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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

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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.

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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!

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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.

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London Borough of Hammersmith & Fulham at fault for delays in reviewing care and the carer’s and client’s packages

Decision Date: 30th September 2019

What Happened

Mr B complained to the Council on behalf of himself, as a carer, and his mother, Mrs C.

Mrs C was an elderly lady, who suffered from several health problems. She needed help with personal care and often to mobilise. She was also at risk of falling from her bed during the night.

Mr B was her main carer.

In March 2017 the Council completed a full initial assessment and put in place a care plan. The package of care remained in place until February 2018, when Mrs C was admitted to hospital.

When the hospital discharged Mrs C the package of care resumed. The Council does not appear to have reviewed the care package at this time. However, it carried out a carer’s assessment for Mr B in March 2018.

The carer’s assessment found Mr B was happy to continue in his caring role but would like more support. Mr B said he was now staying at Mrs C’s house overnight more frequently because she slept badly and more often fell from bed. He said Mrs C had become incontinent since the last assessment and he had to support with personal care and changing her pads. Mr B said he felt socially isolated, often felt low moods because of the caring role and was limited in gaining employment.

The assessment found Mr B was at risk of continuing stress and possibly physical harm from lifting Mrs C. The Council offered Mr B moving and handling training, but he declined for unknown reasons. It put in place a personal budget of £300 for Mr B so he could take a break away.

Mr B said that from between April and June 2018 he started to call the Council frequently and leave messages that said he was not coping and needed more support. He said it was often late at night or during the early hours of the morning that he called as these were the times he was struggling most.

The Council had no records of any calls from Mr B until July 2018. At this point a council officer spoke to Mr B who said he was not coping and needed support urgently. The officer sent a request for an urgent review of both Mr B’s and Mrs C’s support packages.

Mr B did not hear back.

The Council’s records showed he called again two months later, in September 2018, but Mr B said he called more times in between, again possibly out of hours.

Mr B said his mother’s health had worsened, she was injuring herself and the care package was not now meeting her needs.

After the call in September, the council officer saw the review was overdue so sent a further request for the review team’s immediate attention.

The following day the Council allocated the case for a review. However, two days after that Mr B called to say Mrs C had sadly passed away.

Mr B complained to the Council.

The Council apologised to Mr B as it said it could have arranged a review sooner. It said the reason for the delay was because of a large volume of requests at that time. The Council said it was going through a service wide transformation, with new staff, systems and procedures which likely played a part. The Council accepted it provided a poor standard of service to Mr B and Mrs C and apologised.

What was found

Annual Review

Councils should review a person’s care plan at least once a year. The Council assessed Mrs C and put in place a care plan in March 2017. A review was therefore due in March 2018. However, the Council failed to review the care plan before she passed away in September 2018.

The Council said Mrs C’s care plan ‘would’ have been reviewed when she was discharged from hospital in February 2018. However, it provided no evidence of any review. The correspondence provided suggested it merely reinstated the existing care package.

Therefore the LGO found the council at fault in failing to conduct an annual review of Mrs C’s care plan.

However, the Council did conduct a carer’s assessment for Mr B. It put in place support for Mr B in terms of a personal budget to allow him a break. However, during that assessment Mr B said his mother’s needs had increased.

This itself may have been enough for the Council to consider a review of her support package and therefore added to the fault that it did not conduct an annual review when one was due by this point.

Requested review

The LGO had to consider that without records of Mr B’s calls, it could not say whether the Council could or should have responded. If Mr B left clear messages that council officers could respond to, they should have passed these on to the relevant team. However, without any file notes or recordings, there was not enough evidence to make a finding on this point.

The records provided by the Council showed that Mr B first requested a review in July 2018. The Council accepted it could have actioned a review sooner. Normally a timeframe of four to six weeks is acceptable in terms of arranging a review. However, in this case Mr B was clearly distressed and asking for urgent help. The review request was marked as urgent. This suggested the Council should have arranged a review at the earliest opportunity.

It did not allocate the case for a review for two months. This was fault.

Mr B said the impact of the fault was that he continued caring for his mother with a care plan that did not provide adequate support for him or his mother. This caused him distress and risk of physical injury from moving his mother. The LGO recommended the Council pay Mr B £300 in recognition of this injustice, apologise for the delay in reviewing his and his mother’s support plans, and for not carrying out an annual review of his mother’s care package.

Points for the public and for the council

  • This baleful and sorry tale of our times underlines what is happening all over the country due to redundancies and frozen vacant posts whilst cuts from central government continue to take effect.
  • We are surprised that the LGSCO did not refer to the legal duty in the Local Authority and Social Services Act 1970 that is still in force, and binding on all councils – the duty to ensure that social services departments are furnished with sufficient staff for the discharge of their functions.
  • Assessments, reviews, and revisions to care plans are at the very heart of social services functions, and are statutory duties. Unless the man in this case was regarded as making up the calls that he claimed to have made, there is no possible excuse for failing to get someone to review this package, and a referral to the Monitoring Officer would have been a better thing to do, we think, in this situation.
  • Someone died in this case, and the carer was clearly at the end of his tether. There can be no confidence that that outcome could not have been avoided by proper due process and the all important timeliness that the statutory Guidance requires of adult social services.
  • Section 27 of the Care Act allows anyone to be reviewed upon any reasonable request, not merely an annual review as expected in the Guidance. When the sort of delays above occur, we have to wonder whether we still live in a society with any respect of the rule of law.

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 London Borough of Hammersmith & Fulham’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-019-910

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Westminster Council found to be at fault in relation to how its delegate handled a homelessness applicant

Date of decision: 26 Sep 2019

What happened

Mr B complained about the way Westminster City Council (the Council) dealt with his homelessness case.

Readers may well recognise the issues of delay and people being passed from pillar to post: these issues are commonplace, and regarded as inevitable, by most councils, these days.

But the LGO thinks not.

In particular, Mr B complained that the Council:

  1. delayed unreasonably in deciding his homelessness application;
  2. delayed unreasonably in finding him suitable accommodation;
  3. lost documents he provided to it (for medical assessment);
  4. was not making enough effort to obtain important information from the police regarding his case;
  5. was not communicating with him properly; and
  6. lost the housing register application he had made the previous September.

What the Housing legislation provides for

When a person presents as homeless, the Relief Duty may apply, and arises, regardless of whether the applicant may be in priority need, but it does not extend to the authority actually having to secure accommodation (although it may choose to do so).

The duty to provide INTERIM accommodation, however, arises once it is decided that a person is in priority need.

The Relief Duty should not extend the period it would otherwise take to decide on priority need – that is not the point of the new duty.

The Housing Act guidance says in most circumstances, assessments will require at least one face to face interview. However, where that is not possible or does not meet the applicant’s needs, assessments could be completed on the telephone or internet or with the assistance of a partner agency.

There are no specific timescales for assessment or producing a Personal Housing Plan under the Relief Duty, but the Guidance stresses the need to take reasonable and sometimes urgent steps to prevent homelessness – and that these may be taken alongside the process of assessment and drawing up the PHP. 

The facts

Mr B became homeless in May 2018 after injuring himself and losing his job. He completed an online assessment on the Council’s website in mid-September 2018 and he was phoned on 13 September 2018. Mr B said he had been sleeping rough for 12 weeks, after losing his job and home. The officer referred the case to the partner agency (the Housing Solutions Team) as it was probable that Mr B was eligible and homeless.

On 8 October 2018 someone contacted Mr B by telephone to arrange an initial assessment. Mr B declined as he was by then working and could not take time off. He did not want an initial assessment and said he would continue working with a different organisation that helped rough sleepers to find accommodation, unless he needed help in the future.

Mr B’s recollection was different to the council’s, the report made clear.

He said that when he first approached the Council in September 2018 he asked to apply ‘for housing’ and also said he was ‘homeless’. He says he completed a housing register application form. He said the receptionist dealt with him and he was not interviewed.

When he received a telephone call he said he asked what he should do but the person did not say to come in for an assessment. He said he was placed in a shelter for 8 weeks by a different organisation. He was then back on the streets until April 2019 when he went back to the council’s partner agency.

The Council had no more records until 12 April 2019 when Mr B re-approached the partner agency as a rough sleeper. He had been sleeping in a hostel for some of the time. He explained again how he had become homeless, that he was in receipt of benefits and was a UK citizen. He also said he had medical problems and provided some evidence of this.

The record said that the person who interviewed Mr B spoke to another member of staff and they said there was not enough evidence to say he was in priority need.

He was provided with a hostel bed on 3 May 2019 for 4 weeks and was given an appointment with a Council caseworker (to be referred to as CW) for 13 May 2019.

On 13 May 2019 he was interviewed by someone from the partner agency, not the caseworker, who was not able to honour the appointment. The interviewer sent an email to his caseworker after the interview explaining some events in Mr B’s past which meant he may be at risk of violence. The interviewer had contacted the police but had not been able to get any information. The interviewer also provided a completed medical assessment including details of his ongoing injury for which Mr B was awaiting surgery.

The Council said it did not provide interim accommodation at this point because it was not satisfied that Mr B might be in priority need, but in fact what they meant seems to be that they didn’t consider the information provided.

On 4 June 2019 the partner agency telephoned the caseworker to chase the matter up. On 5 June 2019 the caseworker discussed the case with a manager for what appeared to be the first time and agreed he may be in priority need. On 14 June 2019 the Council provided him with self-contained interim accommodation.

On 20 June 2019 the Council completed an assessment, accepted the Relief Duty towards him and issued a PHP.

The Council agreed to refer him to two housing projects for private rented accommodation and referred Mr B to a housing project for accommodation. It required Mr B to provide some information.

The caseworker referred him for housing on 21 June 2019 and spoke to Mr B by telephone to explain the relief duty and what might happen when it ended.

The caseworker also confirmed that the Council could discharge its housing duty via housing in the private sector.

The caseworker also contacted the police to obtain information about the risk of violence – Mr B had provided a crime number but the police did not recognise it, for reasons that were not clear. Mr B said another police force was involved.

The ombudsman found as follows:

Between first contact when he was actually homeless, and first action, there were 3 weeks, and that was too long. 

The Council should have carried out an assessment of Mr B’s situation much sooner, considered whether he was eligible for interim accommodation and whether it owed him any further duties.

Mr B believed he had filled in a housing application but the Council’s records did not support this.

Mr B said he requested further help but the Council says he declined assistance as he was in a hostel.

The Council should have communicated much more clearly with Mr B as to what his options were.

The record of 13 September 2018 noted he was street homeless but did not consider whether he might be eligible for interim accommodation or explain what the process was.

The note on 8 October 2018 confirmed he was in a hostel and therefore likely to be homeless but no further advice was given. There was an insoluble conflict of evidence, as to whether Mr B declined any further assistance but the LGO thought it was not clear that Mr B was able to make an informed decision at that point.

Mr B approached the partner organisation for help on 12 April 2019, but he was not interviewed until 13 May 2019. This was too long. The Council may well have been very busy, but over four weeks was too long for a street homeless person to wait for further assistance.

There was no indication what the council then considered or whether it asked Mr B for any more information. When Mr B was interviewed, he provided information crucial to the decision on priority need that he was possibly at risk of violence on the streets. So, it was likely that if he had been interviewed sooner, he would have been offered interim accommodation at an earlier point, the LGO thought.

An email sent to the caseworker the same day as the partner organisation interviewed Mr B could not be regarded as equivalent to a detailed record of what was discussed or considered.

The caseworker then fatally delayed in acting on this information for over three weeks.

Once she actually considered the information, she quickly decided Mr B was in priority need and arranged interim accommodation within two weeks.

She also accepted a relief duty towards Mr B and prepared a PHP.

In reality, she had had sufficient information to make this decision on the 13 May 2019 and the delay in doing so was fault which caused Mr B injustice, as it took longer for him than it should have done to be offered interim accommodation.

In recognition of the delays in dealing with Mr B’s case, which delayed him obtaining interim accommodation by approximately a month to six weeks, the Council was advised to pay Mr B £300 and review its procedures to ensure all homeless applicants are interviewed promptly and that decisions about interim accommodation are made much more quickly.

Please note that CASCAIDr does not specialist in housing law advice but if your problem is about the interface between housing and social care rights, you are welcome to make a referral on our form here: https://www.cascaidr.org.uk/free-advice/

The LGO’s report can be found here: https://www.lgo.org.uk/decisions/housing/homelessness/19-003-747

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Overview of the report into the seclusion of a young woman called Bethany, whose father brought her plight in a private hospital commissioned by the NHS, to national attention, in 2019

  • Beth’s parents were never seen as partners in the care of their daughter and over time have moved to a combative position as a consequence of lack of involvement, acknowledgement and voice.
  • The lack of diagnosis for Beth, meaningful intervention and management set Beth on a pathway that was foreseen as poor and ended inevitably in institutionalised care.
  • The physical environment for a young autistic girl was inappropriate and lacked adjustments to her needs. This led to a cycle of challenging behaviour being met with increasingly restrictive practices. The ethos of care meaning that there was a failure to recognise the communication of unmet needs expressed by such behaviours, and furthermore, normalised profound restrictive practices.
  • Issues are identified in relation to numbers of staff, the skill mix of staff, supervision, training and access to information and support.
  • Safeguarding issues have not been adequately considered throughout Beth’s life in care. There is too narrow a focus for safeguarding leading to considerations of Beth’s welfare and development not being recognised as safeguarding issues.
  • Restrictive Practices: Beth has been subject to restrictive practices from a very early age. There is concern that the legitimisation of such restrictions in the Code of Practice, with limited safeguards and scrutiny, has facilitated prolonged use without external scrutiny. Psychological harm and Beth’s human rights are inadequately considered.
  • There has been a lack of follow up of actions from requirement notices and regulatory breaches; a lack of escalation to NHSE of serious concerns and a recognition that there has been inadequate input from carers into regulatory visits.
  • Poor cross agency working, in particular with NHSE (Midlands and East Specialised Commissioners); contradictory medical opinions and advice and their interpretation of their ability to effectively challenge due to Beth’s detained status under the Mental Health Act. It is clear that explicit assessment of Beth’s human rights is not undertaken by stakeholders. The current paradigm is one of risk management in dealing with the risk of Beth’s behaviour to herself and others. It is considered that this needs underpinning with an explicit assessment of human rights to support improved care planning.

For recommendations, see here:

https://www.gov.uk/government/publications/serious-incident-investigation-report-excerpt-secretary-of-state-case-review-into-beth

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R (on the application of CP by her father and LitF, JP) v NE Lincolnshire Council

… is a fantastic judgment from the Court of Appeal (announced 3 October 2019) about the parallel statutory duties owed by a local authority under the Care Act 2014 and the Children and Families Act 2014, and the overlapping Tribunal and JR routes to a remedy for breach of these Acts.

Fundamentally, the Court held that if a council breaches the Care Act, then it is acting unlawfully, and must pay what it would otherwise have been obliged to pay towards the person’s care plan, if it had acted lawfully.

If that person has incurred a liability to pay, even a person lacking in capacity to have contracted, then that is the measure of what the council would have to reimburse, as a matter of public and private law principle.

Implications for anyone in a struggle with a council about the Care Act functions

For any council using a Three Conversations Model to save time with assessment and encourage so-called assets and strengths-based professional evaluations which assume that friends and family are willing to meet needs informally, that council might be wanting to make it a whole lot clearer in its public offering of advice and information, that anyone who wants a proper Care Act assessment or budget or plan is welcome to one, one that complies with the due process requirements in the Act and in the Assessment Regulations.

People should refer the council to para 10.86 of the statutory Guidance and demand the management review that it recommends, so that the council can put right any non-compliance with legislation, without further ado.

The implications for us, as a charity seeking to resolve disputes by polite reference to public law legal principle:

CASCAIDr corresponds with many councils’ senior management, legal departments and Monitoring Officers every week.

Sometimes, dealing with the responses we receive, makes us feel as if we learned our law in a parallel universe, and not just last century.

We were therefore much cheered at this judicial assessment of NE Lincolnshire’s attitude:

“The Council resisted CP’s claim at every turn and conducted what turned out to be a fruitless rear-guard action for the next 18 months.”

We are regularly told that we are wrong to say that a breach of a statutory duty gives rise to the independent mandatory duty of a council’s Monitoring Officer (under legislation promoting good governance, dating back to 1989), to report the matter to Members, if they can’t otherwise sort it out.

We use this remedy to help people avoid getting stuck in the complaints system, and avoid having to get adversarial and threaten judicial review.

But we’re often told by these lead governance officers that when a dispute arises between a citizen and the council about the discharge of Care Act duties, regarding the adequacy of a budget, care plan or the processes required by that Act (one where we’ve carefully probed and identified all the ways in which the council has not abided by the plain words of the statute or the regulations) – we are told that their own governance duties are not triggered because (in some way that is never explained), that particular sort of dispute is not about contravention of an enactment or a rule of law.

And they say this even though the Ombudsman does not himself hold back in describing this sort of misconduct as breach of the Care Act when considering councils’ allegedly unsatisfactory handling of complaints that have been made.

So some of these luckless officials will be hearing politely from us, shortly, with this excerpt from the Court of Appeal’s Lord Justice Haddon-Cave’s judgment, which sums up our ‘Old School’ understanding of public law, as WE learned it, rather nicely:

A breach of a statutory duty is a breach of statutory duty.  It is, by definition, unlawful conduct.  Unlawful conduct by a public body cannot merely be discounted or ignored. 

Moreover, s. 26 [of the Care Act] is no minor matter.  A local authority’s statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins. 

In the present case, having found the Council in breach of its statutory duties, [the judge in the High Court] should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall, in accordance with normal public law principles of legal accountability of public bodies.

That’s very cheering, isn’t it?

We’ll be doing an analysis of the case as soon as we can and will provide links to a public copy of the judgment as soon as it’s up somewhere for free.

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CQC’s ‘no more than 6 people in a care home’ policy target scrutinised by a Tribunal

The First-tier Tribunal has ruled in favour of the Care Quality Commission’s (CQC) decision to refuse an application submitted by Lifeways Community Care (Lifeways) to vary a condition of its registration as a care home provider.

Lifeways (a care provider looking after people with complex care needs, including those with a learning disability, autism and mental health issues) had applied to add an additional location to its list of care home registrations. [Since services are listed by reference to address, we do not know what registration or condition was being varied, and one can’t tell from the actual case report.]

CQC had felt and decided formally that the appearance of the proposed service at Springside, the application site, did not match with the residential area as it was located within an old NHS care home site and was too institutionalised in appearance ever to be made more homely.

The proposed care home consisted of a series of adjoining single storey buildings: a. Bungalow 1 – offering 2 en suite bedrooms and kitchen and living room facilities. b. Bungalow 2 – offering 3 en suite bedrooms and kitchen and living room facilities. c. 3 self-contained flats, with their own front doors. Residents would share a multi-function room, a sensory room, a conservatory, a laundry, a medicine room, a large communal garden and a large car park.

There was a supported living service on the same site run by the same organisation – very proximate.

The proposal for the care home to accommodate 9 people was regarded as not promoting integration with the local community – even though those tenants in the supported living units would have been their neighbours and shared the garden and communal facilities. Those would be neighbours sharing their own neurological and mental conditions, of course.

Policy for CQC reads as follows, with regard to Registering the Right Support:

e. New [care home] services should not be developed as part of a campus style development or congregate setting.

f. campus style development is defined as “group homes clustered together on the same site and usually sharing staff and some facilities. Staff are available 24 hours a day”

g. CQC would adopt ‘the presumption of small services “usually accommodating six or less”’ in line with current best practice [for care homes] in Building the Right Support, albeit this not a ‘rigid rule’

Walsall Council had been consulted and were supportive of the proposed application (no doubt because they were the people actually implemening s117 discharge plans). A witness was concerned that the Council had not taken into account the policy and guidance set out above.

The Appellant planned to offer ‘a step down pathway to an individual tenancy’ for those ‘looking to step down from hospital settings or at risk of placed under section’. A witness was concerned that this might be in effect “an emergency service to prevent hospital admission.”

The NHS Walsall Clinical Commissioning Group had not been consulted about the proposal, but indicated that they would have preferred to commission places in small settings consistent with the policy in RTRS.

Mr Raymond James CBE, the National Learning Disability Director and Senior Responsible Officer of the Transforming Care Programme, NHS England explained the nature of and background to the national policy and guidance set out above. He explained that he had the most senior public service role in England devoted to people with learning disabilities. He said he was a party to the writing of the RTRS and that he was “one of a few number of people” who knew the national policy and guidance very well.

Witnesses for the CQC said this:

  • “The role of public policy is to ensure that people lead the right type of life. If we allow compromise because it’s the only thing available rather than what is right; that would be wrong.”
  • “If you register an inappropriate model because there isn’t an alternative at the moment, it exists forever and sucks in more people.”
  • The Regisration Lead’s press statement echoed this sentiment too: “If we accept Good Enough we can’t transform the service and achieve the necessary change.”

When asked “why did the CQC register ANY care homes” another witness replied, ‘Good question”…

One answer, of course, is that the policy of getting the private sector to buy houses and put them out on a long lease to housing associations or voluntary organisations for maximising access to unrestricted Housing Benefit just isn’t working, so people are stuck in hospitals.

Some of the very same councils and CCGs who owe a duty to do s117 discharge planning have taken against ever offering guarantees of voids and housing benefit deficits and simply pass that on to social workers to explain.

Commissioning is the servant of care planning, not the master of it. It’s the means by which duties based on professional judgement are supposed to be implemented. And yet despite the statutory powers enjoyed by both CCGs and local authorities, to offer such financial assurance in what is undoubtedly a shark-infested but risk-heavy sector, these stances are developed and imposed top-down in a way that is often uninformed, inflexible, and without consideration of the hugely relevant considerations that flow from such a stance: namely, the continued moldering IN MENTAL HOSPITALs AND ATUs of people who do NOT, in clinical professional judgement terms, actually need to be there at all any longer. But who will do, if their hopes of a good life in an ordinary house are dashed time and time again through faceless and unaccountable decision-making.

The closing submissions in this case by Lifeways were summed up as follows: benefits of the scope and size of the property that were great for some people’s conditions, would fall away, and more people would remain in hospital because the CQC/Tribunal deemed the aesthetics and the fact that services would operate side-by-side to be too risky. “This is a case where the decision must be made taking into account the realities for providers, commissioners and service-users in Walsall. All of these must not be overlooked in the search for perfection.”

The Tribunal was not convinced, however, and upheld the position of the CQC. “The national policy and guidance is (and is supposed to be) aspirational. It seeks to transform existing care provision going forward. The panel accepts that the evidence establishes that the small domestic model of care promoted by the policy and guidance is (despite the challenges involved) realistic, workable and achievable”.

We are not opposed to aspiration in adult social care, CHC or s117 care planning and we do not KNOW what the reality of this environment might have been like. But it all costs money, and no political party seems to be prepared to acknowledge that, Boris Johnson having gone so far as offering £72.3m to build a new adult mental health inpatient unit, rather than for voids and guarantees of HB deficits in his honeymoon period.

What a Kafka-esque world it is that we live in, when this sort of thing happens – even factoring Whorlton Hall embarrassment into the situation, surely CQC and national leads cannot be blind to the facts about EQUALLY BAD things going on regarding the institutionalisation of supported living, all due to austerity and lack of legal literacy!?

Talk about registering the right support!! Why are not the majority of those tenanted settings properly seen as care homes, when these days it’s common for the care provider to have been persuaded to enter into a 25 year guarantee of voids and HB deficits with the housing provider, but will have been given the sole nomination rights to the tenancies in return? Have we not all gone MAD?

Why is that sort of a set-up not obviously the de facto provision of CARE TOGETHER WITH ACCOMMODATION, if the only way one gets the care is having a tenancy there, and the only way one gets that tenancy, is by accepting care from a provider in situ, alongside co-tenants that one has not ‘chosen’ – any more than one would ‘choose’ (as opposed to tolerate) patient to lie next to in a locked ward?

Why are providers assuming that they even have to offer shared care savings to commissioners, for looking after people in group houses? – (and why are commissioners daring to tender for providers on a block contract basis?) – when the Care Act makes it clear that pooling a personal budget is something that can only happen when and if clients consent? How’s that supposed to be happening then, in this particular sector, incapacity being as widespread as it is, albeit in an issue-specific sense?

In this particular Tribunal case, a Lifeways manager said she was concerned about the preference for supported living because of the lack of oversight and governance of the premises, where only the service is registered, and not the service within the particular premises. She was worried that this would create “mini institutions behind closed doors.”

Oh, so true, and if only parents of people in ATUs realised this fact of life!

It would have been interesting in the Lifeways case, we think to subject the Supported Living facility next door to a registration law driven scrutiny: had the tenancies been advertised on Spare Room? Did the people slotted in there have any choice? Would they be offered direct payments under the Care Act or s117 so that they could each choose a different provider? Would there be laminated signs up saying Staff ONLY on doors off of the communal areas in that building, do we think? Would people there have individual personal budgets or were larger and larger chunks of their day being given over to a block contract for more and more shared care, that isn’t even purportedly commissioned for Care Act or s117 MHA purposes?

Providers of supported living may be interested to know that there is no rule that no more than 6 people can live in a house, as sharers, and that the Housing Provider does not HAVE to be separate from the Care Provider. CQC rules very carefully say that the elements of the care and accommodation arrangements must be separate, the provision must be separate but not that the PROVIDERS must be separate. That is news to most providers of supported living, however, who are told otherwise by often poorly trained inspectors.

CQC LIKES to see a differentiation but cannot compel it. Separation of landlord and provider of care is not a necessary element of lawful unregistered provision but neither is it a sufficient for avoiding care home registration, if in fact either the way the tenancies are worded, or the way in which the arrangements actually WORK, amount to de facto integration and interdependency of the care together with the accommodation arrangements.

CQC does not seem to wish to engage with this issue in the context of what’s actually happening in the Supported Living sector … in our view, obviously, because it is government policy generally for people with LDs who were decanted from hospitals, and for Transforming Care targets, and because CQC is funded by central government.

It was CQC’s own predecessor (pre CSCI, ie the NCSC) who established the law about the meaning of care together with accommodation in the Alternative Futures case in the early 2000s …. taken together with the Andrew Moore judicial review of the Care Standards Tribunal’s decision at that time.

If people in ATUs, needing accommodation, can only depend on the grace and favour of tenancy nominations from social services, or from those providers who are being pressed to take lower and lower fees for the care, by macho commissioners, in which deals the providers can’t any longer hide the element for the voids guarantee because commissioning has become so budget driven, these luckless people may wait for ever to access this special type of setting.

Who else could offer these guarantees? Councils and CCGs could and did used to do this. They still can, under specific statutory powers; it’s even mentioned in Transforming Care guidance.

The illegality that we see all around is the fettering of the discretion to even consider it, and never any giving of reasons for NOT doing it – no balancing of all legally relevant considerations for the exercise of discretion – given the iniquity of the lifestyles of the clients at the sharp end, in NHS funded ATUs where the impact on the continuation of wellbeing and family life arising from the conditions and the culture, surely cannot be ignored.

The fact that a clinician in a hospital or ATU will say that ‘X is fit for discharge … IF there is a suitable place to live, but NOT if there is NOT, is the proof that the person’s aftercare purpose can’t be met without housing being PROVIDED. If X is going to have to sign their own tenancy, and only in a place where x is signposted to by the s117 team, that’s absolutely fine if they WANT to, but when they lack capacity to make that choice, there’s a duty to provide that can be managed through Deputyship and guarantees/grants from the State, on pain of the only other way being direct property purchase and placement with a prohibition on care TOGETHER with accommodation, to stay within CQC registration law.

We would be asking, in litigation, if we ever have to go that far – how can it be using ‘best endeavours’ not to make a grant/guarantee and say no to purchasing property, if that leaves a person in an ATU in the meantime?

We have no doubt that people in this business can make fabulous profits by taking the responsibility for caring for people who pose a risk to themselves and others. No s117 liable commissioners want the trouble and the duty of care in negligence law that comes from being a direct provider. So there is real business acumen in the position that ‘If we Build It, They Will Come’ – because once a facility exists, commissioners can’t say it doesn’t exist, and will find it harder to resist judicial review for not purchasing it.

We are not to be taken to be embracing profiteering: competition should be enough if the sector is knowledgeable about public law duties to provide for packages in a timely way to support hospital discharge, after all.

But those very same sorts of canny providers will be charging the council £13,000 per week for inhuman and unacceptable standards of care for private hospitals as well, because s3 Mental Health clients cannot be denied a bed if they need it.

What hope is there for integration if blinkers against realities such as this (let alone the HUMAN cost of delaying discharge for individuals and families), are allowed to stay ON?

We would remind readers that CHC, social care and s117 aftercare functions are duties, not discretions – and that the duties include provision of accommodation, even if at costs well above locally imposed rates, although not crazy prices, when necessary in a care planner’s competent professional judgment, to deliver on the statutory purpose of meeting ‘primary health need’, eligible unmet care and support needs, or aftercare needs, depending on the status of the client in question.

The institutional madness of NHS England and the local government sector’s stance that people must just molder on in hospital for want of housing – and that clever business people should be stopped through Registration Law and Policy from taking advantage of successive government’s policies that public bodies should be commissioners of services – and not direct providers, themselves – when the Bubb report on Transforming Care ITSELF relies on the private Real Estate Investment Trust sector to take a commercial opportunity by the horns and get into this sector, and when the RTRS policy itself says that the views of local commissioners need to be taken into account so that there is a match between supply and demand – is enough to make us all GASP at CASCAIDr.

The commissioner for Walsall Council in this case had been in discussions with Lifeways since 2015 in relation to the development of Springside. It was decided following conversations that instead of turning Springside into multiple supported living flats on the site, the area required accommodation for people with more complex support needs, particularly those looking to step down from hospital settings or who were at risk of being placed under section. He said that the proposed care home would offer an “integrated pathway” and a “journey” through the bungalows and independent flats “to supported living and independence” outside.

[Pretty much like a care village for the aspiring moneyed elderly purchaser, one might think, even though the nature of the tenure is very different!]

He said that “I am under pressure to get people out of hospital.” He said that he supported the policy of “do it once and do it right” but “we have to live in the real world.”  He thought the environment at the proposed care home was “welcoming and homely” and “the 10 bed model rather than a 6 bed model also enables some economies of scale.”

He said this – “I have put my head above the parapet to support this application … I didn’t realise it would take on a national importance.”

He also said “It could be perceived as a campus but I have to balance that with local need. We consider money and cost effectiveness and resources.”

He later reiterated that he supported the CQC and the national policy and guidance but “my concern is that I don’t have the luxury of seeing it that way…… I accept [Springside] is bigger than 6 beds and there is a risk. Ideally we would look at 6, but I had 12 to 15 people looking for places and I didn’t have other sites available, so I made an informed decision and looked at the risks.” He also said that he had “voids” in the supported living stock that he could not fill. It was possible to buy more houses but he had to consider the financial consequences.

The Tribunal said despite this input from the commissioner that there was inadequate evidence as to why there was a pressing need for the specific provision proposed and there was no adequate evidence of the lack availability of alternative provision that was in keeping with the national policy and guidance.

Many parents of people with Transforming Care patients waiting on a list that is not even being actively managed, would have begged to differ, we think, and been able to supply a picture of the never ending merry-go-round between housing providers, investors, HB officers and commissioners and care providers that they and their loved ones are put onto.

We think that legal literacy is the only way off of that merry-go-round, with clients willing to bring judicial review proceedings so that some of the assumptions being made are exposed. “There is nowhere suitable at the moment available” is the usual translation from the reality that

  • “There is nowhere suitable for this person to live, currently, where we’ve got a long term decent provider in charge, with any vacancy” or
  • “There is nowhere we can exert influence in relation to accessing a nomination” or
  • “There is nowhere for this person to live being run by the right kind of a housing provider such that HB can be got up to the necessary level to make the whole deal attractive and not turn on voids and HB guarantees
  • …which we just don’t DO any longer ‘because of austerity’ ….. (pregnant pause!).

CASCAIDr’s Litigation Strategy is looking for a case where the person in question will qualify for legal aid and their s117 team has refused to be drawn on just what sort of an open minded house-hunting trip they’ve actually been on before sending the social worker back to the Care and Treatment Review or discharge planning meeting to say ‘There’s nowhere out there right now’…

We do not think that a mental health Tribunal challenge is the right thing to do at all in that situation. We think that good old public law principles will put matters right a lot quicker, and illuminate the real meaning of the ‘best endeavours’ nature of the statutory duty in s117 Mental Health Act to plan and arrange for aftercare once fitness for discharge comes within a patient’s sights.

If a parent who is not afraid of victimisation or reprisals or abuse, who’s serious about using law to do good, would like to get in touch with us, we would like to hear from them, on belinda@cascaidr.org.uk

Read the First-tier Tribunal judgement findings in full

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Secretary of State for Work and Pensions v MM (Scotland) [2019]

This case concerned the application of one of the criteria for Personal Independence Payment: ‘Engaging with other people face to face’, a type of need that occurs most commonly amongst those with mental health needs and/or neurodevelopmental conditions (such as Autism).

The two central issues were:

(1) What “social support” means and how it differs from “prompting”

(2) Whether “social support” only covers help given during an interaction or whether help given in advance is also relevant.

The criterion is represented below.

Activity 9: Engaging with other people face to face

Descriptor 9b: Needs prompting to be able to engage with other people (2 points)

Descriptor 9c: Needs social support to be able to engage with other people (4 points)

The Decision of the Court

It is inherent to the structure of PIP that, broadly speaking, each descriptor reflects a greater degree of disability than the previous descriptor.

The Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”) Schedule 1 defines ‘social support’ as:

“support from a person trained or experienced in assisting people to engage in social situations

It was the training or experience required by the supporter rather than the nature of the support itself which differentiated ‘prompting’ in 9b from ‘social support’ in 9c. A need for support from any person (including a friend or family member) could qualify as ‘social support’, but only where it was necessary (rather than merely desirable) for the support to be provided by a person with relevant training or experience (rather than merely any person with whom the claimant was familiar or had a positive relationship) could it count for 9c purposes [paras. 33-35]. Thus the

“twin requirements of necessity and relevant training or experience” [para. 34]

differentiated between “social support” and “prompting”, even though

“the nature of the support provided might not differ between 9b and 9c” [para. 35].

(2) Lady Black dismissed the Secretary of State’s argument that only a need for support to be provided face to face during the engagement itself could satisfy a relevant descriptor. In her view, such a narrow construction of ‘support’ would

“stand in the way of other means of support which work for the particular claimant, and would also be likely to impede attempts to improve the claimant’s abilities to handle matters without support at all, or with diminished support.”

[para. 41]

She also pointed to the wide range of types of interaction included and identified that the physical presence of a supporter may be inappropriate and/or counter-productive in such sensitive situations as a medical examination or romantic encounter.

It was fundamental to the requirements for PIP eligibility that the claimant’s condition must be relatively long-term or permanent (lasting at least 12 months) and that each specific need must be present at least 50% of the time. The need itself must, therefore, be a continuing need (rather than a past need from which the claimant has recovered or is improving), however:

“There is nothing in the wording of descriptor 9c, or the definition of “social support”, to require actual presence of the supporter during the engagement, nor yet to require that the support is timed to coincide with the engagement, rather than being provided in advance, or indeed afterwards.” [para.43]

Comment

Lady Black resisted the temptation to specify in more detail the types, nature, timing or duration of support which would or would not be sufficient to meet a descriptor and decided that reading in a need for a temporal or causal link between the support and the engagement was incorrect. ‘Need’ was not a relative term. If only trained or experienced help would be sufficient for the claimant to be able to engage with other people face to face, then they would satisfy 9(c) “social support”. If any familiar, well-meaning but inexperienced support would do, then they would not (although 9(b) might still be satisfied). She concluded:

“Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe, in the abstract, which other forms of support will be sufficient. It will be a question of fact and degree, and is something that will have to be worked out on a case by case basis, by those with expertise in making assessments and decisions in relation to claims, keeping the wording of the provision firmly in mind.” [para. 46]

In practice, of course, short of their case being considered in detail by the Supreme Court, most claimants will have to take their chances as to the expertise and knowledge of the wording of the provision of the particular assessor and decision-maker assigned their claim. Nevertheless, this judgement should be of assistance (at least at FTT level) in clarifying that the support is needed by many individuals with relevant needs where it has perhaps been denied before.

Although this case originated in Scotland, this criterion is exactly the same in England.

Full text at: https://www.supremecourt.uk/cases/docs/uksc-2017-0215-judgment.pdf

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A considered riposte to the question posed by Peter Feldon “If unmet need is so rife, why are there so few complaints about it?”

Having taken some time off from managing the flood of referrals received weekly about dodgy practice in adults’ social work, to read Mr Feldon’s article, in Community Care, my jaw dropped.

It doesn’t feel as if nobody’s complaining, HERE!

However, on a more careful reading, it may just be that it’d been inappropriately edited with a title that didn’t QUITE fit the content.

Whatever the reason, though, I have some suggestions to make as to why there might well be fewer complaints than one would expect, given the current national outpouring about unmet need, the further delay to the Green Paper and examples everywhere of the funding crisis, now highlighted by Panorama’s 2 part TV documentary.

Mr Feldon cites the slew of articles and sources, referencing massive unmet need, and then says this:

            “Yet, very few people actually complain about decisions not to meet their needs where these do not meet the eligibility criteria.”

Unmet needs that do not meet the eligibility criteria are not needs that there’s a duty to meet anyway – they are a social problem, not a legal problem, and that’s always been the law. And it’s quite hard to assess someone as INeligible, if one is doing assessment properly, these days (and not just using a 3 conversations model!) – because the criteria are based in law and not mere Guidance, and the Guidance exhorts councils to read the criteria in an expansive and inclusive way.

However, for most people, the devil lies in the detail of the care plan; Mr Feldon went on to say this:

“However, there are a significant number of people who complain about their needs being under-met; this occurs when a person – judged to meet the eligibility criteria – believes their personal budget is insufficient to meet their needs.”

He cites 315 complaints made to the LGSCO where the investigation appeared in the ombudsman’s category of assessment and care planning. The yearly figures have gone down a bit from that level, since 2016, but say approximately 300 a year, in that category. There was ONE example out of 23 cases actually mentioning “unmet need”, where the decision was overturned regarding ineligibility of need. In the other cases, “The most frequent reason for needs being unmet was as a result of delays, most commonly in assessment/reassessment or putting in place elements of the care and support plan.” Delay in and of itself is usually explained in reasonable terms, and is not usually what lawyers would call unconscionable, but just unfortunate. Mr Feldon did not say whether these complaints had been successful or not but it would not be surprising if the LGSCO tended to give councils the benefit of the doubt in most cases of delay.

However, Mr Feldon went on to say –

There were nearly 300 upheld complaints in this three-year period that include reference to personal budgets and, of these, one of the main complaints was about reductions in the personal budget, resulting in some of the individual’s eligible needs not being met or being under-met.”

To my mind, that is one third of all social care complaints about assessment and care planning over three years, where the complaint was upheld that some eligible needs had not been met.

That is surely not a small proportion or a small tally, on any footing.

The case law says (and always has said) that unmet eligible need is unlawful. The LGSCO’s remit, however, is maladministration (now called ‘fault’), not legality.

Moreover, if something is alleged to be positively unlawful, the LGSCO may refuse jurisdiction altogether and refer the complainant to the court system – although the possibility of using legal proceedings is not conventionally regarded as feasible by the LGSCO for most people, in terms of financing them, or the relationship of dependency that may be affected for the worse.

So – our reasoning is that if the LGSCO regularly said that council conduct was in ‘breach’ of the Care Act, or ‘unlawful’, the LGSCO would be criticised for usurping the role of the courts, undermining the protections for councils (ie the need for formal permission for judicial review proceedings from the Administrative Court; the three month time limit; and the practical hurdle presented by the qualification requirements for legal aid funding) that are legitimately and lawfully enjoyed by social care departments.

These days the LGSCO reports use the euphemism ‘not in line with the Care Act’ – see for example the most recent successful complaint against Barking and Dagenham, where a catalogue of incompetence is set out, for all to wince at, because the behaviour regarding top-ups is so widespread.

Secondly, the LGSCO can’t proceed with a complaint without being satisfied that the complainant has given a chance to the council to resolve the matter. The ombudsman has conventionally expected a complaint to be made via the formal social services complaints service, but this is not what the law actually says.

Rather, the law requires that the matter has been brought to the attention of the council with an opportunity to investigate and respond, and there is another way of achieving this, which is using the Monitoring Officer remedy.

We mention this because Mr Feldon’s article does not explore how many first level complaints or referrals to the Monitoring Officer about unmet need may have been successful in the same period.

CASCAIDr has been using the MO remedy for over a year now – so all those cases should be added to the tally as well, where councils have shifted their position and seen the error of their ways – the ILLEGAL error of their ways.

In order to work out whether unmet need is defensible in a given case, or not, one needs to be well enough informed to be able to pinpoint the bit of the Care Act where the council has maybe gone wrong, in legal terms.

It’s not hard to do that, if you know how public law works (the law regulating the behaviour of public bodies). One simply needs to have recourse to the wording of the Care Act and Regulations to sort out the things that a council is legally OBLIGED to do from the things that the council MAY or should do – the latter are powers, and not obligations. It is by having done that exercise that CASCAIDr has produced a Care Act questionnaire with section numbers and case law included, for our own caseworkers to go through, with our clients. It provides a framework for the sort of probing of the facts, and the contents of the letter that must then be written, if one is going to access either the management review that one is entitled to expect in the case of a disputed care package or budget, (see para 10.86 of the guidance recommending this process and REASONS being stated, before a person should even be asked to complain) or the Monitoring Officer’s attention (no mention of that governance officer’s duty is even made in the Guidance!).

Whatever one thinks of the editing, however, there’s a problem in the content of Mr Feldon’s commentary, itself, in our view:  

“It is understandable that addressing unmet need per se is not at the forefront of complaints because there is no statutory definition of the term. In fact, there is no reference at all to individual unmet need in the Care Act and the accompanying Guidance. The legislation recognises that individuals will have care and support needs that are not eligible, which local authorities will mostly not meet, and these are described as ‘non-eligible needs’. There is a duty to explain the decision not to meet needs and provide information and advice to individuals to assist them in preventing, reducing and delaying needs that have been determined as non-eligible, and this must be done in writing. But there is no obligation to determine or record whether non-eligible needs are met or unmet.”

We have to disagree with Mr Feldon as to that analysis of the legal framework.

In public law terms, the requirement of identification of any needs for care and support, and then of the needs which are Care Act eligible needs, and then of the eligible needs that are going to be met by the council – means that any eligible needs that are NOT intended to be met will all be able to be derived from the process laid down in the statute by a process of elimination. If there is a good reason for not meeting eligible needs, then that is not unlawful, but if there is no such justification, its existence is unlawful. Simple, really, we think.

Here are some obviously valid legal reasons for not meeting eligible unmet need:

  • It is someone else’s duty although two agencies are empowered to provide the same sort of service. Eg health inputs when the person’s eligible needs are in fact enough to amount to the CHC construct of ‘primary health need’; housing needs when the person’s need for accommodation is not essentially associated with the practicability of delivering the care and support that is needed; education needs when the person needs the education in order to fulfil educational potential and not merely to access it as an aspect of wellbeing;
  • It is someone else’s choice to meet the need: eg an agency that is not bound to do so, but is willing – such as a CCG willing to make a health contribution to the council in recognition of needs at night being objectively health-related, or its funded input representing health-related deterioration prevention, or something like that;
  • Or, alternatively, the clear, capacitated choice, and most usually, the choice of a willing and able informal carer, or someone who wishes to contribute funding to meet the need, such as a charity, the ILF (when it existed) or the person themselves, or their finance deputy if they lack capacity. Anyone can of course, choose, still, to spend their own money or benefits on meeting their own needs, and may well appreciate that they or their loved one will get a whole lot more choice and control, if they do so;
  • The fact that the person is not ordinarily resident in the area;
  • The fact that the person has needs for a placement in a residential or nursing home and is above the financial threshold and not also lacking in mental capacity to contract for themselves (or if capacity is lacking, that person has nobody lawfully authorised and / or willing to arrange the necessary care for that person, in their own or anyone else’s contractual name).
  • The fact that the person in question, having heard what they might be able to be provided with, says ‘Thanks, but er, no thanks’.

That legal analysis is derived from the fact that s13 of the Act says this must be done, after an eligibility decision is taken: 

(1) Where a local authority is satisfied on the basis of a needs or carer’s assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).

(2) Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.

(3) Where at least some of an adult’s needs for care and support meet the eligibility criteria, the local authority must—

(a) consider what could be done to meet those needs that do,

(b) ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and

(c) establish whether the adult is ordinarily resident in the local authority’s area.

This has been the law since 1995, when the 1990 legislation was first interpreted in the Gloucestershire case to turn on the council sector’s judgment as to

  • what sort of situation necessitated (under the CSDPA 1970) or ‘called for’ (under the 1990 Act) any council to meet needs determined to be eligible;
  • what constituted a rational and lawful approach to the concept of eligibility
  • what constituted a lawful approach to allowing resources difficulties to move the line (when councils could themselves MOVE that line, locally),
  • how MUCH of a service to provide to meet needs – a decision that must be based on a competent lawful judgement in the first place, not driven by a departmental limited budget.

This sort of writing was available then to anyone with the internet: (I know because I wrote it!)

“In Gloucestershire, ‘unmet need’ finally received judicial attention.  It need no longer be a matter for anxiety, for fear that acknowledging a need creates absolute liability to provide for it, such that unmet need is necessarily unlawful.  Unmet “human” need may now be openly acknowledged to arise, in fact, but it will now be unlawful in only one situation.  Unmet need outside the eligibility criteria will exist lawfully within what is contemplated by statute.  It is only if a need has been acknowledged, as such, and the authority has also acknowledged that it must intervene to provide something, but then run out of money, or otherwise failed to meet need appropriately, that the need will be ‘unmet’ in both human and in legal terms, and also unlawful. 

If this clarification encourages recording of actual unmet need, then the planning process will eventually benefit. The whole idea of recording unmet human need is to encourage service responsiveness and strategic planning for the future.”

It’s true that a lot of effort is made these days by councils to avoid even identifying that need may not really be thought of as met by what is being offered, and even more so, where the need has been deemed to be eligible. Here are some examples of how they try to get away with that:

  • Councils don’t assess needs, or eligibility, in terms of services into which the client will then be squished, just because they’ve been bought by the council in advance, any longer (in theory, at least but try telling that to a commissioner of respite or reablement services that are going spare!): the Guidance tells them not to, but this makes it even easier to be vague about the amount of any particular service that is actually regarded as needed to meet the need;
  • Councils don’t specify inputs as much as they used to in care plans, because sector leaders and think-tanks have told them that outcomes-based specification is much better for ‘flexibility’ and person-centredness. It’s true, but it also enables fudging by providers and commissioners, and reduction of one-to-one hours and other expensive elements of a package without the outcome of ‘a happy safe client’ actually being noticeably lacking – if they’re photographed on a good day, for the review!
  • Councils don’t like to record any view as to how many HOURS of need, their weekly rate is actually supposed to cover, for live-in care clients, Shared Lives clients, or for an individual in supported living or under a block contract arrangement.
  • Councils don’t evidence their reasons for setting the rate for DP clients to employ their PAs at (the law says it must be sufficient to reflect the local market and half of Europe has gone home, so it can only be going up, logically?). The guidance says it must reflect appropriate quality provision as well!
  • Councils allow providers to put unregulated workers onto tasks that have been subtly re-worded so as to avoid even counting as ‘personal care’ tasks for regulated workers only (eg by changing ‘prompting together with supervision’ in a contract or a plan, to prompting … and prompting and er, just prompting….) so even if the company is still CQC registered, many of its staff are not regulated and so are cheaper to employ.

The legal truth is that anyone who knows what they’re doing with the law can FORCE a council to acknowledge unmet eligible need. When one factors in the CP v NE Lincs case it’s even easier. That case assured all informal unpaid carers that they can actually expect the bit that they are going to carry on doing, to be recorded in the s25 Care Plan, so that the personal budget being offered, inclusive of their charging contribution, can actually be seen to cover all the rest of whatever has been identified as eligible! Or more often these days, NOT to cover the rest, rationally and feasibly adequately!

“…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 … would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected.” 

Councils have been trying out prioritisation for years, out of desperation or sheer ignorant collusion with an ideology of austerity, regardless of the rule of law, and leaving it unclear as to when a priority is so low that it won’t ever be met. Here’s an example from Community Care’s back catalogue in this vein:

            “The terms of reference for Derby council’s resource panel revealed a prioritisation system is in place “to target available resources at those in the greatest need”. The system has three categories, with the lowest priority being people in the community who require a “personal budget to develop their independence, confidence and community inclusion”. The document states that the available budget will be “allocated according to these priorities” and where the budget is not available, “some requests may be held in date order and reviewed on a regular basis to consider the risks” in delaying the start of support.”

The lawyer’s comment on that at the time was this:

“It is not unlawful to use a prioritisation approach, however the wording of the policy suggests that in cases where the budget is not available, eligible needs are potentially being left unmet.”

To be clear: waiting lists within reason and when lawfully ordered, are not ever going to be easy to prove to be unlawful in public law terms – even where there is a duty to meet need – because there is also a reasonable time allowed for discharging any legal duty. So the context, the urgency and the impact of leaving the need unmet for even a short while are all necessarily relevant considerations for professional judgement, and these really pressing cases are resolved as soon as one sends a letter to the Monitoring Officer in councils where senior management has preserved any notion of ethics. It has never been legal to downgrade a duty to a discretion by treating financial difficulties as an excuse for not discharging the duty, say, unless or simply until it suits the authority better. This was established in 1997 in the Sefton case, and in the South Lanarkshire case in Scotland in 2002, where the duty to place people in residential care was emphasised to be a duty, regardless of available resources.

So it is all there, for those who want to fight back.

A third factor in complaints being low, though, is this. Faced with a county-wide ‘blanket’ cut to service levels or funds, or a ‘Take It or Leave It’ approach to indicative budgets – one would need to get over all the natural tendencies that vulnerable and dependent people invariably struggle with – eg fear of loss of current funding, or hostilities, given the power balance is hugely uneven; suspicion or even paranoia and absolute certainty that it will only go badly for them if they raise their heads above the parapet to challenge what has been done; even resigned stoicism if they read the newspapers and see it’s happening everywhere, but don’t actually know that a council is not allowed to use its budget position as a reason for not discharging the statutory duty, and that there is a LINE, under which a council cannot go, just because it is hard up!

The identification of that line, we do absolutely grant Mr Feldon, is a matter for the courts, not the ombudsman, who concentrates on poor process rather than the sufficiency or unreasonableness of the outcome – but when the process is set out in statute and regulations, and councils ignore the law, or the outcome is so choke-worthy as to suggest that no rational decision- maker could have arrived at it, if they understood how the interpretation and governance of law works, the LGSCO really has no option but to castigate authorities for maladministration – or what is now called ‘fault’. Those thinking of going to that organisation, should take heart from the statistics, and not delay.

Those natural tendencies – all deterrents to saying to a social worker’s manager, in writing: ‘Do you really mean that? That’s what’s supposed to meet my needs, then, is it?’ led us to set up CASCAIDr. Someone has to point out that all this is wrong: not just a little bit wrong, but the very antithesis of social work professionalism and values. Those values should not be able to be destroyed by austerity; they should have been able to survive councils being squeezed by central governments – of any political persuasion. In fact the profession has allowed the value of the social care safety net to be diluted by ignoring the legal truth that care planning MUST be individuated and needs-led and turn upon professional judgment, not managerial edict. If sector leaders had pointed that out to government, the Care Act might not have been passed into law in its current form, but it was, thankfully.

However, instead of delivering on its promise, its open-textured references to discretion and sufficiency and transparency have been exploited to the maximum; the discomfiture should be that some Adults Services Directors and Monitoring Officers have been very well paid for participating in that systemic dilution, whilst their employing councils still owe statutory duties to the public, of which their elected Members may be blissfully unaware.  

Our conclusion is that whilst one can lead horses to water (make legal literacy more accessible) one cannot make them drink (ie use law to enforce their rights) if the poor horse is afraid of the gate (ie of the social worker, care manager or Panel) or can’t see what’s over the other side (concerns about conflict, victimisation, etc), or is worried about whether a shoe will come off (withdrawal of the current offering) or has a rider (advocates? brokers? family member?) who just doesn’t know how to get the best out of the track (the Care Act ‘customer journey’) or the horse itself (the service user’s own views and comments).

Belinda Schwehr

CASCAIDr

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Analysis of concerns of Human Rights Watch – with CASCAIDr comments on top

Unmet Needs: Improper Social Care Assessments for Older People in England 

Headline report conclusions

“Older people in England are at risk of not getting adequate assistance to live independent, dignified lives due to uneven assessments for social services.”

Some said that assessors appeared not even to understand their disabilities and support needs. In other cases, before beginning an assessment, assessors announced that services would be cut, regardless of an individual’s actual need.

And in some cases services were denied or cut significantly, affecting older people’s health and wellbeing.

CASCAIDr’s comment: seeing these as indications of ‘improper’ assessments is an interesting approach, when any of the above are potentially unlawful assessments, in terms of current and perfectly clear public law and care law principles!

Methodology
Human Rights Watch (HRW) spoke with 27 older people and 20 family carers in 11 LAs: Tower Hamlets, Cumbria, Bournemouth, North Yorkshire, Hertfordshire, South Derbyshire, Essex, Barking and Dagenham, Salford, Dorset, and Surrey.

HRW also interviewed 51 representatives of charities, as well as lawyers, service providers, academics, policy experts, staff from the NHS, CCGs and current and former LA staff.

They also conducted group interviews arranged by partner organisations in supported housing accommodations and community centres in East London, Bournemouth and Poole.

HRW sent letters to the 11 LAs, the DHSC and the MHCLG requesting answers to questions related to the findings. Only three LAs responded: Dorset CC, North Yorkshire CC, and the LB of Barking & Dagenham (see Annex 1 to the report). The other LAs and the ministries did not respond.

Problems with Social Care Assessments

The report contains excerpts of some of the interviews conducted, including the headline quote:
‘[They] just came in with an agenda of cutting my 15 hours per week to 6.5. They announced it. They told me ‘We are not there to give you more, but we are going to cut it.’ They had worked out that that was what I needed [before they arrived].’

Other interviews highlighted what family members saw as unrepresentative assessments, and the difficulty they had experienced in appealing against them.

CASCAIDr’s comment: The idea that one can actually achieve more savings by having staff prepare the clients for the worst, when so doing itself suggest widespread and ‘corporate’ fettering of assessment and care planning judgement, from above, should be a matter of shame for the sector, and it IS of legal significance in public law terms.

Suspension of Services During Appeals

This section details how some people lost services once they had filed an appeal, how the Care Act is silent on the suspensive effect of an appeal, how two LAs stated they have the discretion to maintain services pending appeals, and how the DHSC is currently developing a process for streamlining appeals, to be introduced by April 2020.

CASCAIDr’s comment: Any social care lawyer could have told them that the fact of a complaint or a dispute is no defence to the duty to meet assessed eligible unmet needs.


Lack of External Oversight of Social Care Assessments


This section sets out how there is currently a lack of sufficient oversight and monitoring of assessments to ensure consistent accuracy and objectivity. Three LAs (as above) responded to HRW’s enquiries on monitoring needs assessments and indicated processes for reviewing social care needs assessments are conducted within each council’s own structures, and they were not aware of any systematic independent monitoring or monitoring of assessments by the central government.

CASCAIDr’s comment: There is none, and it is not an accident. There is only the Monitoring Officer’s role, largely unheard of by those who should know about it, judicial review, which usually needs a lawyer and legal aid and the capacity of the law firm to handle the work – OR paragraph 10.86 of the Guidance which requires a proper management review before giving upon securing agreement and just saying ‘Complain or bring legal proceedings if you don’t like it.’ No wonder it’s taking ages to incorporate adult social care into the tribunal system in this country. It would cause mayhem!

International Legal Standards

The report refers to The Right to Health and to Family and Private Life and The Right to Live Independently in the Community. It includes a reference to the UN Committee on the Rights of Persons with Disabilities review of the UK in October 2017.

CASCAIDr’s comment: Brexit Fever and widespread disdain for the ECJ and ECtHR’s influence on our legal system does not bode well for any further incorporation of THOSE principles into domestic law, do they? Just try contending that you should be funded at home, when a care home is cheaper, without referring to human rights, is all we can say, to all those who see no point in the Convention or the UK’s own Human Rights Act.

Report recommendations (in full):

To the UK’s Government

• Ensure that older people have access to the services they need to realize their rights to live independently in their communities with their rights to health and private and family life protected.

• Establish a mechanism to monitor and evaluate social care needs assessments and the staff who conduct them to ensure consistency and equality nationally.

• Ratify the Council of Europe’s Revised European Social Charter.

To the UK Parliament

• The Health and Social Care Committee and the Housing, Communities and Local Government Committee of the House of Commons should examine the impact of austerity measures on local authority social care provision under the Care Act 2014.

To the Ministry of Housing, Communities and Local Government

• Review successful appeals against initial social care needs assessments and collect data about the reasons assessments were identified as problematic; data should consider the age, gender, ethnicity, location, and place of residence of those assessed as well as the types of shortcomings in initial assessments; use this information to make corrections and improvements in the system with a goal of ensuring provision of services to which people are entitled and reducing the number of times individuals must appeal in order to secure social care services.

• Direct local authorities to establish and document clearly the specific reasons to justify services being safely reduced or eliminated pending an individual’s appeal of an initial social care assessment and in all cases to strongly consider continuation of services pending appeals.

To the Department of Health and Social Care

• Include, in the reform of social care appeals processes planned for 2020, the suspensive effect of appeals.

• Execute a plan for the long-term stability and sustainability of the social care system in England to ensure that the human rights of older people are fully respected.

To Local Government authorities

• Ensure the accuracy of needs assessments, including when there are not enough resources locally to meet those needs.

• Document clearly the specific reasons to justify services being safely reduced or eliminated pending an individual’s appeal of an initial social care assessment and in all cases to strongly consider continuation of services pending appeals.

• Ensure that individuals are fully informed of their rights and available options to appeal social care assessment decisions and provide reasonable accommodations to individuals who may require assistance in the appeals process.

CASCAIDr’s comment: does anyone reading this catalogue of woes have any doubts as to the need for this charity, or wonder why we set it up?  

Please donate to our cause, if you see the point of legal rights, here!

Public law principles make all of the above essentials  for good  governance and legality.

They should already by embedded, after 20 years of community care judicial reviews, in the hearts and minds of those supposed to be leading the sector forwards – not back!


Based on a summary written by Adam Webb, and used with permission – thanks Adam

mradamwebb@gmail.com

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