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Want to find out how to get your Direct Payment rate put up every year?

or get your customers’ direct payments put up, so that you can implement a fee increase?

We’re launching a public information drive to improve the value of Direct Payments for adults’ social services (care and support) clients, by teaching people how to get the council to put the rate up.

Direct Payments have spiked in poplularity, and dropped off now, partly because the pandemic has changed the labour market, beyond all recognition. Many people have found they can’t attract a PA for the rate they’ve accepted from the council. And small businesses, providing care and support, having been excluded from the council’s radically cut-back numbers of commissioned providers, have embraced direct payments, too, but then found that nobody puts the rate up for the clients they’re supporting. It’s common to find that Direct Payment rates haven’t gone up for 5 years, and that people are going without care, skimping to stretch an obviously insufficient rate, over fewer hours per week, in order to keep great staff, or a great provider – but without knowing what to DO about it.

Councils don’t have to ration care if they can only get the clients to do it for themselves! Something to think about, eh?

That needs to change. CASCAIDr is determined to make the law MEAN something to people who have become their own commissioners, so that the vision of personalised and person-centred plans for meeting peoples’ needs can still be achieved.

Direct Payments are derived from Personal Budgets. Under the Care Act, Personal Budgets must be sufficient, transparent and timely, in order to be lawful. Who sets the rate? The MARKET sets the rate…. the labour market, that is, in people willing to work as PAs for a given salary, without an agency as an employer.

Sorting out one’s increase OUGHT to be a matter of a council officer just pressing the ‘Computer says Yes’ button, when the council is persuaded to address the evidence that the rate provided is no longer even defensibly ‘sufficient’. The law says that they can’t just reject the request with any of the following one-liners:

a) Clients can always top up the rate, in order to stay with their preferred provider/employee

b) WE set the salary rate for PAs for all our direct payment clients – it’s Take it or Leave it, I’m afraid.

c) Maybe you should cut down the hours a bit to make the budget work – if you ask for a review, there’ll be a cut!

c) You simply can’t HAVE a direct payment if you think you need more than it would cost US to meet your needs….

We’re inviting people to get some training on care law and direct payments and how to challenge councils’ decisions about the sufficiency of direct payment rates – from CASCAIDr’s Belinda Schwehr.

The course consists of 4 sessions, online, 2 hours each, making 8 in all – on 14/21 June and 5/19 July 2022– with examples and template letters included. That’s 4 Tuesday evenings, 7-9pm, avoiding Easter and Bank Holiday weeks and the start of the summer holidays. Certificates for those who pass an online multi-choice follow-up exercise.

The cost is £50 per person and £200 if you are a provider organisation, for one member of staff. You can pay via card or Paypal – and an organisation or a peer support group can pay for you.

Here’s some feedback about this offer, from a student currently attending CASCAIDr’s Legal Framework course, (nb running again in September 2022):

…this is incredibly good value. We’ve seen the depth you go into for what I thought would be a ‘light touch’ overview course, so I’d expect this new project would be the campaign equivalent of a scud missile….

In these days of ‘free’ briefings that often turn out to be just more marketing, here’s the incentive to pay for this in-depth sort of education and supervised broadening of knowledge and skills.

CASCAIDr will offer a contract for services to anyone who graduates from this course who would like to try an advice role for the organisation, under supervision, to do real cases for proper money,

This means that you have an incentive to study hard; you get to practise the skills you’ve learned, and you can apply the knowledge acquired, ultimately, for a very small fee indeed.

If you find you like helping people in this way, you can continue formally, afterwards, and earn money from us, on a part-time contractor basis, to suit your own availability, or just use the skill and knowledge, to further your own career.

AND whether or not you take up that opportunity for the future, you keep the knowledge and the materials, in order to spread the word around your own community.

Applying for the course:

We want to ensure the places are put to best use, and we can’t afford to make this course merely a matter of paying, and then just hoping that the session recordings make sense to you, and spreading the materials around the country.

The course is bound to be popular and there are limited spaces available, so that we can be sure to have time for people’s questions in the sessions.

We’re interested in your experience of studying serious stuff, and whether your current commitments (personal or professional), make your full and active participation on this course a realistic prospect (even if say, one of the Tuesday evening dates doesn’t suit your calendar).

So, in order to apply for this course, please just email us on pamelahoyer@cascaidr.org.uk explaining how you think that you will be able to use the skills you learn from the course and how you will demonstrate the attention to detail and the judgement required, to make this campaign work. Mark your application email Direct Payment Course Application, please.

Please try to tell us about all of that information we’ve mentioned above, and 

  • the highest level at which you’ve previously studied e.g. school (GCSEs/A levels), Further Education or Higher Education (a degree). 
  • what you think of your own comprehension of written material, your self-directed study skills, your writing skills and your judgement.
  • whether you have a disability or a condition that would require reasonable adjustments in the delivery of the course, as we want to include as many people with lived experience of paying for their care services, as possible.

Lastly, if you can’t afford the course, upfront, then do email us to ask for a CASCAIDr Hardship Funded Place, please, to pamelahoyer@cascaidr.org.uk

Do you want to learn how to challenge Disability Related Expenditure (DRE) decisions?

Do you want to learn more about charging law – and actually apply it to real people’s charges, under supervision?

We’re launching a campaign to improve the Disability Related Expenditure part of councils’ care charging policies, nationwide … and get some money back for hundreds of people, in the meantime.

Charging law is changing, and councils will be getting ready for the introduction of the care costs cap, and the first increase in the Minimum Income Guarantee allowed before charges, for years.

Charging Policies all have a Disability Related Expenditure disregard section.

Asserting DRE, properly, means that a social care budget or package can end up being far better value for people in need. Some councils allow nothing – not without receipts and strenuous effort, that is – whilst others allow £40 off of your DLA or PIP, as standard!

We’re inviting people to get some training on charging law and how to challenge DRE policies and individual decisions, from CASCAIDr’s Belinda Schwehr.

Unusually, the course comes together with some optional practical, mutually beneficial working practice – and the chance to be repaid most of the Course Fee back, whilst improving your skills and confidence. 

CASCAIDr has a guaranteed supply of clients who need support to get their Financial Assessments reviewed for DRE purposes, and this cohort of people’s cases will provide actual experience of applying what you’ve learned, before you do it for your own family, friends, or your service’s appointeeship clients.

The course consists of 4 sessions, online, 2 hours each – on 26 April / 10 and 17 May / 7 June 2022 – with examples and template letters included. Tuesday evenings, 7-9pm, avoiding Easter and Bank Holiday weeks. 8 hours in all. Certificates for those who pass an online multi-choice follow-up exercise.

It costs £100 per person – and you can pay via card or Paypal – and an organisation or a peer support group can pay for you.

Here’s some feedback about this offer, from a student currently attending CASCAIDr’s Legal Framework course, (nb running again in September 2022):

…this is incredibly good value. We’ve seen the depth you go into for what I thought would be a ‘light touch’ overview course, so I’d expect this new project would be the campaign equivalent of a scud missile….

In these days of ‘free’ briefings that often turn out to be just more marketing, here’s the incentive to pay for this in-depth sort of education and supervised skills-based practise:

CASCAIDr will give you £75 of the fee back, in £15 chunks, each time anyone who passes our follow-up online exercise after the course, processes a DRE review for a person whose charges we need to challenge (up to 5 cases per person) – under supervision.

This means that you have an incentive to study hard; you get to practise the skills you’ve learned, and you can apply the knowledge acquired, ultimately, for a very small fee indeed.

You will be a volunteer if you choose to go on to do that for us, and covered by our insurance. We’ll be choosing to give you the money back because of your proving to us that you’ve actually learned something, so the reimbursement will not be a payment for services.

If you find you like helping people in this way, you can continue formally, afterwards, and earn money from us, on a contractor basis, or just use the skill and knowledge, to further your own career.

AND whether or not you take up that reimbursement option, you keep the knowledge and the materials, in order to spread the word around your own community.

Applying for the course:

We want to ensure the places are put to best use, and we can’t afford to make this course merely a matter of paying, and then just hoping that the session recordings make sense to you, and spreading the materials around the country.

The course is bound to be popular and there are limited spaces available, so that we can be sure to have time for people’s questions in the sessions.

We’re interested in your experience of studying serious stuff, and whether your current commitments (personal or professional), make your full and active participation on this course a realistic prospect (even if say, one of the Tuesday evening dates doesn’t suit your calendar).

So, in order to apply for this course, please just email us on pamelahoyer@cascaidr.org.uk explaining how you think that you will be able to use the skills you learn from the course and how you will demonstrate the attention to detail and the judgement required, to make this campaign work.

Please try to tell us about all of that, and 

  • the highest level at which you’ve previously studied e.g. school (GCSEs/A levels), Further Education or Higher Education (a degree). 
  • what you think of your own comprehension of written material, your self-directed study skills, your writing skills and your judgement.
  • whether you have a disability or a condition that would require reasonable adjustments in the delivery of the course, as we want to include as many people with lived experience of paying for their care services, as possible.

Lastly, if you can’t afford the course, upfront, but think you can confidently promise to do 5 cases to a reasonable standard, after full participation on the course, then do email us to ask for a CASCAIDr Hardship Funded Place, please, to pamelahoyer@cascaidr.org.uk

Here’s a shocking bit of ignorance, or worse, in the DHSC’s ‘Guidance’ for implementation of the Care Costs Cap:

“1.21 As set out in the Act, the local authority must consider whether the person’s needs are being met in whole or in part by an informal carer. Care needs met by a carer, as defined by section 10 of part one of the Act, are not eligible care needs, and therefore do not count towards the cap.”

2.32 There will be some people who choose to have their needs met by an informal carer. Any needs met by an informal carer are not eligible needs under the Act. Therefore, if the local authority finds the person substituted meeting their needs with informal care whilst continuing to progress towards the cap the local authority should complete a new needs assessment to revaluate what eligible care needs the person has and provide a new IPB for the person reflecting this.

These two paragraphs should lead to someone’s dismissal, for incompetence, or worse, in legal terms, in our view.

The relevant part of the current Care Act Guidance makes it clear that whatever anyone does informally (unpaid) must be IGNORED for the purposes of deciding eligibility – ie that the needs that are met by carers ARE ELIGIBLE NEEDS – but that the duty to meet those eligible needs is not applicable, in respect of continued willing and able input from that carer.

See here:

Considering needs met by carers in eligibility determinations

6.115 The eligibility determination must be made based on the adult’s needs and how these impact on their wellbeing. Authorities must only take consideration of whether the adult has a carer, or what needs may be met by a carer after the eligibility determination when a care and support plan is prepared. The determination must be based solely on the adult’s needs and if an adult does have a carer, the care they are providing will be taken into account when considering whether the needs must be met. Local authorities are not required to meet any eligible needs which are being met by a carer, but those needs should be recognised and recorded as eligible during the assessment process. 

Commentary

Did the authors think nobody reads anything, any longer?

This bodes badly, does it not, for the grasp or honesty of those responsible for shaping the implementation of what are seismic changes for 2023? We despair.

People with above average assessed capital will need to be found eligible by their council, in order to have a notional spend on a supposedly adequate care package for their needs, counted towards the cap.

So, to our minds, this Guidance has either been written in the above terms because the authors are ignorant, or more likely because they hope that the families of the better off in England will not ‘twig’ that they just need to say that they aren’t willing to provide care, to make their Independent Personal Budgets bigger.

As do we all. There will be obviously be insufficient staff to do the number of assessments that are necessary and self-assessment for those who admit that they have over £100K of capital will be the norm.

Staff will not exist to police whether or not non-availability of informal care is the truth, and therefore the system will not work.

People needing care will have been incentivised to lie, rather than they and their carers having a proper discussion about how needs could be met and how the notional budget for the IPB will be calculated, with a person who knows the legal framework under which they operate.

And a Conservative government will have presided over that slide into anarchy.

CASCAIDr 2022 Update – February 1st 2022

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

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

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

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

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

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

We evidence relevant demonstrable legal expertise and feedback here:

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

Our experience as a young organisation

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

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

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

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

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

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

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

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

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

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

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

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

Covid-19’s impact on CASCAIDr

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

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

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

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

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

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

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

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

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

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

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

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

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

Our strengths

We cover all client groups/disabling conditions;

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

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

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

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

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

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

Looking ahead in 2022

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

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

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

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

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

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

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

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

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

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

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

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

Suggested letter for your MP if your council has been forced to ‘ration’ care …

….. to less than is thought professionally to be appropriate or needed

– and explaining why Covid Easements need to be re-introduced to authorise “rationing” under the Care Act, unless the DHSC is resigned to people suing councils for restitution (money spent by others or for work done in lieu) or complaining about harm.

We suggest you copy this letter to your own MP, maybe missing out the sentence about Jeremy Hunt’s own responsibility for austerity, and the destruction of adult social services and care – which has been more to do with the Treasury, than any other department…

To Jeremy Hunt, my MP:

I expect you will have been made aware of this – https://lnkd.in/efvYMWqF

It is the source of the story that BBC1 covered last week that 49 councils have imposed special measures on themselves to ration care services to an extent that is less than professional staff think is actually needed, because of the workforce crisis and lack of care to put in under the Care Act.

I am hoping that as my MP you will ask a question in the House as to what the DHSC and the Secretary of State intend to do about that?

Under the Care Act, the duty owed is to meet eligible unmet need.

The law is that councils can PROVIDE even if they can’t manage to purchase care. The councils are thus in breach of duty.

The government could (MUST, I would say) re-introduce Coronavirus Act Easements (they expired last year) or offer an unqualified indemnity for the council sector for harm, injury or premature death of people not provided with their right to care (as the government did for the NHS at the start of the pandemic).

Or they could be asked if they accept that it’s related to 15 years of national policy regarding austerity, Brexit, not appreciating unpaid carers, etc. (forgive me for referring to a time when you were in charge of that policy; I appreciate that you have already changed your own position).

Or they could be given a convenient platform to say that people’s families need to step up, never mind that for that, one may as well read women… because they’re good at multi-tasking and somehow pretend to do their jobs, be parents AND volunteers in the community. 

The argument is that there is no care to be bought, regardless of the money, of course. But that’s not a conclusion that faith in the market, the bedrock of Conservatism, would normally lead to, is it?

The market might not pivot overnight, if restaurants and shops have given people golden hellos for 3 months work – but it would do so, pretty soon, if care work was properly paid and regarded.

Leaving councils in breach of statutory duty without Easements, means that they are all judicially reviewable and liable for restitution for money spent by others in lieu of the council, so not funding social care needs doesn’t even SAVE MONEY!! 

If that doesn’t matter to government, what is the point of the Health and Care Bill providing for CQC to ‘regulate’ social services authorities, and for powers of intervention and direction from a Secretary of State, I wonder?

Saying nothing effectively conveys the message that it’s nothing to DO with government, underlining that legal rights to care aren’t actually enforceable, despite judicial review, the legal aid rules, human rights and equalities legislation, all passed by Parliament, but underfunded by the Treasury.

If this shocking state of affairs isn’t an election issue, (or a leadership issue internally) for a party that goes on about sovereignty and the rule of law, I don’t know what is, frankly.

Yours faithfully

[Your name, with the address to show that you are the MP’s constituent]

Bradford Council not at fault for reducing a care package

Decision Date: 24th November 2020

What Happened

Mr and Mrs X complained on behalf of their daughter, Ms Y. 

Ms Y had been in receipt of care for many years. After the Independent Living Fund was ended in 2015, the Council took over funding and provision of care. 

There is no detail as to whether the care was cut between 2015 and 2019, please note, as has happened in most councils where ILF had provided the first slice of the funding for care and the council had topped up the unmet need.

Ms Y lived with her parents, and had been employing her relative, Mr Z, as her main carer through direct payments. 

Mr Z provided care for Ms Y during the day and provided three nights a week paid respite care where Ms Y would stay at his house. She also attended a supported work placement three days a week. 

In March 2019 the Council undertook a Care Act review of Ms Y’s needs. A social worker met with Ms Y, Mr and Mrs X and Mr Z. They considered evidence provided from Ms Y’s GP and staff from the support placement. 

The social worker completed a care and support plan: 

  • It reduced Mr Z’s paid hours from 43.5 to 40 per week. 
  • It reduced the respite care from 3 nights to once per week. 
  • It removed the transport service to and from the placement but advised that Ms Y should qualify for a mobility vehicle or allowance.

This came into effect in July 2019 after notice was given of the change, and nobody contested the plan at the time; the parents agreed the assessment was a proper reflection of the daughter’s needs. 

Mrs X told the social worker at the review a month later that Ms Y had been unhappy since the changes.  Ms Y’s manager at the placement confirmed that Ms Y’s behavioural routines had become increasingly obsessive and distressed. 

The Council held a review meeting in September, where Mr and Mrs X told them clearly that Ms Y was not coping with the changes. They asked the Council to reinstate the previous level of care. 

The Council recommended that Mr and Mrs X refer Ms Y to the local NHS community team for help adjusting to the changes. 

Mr and Mrs X complained to their MP about the reduction of care provision. The Council replied stating that their actions were in line with the Care Act 2014. 

Ms Y’s GP then wrote to the Council stating that since changes to her support, Ms Y’s behaviour was deteriorating. 

Mr and Mrs X agreed to the NHS community team referral in December 2019. The team however decided that Ms Y did not have an unmet health need that required their specialist input and referred her back to the Council and GP. 

In January 2020 the Council reviewed Ms Y’s care plan again, where her parents reiterated that her behaviour had deteriorated since the reduction of care. 

The Council considered Mr and Mrs X’s views, the letter from Ms Y’s GP, the decision letter from the NHS team and feedback from Ms Y’s work placement. It decided the current care and support plan met Ms Y’s assessed needs.

Mr and Mrs X remained unhappy and complained to the LGO. 

What was found

The LGO found that the Council were not at fault. It stated that when the Council reviewed the care and support plan in September 2019, it appropriately considered all the relevant information and decided the care and support plan met her needs adequately. 

As the LGO found no fault in how the Council reached its decision, it could not question what that decision was. 

When the Council completed a further review in January 2020, it considered all appropriate information: from Ms Y’s relatives, the GP, the NHS team and Ms Y’s work placement. The Council also met with Mr and Mrs X to discuss their concerns. Although Mr and Mrs X disagreed with the decision, there was no fault in how it was reached. 

Points to note for Councils, professionals, people using services and their carers, advocacy providers, members of the public

When care and support planning and reviewing, Councils have to ensure that the personal budget is defensibly sufficient to meet the eligible needs of the person. 

This Council followed the right process, which resulted in a decision that the individual’s budget ought to be reduced. This can be lawful, but only if the evidence is properly addressed. 

Councils form their own view of how much to allocate the person within a personal budget but must ensure that this is through what’s known as ‘defensible decision-making’. It has to be rational, based on evidence, and with any countervailing considerations addressed rationally.

Councils must of course listen to the needs and wishes of the person, but caselaw (Merton) has identified that whilst the Council must take them into account they are not an overriding factor. The LGO found that the Council did take the right approach to this assessment, by taking into account a number of factors that resulted in an evidence-based and defensible decision. 

The Care and Support statutory guidance provides good detail on reviews and states the following at paragraph 13.4:

13.4 The review will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment. It should also identify other circumstances which may have changed, and follow safeguarding principles in ensuring that the person is not at risk of abuse or neglect. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget.

Using reviews to reduce budgets is a widely heard of activity. We know that this does happen, where a Council may go into a review already having decided it wants to reduce a resource commitment. However, this is open to challenge and should be challenged. Where there is a genuine change in circumstances of a relevant kind, Councils can be justified in reducing the allocation of personal budget for the person, and s.27(4) Care Act 2014 says this:

(4) Where a local authority is satisfied that circumstances have changed in a way that affects a care and support plan or a support plan, the authority must—

(a) to the extent it thinks appropriate, carry out a needs or carer’s assessment, carry out a financial assessment and make a determination under section 13(1), and

(b) revise the care and support plan or support plan accordingly.

Revising the plan is where the change in personal budget comes in. The Council in this complaint was found to have acted in accordance with the Care Act 2014 and the guidance and therefore no fault was found. 

In our view, the LGSCO missed an opportunity to comment on a key point of importance from the case law.

In this particular scenario, the impact of the change was evident from the challenging behaviour increasing. The council needed to ensure that its conclusions were based on the information received, in this case from the GP, family reporting and from the person, and there is no way anyone can tell from the report how the council satisfied the LGSCO that they had in fact addressed that evidence, as required by the Merton case (the leading case on re-assessment and what is required to make a change of plan lawful). 

It helped that the parents had accepted the assessment was accurate, no doubt, and that they had not contested the principle of the change at the time. 

But we are left wondering how on earth their parents coped with 2 nights less respite, without approaching a point where they would objectively have had to consider whether they could continue to accommodate their daughter. Respite is for care that is not otherwise available from a willing and able carer! There is this hint that it was getting tougher: “She was also waking more at night and wandering downstairs at night, which was becoming problematic for Mr and Mrs X.” 

Despite this, they may have given no hint of becoming over-strained, of course, and the council may have sought in vain for any such sign. But the report is equally consistent with a council getting away with saying “Talk to the Hand”… so to our minds, this is an illustration of how the remedy for breach of the Care Act – judicial review – and the threshold for that remedy – evidence that the council did something that no reasonable authority would have done – plus the increasing difficulty in finding a lawyer willing to take these cases on, on legal aid, can make a council take a risk management approach to litigation, if it is confident that the allocation was defensibly sufficient to meet the needs in accordance with the Care Act 2014.

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 Bradford Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/20-001-351

Shropshire Council at fault for the delayed allocation of a social worker

Decision Date: 23rd November 2020

What Happened

Miss X and Miss Z complained on behalf of their mother, Mrs Y, for whom they both held Lasting Power of Attorney for health and welfare. 

Mrs Y had a Care Act assessment in March 2019 which identified that she should be referred for a pendant alarm, a bathing assessment and a further assessment to determine her night-time needs. At the time she was living in her own home. 

In May 2019, Mrs Y told the Council that she wanted to move closer to her daughter Miss Z who lived in Stockport. Mrs Y was assessed as having capacity to decide where she lived. 

The Council told the LGO that it was agreed that Miss Z would explore options for Mrs Y as she was looking to move into ‘new housing’ rather than residential care. 

On the 1st July the Council put in place night time care for Mrs Y. A week later she fell at home and was admitted to hospital. The CCG arranged for Mrs Y to receive rehabilitation at a residential nursing home (Care Home A) on discharge. 

Miss X told the Council on 21st August 2019 August that the family wanted Mrs Y to move to Stockport as soon as possible. At the time, Mrs Y was living in care home A. 

On the 30th August, the Council undertook a further reassessment and concluded that Mrs Y no longer had capacity to decide where she lived. Miss Z agreed to transfer Mrs Y to a short term reablement service (Care Home B). This also took place on the 30th August. 

Mrs Y was reassessed on arrival, which concluded that Mrs Y required a nursing placement. 

In the end, Mrs Y returned to Care Home A on the basis that it could meet her nursing needs. 

As both Mrs Y’s daughters still wanted her to move to Stockport, she was added to the Integrated Community Service (ICS) Team waiting list for an allocated social worker at the end of September. 

Through October and November 2019, the family continued to chase the Council for a social worker to be allocated. They explained that Mrs Y’s health was deteriorating and provided evidence to show this. She now required psychological/cognitive care in addition to her physical care needs. 

On 20 November Miss X complained to the Council about the lack of support for Mrs Y. She asked for a social worker to “get the move sorted quickly and efficiently as a matter of urgency”. 

The next day a social worker undertook a care needs assessment of Mrs Y. 

On 8 January 2020 the social worker contacted Miss X and requested an update on their home preferences for Mrs Y and her move to Stockport. 

Miss X responded two months later and said that they were happy with the care Mrs Y was receiving at Care Home A, and that moving her now would be detrimental to her health and wellbeing. 

On 6 March the Council responded to Miss X’s complaint. 

  • It acknowledged that Mrs Y did not have a consistent social worker whilst she was under the care of the ICS team
  • It also acknowledged that the family had requested a social worker in October 2020 and accepted that there had been a delay in allocating the case. 
  • It apologised for the faults identified and for the delay in responding to the complaint.

Miss X remained unhappy and complained to the Ombudsman in March 2020 that the delay by the Council meant that her mother was now not well enough to move. 

Sadly, Mrs Y passed away in August 2020 and was not living near to her daughters. 

What was found

The LGO first established that the Council appropriately undertook all needs and mental capacity assessments in line with guidance. 

However, the Council was at fault for the delay in allocating a social worker when Mrs Y returned to Care Home A at the end of September 2019. The family repeatedly requested a social worker to facilitate a move for Mrs Y, the Council was aware that her health was deteriorating, and Mrs Y herself wanted to move closer to her daughters. The delay caused the family uncertainty. The Council’s explanation that the case was not considered a priority at the time because Mrs Y was safe and in a care home.

The LGO also said the Council was at fault for the delay it took in responding to Miss X’s complaint. 

The LGO recommended the Council apologise to the family, make a payment of £100 for the uncertainty and distress caused by the delay in allocating a social worker and a further £100 for the delay in responding to the complaint.

Points to note for councils, professionals, people using services and their carers, advocacy organisations

Whilst the LGO found that the council did act appropriately by its actions, the real fault here was regarded as the delay in allocating a worker to progress Mrs Y’s desire to move to Stockport. 

We would have to point out that one shouldn’t even NEED a social worker in order to make that move however  – anyone competent could have followed through on the decision to place Mrs Y out of area.

We would also point out that the report leaves it wholly unclear as to why the council would have been involved in this lady’s move to Stockport at all. If someone wants to move or IS moved to housing under their own steam or via the efforts of a benignly intentioned relative, the person loses their ordinary residence connection with the old area – UNLESS the person is going to go into a form of accommodation such as housing that counts as specified accommodation (such as sheltered or very sheltered tenancy). But even if that had been clearly the intention from the report, there is no discussion as to how Shropshire would have organised the allocation of a tenancy to a person from Shropshire, in Stockport!

Once she deteriorated of course, she would have needed a care home, and that WOULD have been specified accommodation so Shropshire would have remained liable.

It is easy to see that the initial request may not have ‘seemed’ urgent to the Council, but neither could the Council look into the future and establish how Mrs Y’s needs would change in the coming months. 

The Care Act 2014 could have enabled this Council to act sooner. It was first told of the desire to move to Stockport a couple of months after its initial assessment of her care needs. This was at a time when Mrs Y had capacity to tell the Council what she wanted to happen. 6 weeks later in July, the change in needs occurred. 

Section 19(3) says this:

A local authority may meet an adult’s needs for care and support which appear to it to be urgent (regardless of whether the adult is ordinarily resident in its area) without having yet—

(a) carried out a needs assessment or a financial assessment, or

(b) made a determination under section 13(1).

On this basis, the Council could have chosen to meet Mrs Y’s needs in May. Its assertion in August that a reassessment needed to happen before decisions could be made failed to recognise that the Council had the power under s.19 to meet Mrs Y’s needs and then follow up with the reassessment later. 

It correctly followed procedures in terms of the process a Council uses to determine where a person will live and whether nursing care is a requirement etc, but in fact it had a power that could have been helpful in enabling this lady to move closer to her family. 

The Council deemed that because Mrs Y was safely living in a suitable care home, she was not a priority for allocating a social worker. This clearly did not allow for the possibility that her needs had changed, or that she had expressed a desire to move that the Council had not responded to some months earlier. It’s not a legitimate basis for allocating people to services or to staff resources, and hasn’t been legitimate since the Sefton case in the late 1990s.

The legislation does not specify timescales for meeting needs because councils have competing demands and pressures. It also does not dictate to councils how they must prioritise their workloads.

On the other hand, public law principles decree that any duty must be discharged within a reasonable time in light of the circumstances, and there is also a little known section in force from an Act brought into force as long ago as 1970 that says that councils must furnish Directors of Social Services with sufficient staff for the discharge of their function. It is an urban myth that councils can just freeze vacant posts – social services have been made a priority BY PARLIAMENT.  

When running any kind of a waiting list and hoping to get away with it, what any council needs is a manager with enough sense to run a system for ‘keeping in touch’ with those who are waiting for assessments and care planning and for using information as to changes in the person’s needs – because rational defensible delay is all about lawfully relevant considerations, not factors that are NOT lawfully relevant. 

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 Shropshire Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-020-314

Summary of Counsel’s advice about the Norfolk Case

By publishing key points from the Advice received from Zoe Leventhal and Emma Foubister, counsel who acted for SH in the Norfolk case, CASCAIDr hopes to help many others who may be in a similar situation and experiencing discrimination that may be unlawful, regarding their care charges.

You can read the advice in full, here: Click here

Other local councils must consider the ruling and examine whether their policies could be discriminatory to ensure they are fulfilling their Public Sector Equality Duty and that they are not breaching the Human Rights Act. While other councils’ policies are not automatically unlawful merely as a result of the decision in SH’s case, if the policies are considered to be discriminatory, they must take steps to correct this.

The judgment in the Norfolk case found that there was an unjustified difference in treatment between, on the one hand, the severely disabled (with needs which result in higher assessable benefits and no realistic access to earnings from employment or self-employment, which are disregarded) and, on the other hand, everyone else receiving council services covered by the Charging Policy. Their treatment was different because the Charging Policy meant that a higher proportion of SH’s income (and of other severely disabled people in the same position) was assessed as available to be charged than theirs, and the result was that she was charged disproportionately more than they are.

Belinda Schwehr, CASCAIDr’s CEO, welcomed the Advice. She said this: 

“I believe that this authoritative Advice will be useful for people in many different situations, if paying council charges for care, and for those who manage other people’s money in their best interests (through appointeeship, deputyship or power of attorney). 

The Advice was commissioned so that it can be referred to when individuals are engaging with councils as to their own charges under local policies – in most cases, policies that are very similar to the one which was found to be unlawful in Norfolk. 

It will enable the wider public to take action from a well-informed perspective, whether as individuals or groups, and to ensure that local authorities remember that they are accountable to a legal framework, even when operating under discretion, and in difficult circumstances. 

It will undoubtedly help bring about changes in many councils’ policies, whatever they think of the Norfolk case itself. It may dissuade some councils from enforcing a number of clients’ charging debts. It may even lead to some refunds – refunds to people whose situations mean that they need to keep every single penny of income that they possibly can.”

We would like to thank Leigh Day, solicitors who supported our work, and everyone who donated to our CrowdJustice page to fund the legal advice. This page remains open for further work on this matter, and of this kind, in future.

See here for making a donation if you possibly can: https://www.crowdjustice.com/case/disabled-and-done-over/

Special thanks are due, too, to Kaylee Lindsey, a CASCAIDr assistant, whose many years of helping people with charging sagas inspired this project.

In summary, Counsel has now advised as follows:

“…policies which:

(a) reduce the MIG to the statutory minimum;

(b) choose not to disregard certain disability benefits;

(c) have poorly functioning DRE schemes; and

(d) do not consider alternative approaches,

are likely to be discriminating against severely disabled people.”

There may also be other categories of claimants who are in an even worse position than those in SH’s cohort.

All Councils have an ongoing duty to keep their charging policies under review because of the PSED, the Human Rights Act obligation not to act contrary to human rights, as well as their other legal obligations (e.g. under the Care Act) and general public law principles.

In that regard, the Norfolk case and its outcome is a relevant consideration, of which all councils must take note. It would not be appropriate simply to assert that it is believed to be “wrongly decided”. It identifies an approach which is discriminatory, and which would require to be justified, if a similar approach was not changed. It doesn’t make other policies automatically unlawful, however similar they are; but “if a council has a similar policy and has similarly failed to engage with the Guidance and/or consider the potentially discriminatory impact of the policy, then it is highly likely that it is also acting unlawfully in the same way as Norfolk was.”

Each council needs to make a decision about whether its policy needs to be changed, and if so, how to change it, and then come to a view about the consequences flowing from those changes. There’s no necessarily correct way to be sure of avoiding the discriminatory impact flowing from a policy with similar impact.

If councils’ policies are accepted to be discriminatory, or found by a Court to be so, then refunds based on recalculated charges should follow, because the charges will have been rendered under a policy that should then be regarded as void.

A local authority’s complete failure to respond to or engage with communications on this issue (whether from individuals, corporate appointees or interested groups) could be maladministrative, but it is not expected that councils will behave in that way. Any such referral to the Ombudsman “could be supported by evidence that there are vulnerable clients, such as those who are mentally impaired or need protection from abuse, who would be unable to investigate the matter themselves”. Counsel would expect that councils adopting good practice would proactively seek to address these issues and repay any charges found to have been unlawfully levied under a discriminatory policy, in line with the various legal obligations which require them to do so, and as Norfolk has done.

WHAT ALL THIS MEANS, in CASCAIDr’s view…

Not automatically discriminating – other councils are not bound by the case, in a direct sense, even if their policies are the same as Norfolk’s was. They are entitled to take advice about it and act in accordance with that advice, and they can then be challenged. The credibility or authority of such a view remains to be evaluated when it is disclosed in the course of correspondence about the policy. CASCAIDr called having a similar policy ‘presumptively unlawful’, when first writing to councils earlier on this year.

Putting councils on notice – we wrote to all councils on 22 January 2021 here: https://www.local.gov.uk/letter-centre-adults-social-care-advice-information-and-dispute-resolution and have heard back from about 100, so far, but mainly only to tell us they are ‘awaiting’ advice. From some, we have heard nothing at all. We have also researched most of the policies of councils in England, so we know which ones have policies that must be seen as in the danger zone.

Separate Advice taken for the council sector – we believe that the council sector has now received its own leading counsel’s separate Advice, and that councils are considering it regionally. THIS Advice, though, obtained by CASCAIDr, will no doubt also be considered – every council is in a different position and entitled to make its own mind up.

FOIs as the next step, after a reasonable period – we are happy to wait a while longer before following the suggestion made in this Advice: “Where this has not been effective, a next step may be to use the Freedom of Information Act to elicit further information about the steps taken since the decision in SH and/or whether an updated EIA has been undertaken since that decision (see further below).” When we move to that step, starting with the councils who have not responded to us at all, the FOIs will be made public.

Complaints and the LGSCO – if they think that the case was wrongly decided, councils might well make it clear that they will not be amending policy by virtue merely of individuals’ complaints, because complaints are not apt for matters of legality. That would not shut off the LGSCO (Ombudsman) route, because, in fact, it is not a prior complaint, that is the statutory pre-condition to the Ombudsman accepting jurisdiction, but the question whether the council has been afforded “a reasonable opportunity to investigate the matter, and respond“. Then again, the Ombudsman’s system is not able to make decisions as to what the law is, only ‘fault’ and ‘injustice’. However, the Ombudsman’s team IS experienced in upholding complaints as to when non-compliance with well-known decided case law itself amounts TO fault, and awarding compensation for that kind of injustice.

Implications for those in current debt from charges – individuals who do not pay their charges, or do not pay them in full, may ultimately force councils to test the validity of the charges in another way, if the council sues for recovery of the charges – because the debtor can raise the unlawfulness in the local civil court, as a defence. The County Court Judge is bound to follow the Norfolk case as binding legal precedent on the issues at stake. Any client without sufficient capacity to instruct a solicitor would need a willing litigation friend, to represent their interests, before they could even BE sued, and the Official Solicitor is unlikely to be willing to provide that service without the council undertaking to pay the person’s costs. So if your council’s policy appears to be ‘doing a Norfolk’, bear that in mind – but also that you won’t get legal aid if it comes to the crunch, in that sort of action.

Public law claims for refunds – where more than just change for the future is wanted, locally, individuals’ claims for reimbursement of sums representing unlawful charges, would need to be made in the Administrative Court, if councils refuse to accept that they are bound by the Norfolk decision and must make such refunds.

Limitation – the monetary claim can wait 6 years from the date of any instalment of the charge, such that if the charging policy may always have been unlawful for the whole of the last 6 years since the Care Act came into force in April 2015, and has not ever been revised, claims started sooner, rather than later, now, will serve to maximise the amount liable to be paid. That means that although there is time in most areas (where policies have only been in force for 2-3 years) to engage in correspondence on behalf of large groups of people, leaving it a long time before deciding when to draw a line under just corresponding, does not make sense.

Night time care needs’ disregards, and DREs as a concept – any council taking the view that the DRE element of its policy was or is the means by which it can mitigate against the discriminatory impact inherent in NOT applying a higher than minimum MIG, locally, faces a hard task in defending that stance. The judge did not think that a DRE disregard, as a concept in its own right, nor Norfolk’s own policy on DRE, nor the DRE disregard it awarded specifically to SH, were enough to justify the impact of the measure taken, although the judge was sympathetic to the financial difficulties in which councils operate. Not even a standard policy for disregarding a portion of PIP, as if for private funding of night time needs, where no services were being funded by Norfolk, was sufficient.

DRE policy – counsel’s Advice identifies some other challenges that could be made to DRE policy, regarding supposed lifestyle choices, activity entry fees, and arbitrary limits on transport. Councils are not entitled to refuse to consider DRE disregard requests, nor to re-consider those, however, simply because they believe that their charging policy is not discriminatory or that the Norfolk case is wrongly decided. DRE reviews are likely to be the way most councils allow for discretion in individual cases in order to avoid legal action.

SDP recipients – there is reason to expect that the charges being levied on people who are in receipt of Severe Disability Premium within their income-related benefits may be being even more severely discriminated against than those in the position of SH in the Norfolk case. That premium is paid to cover the assumed extra costs of just getting by, when severely disabled and living alone, or without informal help, yet councils do not routinely allow any part of that extra income to be kept, even though it is clearly disability related income.

Future challenges to charging policies – we think that these may be made in five ways, by individuals, or by more than one individual or groups (either unincorporated associations or groups with a legal personality):

a) Through the Monitoring Officer route, as CASCAIDr used in January 2021, but describing the alleged likely contravention of the Equality Act, Care Act and Human Rights Act in terms relating specifically to the individual or group and to the contents of the local charging policy. That route is not the same as the ordinary complaint system, and is free to anyone who can set out the allegation in clear enough terms. The Monitoring Officer is usually the council’s Head of Law, and is under a statutory duty to consider the referral and come to a view on whether there is a likely contravention of an Act or rule of law. See Counsel’s advice for some further information about that duty.

b) Through correspondence to the Financial Assessment department setting out the reason one thinks that the charging policy version under which one has been charged was unlawful in light of the Norfolk case, and suggesting that seeking legal advice would be prudent before replying, because the correspondent isn’t ‘appealing’ as such, or necessarily complaining, but raising the point that the financial assessment function hasn’t been carried out lawfully. One would always ask that discretion under regulation 15 be exercised, with written reasons why not, if not.

Some potential areas to focus on are

  • That might be because of the local approach to counting IN income in the first place
  • Or about how the Minimum Income Guarantee regulations and Guidance were interpreted by that council
  • Or because of a DRE policy that is able to be presented as discriminatory, fettered, unlawful or irrational
  • Or because of the way in which the DRE policy has been applied, in practice – oppressively or unfairly in all the circumstances.

c) Through a formal letter before action to the legal department after all such prior correspondence has achieved no or no adequate reconsideration of the policy, or of one’s charges (or of one’s DRE if the DRE was the major bone of contention) – explaining one’s intention to bring Judicial Review proceedings in the Administrative Court. The council must reply, setting out its reasons for rejecting the alleged illegality – usually within 14 days. The letter before action must comply with the Pre Action Protocol for Judicial Review Proceedings to protect the proposed claimant against a costs order for putting the council to legal advisory effort. There is a fee to start such an application, although one can represent oneself and the application is able to be made without physically going to court or speaking. One can get legal aid to fund legal advice and representation but capacity in that sector is VERY limited at this point.

d) Through letters to the press or to councillors, or scrutiny committees – the political route, effectively.

e) Through waiting to be sued for an alleged debt in the local county court, and then raising the point as a defence.

CASCAIDr has sourced some interest from legal aid law firms who will be willing and capacitated to work with us (after screening by us, as to the basics of one’s claim (for a £35 flat rate fee that you can pay online) by taking forward certain types of referrals from us. The details are here: https://www.cascaidr.org.uk/legality-check/

No-one is obliged to work through us, for this route to legal aid advice, but the number of law firms able to help in these cases is small, and we think that having your situation pre-screened and joined up with what the relevant council has or has not said to us in correspondence, will help when it comes to getting over the threshold!

If one does not qualify for legal aid, on the means test, one will need to go to a private sector law firm and pay a fee for the drafting of the letter or the issue of proceedings, but perhaps be offered a beneficial rate if you are a group of people, instead of just one.

CASCAIDr does not distinguish between clients on the basis of means. We charge for all our charging work at our low-cost charitable rate of £125 an hour, after the £35 basic check, but Covid has ensured that we, too, have limited capacity to help individuals. So we welcome approaches from groups who might well want some hand-holding, but who are happy to be self-starting!

That crisis in legal aid, and awareness of public law’s importance in community care, is what has led to this initiative in crowdfunding, our first, for this Advice from counsel.

We hope that it will assist many people to take steps themselves, to assert their right to pay no more than the law allows for their social care services – but we will be here as a fall-back, if not.

Have YOU got The Voice for asserting people’s legal rights to care funding?

This Spring, to signify emergence from dark times, CASCAIDr is investing in training up members of the public – and people working in health and care – to embed a culture of legal awareness of community care law – in readiness for the further integration of health and care – and maybe even a review of how we fund care in this country.

This is CASCAIDr’s bid to further legal literacy amongst tomorrow’s leaders in adult social care and health … and skill up the public as well, to be better able to self-advocate, efficiently and assertively, in an increasingly brutish decision-making culture.

Belinda Schwehr, CEO, will be running the programme, with contributions from other specialists. Even now, 3 years into nurturing CASCAIDr, an experiment in harnessing a charitable model for the provision of specialist legal advice, she still burns for the subject, and for spreading the word!

  • The Public Level course is designed to create strength in the community at a grass-roots level for building legal literacy for use in networks, peer-support and self-advocacy groups.

If you believe in the values of co-production and person-centredness but don’t see much of it in practice, and flounder when it comes to changing that, you could use this course to stop feeling helpless or passive – and take ownership of the means to do something about it.

  • The Professional Level course is intended to train up a new generation of advice workers, independent advocates, social workers, social work academics, paralegals and junior lawyers – to become expert in community care law – so that accountability is not mere pie in the sky when health and social care try to operate under two different legal frameworks. 

Just like on ‘The Voice’, survivors of these courses will get the benefit of over 20 years’ worth of the coaches’ experience and legal insight –

  • At the Professional Level – into 26 topics within the Care Act, past and current case law, and a chance to do case studies and even work experience, if good enough.

Graduates of the professional level course could earn money through CASCAIDr as contractors – either as fact finders or caseworkers, within 6 months of starting. We hope to be able to accredit people’s experience for the SQE route to becoming a solicitor.

  • At the Public Level – anyone lasting the distance on the public course will have learned a good deal about 12 broad aspects of care law, which they can take back to their existing roles, or to their peer-support groups, family carer groups, or advocacy services.
Both courses last one year – so you can fit this in around your day job, or other commitments. You need to do an hour’s reading per week, and find the time for the fortnightly lecture, monthly Q&A session or the recording.


Cost/Scholarships/Bursaries

The cost of the Public level course is £35 for the year and Covid culture and tech means that we can take large numbers.

The cost of the Professional level course is £350 for the year, with scholarships or bursaries for strong candidates, from donations we have attracted.

Entry to the latter is competitive, due to the limited number of places, likewise any application for financial help.

Delivery

All online sessions and lectures are via Zoom meeting with breakout rooms for group working, with recordings for those who cannot attend the live session.

They will be delivered out of work hours – probably Wednesdays at 7pm for 1.5 hours at most (breakouts remaining open for anyone whose circle wishes to continue). They will be scheduled fortnightly for the Professional course, starting 12 May and once a month for the Public level (probably 19 May and mid September depending on numbers).

Entry criteria

There’s no need for formal legal qualifications for either course.  Our best caseworkers haven’t always had them!

For the Public Level course you’ve just got to be interested enough to be prepared to do the Guided Learning and Supported Study reading, every week. You will not be helped, outside of a learning circle, but you will be encouraged, enthused and motivated – and there will be many lightbulb moments….

You can start on the Public level and apply to move to the Professional Level, if you find it is too basic.

To apply for the Public level course, please send an email to sebpark@cascaidr.org.uk outlining why you’re interested in the course and its relevance to you, and indicating whether you want to be considered for a free place with reasons why you should be given one. Places will be allocated first, and decisions made at the end of the month as to the free places.

Even if you want to do the Professional level course, all you need is to be able to convince us that you already have the following knowledge, skills and attitudes:

  • Familiarity with the adults’ social care system, ie the Care Act, and the thrust of the Mental Capacity Act…
  • Understanding what sort of law applies in this sector; the difference between the Administrative Court and the Court of Protection, and how law actually works in the context of local authority and public sector culture…
  • Knowing what you don’t yet know; an inquiring mind, internet research skills, and an appreciation that all is not quite what it seems, in adult social care law…
  • Intellectual acceptance that there’s a difference in legal terms (even if one wishes there was not) between what a person wants and what a person could defensibly be said to need out of public money, when the legal test is NOT ‘the best life a person could possibly have’…
  • That one magical thing: legal acumen – which means an ability to make a judgment about what someone thinks or says happened, and what they can prove probably happened, to a reasonable standard – often having to cut through distressed streams of consciousness on a referral, to probe them quite hard…and then paraphrase the essence of the problem
  • A belief in the power and value of public law for good, and its consistency with traditional social work values of accountability, non-discrimination, anti-oppression and anti-arbitrariness.

A cv and a covering letter is required for the Professional level course.  If you make it past that hurdle, there will be one written exercise, for a place; or two, if you would like to apply for financial assistance for taking up that place.

Please note that if you are currently working in a CCG, a local authority ASC or legal department – or for a law firm or advice service, you are most welcome to apply for the Professional level course, but we cannot extend financial help – we are a charity. You may of course be paid for by your employer and it will count for CPD points, if you complete the course. There are no ‘sides’ on these courses.

To apply for the Professional level course, please write to sebpark@cascaidr.org.uk with a proper cv, not an electronic standard one, and a covering letter explaining what you’re currently doing, and how and why you think you meet the above criteria.

  • Explain your existing general legal knowledge, knowledge of public law in particular and knowledge and USE of the Care Act in particular.
  • For the Professionals’ course, please indicate whether you NEED money off or whether you would be prepared to pay, if not offered financial assistance.

Our Third Year’s impact, despite Covid-19

In 2020 we got off to a good start, pointing out to Dominic Cummings, in a letter delivered to his London address (not Barnard Castle…) that councils probably owed £150m to people by way of restitution for non-compliance with the Care Act.

The Court of Appeal had made financial reimbursement (for money spent or labour provided) into a viable remedy for breach of the statutory duties in the Care Act, in October 2019 in a case called CP v NE Lincs.… and we had ourselves got £76K back for a family, just by knowing how law works.

We suggested to Mr Cummings that the government (any government!) probably needed to think of a seemly way of organising that exercise – perhaps by grant funding us to work out which cases had a legally strong basis. A bit like the NHS funds Beacon for providing credible continuing NHS healthcare legal advice, we thought…

But then Covid-19 landed, and all bets were off.

Firstly, it led to the suspension of the legal framework that underpins our very existence and our tools for the job, and secondly, it radically affected the availability of reliable expertise in the specialist field of law we work with, which was already very thin on the ground.

The Care Act was modified, but councils were told to pretend that it wasn’t, unless they really, really needed cover for doing less than what’s normally expected of them, by the law – through the concept of the Care Act ‘Easements’.

A year later, no councils (not blue, red, yellow or green…) seem to feel the need for that cover. But no council that is ‘prioritising’ and ‘rationing’ services by reference to what they’ve got, rather than commissioning to meet needs adequately, is legally ‘safe’, in fact.

When we guestimated that £150m needed to be paid back, we weren’t even thinking of charging law.

But by the end of 2020, Norfolk County Council had been held to be making unlawful charges. The impact of that decision looks set to trigger a restitutionary exercise across the country of as much as £1m per authority, ON ITS OWN, just for that bit of wrongdoing, never mind the value of all the other Care Act breaches…

In this coming year, CASCAIDr will either collapse from the tsunami of need for specialist legal advice – or make sufficient money to survive and make more of a difference. Please apply to join us as a caseworker if you are really strong at public law – we pay decent rates, to keep the expertise going.

Please also look out for our Reversing the Charges campaign on Crowdjustice, https://www.crowdjustice.com/case/disabled-and-done-over/ and please give generously, either there, or HERE on the button on the right, if you care about community care law and legal rights.

We’ve done more briefings and education this year than we expected to, about Covid Easements and human rights, DNARs, the relationship between care homes, the NHS and local government, and the regulations about visiting. Our CEO has been on R4’s ‘Today’ and ‘You and Yours’ programmes and Co-ProduceCare’s podcasts.

We ran a fundraising campaign for 10 days of posting and answering 10 questions per day, about the most common legal problems that people have to contend with, and made about £6,000, which was great.

On the public law side, cases about cuts, day care closures, young people transitioning into supported living (or not!), providers needing to raise their prices to direct payment clients, having only just realised that they ARE their clients, providers’ fee disputes with councils, and the general breakdown of due process around reviews (fuelled by pandemic pressure) have filled up our days….

We’ve been involved in some shocking cases that sadden and appal us, as legal thinkers, about the way the social care world is headed.

For example, cases where …

  • a council has failed to pick up responsibility for a woman in a care home without anyone else to arrange payment for her, until the person had no money left at all, whilst telling the relatives that they would have to pay a top-up;
  • a council has told vulnerable adults that they couldn’t have direct payments even though they’ve all had enough capacity for tenancies -organised by the council’s own social workers – AND had a corporate helper to nominate as their DP manager;
  • a supported living provider told service users they could not go to day care because they lived in shared accommodation; a care home said that a resident could not go home to their families (it was part of their care plan) and expect to be re-admitted; that they could not be visited despite being in the last few days of their lives, or because the Xmas visiting guidelines from government were simply being countermanded by the local authority which had placed the person so that both it and the hone owed human rights to the man in question…
  • a housing association, used to getting rental voids paid for by a care provider in supported living, had thought that it had the legal power to tell the care provider that it had decided the care provider wouldn’t be able to provide the care to the council’s clients living in that house any longer, despite having nothing to do with the care contract at all;
  • where a woman had been paying for her mother’s live-in care for over a year and the council had allowed that to continue on the basis that there was no evidence the mother needed anything more than a standard offer of 4 visits a day;
  • a council had failed to do a proper assessment of a man, where a review (policed by us) led to an increase in 10 hours a week of care – nearly double what he had been having – he will now get restitution because he paid for the shortfall himself.
  • a council had not put up its direct payment rates for 5 years, leading an elderly man to consider equity release, and self-ration his care plan down from 34 hours a week to 27, just to get by;
  • a care provider had threatened to sue an ex-client’s mother for the fees that the council had failed to pay, until we became involved and resolved the matter;
  • a CCG had messed up a budget for a gentleman by failing to realise that the salaries it had agreed to fund for the man’s care team, inevitably carried on-costs that needed to be part of the personal health budget -and blamed the man’s wife for paying the ‘wrong salaries’;
  • a council had left a person’s placement in a care home underfunded to the tune of £16,000, in comparison to what it was paying for similar clients in the same home, for at least 5 years;
  • a council had informed a couple with autistic spectrum disorders and hugely complicated inter-dependencies that it could not ‘find’ a provider to meet their needs (until we got involved and pointed out that that would be a breach of statutory duty)
  • a council and CCG had failed to provide a man with a s117 care plan and instead used the Care Act, ignoring the scope and purpose of aftercare services altogether;
  • and at least three cases where hospital discharge arrangements during one of two periods of special NHS funding responsibility were royally cocked up through simple lack of grasp of the legal framework by all the public authority staff – in two of which the daughters of the discharged patient ended up in dispute with the council about who should have been doing what.

On the charging front, too, we have

  • got a judgment of over £19,000 worth of charges and alleged misuse of a direct payment set aside
  • got £6,000 of charges debt wiped out, because of appalling behaviour by a charging team regarding Disability Related Expenditure
  • prepared to launch our first ever crowdfunding campaign called Reversing the Charges – Disabled and Done Over? – to help people get back between £300 and £3000 each in unlawful and discriminatory charges that councils have made.

These developments have nothing to do with party politics. The nation is now facing the consequences of deeply entrenched management thinking – driven by the ideology of austerity, that has prevailed, with majority public support – that public service authorities don’t need funding to get the law right or manage their own governance.

We see no way back from that, other than decisions from the Administrative Court that underline that there ARE consequences – just occasionally – for skimping on legal literacy.

Finally, although we don’t ‘do’ safeguarding work, we have had to flex our stance a little for several clients needing help when suddenly finding themselves on the wrong end of CoP proceedings, unable to get legal aid, themselves, unable to present as a litigation friend for their relative, given the thrust of the allegations made against them, and unable to get the Official Solicitor to listen to them about the ‘public law’ wrongs regarding the unsuitability of what’s been being offered by the local authority, in the first place – never mind the Mental Capacity Act wrongs.

It has been those positions, taken by dint of necessity by the persons’ relatives, which has led to these doughty informal supporters being cast as people who are somehow ‘obstructing’ the delivery of the care in the best interests of the needy relatives.

We’ve provided advice in those situations as to how to get the matter stayed and heard properly in the judicial review court, where there is no danger whatsoever of Official Solicitor bothering to say that the person is not a suitable litigation friend.

We have to say that we find it astonishing that the legal professional world and the judiciary in the CoP seemingly see nothing wrong in the practice of issuing in the CoP rather than dealing with a public law argument. It means that the jurisdiction of the Court of Protection being strained so far beyond the doctrine of necessity and notions of best interests that it may as well be called the Administrative Court-Lite, – ie a court with public authority parties before it all the time, but without the ‘inconvenience’ of public law principles and precedent, on which community care law depends, to hold it back!