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 that category.
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 that document.
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 her inheritance.
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 home:
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 refused care.
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 the Ombudsman.
What was found
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
Who needs a specialist roof?
Impact of this decision, potentially
If you need help from CASCAIDr, make a referral via our Referral Form link on the top menu bar of www.CASCAIDr.org.uk
The full report can be found here:
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 homecare services
Direct Payment 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 providers
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 first admission
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 processes
Care home or supported living evictions, often after complaints
Transfers to other authorities and disputes about where responsibility lies
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.”
Supported living 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.
“Just 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!”
Direct Payments, 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.”
Continuing Health 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…”
Charging and Disability-Related Expenditure
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!!”
Retrospective redress 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.”
Discretionary visiting 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.’”
Protracted dispute 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 family strain
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 Company’s work
“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||81|
|Total|| 277 individuals|
|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 |
|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||180 approx|
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!).
In 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 bound.
He 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.
Using 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 for support.
That is not the law.
If 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 permitted.
But 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 statutory linear approach to assessment: ie the inability to achieve test, and the impact test, for eligibility purposes.
He 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.
The assessor had said ‘he currently has no needs in this area’ (referring to support with cleaning and maintenance, and meal preparation) because he could get them met by charitable support and they were being met currently because of the nature of the accommodation he was then IN.
The 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.
In the judgment, a Mr Ockleton, sitting as a judge of the High Court, said this:
24. …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.
…Part 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…
…It 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.”
…[since] “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.
The 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.
He 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.
A link to the case can be found here:
… is a fantastic judgment from the Court of Appeal (announced 3 October 2019) about the parallel statutory duties owed by a local authority under the Care Act 2014 and the Children and Families Act 2014, and the overlapping Tribunal and JR routes to a remedy for breach of these Acts.
Fundamentally, the Court held that if a council breaches the Care Act, then it is acting unlawfully, and must pay what it would otherwise have been obliged to pay towards the person’s care plan, if it had acted lawfully.
If that person has incurred a liability to pay, even a person lacking in capacity to have contracted, then that is the measure of what the council would have to reimburse, as a matter of public and private law principle.
Implications for anyone in a struggle with a council about the Care Act functions
For any council using a Three Conversations Model to save time with assessment and encourage so-called assets and strengths-based professional evaluations which assume that friends and family are willing to meet needs informally, that council might be wanting to make it a whole lot clearer in its public offering of advice and information, that anyone who wants a proper Care Act assessment or budget or plan is welcome to one, one that complies with the due process requirements in the Act and in the Assessment Regulations.
People should refer the council to para 10.86 of the statutory Guidance and demand the management review that it recommends, so that the council can put right any non-compliance with legislation, without further ado.
The implications for us, as a charity seeking to resolve disputes by polite reference to public law legal principle:
CASCAIDr corresponds with many councils’ senior management, legal departments and Monitoring Officers every week.
Sometimes, dealing with the responses we receive, makes us feel as if we learned our law in a parallel universe, and not just last century.
We were therefore much cheered at this judicial assessment of NE Lincolnshire’s attitude:
“The Council resisted CP’s claim at every turn and conducted what turned out to be a fruitless rear-guard action for the next 18 months.”
We are regularly told that we are wrong to say that a breach of a statutory duty gives rise to the independent mandatory duty of a council’s Monitoring Officer (under legislation promoting good governance, dating back to 1989), to report the matter to Members, if they can’t otherwise sort it out.
We use this remedy to help people avoid getting stuck in the complaints system, and avoid having to get adversarial and threaten judicial review.
But we’re often told by these lead governance officers that when a dispute arises between a citizen and the council about the discharge of Care Act duties, regarding the adequacy of a budget, care plan or the processes required by that Act (one where we’ve carefully probed and identified all the ways in which the council has not abided by the plain words of the statute or the regulations) – we are told that their own governance duties are not triggered because (in some way that is never explained), that particular sort of dispute is not about contravention of an enactment or a rule of law.
And they say this even though the Ombudsman does not himself hold back in describing this sort of misconduct as breach of the Care Act when considering councils’ allegedly unsatisfactory handling of complaints that have been made.
So some of these luckless officials will be hearing politely from us, shortly, with this excerpt from the Court of Appeal’s Lord Justice Haddon-Cave’s judgment, which sums up our ‘Old School’ understanding of public law, as WE learned it, rather nicely:
“A breach of a statutory duty is a breach of statutory duty. It is, by definition, unlawful conduct. Unlawful conduct by a public body cannot merely be discounted or ignored.
Moreover, s. 26 [of the Care Act] is no minor matter. A local authority’s statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins.
In the present case, having found the Council in breach of its statutory duties, [the judge in the High Court] should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall, in accordance with normal public law principles of legal accountability of public bodies.
That’s very cheering, isn’t it?
We’ll be doing an analysis of the case as soon as we can and will provide links to a public copy of the judgment as soon as it’s up somewhere for free.
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.
The full Local Government Ombudsman’s report can be found at https://www.lgo.org.uk/decisions/adult-care-services/direct-payments/18-011-515#point1
Considerations for Professionals
• How efficient are your processes for authorising funding requests?
• How well does your system identify delays in funding requests and how quickly are these delays able to be addressed? CASCAIDr will be coming after councils guilty of unconscionable delay, because it’s unlawful!
• Are your requests for additional information when reviewing use of direct payments, reasonable and valid, in the context of the overall situation – your own Panel’s or finance department’s conduct, and your knowledge of market conditions? Un-joined up ‘command and control’ culture can lead to massive Egg on Face, if anyone even cares about that, these days…
• Is there a justified reason underpinned by a solid evidence base for a reduction in care and support needs, and is there any conflict with the personal choice and flexibility supposedly integral to Direct Payments? If you calculate a budget set by reference to a rate per hour, do you allow the client to pay less for more hours, or more for fewer, without cavilling with them about that later? Or do you suggest that either way, they should be paying you back the money on the footing that they did not NEED the service they’d bought!! Get a grip, if so!
Questions for Clients / Service Users
Have you faced significant delays when awaiting funding decisions for identified care and support needs?
Have you experienced unreasonable requests for information, which further delayed the processes?
Have you had your increasing care and support needs reduced without justification?
If so, it’s all unlawful, and can be put right, but most probably only if you’re a bit legally literate.
You can be supported to use law and legal principle, via the dispute resolution services that CASCAIDr provides – the worse the behaviour is, the more likely it is to come within our Free Scope area of work.
For advice and support, please contact: 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 meanness is much harder to challenge, even with use of public law principles, in the context of adults’ social care or CHC services, than making a giant cut overnight.
If commissioners aren’t care aware, and care managers and reviewers are risk averse or incentivised to make immediate savings, of course too MUCH risk or too LITTLE risk will be factored into any programme of cuts.
Such is the impact of no longer training social work students in how LAW actually WORKS, or front line public sector staff and senior managers in “difficult conversations”, it is suggested.
However, in a recent case, Lewisham Council has shown that massive cuts can be justified, as long as they are implemented slowly and the impact is genuinely monitored.
That, we have to say, is defensible social work, rationing public money properly, but it is not the modern way.
Making a judgment as to a Court’s reaction, in cases like this, is one of the reasons why CASCAIDr exists. This would not have been a case that we would have been likely to lend our support, all the way to court, although just as in the pre-Act Cambridgeshire, and post-Act Oxfordshire cases it seems that it was the proceedings that succeeded in MAKING the council do the job properly in the end. What a waste of resource, is all we can say.
In the 2018 ‘VI’ case, R (VI) v Lewisham 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
The judge agreed that a decision in the terms of that sort of communication could not amount to an assessment complying with the Act, because it was a generic decision relating to the management of incontinence rather than one reflecting a consideration of the Claimant’s individual needs and well-being.
[We agree and often use this argument: that’s a policy change about what is appropriate or not in relation to the duty to meet needs and we don’t see why it should not have been consulted over. But in light of the McDonald case, if it HAD BEEN CONSULTED OVER PROPERLY, it cannot be said that the policy was automatically unlawful, however – it all depends. What is clear is that it would not be lawful if it had been automatically applied – that would have been a fetter of discretion.]
What happened eventually?
By 2018, the proposed cut was going to take the care down to 40 hours a week, mostly by removing the night time hours allocated within the 104 hours.
The claimant alleged that Lewisham’s latest review conclusion that her needs for care and support could be met through a reduction of over 50% in her carer hours from what it had once been set at, was irrational.
It was said that since her condition was degenerative, cogent reasons were therefore required for concluding that her care needs had reduced from the previously assessed level.
The basis on which the Defendant asserted that the Claimant’s needs had hitherto been ‘over-provided for’, was ‘flawed’, it was asserted. Over- generosity can be a justification for a cut, of course, because it’s all coming out of public money, and all the council need ever do is to meet need appropriately, not aspirationally!
The Claimant also contended that failure to co-operate with NHS services, particularly over occupational therapy and physiotherapy, had flawed the assessment of the Claimant’s needs and ignored the best way to prevent care needs arising in the future.
“Trial 6 week period agreed for reduction of care package, removing the night time care of 7 hours for incontinence support, pad changing and body turning with close monitoring from DN [district nurse] x2 weekly.
Exact plan to be confirmed and agreed alongside start date with DN and [the Claimant]. [Direct payments] team to be informed of change to care plan.
To be reviewed as ongoing via DN assessments/visits.”
This plan was to be reviewed at 6 weeks by the social worker, with district nurse visits twice a week in the meantime to monitor and record.
In August the council completed a care and support plan for the Claimant including a reduced care package of 40 hours a week, based on four one-hour single handed personal care visits a day (3 visits on Sunday) (27 hours in total), 7 hours a week meal preparation, 3 hours weekly domestic and shopping support and 3 hours weekly community support.
The Claimant made the point that the 22 August 2017 plan and 23 August 2017 letter flowed from the generic June 2016 decision and did not attempt to assess the impact on the Claimant’s well-being of the removal of her night time care.
But the social worker’s evidence was as follows:
i) The incontinence service had recommended the use of more robust pads in 2017, which were supplied.
ii) The Claimant had not sought medical advice about faecal difficulties, and there was no evidence of her having raised this with social workers or the occupational therapy service. There was no sign of any link between such episodes as had occurred and the reduction in the care plan.
iii) There was no evidence of pressure sores occurring since the care plan reduction. Further, “District Nurses have been very closely involved, their professional opinions have been sought in order to be confident that there are no significant risks of pressure sores, that toileting can be managed through use of pads and a specialised mattress used to address the issue of positioning and assist pain management, and that the Claimant is not being placed in unnecessary risk.”
[i] “[The Claimant] was formally diagnosed with Muscular Dystrophy … in 2007. … It was reported that there is ‘no treatment or cure … and the condition is slow progress … won’t be ambulant … will need a wheelchair.”
[So the fact of degeneration was clearly acknowledged as relevant to considering what was needed.]
[ii] “[The Claimant] was assessed in June 2016 as she was receiving a 104 hours weekly care package. This identified double handed care. However, through further assessment and review discussion [the Claimant] confirmed that she did not use the service as double handed as it was not needed and instead had used the hours to implement a night time carer service seven days a week.
The view presented by the DNs at the MDT meeting was that given [the Claimant’s] equipment and level of mobility, removing her night care allocation would not put her at significant risk of developing pressure sores.
To manage risk, we agreed that the DNs would visit twice weekly to monitor pressure areas. This was also to manage [the Claimant’s] understandable anxiety. Currently the district nurses continue to visit [the Claimant] twice weekly. All their reports state that her skin is intact and no evidence of pressure sores.”
Lewisham also contended that the woman had failed meaningfully to consider any alternative more suitable avenue for dispute resolution, including ADR or by exhausting the Defendant’s own complaints process and, if necessary, escalating any complaint to the Local Government and Social Care Ombudsman.
[That submission was not taken up by the judge, and we think that that is a further indication that the courts will not often be persuaded to regard arguable cases as able to be resolved by way of a different jurisdiction that does not encompass matters of illegality.]
[x] (“Joanne explained that there is no evidence suggesting that there is a need for this additional intervention“)
[xx] (“It was explained that this is not based on assessed need and therefore not approved“).
“Those passages might be said to lend support to the Claimant’s submission that the decision-maker has taken the 2016 and 2017 decisions as read, without actually performing an assessment of the Claimant’s needs and the impact on her of the reduction in care.”
The point might also be made that passage [ii], referring to the June 2016 decision, appears to be erroneous in assuming that the Claimant herself had used spare care hours to implement night care, whereas in fact the 2011 and 2014 assessment both concluded that the Claimant required night care.”
“Viewing the assessment in the round, I consider that the decision-maker has not simply adopted the 2016 and 2017 decisions but has had regard to all the current circumstances in considering the Claimant’s needs and well-being.”
“The assessment acknowledges that the Claimant’s condition is degenerative (passage [i]). It notes that the trial removal of night care in August 2017 followed consultation with district nurses. It considers the evidence as it currently stands in relation to the Claimant’s toileting needs, including the series of reports from the district nursing team referred to in passage [xiv] reporting an absence of pressure sores and intact skin.”
“The Defendant has also recognised that this is a matter which needs to be kept under careful review, and has continued to do so with weekly district nurse visits and periodic social worker visits.”
“The fact that the Claimant complained of wet leggings after outings on Sundays of approximately 5-5½ hours highlights the need for close monitoring of her needs at night during a longer period.”
“However, viewing the assessment as a whole it is not possible in my judgment to conclude that the Defendant’s approach has been irrational or that it has failed to have regard to the prescribed factors including the Claimant’s individual well-being.”
The judge said, with regard to pain, that it was noticeable that physical and mental health, of which pain relief and pain management would form part, were not included in the list of specified outcomes forming part of the eligibility criteria for Care Act purposes (see § 56 above). However, he said, “physical and mental health and emotional well-being” is one of the well-being factors referred to in section 1(2) of the Act and counsel for the Defendant was right in my view to accept that pain is therefore a relevant consideration when taking a decision under the Act.”
[CASCAIDr would comment here that the very definition of achieving the domains in the criteria includes reference to achieving but only with significant pain, anxiety or distress, or endangerment to self or others, or a much longer time to achieve the task, so it is ridiculous to suggest that such things are not part and parcel of task of considering the best value way of meeting ‘outcomes’!]
Fortunately the judge went on to say this: “It would follow that when deciding how to meet an eligible need, a local authority should take into account the fact (if the case) that one way of meeting the need is more likely to avoid or alleviate pain than an alternative way of meeting the eligible need.”
“I agree with the Defendant that the assessment gave holistic consideration to the well-being factors, including the impact of the revised care package upon the Claimant over the period of six months since it was first introduced in August 2017.
The Defendant has monitored (and continues to monitor) whether the Claimant has any additional eligible care needs that may have arisen as a result.
There is no or very limited evidence to support the Claimant’s assertion that her mental health and physical well-being have significantly deteriorated to the extent that the care package needs to change.
Neither the district nurses nor the evidence from the Claimant’s GP has given reason to believe that the removal of night time care has led to deterioration in the Claimant’s physical or mental well-being, whether in the form of pressure sores, increased pain or mental health problems.
The assessment does assess the Claimant’s eligible needs against the specified outcomes of relevance to the Claimant’s particular circumstances. The materials available, including the Claimant’s own evidence, do not identify accessing and engaging in work, training, education or volunteering as being of day-to-day relevance to the Claimant.
That position may change, but as matters stand I do not consider the assessment to have been unlawful on this ground.”
On the role of the target or general duty concerning integration with health services in the Care Act: the judge said this:
“I do not consider that the general duty in section 3(1) of the Act, or the associated provisions of the guidance, impose an absolute requirement to have specific health (including in this case physiotherapy) input during the course of making an assessment of care needs.
In the present case the assessment noted that an occupational therapy assessment had been completed on 9 September 2017, and that the Claimant had a profiling bed, mobile commode, powered chair and agreement from management for provision of a seating matters chair (see passage [vii]).
It specifically considered the Claimant’s complaint about having insufficient care hours in order to attend seated exercise groups and concluded that the current hours should be sufficient ([xviii]).”
If that assessment were to turn out to be incorrect or doubtful, then a reassessment may well be required, but I do not consider it possible to conclude that the Defendant’s decision in its March 2018 was unlawful as a result of failing to take account of needs for physiotherapy services.”
This LGO’s decision from July 2018 offers some guidance on LA duties where vulnerable individuals have a DWP appointee.
The service user, a young woman, had disabilities causing deficits regarding keeping herself safe and living independently. She lived with her father who acted as her DWP appointee; he dealt with her correspondence and managed her finances.
She received a DP to support delivery of her care, and in her direct name; she was financially assessed as able to make a contribution. He father failed to pay most assessed contributions for 18 months or so, running up a debt of about £2000.
She was deemed to have capacity to choose her father to look after her finances, and initially said she wished him to continue doing so, which the DWP took serious account of. But he continued to let arrears mount up for another year, and the debt increased; the daughter then expressed a wish to take more control of her finances, and she moved into supported living.
The father agreed with the LA that he would stop acting as appointee but he did not action that agreement.
When the care staff at her tenanted accommodation realised she didn’t have enough money to meet her costs, they raised a safeguarding alert with the LA. The LA neither held any strategy meeting or formally assessed her capacity and said the debt created did not constitute “significant harm” (this was pre-Care Act) – but did contact the DWP
Eventually the DWP revoked the father’s appointeeship. The LA said the debts – by now totalling almost £3000 – were the daugher’s responsibility and would not be waived. The daughter got a representative to tell the LA that she didn’t fully understand how to manage her finances, but could do so, with support.
The Ombudsman held that the LA realised that that the woman needed help with her finances because the DWP had appointed Mr X as her appointee in the first place. They were aware that the father was not spending the daughter’s money in her best interests, and may not have understood his responsibilities. It was aware that the daughter was kept short of money.
Findings of the LGO
The LGO view was that the LA should have completed a capacity assessment around finances. If the LA was relying on the statutory presumption it should have recorded that it was doing so because there was enough doubt to raise the need to consider whether the presumption was rebutted.
It should have supported the woman to manage her own finances if with support, she would be able to manage her finances; if she had capacity the LA should have considered other ways to support her vulnerabilities and sought her consent.
The council failed to give the daughter sufficient information or support to make an informed decision about who should manage her finances, and to ensure she understood the DP agreement she had signed. It failed to meet her communication needs or consider appointing an advocate. It LA failed to consider properly whether she was or could be subject to financial abuse and failed to protect her from significant harm (a substantial debt). It was aware that she didn’t wish to challenge her father due to her fear that it would damage their relationship but should have thought about what that could expose her to, in a more structured way.
Recommendations of the LGO
The LGO recommended that the LA should waive all arrears (almost £2000) accruing after it realised that the father was not paying the daughter’s assessed contributions; pay her £350 for the avoidable distress, time and trouble caused to her and ensure that assessments and support plans address finances adequately when there is any indication that the person needs support in that area; and finally, ensure communication needs and safeguarding concerns are appropriately recorded.
Considerations/learning for councils
How do you ensure that appointees are clear, regarding their obligations to pay assessed contributions on behalf of the person for whom they act?
And how does this sit with a council’s need to exercise their discretion, conscientiously, to consider discounts from assessed income, for DRE – private expenditure from the funds, which are, after all, still the client’s funds, over which the council has no preferred creditor status?
Does the existence of an appointee act as a ‘flag’ for any council or CCG that the person they act for is more likely to be vulnerable/ require additional safeguards?
How effective are the council’s mechanisms for ensuring that vulnerable individuals understand their financial obligations e.g. regarding acceptance of DPs?
How good are the capacity assessments around being able to understand the basics of a direct payment in the first place, let alone manage the payment and management obligations, such that an Authorised Person may be needed, to hold a budget as a principal, not merely as the manager (the agent) of a capacitated client?
How good are councils at supporting individuals to have capacity around managing their own benefits based finances and/or make informed decisions about others managing them?
How do councils arrange to act quickly to avoid debts accruing to vulnerable individuals, particularly where someone else is not making required payments on their behalf?
How promptly do councils or CCGs raise alerts with the DWP if they have concerns about an appointee’s actions?
Do they ever use the specific duty of co-operation, if the DWP seems reluctant to engage with them – this would force the DWP to respond in writing, under the Care Act, s7.
How would your local safeguarding professionals respond to situations such as this?
The decision can be found at – https://www.lgo.org.uk/decisions/adult-care-services/charging/17-015-575