Archive for News – Page 2

10,000 steps for front line legal advice – 8th June 2020

The London Legal Support Trust has helped US out, in the Covid-19 Crisis, and we really want to give something back. So, CASCAIDr caseworkers and volunteers are walking for justice, in their own gardens, or in a public garden, for 10,000 Steps for Justice.

This is not directly for CASCAIDr (because we hope to do 10K for this charity in October); this is for the LLST itself, to distribute funds to other legal advice organisations who need the support as much as we do.

The Lord Chief Justice invites us here to get involved All legal advice organisations are facing unimagined difficulties with furloughs, family worries and adapting to the challenges of the COVID-19 outbreak – they’re all staffed by human beings!

How you can get involved:

Many of you probably DO 10,000 steps a day, for personal goal-keeping. You may have missed out the odd day, too, over the last 2 months!?

So, we’d be so pleased if you would dedicate your steps to US (or commit to catching up!) on that particular day. You could bounce you steps on a space hopper, attempt a 3-legged race/egg and spoon challenge with your household, juggle as you march on the spot, or dress up, to lift spirits on the streets.

Please let know if you’re willing – and then you can help us spread the word amongst your own circle of interested supporters.

Our CEO Belinda is aiming for at least 2500 of her own step-count ON STAIRS over the course of 8th June, to make amends for the weeks of sitting there, during lockdown, and thinking about what’s going to become of adult social care and the UK’s social work safety net, after the crisis passes!

Donations: – we get that it might not feel comfortable to ask friends and family for donations at this time. So, we’re also saying it’d be just fine if our walkers would consider ‘self-sponsoring’ – or if past clients and supporters could donate your daily coffee allowance, weekly commute or monthly gym membership. 

Here’s our Virgin giving page if you can make a contribution:

Please share:

CASCAIDr’s Q&A session, live with CoProduce Care 06/05 2020 – on care home deaths

CASCAIDr’s CEO Belinda Schwehr was delighted to do a Q&A on the possible link between deaths in care homes and the primary agenda of the government of saving lives by protecting NHS capacity, as the guest of Sophie Chester-Glyn’s CoProduce Care.

You can see the video by clicking here and download a transcript here, below, but please do consider donating to CASCAIDr’s survival during the Covid-19 period, via our button on the right.

We can’t be this obsessed about public law and human rights, without financial support, as it all takes study and thought!

Please share:

The Care Act Easements – which side of the line is your council operating on?

PLEASE do DONATE TO CASCAIDr, during Covid-19 – for the continuation of legal framework ANALYSIS:  every little helps!

Our donation button is on the right of your screen…                

We’ve done this post, because the number of Ombudsman’s findings of non-compliance with the Care Act, as we know and love it, over the last year, suggests to us that it’s surprising that more councils in this country haven’t used Covid-19, for claiming the legal protection from findings of public law unlawfulness, that has been provided to councils, effectively, by the Easements, for a maximum of 2 years, under the Coronavirus Act.

7 councils have announced adoption, as of May 12, but here’s our analysis of what can be done lawfully under the Care Act in the ‘good’ times – and would only count as stage 2 and not needing the Easements – and what can’t – and what sort of a system for assessment and care planning therefore compels adoption of the Easements, assuming it can be justified by depletion of staff, increased demand or logistics or provider issues…

There’s a list of behaviours at the end which we don’t think could ever be defensible, even if a council HAS adopted the Easements, because public law and human rights principles do still govern all adults’ social care services!

1.  Stage 2 – ‘flexing’ on the Care Act ‘proper’ side of the Easements line

Use of a competent third party to carry out needs assessments as trusted assessors /delegates /contractors

Assessments using the telephone or video calls – because the Covid-19 context is a very good reason for departing from the normal Care and Support Guidance

Deferring assessment, whilst feasibly suitable, available and appropriate prevention and reduction services or help from willing community resources are investigated and considered

Pausing assessment once commenced and deferring any outcome to assessment, whilst trying out reablement services, equipment, counselling, prevention and reduction services, or carers’ hub or volunteer services

Offering supported Self-Assessment to those able to engage with it, before finalisation through corroboration with others – providing Care Act advocacy if that’s what ability to take part would require

Suspending face to face needs assessments, including people thought to be less than fully mentally capacitated (Care Act ‘proper’ Guidance requires that that be done but the virus may constitute a very good reason for departure), as long as a video call were still offered as a viable alternative – and exceptions are genuinely considered

Persuading, by way of accurate information to capacitated people (or their formally authorised welfare LPA holders) that Assessment would not be the best way for the needy person to proceed, given their wealth or a waiting list for provision of services based on actual scarcity

Paying genuine regard to the wishes of the individual for the manner of the assessments even if those wishes cannot be complied with

Taking account of an individual’s fluctuating needs and providing for the minimum, but assuring of immediate uplift or providing for a contingency if there is evidenced deterioration, later on

Suspending “non-essential homecare services” for people who have current support from family or friends, as long as they agree that they are willing to do it, for now

Raising the delegated authority of front-line staff to cut down delay on implementation of packages

Dropping a Resource Allocation Tool, or Panel Process for authorising spend to make support provision faster – management accounting tools and panel process are not a statutory or even recommended by Care Act ‘proper’ Guidance

Ceasing to give people an up front allocation or an indicative budget – this has never been required by the Act, and Covid-19 is a rational moment to depart from this recommended essential step in Care Act ‘proper’ Guidance, which is only guidance

Putting off charging until later, as long as basic information about likely charges and charging periods are given and the fact of financial assessment at a later point is made clear

Limiting the choice of providers – that’s legal under the Care Act other than where Choice of Accommodation rules forbid it – i.e. for home care, day care, any service where there is no right of choice other than by the means of a capacitated person choosing a direct payment to do their own commissioning, or an incapacitated person’s Authorised Person coming forwards

Choosing to regard a person as having ‘been’ financially assessed after a ‘light touch assessment’ (after they’ve refused to be assessed or have refused co-operation, or after the council has acted on evidence, with the person’s consent (e.g. as to their benefits status) regarding the person’s relative poverty)

Rescheduling reviews or otherwise failing to meet the recommended target of review ‘no less than annually’ – it’s not statutory under the Care Act ‘proper’

2.  Examples of activities which mean that councils DO NEED to claim the cover of the Care Act Easements – or else risk misleading the public, as to the current state of their rights

Screening people for the decision as to who ‘should’ be assessed under the Care Act, using criteria related to the apparent urgency or imminence of people’s problems related to health or social care issues, rather than a mere appearance of need for care and support

Applying a notion of ‘regular and substantial support’ to the question whether a person counts as a carer who could even qualify for a carer’s assessment of their support needs

Running a waiting list for assessment, based on shortage of assessment staff – that approach treats the function as a power rather than a duty, and there’s case law on that!

Using staff who are appreciably less familiar with the Care Act or social work functions for delivering assessments than those who would ordinarily be doing that task – that might be ok under Easement, as long as they are supervised by skilled and experienced staff

Omitting to provide information to those seeking assessment, as to the nature and scope of the assessment process, in advance of doing an assessment of whatever extent is now on offer

Even if your council justifies using ‘Conversations’-based approaches, normally, (e.g. by offering them up front but reverting to full Care Act assessment for those who know that they can insist on it), now – during Covid-19 times – using a risk- and emergency-based approach with new clients, or those requesting reviews: for example

What needs to change to make you safe and regain control?

– if Conversation ONE has met prevention and reduction obligations, then this next Conversation does not meet the Care Act’s approach to eligibility or to the essential equivalence of all the factors on the s1 list of wellbeing features in the Care Act. Depending on how this question were to be fleshed out, it does not seem to address all of the Care Act domains. So, it can’t be an assessment under the Care Act ‘proper’

And how can we help make that happen? What offers do I have at my disposal, including small amounts of money and using my knowledge of the community to support you?

–  this requires the Easements because it implies that there are limits, borne of what is available through that particular officer’s spending authority, to what will be allocated, and that any such small sums, or whatever is known to exist in the community will be offset for any later identification of a sum of money to be offered, regardless of sufficiency or its suitability, which is not compliant with public law principles, and therefore not compliant with the Care Act ‘proper’

How can I pull them together in an ‘emergency plan’ and stick with you (like glue) to make sure it works?

“… rather than assessing them for services, we must stick with them and not even think about eligibility or longer-term support until the immediate crisis is over

–  this needs the Easements because it risks being a more short-term approach than the Act allows at the stage of care planning and sign off, forever driving a person round and round the council’s Contact or Duty systems, instead of ensuring that the person’s assessed eligible needs are met, and the impact reduced to something less than significant, for the foreseeable future

– if the person has not even been assessed as eligible before this ‘emergency’ plan is created, then there would logically need to be a frequent reconsideration of whether there ‘now’ needed to be a ‘proper’ assessment and eligibility decision – and the lack of continuity inherent in speaking to a new person every time the person called the council would very quickly alienate those seeking help, we think…

– the emergency plan can’t be regarded as a Care Act care plan, in the absence of an eligibility decision, so the Easements are necessary here: the Care Act (as established in public law) provides for the significant impact generated by a person’s condition and their deficits in daily living, to constitute a legal status (eligibility) and – thereafter – for their eligible assessed needs to be managed down by a care or support plan which allocates sufficient resources for meeting unmet needs appropriately – and for some time into the future – at least until a scheduled review, which would normally be in one year’s time, after an initial review to check that the funded input is working

Refusing a person’s request to do a supported self-assessment – this is a right, normally, for anyone with capacity to take part in such a process – or not providing Care Act advocacy to assist a person to achieve that capacity – one would be outside the normal regulations if taking this stance

Competently assessing by some or other adequate means, but going back to the use of thresholds such as Critical or Substantial, for eligibility decision-making, from the concept of Fair Access to Care Services guidance, pre-Care Act

Scoring domestic, leisure, recreation or community inclusion aspects of daily living as less important, somehow, than keeping an obviously dependent person safe and hygienically managed

No longer following the original Care and Support Guidance, without anyparticularly good reason – the Act allows it to be disregarded, if it is merely inconsistent with the new Easements specific Guidance, but that must mean for those councils who have adopted the Easements

Taking a person’s access to willing informal support as relevant to the IMPACT of their condition or difficulties, and therefore to their eligibility for a budget – and not merely relevant to the evaluation of what is needed to meet the shortfall in means available to that person to meet their needs – Care Act ‘proper’ Guidance forbids that approach at the assessment stage

Not providing a written reason for an eligibility decision, one way or the other – that’s a duty, normally, under s13

Not involving an informal carer in the assessment of a person asking for services – that’s a duty, normally, under s9

Making a written record of whatever new form of assessment is in current use, but not sharing a copy with the client – that’s a duty, normally under s12

Departing from Choice of Accommodation rights – those are a duty-based part of ‘business as usual’

Writing up a care plan without complying with s25 of the Care Act ‘proper’, as to contents – Easements Guidance says that’s acceptable as long as the provider knows what is required of it

Leaving charges out of a Care Plan under s25 – Easements Guidance says that’s acceptable, as long as the council’s stance on whether it will be retrospectively financially assessing is made clear

Letting people without a welfare power of attorney make decisions about what is best for their incapacitated relatives, and for example to refuse services for the needy person on the basis of cost – we doubt that even the Easements can make this acceptable, but that’s what has been put into the Coronavirus Act!

Blanket suspension of Transition Assessments of children approaching adulthood – normally a duty under the Care Act ‘proper’ unless a council explains why not

3. Practices or policies that even adopting the Easements could not conceivably legitimise, because public law and human rights principles will not permit it!

Disregarding the original Care and Support Guidance without formally adopting the Easements and then following the specific Easements Guidance issued under the Coronavirus Act.

Trusting people with no knowledge, experience of social services or the Care Act, or human rights, to do assessments, and without supervision – incompetent assessment would defeat the statutory purpose

Refusing assessments altogether, in terms of new requests – this would defeat the statutory purpose altogether and fetter the exercise of the remaining power to assess, which is unlawful

Refusing requested reviews, regardless of the strength of the evidence regarding a change of circumstances – this would defeat the statutory purpose altogether and fetter the exercise of the remaining power to review

Refusing assessments when requested, on the footing that the council is only assessing people if they meet criteria of a blanket nature – e.g.  have no-one at home with them’ or have an IQ under 70, or are ‘known to be severely mentally unwell’, or have ‘a formal diagnosis’ of a condition on a locally drawn up list – or ‘is ordinarily resident’ – or only if they ‘have NRPF’ as part of their immigration status; all these approaches would all be a fetter of the remaining power to assess

Assuming that mental incapacity is not relevant to the manner of assessment that should be offered – this would be irrational in a public law sense, as it is a self-evidently relevant consideration

Treating wealth above the upper capital threshold as a reason for refusing an assessment – this is not permitted by the original Care Act OR the Easements

Running a waiting list for assessment based on shortage of assessment staff and ordering this list irrationally, according to features of the person or client group, in the context of the statutory purpose (e.g. hair colour, alphabetical order) – this would be unlawful in a public law sense

Leaving a person waiting for whatever form of assessment IS being offered, for an unconscionable period, given the evidence as to the urgency of their unmet needs, or imminence of serious impact to their wellbeing – this would defeat the statutory purpose or be regarded as irrational or as unfair OR as a breach of human rights

Suspending Care Act independent advocacy rights – this is not permitted by the Easements for REVISIONS and may not be permitted by public law or human rights if a council is CHOOSING to assess/care plan, because involvement is part of underlying legal principles anyway

Systematically excluding or completely ignoring domestic, leisure, recreation or community inclusion aspects of daily living from scoring systems for who gets help and how much help – the power to apply a human rights based approach to needs does not permit the blanket exclusion of these aspects of need – article 8 and article 3 are relevant here and people must be allowed to assert that assumptions about what matters to most people should not be applied to them; also the help must still be rationally sufficient and appropriate to the needs, in order to meet public law requirements, regardless of the Easements

Using a computerised resource allocation system as the only determinant of what people should get by way of a finalised budget – public law does not allow the use of a resource allocation system for the determination of what would appropriately meet needs of an individual, after those needs regarded as eligible for meeting have been identified – the most relevant consideration for a finalised budget is a reasonable evidence base for the going market rate for services of the amount, skill factor and character in question

Suspending direct payments as a route for deploying a personal budget – direct payments conditions for the choice of that deployment route have not been affected by the Easements

Imposing direct payments as a route for deploying a personal budget – the requirement of a person’s capacitated request for a direct payment has not been affected by the Easements and provision is still the default method

Revising people’s care packages by standard letter, simply informing them of a change – this is still a breach of s27(2) (service users) or s27(3) (carers) and changes without involvement and compliance with these sections of the Care Act is specifically forbidden IN the Easements guidance

Refusing to ‘involve’ service users or carers in any revision of a care or support plan – see the last example

Cutting a care plan simply because particularly vital services have closed, due to social distancing – the fact that the services are no longer available, is of no legal relevance to the existence of the needs (i.e. the deficits in daily living activities, generated by the person’s condition) or the impact to wellbeing being sustained through not having access to the services, so the council must identify a realistic alternative in the interim, if a breach of human rights would otherwise arise. We do not think it is acceptable to force carers into unpaid service, just because they are at home, but the council is still the decision-maker as to the needs

Suspending Safeguarding functions or preventing anyone who has been assessed or care planned for, from suggesting that the outcome of the process constitutes a safeguarding concern – this is not permitted by the Easements and safeguarding is a duty that cannot be delegated, and such referrals are a backstop way of managing legal risks, anyway

Making a written record of whatever new form of assessment is in use, but not sharing a copy with the needy person – this would be a breach of public law and human rights principles for involvement and participation, even if the Care Act had never existed (unless psychological harm to the person was apprehended)

Not writing down the assessor’s thinking on assessment, at all – this would simply be evidence of incompetence and make getting a service organised, impossible, defeating the statutory purpose

Taking the view that the willingness of an informal carer (or otherwise) to provide care or support is not an essential conversation to conduct, when evaluating the situation of the needy person – we think that this contravenes the carer’s human rights and would be contrary to public policy, because it would create disproportionate risks as between vulnerable adults and unwilling stressed-out relatives

Taking a blanket approach and deciding that there were no circumstances in which a close relative in the same household should be permitted to be paid to meet the needs of an eligible cared for person, regardless of the circumstances and consequences – a fetter of discretion on an aspect of the Care Act not affected by the Easements; a potential breach of human rights; and ignores the fact that the person’s close relative may be the only feasible way of meeting the needs regarded as eligible by the council, and that nobody can be made to work for free in this country (yet)

Putting down the hourly rate for direct payments clients for paying PAs, during a time of scarcity of care staff, without an actual evidence base for believing that people will work for less – this ignores the most obviously relevant consideration for the determination of what amounts to a sufficient budget to meet the needs, and ignores s26 of the Act which is unaffected by the Easements

Using anything other than a rational evidence basis regarding the current market rate for securing services with which to meet whatever needs of the individual have been regarded as compelling the use of the s19 power to meet needs – this would be a breach of public law case law that was established long before the Care Act (the key principles being rationality and transparency)

Applying an arbitrary financial limit to any individual’s finalised budget – this amounts to an institutionalised, systemic constraint on professionals’ evaluation of what is needed to meet the needs selected for being met

Applying an arbitrary / fettered / blanket approach to any decision as to what sort of setting would be appropriate for an individual, whether by reference to cost, registration status or the age of the individual – see above, and it’s a policy that can amount to disregarding the obvious fact that it cannot ever be said that all people in every area CAN feasibly be regarded in professional terms as ABLE to get their needs met appropriately in given settings

Disregarding the Mental Capacity Act – the Act is unaffected by the Easements during Covid-19

Ignoring the duty to promote wellbeing in relation to any assessments, reviews, care planning, sign offs of any packages or revisions that ARE done – section 1 is unaffected by the Easements

Ignoring case law on human rights in the context of social services, when discharging assessment and care planning functions – this is clearly indefensible in legal terms because of the way in which the Easements specifically make Human Rights into ‘the’ bottom line criterion for the continuing s18 the duty to meet needs

Ignoring professional concerns in the face of obstruction by any third parties who do not seem to have the best interests of an incapacitated or vulnerable needy person in mind – this would be abdicating professional responsibility in the face of evidence that would alert any ordinary reasonably competent professional to the need to consider intervention over the top of those third parties, through safeguarding or recourse to the Court of Protection or the inherent jurisdiction of the High Court

Not providing a clear and transparent route for people with care and support needs, carers and providers to quickly raise concerns should they believe either the decision or the care package is in breach of the European Convention on Human Rights – this would be disregarding an edict in the Easements guidance which is expressed in mandatory terms – we recommend the PSW, the Director or the Monitoring Officer, not Complaints

Refusing to take contractual responsibility for clients in respect of whom there is no willing and able provider to take or keep the person into a care home, in order to care for them for the remainder of the required isolation period, post Covid-19 illness – this would be ignoring human rights, and the fundamental notion in the Care Act that there is a social services safety net in this country and ignoring the fact that the NHS has been committed to paying for every single person’s post-hospital stay follow-on care, by the Hospital Discharge guidance.

Please share:

having tried the newspapers vs CASCAIDr, the choice is clear to many

“I donate for the knowledge, and it’s still cheaper than The Telegraph’s All Digital Access per year, The Times per year,The Guardian for a year and having tried the newspapers vs CASCAIDr, the choice is clear to many – thanks, PK.”

Please share:

Good Administrative Practice during the response to Covid 19 – from the Local Government Ombudsman – with legal commentary from CASCAIDr

The LGSCO has published this guidance in the first week of May 2020, having closed to complaints in March.

The LGO covers most local government functions, not just social services, but CASCAIDr has looked at the guidance from the Adult Social Care perspective, because that’s the focus of the charity, both before and during Covid-19 – and particularly because of the changes made to the Care Act (easements, as they are called) under the Coronavirus Act passed in March and brought into force for schedule 12 changes to social services as of 31st March.

“The Covid 19 crisis is placing unique pressures on care providers and councils. We recognised this by suspending all our casework activity that would have demanded information or other action by these organisations. We took this step in the wider public interest, to protect the capacity of councils and care providers to deliver vital frontline services.”

Commentary: we do not know of any legal power by which the LGSCO took this decision on what is a statutory responsibility, under the 1974 Local Government Act but are sure that it will be explained, later. It is true to say that the LGO’s function to investigate matters is a power and not a duty, but the context of that function is the exercise of a discretion regarding whether a particular complaint qualifies for investigation by the LGO – not a discretion simply to close the doors.

It’s a bit like a council saying – having adopted the Care Act easements – ‘Right – assessment of needs isn’t a duty any longer, it’s just a power, and we’rve decided we’re not even going to screen people for the question as to who we should focus our assessment resources upon.” The Easements guidance makes it clear that “The Coronavirus Act does not give authority to block, restrict or withdraw whole services.”

So we have to say that it’s not clear to us that the LGO has even GOT the power to abdicate from the statutory function imposed by Parliament.

“We expect councils and care providers to respond appropriately to any complaints during this time of national emergency.”

Commentary: given the likely seriousness of a person’s concerns in the Covid crisis we do not think that the Complaint System is fit for purpose, because of the lack of any finite date by which the complaint must be dealt with, or rather, the lack of any sanction if the council exceeds 6 months. The LGSCO offered the only backstop source of redress for abject delay, and the LGSCO has shut down. This means that members of the public have now only got the choice of resorting to asking a councillor for help, the Monitoring Officer, or seeking legal advice with a view to going to the Administrative Court for judicial review, all of which would still require the council to respond.

“Resources are stretched, redeployed and operating under emerging and fast changing rules and guidance. But, whilst we understand their responses may look different to those we would expect during normal arrangements, we think that all urgent and serious public concerns should still receive attention.

When normal services resume, we will inevitably investigate complaints about what happened during this crisis phase.”

Commentary: we are not sure whether the LGSCO means the ombudsman’s normal service or normal services from councils. The latter may not resume for 2 years – or a council might go in and out of the easements. We have no idea how long the LGSCO thinks that the public interest requires that organisation to suspend its own statutory role.

“We have a power to publish principles of good administrative practice. These apply equally well under crisis conditions. They are designed to act as a compass, not as a map. The compass will work equally well, no matter how rough the terrain is to be crossed.”

Commentary: these principles are principles of public LAW, and should be described as such. That’s why they work over any terrain – public law and human rights have not been suspended by the virus.

“This short guide is therefore intended as an addendum to these principles. It is structured around the same six principles. It is intended to be helpful in encouraging organisations to reflect on practice during the crisis, and to make clear the standards we expect and the way we will consider complaints when we investigate downstream.

Although we have yet to investigate complaints that originate from actions during the crisis, this guide draws on learning from cases reviewed as part of our recent report about managing change – Under Pressure.

1.    Getting it right

  • Basic record keeping is vital during crisis working. There should always be a clear audit trail of how and why decisions were made, particularly summarising key reasons for departing from normal practice.”

Commentary: a review of the LGSCO’s past year of reports suggests that record keeping had sunk to indefensibly low level in the name of ‘streamlining’ the ‘burdensome’ requirements of the Care Act. Some councils will be thinking that they’re doing a great job of staying on THIS side of the easements, at stage 2, only to discover later that they’ve not been complying with the Care Act recording duties for some years, and should have announced going into easements from 1st April onwards!

  • “Where you are working with new organisations to deliver services during Covid, or using existing partners in new ways, ensure your organisation keeps proper oversight and direction. Where you delegate responsibility to others (e.g. voluntary sector), responsibility remains with your organisation”

Commentary: the duties under the Care Act are non-delegable – that is why – whether a council has contracted with a provider for a care package, or delegated a social work function TO an organisation, the duty owed to the member of the public, which was ultimately to meet the needs appropriately, remains with the council. Even if the duty has become a power, and a power only, nobody expects it to be possible to say ‘Well we did what we could, but you weren’t owed a duty of care and therefore there’s no possibility of liability to you for foreseeable harm that we should not ever have allowed to happen’. The LGSCO is warning councils here not to forget that if they’re paying providers to do anything, they have to monitor the delivery of that service because of the responsibility owed to the ultimate service recipient.

  • “Where Covid is causing you to devolve decisions to a more local level, make sure those decision makers can access prompt, appropriate legal advice where necessary.”

Commentary: the Easements guidance warned against councils trying to use authorisation Panels for budgets or packages, in the same way as normal, because there just won’t be time. So this is saying make sure that if less experienced staff are going to have an enlarged budgetary authority under the council’s delegation scheme, they can access legal advice. The irony here, from our perspective is the implication that those PANELS ever took legal advice about their decisions, their recording, their reasoning and their public law obligations. Case law would suggest not! (the Merton case from 2017)

  • “Where re-deploying back office resources to the frontline, care should be taken that this does not undermine the organisation’s ability to maintain essential operations.”

Commentary: We’re not sure what resources might be in mind here – charging officers might be being used for advice and information, perhaps, if financial assessments have been suspended under the easements.

2.    Being service-user focused

  • Where new or adapted policies and procedures are brought in, ensure frontline staff are clear about any new expectations so they give the right advice to service users.”

Commentary: in our experience, it’s remarkably difficult to translate the strategic vision of senior managers into a written policy and from there, clear instructions to front line staff as to how to HOLD the difficult conversations that they’d be needing to have with members of the public. And in public law terms, there’s often a legal way of saying things, and a shorter or more direct form that oozes illegality, so every word matters.

  • “Even where national rule changes allow raised thresholds for action, ensure you properly consider the individual circumstances of each case.”

Commentary: the Easements as they are known actually suspend Care Act duties for assessment, reviews and care planning documentation but the government has asked councils to hold off adopting the changes until they absolutely can’t cope with the Care Act as it was originally written. The Easements guidance requires the continuation of person-centred assessment and care planning in so far as councils do it at all, and to decide not to, one would still have to have a thought process in the first place – so we think it’s a false saving to fail to consider people’s circumstances…

  • “Emergency working will cause backlogs in access to many, now lower priority services. Try to plan ahead for phased return to normal working, considering a triage approach where fair and appropriate to the service area, rather than necessarily ‘first in, first out’.”

Commentary: this is where senior management’s strategic vision is most important. It’s not about reviewing high cost cases any longer, but about telling the most critically needy people that they will not be regarded as lower risk, and getting onto those who are.

3.    Being open and accountable

  • The basis on which decisions are made and resources allocated, even under emergency conditions, should be open and transparent. Any new criteria, thresholds and timescales should be clear to service users and staff.”

Commentary: The councils who have adopted the Easements have not publicised what they were doing in a standard way, and there is no duty to do that – only a request that notification is made to the DHSC. But it was written up in Community Care the week after it first started to happen. CASCAIDr’s reaction to that range of easement flavoured steps is that most of what is described is simply operating under the Care Act, if done carefully and that ONLY ONE of the councils in question, really needed to make the decision to notify the DHSC. That is indicative of the lack of legal literacy amongst staff and PSWs, we would have to say. We would guess that 50% of social services local authorities are also doing what is described in this article, and rightly not notifying the SoS about it at all, because it is just flexing or even FOLLOWING the Care Act to the letter.

  • “Decision reasons should be clear, evidence based and where necessary explained in the particular context and circumstances of that decision.”

Commentary: that is advice from pure public law – the duty to be rational and transparent is part of the always developing common law of our country – the part that applies to public bodies, everywhere.

  • “However, normal expectations on the need to consult service users and stakeholders may not be feasible or appropriate. You should document and explain departures from normal practice.”

Commentary: this is an interesting exercise in bet hedging: the public sector equality duty hasn’t been suspended, and the duty to involve hasn’t been suspended with regard to revision of any existing care plan, and the duty to consult best interests consultees, as an inherent and essential part of operating under the Mental Capacity Act hasn’t been suspended…

Indemnities, retrospectivity for the delivery of the easements, and various central government assurances of ‘whatever it takes’ have been given, however, so legal risk management is not likely to be the first thing on anyone’s mind.

4.    Acting fairly and proportionately

  • If you use new or revised policies and processes this should not lead to arbitrary decisions and actions. Ensure you have a clear framework for fair and consistent decision making and operational delivery.”

Commentary: avoid arbitrariness and any suggestion of predetermined or fettered discretions.

  • “Decisions to change practice without consultation should be documented. You should commit a timescale to review any new practice to ensure exceptional working doesn’t become the ‘new normal’.”

Commentary: only history will tell whether this exhortation made any difference at all…

5.    Putting things right

  • Although complaint handling capacity will probably be reduced for a time, it is important authorities can still deal effectively with the most serious and high-risk issues that are brought to them.”

Commentary: Yes, the Easements guidance says

‘Local Authorities need to ensure that there is a clear and transparent pathway for people with care and support needs, carers and providers to quickly raise concerns should they believe either the decision or the care package is in breach of the European Convention on Human Rights.’ (Annex B)

  • “We have suggested authorities use the following approach:

Commentary: You can probably see why we don’t think there’s much value in anyone complaining about concepts of legality, eligibility, rationality, transparency and fairness, when there is no legal framework other than public law which is not part of the training of local authority social workers anyway….

  • “Plan for a return to normal in complaint handling, making sure the crisis does not turn into longer term erosion of the organisation’s capacity to listen to concerns.”

Commentary: Running a complaint system is a statutory obligation, particularly in a field of endeavour that admits of no appeal rights! You might think that the same was true of the LGSCO’s oversight of failures in the complaint system…

6.    Seeking continuous improvement

  • Continue to use complaints as an effective and immediate form of feedback during the crisis. Complaints can continue to tell you where new challenges are developing and where things are going wrong.
  • While most staff focus on short term responses to the crisis, keep a longer-term view to ensure the authority is prepared for downstream consequences and plans for recovery and normalisation.
  • In a time of rapid change, try to ensure you don’t lose critical organisational memory. Staff used out of their normal areas during the crisis will likely return afterwards, risking loss of critical records and memory.”

Commentary: We think that what happens ‘afterwards’ depends on what form of finance is provided to local government – across the whole range of its functions – because that is what will determine the extent to which extra staff can be taken on to cope with the backlog – not just of complaints but of Care Act Easement Flavoured Assessments, going back to “normal service”.

Please share:

CASCAIDr’s Q&A session, live with CoProduce Care 30/04 2020

CASCAIDr’s CEO Belinda Schwehr was delighted to do a Q&A on the detail about the Care Act easements, as the guest of Sophie Chester-Glyn’s CoProduce Care.

You can see the video here, and download a transcript here, but please do consider donating to CASCAIDr’s survival during the Covid-19 period, via our button on the right.

We can’t be this obsessed about public law and human rights, without financial support, as it all takes study and thought!

Please share:


What Happened

A 38 year-old Polish national was admitted to a psychiatric ward in 2019 having been found partially clothed and wandering outside. Her medical records showed an extensive history of mental health issues, and led to a conclusion that she was not fit to be detained and should instead be taken to hospital.

In December 2019 she was sentenced to 2 weeks’ imprisonment for public order offences. The decision was made to send her to an immigration detention centre and seek her removal from the UK.

C appealed this decision, which was delayed due to the COVID19 pandemic.

On 22nd Febuary 2020 a rule 35 report completed by a medical practitioner highlighted that C’s mental state would deteriorate if she were kept in detention.

On the 25th Feb the defendant (the secretary of state (SSHD)) requested further evidence of the risk of C’s wellbeing deteriorating, before granting accommodation under schedule 10 of the Immigration Act 2016.

On the 5th March the defendant accepted that C qualified as a level 2 risk, so should therefore be released from the detention centre when accommodation was found for her.

The SSHD officially confirmed C was entitled to accommodation under sch. 10 on the 2nd April. However, due to COVID, they stated they could give no timeframe for when accommodation would be available.

C complained that there was an unreasonable delay in the SSHD confirming she was entitled to accommodation under sch.10. She said that it was clear from as early as January (when she was first placed in the detention centre) that she was vulnerable, yet it still took four months to confirm her eligibility. She said that the application should have started well before April.

What was found

Schedule 10 para.1 of the Act confers powers on D to grant bail to a detained person. 

Schedule 10 para.9 confers the power to provide accommodation to a person who has been bailed if the defendant believed that there were exceptional circumstances which justified the exercise of that power.

Very importantly for the exercise of functions during the Covid 19 period under the Care Act easements, the court found that even though there was only a power, rather than a statutory duty to grant immigration bail at all, it carried with it, there was an obligation to determine an application for sch.10 accommodation fairly and rationally, and to act reasonably to obtain accommodation within a reasonable period.

The SSHD policy stated that if a person was under bail, did not have access to accommodation and ‘faced imminent suffering due to the denial of food, shelter and basic necessities’, then they should consider if there was a duty to provide accommodation under ECHR art.3 (freedom from inhuman or degrading treatment).

There was no doubt that C was eligible for accommodation to be provided by the SSHD. Therefore this placed an obligation on the SSHD to find accommodation in a timely manner.

The Court then had to consider whether the Secretary of State had taken reasonable steps to find accommodation without excessive delay, and if it had failed to do so, then the Court could make an interim order.

Here the Court was sympathetic to D’s circumstances, dealing with unforeseeable challenges during a worldwide emergency. However, after considering C’s history, and the fact that she had been detained for 4 months despite medical professionals expressing concern for her wellbeing, the Court granted an interim order.

The order gave the SSHD 7 days to make accommodation available for C.

Please share:

Attention: care home owners – support for doing the right thing for Covid-19 patients and their families

CASCAIDr’s written a guide about going to hospital, visiting, getting a ventilator and getting out of hospital for people who run care homes and the wider public, for reference and use during the Coronavirus crisis.

We’ve done this because of the concern nationwide that people in care homes are not only getting ill, but also seemingly dying in large numbers in care homes, which can only mean that they’re not getting to hospital even though they can’t all be deteriorating within minutes.

We think that if they’re not getting to hospital, it must be because of fears or decisions being made by desperately ill and possibly dehydrated or feverish or semi-conscious people – or their relatives, a GP, a paramedic, or a care home manager. We are not saying that that’s wrong or always inappropriate, please note!

But we don’t think anyone would want it to happen under pressure, or for want of legal awareness, or up-to-date information, or by dint of misinformation gleaned from the media, instead of well-informed consideration of all relevant considerations.

So – please, study it, distribute it to staff, print it off and pass it on to relatives – with our thanks and compliments for the work you are doing.

It’s called 10 things all Care Home Managers should know – and it’s for promoting good practice and preventing misinformation around DNAR/CPR, hospital visiting, access to ICU and discharge.

It should be useful for residents, family members and advocates, as well as for providers, commissioners, social workers and safeguarding staff.

Please share:


In this case, the NHS Foundation Trust applied for an interim injunction on behalf of one of the hospitals it operated, the National Hospital for Neurology and Neurosurgery (a 12-bed ward for those requiring acute neuropsychiatric care for up to 14 days where the patient’s stay could be extended to 28 days in extreme circumstances).

The Trust had sought to discharge one of its patients, referred to as MB, but she had refused to leave, saying that the care package being offered by the London Borough of Camden Council was insufficient. She had mental capacity but a diagnosis of functional neurological disorder with variable upper and lower limb weakness, tremor and speech disturbance, chronic migraine, fatigue and generalised pain, complex psychological conditions, including PTSD, disrupted attachment, OCD, possibly borderline personality disorder and Asperger’s syndrome.

MB’s representative argued that due to her disabilities (she was wheelchair and bed bound) and complex mental health conditions, discharging her without properly addressing her concerns could lead to her suffering extreme distress as well as being at risk of self-harming or of committing suicide. Discharging her in this way would leave the hospital in breach of its responsibilities under articles 3, 8 and 14 of the European Convention on Human Rights (ECHR) and would amount to disability discrimination and a breach of the duty to make reasonable adjustments, contrary to ss. 29 and 149 of the Equality Act 2010, it was argued.

MB had been residing at the ward since collapsing at home on February 18th 2019.

Staff felt that she could be discharged safely and the local authority had offered adapted accommodation and 24-hour care for 1 month and then extended to 3 months by concession for reassurance, but MB wanted guaranteed care for a whole year and refused to leave.

The judge dismissed the hospital’s subsequent possession claim for MB’s room as ALL such claims have been stayed for 90 days under CPR Pt 55 due to the the COVID-19 pandemic. However, the Civil Procedure Rules do not apply to preclude a claim for an injunction, which the hospital applied for on April 3rd.

The judge heard from MB and her sister, and from hospital staff. Most of the evidence for her prompt discharge from the ward was provided by Dr Christofi, a consultant neurologist working for the hospital. Dr Christofi described MB’s behaviour as unmanageable and often aggressive and threatening. He said “It is of paramount importance that [MB] is discharged from [the Hospital/UCLH] immediately. Not only do we need the beds for critically unwell patients, but remaining in a hospital environment places [MB] at unnecessary risk of contracting COVID-19. It is therefore undoubtedly in [MB’s] best interests to be discharged to a safer location urgently.” Dr Christofi was of the view that the care package consisting of 24hr care was reasonable and that there had been no self-inflicted risk incidents to indicate that MB was a risk to herself.

“She engages in activities such as watching films on her laptop. No psychotic symptoms have been observed (relating to hearing voices, nihilistic delusions etc over the time she has been in hospital). Her plans for DSH [deliberate self-harm]/suicide and not in the context of depression. Her history suggests threats of DSH when her needs are not met…She may well try DSH if she found herself in a situation where her perceived needs are not met and I cannot predict with certainty that she will not harm herself.there are no mental health reasons I can think of to keep her in this hospital.”

MB was not allowed to adduce independent medical evidence. Her main concerns with the care package were due to her distrust of Camden Council and the impending 3 month review which she believed would strip her of the 24hr care.

Although this was not an application for judicial review, MB was effectively raising a public law defence to a private law claim for possession, which is allowed as a matter of principle, without any application for permission, as would be essential if she had been the applicant in the Administrative Court. The judge could not see any good reason for permitting her to adduce evidence that would not be admissible on a direct public law challenge; judicial review would not be an appropriate forum for challenging a clinical view that a person was fit for discharge. Moreover, clinicians cannot be required to provide treatment contrary to their own clinical judgement; the treating team’s view was that the patient did not require hospital care and could safely be discharged.

The judge concluded that MB’s care needs could certainly be met by the care package offered to her by Camden. He felt that the Council had made considerable efforts to accommodate her concerns but that it was unrealistic to think that it would ever satisfy them, due to her distrust in them and the hospital. He said that there was a moderate to low risk of MB resorting to suicide or self-harm if discharged now but accepted that she would likely suffer extreme distress. In either case, this could be managed by the 24hr care offered in her care package, in his view.

Regarding the nature of the property rights being protected, the judge said this:

“The Claimant brings this claim to enforce its private law rights as property owner. As a matter of private law, MB became entitled to occupy the room she is currently in because the Claimant permitted her to do so by admitting her to the Hospital. The Claimant has now terminated her licence to occupy that room. It follows that she is now a trespasser.

Ordinarily, the Claimant would be entitled to seek an order for possession pursuant to CPR Pt 55: see e.g. Barnet Primary Care Trust v H [2006] EWHC 787 (QB), (2006) 92 BMLR 17 (Wilkie J); Sussex Community NHS Foundation Trust v Price (HHJ Coe).

That is not currently possible because of the general stay on possession claims effected by CPR 51Z PD.

The stay does not, however, affect claims for injunctions: see para. 3 of the Practice Direction. A property owner is in general entitled to an injunction to enforce its rights as against a trespasser: see the decisions of the Court of Appeal Manchester Corporation v Connolly [1970] Ch 420 and Supreme Court in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] UKSC 11, [2009] 1 WLR 2780.

A hospital is no different from any other proprietor in this regard.”

The order made was as follows, regardless of the realistic prospect of vociferous non-co-operation:

(a) MB must leave the Ward by [a particular time], provided that by that time the Hospital has made arrangements to facilitate the transfer of MB (by ambulance trolley and ambulance) and her belongings from the Ward to the accommodation to which she is to be discharged;

(b) if such arrangements are made, MB must not obstruct or impede their implementation;

(c) MB may thereafter not re-enter the Hospital’s premises without the prior written permission of the Claimant, save if admitted by ambulance.

If MB does not comply, she will be in contempt of court and the full range of the court’s coercive powers will be available to enforce it.

The judge went on to consider whether MB had any prospect of defending the claim, because if she did, he could not conscionably grant an injunction, because it would effectively determine the case on possession, prematurely.

He said this too:

“It is a tragic feature of MB’s complex constellation of mental health difficulties that she frequently suffers from extreme distress, whether she is in hospital or not. But, if the Hospital were precluded from doing anything which might precipitate such distress, it would soon end up in a situation where it was legally precluded from taking any step other than in accordance with MB’s wishes. In this case, MB would be entitled to insist on the provision of whatever she considers she needs as a condition of discharge from hospital, even if the result of her doing so were that the needs of others could not be met. That is not the law, because her needs are not the only ones that the law regards as relevant.

In some circumstances, a hospital may have to decide which of two patients, A or B, has a better claim to a bed, or a better claim to a bed in a particular unit, even if ceasing to provide in-patient care to one of them will certainly cause extreme distress or will give rise to significant risks to that patient’s health or even life.

A hospital which in those circumstances determines rationally, and in accordance with a lawful policy, that A’s clinical need is greater than B’s, or that A would derive greater clinical benefit from the bed than B, is not precluded by Article 3 ECHR from declining to offer in-patient care to B.

This is because in-patient care is a scarce resource and, as Auld LJ put it in R v North West Lancashire Health Authority ex p. A [2000] 1 WLR 977, at 996, “[i]t is plain… that article 3 was not designed for circumstances… where the challenge is as to a health authority’s allocation of finite funds between competing demands”.

Decisions taken by a health authority on the basis of finite funds are, in my judgment, no different in principle from those taken by a hospital on the basis of finite resources of other kinds.

In each case a choice has to be made and, in making it, it is necessary to consider the needs of more than one person.

Analytically, the reason why a decision to require a patient to leave a hospital is unlikely to infringe Article 3 ECHR is because it is based on a prior decision not to provide [further] in- patient care. Such a decision engages the state’s positive (and limited) obligation to take steps to avoid suffering reaching a level that engages Article 3, rather than its negative (and absolute) obligation not itself to inflict such suffering. Where the decision to discontinue in-patient care involves the allocation of scarce public resources, the positive duty can only be to take reasonable steps to avoid such suffering: cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, [13]-[15] (Lord Bingham). It is difficult to conceive of a case in which it could be appropriate for a court to hold a hospital in breach of that duty by deciding, on the basis of an informed clinical assessment and against the background of a desperate need for beds, to discontinue in-patient care in an individual case and, accordingly, to require the patient to leave the hospital. The present is certainly not one.

Even though the decisions to cease to provide in-patient care to MB and to require her to leave, plainly interfere with MB’s right to respect for private and family life, the evidence adduced by the Claimant amply demonstrates that the interference was justified in order to protect the rights of others, namely those who, unlike MB, need in-patient treatment. Bearing in mind the broad discretionary area of judgment applicable to decisions of this kind, there is no prospect that MB will establish the contrary.”


People may need to know during the Covid 19 period whether they can bring proceedings for possession against anyone whom they would wish to evict for a good reason – residential licensees, for instance, sharing premises with a resident landlord, or from a care home, when the home does not wish to have the person back, after a spell in hospital. This route of seeking an injunction enables some protection of a property owner’s rights, even if no possession order can be granted.

The judge did accept that a decision by an NHS hospital not to provide in-patient care in an individual case might, in principle, be challengeable on public law grounds, by judicial review if the decision were tainted by improper purpose or had been made in breach of statutory duty or otherwise contrary to law. So that preserves public law challenges for anyone in the Covid19 period to raise, for instance on the basis of a blanket policy of non admission or non selection of anyone aged over 90, or just based on being disabled intellectually or physically, assuming the property owner is a public body amenable to judicial review, such as hospitals. The difference between this and any other case that might arise is that here, the view was very firmly that this woman MB did not NEED any other treatment the hospital could give her, whereas in a Covid competition for a ventilator, it will be different, one can only presume.

An interesting question arises in the context of care homes, who do owe human rights, directly to publicly funded clients, but who are not public bodies in the normal sense required by public law before one can bring judicial review – they do not shoulder the actual public function of a council in meeting needs, when contracted to the council, nor act as a delegate.

If one reads the full case, one discovers that the offer of 24 hour care was being made in the context of a tenancy, which MB had been willing to sign. We do not know how that came about but it is a dearly held principle of CASCAIDr’s legal experts that an offer of care cannot be made conditional upon a council’s expectation that a person provides themselves with housing, and pays for it, before it will provide the care. MB had declined services in her own home; she had declined services in a care home setting, and the Council had just kept on trying to obtain her agreement instead of treating her as capacitated to refuse offers they were satisfied were reasonable. That is not a necessary position for any council to take when a person blocking a bed has capacity; but if it does continue to try to reach agreement, that is the council’s choice, and it must still act under the Care Act.

As noted Ground floor wheelchair accessible accommodation was eventually found which could be secured through a tenancy as opposed to a temporary licence. MB’s willingness to move to the particular accommodation finally identified and adapted must be assumed, because she had signed a tenancy, but if she had been told that she was obliged to take on that tenancy in order to obtain discharge from hospital (as happens to many other people with autism in ATUs, for instance) we think that that would have made for a much stronger public law challenge against the council in a different court.

Here is the link to the full judgment:

Please share:

Local Government and Social Care Ombudsman Housing Decisions


London Borough of Newham (17 017 876) 19/09/2018

The Council wrongly told Ms B that it could not provide interim accommodation until it had carried out a home visit, to confirm that she was homeless.

London Borough of Newham (17 001 635) 11/12/2018

Miss B complained the Council unreasonably withdrew an offer of accommodation and excluded her from the Housing Register. The Ombudsman found fault by the Council including its delay in responding to Miss B’s review request, and not correcting its error which led to her wrongly being excluded from the Housing Register.

Kettering Borough Council (18 004 478) 03/01/2019

The Ombudsman found fault on Miss T’s complaint against the Council about the way it dealt with her homelessness application. It delayed processing it for about 5 weeks. It also failed properly to consider her for interim accommodation before making a decision on her application.

London Borough of Enfield (18 005 035) 31/01/2019

The Council failed to provide Mr X with accommodation when he asked for help when he became homeless. Mr X has physical and mental health issues and had to sleep in a car for five months.

Horsham District Council (18 008 548) 31/01/2019

The Council’s Housing Register and Nominations policy was not discriminatory. The Council acted in accordance with this policy. It sought medical information when required, and acted on the information it received.

Birmingham City Council (18 006 907) 01/02/2019

Miss X complained about the way the Council considered her housing applications and request for priority. There was delay in the Council’s processing of Miss X’s housing application. There was also fault as the Council failed to give reasons for decisions on Miss X’s housing application or to provide the names and positions of officers reaching those decisions. The Council also failed to identify it had already received medical evidence from Miss X entitling her to a higher band score. The Council was told it should backdate Miss X’s priority band and pay her £250 for the time and trouble and uncertainty caused.

London Borough of Merton (18 007 593) 28/02/2019

Mr X complained about the way the Council handled his homelessness application. The Council was at fault for delaying sending a personalised housing plan and decision letter, for not offering interim accommodation, and for not advising about its housing register or how it could help with a deposit.

London Borough of Harrow (19 000 787) 28/10/2019

There were serious failings in the way the Council responded to Miss X’s housing needs as a vulnerable woman who was homeless because of domestic abuse and harassment. This had a significant impact on Miss X. She was left for a long time in accommodation where she was at risk.

London Borough of Tower Hamlets (19 000 068) 11/11/2019

A pregnant woman was left in in unsuitable, unfurnished interim accommodation; for example she had to sleep on a hard floor as she did not have a bed, until she was awarded a grant one month into the tenancy. After three months, she moved into privately rented accommodation.

The Council was at fault as it delayed assessing her and issuing her with a personalised housing plan (PHP). The council also did not consider the suitability of the interim accommodation it provided, or reconsider it when she asked it to.

The council agreed to pay the woman a discretionary housing payment to cover the shortfall in her rent for a period of time, to refund the deposit she paid for her private rental accommodation and pay £1,000 to recognise the time she had spent living in unsuitable accommodation.

Sandwell Metropolitan Borough Council (18 005 804) 11/11/2019

The Council was not at fault for placing Mrs X in self-contained accommodation attached to bed and breakfast style accommodation. The council ensured it was safe and sanitary, and provided support under section 17 of the Children Act 1989 (referring to the The Homelessness (Suitability of Accommodation) (England) Order 2003).

London Borough of Redbridge (18 017 247) 27/11/2019

The Council wrongly treated Mrs B’s family as two separate households when they presented as homeless, failed to engage with a homelessness application for six months and failed to provide interim accommodation for six months. That meant the family were separated and had to spend time sofa-surfing. An apology, payment to Mrs B and her daughter and a training session for officers was a satisfactory remedy for the injustice caused.

London Borough of Hillingdon (18019714) 16/12/2019

The Ombudsman found fault on Ms T’s complaint about the Council’s children’s services failing properly to consider her and her daughter’s needs, or suitability, when providing them with accommodation out of borough. It failed to show that this was the only available accommodation. It also failed to show it considered, and kept under review, its suitability in light of her daughter’s needs and the 4 hours’ travelling it tooke for her to get to and from school.

Folkestone & Hythe District Council (18 018 663) 02/01/2020

The Council was at fault as it failed to consider information provided to it by a family which applied for housing. It delayed helping them until they were actually homeless.

Please share: