Author Archive for belindaschwehr – Page 2

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

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

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

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

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

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

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

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

Training Offer for the Coronavirus crisis period

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

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

The facts still remain, however, that

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

and

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

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

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

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

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

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

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

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

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

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

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

Our Trading Company’s training fees

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

Content of Session 1

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

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

Content of Session 2

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

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

Options

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

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

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

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

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

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

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

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

CASCAIDr’s Translation of the Easements Guidance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Keeping calm about the Care Act, during the crisis

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 policies and 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.

Individuals’ difficulties

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 belinda@cascaidr.org.uk.

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


Our form:

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 …

Or

I / Mr X / Ms Y … am/is an existing adult client with a current care package/direct payment for care and support and …

Or

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

eg … the council / Care Trust is saying that…


Test for Comments

Comment below

The Coronavirus Act and its impact on the Care Act

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 belinda@cascaidr.org.uk 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. 

Solihull Metropolitan Borough Council at fault for failure to FUND a supported housing placement for a s117 client

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 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:

  • Staff provided support with personal care and hygiene needs, laundry and cleaning; and
    • Staff 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 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

  • 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 housing benefit.
  • Mwanza vs LB Greenwich and LB Bromley (2010) sets out the criteria by which housing costs can end up needing to be met under S117 aftercare.
  • 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.

Agreed outcomes

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 housing.
  • 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.

Registration implications

  • 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 care home.
  • 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 Alternative Futures 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 purposes.
  • 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 a tenancy.
  • 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

The full report can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-160

CASCAIDr’s Highs (and stats) from Year Two…

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

Mental Health

“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


 Asperger’s/ASD





39
LD 54
PD/illness 35
Elderly clients 31
Mental Health 20
Finance or charging 81  
Prisoner’s care 1
Providers’ enquiries 5
Safeguarding 10
Parenting Support 2
Special Education 4
Total 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  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.

Antoniak v Westminster City Council

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.

Oh dear!!

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:

https://www.bailii.org/ew/cases/EWHC/Admin/2019/3465.html