Author Archive for belindaschwehr – Page 3

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

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

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

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

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

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

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

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

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

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

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


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

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Podcast

CASCAIDr’s story in podcast form

In 2017, our voluntary CEO broke her leg – and whilst laid up, pondered a central conundrum in adult social care:

  • How does one make it viable to get good legal framework advice out to a person, at a formative moment, if he or she is struggling with the council about legal rights to care funding?
  • If the person is applying for public funding for care, he or she probably hasn’t got enough money to PAY for specialist public law legal advice.
  • Decent legal advice is always going to cost money because of the expertise required to have learned it, and applied it.
  • If advisers couldn’t earn money from the expertise, they’d have no incentive to acquire the knowledge!
  • But if the person with the legal problem, has sufficiently little to qualify for legal aid, they would then have to FIND a legal aid lawyer with a community care certificate, and enough capacity to take their case on….in less than 3 months of the action or omission causing the problem…
  • …Which is no mean feat, if one is on one’s knees with disability or illness or mental ill-health in the first place, and if one doesn’t know whether one has got a legal problem or just a complaint….
  • And if the person’s got just a bit too much money to qualify for legal aid, and fears the loss of services for rocking the boat, then they’ll probably just do nothing…and teeter into an even worse situation.

So she thought and thought, and she researched crowd-funding for public interest litigation.

She discovered that charities can crowd-fund for people’s litigation causes.

She discovered that charities can engage contractors, rather than employers, just like any other business – and pay them, if the charity has the money to do so.

She discovered that charities can even charge for services that are central to their charitable objects, without losing a claim to be acting for public benefit, as long as the charges are low enough.

And she discovered that they can own trading companies in order to trade in services that are not central to their objects, but designed to support the financial resources for the charity itself.

 

 

So, having had her A-ha! moment, she then applied for charitable status for the corporate vehicles that make up CASCAIDr and CASCAIDr Trading Ltd.

She spent her own money on legal advice to contend with the Charity Commission’s many and varied difficulties in grasping what the charity was setting out to do, and how it might work, and why it wasn’t politically motivated.

Its aim was to uphold the existing legal framework, not change the law. That is, to help people access their existing legal rights under the Care Act – a statute passed as recently in 2014, by this government, through a sovereign Parliament made up of democratically elected MPs who presumably knew what they were doing when committing the state’s tax base to funding what the Act says should happen in every single case….

Whilst exercising the minds of the Charity Commission, she managed to find a group of interesting and skilled trustees to support the charity’s operation. She created a structure whereby she has no control over the Charity as a board member, and earns no money for running it. She simply earns a case work fee which is the same as any other case worker can earn, and she has ceased to provide consultancy in her own private capacity, in order to avoid conflict of interest.

CASCAIDr now has trustees, case workers, volunteers, and ambassadors promoting CASCAIDr for free; it has writers and case note creators, reflective practice mentors, IT and social media and SEO support – and a growing number of case referrals and positive outcomes to point to. It has a business plan, a remote book-keeper, bankers, accountants, insurers, a raft of policies, ICO registration, GDPR compliance, and software renewal dates, coming out of the woodwork.

But CASCAIDr is still solvent, because we don’t have to spend all our time applying for grants from benefactors that aren’t sustainable.

We are completely independent, unlike many charities these days, who have become service providers to public bodies, delivering services at fees that enable the council to make the very same cuts that central government requires, in the name of austerity.

Our CEO’s leg has mended and although she is exhausted, she reports that the impact of doing battle for people as ‘better than HRT’.

You can listen to podcasts about the experience of giving birth to this baby, here:

1 Why a charity?
2 And why it took so long
3 How do you think you’ll be able to keep it going?
4 How do you feel now?
5 What is the difference between the free scope work and the chargeable work please?
6 What sort of support have you had so far?
7 Is it right for a charity to spend money on legal proceedings
8 How can ordinary people, and user groups, or parent carer groups get involved?
9 And what about providers?
10  Are you out to get the statutory sector or to support their doing it right?
11 is there a danger of doing too well here? Breaking the system, by enabling people to shout louder?

 

 

 

 

Why are we telling you this?

The point is that anyone can do this too, if the essence of your offer is advice and information and advocacy.

There is no charitable object listed in the Charities Act of ‘giving legal advice’ away, however cheaply you might be prepared to do this and however obviously the normal beneficiaries of charities are going to find your advice, useful.

And you cannot be politically motivated, although most charities’ aims touch on politics in the broadest sense.

But you CAN copy this model above, by using the charitable object of ‘the sound administration of the law’. It’s not specifically listed, and charity solicitors, being lawyers, ought to know about it. But it does exist, by analogy, having been established under the old law before the Charities Act was passed.

And there’s a case on it  which made all the difference to our application in the end – called HDT.

If you think about it, many registered charities’ core purpose is to give advice about people’s legal rights against governmental bodies, without it being seen as engaging in political activity. It’s often called advocacy, but the thrust is always the same – upholding welfare or human rights related law.

  • Housing charities in relation to local authorities’ statutory homelessness decisions, such as SHELTER are an example. Shelter’s charitable objects are the relief of hardship, poverty and distress of those in need, in adverse housing conditions, and the education of the public concerning homelessness and to make available the useful results of research to the public, and its activities specifically include advocacy, advice and information.
  • The Prisoners’ Advice Service and the Howard League for Penal Reform are charitable organisations one of whose main focuses is inevitably advice about rights where the defendant or respondent is a governmental body, the Prison Service;
  • Asylum Justice is another – its objects are legal advice and representation to asylum seekers, necessarily challenging governmental body decisions;
  • Citizens’ Advice Bureaux are advising every day, in relation to public sector child care decisions;
  • and many of the advice charities that advise in relation to social security decisions made by the DWP, such as the FRU, provide legal representation; others are RAISE or
  • The Public Law Project – a charity now, for a very long time. The clue is in the name, we feel!

In the HDT case, the Tribunal – overturning a decision of the Charity Commission about political purposes, held as follows:

We find that “promoting the sound administration of the law” was recognised as a description of a “fourth head” charitable purpose under the “old law” i.e. prior to 1 April 2008 (see s. 3 (4) of the Act) so that it now falls within s. 3 (1) (m) (i) of the Act.

There is no legal authority to support the view that the conduct of strategic litigation before a competent constitutional court is a proper means of advancing the sound administration of the law, but equally we have not been referred to any authority which suggests that it is not an acceptable means of advancing such a charitable purpose.

We take the view that the conduct of the very particular form of litigation supported and engaged in by HDT is an acceptable means of advancing the charitable purpose of promoting the sound administration of the law.

We consider that the public benefit requirement and the question of whether there is any risk to foreign policy from such a purpose falls to be addressed in relation to s. 4 of the Act and that we should be careful not to merge it into our consideration of the definition of a description of a charitable purpose, as the Charity Commission’s submissions seem to suggest that we should.

In any event we find…that the particular type of constitutional litigation supported and conducted by HDT is fundamentally different in nature from the activities found to be objectionable as political in McGovern v AG.

 

So please get out there and do the same thing, if you believe in what you’re doing.

If you build it, they will come!

Our aims, offering and DONATE page – the organisation’s profile and aims, and how to make donations online.

 

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The impact on individuals of crashing the social care market into the buffers

This video looks what’s really happening in Adult Social Care regarding care home bed shortages, and the lack of homecare services at the price that councils can afford

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

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

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

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

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Insufficient home care to go round – market management meltdown

This video looks at how people can be ‘ware-housed’ in care home when they really need to be at home, receiving care, but can’t, because not enough has been commissioned, or the price has been kept too low to make any business sense to anyone.

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How are we really doing with the care act

CASCAIDr’s Belinda Schwehr looks at how we are not doing so very well with the Care Act and how some staff are managing people’s expectations downwards

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Disappearing Direct Payments

This video looks at what councils are doing to make direct payments less and less attractive, regardless of whether it’s unlawful or not under the Care Act – so as to take back control of local care markets

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Carers’ goodwill, stretched to the maximum

This video looks at how ill, disabled, and elderly people’s relatives are being pushed beyond any reasonable expectation of informal care provision to their loved ones, so that councils can break even – and why they need to say NO

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Care home bed shortages affecting hospital discharge

This video looks at how the shortage of care homes now willing to take council funded clients at the fees that councils wish to pay, is leading to more delayed discharge from hospitals, and at some of the responses to this problem, on the part of the NHS and local authorities

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