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

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

For recommendations, see here:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That’s very cheering, isn’t it?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Witnesses for the CQC said this:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read the First-tier Tribunal judgement findings in full

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

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

The two central issues were:

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

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

The criterion is represented below.

Activity 9: Engaging with other people face to face

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

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

The Decision of the Court

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

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

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

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

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

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

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

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

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

[para. 41]

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

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

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

Comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

However, Mr Feldon went on to say –

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“…The duty is a clear one derived from section 26 of CA 2014 and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which … would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected.” 

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

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

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

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

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

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

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

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

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

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

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

Belinda Schwehr

CASCAIDr

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

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

Headline report conclusions

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

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

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

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

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

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

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

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

Problems with Social Care Assessments

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

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

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

Suspension of Services During Appeals

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

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


Lack of External Oversight of Social Care Assessments


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

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

International Legal Standards

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

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

Report recommendations (in full):

To the UK’s Government

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

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

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

To the UK Parliament

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

To the Ministry of Housing, Communities and Local Government

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

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

To the Department of Health and Social Care

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

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

To Local Government authorities

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

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

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

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

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

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

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


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

mradamwebb@gmail.com

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CASCAIDr’s first year of operation

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How many of CASCAIDr’s first year’s 200 or so clients were

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What have been the OUTCOMES, for some of CASCAIDr’s most successful clients?

Threatened cuts to people’s packages, services or budgets, have been cancelled or reduced

“MR and SN have nominated your organisation for a Gold #IAMchallengingbehaviour Star Award as you are continually challenging the behaviour of those people and systems that stop people getting a good life.”

Adequate, practicable budgets have been secured (as opposed to arbitrary or blatantly cost-capped budgets) for a person’s own use in a person’s own home

“The reality is that we did not even have to concede any ground!  We are still pinching ourselves to check whether we are not in fact dreaming that this actually happened! For this, we must again wholeheartedly thank you for your support and guidance throughout!”

People have been able to access or enforce proper processes, such as professionally competent assessments, and paperwork including written reasons, after we’d got involved

 “I just had a call from a delightful and sincere sounding lady from Adult Social Care. She is going to speak to the learning difficulties side of social services to see which team should do a new assessment, or if it should be a collaborative affair with the CMHT. She is also arranging a visit from an occupational therapist. I am cautiously optimistic. Thank you both for your continued support. I am so grateful.”

Necessary, wanted and suitable care home placements have been commissioned, when councils had first said ‘We don’t place people in care homes, ever’ – or ‘not in THAT company’s care homes’

 “Just had the call we’ve been hoping for, J has got the funding for [the preferred provider]! Thank you so much for your input, we are thrilled.”

Care Plans that had never been written up before, have been formalised so that people can see what they’re regarded as needing, and can check the cost assumptions

“My Parents and I have read your email and both attachments thank you – they are fantastically well written. I will go to a bank this week and open a bank account in readiness for a finalised budget and plan”. 

Two people were saved from being removed from care homes after living there for over 15 years and 33 years respectively

“They’ve withdrawn the notice and agreed to follow due process. Mrs X is over the moon and so grateful. She would have had no chance at this time of year of finding someone with availability for legal aid work”.

The proper use of the MCA has been forced into people’s Care Act processes where it had inappropriately been left out, so that their needs and human rights have been properly taken into account

“You are a huge hit with K’s mum, and K seems much happier now; in no small way due to the work we have done with you, as we suspect it has helped [the provider] to really think about the situation.”  

Ordinary residence disputes have been magically managed away and the right council has paid up

 “ I explained everything (almost) that you went through with me yesterday about why the way we’d been manoeuvred into taking over the out of area emergency placement, when X council made the contract, and T is incapacitated and J has no status regarding his funds, was unlawful. A new social worker has now been appointed.”

Top-ups for care home rooms, above the council’s offered budget, that had been said to be inevitable, have been cancelled and refunded or the out of area rate taken as the guide price

“I am absolutely ecstatic myself and cannot wait to tell Mum.  It has made me appreciate that we are in a privileged position to have had your help and that for many families this outcome would not have happened.”

Direct payments have been increased or not reduced, and some disputes about misuse or non-use or going back to a directly commissioned package, have been resolved

 “Thank you for the good work that you do with the charity. You have achieved everything you predicted for my brother and for us, as defectors from direct payment difficulties, and compensation on top -we are really grateful.”

People have been found to necessitate care by their own relatives in the same household, and permission has been granted or left in place

 “Thank you for the immediate response and honesty…X has been amazing and I totally understand the position he is in, and truly appreciate the help given in difficult circumstances.”

Care charges have been reduced, by reference to disability-related expenditure evidence, and at least one refund was secured

“..my financial resources will be severely stretched,
for the rest of my life, but I do so appreciate all you do for me.”

Carers have been awarded rationally sufficient budgets for themselves so as to sustain caring –or replacement care has been added to the service user’s package, after carers could stand no more

“With the advice you have provided so far, I feel more confident.  I will deal with this matter on my own now. I would like to say a huge thank you for everything you have done for my mum, and also myself, I have learned so very much from CASCAIDr’s work.” 

People have been supported to challenge CCGs’ Continuing Health Care decisions, and have either succeeded, or got a split package – and some have even got money back – in one case £50K

“The retrospective is awarded from Feb 2014… I’m pleased and very grateful for all your help getting to this point.”

CCGs have been threatened with judicial review for cost-capping and have ended up preparing quasi-Care Act care plans for commissioning an appropriate service and operating DoLS properly

 “Thank you to you and your case worker. I have now gone through the letter and have a few comments and tweaks maybe for your consideration. An excellent letter. I do not know what their defence(s) could be, given all their failures.”

One severely disabled person has been assisted to secure housing from the Housing Authority, in co-operation with service provision from social care, despite also having a history of substance misuse, and assumed reluctance to engage

“My bosses are on board with all this, and our funders also see the importance of this for both this service user and, of course, the potential for other cases to benefit from what we’re learning.”  

People have been assisted to selfprotect, against councils using the Court of Protection as a threat, to deter them from involvement in decision-making or from holding the council to proper account under public law and the Care Act

I’ll paraphrase, but what you said would happen, did happen within a few minutes of LA’s solicitor’s opening comments, the Judge turned on her and said ‘Stop right now! Stop where you’re going right now! I’m not having it! I’m not going to approve your draft orders. We’re all here to decide what’s best for Mr X’s support and it’s entirely proper that Mr Y is included in these decisions. I suggest you speak to your clients and come up with another plan because I’m not having it.’ We were so relieved.”

Complaints have been won and compensation recommendations secured, from the Local Government and Social Care Ombudsman

 “Thanks for all your help. I’m sure we wouldn’t have got the LGO decision without it.”

Providers from the private, public and third sectors have been assisted to stand up for their clients’ rights, and not just their own fees difficulties

“CASCAIDr’s support for our management’s thinking, in relation to what had seemed like an ultimatum from the council, has really helped turned things around for our charity.”

Independent supervision of a fresh assessment after a successful LGO complaint has been provided to a local authority

 “Thank you – that is really useful and helps us frame some of the points in your response to the Assessment and Carers Assessment for us to use in future training and guidance. I really appreciate this additional comment.”

Many more people now know what the local authority’s Monitoring Officer actually has to do, as the statutory officer responsible for governance, with a referral of alleged illegality.

So, PLEASE donate to keep us going into a 2nd year and beyond, and supporting our planned formal Litigation Strategy and our first residential Bootcamp for new Caseworkers in the Spring – by clicking on: DONATE to CASCAIDr

Finally, what sort of matters has CASCAIDr had to try to signpost to other sources of help, as completely out of our scope?

CASCAIDr specialises in public law matters for clients in the health and social care sector, from age 16+ – so we’ve had to signpost away matters to do with children, special education, safeguarding issues, adoption, DWP benefits matters, a negligence claim, a neighbours’ dispute – but not before taking the time to look at the problem. Please do look at our home page before getting in touch, as it all helps to keep us viable!

So, if you’ve got this far, PLEASE donate – to keep us going into a 2nd year and beyond, by clicking on: DONATE to CASCAIDr

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The Monitoring Officer – a ballistic missile for service users, when faced with unconscionable delay in getting a decision on a care package or budget!

This post is for flagging up that there is a much easier way of challenging a local authority’s actions or decisions, policies or practices, than complaining, and it’s not widely publicised. The people responsible for managing this system don’t even agree about its scope, but that doesn’t mean that the words in the statute don’t mean what they say!

It’s use of the Monitoring Officer’s own enforceable and mandatory independent statutory duties to keep a roving eye or ear out, for alleged unlawfulness within his or her council. Its existence means that all you have to do is know enough about law to be able to string 3 or 4 paragraphs together (about the Care Act, the Guidance or the Regulations, in the case of adult social care issues) to lay out for a Monitoring Officer a coherent arguable case on why what’s been done, or is about to be done or not done, is simply not defensibly lawful. 

This duty was first created under an Act that goes back to 1989, when governance no doubt meant something different to people working in the public sector, to what it tends to mean now.

The attached document ‘What is this information FOR’ is an explanation of what the Monitoring Officer is there to do, and a table of nearly all the Monitoring Officers in adult social care councils in England and Wales, together with their email addresses. A few are missing and will be added if anyone can give me the information, which should be in the public domain.

How to contact these Officers: if you ring up a council you will often find the receptionist doesn’t have the means to find out who the Monitoring Officer is, and that makes us MAD! So we have put this together, although it may not be up to date – email addresses to use for reaching their attention.

Monitoring Officers’ list

There used to be an excel spreadsheet supplied by a data supplier to our CEO for money, but it was a breach of the terms of the licence for her to share that with the public. She then used it to enquire of Monitoring Officers, directly, whether they object to their email addresses being publicised, and where that was the case, she has left the name blank, given a generic address instead, or otherwise checked data that is publicly available to advise people how to get in touch with the relevant Officer, before gifting this material to the charity. Her logic is that the information as to the Officer’s name could not be refused if the council was asked for the person’s contact details, and if the council’s receptionist does not know, anyone could use an FOI request to the council to find out who is their designated Monitoring Officer – since the law says that there has to be one!

If there are references to Acting or Interim in the job title, they may well have changed recently.

There is also a justification for publishing their email addresses, without explicit consent, for Data Protection Purposes. If anyone thinks that making it easier to uphold the law in adult social care, by telling people how to use a remedy that’s been provided through the will of Parliament, is not a legitimate interest, on my part, as a data controller, then they are able to complain about this to the Information Commissioner, with whom CASCAIDr is registered.

We very much hope that people will put two and two together, and equip themselves to do polite, informed battle for their or their loved one’s care packages and budgets.

CASCAIDr will do these letters for free for people who have FREE SCOPE issues as described on our home page. If a problem is not within that scope, but is still one where illegality lies at the heart of the dispute, then we will do this for an affordable fee.

One needs to use our referral form, under the Free Advice Tab, to enquire, please

If one were to be simply ignored by the Monitoring Officer, that could be a breach of the law by him or her, in person, and would also be likely to be maladministration, for the consideration of the Local Government Ombudsman.

What is this information for

Getting Legal Help and Legal Aid

Law firms don’t HAVE to offer legal aid funded services; and very few firms nationally, do legal aid work for community care matters, even if you would qualify, by reference to your means – and there’s a merits test as well. But there’s a search tool below, for finding the firms that offer this service. 

The Public Law Project is now a Charity, and can be a good place to go for advice about where ELSE to go.

The Disability Law Service has a legal aid certificate as well for this area of law.

If you know of any others, please tell me their names, by email belinda@cascaidr.org.uk

Don’t forget that you can now go straight to SOME barristers through what is called Direct Professional … or direct public access arrangements: google “community care law” or “social care law” alongside the word barrister and email or telephone the clerk and ask whether these arrangements operate in those chambers or with a specific named barrister whom you’ve found on a search.

Law firms offering community care legal services, in no particular order:

Ben Hoare Bell; Simpson Millar; Irwin Mitchell; Pannone’s; Bindmans; TV Edwards; DPG Law; Martin Searle Solicitors; Edwards Duthie; Switalski’s; Cartwright King; Ridley & Hall; MG Law; Foster & Foster; Sinclairs; Howells; Stephensons; Jackson Canter; Latimer Lee, Wrigleys; Clarke Wilmott; Julie Burton Law (in Wales); Burroughs Day (Quality Solicitors); Alison Castrey Ltd; David Collins (best for providers arguing about fees, but it is not known whether they take on individuals’ own claims about fees, other than for CHC); Brunswicks (mainly for providers); Bates Wells and Braithwaite (mainly for providers’ arguments and particularly charitable providers) and Anthony Collins Solicitors (also focusing on Providers’ work).

If you could only afford legal advice if you were financially assisted, you need legal aid or crowdfunding. Use this link below, together with the ‘Category’ filter on the linked site, to check out if there’s a firm local to your postcode, with a contract for Community Care work – they are few and far between, these days, but most will deal with you on the phone or online, so distance need not be a problem…

http://find-legal-advice.justice.gov.uk/

Search facility for legal aid solicitors

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A section 117 client’s services were restored after our involvement

…They hadn’t received the letter at that point, so I gave them a copy to read. They left, after almost 2 hours, agreeing to reinstate J’s support after just leaving it for 3 months

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A trainee social worker uses the law for her own Mum’s interests in getting out of ‘respite’ care to go back home

“The support you have provided has been fantastic, regardless of the outcome. I do not believe I would have even been able to get this meeting arranged and I have learned so much.”

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