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Summary of Counsel’s advice about the Norfolk Case

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

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

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

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

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

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

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

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

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

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

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

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

In summary, Counsel has now advised as follows:

“…policies which:

(a) reduce the MIG to the statutory minimum;

(b) choose not to disregard certain disability benefits;

(c) have poorly functioning DRE schemes; and

(d) do not consider alternative approaches,

are likely to be discriminating against severely disabled people.”

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

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

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

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

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

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

WHAT ALL THIS MEANS, in CASCAIDr’s view…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some potential areas to focus on are

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Cost/Scholarships/Bursaries

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

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

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

Delivery

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

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

Entry criteria

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

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

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

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

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

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

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

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

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

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

Our Third Year’s impact, despite Covid-19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For example, cases where …

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

On the charging front, too, we have

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

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

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

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

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

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

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

Suffolk County Council and Trust at fault for failure to complete a CHC checklist and failure to discuss discharge planning with family members

Decision Date: 23rd July 2020

What Happened

Mr F complained on behalf of his mother, Mrs G.

Mrs G had been receiving privately funded care at home.

In October 2017 she suffered a fall and was admitted to hospital with a fractured arm.

On the 9th October Mrs G was admitted to the rehabilitation unit for treatment, as she was unable to mobilise with a trolley or frame. No CHC checklist process was carried out at this time.

The Trust carried out a ‘mini mental state’ examination, which Mrs G scored 9 out of 10. Therefore there were no recorded concerns about her mental capacity.

Mrs G followed a physiotherapy programme and was also assessed periodically by the OT team.

On the 7th November she met with a social worker to discuss discharge plans. Mrs G said she did not want to go home because she didn’t think she would manage, and instead wanted to go to a care home with a view of potentially staying there permanently. (She had previously stayed at that care home for respite care). She told the social worker that she wanted to source her care privately, and that if she did eventually decide she wanted to return home, she would reinstate her private care home package.

The social worker highlighted to Mrs G that if her savings fell below the threshold, she would need an assessment if she wanted to stay in the home permanently.

The next day Mr F had a discussion with the care home about options, and a discharge meeting to discuss further options was held with Mr F on the 11th of November.

On 13 November, a multi-disciplinary team meeting decided Mrs G was medically fit for discharge. The care home assessed Mrs G, and she was transferred there on 16 November.

Mr F complained to the Trust and Council. He felt Mrs G’s discharge to the care home was rushed, that the correct assessments were not done, there was a lack of support and information provided, and the family had not sufficiently been involved. He also complained that a CHC checklist was not done while Mrs G was in the rehabilitation unit. Mr F received responses from both but remained unsatisfied with the responses and complained to the LGO.

What was found

Although Mr F felt that Mrs G’s discharged was rushed, the evidence showed that Mrs G had been assessed appropriately by both the physiotherapy and OT teams. No outstanding needs were highlighted in the discharge summary, therefore there was no fault in discharging her to the care home.

The LGO highlighted that Mrs G had been deemed to have capacity and had stated that she wanted to privately fund her care. Therefore, there was no need to undertake an assessment.

Regarding involvement of the family, the LGO found that the Trust had sufficiently involved Mr F. It held numerous meetings with Mr F updating him on Mrs G’s progress and held appropriate discussions with him about the discharge planning.

However, the LGO found that there was a breakdown of communication between the social care team and Mr F. The social worker did not liaise with Mr F because it understood that Mr F was talking to ward staff about discharge planning. This was fault. The Council accepted that it ‘would have been helpful if the social worker had updated Mr F’.

The LGO highlighted that guidance from the Health and Care Professions Council (HCPC) states “You must communicate properly and effectively with service users and other practitioners”. It determined that there was an injustice to Mr F, because if he had been involved or informed about discussions with the social worker, he is likely to have had more information and understanding regarding discharge planning.

Finally, both the Council and Trust acknowledged that a CHC checklist was not completed until the day after Mrs G was discharged. This was fault. It should have been completed in the rehabilitation unit with Mrs G and Mr F present. This caused an injustice to Mr F, as he was left with some uncertainty, and it is likely he would have been better informed had he been present when the checklist was completed prior to Mrs G being discharged.

The LGO recommended that both the Council and Trust write to Mr F to apologise for the failure in completing the CHC checklist, and failure in discharge planning.

Public Law Legal Points for the public (and discharge co-ordinators) complaints staff and anyone interested in discharge to assess (D2A) during the pandemic or otherwise

The facts giving rise to the complaint occurred WELL before the pandemic as the report makes clear. At that point, the hospital discharge guidance that everyone was obliged to follow was in the Care Act and various regulations and guidance which sat uncomfortably with the NHS Framework for Continuing NHS Healthcare.

That Framework was update in October 2018 and big changes were made to the central role to be played in allocating STATUS to people before their discharge, of the process known as Checklisting for CHC.

The regulations had long since made it clear that even if a person is fit for discharge, medically speaking, that does not mean the NHS’s duty is OVER; not until that has been properly determined in cases where CHC status is a possibility can it be said that the NHS has finished the job it started in the acute phase of hospitalisation. Checklisting was critically important as a screening tool,  to sort out those people who MIGHT qualify (a positive outcome based on a low threshold of scored descriptors seeking to identify profiles of need that might constitute primary health need) from those who would most probably not (negative result).

The notion of the CCG paying for a step down bed or an interim bed when that crucial assessment could be done, in a non-acute setting, and then ultimately in the best possible environment for the person’s recuperation, was current even in 2017 for people with a positive checklist (the council paying for reablement for those with a negative checklist).

The 2018 changes made checklisting more the exception than the rule, unfortunately, which has created a perfect fog for all as to their rights. The issue is that people don’t understand the difference between an assessment of needs (of course that doesn’t have to be by a social worker, if the NHS is continuing to be responsible, and is not done under the Care Act) – on the one hand – and assessment of STATUS on the other – on which funding depends, for the longer term.

This mess has now become the gold standard and blueprint for Discharge To Assess (D2A) policy, pre pandemic, during the first lockdown and now, under the second phase of special Covid funding for NHS underwriting of the next stage of care after hospital (regardless of setting) for up to 6 weeks and thereafter by default, ongoing, if assessment (of status) has not occurred.

In our experience, no council’s advice and information materials or hospital discharge notes from the CCG or Hospital Trust are adequate to make sure people know who is responsible for what, and why, and under what. Forgive us for thinking that that is kind of important and not something that deserves to be left out of Matt Hancock’s White Paper on innovation and integration!

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 Suffolk County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-014-942

A post on our CEO’s local neighbours’ site: a call to compassion

DOESN’T IT MAKE YOU CROSS!!

That boy is playing out during lockdown again, where are his irresponsible parents? Well, he’s got learning difficulties and many other problems one can’t see; he can’t be kept indoors for his own safety and for the mental wellbeing of his mother and himself, he needs that time outside.

See that man who drove an hour for a pit stop coffee. Not essential? Disgusting rule breaker! He just lost his mother to Covid-19 and needed to take an hour out when he cannot see a single friend or family member in his darkest hour.

That woman who’s taken her kids into the supermarket – 4 squealing kids she can’t control – all under 5! Is she trying to risk her kids’ health? What is she thinking?! That woman is a single mother and has no other choice, as able people have taken all the home delivery slots and her husband left them for dust for his secretary, 6 months ago.

That car is parked again at the neighbours! They’re not from the same household! The woman in the house tried to take her own life and the one parked outside is the only face she’s seen who is stopping her trying again to leave this earth.

How has she managed to get abroad and how dare she post pics on social media – Why not me! Fuming? That girl is a nurse and has worked 6 months straight off, saving lives of others’ loved ones and friends and colleagues without a single full day off and has been running on fumes for so long, her mental health took a hard hit and she needed that break to recoup to come back and fight the fight again.

He’s out working, he’s not an essential worker! Surely he should be home? That man is a newly self-employed single dad. He can’t claim, he doesn’t qualify for the government help schemes. He has no choice to continue his work to keep his roof and feed his kids.

“That woman’s out all the time, never in the house, I’m going to report her”. That woman finds every excuse to leave the house to escape her abusive boyfriend who has started beating her senseless sinking into a vicious circle of drinking after losing his job due to lockdown.

Just a few examples of many that could be anyone.

Everybody’s story is different, everybody’s circumstances are different. Nobody knows what battle someone is facing on a daily basis, the struggles people face behind closed doors.

So I’m trying hard not to judge what I see, and not to assume I know or understand why.

“Be kind”, I’m learning to say to myself, and be humble and mind your own business! Look after your own affairs, I’m learning – and be safe.

I’m trying to remember to reach out to friends and family and check in on my loved ones.

We may all be in the same storm but we are not all in the same boat; we are all fighting the same war but everyone’s battle is different. And what tough battles they are!

Free draft Letter Before Action for use by anyone being excluded from hospital or care home visits to anyone believed to be dying (ADAPT as appropriate)

[YOUR HOME ADDRESS]

[YOUR POSTCODE]

[HOSPITAL CEO’S NAME/CARE HOME MANAGER’S NAME]

[HOSPITAL TRUST’S/CARE HOME’S NAME]

[HOSPITAL’S/CARE HOME’S ADDRESS]

By email only to:

[CEO / CARE HOME MANAGER’S EMAIL ADDRESS] (IF A HOSPITAL, google ceo of trust email. It can usually be found at www.ceoemail.com)

[IF A HOSPITAL – PALS EMAIL ADDRESS] (google PALS email address of hospital trust)

[DATE]

Dear Sirs,

RE: Notification of potential Judicial Review Proceedings – Urgent action required

I am the [SPECIFY YOUR RELATIONSHIP/’FRIEND’ STATUS] of [PATIENT’S/CLIENT’S NAME], [PATIENT’S/CLIENT’S DOB], [PATIENT’S/CLIENT’S ADDRESS], [PATIENT’S NHS OR COUNCIL’S SOCIAL SERVICES NUMBER (if known)].

[PATIENT’S/CLIENT’S NAME] is currently accommodated in [WARD/ROOM X IN YOUR CARE HOME] and was admitted on [DATE] for [ILLNESS/ ISSUES].

We have been informed [PROGNOSIS OF END OF LIFE] on [DATE] by [WHOM].

I requested a visit to [PATIENT’S/CLIENT’S NAME] on [DATE]. This was refused by [STAFF NAME & ROLE] and the reason provided was the No Visitors policy due to Covid-19.

Whilst I understand that the [HOSPITAL/CARE HOME] is taking steps to curb the spread of Covid by implementing a ban on visitors, there are certain circumstances where exemptions to this policy must be made. The nationally applicable lockdown regulations allow people out of their homes and to form gatherings for the purpose of visiting people who are reasonably believed to be dying, and the implication or corollary must be that such people must be allowed to be visited.

(8) Exception 6 is that it is reasonably necessary for P to leave or be outside P’s home to visit a person (“D”) whom P reasonably believes is dying, and P is—

(a) a member of D’s household,

(b) a close family member of D, or

(c) a friend of D.

It is simply not within the power of the [NHS/the council or its delegate and chosen provider for the duty to meet a person’s needs appropriately and lawfully] to ignore the wider legal framework when engaged in the management of health and safety obligations to staff and [patients/clients].

There two sets of people’s legal rights and freedoms that a No Visiting Policy offends against here; the Human Rights Act requires conscientious balancing of other people’s interests, which has not been done in this case, as far as we are aware.

In addition to these exemptions, it is unlawful (in public law terms) to apply a blanket policy to any area of decision making that turns on judgment or discretion, or to fail to consider individual circumstances. Failure to do so is fettering discretion and grounds for judicial review proceedings.

Both the NHS and central Government guidance to care homes have made clear that ‘end of life’ patient visitors are exempted from no visiting policies.

Moreover, the failure to consider and allow a visit in our individual circumstances violates our Article 6 and Article 8 Convention Rights.

Actions you are expected to take immediately to prevent an urgent judicial review claim

· Urgently consider this request to allow me to visit [PATIENT’S/CLIENT’S NAME]. I am willing to undergo any rapid diagnostic test and wear full PPE. I do not have any symptoms of Covid-19.

· If the [HOSPITAL/CARE HOME] maintains the position not to allow visits, please provide reasons in writing and confirm the LEGAL basis for so doing, and in addition why it is considered to be the outcome of a conscientious balancing of the rights of the individual and the protection of health or the rights and freedoms of others.

· Due to the severity of [PATIENT’S/CLIENT’S NAME’s] prognosis and urgency of the situation, a response is requested immediately and no later than 1 hour from the timing of this email.

· If a response is not received within this timescale and to the terms above, I will consider issuing urgent judicial review proceedings and seek damages for human rights breaches should my [RELATIVE/FRIEND] die and the visit has remained prohibited.

· Costs will be sought as held in M v Croydon Borough of London [2012] EWCA Civ 595, [2012] 3 All ER 1237

I would be grateful if a decision maker contacts me immediately to discuss this further on [YOUR OWN TELEPHONE NUMBER] in order to arrange visitation and prevent the necessity of further action.

Yours faithfully

[YOUR OWN NAME]

Drug & Alcohol Rehab Specialist, Rehab 4 Addiction, shares its latest Infographic about COVID-19 and Mental Health

Many might say we are suffering from one of the worst outbreaks in living memory, as people are forced to say inside, and are losing income.

One’s approach to social distancing as the weeks go by may well depend on one’s age and personal circumstances, and relationships with others who are vulnerable – it may be relaxed or intensely anxious. Mental health concerns must not be overlooked during this pandemic. Many have experienced anxiety, depression and unease and we need to make sure that the slow transition back into regular interactions does not cause further mental health issues.

We also need to consider that many people are particularly affected by the sheer uncertainty of this pandemic. We don’t know if and when the pandemic will end or if another wave is here, or coming; thinking about the pandemic and how it may end can cause many mental issues for some. Social media is promoting unhealthy amounts of information on COVID-19 and may be neglecting the positive news. The ups and downs can make people overthink, and cause them to focus on the future instead of the present.

You or your family member might feel as if there is no end to this pandemic, but having a positive outlook and making a continuous effort to be more positive will do wonders for yur mental health. If you must, take some time off and focus on your mental health through meditation and physical activity: this is something which will have a positive outcome for your mental health. Take care of your mental health and that of your loved ones.

Here’s an infographic by Rehab 4 Addiction that details how to do just this:

The CMA and Care UK dispute over top-ups for residents entitled to Continuing NHS Healthcare

There’s been some pretty poor reporting, in the specialist and general press and online, of the outcome of the dispute between the Competition and Markets Authority and Care UK, a large care home company, over fees charged to residents entitled to Continuing NHS Healthcare, a funding status that obliges the NHS to pay for the care provided.

Care UK’s agreement to pay over £1m back to clients has been conveyed as  being all about additional payments, paid by individuals, on top of the NHS’s continuing health care fees (sometimes called top-ups). The majority of those affected will receive a pay-out of over £1,000 with some receiving substantially more, apparently.

The CMA is reported as contending that Care UK had broken consumer protection law by charging the additional fee because it was unfair and contravened NHS rules, which “require that Continuing Healthcare residents must not be required to pay towards their essential care.”

We think that the maths repay some consideration. £1m divided by 160 residents is £6250 each, on average. If these additional payments were £300 a week, and some residents are getting only £1000, then that means that these residents paid these top-ups for between 3–4 weeks, and 20 weeks – 5 months – but then stopped – which doesn’t make sense, because the fee would be ongoing for the duration of the stay.

The reports say the agreement came after the CMA launched legal action against Care UK in February 2019. But when one looks back to see what that was reported to be about, one finds that THAT dispute was about Care UK’s UPFRONT ‘admin’ fees, alleged to be breaking consumer protection law as a substantial non-refundable administration fee from residents for which they received no services or products. In that context, 1600 residents were affected, not 160, and some £3m was at stake. That represents £1875 each on average – but once again, a very small sum, equivalent to only 6 weeks of such supposedly ongoing fees?

It’s worth noting too, that when first embroiled in that dispute Care UK was saying that it was doing initial care assessments by way of example as to what the fees were for: we are guessing that some of the residents charged may have found the evidenced opinions in those assessments positively useful in going on to GET free CHC status in the first place.

When one appreciates the press release is short on detail, the reporting that 160 are now being paid back £1000 on average may mean for THAT type of upfront or admin fee, not a top-up.Each would begetting back £625 each, which would make much more sense as an upfront golden hello to a premium home that was giving them a great assessment which would help them get CHC, rather than an ongoing weekly top up.

Care UK’s stance

On the topic of additional payments, despite agreeing to pay these back, the Care UK spokesperson has now said: “The CMA’s action to stop us offering families the option of placing their loved ones in a premium home by making a personal contribution in addition to NHS funding is a backwards step in terms of consumer choice.

CASCAIDr can only agree – for reasons set out below.But we do not think that the company  should have wimped out on this footing: “We agreed to settle with the CMA to enable us to focus on the more pressing challenges facing the sector at present.” There was a much better reason, which we explain in our conclusion, below.

The spokesperson said this:

“Over the period we offered this option, Clinical Commissioning Groups (CCGs) were supportive of having access to additional homes, [ie ones that would not take the NHS rates offered, because uneconomic if one is in business to make a profit, we would add] and the small number of families involved, welcomed the additional choice it provided. The enhanced fee covered a range of benefits enjoyed by residents in a premium setting, including spacious en-suite rooms, on-site facilities such as cafes and cinemas, a wide range of lifestyle activities and a premium dining experience. These families always had the option of more modest, fully funded homes as an alternative.”

“In light of unclear NHS guidance and the widespread nature of these fees across the sector, we reject the CMA’s suggestion that they were unfair… As these fees are common practice with a great many other care home providers, we are at a loss to understand why the CMA has singled out Care UK.”

The so-called rules – from the 2018 Framework on NHS Continuing Healthcare

Here are the ‘rules’ in question – they are not laws, please note. They form part of government guidance about government policy, and as described, they are unclear, and easy to criticise, from a legally literate perspective!

The fact that the guidance assumes that people on CHC will have a care plan that is translated into a contract with the care home, that actually takes responsibility for what it is that the fee, already pre-agreed through procurement exercises, will actually cover, is particularly astonishing, for those who know anything about the way the sector works.

From a cursory reading of this ‘Guidance’ one would think that all such care homes all over the country are all signed up to the so-called nationwide NHS Continuing Healthcare E[lectronic] contract, but how wrong one would be!

Care homes have costing models based on their HQ costs and investment in LAND – they do not charge an individuated fee based on exactly what the person gets.

And they cannot be told how to operate; they are private businesses, whose rates and operating principles are either acceptable willing providers for the commissioning CCG’s perspective, or not.

We feel the urge for an FOI exercise, coming on, here!

Another part of the wording deserving of astute scrutiny (and then scorn!) is the point at which it suggests ensuring that any such ‘wants’ being separately contracted for should be met by ‘different’ staff to those delivering the services commissioned by the NHS! Clearly the authors have never worked in a care home.

Often, getting on to a CCG’s provider list will have required care homes to have signed up to arbitrarily low rates for whatever the needs of any CCG client then pushed through their doors might turn out to BE. Whilst that keeps the home’s beds filled most of the time, the CCGs will also need more suitable beds than they could ever get from the providers on that framework, to meet their own duties to all those qualifying for CHC!

So not only is it the exception rather than the rule that one can work out, from someone’s status as a CHC patient, or their decision support tool scores, OR their care plans (if they even have one of those), what the contractual obligation of the care home provider actually is by way of care inputs – it is also inevitable that these additional payments will always – in fact – BE “allowed”.  They are best seen as a collusive bridge that suit both parties to the main CHC contract – the care homes AND the NHS commissioners, in light of inadequate funding for the real cost of care, it is suggested, and a fact of life.

So now for a close look at these ‘rules’:

270. The NHS care package provided should meet the individual’s health and associated social care needs as identified in their care plan. The care plan should set out the services to be funded and/or provided by the NHS…

271. The decision to purchase additional private care services should always be a voluntary one for the individual. Providers should not require the individual to purchase additional private care services as a condition of providing, or continuing to provide, NHS-funded services to them. The CCG should make this clear when negotiating terms and conditions with the provider.

272. Where an individual advises that they wish to purchase additional private care or services, CCGs should discuss the matter with the individual to seek to identify the reasons for this. If the individual advises that they have concerns that the existing care package is not sufficient or not appropriate to meet their needs, CCGs should offer to review the care package in order to identify whether a different package would more appropriately meet the individual’s assessed needs.

274. There should be as clear a separation as possible between NHS and private care. In the Additional Private Care guidance, ‘separation’ is described as usually requiring the privately-funded care to take place in a different location and at a different time to the NHS-funded care. However, many individuals eligible for NHS Continuing Healthcare have limitations on their ability to leave their home due to their health needs. … For example, where a person receives 24-hour NHS-funded support by way of a care home package it may not be possible for privately-funded care to be provided at a time that is separate to NHS-funded care. However, in such circumstances, the private care should be delivered by different staff to those involved in delivering the NHS funded care at the time it takes place and they should not be delivering treatment, care or support identified within the care plan as being part of the NHS-funded service.

275. Based on the above principles, examples of additional private services which might be purchased separately include hairdressing, aromatherapy, beauty treatments and entertainment services.

Higher cost care packages

279. The funding provided by CCGs in NHS Continuing Healthcare packages should be sufficient to meet the needs identified in the care plan, based on the CCG’s knowledge of the costs of services for the relevant needs in the locality where they are to be provided.

280. Where an individual indicates a preference for higher-cost accommodation or services, the CCG should liaise with the individual to identify the reasons for their preference.

281. Where an individual’s indicated preference is identified by the CCG to be necessary to meet their assessed needs, the CCG should meet this as part of the NHS Continuing Healthcare package. For example, an individual with challenging behaviour may need to have a larger room because it is identified that the behaviour is linked to feeling confined, or it may be agreed that the individual requires a care provider with specialist skills rather than a generic care provider.

282. Where an individual’s indicated preference is not an assessed need, it is subject to the criteria outlined in the Additional Private Care guidance above. An example of this might be where an individual would like a larger room which is not related to their needs.

283. In some circumstances, individuals become eligible for NHS Continuing Healthcare when they are already resident in care home accommodation for which the fees are higher than the relevant CCG would usually meet for an individual with their needs. This may be where the individual was previously funding their own care or where they were previously funded by a local authority and a third party had contributed to the fees payable. This is permissible under legislation governing local authority provision but is not permissible under NHS legislation. For this reason, there are some circumstances where a CCG may propose a move to different accommodation or a change in care provision.

284. In such situations, CCGs should consider if there are reasons why they should meet the full cost of the existing care package, notwithstanding that it is at a higher rate. This could include that the frailty, mental health needs or other relevant needs of the individual mean that a move to other accommodation could involve significant risk to their health and well-being.

285. Where an individual in an existing out of area placement becomes eligible for NHS Continuing Healthcare the care package may be of a higher cost than the responsible CCG would usually fund for the person’s needs. The CCG should consider whether the cost is reasonable, taking into account the market rates in the locality of the placement. They should also consider whether there are other circumstances that make it reasonable to fund the higher rate. Examples might include: where the location of the placement is close to family members who play an active role in the life of the individual, or where the individual has lived there for many years and it would be significantly detrimental to the individual to move them.

286. CCGs should deal with the above situations with sensitivity and in close liaison with the individuals affected and, where appropriate, their families, the existing service provider and the local authority. Where a CCG is considering moving such an individual because there is no justification for funding a higher cost placement, any decisions on moves to other accommodation or changes in care provider should be taken in full consultation with the individual concerned and put in writing with reasons given.

287. Where the decision is made not to fund the higher cost package, the new accommodation and/or services should reflect the individual’s assessed needs as identified in their care plan. This should take into account personal needs such as proximity to family members. Individuals should be provided with a reasonable choice of providers wherever possible.

289. Where an individual becomes eligible for NHS Continuing Healthcare and has an existing high-cost care package, CCGs should consider funding the full cost of the existing higher-cost package until a decision is made on whether to meet the higher cost package on an ongoing basis or to arrange an alternative placement.

CASCAIDr’s commentary

This revised section on top-ups is actually less clear than the previous version, that additional payments will always HAVE to be permissible, as long as the item or notion driving that additional cost is not part and parcel of the assessed needs, nor part of the NHS contract for what it has bought.

The guidance fails to grapple openly with an obvious truth – there is no way that any person in the NHS can prevent a person from spending their own money on additional care, if they want some.

Therevision gets bogged down in trying to distinguish personal wants, which may be funded through a person’s paying for them, from wants that are inextricably bound up with the placement package that is required to cover the person’s needs, which could be paid for by the NHS as part of its fee, but where recoupment of the person’s extra contribution would be embarrassing and problematic to the NHS: it would look like NHS was charging for care.

It tries to suggest that ‘beauty’ treatments are on the acceptable side of the extras line (clearly these aren’t ever going to be a response to assessed needs) but that ‘higher cost’ homes are not permissibly funded through top-ups, when what it needed to say was ‘not permissible through top-ups that are funded directly by the NHS in full, and then recouped’.

Who knows whether this wording was deliberate and thus disingenuous, or just unfortunate?

It leaves the impression that a self-funder who wants to keep hold of their lifestyle choice of a larger room, nicer furniture, more facilities and higher staff ratios than the barely adequate minimum, after qualifying for CHC, cannot expect to stay where they chose to go before qualifying, and must therefore be moved on, for its own sake, when qualifying for CHC.

There’s nothing wrong with a care home accepting an ex-private funder on a CCG standard rate for standard care for a CHC person – with any non-needs related extras or shortfall being set as a percentage, or a chunk, and being met by relatives or the client, in a clearly separate contract, to get the home’s income back up to its headline rate.

It may be harder for a person and a care home to agree how to express that willingness, in advance, but not impossible, not with proper legal advice!

It has been clearly allowed for regarding s117 Mental Health Act aftercare arrangements – another group of fully funded clients, it should be noted.  

The trouble is, of course, it would mean that the NHS contract for CHC would have to identify what standard care is, for any particular level or profile of need, and until we found South Warwickshire CCG’s policy below, we would have bet money on the position that no NHS care commissioner or care planner in the history of CHC has ever wanted to have to do that

But here is South Warwickshire CCG’s 2019 policy, which is a model of its type, in our view, from a legally literate perspective.

Where an individual is funding additional non-healthcare or healthcare services, the associated costs to the individual must be explicitly stated and set out in a separate agreement which should be provided to the CCG to ensure the avoidance of duplicate costs, and for record keeping purposes.

If the individual chooses to hold a contract for the provision of additional services, it should be clear that the additional payments are not to cover any care provision (relating to the individual’s assessed needs) which is funded by the CCG.

In order to ensure that there is no confusion between the NHS and the privately funded services, the CCG will enter into a legally binding service agreement with the selected care provider which details the provision by that provider of a defined level of health and social care to the individual. This will expressly be independent of any arrangement between the selected care provider and the individual (and/or their representative) and will be expressed to continue notwithstanding the termination of any arrangements made between the individual (and/or their representative) and the care provider.

The implication in the NHS CHC framework that a CCG is actually going to force a move on someone who’s able to pay the shortfall, or who had contracted privately in advance with a posh care home to pay a top-up if they ever become a CHC patient, (or when they deplete under the local authority threshold for that matter) would be ridiculous.

In fact, the 2018 Framework properly provides many justifications – on the facts of the individual case – encouraging any CCG in that situation to accept that it may need to pay the home’s full amount.

The Framework MUST to do that, to be legal, because in this country, right now, both the Human Rights Act and the public law principle (that when one is bound to meet need, one must take all relevant considerations into account and do so appropriately) necessarily inform and pervade care planning law. CCGs can be judicially reviewed and not just complained about, for unlawful and indefensible stances on what constitutes an appropriate care plan, and it is worth noting that that is NOT mentioned in the Framework!

CASCAIDr’s conclusions

If one goes to the CMA’s cases page to look at the undertaking, one can see the offending contract term in the Care UK’s resident’s agreement to pay the top up.

It appears not to have been done in advance when a resident first entered the home, privately, being worded to cover both continuing residents and those newly qualifying for CHC from the outset.

It does say that the Care UK policy is not to keep a client if the fee is not what it has been charging or wishes to charge for a room, and says the agreement to make the shortfall payment is sufficient to waive that policy (thereby making it a condition, regardless of whatever sum it has agreed to take from the CCG!).

It is specifically made part of the agreement that it might not even be for an enhanced room! It simply refers to the shortfall, and not to any given element, enhanced service or extra, on top of what the basic service (the one that would have been contracted for by the NHS) would have been seen to involve.

And the agreement involved waiving any right, ever to allege that the shortfall amount was invalid, illegal, void or otherwise not payable.

So it is unsurprising, in light of that information, which is in the public domain, that Care UK fell on its sword; it was fortunate that the CMA allows corporate bodies in this position to resolve disputes without admission of wrongdoing.

We can only suggest that the CMA dispute could have been avoided, perhaps, if Care UK’s management had been better advised on the legal framework, and how to reflect what CAN be charged, and why, in its contracts. The terms under scrutiny took no account of the National Framework, however open to criticism that that Framework is, and amounted to claiming entitlement to double charge for facilities and services which had already been covered by the NHS contract.

We doubt that Care UK’s residents and their families will object to being repaid, or care to stand up for choices which they or their families made capacitated decisions about. But we think that suggesting that NOBODY can ever contract to pay an additional payment, for the future, and that that is a matter of legal rule, is misleading and irresponsible.

Other large care home management teams should take note if keen to avoid this sort of reputational debacle in future.

CASCAIDr Trading Ltd, the trading arm of CASCAIDr the charity, can always advise corporate care providers from the private as well as the voluntary sector on these matters: any profit from the charges goes to shore up the charity itself!

belindaschwehr@cascaidr.org.uk

CASCAIDr’s Q & A fund-raising campaign for 2020

Every year we raise money for the London Legal Support Trust – which supports voluntary sector organisations which provide legal advice about welfare law.

And that includes us, of course – so helping the LLST, helps us – and we really appreciate whatever you can donate this year.

Normally we walk a long, long way, but this year, we’re doing 10 days of answering 10 challenging LEGAL questions, instead.

These will be put up on social media, and as replies to questions posted, roughly one an hour between 9am and 7pm, for two weeks, with time off at the weekends!

They can be about the System in General and Advocacy (MON 28); Assessment and Eligibility (TUES 29); Budget Sign-Off and Care Planning (WEDS 30); Cuts and Revisions (THURS 1) and Supported Living, Ordinary Residence, and Housing Issues (FRI 2).

The second week, on the day the LLST  Walk would have happened, we’ll be doing Covid-related questions, Easements and Carers’ issues (MON 5); Mental Capacity and Choice (TUES 6); Direct Payments, “Managed Accounts” and Health Budgets (WEDS 7), Continuing Health Care and s117 aftercare (THURS 8) and Charging and Financial Assessment (FRI 9). Oh yes – and Human Rights, at any time!

They’re all drawn from the work we do daily (and we’d soooo love to be asked one that’s new! – if you’re up for that personal challenge!?)

Every day, at 1pm, the 3 juiciest questions in the subject areas above, will be answered and discussed, and the video made available on YouTube.

We want to get the sector talking about law again, in this era of ‘anything goes’, and we will do whatever it takes to make it interesting!

The ground rules are as follows:

No question can be more than 100 words long.

It can be made up of several parts, but that’s the limit.

You can post a question HERE below, in the Comment box, anonymously, or you can leave your name on it – it’s up to you.

We want you to anonymise the name of the council or CCG, or care provider, AND the name of the person it’s about.

We won’t feature your question if you’re really asking for legal advice via this route, about a specific problem. We want you to make your question a GENERAL one, in terms of the wording please, and we have to trust you to do that.

We’re doing this because even though we can’t walk during social distancing, we can use what we know, to spread the word even further, about people’s rights – right to something that most people had hardly heard of, before Covid – whilst others have always had to depend upon it, and local authority’s grasp of the legal framework underpinning it, for a decent quality of life, independence and dignity.

The law needs to matter! Otherwise, who gets what is just arbitrary, and able to be manipulated.

That is not fair to the fearful, the uninformed, or to incapacitated people

and nor is it fair to the tax paying public, either.

We want questions from service users, family carers, care providers and social workers please – from advocates, care and support brokers, direct payment support staff, peer support groups, other charities and from any activist law firms or campaigners.

No holds barred, as long as it’s on one of the topics set out above!

Our aim is to inspire 1000 people to give £10 each.

If we succeed, we can become a proper law firm, acting through authorised solicitors, with a regular crowd-funding capacity – and therefore extend our support into the issue of judicial review proceedings, without recourse to the legal aid system.

We think that that will have an impact on the local authority and CCG world of resource allocation and commissioning. More than that, though, we hope to revive interest in legal principle, as a strategic tool for ensuring that we do all GET what Parliament intended, even if no political party in living memory has ever fully funded what it collaborated over legislating for.

So PLEASE DONATE

HERE, please, not our usual button on our website, please – CASCAIDr’s Virgin Money Giving fundraising page link for this campaign can be found, here:

https://uk.virginmoneygiving.com/CASCAIDr20

Here is an example of the sort of question we mean, below, where one would normally put a Comment:

Durham County Council at fault for failing to regularly inspect the property it had Deputyship over and make appropriate repairs

Decision Date: 24/03/2020

What Happened

Mr X complained on behalf of his late father, Mr Y.

The Council had been Mr Y’s deputy for financial affairs since 2016. Mr Y owned a retail business property which was let to Mr Z.

Mr Y lived in a care home, as a self-funder (judging from the report), paid for by using the income from renting the business property out. Rent was paid into Mr Y’s deputyship bank account, managed by the Council, until April 2019.

When the Council became Mr Y’s deputy in 2016, the Council sought legal advice about the rental agreement, and whether the lease had expired. It was identified that the lease would not end until Mr Z or Mr Y served notice. Neither had done so.

In May 2018 the Council was alerted to a water leak in the premises. It inspected the property for the first time since it gained Deputyship. It recorded damage, but then did not arrange for any repairs to be made. The Council, acting as Mr Y’s deputy were responsible for repairs and upkeep of the property.

In late 2018 Mr Z the tenant wanted to transfer his lease to Ms B. The Council Deputyship team sought further legal advice, and discussed the matter with Mr Z’s solicitors.

In January 2019, Mr Z left the business, intending to hand it over to Ms B. Mr Z remained leaseholder until the Council decided what should happen.

The Council made a best interests decision about what should happen to the lease under the Mental Capacity Act. In doing so it considered:

  • Mr Y’s earlier wish to rent out the property.
  • How important continued rental income was to meet Mr Y’s care costs.
  • The risk of not transferring the lease, meaning Mr Y losing rental income

It concluded (on a date unknown) that it was in Mr Y’s best interests to allow Mr Z to continue as the leaseholder, but that Ms B would occupy on some or other basis. Ms B would pay rent to Mr Z, and Mr Z would continue to pay rent into Mr Y’s deputyship bank account.

The Council ‘understood’ that this would be the arrangement until a new lease was drawn up under Ms B’s name. It continued to work with solicitors to arrange a new lease.

It is unclear from the report what Mr Z’s views were, so we can only assume that all parties agreed to the Council’s proposal on behalf of Mr Y.

The Council discussed repairs with Ms B, and inspected the property in February 2019, for the second time.

Unfortunately, Mr Y passed away in March 2019, by which time the new lease had not been finished and the Council had not arranged for any repairs. We do not know whether Mr X’s interest was as executor of a will or as a beneficiary as well.

Mr X complained to the Council that it had let Ms B take over the property without a lease or payment plan in place. He said the business had been let go into disrepair. Mr X says he is now having to go to avoidable effort to remove the new occupier so he could sell the property.

The Council replied to Mr X acknowledging that he was seeking legal advice about the council’s failures.

It also explained that as Mr Y was paying the full cost of his care, (either as a full cost charge or because he was well over the capital threshold, one cannot tell) it had taken the best interests decision as his Deputy to allow the premises to continue to be let. This was so that rental income could contribute towards his care costs.

On Mr Y’s death, the Council reimbursed Mr X with the balance of Mr Y’s estate.

What was found

The LGO stated that the legality of Mr Z’s tenancy and its transfer to Ms B was for the courts to decide. However, the investigator found that the Council sought the correct legal advice in regards to the lease, and based on that advice it found that Mr Z did have a continued right and obligations as a tenant.

There was no fault in how the Council made its decision in principle to transfer the lease to Ms B; it made a best interest decision about the lease, having regard to relevant information, its understanding of Mr Y’s previous wishes, and of his financial circumstances. Although Mr X disagreed with the decision, there was no fault in how the Council made it, in terms of the Mental Capacity Act.

However, the Council was at fault for failing to regularly check the property and make appropriate repairs. As Mr Y’s deputy for property, the Council only went inside the business twice during the three-year period of its deputyship. Any reasonable person would have done so more regularly. It did not promptly arrange repairs, and did not visit the property when Mr Z left (to check on its condition).

The LGO highlighted that these were important actions that should have been taken in order to protect Mr Y’s interests. They were actions any responsible person would have taken about their property. The Council’s failure to take these actions was fault.

The LGO said that the Council could have considered using a property manager to undertake tasks the Council considered it was unable to do.

Remedies

The LGO recommended that the Council pay Mr X £500 in recognition of the distress, time and trouble caused by the fault.

Points for the public, service users, hospital leavers, family and peer supporters, advocates, and councils etc

One cannot possibly discharge the fiduciary duties of a deputy in such a casual fashion. One is appointed on the basis that is fit and proper to be given the role, and one makes declarations about one’s approach the person’s property. The Council would have been aware that Mr Y held a property which was on lease to another party. It would have known that the arrangements required the Council to ensure that the property was maintained and at the very least inspected.

We can’t understand why the council thought that a factor for the MCA balance sheet was the risk of loss of rental income if the lease was not transferred, because Mr Z would have continued to be liable – as appears to have been the conclusion of all.

Logically, what should have happened was that the lease should have been assigned, and one needs the permission of the freehold owner to do that in most cases, but it cannot ever be unreasonably refused. That would have left Mr Z with the responsibility of sorting the assignment out in order to be personally free of the ongoing rental obligation. We wonder whether this permission was not given by the Council because of ignorance, or because of having to pay out of Mr Y’s assets for legal advice, but that makes no sense because they could have got advice from the council itself regarding that business tenancy.

We cannot tell from the report whether the gentleman was a self funder paying care charges directly, or a council placed person on a full cost charge based on his capital assets, and incapacity, which assets would have been depleted by having to sort out legal advice about the assignment; but it may be that there was a perception on the part of the council that he really needed to be able to keep on paying his care charges, in order to save the council from so doing; we simply cannot tell from the report.

What we can point out is that the Office of the Public Guardian (2015) sets out responsibilities for Councils in its Deputy Standards. These can be accessed here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/504368/SD6-Deputy-standards-public-authority-deputies.pdf

The Standards specifically recognise where a person may own a property they do not live in and at paragraph 1(d) advises Councils to ensure that the property is secured and maintained properly which would include keeping a record of regular inspection visits.

The Standards also refer officers to the need (at 3b (6)) to ‘Ensure that all decisions taken are free from any conflict of interest, be it personal or organisational.’

This Council clearly failed to follow this guidance and had to pay for the distress this caused Mr Y’s son. It needed to understand its role as more than just a decision-maker about finances, and recognise that if individuals own property then all the legal responsibilities sit with the Deputy including visits and maintenance. Councils often pay an outside agent for the actual day to day work involved in deputyship and appointeeship, so why this was not done we do not know. It may indicates a general dumbing down of local authority officers’ culture regarding these very important duties, in our view, which would be of grave concern.

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 Durham County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/other/19-008-136