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Challenging Segregation and Seclusion – CASCAIDr’s Access to Justice 2022 campaign

Please click on the link below to download our Challenging Segregation and Seclusion PowerPoint to your computer.

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.

J Case for Discussion

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