Author Archive for belindaschwehr – Page 2

Carers’ goodwill, stretched to the maximum

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Care home bed shortages affecting hospital discharge

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Being stuck in an ATU

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The Impact of Austerity

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Til DELAYS do us part

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Chaotic and chronically delayed Care Plans

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The Monitoring Officer – a ballistic missile for service users, when faced with unconscionable delay in getting a decision on a care package or budget!

This post is for flagging up that there is a much easier way of challenging a local authority’s actions or decisions, policies or practices, than complaining, and it’s not widely publicised. The people responsible for managing this system don’t even agree about its scope, but that doesn’t mean that the words in the statute don’t mean what they say!

It’s use of the Monitoring Officer’s own enforceable and mandatory independent statutory duties to keep a roving eye or ear out, for alleged unlawfulness within his or her council. Its existence means that all you have to do is know enough about law to be able to string 3 or 4 paragraphs together (about the Care Act, the Guidance or the Regulations, in the case of adult social care issues) to lay out for a Monitoring Officer a coherent arguable case on why what’s been done, or is about to be done or not done, is simply not defensibly lawful. 

This duty was first created under an Act that goes back to 1989, when governance no doubt meant something different to people working in the public sector, to what it tends to mean now.

The attached document ‘What is this information FOR’ is an explanation of what the Monitoring Officer is there to do, and a table of nearly all the Monitoring Officers in adult social care councils in England and Wales, together with their email addresses. A few are missing and will be added if anyone can give me the information, which should be in the public domain.

How to contact these Officers: if you ring up a council you will often find the receptionist doesn’t have the means to find out who the Monitoring Officer is, and that makes us MAD! So we have put this together, although it may not be up to date – email addresses to use for reaching their attention.

Monitoring Officers’ list

There used to be an excel spreadsheet supplied by a data supplier to our CEO for money, but it was a breach of the terms of the licence for her to share that with the public. She then used it to enquire of Monitoring Officers, directly, whether they object to their email addresses being publicised, and where that was the case, she has left the name blank, given a generic address instead, or otherwise checked data that is publicly available to advise people how to get in touch with the relevant Officer, before gifting this material to the charity. Her logic is that the information as to the Officer’s name could not be refused if the council was asked for the person’s contact details, and if the council’s receptionist does not know, anyone could use an FOI request to the council to find out who is their designated Monitoring Officer – since the law says that there has to be one!

If there are references to Acting or Interim in the job title, they may well have changed recently.

There is also a justification for publishing their email addresses, without explicit consent, for Data Protection Purposes. If anyone thinks that making it easier to uphold the law in adult social care, by telling people how to use a remedy that’s been provided through the will of Parliament, is not a legitimate interest, on my part, as a data controller, then they are able to complain about this to the Information Commissioner, with whom CASCAIDr is registered.

We very much hope that people will put two and two together, and equip themselves to do polite, informed battle for their or their loved one’s care packages and budgets.

CASCAIDr will do these letters for free for people who have FREE SCOPE issues as described on our home page. If a problem is not within that scope, but is still one where illegality lies at the heart of the dispute, then we will do this for an affordable fee.

One needs to use our referral form, under the Free Advice Tab, to enquire, please

If one were to be simply ignored by the Monitoring Officer, that could be a breach of the law by him or her, in person, and would also be likely to be maladministration, for the consideration of the Local Government Ombudsman.

What is this information for

Getting Legal Help and Legal Aid

Law firms don’t HAVE to offer legal aid funded services; and very few firms nationally, do legal aid work for community care matters, even if you would qualify, by reference to your means – and there’s a merits test as well. But there’s a search tool below, for finding the firms that offer this service. 

The Public Law Project is now a Charity, and can be a good place to go for advice about where ELSE to go.

The Disability Law Service has a legal aid certificate as well for this area of law.

If you know of any others, please tell me their names, by email belinda@cascaidr.org.uk

Don’t forget that you can now go straight to SOME barristers through what is called Direct Professional … or direct public access arrangements: google “community care law” or “social care law” alongside the word barrister and email or telephone the clerk and ask whether these arrangements operate in those chambers or with a specific named barrister whom you’ve found on a search.

Law firms offering community care legal services, in no particular order:

Ben Hoare Bell; Simpson Millar; Irwin Mitchell; Pannone’s; Bindmans; TV Edwards; DPG Law; Martin Searle Solicitors; Edwards Duthie; Switalski’s; Cartwright King; Ridley & Hall; MG Law; Foster & Foster; Sinclairs; Howells; Stephensons; Jackson Canter; Latimer Lee, Wrigleys; Clarke Wilmott; Julie Burton Law (in Wales); Burroughs Day (Quality Solicitors); Alison Castrey Ltd; David Collins (best for providers arguing about fees, but it is not known whether they take on individuals’ own claims about fees, other than for CHC); Brunswicks (mainly for providers); Bates Wells and Braithwaite (mainly for providers’ arguments and particularly charitable providers) and Anthony Collins Solicitors (also focusing on Providers’ work).

If you could only afford legal advice if you were financially assisted, you need legal aid or crowdfunding. Use this link below, together with the ‘Category’ filter on the linked site, to check out if there’s a firm local to your postcode, with a contract for Community Care work – they are few and far between, these days, but most will deal with you on the phone or online, so distance need not be a problem…

http://find-legal-advice.justice.gov.uk/

Search facility for legal aid solicitors

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NORMAL?

There’s very little attention shone on the effects on families of dealing with learning and/or physically disabled people. This is probably going to start off seeming selfish, but if you’ll bear with me I hope you’ll realise that it comes from precisely the opposite sentiment.

My personal viewpoint is one of a sibling – my adult sister was born disabled. As a result of decades of support and the good work put in by many people, she is now capable of some independence and eagerly contributes to society – within her limits and with careful oversight. She genuinely wants to live as full a life as she can. She doesn’t want to be a passenger.

Here comes the selfish bit. I’ve had to alter my life choices as my relatives have aged and died, since I could no more throw my sister out of a car into a remote country ditch than cut off my own arm. Nor would my parents have ever done that. Later in life, my mother confided in me that she used to feel like telling me “just run, get away from this”. She didn’t and she knew I wouldn’t have done it anyway. It was just expressed in the spirit of honesty between us.

I understand completely those who can’t cope and walk away, and I make no judgement whatsoever. I also have great sympathy for those who don’t have the resources and patience to navigate the complexities of the care system. If you dread filling out a tax return (and who doesn’t), try this stuff sometime… And I completely sympathise with those who simply don’t want to make waves for fear of prejudicing the care of their loved ones.

Siblings of disabled people, in my experience, are psychologically shaped by often damagingly early parentalisation. You are, to some degree, a parent from the age of about four, and it’s formative on your personality in many ways – some of them positive. But there’s all the sense of guilt, responsibility and burden that goes with being a parent. And pride in achievements, of course. You grow up with that, from the first moment your child brain is capable of comprehending that someone else is really just the same as you. We’re all just experiencing the world from the confines of our flesh cages.

But for a roll of the dice, it could have been you. As you grow up, the notion that this is the way things are and it’s nobody’s fault takes quite some emotional effort to handle. At some point, it’s inevitable that you’ll come into contact with others who have the same sort of difficulties as your family member, and you just can’t help but feel empathy for them. It becomes more than a personal issue and that’s where the selfishness resolves into something else. You get involved.

Interesting that so many people working in care giving have family members who require it. It’s not because they’re trying to get into the system, it’s just awareness. Also interesting that parents and guardians tend to get together informally and offer support to each other.

But remember – behind every disabled person is a partially disabled family, and everyone is trying to do their best. That is of course, if there is a family.

Families are always complex – your “normal” brother may be thick or your “normal” sister may be lazy, but this is a level beyond that. However thick or lazy they may be, they don’t need assistance just to function. Disabled people, in my experience, don’t want to have to need help, but must somehow reconcile themselves in their own way to the fact that they do. And those around them have to find a way of giving them that help in the right way. For instance, someone in a wheelchair is just someone like you, only sitting down. That’s all.

I don’t wish to politicise this specifically – it’s very complex. Nor do I wish for a “here state, catch” approach. No begging for handouts, this isn’t what this is about. And I’m not complaining, I’m explaining. My thinking is purely practical (it comes with the territory).

The care of learning and physically disabled people involves a great many governmental and charity organisations.

So if any of this has chimed with you, whether personally or otherwise, I’d ask a few things of you when you may have the time. Get involved in the debate and share your experiences and concerns. Lobby your council and MP so that policy and care provision on the ground can be properly addressed. Donate a few bob to CASCAIDr, which has helped our family, when you can. Or just take a couple of minutes out of your day with someone, when you can.

We are all of us on a complex sliding scale – with a totally arbitrary definition of “normal” – somewhere on the line. We all have our strengths and weaknesses, and we all need help sometimes. And of course, inside our own heads, we’re all “normal”, aren’t we?

A.N.Brother

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Happy parent given the means to fight a 3x increase in her son’s charges

Thank you, thank you so  much for your detailed and clear guidance. I am extremely grateful for your revision and all the notes regarding my next homework; for now I thank you enormously 

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CP v North East Lincolnshire Council [2018] – a much needed judicial re-statement of pre-Care Act legal principle about the transparency of, and requirement for, an explicit Personal Budget!

In this case a challenge was made about the provision for a 22-year-old woman, CP, with complex and multiple disabilities requiring round-the-clock care.

CP’s parents and the local authority were also engaged in an FTT appeal about educational provision which had a bearing on what else was or might be needed. They continued Alternative Dispute Resolution (ADR) efforts during that appeal and, by the time of the judicial review hearing, had essentially reached agreement about the degree to which CP’s social care needs would be met by informal care from her mother, and the level of that part of CP’s Personal Budget to be delivered via a Direct Payment.

Over the period of dispute, the local authority had repeatedly reassessed CP under the Care Act and issued new proposed care plans which increased the proposed Direct Payment from £387.50 per week via £519.70 per week to a final agreement on £720.67 per week.

Transparency of the Personal Budget

Several of the earlier care plans had failed to state a personal budget at all and none had set out any breakdown of the figure.

In line with the pre-Care Act case law (R (Savva) v Kensington & Chelsea [2010] and KM v Cambridgeshire [2011]), HHJ Wood (QC) took the view that the duty in S.26 Care Act to specify the personal budget for the adult required a transparent figure which set out how the persons’ needs could actually be met by various elements within it.

Personal budgets

“93. It is important to understand the rationale of the personal budget which is available to the individual being supported and his/her carers. It seems to me that this is clear from paragraph 11.3 of the statutory guidance. The adult with eligible needs and those providing voluntary care should have a good understanding of the extent to which support will be provided by the local authority in respect of both those services which are provided directly by specialists (and paid for by the local authority) and those which will be funded by way of direct payment. Of course, because voluntary care figures in most assessments, and it is this aspect in which the family will be interested, if the personal budget covers the total cost of meeting the eligible needs, thus including the direct payments, that element to be provided voluntarily will be easily discernible.

94. The duty is a clear one derived from section 26 of CA 2014, and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected. The Claimant provides a compelling argument in respect of the earlier plans which were defective in providing this transparency.

Informal Care 

“It is also clear that an adult’s family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.” [Para. 97]

However, the judge went on to hint that, even if a carer believed that an assessment was overly reliant on informal care input there were steps which could (and maybe should) be taken short of judicial review to resolve the disagreement. (Our comment would be that perhaps the judge believed that complaints actually sometimes lead to a change in professional judgement; does anyone out there have any evidence of that, please?)

He did not say that one had to make a complaint, however, before using judicial review:

…“unlawfulness could only be identified in circumstances where there had been a refusal to review in response to a complaint, or insistence on family care in the light of clear evidence that the family was unwilling, or that there had been an irrationally low level of care identified on the assessment.” [para. 102]

In relation to what should go into a s25 Care Plan, paragraph 6.15 of the Guidance appears to have been overlooked and not specifically considered during the hearing.

Paragraph 6.15 spells out in greater detail the relationship of informal care provision to the process of assessment:

“During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer.

…Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination.

…After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.”

The judgment should also be taken as a reminder of the need to engage in extensive ADR efforts prior to and during the process of Judicial Review (see Cowl v Plymouth City Council [2001]), especially where, as in this case, the public body appears willing to review or reassess the situation.

That said, one wonders whether such substantial increases in CP’s Direct Payment would have been forthcoming without the existence of the Judicial Review proceedings. It should also be noted that, nevertheless, Judicial Review remains the appropriate route where the claim raises a point of law of general importance or where the public body involved fails to give clear decisions and/or reasons (O.H. v London Borough of Bexley [2015]).

Full text at: CP v North East Lincs

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