-services/charging/17-015-575

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A short note on the SEND Tribunal: the ‘single route of redress’ national trial

This post is by Yo Dunn, who runs ConsultYo, a legal framework consultancy and training business, specialising in autism issues – www.consultyo.com

From 3 April 2018 for two years a national trial is taking place which empowers the First-tier Tribunal Special Educational Needs and Disability (SENDIST) to make non-binding recommendations about health and social care aspects of Education, Health and Care (EHC) plans. The new powers are contained in the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.

The powers are only able to be exercised where a parent or young person is appealing some aspect of the EHC plan decision-making relating to special education to the tribunal[1]. This means that, like EHC plans themselves, this option is not available as a mechanism to challenge health or social care decision making in relation to a child or young person who has only health and/or social care needs and does not also have special educational needs. Further, the tribunal power relates only to aspects of health or social care needs or provision which are “related” to the child’s special educational needs, plus any social care provision which is being made under s.2 Chronically Sick and Disabled Persons Act.

Despite the non-binding nature of any recommendations themselves, there are elements of compulsion on health and social care responsible bodies.

During the tribunal process, responsible commissioning bodies can be compelled (under the Tribunal Procedure rules) to respond to requests by the Tribunal for information or evidence and to send a witness to a hearing if required by the Tribunal.

These procedural powers are potentially useful to complainants who may be struggling to obtain relevant information or documents from a health or social care commissioning body.

Perhaps even more usefully, the regulations require responsible commissioning bodies to respond in writing to any non-binding recommendations the Tribunal makes, giving reasons. Again, this is potentially useful to complainants who may be struggling to obtain a clear decision-making rationale which can then be challenged via Judicial Review based on the lawfulness of the decision making.

The power for the tribunal to make non-binding recommendations applies to recommending that particular health or social care needs are specified in the EHC plan, and/or that amendments be made to the provision specified for those needs. Note that the tribunal is not empowered to recommend amendments to the outcomes specified in the EHC plan (a limitation which also applies to the education content). This may be highly relevant where the outcomes are expressed in a manner which is vague, aspirational or loose, because appropriateness of any proposed provision will be related to the outcomes it is intended to achieve.

If, despite the non-binding nature of the recommendations, a plan was to be actually amended in response to a Tribunal recommendation, a crucial consideration is whether anyone can be held to account for whether the provision is actually made. Section 42 Children & Families Act 2014 creates clear statutory duties on: the local authority to “secure” the educational provision specified in an EHCP (s.42(2)) and the responsible commissioning body to “arrange” the healthcare provision specified in an EHCP (s.42(3)). However, there is no analogous duty regarding social care provision. Consequently, the tribunal recommendation power adds little or nothing to the enforceability of social care provision, even once it is specified in an EHCP.

The existence of this new power is likely to lead to questions as to whether an appeal to Tribunal has been pursued as a first resort approach to resolution and, if not, why not. This question will inevitably arise when approaching the Ombudsman and/or at the permission stage of a Judicial Review. In some cases, the answer may be that health or social care recommendations could not be pursued in front of the tribunal because there were no educational issues in dispute or that any education dispute had been resolved whilst the health or social care dispute remained. In other cases, it may be appropriate to point to the non-binding nature of the recommendations together with evidence, if any, of the local authority’s willingness or otherwise to modify the EHCP in response to recommendations (such as those from relevant professionals). Finally, in case where the content or wording of outcomes are disputed, the lack of tribunal power to recommend changes to outcomes may be relevant to whether an appeal to tribunal is a viable alternative for dispute resolution.


[1] This is because the qualifying criterion for issuing an EHCP is that it is necessary for Special Educational Provision to be made for the child or young person, see s.36(3) Children and Families Act 2014

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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.

 

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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

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

This video looks at some of the influences that are affecting access by disabled people – especially young people, to housing in which they could receive support services

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

This video looks at what councils can do to save money, when changing the value of a person’s care plan or the setting or the provider, without going outside the current legal framework

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