CASCAIDr wants to support councils to excel at this very difficult time.
We know that social work staff did not sign up to do the minimum for vulnerable adults.
And we fervently hope to see a new approach to the value of social work and social care, after the virus is beaten, across government and amongst the public.
The number of people volunteering to offer care and support via the “NHS” volunteer scheme is testament to the importance of a social care safety net in our society.
Our request is that the public shares its experience, via this particular page, with a description of anything good that their council is doing or saying, under the Care Act, whilst the normal Care Act legal duties are on ice and everyone has to accept being prioritised, rather than having enforceable legal rights to any particular quality of life.
You might tell us, for instance, about a policy on screening for assessment for instance, a website for supported self-assessment, or 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.
It might be 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.
So here’s our invitation:
We are keen to hear about – and publicise – sound, rational, sensitive, humane policiesand practices from Councils or Care Trusts.
You don’t need to name yourself, publicly, if you don’t want to – your email address won’t be shown and if you don’t even want your NAME to show, simply omit to fill out the name box, and you will be shown as Anonymous.
You can choose whether or not to mention the council’s name.
You must anonymise the name of the person whose situation or stance you’re describing, if it’s not you – whether a service user or a worker. We suggest how to do that below.
We won’t publish material that we think is negative – it’s not the time or the place.
We are not saying don’t give us bad examples, or problems; we are saying that those need to be treated differently, please note.
If it’s a policy or general approach issue, do still give us it, please, on the form below, and we will reply privately to you with suggestions about how to get poor practice changed – we can exert some leverage with a simple letter as to why it’s not a great idea.
Examples that come to mind are the stories of surgeries sending consent forms for DNRs to be filled out in care homes on the basis that people over a certain age ‘won’t be offered hospitalisation or a ventilator’. Words fail us. But letters to CCGs and councils rarely do!
We’ll be moderating the material posted to the form at the bottom of this page, behind the scenes, so accounts of bad practice or policy will be treated as referrals for a free steer as to their legality, not put up on this page.
Anything that is put up on this page as an example of good practice can be further clarified by the council or Care Trust being promoted, via a further comment.
Our government will need an evidence basis for doing the 6 monthly monitoring of the Care Act easements, to which it has committed, regarding the hugely important decision as to when to resume “normal” Care Act services, based on legal rights and duties. This page can be a source of evidence of good approaches, and that might help the whole sector back to normality, sooner.
If it’s an individual’s difficulty you need to get some help on, please tell us on our referral form on the top line menu bar, above, in the normal way.
How we’re surviving the crisis, as an organisation with no public funding stream
Unless charities get financial assistance, our Corona Crisis Mode is limited to a private free steer on all such issues.
Like every other charity, we’re scrabbling for grants, philanthropy, and donations.
We can and will make referrals on to law firms with capacity to take on cases that compel urgent action.
Any law firm that wants to offer us information about its credentials for this kind of work, and is willing to support us legitimately following SRA rules, Legal Aid rules or under its Corporate Social Responsibility Policy is welcome to get in touch with firstname.lastname@example.org.
PS Don’t forget that we’re also providing free template letters for use by all members of the public in their own names, who want to know the right way to assert their case, politely and calmly, as one that must or really should be prioritised – the link to that page is HERE where they will be going up over the next few days, if we can survive, financially
May we suggest that you copy and paste the most relevant form of wording below, into the Comment box below, before continuing to type in your own local story or good/not so good practice example:
My council is [name of the Council or Care Trust]…
I /Mr X/ Ms Y applied for adult social services, since the beginning of the virus crisis and …
I / Mr X / Ms Y … am/is an existing adult client with a current care package/direct payment for care and support and …
I am an unpaid carer to a person who has been getting adult social care services, and …
And then continue with the example of good practice, please, here
The provisions of the emergency legislation passed into law on 25 March 2020 and allow for suspension of all the mainstream duties in the Care Act, downgrading them all into powers – other than in the one situation, where meeting needs is necessary to avoid a breach of human rights.
Regulations were passed on 31st March bringing the suspension into force.
Confusingly perhaps, the DHSC issued Guidance under the new law, saying councils could each choose whether or not to adopt this easement but had to follow a process of very careful mapping and thinking beforehand.
That is confusing because the Act already suspended the duties as soon as the regulations were triggered; the Guidance is guidance only and said ‘should’ do this or that, but can’t change the fact that the duties do not have to be complied with.
Regardless of whether one’s own local council has made its decision as yet, and regardless of how long it might take the management team to follow the process and decide, the legal issue is thta nobody is really sure therefore whether councils are bound unless or until they do what the DHSC has asked them to, (which process, itself, they could mess up, in a public law sense) or whether they are not bound, but must try to exercise all functions under the Care Act lawfully and rationally in any event.
One thing is clear, councils are and were already able, without fear of legal redress, to start doing a bit less than their normal duties or doing them differently, if that is considered necessary, because there is an element of retrospectivity provided for, for easing transition to the new era, in para 16 of the relevant schedule in the Act (sched 12).
CASCAIDr wants to support councils to excel at this very difficult time. We
know that social work staff did not sign up to do the minimum for
vulnerable adults and will do their best to stretch scarce staffing resources.
So here’s some good news, we think.
All the Assessment, Eligibility and Review duties for service users and carers can be suspended, except for sections 27(2) and (3) – the REVISION section.
Those sections contain the mandatory duty to INVOLVE adults and
carers before making a cut to any existing care or support plan.
We’re not sure that councils’ management teams would necessarily understand
the implications of that non-suspension, and we’re already
hearing that cuts (even if understandable in themselves) are simply being notified
in the post or on the phone.
‘Notification’ is not ‘involvement’ and won’t be enough to comply with this unamended ongoing duty, we can confidently predict.
It’s there (and unamended) because of public law and the all-pervasive contribution of human rights law in the law of this country already. Involvement was always essential, and still will be.
Protection from legal liability for breach of statutory duty is only being
provided (albeit both before as well as during formal periods of
suspension) for aspects of the Care Act that HAVE been modified or suspended by
this Act. Section 27(2) and s27(3) are not in
For those who are considering how to operate, here’s a section by
section analysis, for use in the days to come. Click here for
If your job is in social work, please look out for our webinar/webinar recordings training offer, here, on how to operate the Act in a human rights and public law compliant way – for councils and Care trusts everywhere. Email email@example.com if you need to organise access to those webinar recordings urgently.
And please donate to CASCAIDr to keep our comments and analysis coming! CASCAIDr is keeping calm, and carrying on in a crisis. We are locking down into a different mode, in relation to individual cases, but have made a separate announcement about that on our site, here.
Miss A had been compulsorily sectioned for a mental health condition
and received free aftercare under S117 Mental Health Act from the Council for a
placement in a care home.
In 2015, the care home closed and Miss A then moved to
supported accommodation for people with mental health conditions. Ms C (Miss
A’s deputy for finances appointed by Court of Protection) arranged for housing
benefit for Miss A until Miss A received an inheritance.
In May 2018 Miss A was ordered to pay back an overpayment of
housing benefit and then needed to pay for her ongoing housing costs through
Miss A received a 30 hour per week one to one s117 aftercare
package from an organisation which comprised housing and support arms. It
purported to provide support rather than care but the contents of this woman’s care
plan had remained unchanged from 2016 from when she had been living in a care
provided support with personal care and hygiene needs, laundry and
supported her with shopping, budgeting and managing her money.
Ms C complained to the council on Miss A’s behalf because
the Council would not pay Miss A’s rent or service charges as they claimed those
liabilities were not part of her aftercare, while Ms C argued that if the
accommodation costs were paid in a care home it was appropriate to pay costs in
specialist supported housing. Ms C also made a claim for repayment of the
housing benefit paid through Miss A’s inheritance and the overpayment that Miss
A had been required to return.
The council responded saying that the costs in Miss A’s
previous care home were paid because there was no way of separating out the
accommodation and care costs in that context; Miss A chose to move
to supported housing by signing the tenancy so she was responsible for paying
housing costs; ordinary accommodation needs were not covered by S117 as they
were not mental health needs; S117 only supports needs arising from a person’s
mental disorder; and payment of rent was not a mental health need. But
the Council agreed to pay the flat rate weekly fee to cover a daily self and
wellbeing check, access to daily activities and 24 hour staffing. The care
package of 30 hours remained the same.
Ms C complained again, saying that the tenancy agreement provided
accommodation and care and support as part and parcel of the same contract, and
terms provided that the company may repossess the property if another care
provider was sought.
The council still rejected the complaint saying that the
tenancy agreement did not require that the care provider must be the same as
the landlord and that the company had not sought repossession from anyone who
However, a copy of the tenancy agreement signed by Ms C did state
as follows: “Obligation
to accept support: The provision of support services is a fundamental part of
this tenancy agreement. You agree to accept the support services provided. If
you fail to accept the support services we may seek an order for possession.”
When the council rejected Ms C’s complaint, she approached
What was found
Care planning for aftercare takes place under
the Care Programme Approach (CPA) framework. The person must have a care
plan to document aftercare which should say which services will be section 117
funded. Ms A’s care plan did not set out her entitlement to aftercare services
or specify what those aftercare services were. The care plan should have set
out Ms A’s aftercare. This was fault which caused avoidable confusion and led
to this complaint.
Drawing from the Mental Health Act S117 and its
Code of Practice, the Ombudsman confirmed that if a person needs to live in specialist
supported housing in support of their mental health aftercare needs, then the Council
and CCG should pay the housing costs. The person should not have to claim
Mwanza vs LB Greenwich and LB Bromley (2010)
sets out the criteria by which housing costs can end up needing to be met under
Afework vs Camden LBC (2013) is another case
about the difference between ordinary housing needs and having a mental health
aftercare need for housing, arising out of a brain injury. In this case, a duty
to include accommodation within the s117 package was rejected because the need
for accommodation related to the brain injury rather than the pre-existing
mental health disorder. (However, the law has changed and the Care Act
amendments do not require the aftercare to be needed for the same condition
that one was sectioned for now, please note).
It was not a satisfactory argument to say that
in a care home it was not possible to separate care and housing costs as
opposed to the situation in supported housing. That is not the test of what is
needed by way of aftercare. Nor that she chose to live there. She was placed
there, in reality: “Miss A was only placed there because of her mental
disorder. I cannot see why she would have been placed there otherwise.”
Furthermore, the supported housing was clearly presented
as offering an integrated service of care and accommodation for people with enduring
mental health disorders.
Miss A did not have the mental capacity to
choose her accommodation even if she was consulted on it.
Miss A had been placed in a supported housing
scheme to support her mental disorder making her housing costs eligible for
S117 aftercare funding.
The Ombudsman was satisfied that Miss A’s
overall care package was entirely different from one that would be delivered in
mainstream accommodation with a package of care. Inclusion of Miss A’s accommodation costs
were in accordance with the Mental Health Act, Code of Practice and the two
court cases cited.
Within one month, the Council will refund Miss A’s housing
and service charge costs paid to date and arrange to fund these costs in
future, while she is eligible for aftercare services. The Council will
apologise and will repay the overpayment of housing benefit made by Miss A in
May 2018 and also £500 in recognition of Miss A’s distress.
Comments for Public and Health and Social Services
The LGO is pointing out that it should not be
assumed that accommodation cannot be funded under S117 Mental Health
Act. Specialist accommodation that supports mental health aftercare needs and
the statutory purpose is capable of being an aftercare purpose and should be
funded. The Mental Health Act Code of Practice 33.4 includes supported
accommodation in its list of possible services for funding provided it is for
mental health aftercare purposes.
This legal necessity to provide housing
directly, and pay for some or all of it, can actually arise we think, if a
suitable tenancy in a supported living
house, with a specialist provider in situ, either
cannot be accessed within a reasonable
time, (because there’s no vacancy local to where the rest of that person’s life
needs to be run from)
or is not being regarded as part of a scheme
that is ‘affordable’ by the commissioners
or is not accepted as suitable, by
willing clients with capacity, or by the proxies of people lacking in capacity
to understand the nature of a tenancy
or if the intended tenant won’t apply for
Housing Benefit, or (even if it’s applied for by an appointee) won’t qualify
for Housing Benefit!
Who needs a specialist roof?
Of course, the vast majority of people who need
accommodation on discharge, but not in a care home, WILL need a roof that
provides the setting for aftercare services – from specialist mental health
providers whose task is supervision and prompting and monitoring. Here the LGO
listed the specialist features: the special features of the accommodation
are/were: 24-hour on site staffing, CCTV, organised activities and a welfare
check, all of which had the purpose of monitoring Miss A’s mental state and
reducing the risk of her mental health deteriorating. These features are not
available in mainstream housing.”
People in this situation should not be expected
to contract in their own names for Housing. They should be placed by dint of
the council making the arrangement with the housing provider, and permitting
the person to occupy under a licence for as long as they qualify for aftercare.
A need for proper supervision and support in
terms of time or reaction speed are the indicators for a need for specialist
If living rights in a building have
to be in a person’s package, in order for the rest of the package to work,
it has to be paid for by the s117 budget.
This is a bit like the test under the old law,
for being in need of care and attention that would not otherwise be available
if it were not for the authority’s arrangement of registered OR unregistered
accommodation (s21 NAA). If the person does not need specialist accommodation
then Housing is something that the person can be helped to find, by supporting
them to apply as homeless, or otherwise
deserving of points in the Housing Register system, or nominating them to
specialist mainstream supported living under the Care Act. But that doesn’t
count as providing the housing within the plan. Providing
means commissioning or funding it, here.
If councils and CCGs paid for occupation rights
for individuals under s117, the accommodation element would not then get fatally
mixed up with or interdependent on the care. The Landlord would be the Local
Authority and the licensee can receive care – even care that counts as personal
care, through a contract with a care provider. That is the provision of care in the place
where a person lives, and it is not unlawful for it not to be registered as a
If a tenancy between the person and a business
taking a property on a long lease stipulates that the tenant must accept support
services, to get the tenancy, and the support services amount to personal care,
that is the same scenario as was outlawed in AlternativeFutures
many years ago – that would be unlawfully unregistered (criminal) care home
care based on a de factor integration of the two elements.
Impact of this decision, potentially
The clients most crucially affected by the legal
questions lurking in this report are young people trapped in ATUs or adults’
psychiatric facilities with s117 Mental Health Act status for aftercare
The thrust of this report would completely solve
the Transforming Care queue – councils could just contract for spaces in which
to accommodate people and arrange appropriate services to go in, like a home
care model, instead of pretending that they are dependent upon specialist care
providers and housing associations to do deals for nominations and voids
guarantees. Sir Stephen Bubb’s vision for creating a source of private
investment in housing for this cohort has not worked and is seriously open to
challenge because of the tying together of the care and accommodation element
arrangements, in practice.
We think that social services councils and
CCGs DO – just sometimes – have to buy into unregistered property
– or rent unregistered property – in which to place someone – for
the essential underpinning to a person’s s117 care package. We think that legal
literacy and well-informed advocacy and co-operation between housing, social
services, mental health and health service professionals, is the only way to
solve the crisis in Transforming Care.
If it CAN be done, then the next question is
when SHOULD it be done? It’s almost impossible to think of people with autism
and challenging behaviour NOT needing 24 hour supervision and that is
meaningless unless it’s under a stable roof.
And after that question, this one: what is
the sanction for not doing it or not considering doing it, unlawfully, in
public law terms, now that restitution has been said to be the ordinary
consequence of public law illegality in CP v NE Lincs? People will have
mouldered in psychiatric hospitals for want of a roof, or paid through HB for
the privilege of being told which one to go and live in, and both positions
seem wrong to us.
We absolutely agree with the LGO that is not
lawful for authorities to decline funding on the basis that accommodation and
care provision “is treated separately” for the purposes of S117
aftercare. That is the culture, certainly, but it is not the law. It is much
more subtle than that: everyone needs a roof, and some people need a roof to
stop them being readmitted to hospital, which is a need for a roof by way of
aftercare, but even if they do, taking a tenancy IS a viable choice, and the
result is not a placement at all; the housing is not then provided BY the s117
council and CCG, and the rent would not be in the package.
The LGO investigator has not addressed the
inconsistency of the Deputy here having contracted for a tenancy whilst at the
same time contending for the rent to be paid as if the s117 team was the
contractor for the accommodation. An organisation can’t contract for a tenancy
‘for’ somebody else, in English law. An organisation can contract for the right
for a person to occupy someone else’s building with permission, but it won’t be
The LGO investigator does not address the point that many people discharged on to s117 might WANT a tenancy, in to which specialist services are being SENT, or at least does not MIND signing up for one. It has never been the law that a liable body is obliged to provide that which a person willingly provides for themselves, however much it is needed / the person has eligible needs for it (eg under the Care Act).
If you need help from CASCAIDr, make a referral via our
Referral Form link on the top menu bar of www.CASCAIDr.org.uk
Assessments – including
non-eligibility findings, un-evidenced assumptions about carers’ input and
decision-making without regard to advocacy rights
Challenges to Care
Plans – cuts, delays, lack
of care plan transparency and decisions relating to accommodation versus
homecare; people being told to spend their own money on conventional homecare
disputes – managed accounts,
employment of close relatives in the same household, reclaims of unused amounts,
for want of any interest in the job for the rate paid, including unpaid charges
Continuing NHS Health
Care status or care
planning enquiries and retrospective reimbursement claims
Arbitrary rates for direct payment budget holders
after a decommissioning exercise to reduce the number of commissioned home care
Charging challenges – mainly Disability Related
Expenditure, but some reablement financial issues after hospital discharge
Top-up disputes when a person’s capital depletes or on
Mental Health – lack of services in the community
Delays with inadequate interim services
during the wait for housing rather than a placement – s117 and ATU patients
stuck in secure facilities; unconscionable delay in concluding Care Act
Care home or
supported living evictions, often after complaints
Transfers to other
authorities and disputes about where
Safeguarding concerns (which are out of scope); family struggles
OUR MOST SIGNIFICANT CASES in Year Two:
Lack of care planning or any adequate interim care leaving a young man to pose a safeguarding risk to own parents and siblings – whilst waiting for the mirage that is supported living
T is a young man who is acknowledged to need 2:1 care all the time, but who had been living at home with parents and his younger half-siblings ‘waiting for housing’ for want of any provider who could reliably find appropriate staff for servicing the care plan. This situation had come about because the council’s policy for preferred outcomes for transitioning young people with high cost needs (and the parents agreed), was ‘supported living’ rather than a placement in a care home. The trouble was that the young man by this time posed a safeguarding risk to the parents and other children and no interim provision that was conceivably sufficient to meet his needs was being funded. CASCAIDr’s intervention led to the parents realising that nobody would be likely to offer a tenancy to this young man without a connected contract for the care at a high enough cost to actually attract staff. This led to the rapid commissioning of the first stable placement in a suitable care home that the young man had had in years, a return to normal life for the rest of the family, and happier relations between the siblings. A claim for restitution for the £76K of care that the family had just been assumed to be willing to provide all along, was then settled.
“Having heard you speak (which served to reconnect me as a worker to stuff that I hadn’t realised I had lost) I am convinced of the need to make sure that you are out there holding Local Authorities to account when the pressures of austerity tempt them to forget both the letter and the spirit of the Care Act. We chose to come to CASCAIDr because of your focus on the whole picture – building understanding, upholding people’s rights, empowering them to act and to challenge for themselves and finding positive solutions that trigger learning for LAs. I cannot tell you how good it was to read your plan – you are right, it has really cheered me up! To know that something really good may come from the horrible time that T and my family have lived through is really important. Thank you for giving us this.”
under threat due to repeat dissatisfaction with commissioned providers no doubt
being incapable of getting staff to stay
J is a young woman living in her own flat with 24 hour care from a provider that had perhaps been in place too long and lost interest; the legal dispute was about getting the council to recommission at a proper price, after the elderly parents had grew tired of organising everything that had to be done via a direct payment route for managing the package. There were TUPE and public procurement issues being seemingly treated as insurmountable, but the duty to meet her needs was sufficient to break the impasse.
“Miracles do happen! We had a meeting with the head of learning disability and she agreed that J could have her care provided by our chosen care provider; J would keep her care team; J would not need to be reassessed; TUPE conditions for the staff would be observed. The new provider has a value system which is actually applied for the benefit of their clients rather than just written down and then forgotten. I am really impressed with what I have seen so far. It’s also great to see the way they really value their staff and involve them in decision making. Thank you once again for your help – we would never have made it without your help.”
Dispute over a
care package with pressure being put on dedicated parents to manage within the
budget despite their no longer being able to cope
G is a young man with a large sum of compensation from a personal injury settlement whose assets are not able to be counted, in the financial assessment for social care, although they are of course known about, leading to a rear-guard action against spending any more public money than £493 a week. On being informed of a change of circumstances on the part of the informal carers, (a lessening of wiling input) the council told his parents that they could spend the current budget differently but would have to stay within it, regardless of their wishes for retirement and leisure. There was no proper assessment and no care plan. After some support to the client’s deputy, the outcome was a much-enhanced care package of £826 a week.
Domestic support for a woman for whom infection control is significant to managing her long term physical health
C is a woman whose council has determinedly stuck to an offer of 2 hours a week for cleaning and domestic work in a situation where the person’s reduced immunity to infection compels great care with hygiene and a significant consequence if she becomes ill. Her consultant clinician is known to the council to be of the view that she needs 4.5hrs a week on these tasks as a minimum. The woman had been given a budget for having live in care and the council purported to change that model and offered an arbitrary amount for care in addition. It failed to abide by the Care Act or Guidance en route to a final decision some 18 months after commencing its work on review. The council’s Monitoring Officer also refused to engage with the independent governance duty she is bound by, on the footing that the allegations of breach of the Care Act were a dispute, and not such as to oblige her to report ‘likely’ contraventions of enactments and rules of law. This matter is now with the LGSCO.
to say, my family and I cannot thank you enough for the professional but kind
help you have given us for the past 2 years. We are thrilled with the content
and the way you have written your 3 final attachments and I hope the things I
have highlighted and requested be amended/corrected don’t add too much extra
work. We do not know where we would be without you and your organisation and
honestly cannot thank you enough for all of your time, effort, energy hard work
and for spurring me on and keeping my chin up when I was finding it difficult
to battle on!”
Payment Cards and Choice
B was a woman who was told she would have to have a payment card, unless there was a therapeutic reason for sticking to a bank account. Our intervention led to a change of position on that front, and the woman remains on a personal budget that is recognisably a direct cash payment.
“I am very grateful for the support and advice given to me by CASCAIDr in my fight to keep a traditional bank account for my direct payment, when the Council tried to force me to have a prepaid card which was unsuitable for my needs. After what felt like a David vs Goliath battle, thanks to the support received from CASCAIDr my local Council agreed to comply with the Care Act, allowing me to continue using a traditional bank account.”
Interim placement and a risk of losing his own home, for want of a proper care package
J was a man who owns his own accommodation but who was unusually wandering and distressed and unsettled. He was temporarily accommodated in a care home without a DoLS and told to go and look at several options, none of which were suitable. Our intervention led to a much better care package in his own home, albeit one that was a complex patchwork of different sorts of activities. He now gets 16 hrs a day 1:1 commissioned care from an agency, and overnight telecare supervision from the property’s staff. He has an alarm box that notifies them if he gets up in the night and opens his apartment door. He’s aware of the purpose of this (to keep him safe) and agrees to it. So he’s still in his own house. His family said that J has made loads of progress and is getting back to his old self.
“CASCAIDr gave me the strength, confidence and knowledge to fight for J’s entitlements; without it, the outcome would have been catastrophic for J and may even have resulted in his death. I feel that this is the time to get things sorted once and for all. I now feel I have the confidence and knowledge to discuss J’s rights with social care. Thanks for empowering us both.”
Care and an increased package of care
A was a woman with physical and psychological issues related to diagnosed ASD and gastrointestinal problems of a severe degree. Her council had put her forward for CHC whilst ignoring the fact that her needs had increased significantly since 2013 and leaving her plan inadequately funded. She ultimately qualified for CHC after we made it clear to her social worker how we would expect the case to be put in an MDT by any competent council. Her CHC care plan is adequately funded and the representations about ensuring sufficient clinical input into her package as well about community engagement have been acted upon. Our client is now writing up LGO reports for us, as a volunteer.
“I had a meeting with CHC on Wednesday – the indicative budget they are offering seems really reasonable – covering personal care, ASD mentoring, physio and support to access the community. It seems too good to be true, so I am wondering what the catch is…”
K is a young woman challenging her council’s approach to disability related expenditure – contending with approaches varying from ‘we can’t read your receipts’ to ‘this can’t be DRE because it’s not mentioned in the care plan as a need.’ The council is now being required to make a proper decision about the discretion that it has been given, within the concept of being obliged to allow for DRE.
“This overview is amazing, and I cannot thank you enough! I’m so grateful for your response – it really does help to be put in the picture from a legal point of view. I absolutely see myself as fighting not just for myself but for other people that are struggling to make ends meet and not have this life destroy them physically and mentally.”
Liability for maintaining
a previous authority’s care package, when a person moves from one area to
another, under the continuity provisions in the Care Act
L is a young man whose parents moved from one council to another, with the previous one’s care plan being conveyed in advance. No care plan for ongoing direct payments was put in place for his arrival, and no lawful care assessment was commenced for 10 months after he arrived. Our intervention led to a curated referral to a legal aid law firm with which we collaborate and the issue of judicial review proceedings after that firm’s instruction of a barrister. This case will probably lead to a back payment as well – the sum being effectively imposed and determined by the continuity provisions of the Care Act.
“Is there any way you would kindly consider carrying on for us, pretty please with knobs, whistles & bells on? We really NEED YOU! You have single-handedly reduced the stress and anxiety we have been under for so long – we refuse to let you go!!”
for unpaid fees in a continuing NHS health care case, plus compensation for
wasted time and legal advice expenses
In M’s challenge to the CCG for retrospective reimbursement of fees for an unassessed period of CHC entitlement, for her father, the back fees were paid, but the CCG refused to pay the claimed compensation for the taking of legal advice, distress and aggravation and compensation for her own wasted hours of self-employment. She had to complain to the CCG as well as gather all the evidence, and comment on the nurse assessor’s report, on the review. County Court proceedings for restitution were issued and the CCG eventually settled the case, having told us that there was no such action known to law.
“I’m grateful for your comments about the likely outcome of mediation and the likely motivation of a court service mediator. Thanks again – I think my brain may explode after reading the caselaw you’ve helpfully sent.”
Challenge to the
failure of a council to place a person before their capital depleted, followed
by a Conversations based approach to assessment, followed by insistence on a
top-up for so long that the woman’s capital depleted to NOTHING
B is an elderly lady whose family moved her into residential care without realising that a person lacking in capacity ought to be placed by a council regardless of her wealth, if there is no deputy or other authorised and willing person to make arrangements. Once her capital had depleted the council told her that her relatives HAD to top up if she wished to stay where she had now settled. They did this without any consideration of her human rights or wishes and feelings or the social work duty to consider the suitability of her current accommodation and the impact on her wellbeing if she was obliged to move. This is an ongoing matter!
Refusal to let a 15 years’ divorced ex-wife provide paid for care out of a direct payment to her ex, now her lodger, with cancer
P was divorced from ‘I’ over 15 years ago but were regarded as living together ‘as if’ husband and wife, even though they have had no intimate relationship for 15 years and do not share even a bedroom. The result was that the council said that the man could not use a direct payment to pay his ex (and now his landlord) to care for him and meet his needs without addressing the evidence or explaining their rationale. After some correspondence from CASCAIDr they have been issued with Legal Help (the legal aid board NOT regarding them as a couple and thus not aggregating their income, ironically) for judicial review proceedings. This case will likely lead to a back payment, in addition.
“From the initial telephone consultation and very many subsequent emails, the service, excellent advice and support I received has been invaluable. I had absolutely no idea that this service was available until S.I.L. explained it to me but it certainly provided me with unwavering support at a time when I needed it most – its help, subject knowledge, support and advice is definitely second to none.”
Dispute over the
adequacy of a care package during a period of 5 years of lack of clarity about
what it was or was not FOR…
A is a young man who has been overpaid a direct payment for over 5 years, according to his liable council, but not according to his parents, who have banked the excess, over and above what tends to be needed, and believe that it was always due in light of historical assessments and the rhetoric of personalisation, such that it should still be available for use. CASCAIDr’s intervention has led to the council in question being willing to devote significant resource to sorting out the question of who owes what to whom and regularising the care package arrangements for the future.
“Thank you so much for your help and support – really appreciated.”
expenses when a young person is placed a very long way away from family members
– but by the NHS not the council
A is a young man with parents who visited him determinedly over the years when he was in a far distant ATU. They claimed the expenditure for visiting, and CASCAIDr helped the family pursue that matter as a complaint to the CCG, who eventually recognised that they hadn’t done sufficient evidence gathering, on which their own policy regarding financial support of carers was supposed to depend. Our intervention led to an offer of travel expenses, albeit that the amount was more than they had asked for. The re-application of the policy, in light of it having been pointed out that the CCG had known all along how central the family was to the man’s wellbeing was one issue and the complaint about failure to review the man’s package was treated separately; the complaint response is still anticipated, even though it was promised weeks ago!
“Just to let you know although we haven’t received a complaint response yet the panel met again regarding travel expenses to visit AP and has written offering the £500 a month expenses. Thank you so much for your help and writing the complaint letter. The report published on Human Rights & ATUs today quotes some of my evidence and also says this on page 54: ‘Placing young people a long way from their home reduces their support from their families and undermines their right to family life under Article 8 ECHR. It must stop. Until it is stopped, families must be given the financial support they need to be able to visit their loved ones.’”
over whether a person needed 1.25 hours a day of care or 5 hours – for a
complex mixture of mental and physical health needs, causing massive carer and
N had been a vibrant and confident woman who had become almost bed-bound whilst awake all day and night, through spinal and muscle deterioration and associated mental illness, to the point where her husband was really struggling to care for her. CASCAIDr and a law firm acting on a fee paid basis, because they owned a house and could not qualify for legal aid, secured an increase in hours from 1.25 per day to 5 hours a day, over a period of protracted correspondence. The extended family is now thriving, and NM is taking much more interest in daily life and the world outside.
“Our family moved on from utter despair to some hope, because of CASCAIDr. The council acted unlawfully and CASCAIDr and the law firm made them change their minds. No one was prepared to listen until very fortunately for us we were introduced to this charity. The charity’s kindness empathy and efficiency helped to keep a vulnerable wife with her husband, at home, and in the community. It secured us the means to let one sister help the other sister in much need, which the council had said could not happen. The intervention has improved our quality of life as a couple and as members of the community we live in. As a family, we have no words to express our gratitude. Thank you CASCAIDr!”
Some of our Trading
“Thank you so much for your extensive reply. It is much appreciated. There have been many charities I’ve contacted, and many don’t want to know. My uncle is a complex case and different to many, as he does have mental capacity. Many organisations are simply not interested. I thank you deeply for taking the time to respond in depth and after thought.”
“Just wanted to say thank you for everything. I got E a lawyer thanks all to you and things are getting a little easier after a nightmare few weeks. NS is on the case and taken a huge burden from my shoulders. You really stood out on safeguarding across all professions I have talked to in my own career and in the last few weeks. You saved my sanity and probably E’s life.”
Types of client by reference to primary need/condition/concern
Finance or charging
277 individuals 5 companies
282 clients (5 – 6 new clients a week)
Numbers, by reference to CASCAIDr’s charging model
Triage 282 individuals Triage requires 1.5 hrs on average
Chargeable clients after Triage 46 individuals or companies
Free Scope work after triage 18 individuals
We spend 1 day a week out of 4, giving completely free advice through Triage, regardless of the merits of the person’s referral.
Hours of free work to the public
529 approx, incl triage cases
Hours of chargeable work
So, about half a day per week was spent on free work for those with strong cases of illegality.
And half a day per week was spent on chargeable less clear-cut cases, or complaints work.
For the remaining 2 days per week we are open for, we focus on our other objects such as providing free updates to the public and sector, delivering webinars, writing articles, publicising the charity’s existence and mission,fundraising and billing, governance and support of the caseworkers and volunteers.
Well, goodness me, what a Happy New Year! A council finally got successfully judicially reviewed for failing to follow the Act and statutory guidance with regard to ignoring human assistance in meeting identified needs (it also managed to fail to follow the logic of its own forms, incidentally!).
Antoniak v Westminster City Council, the claimant was a young man
with intermittent psychosis and related housing issues, who’d also
been run over, hospitalised for a long time, and was now wheelchair
was ultimately temporarily housed under the Housing Act, physically
within another London borough, once his immigration status had been
clarified and permitted recourse to that legislation.
what was no doubt a strengths-based
approach, the assessor fell into the trap of suggesting that
resources to which he had current access, were such as to reduce the
impact of his inabilities on his wellbeing, so that he was ineligible
is not the law.
one’s assessment has been formally paused
to see what prevention and reduction can do for reducing impact or
inability in a long term reliable way, that is one thing, and is
if one’s eligibility falls to be determined at any particular date,
that can only be after one’s NEEDS have been identified and
gathered in, and the Guidance is clear that human assistance must be
ignored at that point, for the purposes of the next decision in the
approach to assessment: ie the inability to achieve test, and the
impact test, for eligibility
was found by his assessor to be unable to achieve in two or more
domains, but the impact was not regarded as significant,
because it either was being met or ‘could’ be met, if he moved,
by charitable resources.
assessor had said ‘he currently has no needs in this area’
(referring to support with cleaning and maintenance, and meal
he could get them met by charitable support and they were being met
because of the nature of the accommodation he was then IN.
council did NOT say that he was eligible but that nothing was needed,
because of what could be obtained locally. If it had said THAT, that
might have been defensible, but of course the care manager would
still have had to have done
a care plan,
because that follows on unavoidably from a finding of eligibility.
That plan would not have been able to be signed off unless the
council was sure that the services they were signposting too, just
hopefully like, would actually meet the need.
the judgment, a Mr Ockleton, sitting as a judge of the High Court,
…it is clear both from the structure of the Act itself and from
assumptions which might be made about the general utility of the
assessment process, that the word “needs” is to be
interpreted in such
a way as to ignore any existing way in which needs are being met.
1 of the Care Act makes the individual, and the individual’s
wellbeing, the starting point of the delivery of such services as are
required. In this context it would be surprising if a needs
assessment were not also intended to be primarily about the
individual, rather than merely about some residuary part of an
individual’s needs that were not currently being met…
follows that a needs assessment will not fulfil the requirements of
s.9 if it does not include all the individual’s needs, whether
currently being met or not. It follows also that the determination of
the eligibility criteria will not fulfil the requirements of s.13
unless the eligibility of needs currently being met is determined, as
well as the eligibility of unmet needs.”
“the question of impact on his wellbeing should have been made
without regard to the way in which needs were being met at the date
of the assessment”, the judge thought that the appropriate remedy
was a declaration that the assessment did not discharge the
defendant’s duties to the claimant under sections 9 and 13.
judge refused to make a mandatory order compelling the defendant to
draw up a Care and Support Plan and to provide the claimant with care
and support forthwith because there was, in light of the judgment, no
valid needs assessment, and a Care and Support Plan emerges out of
the identification of eligible needs following a needs assessment.
also acknowledged that Westminster may not have then have owed any
duty to the claimant under the Care Act, because of his having been
housed in Islington – the law is clear that the liability for Care
Act needs moves with the client, even if the accommodation provided
under the Housing Act is temporary. The invalidity of the prior
assessment still mattered though, because of the provisions in s37,
relating to those with care needs who move between local authorities.
Points for councils doing a Three
Conversations or Strengths-Based approach
It’s public law
that you want to think about, in light of this case.
You wouldn’t want your whole
assessment workload to have be re-done, all over again, we are
surmising – but that is what invalid assessments, once judicially
reviewed, IMPLY. And there is now a right to restitution for periods
of invalidly assessed needs!
That means money will have to be paid
and will reduce all the savings that interim management consultants
will have attracted high salaries for promising, by
institutionalising go-slows, informal conversations about needs, and
strategies based on persuading people or carers that there’s no
real point in being assessed…. that is, a kind of rule of law
karma, it seems to us.
The Care Act made the identification of
needs, and then their status in relation to the eligibility
threshold, and then care planning for meeting them, an essentially
linear task, although the vision was that social workers and other
staff would be well enough trained to be able to do generic and
whole-family based and holistic assessments, in time.
CASCAIDr’s management’s Care Act
training since early 2015 has made it clear that whilst signposting
needy people to resources that could help, and networks that might
help, is all very well at the first contact and pre-assessment stage,
the solutions being suggested do have to be workable, and accessible,
in terms of the known characteristics of the applicant for services.
A person might be having ALL their
needs met by reason of funding them, privately, or lucky enough to
have a wrap around family network, but we are all expected to know
that we cannot assume that a person would carry on spending their
money or a family, their time, in that way, and that is why those
factors have to be explored and do not go to eligibility, but only to
the duty to meet need, after proper and lawful probing and thinking!
When a person who’s got some current
support or a person who’s engaged with prevention, next comes back
for their assessment ‘proper’, then if the current support or
preventive measures were short term in nature, it is just possible
that these inputs may indeed have helped mitigate a longer term or
more chronic need; but it’s equally possible that they may just
have put a bandaid on a problem whilst they were available, and that
as soon as they cease to be available, the person’s situation will
rocket way up there again, in terms of impact.
It must be obvious that targeted
prevention does not go on forever (whether charitably provided, for
free or paid for by some or other agency) because new people are
being signposted to the services all the time.
It’s helpful to think of this as one
would regarding the well managed need principle for CHC status: if
the problem has been managed away for good, then the need can be
regarded as having been resolved; but if the prevention or other
human assistance needs to be funded on a longer term basis or
is unreliable, and the problem would pop up again without it, then
the need still exists. The ‘inability to achieve’ test is
explicitly defined to exclude the availability of human assistance,
and thi case establishes, as predicted, that the impact test must be
considered in precisely the same vein.
… 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.
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:
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
We use this remedy to help people
avoid getting stuck in the complaints system, and avoid having to get
adversarial and threaten judicial review.
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
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.
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’), notlegality.
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
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 ownmoney 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
made a determination under subsection (1), the local authority must give
the adult concerned a written record of the determination and the reasons for
(3) Where at
least some of an adult’s needs for care
and supportmeet the eligibility criteria, the local authority must—
what could be done to meet those needs
ascertain whether the adult wants
to have those needs met by the local authority in accordance with this Part,
(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
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).
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
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.
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.
• 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: firstname.lastname@example.org 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.
CASCAIDr’s CEO has long suggested during training sessions that mincing towards meannessis 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 LBC, the 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:
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
[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 applied – that would have been a fetter of discretion.]
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.
“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.
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.”
[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.”
[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.]
explained that there is no evidence suggesting that there is a need for this
[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 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.”
[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:
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
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.”
[YOUR HOME ADDRESS] [YOUR POSTCODE] [HOSPITAL CEO’S NAME/CARE HOME MANAGER’S NAME] [HOSPITAL TRUST’S/CARE HOME’S NAME] [HOSPITAL’S/CARE HOME’S ADDRESS] By email only to: [CEO / CARE HOME MANAGER’S EMAIL ADDRESS] (IF A HOSPITAL, google ceo of trust email. It can usually be found at www.ceoemail.com) [IF A HOSPITAL – PALS EMAIL ADDRESS] (google PALS email address of hospital […]
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Statutory guidance states that local authorities must ensure that all frontline staff have general autism awareness so staff can identify potential signs of autism, understand how to make reasonable adjustments in their behaviour and communication. The Autism Act 2009 required the government to produce statutory guidance for NHS and local authorities on working with autistic […]
Upheld 02/10/2019 What happened Miss A had been compulsorily sectioned for a mental health condition and received free aftercare under S117 Mental Health Act from the Council for a placement in a care home. In 2015, the care home closed and Miss A then moved to supported accommodation for people with mental health conditions. Ms […]
SUBJECT MATTER covered by this year’s referrals: Challenges to Assessments – including non-eligibility findings, un-evidenced assumptions about carers’ input and decision-making without regard to advocacy rights Challenges to Care Plans – cuts, delays, lack of care plan transparency and decisions relating to accommodation versus homecare; people being told to spend their own money on conventional […]
Decision Date: 30th September 2019 What Happened Mr B complained to the Council on behalf of himself, as a carer, and his mother, Mrs C. Mrs C was an elderly lady, who suffered from several health problems. She needed help with personal care and often to mobilise. She was also at risk of falling from […]
Date of decision: 26 Sep 2019 What happened Mr B complained about the way Westminster City Council (the Council) dealt with his homelessness case. Readers may well recognise the issues of delay and people being passed from pillar to post: these issues are commonplace, and regarded as inevitable, by most councils, these days. But the […]
Beth’s parents were never seen as partners in the care of their daughter and over time have moved to a combative position as a consequence of lack of involvement, acknowledgement and voice. The lack of diagnosis for Beth, meaningful intervention and management set Beth on a pathway that was foreseen as poor and ended inevitably […]
… 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 […]
The First-tier Tribunal has ruled in favour of the Care Quality Commission’s (CQC) decision to refuse an application submitted by Lifeways Community Care (Lifeways) to vary a condition of its registration as a care home provider. Lifeways (a care provider looking after people with complex care needs, including those with a learning disability, autism and […]
This case concerned the application of one of the criteria for Personal Independence Payment: ‘Engaging with other people face to face’, a type of need that occurs most commonly amongst those with mental health needs and/or neurodevelopmental conditions (such as Autism). This update to our original case write-up, added in late 2020, refers people to […]
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 […]
Unmet Needs: Improper Social Care Assessments for Older People in England Headline report conclusions “Older people in England are at risk of not getting adequate assistance to live independent, dignified lives due to uneven assessments for social services.” Some said that assessors appeared not even to understand their disabilities and support needs. In other cases, […]
How many of CASCAIDr’s first year’s 200 or so clients were … So, please donate to keep us going into a 2nd year and beyond, by clicking on: DONATE to CASCAIDr What have been the OUTCOMES, for some of CASCAIDr’s most successful clients? Threatened cuts to people’s packages, services or budgets, have been cancelled or […]
This post is for flagging up that there is a much easier way of challenging a local authority’s actions or decisions, policies or practices, than complaining, and it’s not widely publicised. The people responsible for managing this system don’t even agree about its scope, but that doesn’t mean that the words in the statute don’t […]
Many thanks. We managed to persuade them to change their minds ! The various letters from the doctor and mental health made a huge difference, and it was very helpful to have an understanding of the legal background. I will be passing your details to other individuals/complementary organisations who I think would really benefit from […]
“The meetings with the CCG and LA went well, and the fees are under renegotiation – they have accepted many of the proposals you suggested we put forward, and we are now down to discussing the last few points! So far so good…thanks for all your help!”
CASCAIDr has assisted a woman who was told to move her mother by the end of the week, without any assessment of the impact, once her capital depleted, if there was no top-up, to flag up 11 legal reasons why that was simply indefensible. The council is dealing with the matter, apparently, and the private […]
After grinding away for over 18 months, after CASCAIDr advisers spotted that the Disability Related Expenditure part of the financial assessment was flawed, £1500 of so-called charging debt has been written off, implicitly acknowledging that the man’s spend on technological aids was something that had to be allowed for.
Under the threat of Judicial Review, on which CASCAIDr assisted, a Council has now agreed to complete a full care and needs assessment of x’s needs, produce a care plan, not make any reductions to her care package pending completion of both, and carry out a review before Xmas….
JP was awaiting services for a brain injury for 12 months. His partner/carer complained successfully to the LGO about Care Act delays and omissions. His care manager said that care packages were capped at £700 a week, meaning his partner could not return to work. A few legal letters later from a #CASCAIDr adviser, and […]
A woman receives care at home from nurses funded by CHC from the CCG and a parent. On CHC review, disputed DST domain scores were decided by the Panel itself, and the Rationale was not signed. Her mother was called ‘disrespectful’ when she flagged up the breach of the National Framework! Input from a @CASCAIDr […]
A man’s parents shared his care with a care home but have frequent difficulties re handling of injuries, risks, handover and supervision. He has no written care plan from the CCG but it has been suggested that his parents should sign a ‘communication contract’! Input from a @CASCAIDr adviser flagged up that a CARE Act […]
A care home contracted to a CCG gave a young woman 4 weeks’ notice after caring for her for 9 yrs despite owing art 8 obligations under the Human Rights Act (like all homes with publicly funded clients). She is now being helped to move on to supported living. CASCAIDr’s advice helped prevent eviction and […]
Parent deputies got a £2K bill for 2 yrs jointly funded past respite for this young man. DWP benefits had covered his share of household bills (reimbursed as necessaries) and items that were arguably DRE. Retrospective charging CAN be lawful, in certain case, BUT CASCAIDr flagged up that the agencies’ inability to trace any rationale […]
Devoted parents had ultimately lost the care of this young man over a dispute about £10K charges for earlier care. A previous JR had led to a consent order with no MENTION of charges but the man’s mum was removed as deputy, and safeguarding proceedings were started. CASCAIDr advice was that s2 LGA negated the […]
If someone goes completely blind and then later deaf (it happens) s/he can become completely dependent on technology, human help and courage to get through daily living, although remaining fully mentally capacitated. CASCAIDr has helped a man in that situation challenge his council for not reviewing his needs since the Care Act (2015); not providing […]
A man living in Shared Lives accommodation but his carers suddenly needed him to move on, in view of the severe illness of one of the couple. He’d also been excluded from a local day opportunity because he was unsettled, and the council needed to be galvanised. CASCAIDr’s advice to the man’s mother led her […]
A woman has 24hr care in her home as a tenant, in a care package not reviewed for YEARS. The council had agreed ages ago in writing not to change her package without her consent, but wanted to re-assess now and use ‘Just Checking’ to record movement at home. CASCAIDr’s advice has secured acknowledgement of […]
A parent with a severely disabled adult daughter found everyone agreed that the council’s arrangements weren’t working – but nobody seemed to be doing anything about it. The parent was sent hither and thither to look at hopelessly inadequately provisioned settings and told No, regarding a placement that WAS apparently suitable – with no other […]
After advocates’ support, the council was persuaded to use its discretion to take out deputyship and appointeeship as appropriate services to meet needs – they were facilities or support for Care Act purposes, to meet needs related to maintaining a habitable home. Return to main CASCAIDr homepage
A charitable care provider is told that the council will put in a roving 2 man team for waking night observations for their clients, if the provider won’t drop the fee; the provider is delighted as it had not been getting paid properly for the night time service anyway, so said to the council that […]
An elderly man with capital now below the threshold for a financial subsidy and commisisoning from the council is told that his relatives will have to pay a top up if he wants to stay in the home that he originally chose when self funding. After all other attempts at referring the council to the […]
A young woman’s parents were told that she could only have a service if she moved out of their home into a shared care setting. After her human rights were mentioned, and the Perry Clarke case was referred to, the council accepted that it wasn’t possible to make their help conditional upon the client moving […]
A long-standing client with learning disabilities was suddenly found ineligible at the first post-Care Act re-assessment because assessor had looked at her needs after the support she was already getting from direct payments funded carers, and didn’t bother asking about a couple of listed outcomes at all. A pre-action protocol letter from a solicitor to […]
An exhausted carer asked a council for a carer’s assessment and was found eligible – but offered only a small sum of money as the Take it or Leave it Response. He wanted a service, not extra money. He wanted some help with the cleaning, and didn’t want to employ or supervise a cleaner. After […]
“I’m so impressed with your service. It’s really helpful. I have written to the deputy asking for contractual decisions/clauses with the care company, and for any notice that Mum may have made about her wishes, about my involvement.”
“I would like to bring to your attention how impressed I was with the professionalism delivered by PC today on the helpline. P was very attentive, informative, had an excellent manner and was friendly. It’s not every day you come across such lovely people and I was certainly impressed with the way P handled the call.”
“On behalf of my family, and my son, I want to take this opportunity to thank you and M for all your incredible support this year. Without your legal expertise and help, people like my son would end up being lost in the system.”
“Just to say that you infected (at least!) ONE person with enough understanding of the law to want to go and get more, and to find new and interesting ways to apply it… I now acknowledge the many shades of grey within the law. I may not personally agree with them all, but knowing their existence and being able […]
“Just to let you know it was complete victory! The council are paying the provider all of the amount they were demanding, and are requesting that that provider refunds ME some of what we paid in for E’s care. They are also starting the process of transferring him to another council for Ordinary Residence purposes. […]
“Belinda has been incredibly generous with advice to assist me in the appeal I’ve submitted against a CHC eligibility decision. She has given me more information for free than I’ve gained from different law firms I’ve instructed and my donation is a lot less than they would have cost me but hopefully it will go […]
“Thanks, you have been very helpful and I will make a donation tomorrow. You have genuinely been the only person who as helped me through a difficult period with these matters. The money won’t just be for your help but it’s clear you have good values which is becoming so rare in society.”
“CASCAIDr have provided me with invaluable support in constructing and articulating a case for consideration by Social Services in a council which for a considerable period of years have not followed the law as laid down in the Care Act or used established protocols and procedures necessary to ensure that my son’s Care Assessment, Support […]
“A purposeful charity working in an area that can help people who need support in dealing with an organisation who has all the knowledge, I have a lot of respect for what you do and thank you for your help with my problem.”
“Thank you so much for your thoughts on our CHC predicament. It was very detailed and was of great help. I used some of its content with the solicitor to prepare the document lodging our appeal against the CCG to have an independent NHS England review. I again thank you, the report helped me focus […]
“Just wanted to say thank you for everything. I got E a lawyer thanks all to you and things are getting a little easier after a nightmare few weeks. You really stood out on safeguarding across all professions I have talked to in my own career and last few weeks. You saved my sanity and […]
So it’s moving and something is happening; we got the wheels turning and not without your help. I’ll keep you posted, and I really liked the law firm you referred me to. I’m so grateful and you’ve inspired me to keep going, till she gets proper help.”
“It’s been a long, hard, stressful, anxious and frustrating time for us all. Without your professional knowledge and genuine human kindness due to the passion you have for helping and genuinely caring for people like me, we would of had no choice but to give up fighting, a long time ago. It’s down to you […]
“Please do not apologise for your request that we consider a donation.We’ve already agreed that we needed to do this in the light of your amazing support. Having heard you speak (which served to reconnect me as a social worker to stuff that I hadn’t realised I had lost sight of) I am convinced of the […]
“Thank you so much for your detailed email. I’m going to write a letter to social services. You’ve given me the strength to put some commitment into sorting this out. Thank you so much for your very detailed long response. That must have taken so much of your time to do. I’m going to donate some money […]
“Thanks so much for your frank reply. You are quite right that I could well have an axe to grind. I feel that I am keeping my sister’s best interests at heart and her husband is not; he has his own agenda – but how are you to know that, just because I say that’s […]
“When we sent the letter that CASCAIDr had put together, we did get a response from the Council. It helped to show them that the points we were making about R were valid, and made a case for R to attend the education trust for an additional two days. The council is now funding two […]
“[After support with an LGO complaint about charging and disability related expenditure] Here is the wonderful result so far. It is still in draft and the final decision by Ombudsman will be published soon, but I could not wait to share the news with you. I trust your knowledge and all this would not have been […]
“A small win (but with big individual impact) was when a Social Worker delegate decided not to close a case, which was what was going to happen before the course! The Social Worker has said that there is much more to explore and nuances that need to be considered – I think they meant fluctuating […]
“What you deliver has a real impact on systems change (cultural change) – a difficult metric to measure sometimes. This also means it will have a direct impact on people’s lives (service users and professionals). It truly was an awesome three days of learning. As a city, we are eternally grateful for the knowledge that you […]
“I’m so grateful for your response it really does help to be put in the picture from a legal point of view. I absolutely see myself as fighting not just for myself but for other people that are struggling to make ends meet and not have this life destroy them physically and mentally.”
“We have known Belinda Schwehr for a number of years and have always found her advice and that of CASCAIDr invaluable. The support and advice from CASCAIDr has been particularly useful for people in receipt of statutory funding (and their families) who find themselves in a situation where their statutory funding is in danger of […]
“After nearly 18 months of trying to get Adult Social Care to communicate with us regarding my brothers direct payment we enlisted the help of CASCAIDr. The case, although complex, was settled without the need of legal proceedings and we were extremely pleased with the work and support of the charity.”
“If I had to use one word to express what Cascaidr does, it would be ‘reassure’. Reassure one has not ‘lost the plot’ – the law is the law. Reassure one feeling (well, loads actually!) that the law is being ignored is justified. Reassure one can do something about it and with Cascaidr’s support, in the end, the law is […]
“A county council attempted to reduce my learning disabled brother’s care package of five hours per day to three hours, without making a proper assessment of his needs, which had not changed for some years. CASCAIDr were fantastic in helping me draft letters with the relevant legal vocabulary, including references to the Care Act and […]
“Thank you for you very comprehensive reply. The heavily subjective nature of the CHC assessment process I find extremely frustrating. I’ve read a lot online about CHC in the last two years, but still I do not understand what constitutes the legal limit of Social Services! Your reply has helped confirm the government has succeeded […]
“Thank you so much for your extensive reply. It is much appreciated. There have been many charities I’ve contacted and many don’t want to know. My uncle is a complex case and different to many, as he does have mental capacity. Many organisations are simply not interested. I thank you deeply for taking the time to […]
“I cannot give enough praise to CASCAIDr! They took a very unjust situation and made it all better! We were handed an ultimatum to make a direct payment of £900.00 to a private ambulance firm or my father would not be discharged from hospital and transported to the waiting care home out of area. I […]
“The support and advice from CASCAIDr has been particularly useful for people in receipt of statutory funding (and their families) who find themselves in a situation cuts are hinted at, or excessive commissioning pressures are mounting. The current political and economic climate is a tough one but CASCAIDr reminds us all that the rights of […]
“Thank you for your advice about encouraging us to ensure that the council’s care planners and their care providers are aware of our adult daughter’s obvious inability to understand the consequences of SOME of her less desirable, apparent choices, We can see immediately how this advice serves our daughter’s needs and our responsibilities toward her. We should have asked […]
“We had help over several months from CASCAIDr which was very supportive and helpful in dealing with a reluctant social services council. With their help and expertise we got the support we were asking for – so we moved from no help to what we wanted. This has been a great relief and we appreciate the legal […]
“I am very grateful for the support and advice given to me by CASCAIDr in my fight to keep a traditional bank account for my direct payment, when the Council tried to force me to have a prepaid card which was unsuitable for my needs. After what felt like a David vs Goliath battle, thanks […]
“As a Local Authority we want to get it right first time for our local citizens but in our improvement journey, this has not always happened, to both our – and some of our citizen’s disappointment. In one complex case CASCAIDr assisted us in our response to the LGO with their independent expertise. The learning […]
“Our family moved on from utter despair to some hope, because of CASCAIDr. The council acted unlawfully and CASCAIDr made them change their minds. No one was prepared to listen until very fortunately for us we were introduced to this charity. Belinda was kind, selfless and expert in Adult Social Care law and her efficiency […]
“I am immensely grateful for all the help you have given me to try to secure a transparent, coherent, rational and lawful assessment of my daughter’s care needs. With your help we were absolutely delighted to be awarded compensation from the LA for previous botched assessments. It makes all the difference to know that CASCAIDr are there […]
“Councils are very strapped for cash at present and often act illegally or unreasonably in trying to cut Direct Payment budgets. This happened in my daughter’s case. CASCAIDr were great in providing help and ammunition to challenge the Council. By the time I consulted CASCAIDr I had in fact already put the matter in the […]
“Like many other parent carers, we cannot bear to think of what life would be like at present without your legal advice – our local LA intended to not only slash our daughter’s budget, but dictate how and who should manage the budget, with almost immediate effect. We wouldn’t have had the mental or physical strength to continue […]
“CASCAIDr has made me realise that you’re not alone out there, and that local authorities WILL listen to you if you have CASCAIDr’s support and backing. They have helped, and are continuing to help me, to find a suitable home for my brother. I feel so much more optimistic, and really appreciate the ongoing help […]
“I am immensely grateful for all the help you have given me to try to secure a transparent, coherent, rational and lawful assessment of my daughter’s care needs. With your help we were absolutely delighted to be awarded compensation from the LA for previous botched assessments. It makes all the difference to know that CASCAIDr are there […]
A. Because we are not doing them at the moment / the process is just too complicated and it will take too long “I am sure that councils do not have the legal right to say that it just doesn’t suit them to give money out as a substitute for services. The Care Act says […]
“…And if that’s not enough, well then, we guess that you’ll be withdrawing your request for a direct payment, yes? or else accepting the budget as less than you know is needed via a DP route, as a matter of your own choice…” Anyone thinking that this is the bit of the Self Help […]
“The meetings with the CCG and LA went well, and the fees are under renegotiation – they have accepted many of the proposals you suggested we put forward, and we are now down to discussing the last few points! So far so good…thanks for all your help!”
People have a right to advocacy – independent funded advocacy – under the Care Act, if they have substantial difficulty with regard to the processes in the Act where councils are required to INVOLVE people before making a decision. So it’s not an absolute right, as such, but a right that flows from a professional […]
It’s almost impossible in England for a council to refuse to assess someone for adult services, without breaching public law duties. So if someone refuses you the chance to be assessed, this is what to say: I believe that the Care Act imposes a duty on councils to assess people’s needs if there is merely […]
If a council or a CCG says this, they are treading on very thin ice, these days. They’d be thinking that the definition of a personal budget, in legal terms, is the cost to the council of meeting the needs, and inferring from that that no council need offer anyone any more than it would […]
If a council or a CCG says that it is using the cost of a care home locally as a measure of what it should offer, the cost is not an unlawful consideration in and of itself, but it cannot be the ONLY determinant of its care planning function (regardless of whether one’s purchaser is […]
a) … WITHOUT ANY re-view or re-assessment having taken place: I am certain that it’s not lawful to cut a person’s care package without doing a review, and then a re-assessment using Care Act criteria if a cut is proposed, for whatever reason. I am sure that your senior management team have not meant to […]
“It’s not actually a bigger personal budget, but the lower charge, brought about through this success on the DRE point, gives me the courage to spend my own money on what I need, to cope with my total blindness and hearing impairment. Not a day goes by when I don’t tell SOMEone about CASCAIDr’s support”
“The council agreed to backdate the care costs to July 2016. I’d put in a formal complaint, in the light of your recommendation. So I want to thank you very much indeed for your advice, without which I can’t imagine we’d have got very far. It’s been such a long and stressful haul that I’m […]
“What would I do without you? Many thanks for your help. I particularly liked the way in which you juxtaposed xyz with the council’s position on abc – it brought a smile to my face.” Return to main CASCAIDr homepage
“Your new Charity is exactly the kind of initiative that that the charity which I Chair, wants to support. Your work in community care law is cutting edge, and the times ahead need you even more. No other lawyer has ever been dedicated enough to such ideals as to write me back about my daughter […]
“The local authority panel wouldn’t agree to funding for a placement with the type of psychological input to care which my daughter desperately needs – they were offering wholly inadequate alternatives. Belinda helped me assert in very clear term that as they’d not carried out the assessment correctly, they weren’t making a defensible judgement on […]
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