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CASCAIDr 2022 Update – February 1st 2022

CASCAIDr is both a strategic and frontline specialist advice organisation, empowering the practical enforcement of legal rights, whilst enabling alternative approaches to dispute resolution.

We enforce and clarify social care rights, undertake public education after successful court/LGSCO rulings, and collaborate widely within the sector.

Our 2017 launch stemmed from both a faith in using law to support the strengthening of civil society, and frustration at increasing public unawareness and hesitancy about using the legal rights we do all have – alongside inadequate curricular focus in social work degrees, the general passivity of councils regarding diminishing central government funding, and evaporating legal expertise, workforce thinning, cessation of legal framework training and contraction and unravelling of due process.

Our innovative funding and charging model protects access to specialist advice from bureaucracy/legal aid thresholds.

We generally manage to support individuals without formal litigation. We’ve quickly proved we excel at using law to change decisions, achieving positive outcomes and remedies for claimants, often out of all proportion to our size/resources (£76K restitution for one family, without proceedings! – and £65K for another…)

Our experience means we regard coherently reasoned threats to litigate as essential to any mission to empower, persuade or challenge. But we do not just ‘shoot from the hip’ on a Friday afternoon!

We evidence relevant demonstrable legal expertise and feedback here:

https://www.cascaidr.org.uk/2018/12/24/cascaidrs-first-years-worth-of-work/
https://www.cascaidr.org.uk/2020/02/10/cascaidrs-year-two-highs/
https://www.cascaidr.org.uk/2021/03/10/our-third-years-impact-despite-covid-19/

Our experience as a young organisation

We’ve had setbacks, struggling with balancing our organisational purpose and mission with skilling up networks, educating the public, resourcing casework and satisfying clients, then only to find we lacked sufficient internal resources to manage all those relationships.

We’ve concluded that law-firms’ own commercial interests can hamper co-operation with charities; they’re all competing and don’t necessarily grasp that we can add much analytical expertise, as specialists, before they even take on a referral.

We need to explore becoming a non-commercial provider of regulated activities, or a law centre. We might place self-employed consultant solicitors within a regulated entity to improve referral-handling when our own work within our model is not enough to shift a council’s stance, or we might decide to formally employ junior staff.

We must reinvigorate our experts’ enthusiasm, their sense of belonging/usefulness post-Covid; we must reconstruct our expertise pyramid, to build on our early success.

We’ve seen 4 recent seismic developments in community care law:

increasing Local Government Ombudsman willingness to criticise councils, vehemently, for breach of duty, as serious complaints have increased – only to shut down at the start of the pandemic and offer relative leniency to most councils for taking their eye off of provider shenanigans and in-house delays with reviews, in the meantime.

development of redress/restitution to remedy public law illegality (cf. damages) – we find the Administrative Court’s ordering of financial compensation can be a very powerful fillip for changing practice, but few law firms are taking on Judicial Review work, in which the groundwork for such claims would need to be laid.

threats by councils/CCGs, of applications against parents and supporters, paralysing that community from speaking up about wrongdoing, or taking on victim status but doing nothing other than that, for their loved ones, some of whom would have strong cases in public law;

– suspension of the Care Act, for two years’ maximum, overlaid by ‘discretion’ to operate as before, creating legal limbo for Care Act clients/carers – followed by the expiration of the Easements, in 2021, too soon, for at least 49 councils out of 150, who have responded to an ADASS survey to admit that January 2022 has seen them all ‘rationing’, ‘prioritising’ and deferring processes due to Covid-19 and Omicron variant pressures.

Suspension of people’s legal rights, at the discretion of 49 or more councils, after austerity, signals potential disaster for 25 years’ lobbying/judicial development of rights-based approaches to services.

We do not know of a single MP who knows how to respond to demands that questions be raised in the House about this trend. This is the answer from Jeremy Hunt MP, our CEO’s own MP:

“I was aware of this survey as I work quite closely with ADASS. It is a very worrying development that so many councils are doing this and something I will certainly bring up with Ministers when I get a chance. I have been pushing the government to bring forward reforms to the social care sector for a while now and was pleased when they committed to bringing in the new Health and Care Levy. I will though continue to push for further reforms to ensure this doesn’t have to happen.”

Covid-19’s impact on CASCAIDr

CASCAIDr’s model avoids legal aid process/thresholds – our logic being that public law/human rights legal problems arise, regardless of people’s means.

We pay experts to provide non-reserved legal advice, because the knowledge cannot be downloaded from a podcast.

Financial sustainability depends on the flowrate of work IN, and the stability of a rough 1:10 ratio between referrals for free advice, versus the rest of our low-cost chargeable work.

When Covid-19 hit, and the Care Act was suspended by Parliament, (one of very few Acts to be given that treatment) we identified a likely downturn in donations and a potential influx of referrals – a situation which we knew we couldn’t finance/resource through existing triage/caseworker capacity.

The above ratio between free and chargeable work could well have been reversed; the referral influx could have trebled overnight, and most people would have qualified for free scope work, if let down by social services.

That didn’t in fact happen – probably because the great British public (social workers included) just stoically got on with stepping up, and hoping for the best. But we couldn’t conscionably send out invoices for advising people that it was no longer going to be possible to achieve their desired outcomes based on enforceable rights! And we couldn’t just stop, either, in reputational terms, or continue to take donations, for nothing – not in ethical terms, as far as our Board was concerned.

When Covid struck, the charity’s Board was compelled to resolve to cease providing its chargeable work in order to stretch its capacity to cover the demand for the charitable aspect of its output (3 hours of triage and a small amount of ongoing free scope work). This was because Covid had a catastrophic effect on the charity’s ability to find, bring on, supervise and keep sufficiently expert staff to service the work; the charity felt the only ethical thing to do was to continue to provide public benefit by way of expert advice up front, to give people a steer, at least – and hope for donations or other forms of sales such as training and consultancy for organisations.

Charity sales from new chargeable work have therefore been nil for most of 2021-22. Some residual chargeable work was done for existing clients, but this has now tailed off and income from advice work fell to less than half of its 2019-20 level.

Chargeable work of a more demanding nature can only safely and viably be taken on if funding is available for competent professional support. This is one of the lessons of Covid, which society needs to learn, if it wants the Rule of Law to be preserved.

Instead of selling advice, we networked with other stakeholders (the Chief Social Worker, Principal Social Workers, providers, DHSC) offering legal material to assist professionals, in the public interest – and stepped up our public education output:

  • We appeared in Coproduce Care’s live broadcast analyses of Easements, and the complexity of the emergent care home pandemic story,
  • We did a R4 Today interview;
  • We offered Trading company training in several councils;
  • We sold Webinars to academic institutions for graduates whose statutory placements were cancelled;
  • We provided, for free:
    • posts on human rights law in adult social care, via social media
    • ’10 things that all care home managers need to know’, via safeguarding networks
    • a briefing on behaviours that would not trigger Easements, as opposed to behaviours still unlawful, even if Easements had been adopted in 2020;
    • private advice for providers’ leadership on stances to take with government, to avoid disaster.

We went back to training anyone who wanted to BE trained, and we used the time to create a sophisticated Legal Rights course for professionals and members of the public, out of which we hope our new caseworker cohort will emerge.

Click the image above for an Infographic showing our Year 4 progress
(Opens in a new tab)

Our strengths

We cover all client groups/disabling conditions;

We’ve already engaged with a cross-section of public law illegalities and have a strong record of success;

Our public law expertise includes human rights in the context of adults’ social care, including making maximum use of new judicial developments;

We’ve got training experience dating back to the UK’S Human Rights Act – making law come alive for people lacking in formal legal education/awareness;

We have a litigation strategy based on experience and FOI/data gathering;

We’ve shown agility in coping via rational strategic choices to survive lockdown;

We’ve focused on stakeholder/public education during Covid-19, and have an undimmed enthusiasm for capitalising on momentum, now.

Looking ahead in 2022

We have a brand new Operations Manager, focusing on relieving our advisors from admin and now running the charity on a professional basis.

He’s funded by charitable donations from providers and the public, since we take no public money at all, and have yet to hear whether grant applications made during last autumn, will attract favour.

We have new advisers just starting to come back to the front line, and 10 volunteers helping us with our admin.

We’ve decided to reconfigure our advice model so as to put our fees up very slightly, and shift our focus to helping people make complaints to the council in question, using law, as before, or going to the Monitoring Officer, or the Local Government Ombudsman, given that the legal system is broken and legal aid funded advice work, almost impossible to access.

We’ve also made it clearer that when the case is not a strong one, or can’t be wrestled into a manageable format within the 3 hours free Triage offer, we will have to charge a low flat rate for skilled case workers to get the problem into a fit state even to pass on, or put onto a crowdfunding page. If a person doesn’t want to pay, they can have a volunteer help them with that task, but we can’t spare our hugely scarce expertise resource, after that level of input has been offered for free.

We’re thinking of doing direct delivery podcasts – a combination of a very short presentation and then discussion with some set time for Qs and As. 

The sort of topics that could be covered would arise from the biggest issues people are facing:

  • Direct Payment reclaims after councils have not offered to pivot budgets during Covid;
  • Hospital discharge disasters – where the waiting list for home care is on account of commissioning stances, as opposed to lack of workforce;
  • Three Conversations based assessments and councils ignoring due process in statutory decision-making;
  • Inadequate care plans and cuts well outside of the public law parameters
  • Carers pushed beyond the brink by failure to understand that they don’t have to be;
  • Restitution and why people should be complaining;
  • Charging cases – with the collaboration of a pro bono team and a legal aid law firm that’s not afraid of the Norfolk

The state of community care law, as we re-open

Our Care Act Easements FOI listed 84 councils who were positively declining to adopt Easements in the first year of Covid-19, when the government warned against giving in too soon to pressures.

Now, in 2022, 49 of 150 have admitted to being forced by circumstances in their local areas to do precisely the sort of things that the Easements gave them legal protection FOR, just in case anyone sued them.

Ironically, it seems to us, that if they and the rest who were not drawn to claiming the protection of the Easements the first time round, now maintain a ‘business as usual’ stance that’s already unlawful, and not protected from legal redress, then it will be crucial for advocates, peer support groups and social workers (and of course, members of the public) to know what it MEANS to comply with the Care Act as originally drafted.

London Borough of Croydon (21 000 026) and its failure to provide adequate support to an adult with learning disabilities during the Covid-19 pandemic, during day centre closures

Decision date: 23 November 2021

What happened:

Mrs X made a complaint regarding Croydon Council’s failure to provide adequate support to Mr Y during the Covid-19 pandemic, especially with regards to providing support during his day service closure.

Mr Y has a learning disability and limited verbal communication skills. He lived with Mrs X (and her husband and son) in a Shared Lives registered household and required support with most activities. He could not be left alone.

In addition to the Shared Lives arrangement, prior to the pandemic, Mr Y attended a day service 5 days per week, and transport was also funded by the Council. This arrangement ensured that Mrs X could earn a living outside of being a Shared Lives carer, as Mr Y was picked up at 8:30 and returned home at 16:30.

Mr Y is also in regular contact with his family, and prior to the pandemic had overnight visits with them.

In March 2020, when the UK went into lockdown, Mr Y’s day services closed and he was left with no alternative support provision and was cared for by Mrs X.

On 2 April 2020, Mrs X told the council that she may be returning to work the following week. The Council responded that Mr Y would have to stay with her over Easter, rather than with his family as he usually did. It noted that day centres were unlikely to open before the end of lockdown.

On 1 June, Mrs X contacted the Council again. The Council provided a payment of £330.40 to Mrs X, which was to reflect “Covid 19”. Between June and July, Covid restrictions eased and on 9 July, Mrs X contacted the Council again to find out when the day centres would re-open (as she had to go back to work), and when Mr Y could stay with his family again.

On 10 July the Council replied that Mr Y could stay with his family again, and he did so for a week from 11 July.

On 20 July, Mrs X contacted the Council again and highlighted the impact of the day centre closure and lack of further support on:

  • Her ability to return to work
  • Her increased stress levels
  • Mr Y

The Council noted they needed to review the package and identify daytime support until the day centres re-opened.

On 31 July, the Council contacted Mrs X and stated an officer would review Mr Y.

On 10 August, Mrs X contacted the Council again and stated that the volume of care she was now providing continued to have an adverse effect on her and Mr Y. She noted in particular that:

  • She felt like a prisoner as she couldn’t return to work, whilst both her husband and son were working
  • She was unable to take Mr Y out to places she wanted to go, as it wouldn’t be fair on him to do so
  • She needed respite at the end of the month if Mr Y’s family couldn’t take him.

On 18 August, the day centre was able to begin provision of 1 reduced day per week for Mr Y. The Council couldn’t provide the usual transport, but agreed to source something so that it did not become Mrs X’s responsibility.

At the end of the month, Mr Y’s family were able to have him for a week.

On 1 September, the Council allocated a worker to review Mr Y. On 8 September, Mrs X informed Croydon that she was returning to work on 28 September.

On 15 September, the Council reviewed Mr Y, and offered a 2nd day at the day service to Mr Y, and a personal assistant to support him on the other 3 days of the week. They stated their grounds for this support were:

  • Mr Y’s high support needs
  • Mrs X’s level of stress
  • Mrs X’s return to work on 28 September
  • Mr Y’s recent weight loss, which his GP attributed to his change in routine

From the 28 September, a Shared Lives carer picked up Mr Y and took him to their scheme 5 days per week, to facilitate Mrs X’s return to work, and from the end of October, a personal assistant supported Mr Y for 3 days per week, and he attended the day centre 2 days per week.

In January 2021, Mr Y was left without support again when the day centre shut during another lockdown. When Mrs X called the Council to ask for the personal assistant to support Mr Y for 2 more days per week, she was informed that this increase to cost would need to be reviewed by a funding Panel. Mrs X contacted Mr Y’s family, who agreed to support him on the days he would have gone to the day centre (2 days per week).

In February 2021, Mrs X asked the Council to provide funding so that she could employ her son to support Mr Y, which the Council refused. Though the Ombudsman states this was in contravention to current government guidance at the time, we think the Ombudsman is referring to direct payments guidance, and we think that Mrs X would not have been in receipt of direct payments for what is clearly described as a Shared Lives arrangement.   ignoring the government guidance at the time, and stating it was inappropriate for her to do so.

In the same month, Mrs X complained about the lack of support from the Council, and in March 2021 the Council responded, summarising the support they had supplied, but failing to address the specific concerns she raised.

What was found:

The Ombudsman concluded that Croydon Council was at fault regarding numerous issues, and that some of these had caused significant injustice, because they led to Mrs X providing for Mr Y’s needs for longer than should have been the case, and prevented her from returning to work until September 2020.

The Ombudsman noted that the Council had assumed that Mrs X would provide more support to Mr Y during lockdown, but failed to discuss this with her, and determine what support she was willing to provide, and what support remained that the Council would need to provide. This was fault.

The Ombudsman also concluded that while Mrs X mentioned returning to work in April, and then again in July 2020, that the subsequent delay of more than 2 months to review Mr Y, was a failure by the Council to respond to the urgency of Mrs X’s right and need to return to work.

In January 2021, the Council again failed to respond constructively to the next day service closure and lockdown, and failed to ensure that alternative arrangements for Mr Y’s care and support were put in place. The Ombudsman suggests the Council failed to follow government guidance at the time, when they did not provide funding to Mrs X to employ her son to support Mr Y. As mentioned, we think that it is unlikely that a direct payment was in payment to Mr Y within a Shared Lives arrangement.  However, this does again highlight the Council’s failure to arrange extra funding or support to Mrs X.

However, as Mr Y’s family stepped in to provide some regular support at this time, the Ombudsman concluded that while these were faults, they did not cause significant injustice to Mrs X.  

The Ombudsman recommended that the Council apologise to Mrs X in writing regarding the faults, pay her £1,000 to remedy the injustice caused by the delay in support provision and pay her an additional £250 for her time and trouble raising the complaint. The London Borough of Croydon agreed to this.

Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public:

It was not clear in the context of this complaint, what “support” was provided as part of the Shared Lives arrangement by Mrs X and her family for Mr Y prior to the pandemic, either on a plan or in a contract – and what needs were being met by the day service for Mr Y. It appears to have been assumed, rather than assessed, by the Council that Mrs X would meet the care needs of Mr Y as part of the Shared Lives arrangement during the pandemic, as councils have notoriously assumed in relation to people’s own family members – although the original arrangement (the deal that had been struck) included a day service element, obviating the need for Mrs X to be at home with Mr Y during the day.

This case therefore highlights the need for carers (paid and unpaid) to ensure that support they provide (both formal and informal) is clearly identified within the support plan of the person for whom they provide care. The law requires this to be done as part of transparency and accountability so that informal carers (let alone paid ones) are not left taking up slack as between the eligible needs and the budget provided for meeting any not agreed to be met: see s25 of the Care Act and the CP v NE Lincs case at both levels.

Any Care Act assessment Mr Y had had, prior to the Covid pandemic, could have been reviewed as a means of dealing with this complaint. This may have provided a clearer picture of what was being provided by whom, and for what eligible needs. It isn’t likely that Mr Y’s needs actually changed so that he required any less support. In fact, his weight loss suggests that his needs may have actually increased during the pandemic, and did so as a result of the failure of the Council to provide support to which he had been entitled. This gives rise to a right to restitution in his name, so that he could pay Mrs X for what she had done under duress, as it were, outside the Shared Lives agreement that would have been made by the Council. This has probably been repeated nationwide.

We note that the Ombudsman doesn’t comment on the fact that the Council appears not to have consulted with Mr Y or his family, to ensure that Mr Y’s viewpoints and wishes about his care and support during the pandemic were considered by the Council. In fact, it appears that his viewpoints and wishes were not sought or considered at all. Furthermore, it does not appear that Mr Y’s family were contacted directly by the Council to find out if they were willing to offer the unpaid support they provided off and on from August 2021 onwards – they left it to Mrs X to do their statutory job. This is unlawful.

We wish that the complainant had gone further, and challenged not only her own treatment, but that of Mr Y as well, or got his family to do so, so that the Ombudsman could have considered the Council’s behaviour with regards to Mr Y’s rights and the impact upon him more fully.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of the London Borough of Croydon’s actions can be found here: https://www.lgo.org.uk/decisions/adult-care-services/covid-19/21-000-026

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