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Article 8 of the European Convention on Human Rights – The right to respect for all things close to heart and home including during the Coronavirus crisis

In the last few days, CASCAIDr has been covering human rights in the context of adult social care, on social media.

Examples have touched on policies or resources difficulties which have seen carers doing the council’s job for a variety of reasons, varying from not knowing that there is no legal obligation to take on that responsibility, to feeling one has literally no choice but to do it. Liverpool v Hughes is a case where the carer, rather than the client, needed to bring the challenge. Other cases have seen disabled people left in dire and unconscionably long-lasting situations (Enfield v Bernard) and people’s relatives being upheld in their wish to participate and be involved in due process (Wandsworth v Goldsmith).

You can search for these in www.CASCAIDr’s search box – and at the end of this overview of article 8, here are three more that we predict will matter in the coming days – Elaine McDonald’s case (about the means by which needs can be met, consistent with dignity), Rachel Gunter’s case (about being cared for at home) and MM’s case (about maintaining intimate relationships chosen by people with capacity).

Article 8 is the most relevant article of the ECHR, to which we are still signed up, despite Brexit. The vast majority of the Convention has been made a directly applicable part of our own UK law through the 1998 Human Rights Act, still also in force for all purposes, which provides:

8(1) “Everyone has the right to respect for his private and family life, his home and his correspondence”.

8(2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the lawAND is necessary in a democratic society in the interests of 

  • national security [no great surprise there, for anyone, we would suspect],

BUT there are further caveats to take note of, because like most Convention rights, article 8 is not absolute and article 8(2) provides several qualifications, or ‘justifications’ for proportionate interference by a public authority – justifications which could well have been written with the Coronavirus crisis and the problems it presents to our local government sector, expressly in mind!

  • public safety
  • or the economic well-being of the country
  • for the prevention of disorder or crime,
  • for the protection of health or morals,
  • or for the protection of the rights and freedoms of others”.

The reference to ‘the economic well-being of the country’ may be read now, within the UK, as if it said the ‘area’.

The reference to necessity is to a concept of proportionality – that is, any interference by a public authority with an individual’s article 8 rights must correspond to a ‘pressing social need’, and be proportionate in pursuit of a legitimate aim in order to count as ‘necessary in a democratic society’. Thus proposals which will have a financial impact one way or the other cannot be justified just because a saving or getting in an income is desirable – it must be more important than that.

Ironically, in this crisis, it will not be money, so much, that we predict that will be weighed in the balance: it will be the absence of staff or trained staff or trained staff with sufficient protective equipment. Even if there’s fault behind our inadequacy to deal with the problem immediately, that inadequacy is a fact that has to be factored in to the thinking about who gets what and when and why.

The concept of proportionality requires the public authority to strike a fair balance between the interests of the individual whose rights are being impinged upon, and the interests of others or of the community in general. When life is at stake, that is a particularly difficult balance to strike.

Care homes and providers who are contracted to councils, are bound by human rights, because the Care Act says so.

Contractors delivering services for the NHS, for instance, all those in NHS paid for interim beds now that Continuing NHS healthcare assessment has been suspended – also owe human rights, not because of the Care Act but because they are discharging statutory obligations for the NHS directly under the NHS Act, and are thus what’s known as a hybrid public authority.

So, for all providers, there is an obligation to refrain from unjustified interference in people’s private lives and relationships – which is why blanket bans on visiting, are probably not lawful, right now.

However, it is not merely the negative one which the language would suggest. Article 8 also imposes a positive obligation on local authorities to take steps to act to secure enjoyment of the rights or to protect people’s enjoyment of them. In Guerra and Others v Italy, for example, the ECtHR held that a failure by the authorities to take appropriate action to reduce the risk of pollution to the applicants, who lived near a chemical factory, was a breach of article 8.

Human Rights and Dignity – the Elaine McDonald case – incontinence pads for someone who’s not incontinent?

“Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in exceptional cases where the State’s failure to adopt measures interferes with the individual’s right to personal  development and his or her right to establish and maintain relations with other human beings and the outside world.

Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole and to the wide margin of appreciation enjoyed by States in this respect in determining the steps to be taken to ensure compliance with the Convention.

This margin of appreciation is even wider when, as in the present case, the issues involve an assessment of the priorities in the context of the allocation of limited State resources. In view of the familiarity with the demands made on the health care system as well as with the funds available to meet those demands, the national authorities are in a better position to carry out this assessment than an international court.”

The judge concluded: “I have the greatest sympathy for the misfortunes of Ms McDonald and, I would like to believe, a real understanding for her dislike of what the Royal Borough has proposed. However, even though the Royal Borough had in my judgment failed in its duty in overlooking that at the time of its November 2008 decision Ms McDonald’s defined need was still that of assistance to access the commode at night, that error was not born of any lack of respect for her dignity, but of a concern, even if at that time wrongly executed, to perform the difficult task of balancing its desire to assist Ms McDonald with its responsibilities to all its clients within the limited resources available to it in its budget.”

Human rights impact within CHC law – keeping a person in their own home, even though there is no right to force the PCT to pay for this:

The Gunter case

http://www.in-control.org.uk/media/33617/independent%20user%20trust%20judgement%20.pdf

“Dr Milne also notes that Rachel had made a far greater recovery than was predicted at the time of her surgery and had continued to improve since being at home. This accords with the views of others and it is apparent that the care provided to her by her parents, in particular her mother, has resulted in a remarkable improvement in her condition. That is, as it seems to me, a very important consideration which must be given due weight in deciding on her future.

I do not regard evidence of what benefits could accrue from the expenditure of sums which could be saved in providing a less costly package for Rachel as helpful. It is obvious that Health Authorities never have enough money to provide the level of services which would be ideal, but that cannot mean that someone such as Rachel should receive care which does not properly meet her needs.

The interference with family life is obvious and so must be justified as proportionate. Cost is a factor which can properly be taken into account. But the evidence of the improvement in Rachel’s condition, the obvious quality of life within her family environment and her expressed views that she does not want to move are all important factors which suggest that to remove her from her home will require clear justification.”

Human rights, sex and learning disability – the MM case

https://www.bailii.org/ew/cases/EWHC/Fam/2007/2003.html

A young woman with learning disabilities but enough capacity to have sex with her long term boyfriend, albeit maybe not enough to figure out how bad he might be for her, and who was therefore expected by the council not to have him to her supported living accommodation – alleged a breach of human rights when the council refused to provide them with somewhere else safe to go to have sex. The judge said this:

“I should add that the local authority cannot in this connection seek to avoid its positive obligations by seeking to toll the bell of scarce resources.…the additional financial burden which this may impose on the local authority is comparatively modest given the overall cost of its provision for MM. And the right in play here is, to repeat, too important, too precious in human terms, to be swept aside by such purely fiscal considerations. If the local authority seeks to impose on MM a regime which in fact involves a breach of her Article 8 rights – the consequence of imposing on MM a regime which in practical terms prevents her continuing her sexual relationship with KM – then the local authority in principle has a choice. It must modify the arrangements so that there is no breach of Article 8. And in the circumstances of the present case it can do this either by abandoning its attempt to prescribe where and with whom MM lives or, if it wishes to exercise that control, by taking appropriate positive steps to enable MM to continue her sexual relationship with KM. If it seeks to do the one without shouldering the burden of doing the other, then its intervention in MM’s life is, he [MM’s counsel] submits, and I agree, disproportionate. And in my judgement it involves a breach of her rights under Article 8.”

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Provider (commissioned by Bristol County Council) at fault for not following emergency procedure and failing to provide care for one night (relevant to Coronavirus scenarios)

Decision Date: 18th December 2019

What Happened

Mrs B complained on behalf of her husband, Mr B.

Mr B received three visits a day from care workers. The last visit of the day was scheduled at 9pm, to help him get ready for bed, which involved using a hoist to use the toilet. Mrs B could not help with those tasks as she herself had health problems.

Mr B started using the Care Provider (CP) on 30th January 2019. On Friday 1st Feb, there were heavy snowstorms which affected the CP’s ability to get to its customers.

The CP said that they rang Mrs B at 21.30 that night, to say that Mr B’s carer had broken down in the snow, so would be over an hour late. It provided a screen shot showing a call made to Mrs B’s number at 21:30 on 1 February 2019, lasting 13 minutes. The CP said Mrs B was very aggressive and upset, saying 11pm was too late and ‘hung up’.

Mr and Mrs B said they never received the phone call. Mrs B provided evidence that she called the CP’s emergency number at 21:52, 22:16, 22:31 and 22:32 (all lasting less than 1 minute).

After failing to get through to anyone from the CP, she called Bristol City Council’s main number and the emergency council number shortly afterwards at 22:23 to say Mr B’s morning and lunchtime visits were amalgamated into one and no-one had turned up for the evening visit. Mr B had not been to the toilet all day. He needed to be hoisted over the toilet and into bed.

The duty worker advised Mrs B to call the Care Provider’s out of hours number and call back if she couldn’t speak to anyone.

She rang back at 22:35 to say the out of hours number was switched off.

The duty worker also tried to get in contact with the CP, could not, so tried to arrange alternative care for Mr B. Nothing was available so advised her to ring 111. He wrote the following summary and referred the case to Mr B’s social worker to follow up.

“This lack of service is effectively an adult safeguarding issue in terms of care provider neglecting their responsibilities, leaving [Mr B] with no help with toileting and getting to bed. There has been no communication from the care agency, neither is there any facility for [Mr and Mrs B] to communicate their needs to the agency. Please can the s/w treat this as such and take safeguarding actions.”

The CP said it did not receive any voicemails from Mrs B, or the duty worker that night. It suggested that because of the snow storm, the on-call worker would have been taking calls and doing visits at the same time, so calls to the emergency number would have been transferred over to her mobile phone, possibly affecting the receipt of voicemails.

The Care Provider rang Mrs B back on Monday 4 February 2019. Mrs B said she had made several calls to the emergency number but no-one had got back to her. Mr B had not had a visit and sat in his wheelchair all night with wet clothing.

The Care Provider investigated the complaint; it found no problems with its telephones, and assumed that Mrs B did not want the visit because she had said ‘what’s the point’ and hung up, when the CP said they would be late to the 9pm visit.

Following this conclusion, came a long back and forth dispute between the CP and Mrs B over the phone calls. On the 4 March 2019 the CP repeated its findings and the LGO stated that the two parties ‘agreed to disagree’.

On 17 March 2019 the Care Provider gave Mrs B notice that it would be terminating its service on 16 April, as it had reports of Mrs B acting aggressively towards staff.

Mrs B denied this, and asked if the CP would consider. The CP declined, so Mrs B found an alternative agency, and complained to the LGO.

What was found

Missed appointment

The LGO stated that ‘Given the discrepancies in the call records provided by the Care Provider and the additional evidence from Bristol City Council I am unable to safely conclude that the Care Provider called Mrs B at 9.30pm to offer a visit.’

The provider’s evidence was that it made a call to Mrs B at 9.30pm on 1 February 2019 which lasted for 13 minutes. But a separate screenshot did not correlate with this call: it was taken half an hour later than the first one and shows a missed call from Mrs B’s number followed by two outgoing calls to her number on a Friday.

The first screenshot should show details of the missed incoming call from and the two outgoing calls, but it only shows one outgoing call at 9:30pm.

The second screenshot could well have been earlier in the day or from a different Friday – one could not tell for sure.

From the LGO’s perspective, this called into question the validity of the first screenshot.

This, coupled with the duty worker also being unable to get through to the out of hours number that evening led the LGO to its decision).

Despite the CP failing to offer a visit, Mrs B called the out of hours number four times, as did the duty worker. The CP’s failure to respond to those calls, whether a message was left or not, was fault which led to Mr B being left in an unacceptable state for a whole night.

Emergency Procedure

The Care Provider provided a copy of its emergency procedure. It covered bad weather situations and it required the Care Provider to inform customers that visits may be late due to bad weather. It also required it to have an out of hours emergency number. Given the failure to answer or respond to messages and calls on the emergency number the LGO concluded that its emergency procedure was not followed.

Given Mrs B’s disability, Mr B’s visit should have been assessed as a priority one. There was no evidence that it was.

The Care Provider had a reasonable amount of evidence from its staff of Mrs B being rude and aggressive. The Care Provider decided to give notice due to the impact of this behaviour on its staff. The LGSCO noted that the provider had explained its reasons, considered Mrs B’s response and gave her adequate time to find a replacement.

However, in recognition of the distress caused to Mr and Mr B by the failure to do the care visit, the LGO recommended the CP pay Mr and Mrs B £300.

Points for the Public, Service Users, Families and Councils

There is no detail in this report as to what the council’s own Safeguarding Team thought of this matter. Bristol was technically at fault however, because all statutory duties – even if contracted to outside providers, or delegated to outside providers, remain the responsibility of the public body. The duty is owed by the council to the client under the Care Act and is non-delegable.

The provider’s emergency plan was not a bad one, and it’s an interesting thought in light of the Coronavirus Act modifications to the duty to meet needs, when to do otherwise would be a breach of human rights.

Its own plan required the Care Provider to:

  1. monitor weather reports and if required check on the condition of vulnerable customers living in isolated locations;
  2. assess safety of staff;
  3. keep a list of all staff with 4WD vehicles;
  4. advise customers when appointments may be late due to conditions;
  5. borrow 4WD vehicles to reach cut-off customers who need assistance; and
  6. prioritise services according to a risk rating.

Priority level one customers include those who lived alone or who live with someone who is unable to assist in an emergency. This category was then prioritised according to the number of visits per day.

The plan gave a mobile number for out of hours emergency situations.

Let us assume that the Care Act has been suspended. The only people who are getting their needs met, under commissioning arrangements giving effect to the Care Plan, are people for whom an omission would count as a breach of human rights.

According to the LGO, this gentleman should have been counted as priority one.

If one asks oneself what that would mean, in a staff shortage situation where the backstop is human rights, one has to ask whether not being able to go to the toilet would be a breach of article 3 or article 8.

We have to say that it is not likely – for a one-off situation. It’s shocking, and it’s not desirable, or excusable, but a person competing for a carer, with a life-sustaining need, is going to be preferred, in an emergency.

But if it was not every now and then but systemic, because of an evening visit being cut out of the care plan, to free up services for someone else, because of the virus, the sector will be looking back to the Elaine McDonald case, where incontinence pads were not thought to be inadequate in terms of respect for her dignity and autonomy, by the Supreme Court (or the European Court of Human Rights)

Comparing that with Enfield v Barnard, in 2002 – is interesting – in which case a breach of article 8 was found to have occurred, and in which damages were awarded for a breach of statutory duty, in the context of community care:

Having referred to his back injury and to the tortuous route up steps and down steps to the bath and WC in the lean-to at the back of the house, [Mr Bernard] said this this:

“Because my wife is doubly incontinent and only gets, frequently, less than 1 minute warning of the need to use the toilet, she commonly defecates or urinates before we reach the toilet.

The result has been that I have had to persistently clean the carpets, together with her clothes and bedclothes.

This is a problem, which arises several times each day.

I have to go to the laundrette often twice a day, and because of the layout of the house, I have had to buy adult size nappies for my wife together with disposal pants and wipes…

We only have benefits to live on and the additional cost of going to the laundrette twice a day and having to buy large amounts of floor cleaner and carpet cleaner has left us impoverished. We have not been able to pay the difference between our Housing Benefit and rent because we are so impoverished by these laundrette and cleaning costs.

Additionally, my wife’s role in bringing up the children is greatly limited. She cannot access the upper part of the house at all and it is a real struggle for her to leave her bedroom, which is in fact, the family’s living room. She has no privacy. We have six children, and she is in the living room, which is accessed directly from the front, street door.

Understandably my wife finds this state of affairs depressing and demeaning. It is very humiliating for her to constantly defecate or urinate in her clothing, as she is unable to reach the toilet. This happens as a result of the layout of the house and because the house does not have proper adaptations for a disabled person.”

https://www.escr-net.org/sites/default/files/caselaw/full_judgment_2.pdf

The Court said this, using ECHR jurisprudence already established at that point.

“Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim.”

In Price a severely disabled woman had been imprisoned for three nights for contempt of court. In paragraph 30 of its judgment, the court said: “There is no evidence in this case of any positive intention to humiliate or debase the applicant. However, the Court considers that to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty, constitutes degrading treatment contrary to Article 3.”

It should be noted that in that case male officers had been required to assist in lifting the applicant on to and off the toilet, and that “by the time of her release the applicant had to be catheterised because of the lack of fluid intake, and problems in getting to the toilet had caused her to retain urine”.

Although not conclusive, the fact that there was no intention to humiliate or debase the claimants is a most important consideration. The cases concerned with prisoners’ rights, upon which the claimants placed great reliance, must be treated with great caution outside the prison gates. A prisoner is in a uniquely vulnerable position: detained against his will, he is literally at the mercy of the prison authorities. It is understandable that the protection afforded by Article 3 should be rigorously applied in such circumstances, even if there is no intention to humiliate or debase.

By contrast the case under Article 8 is not finely balanced. Under Article 8 the claimants are entitled to respect for their “private and family life.” While the main thrust of Article 8 is to prevent arbitrary interference by public authorities with an individual’s private and family life, the European Court of Human Rights has recognised that Article 8 may require public authorities to take positive measures to secure respect for private or family life… In Botta v Italy [1998] 26 EHRR 241, the court said this in paragraphs 32 to 34:

“Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings.”

In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the state to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation.

… I accept the defendant’s submission that not every breach of duty under section 21 of the 1948 Act will result in a breach of Article 8. Respect for private and family life does not require the state to provide every one of its citizens with a house: see the decision of Jackson J in Morris v LB Newham [2002] EWHC 1262 (Admin) paragraphs 59 to 62. However, those entitled to care under section 21 are a particularly vulnerable group. Positive measures have to be taken (by way of community care facilities) to enable them to enjoy, so far as possible, a normal private and family life. In Morris Jackson J was concerned with an unlawful failure to provide accommodation under Part VII of the Housing Act 1996, but the same approach is equally applicable to the duty to provide suitably adapted accommodation under the 1948 Act.

Whether the breach of statutory duty has also resulted in an infringement of the claimants’ Article 8 rights will depend upon all the circumstances of the case. Just what was the effect of the breach in practical terms on the claimants’ family and private life?

Following the assessments in September 2000 the defendant was under an obligation not merely to refrain from unwarranted interference in the claimants’ family life, but also to take positive steps, including the provision of suitably adapted accommodation, to enable the claimants and their children to lead as normal a family life as possible, bearing in mind the second claimant’s severe disabilities.

Suitably adapted accommodation would not merely have facilitated the normal incidents of family life, for example the second claimant would have been able to move around her home to some extent and would have been able to play some part, together with the first claimant, in looking after their children. It would also have secured her “physical and psychological integrity”. She would no longer have been housebound, confined to a shower chair for most of the day, lacking privacy in the most undignified of circumstances, but would have been able to operate again as part of her family and as a person in her own right, rather than being a burden, wholly dependent upon the rest of her family. In short, it would have restored her dignity as a human being.

The Council’s failure to act on the September 2000 assessments showed a singular lack of respect for the claimants’ private and family life. It condemned the claimants to living conditions which made it virtually impossible for them to have any meaningful private or family life for the purposes of Article 8.

Accordingly, I have no doubt that the defendant was not merely in breach of its statutory duty under the 1948 Act. Its failure to act on the September 2000 assessments over a period of 20 months was also incompatible with the claimants’ rights under Article 8 of the Convention.”

In my experience in this court, dealing with a wide range of complaints against public authorities, most citizens who have suffered as a result of some bureaucratic error are not motivated, or at least not primarily motivated, by a desire for monetary compensation.

They institute proceedings because they feel outraged by what they see as an injustice and want “them”, the faceless persons in an apparently insensitive, unresponsive and impenetrable bureaucratic labyrinth, to acknowledge that something has gone wrong, to provide them with an explanation, an apology and an assurance that steps have been taken to ensure (so far as possible in an imperfect world) that the same mistake will not happen again. This assurance will at least give them the satisfaction of knowing that they have not suffered in vain.

If a public body takes all of those steps reasonably promptly, once the problem has been drawn to its attention, then it may well be the case that nothing more is required by way of monetary compensation in order to afford “just satisfaction” in very many cases.

Sadly, that is not the position in the present case. The defendants were repeatedly urged by the claimants’ solicitors to take action in numerous letters written between August 2001 and February 2002; most of those letters were simply ignored.

Through Counsel, the defendant agreed to the making of a mandatory order on 27th March 2002, but there has been no acknowledgment that the defendant was in error, no explanation, no apology, and nothing to indicate that the defendant’s procedures have been improved so that the same kind of mistake, the Housing Department failing to act on Social Services Department assessments, is less likely to occur in the future. Moreover, the defendant’s conduct in dealing with the matter was not confined to mere inaction. In February 2002 the Housing Department threatened to evict the claimants. The threat was soon withdrawn, but it should never have been made had there been proper liaison between the defendant’s Housing and Social Services Departments. After 27th March 2002 the defendant failed to comply with the original and then with the extended timescales set by the court. There may well have been a reasonable explanation but, again, there has been no apology or explanation, and the apparent delays were compounded by the defendant’s insistence, maintained until the 11th hour, that the offer of 66 Mitchell Road had discharged its statutory duty.”

“The parties had not considered the two other possible sources of information: the reports of the Local Government Ombudsman and the awards for pain and suffering in cases of minor personal injury. I invited them to make written submissions dealing with these matters, and I am most grateful for their very helpful responses. Mr Clayton referred to a number of decisions by the Local Government Ombudsman, recommending awards between (at current values) £16,530 and £2,120 for various failures in the field of social services: to provide care for a child with severe learning difficulties, to provide home care assistance for a mother with multiple disabilities, to provide a residential placement for a young man with learning disabilities, to provide a residential care home for an elderly lady, and adequate care at a multi-purpose day centre for a young man with sensory impairment. In all of these cases, the families who acted as carers suffered varying degrees of stress, exhaustion, anxiety and disruption to their lives. At the bottom end of the scale, a mere failure to recognise a carer’s needs merited an award of £2,000. Non-provision of services for a relatively short period of time can result in a substantial award (£5,000 for 11 months of stress and exhaustion). At the top end of the scale, in cases where there is a great deal of anxiety and disruption or extreme stress, significantly more has been recommended (£10,900). The highest recommended award (£16,350 at current values) included a significant element of pecuniary loss. The complainant had been unable to find a suitable job because of her care commitments, had sought medical treatment for depression, had exhausted her substantial savings and was reduced to living on income support, her previous standard of living having disappeared.”

It is very much in the interests of society as a whole that public authorities should be encouraged to respect individual’s rights under the Convention. A “restrained” or “moderate” approach to quantum will provide the necessary degree of encouragement whilst not unduly depleting the funds available to the defendant for the benefit of others in need of care.

For all these reasons, I am satisfied that the award to the claimants should be at the very top of the £5,000 to £10,000 range identified above.

Although there are two claimants it is important to avoid double counting, and since these damages are intended to give them just satisfaction for a breach of their Article 8 rights, it is sensible to start off with an overall figure to reflect the impact of the breach on their family life together, and then to apportion that figure between the two claimants having regard to the relative effects on their private lives.

Bearing all these factors in mind, I conclude that the appropriate figure is £10,000, and I apportion that £8,000 to the second claimant and £2,000 to the first claimant.”

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 can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-019-660

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Our approach to the Coronavirus Crisis – what CASCAIDr can do for you

CASCAIDr – the All Adults’ Care and Health specialist legal advice charity – is compelled to go into a different mode for the duration of the Coronavirus crisis.

Advice charities are not getting any hint of financial support, and small charities will become insolvent very quickly, it is feared.

In all honesty, we can’t hope to cope with NEW clients’ individual legal issues – not if there’s no clear law to use, to enforce the Care Act duties that will shortly be suspended – downgraded into powers only – apart from where NOT meeting the needs would amount to a breach of human rights …

  • We will still offer a steer for free, to anyone who needs one, and makes a referral on our online referral form here – for as long as we can.
  • We will refer people who need ongoing legal work to legal aid law firms with capacity to take work on, in compelling cases – we can’t hope to achieve what a regulated law firm can in an emergency, and we can’t ethically charge for trying, or wasting precious time.
  • This is going to be our main output for a while: we’re going to provide free template letters online, for the following groups of people to use in their own names – but in the fervent hope of donations, however small, with Gift Aid ticked wherever possible, via https://bit.ly/2WCNHhZ.

The letters will need to be adjusted, to suit one’s individual circumstances but are intended for the following:

  • New candidates for a care package, being screened out or left unfeasibly long
  • Current service users facing apparently arbitrary cuts to existing care plans, or any cuts, implemented without some genuine involvement of the adult and any carer first
  • Anyone being offered services that are inconceivably inadequate or inappropriate in nature
  • Informal carers being manipulated or forced into doing more than they feasibly feel able to
  • Relatives of those facing going into an unsuitable care home
  • Providers facing unilateral cuts to their fees or refusals to review clients when evidencing increased client needs

If you can think of others that are needed, we will do it! Email ideas to belinda@cascaidr.org.uk please!

  • We can also provide expert advocacy under s27(2) and s27(3) for anyone who needs it before a revision of a current care or current support plan. We will necessarily have to charge a low hourly rate for that work, but it can be done over the phone or by way of Zoom (online video conferencing software, for which you need only a link and a smart phone or a tablet). Email belinda@cascaidr.org.uk if you need to arrange some of that…
  • Finally, we’re going to run a page for members of the public to use to report good practice and policies as they emerge, from Councils and Care Trusts – you can find out about that, here.

Please note that our Trading Company will also be offering top-notch training by webinar/webinar recordings – to councils’ and Care Trusts’ staff. All net income goes to support the charity, of course.

The training content covers how to do what they now must do, as lawfully as possible, with regard to probably the most difficult conversations – and decision-making – that those practitioners and managers ever been obliged to face …

So if you’re a front line worker, a team manager or a senior manager and want that to be available, please mention it to your Head of Service now.

The offer will be with all Directors and Principal Social Workers in the next day or so, and available next week, if we can possibly manage it, and publicised here, when it’s ready. 

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Keeping calm about the Care Act, during the crisis

CASCAIDr wants to support councils to excel at this very difficult time.

We know that social work staff did not sign up to do the minimum for vulnerable adults.

And we fervently hope to see a new approach to the value of social work and social care, after the virus is beaten, across government and amongst the public.

The number of people volunteering to offer care and support via the “NHS” volunteer scheme is testament to the importance of a social care safety net in our society.

Our request is that the public shares its experience, via this particular page, with a description of anything good that their council is doing or saying, under the Care Act, whilst the normal Care Act legal duties are on ice and everyone has to accept being prioritised, rather than having enforceable legal rights to any particular quality of life.

  • You might tell us, for instance, about a policy on screening for assessment for instance, a website for supported self-assessment, or a statement of categories of service users or types of needs that aren’t going to be thought to be able to sustain a cut.
  • It might be some clear advice and information about a policy for letting people’s relatives be paid out of the direct payment, albeit that they live in the same household. If it’s not necessary now, when would it ever be?
  • Or it could be a policy that your council has decided upon for deferring charges for social care, for the duration of the crisis, perhaps, or using its discretion for increasing the Minimum Income Guarantee?
  • It might be about a council’s indication of the sort of situations where the council publicises in advance that there would be a breach of human rights if the needs were not met – or what criteria it’s going to use.

So here’s our invitation

We are keen to hear about – and publicise – sound, rational, sensitive, humane policies and practices from Councils or Care Trusts.

You don’t need to name yourself, publicly, if you don’t want to – your email address won’t be shown.

You can choose whether or not to mention the council’s name.

You must anonymise the name of the person whose situation or stance you’re describing, if it’s not you – whether a service user or a worker. We suggest how to do that below.

We won’t publish material that we think is negative – it’s not the time or the place. You can provide us with information about policy or approach related problems – or individuals’ difficulties – via our referral form on the top line menu bar, above.

Our Corona Crisis mode is limited to a private free steer on all such issues. We can and will make referrals on to law firms with capacity to take on cases that compel urgent action.

We’ll be moderating the material behind the scenes, so accounts of bad practice or policy will be treated as referrals for a free steer as to their legality, not put up on this page. Anything that is put up on this page as an example of good practice can be further clarified by the council or Care Trust being promoted, via a further comment.

Our government will need an evidence basis for doing the 6 monthly monitoring to which it has committed, regarding the hugely important decision as to when to resume “normal” Care Act services, based on legal rights and duties. This page can be a source of evidence of good approaches, and that might help the whole sector back to normality, sooner.

PS Don’t forget that we’re also providing free template letters for use by all members of the public in their own names, who want to know the right way to assert their case, politely and calmly, as one that must or really should be prioritised – the link to that page is HERE.


May we suggest that you copy and paste the most relevant form of wording below, into the Comment box below, before continuing to type in your own local story or good practice example:

My council is [name of the Council or Care Trust]…

I /Mr X/ Ms Y applied for adult social services, since the beginning of the virus crisis and …

Or

I / Mr X / Ms Y … am/is an existing adult client with a current care package/direct payment for care and support and …

Or

I am an unpaid carer to a person who has been getting adult social care services, and …

And then continue with the example of good practice, please, here

eg … the council / Care Trust is saying that…


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The Coronavirus Act and its impact on the Care Act

The provisions of the emergency legislation passed into law on 25 March 2020 and allow for suspension of all the mainstream duties in the Care Act, downgrading them all into powers – other than in the one situation, where meeting needs is necessary to avoid a breach of human rights. 

No regulations have yet been passed, but councils are already able, without fear of legal redress, to start doing a bit less than their normal duties or doing them differently, if that is considered necessary, because there is an element of retrospectivity provided for, for easing transition to the new era. 

CASCAIDr wants to support councils to excel at this very difficult time. We know that social work staff did not sign up to do the minimum for vulnerable adults and will do their best to stretch scarce staffing resources.

So here’s some good news, we think.

All the Assessment, Eligibility and Review duties for service users and carers can be suspended, except for sections 27(2) and (3) – the REVISION section.

Those sections contain the mandatory duty to INVOLVE adults and carers before making a cut to any existing care or support plan.

We’re not sure that councils’ management teams would necessarily understand the implications of that non-suspension, and we’re already hearing that cuts (even if understandable in themselves) are simply being notified in the post or on the phone.

‘Notification’ is not ‘involvement’ and won’t be enough to comply with this unamended ongoing duty, we can confidently predict.

It’s there (and unamended) because of public law and the all-pervasive contribution of human rights law in the law of this country already. Involvement was always essential, and still will be.

Protection from legal liability for breach of statutory duty is only being provided (albeit both before as well as during formal periods of suspension) for aspects of the Care Act that HAVE been modified or suspended by this Act. Section 27(2) and s27(3) are not in that category.  

For those who are considering how to operate, here’s a section by section analysis, for use in the days to come. Click here for that document.

If your job is in social work, please look out for our webinar/webinar recordings training offer, on how to operate the Act in a human rights and public law compliant way – for councils and Care trusts everywhere. Email belinda@cascaidr.org.uk if you need to organise access to those webinar recordings urgently.

And please donate to CASCAIDr to keep our comments and analysis coming! CASCAIDr is keeping calm, and carrying on in a crisis. We are locking down into a different mode, in relation to individual cases, but have made a separate announcement about that on our site, here. 

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Three LGO decisions focused on autism highlight some potentially relevant issues for public authorities

Statutory guidance states that local authorities must ensure that all frontline staff have general autism awareness so staff can identify potential signs of autism, understand how to make reasonable adjustments in their behaviour and communication.

The Autism Act 2009 required the government to produce statutory guidance for NHS and local authorities on working with autistic people. The guidance was originally published in 2010, and was updated in 2015. At paragraph 1.4, it says:

In line with the 2010 statutory guidance, local authorities should be providing

general autism awareness to all frontline staff in contact with adults with autism, so that staff are able to identify potential signs of autism and understand how to make reasonable adjustments in their behaviour and communication.

In addition to this, local authorities are expected to have made good progress on developing and providing specialist training for those in roles that have a direct impact on and make decisions about the lives of adults with autism, including those conducting needs assessments.

This expectation remains central to this updated statutory guidance”.

  1. Salford City Council (19 002 111)

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-111

What Happened

Mrs W was autistic and had a number of health needs which caused her to need support. Mrs W had never had a financial assessment and her care plan was both several years out of date and incomplete. This resulted in a dispute between herself and her support provider, and a complaint to the Council.

Findings

The LGO firstly highlighted that having a care plan so out of date and inadequate put Mrs W at an increased risk of harm, which was fault. An inadequate assessment leads to inadequate care, leading to (an increased) risk of harm.

The updated government 2015 statutory guidance under the Autism Act places a requirement on local authorities to provide general autism awareness training for all front line staff, as well as specialist training for those in particular roles.

The Council had not implemented this, which was fault. They had no-one trained in autism to undertake assessments. However, the LGO could not demonstrate that Mrs W suffered any actual injustice.

  1. Staffordshire County Council

https://www.lgo.org.uk/decisions/adult-care-services/other/17-014-693

What happened

Mr B had Asperger’s syndrome, a learning disability and OCD. The dispute with his Council related to his wish to move to supported living, which the Council felt his lower level of needs did not justify.

Mr B’s lawyer arranged for an assessment to be carried out by an independent autism specialist. This concluded that the Council’s assessment was flawed because it did not offer insight into Mr B’s communication difficulties and rigid thinking.

The specialist found that Mr B’s care and support needs had been significantly underestimated and the Council was failing to meet them: Mr B needed support from staff with a good understanding and experience of working with autistic adults.

Findings

The LGO found fault because the Council was unable to provide any evidence that its officers had autism training or previous experience of working with adults with autism. The Act places a legal requirement on local authorities that all assessors must have the skills, knowledge and competence to carry out the assessment in question.

Guidance also states that if an assessor does not have experience in a particular condition (such as autism), they must consult someone with relevant experience”. There was no evidence that they consulted specialists in relation to Mr B’s autism. Had they done so, the outcome of the assessment may have been different, and thereby the LGO could show that Mr B was caused a significant injustice.

3. Stockport Metropolitan Borough Council (18 014 455)

https://www.lgo.org.uk/decisions/adult-care-services/safeguarding/18-014-455

What Happened

Miss X had highly complex needs including Atypical Autism, learning disabilities and dyslexia. She was also diagnosed with a “communication disorder affecting both her receptive and expressive language skills”.

After a hospital stay, Miss X was discharged to Hostel H. It was clear that she was troubled and vulnerable. Her family requested safeguarding procedures begin, as they felt she was at risk of harm. Miss X was never formally given a care assessment and no safeguarding procedures were properly completed. A Learning Review began, but was not completed (Miss X passed away).

Findings

The LGO quoted the (NICE) Quality Standard on Autism (2014), which sets out minimum standards for delivery of services to those with autism. It says, ‘All health and social care practitioners involved in working with, assessing, caring for and treating people with autism should have sufficient and appropriate training and competencies to deliver the actions and interventions described in the quality standard’.

The Learning Review found some officers did not fully understand Miss D’s needs resulting from her autism and, therefore, the best way to communicate with her. The Council’s said it had no record of the duty housing officer who interviewed Miss D receiving any autism training. As a result, the Council missed an opportunity to communicate in the most effective way with Miss D. This was fault.

Again, the LGO emphasised the link of lack of autism support, back to inadequate, or in this case, a complete lack of a care plan or assessment. Without an up to date care plan, needs cannot be properly identified and the Council cannot plan how they will meet those needs. Notwithstanding the duty to assess any adult with an appearance of need for care and support, Miss D had strong indications of eligible needs

The LGO went into great length about the Council’s failings to properly assess, start safeguarding procedures, and delays in general. However mention of autism training was brief.

Comparisons

So it is noteworthy that the remedies across the three cases included:

  • Arranging for all relevant staff to receive appropriate training on autism and making reasonable adjustments
  • Reviewing of assessment(s) by appropriately trained/ skilled persons and/ or a specialist assessor
  • Financial payment to redress fault.

It is also noteworthy that the LGO in all cases highlighted the importance of care plans when assessing Council failings.

The LGO was readier to find a Council at fault for inadequate assessments, rather than inadequate autism training.

The LGO could find the causal link, the actual injustice caused to the complainant, by comparing the care they received and the care they should have been receiving according to their plan (or their last plan).

In comparison with issues to do with autism training, the level of detail discussed by the LGO was brief. (See for example decision one, where no injustice was identified from the lack of autism training)

Considerations/ learning for all public authorities:

  1. Is autism awareness training for all front line staff (including LA and CCG staff) mandatory and appropriately refreshed?
  2. Do training records evidence compliance with statutory / NICE requirements across SW practice?
  3. Are we confident that staff know when to seek additional specialist support?
  4. Are staff with additional specialist autism skills available, either to undertake assessments etc or to support those who are doing so? If yes, from where / whom / and within what timeframe?
  5. Are all relevant staff able to recognise the need to make reasonable adjustments and adequately skilled in making such adjustments, to avoid discrimination?
  6. Communication needs are a theme across these three decisions: how do we ensure that our communication with individuals takes account of their communication needs e.g. needs are noted at first contact and further routine opportunities thereafter, so that information is provided in a format they can understand?

A summary reminder of the Accessible Information Standard requirement is embedded within this document

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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.

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!

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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