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Calderdale Metropolitan Borough Council at fault for arbitrary top up policies, for instructing service users to enter into top up agreement contracts with care homes directly, for failing to identify a suitable care home and for failing to undertake a needs assessment

Decision date: 26/02/20

What happened

Ms Y is an elderly lady who was receiving care in the Elderly Mentally Infirm (EMI) section of a Council-funded care home (Care Home A, a residential care home). She went into hospital in 2019 where the NHS agreed to provide the Funded Nursing Care (FNC) element for a nursing home placement pending an assessment of her needs.

A social worker (Social Worker A) met with Ms X, Ms Y’s daughter, in March to discuss a move to a nursing home. Social Worker A advised that Ms Y would need a ‘dual registered care home’ in case her needs lessened, or her condition improved, despite the fact that Ms Y’s needs had not yet been assessed. Social Worker A claimed that at this point that she gave Ms X a copy of the Council’s booklet on residential charges. On the same day, Social Worker A made a referral to the Council’s care home support service, which said Care Home A had refused to take Ms Y back, perhaps because she now had FNC funding. The social worker expressed her opinion that Ms Y did not actually ‘need’ specialist EMI nursing but nothing came of that viewpoint.

Several care home options were provided to Ms Y, but she said that each was either too expensive or had refused to take her.

Social Worker A ultimately purported to undertake a ‘proportionate assessment’ of Ms Y’s needs which stated that 24 hour nursing care (not EMI nursing care) should be able to meet her needs as her EMI behaviours were not currently having too great an impact. There was no evidence that she set Ms Y a personal budget.

In the following days Social Worker A contacted Ms X who expressed concern that there were no suitable care homes that the family could afford to top up, for placing Ms Y in, under a council contract. Social Worker A told Ms X that the Council would not help with top up fees, despite failing to identify a suitable home within Ms Y’s personal budget. She instructed Ms X to arrange an admission assessment for Ms Y when the family eventually found a care home that they liked – whereas assessment must in fact be arranged by the council who is going to be buying the placement. This was Care Home B. There was no judgment made by the social worker that Care Home B was even suitable, however.

Ms Y began her placement at Care Home B on April 1st; it was a council placement with an NHS contribution of the FNC element, plus third party top up. However, neither she nor any of her family members had signed a contract for paying a top up, or any third party top up agreement with either the council or the home. The Council transferred her case to Social Worker B.

The NHS reassessed Ms Y as having no nursing needs in May and withdrew the FNC, leaving the family unable to afford the placement at Care Home B.

Ms X contacted Social Worker B the next day to express her desire to complain about the withdrawal of FNC to the Council and to the CCG. Ms X said that Social Worker B insisted she complain only to the CCG and initially refused to provide any email address where she could register a complaint, stating that her personal address was ‘not secure’. Four days later, Social Worker B contacted Ms X to say that the decision to withdraw FNC was final and to explain that the Council would find suitable accommodation if the family could no longer afford the fees.

Ms X complained to the Council and then to the LGSCO. The CCG decided to reinstate FNC 7 months later in December and to backdate the payments, (presumably as a result of a complaint.) The Council provided the Ombudsman with a top up agreement for Care Home B, in which a relative agreed to pay the top up directly to the home. It lacked several pieces of information that are fundamental in order to comply with the Care Act 2014 statutory guidance, namely:

  • The amount to be paid
  • The frequency of payments
  • The amount in Ms Y’s personal budget that was specified for the care together with the accommodation
  • Provisions for reviewing the arrangement

What was found

Ms Y was assessed by Social Worker A as needing 24 hour nursing care. However, a full and proper needs assessment was never completed and the ‘proportionate assessment’ failed to set out any nursing needs to underpin that conclusion. This suggests that she did not follow a proper decision-making process, and is fault.

Social Worker A also failed to ensure the suitability of Care Home B.

The Council could not provide evidence that it had considered the suitability of any of the care homes it had offered Ms Y or whether they could be paid for in full by her personal budget. Nor could it provide evidence that Care Home A had actually reassessed Ms Y or even formally refused to take her back. It never actually set a personal budget for Ms Y and therefore could not possibly consider it, when establishing a top up fee. Moreover, it failed to ensure that the family were fully informed about the fees or whether they would be able to meet them if FNC was withdrawn.

The Ombudsman noted that the Council’s booklet on residential charges was not in line with the guidance set out in the Care Act 2014. It says that the top up fee is relative to the Council’s ‘standard rate’ instead of the personal budget of the service user and tells people to contract directly with care homes regarding top up fees. This double fault may have led to injustice for many others.

Remedies

Calderdale Metropolitan Borough Council has agreed that it will, within one month:

  • Pay Ms X £300 for the distress it caused her
  • Refund the family the full amount that they paid in top up fees to Care Home B
  • Undertake a full and proper needs assessment for Ms Y and continue to pay all fees until this completed and it has found her a suitable care home within her budget
  • Ensure that the Council contracts directly with Care Home B in the future

And within 3 months it has agreed to train staff on the care planning process and amend its literature to ensure both are compliant with the Care Act 2014 statutory guidance

Points for the public, councils, attorneys, advocates, charging and finance teams and commissioners.

It’s been the law for the last 20 years, at least, that top up commitments cannot be put into a direct contract with a care home. We cannot understand how after 5 years of the Care Act, ANY council can still be referring to the standard rate, and still be making the relatives go out and choose from homes that are more expensive than the budget that is being imposed on the person.

All we can say is that this is the law:

When a person needs to go to a care home, they will be offered a personal budget relative to their needs. IF they need nursing care, the rate will be higher for the placement than if they just need residential care. The FNC element is not part of anyone’s personal budget. It is a direct NHS contribution to the overall cost of a placement in a care home with nursing onsite.

The personal budget cannot be arbitrary – and it cannot be arbitrarily low, in relation to the actual cost to the council of sourcing adequate numbers of adequately suitable placements for the anticipated throughput of local applicants for Care Act support. It should not automatically default to the cheapest rate secured for any old care home with a space in it, or to any other arbitrary figure.

The budget has to relate to the assessed needs and the market cost, locally, of meeting those needs, suitably and appropriately.

The Care Act gives people a right of Choice of Accommodation of this nature – and that means that a person can go out of area if they want to, and the budget set will have to take account of the likely costs in that area.

The right turns about suitability, availability, a willing provider, and the COST. If the COST is more than the personal budget, once that has been set lawfully, then the person has to source a top up to assert their choice of preferred accommodation, and this must be written up clearly and in accordance with relevant regulations.

There might be many care homes that are OPEN and with vacancies which are not able to be regarded suitable to the person’s particular needs; the care manager is the decision maker about excluding those from the selection process, even if they are ‘wanted’.

There may be others that are suitable and appropriate but where the price of admission is more expensive, than the person’s personal budget, on account of luxury within the environment being more than is needed, as such, but inseverable from the concept of what does have to be bought by the council (things like wallpaper, fittings, environment, meal quality etc). The home needs to be able to explain why their price is on account of wants and not just meeting the needs being commissioned for.

One can only access those levels of care hone if there is a means to pay the shortfall without using the person’s own money between the lower and higher thresholds – usually a relative or third party’s willingness to pay that extra bit.

There will also be homes that are wanted, and suitable and appropriate but which have no vacancy or are run by providers who simply don’t want to do business with the council, because of its other terms and conditions or commissioners’ policies. One cannot choose to go into a home where there is no vacancy, and no willing provider to the council, however much one likes it.

The council making the placement must contract to pay for the entire amount of the placement, and CAN, if both the care home and the person paying the top up are willing, agree that the home should be paid directly simply for convenience (not legal liability). So, the council pays the shortfall then, and the person pays their charges to the home, if it’s been agreed, and the top up source pays the top up to the home. But the council is and MUST be liable for the whole amount directly to the care home.

The family are not decision-makers as to suitability or whether they themselves constitute an acceptable source of a top up: at most they are best interests consultees, if the client awaiting a placement lacks capacity. The council is the decision-maker, as with all publicly funded care packages. But public law says that councils must take account of all relevant considerations, including emotional and psychological wellbeing of the person, and the suitability of any accommodation that they are currently in, or in which they are proposed for placement.

That is an unavoidable part of a Care Act process and not one that can be done by what is called, disingenuously, a ‘proportionate assessment’ when what is really being recorded amounts to little more than a litmus paper screening test for ‘which patients needs a nursing/residential care home?’

In any hospital discharge situation, even if CHC decision making has been deferred until someone stabilises, or suspended altogether because of Covid-19 and the need for even more rapid discharge and freeing up of beds, an NHS nursing needs assessment is a critically important part of a proper decision making process about the rights and obligations of the patient to ongoing NHS input of some or all of the fees.

Qualifying for FNC doesn’t mean that ONLY a nursing home could possibly meet the needs, but it is a relevant consideration.

If no accommodation is available within the personal budget the council must arrange care in a more expensive setting and adjust the budget to ensure that needs are met. In such circumstances, the council must not ask for the payment of a ‘top-up’ fee.

Statutory guidance says the Council must ensure at least one care option is available that is affordable within a person’s personal budget. It means one suitable adequate appropriate option, to be lawful, in fact. Not Falling Villas, where nobody would put their worst enemy.

If the number of care homes in an area charging top ups for care home admission for council clients with a particular profile of need/categorisation, is more than about 30%, the likelihood is that the amount being paid for care packages in framework agreements by the commissioners is insufficient to enable care homes to stay in business; and in that situation, both the homes and the councils concerned are using top ups as a collusive bridge to sort out the problem that the government doesn’t give councils enough money to discharge their Care Act duties, by getting the relatives of those living in the area to pay for a part of the package that is clearly on account of eligible assessed needs, and not conceivably for mere wants.

Challenge in that sort of a situation was clearly contemplated by the cunning draftspersons behind the Choice Regulations: there is a ready-made piece of face-saving regulation that specifically allows a council to negotiate a smaller top up than was first thought necessary, so that it need never be successfully judicially reviewed for arbitrarily low personal budgets or inadequate regard to the true cost of care in the local market, when framing new procurement exercises.

If one is the resident not able to exercise one’s choice, because of the massive size of the top up, for the particular home wanted, and one manages to get oneself represented on legal aid for the purposes of a judicial review challenge to the size of that top-up, and the arbitrarily low fee being paid for the care you have been assessed as needing, one can often find that the funding will be pulled from under one, by virtue of settlement outside the door of the court, with an increased offer of a personal budget, made under this regulation:

Regulation 5(6) of the 2014 of the Care and Support and After-care (Choice of Accommodation) Regulations:

(6) For the purposes of this regulation the additional cost that is to be met by the payer may be less than the full amount of the additional cost referred to in section 30(3) of the Act, if the local authority agrees that a lesser amount should be paid.

In this case, the recommended remedy for repayment of the full amount of the top-ups paid is a form of restitution required for breach of the Care Act, in terms of returning Ms Y and her family to the financial position they would have been in, had the law been followed properly. That is why councils cannot afford NOT to follow the Care Act, if they wish to retain the trust and confidence of providers and clients alike.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report on the actions of Calderdale Metropolitan Borough Council can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/charging/19-009-079

Ali Raja & Anor, R (on the application of) v London Borough of Redbridge (Rev 1) [2020] EWHC 1456 (Admin) (05 June 2020)

What Happened

This case involved two adult men (A and B), aged 25 and 32, with severe physical and learning disabilities who lived with their mother (X).

A and B had extensive night time care needs. They needed to be repositioned numerous times to avoid pressure damage, and it was assessed in a 2017 care plan that X could “reasonably be expected to reposition her disabled sons at night-time, single-handedly”, despite X having her own health issues. She was not unwilling at the time, it should be noted, or dissenting from this view.

In July 2019 they sought urgent interim night time care as their mother’s health had declined and she said she could no longer cope with caring for her two sons without support. This was repeatedly declined.

The High Court granted interim relief (10 hours per day funded night time care) on the 12th of December 2019, and again confirmed this in January 2020 when the deputy judge continued interim relief and granted permission for judicial review.

The Law

The judge referred to an important case by way of background, for the uninitiated – R (GS) v Camden LBC [2016] EWHC 1762 (Admin) [2017] PTSR 140 at paragraph 19:

“The way the Care Act works is as follows:

Where it appears to a local authority that an adult may have need for care and support a care ‘needs assessment’ must be carried out by the local authority under section 9.

Having carried out that assessment, the local authority must go on to consider whether the assessed person has any eligible needs under section 13 and the Eligibility Regulations.

If the person assessed has eligible needs, the local authority is under a duty to provide support by section 18.

If the assessed needs are not eligible needs than the local authority has power under section 19 to meet those needs.”

Mr Justice Fordham added:

“Section 19(3) empowers the local authority to “meet an adult’s needs for care and support which appear to it to be urgent… without having yet

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

(b) made a[n eligibility] determination under section 13(1).”

Section 24(1)(a) requires a local authority, when acting under sections 18 or 19(1) to “prepare a care and support plan or a support plan for the adult concerned”.

Under section 25(1), the plan must specify the assessed eligible needs which the local authority is going to meet and the way in which it is going to meet them.

Section 27 provides for [existing] plans to be reviewed and revised, including a duty of re-assessment and re-determination in materially changed circumstances, and specifies how the local authority is to approach review and revision.”

The Statutory Guidance states that ‘urgent’ must take its everyday meaning, and “where an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual’s care and support needs… Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow.”

Councils using a Three Conversations approach may need to consider whether their response to Conversations One and Two actually complies with this Guidance, it is suggested, in light of this case.

Rolling’ Judicial Review

This case is an example of a ‘rolling’ judicial review where some issues get resolved en route to court but there is something remaining still to be sorted out.

R (XY) v Secretary of State for the Home Department [2018] EWCA Civ 2604 [2019] 1 WLR 1297  discussed “rolling reviews” and concluded: “there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as ‘rolling’ or ‘evolving’, and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties”.

Mr Justice Fordham stated

“This case called for, and illustrates the appropriateness of, the procedural flexibility which the Courts have described. The design of the claim was permissible, sensible and has been vindicated. The parties were able to focus on the substance, and so was the Court.

The central features of the case as brought were: a continuing statutory function regarding the meeting of needs; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response or not, such that if it was, the refusal was unreasonable in a public law sense.

The discipline came from being able to see clearly the basis on which the claimant says that the defendant is unlawfully failing to comply with a public law duty to act reasonably; and the basis on which the defendant says that its refusal is reasonable.

This approach could take in its stride the reality on the ground, that the parties would continue to communicate about the disputed issue between them.

There was no unfairness or prejudice. There was no problem of inadmissibility or irrelevance of fresh evidence. There was no need for the claim to be re-pleaded. The interests of both parties were protected, as the story of the case unfolded.”

Sole Justifiable Response

The central question which arose in this case… was whether an urgent night-time care need had arisen, because the mother could no longer reasonably be expected to do this, with the sole justifiable response being the urgent interim care provision to allow for night-time carers, pending a full reassessment of needs.”

“The grounds for judicial review put the ‘sole justifiable response’ point as follows:

(a) There is an urgent need for interim care because the claimants are known to require 24-hour care and [the mother] is no longer able to provide it at night;

(b) The only justifiable care to meet this need is funding for 10 hours’ night-time care per day …”

“that immediate funded night-time care is the sole justifiable response to meet their urgent needs”.

The defendant council argued that an interim injunction requiring night time care under section 19(3) was the wrong power to cite as the power in question:

“section 19(3) is only applicable before an initial statutory needs assessment has been conducted: “section 19 is without any application in this case”, since the claimants “seek … a reassessment and not an initial assessment of their needs”.

Secondly, where there have been prior assessments, and where there is a pre-existing care and support plan, the applicable statutory function to address any necessary additional action is “a review under section 27”; and “[u]ntil that review has been completed, the obligation on the Defendant is to meet the claimants’ needs as already assessed“.

Thirdly, in the context of a review under section 27, “if there was an obvious case for intervention, such as an emergency, or an easy adjustment to make… interim arrangements could be made”. This explains the passage in the Guidance at paragraph 13.34, referring to “interim packages to urgently meet needs while the plan is revised”. Such urgent interim action would “need to be provided under section 27, and in particular section 27(4)” [not under section 19….]

The defendant council actually suggested that since the claimants had, throughout, nailed their colours to the mast of section 19(3), the claim must fail for identifying the wrong power. “That is so, even if the defendant is acting unreasonably in failing to provide urgent interim care provision.”

Mr Justice Fordham disagreed with this view (unsurprisingly in our view);

“The fact that there is an existing care and support plan, to which the section 27 function of review and revision is applicable, does not exclude any application of section 19(3).

As the Guidance emphasises (paragraphs 13.8 and 13.27), the section 27 review and revision functions can engage the conduct of a further assessment under section 9(1).

The point can straightforwardly be tested by taking section 27(4). It provides as follows: “Where a local authority is satisfied that circumstances have changed in a way that affect care and support plan or support plan, the authority must – (a) to the extent it thinks appropriate, carry out and needs or carer’s assessment, carry out financial assessment and make a determination under section 13(1), and (b) revised care and support panel support plan accordingly.”

The “needs… Assessment” referred to in section 27(4)(a) would be a section 9(1) “needs assessment” (we are not sure the judge is 100% right about that, because s27 very carefully avoids referring a council back to s9, which would have been the obvious thing to do: it refers to a proportionate reassessment that is possibly a process out there all on its own, as is the care planning equivalent after a revision, but we do not think that it matters in the context of this case).

In the period of time before that section 9(1) needs assessment has been “carried out”, it would be a “needs assessment” which has not “yet” been carried out.

If section 9(1) applies, why not section 19(3)? On the natural and ordinary meaning of the words, section 19(3) would straightforwardly apply to that situation. This is a benign and protective interpretation. It means, simply, that the local authority has the discretionary power to meet care and support needs “which appear to it to be urgent”. It is especially important, given that Parliament referred to revision of the plan as being a step taken after the carrying out of the relevant (4)(a) assessments. That is a very strong indication that urgent needs, pending assessment, would be met not by urgent revision of the plans but by (3) urgent meeting of needs by way of provision of care and support.

It follows, from an examination of section 27(4) alone, that section 19(3) is not in principle restricted to the initial contact stage, and the position prior to the carrying out of a first “needs assessment”. It is to be noted that in section 19(3), Parliament spoke of the local authority as not “having yet – (a) carried out a needs assessment…”; it did not say “having yet – (a) carried out any needs assessment”.

The defendant had agreed from August 2019 onwards to carry out a full reassessment of the claimants’ needs for care and support. That full reassessment would constitute “a needs assessment” for the purposes of section 9(1).

In Mr Justice Fordham’s view, the previous judges’ granting of interim care, were orders relating to the taking of steps which the defendant had the legal power to take, pursuant to section 19(3). 

He stated that the defendants did also have the power to take urgent action pursuant to section 27, which empowers the local authority to revise a care and support plan.

“An urgent revision to a care plan could be made, and that could have been done in the present case. That could, moreover, be especially important if there is a situation where there is something temporary and urgent but where everyone agrees that there is no question of carrying out a further section 9(1) assessment.

In a case where there is to be a section 9(1) further assessment, the local authority has two overlapping powers. They operate in accordance with the ordinary and natural meaning of the words chosen by Parliament, to enable a local authority to respond to urgent needs. This approach is supported by paragraph 13.34 of the Guidance which contemplates that urgent care provision may be implemented not just through an urgently revised plan, but also “to urgently meet needs while the plan is revised.”

Mr Justice Fordham went on to identify three key themes in the defendant’s refusal to grant interim relief;

  1. “The defendant’s ‘inability’ to make any change without a reassessment of needs.

The defendants stated they were “not able to make changes to [the claimants]’ care support plans without completing a reassessment of their needs”. It described a needs assessment as being “required before we instil any change in the care package, urgent or otherwise”.

This language “was an unfortunate overstatement of the position.”

“The statute entrusted the defendant with a discretionary power to act without having completed a reassessment. It did so, even on what emerged as the defendant’s analysis of section 27. A discretionary power, together with repeated requests that it be exercised, required the defendant to address whether to exercise it. Instead, the language of the refusals ruled it out. In concrete human terms, the central question was whether the mother could reasonably be expected to continue to undertake the care provision of repositioning her sons at night, single-handedly? If the local authority was reasonably satisfied that she could, then it could justify refusing to provide urgent interim care. If, on the other hand, the local authority was reasonably satisfied that she could not, then I cannot see how it could in those circumstances justify refusing the urgent interim care provision. In the latter scenario, it would be “able” to make the provision, and the needs assessment would not be “required” before it did so. It needed to ask and answer the question.”

  1. “The defendants had a ‘health and safety’ concern about whether carers could be expected to reposition the claimants without appropriate equipment having first been installed.

The defendant said: “the local authority cannot send staff to undertake night-time care without the proper equipment in place” and “there are health and safety issues that the local authority required to consider[] before sending its staff, if any”.

“There can be no doubt that the defendant was reasonably entitled to be concerned about, and wish to evaluate, equipment and health and safety. However, that could not of itself be a complete answer to whether there was or was not an urgent need, justifying immediate interim action, notwithstanding that the health and safety assessment had not yet taken place.”

  1. “Whether the claimants’ solicitors had provided proper evidence to support the urgent need that they were describing as calling for urgent interim care provision.”

The defendants had argued that the evidence supplied by the occupational therapist did not stipulate that 24 hour care was ‘required’ or ‘urgent’. It stated in both the recommendations only that:

‘[the service users] would benefit from 24-hour care and support as his home environment. He has complex manual handling needs and care needs to justify this level of provision’.

Mr Justice Fordham stated that “In my judgment, the expert reports put forward could not reasonably be regarded as failing to “stipulate” that the additional night-time care and support was “required”, or “urgent”. The key reason given in legal services’ letter focused on the use of the language “would benefit from …” However, a full and fair reading of the reports show that they went far beyond recommending a course as being beneficial or optimal. In his careful and detailed reasons for the grant of interim relief on 12 December 2019, the judge Sam Grodzinski QC said this:

“a need for night-time care is clearly supported by the OT reports, and by what [the mother] states (supported by medical evidence [in] the bundle) about her physical inability to carry on providing such care at night time. The defendant’s… letter takes issue with whether the care needs are urgent, and notes that the OT report states that ‘[the claimant] would benefit from 24-hour care and support in his home environment’ (my emphasis). However, I do not interpret that sentence as implying that such care is regarded by Ms Hillier as an optional or aspirational benefit, rather than an immediate need in particular when the reports are read as a whole.

Mr Justice Fordham stated “I entirely agree with that assessment and cannot improve on it… In my judgment, for these reasons…the defendant was not acting reasonably – in the light of the experts’ reports put forward in October 2019 – in refusing to exercise its discretionary power to provide urgent night-time care and support. Nothing in the documents provides reasonable support for any conclusion that the mother could reasonably be expected to reposition the sons at night, single-handedly. Indeed, I have been able to find no evidence that the defendant – and certainly anyone with decision-making responsibility – asked itself that question and, if they did, as to how they answered that question. It follows that I do not accept Ms Rowlands’ submission that there was no unlawfulness as at the date when proceedings were commenced.

The mother’s continuing support

The defendants argued that that night time care was not urgent, because documents served on 23 April 2020 showed that X continued to reposition her sons herself at night-time, even with two carers in the house. X described herself as “always present at night, and “offers additional support”, stating that “she often sleeps next to [the second claimant], in order to offer him night time support”, “Before we had overnight carers, I would be solely responsible for providing any support, apart from during periods of respite. However, I still choose to assist the workers when they provide physical support.”

The defendant argued that this supported their view that X could meet their night time needs.

However, X explained to the court, using evidence from her GP, why she could no longer be expected to cope or really cope with the physical demands.

“I need surgery to relieve pressure on the spinal nerve which gives me quite a lot of pain when bending. Proposed surgery has a recovery period of 6 weeks, but without support I would have to continue my caring duties without a break. In my present condition I am unable to walk except for short distances indoors at home and not at all outdoors. I am in pain when I stand and can only do so for short periods. I have had a further MRI scan which shows a degenerative problem in my spine which is unlikely to be fixed by surgery. I also have the problem with my right shoulder which are reported to my GP and 2018, and pain to my knees and neck which I’ve been told is due to degeneration and I think the prognosis is not good. In addition, I have high blood pressure. Caring for the claimants is extremely physically demanding. The most physically demanding part is turning them at night, and as I explained in my first statement, I cannot physically do it anymore.”

Mr Justice Fordham highlighted that “the Court was shown no document which addressed the question whether the mother can reasonably be expected to reposition her sons at night, single-handedly, and concluded that she could.”

Conclusions

“The sole justifiable response was the continuation of the urgent interim care provision requested by the claimants, which became the subject of the interim relief orders of the court, which orders have now fallen away. I am satisfied that section 19(3) is a statutory discretionary power which was relevant and applicable in the present case. I am satisfied that the defendant could not justify as reasonable its refusal to act.”

“Until the documents disclosed on 23 April 2020, nobody grappled with the central, straightforward question in this case. Was the mother reasonably to be expected to reposition the claimants during the night-time, single-handedly?”

“The claim for judicial review succeeds. In all the circumstances, I will grant the remedy sought. I will convert into a final mandatory order the order made by way of interim relief by Mr Grodzinski QC on 12 December 2019 and continued by Mr Roger ter Haar QC on 15 January 2020. I have a discretion as to whether to order a remedy. I am satisfied that it is appropriate in this case to do so. The fact that the order embodies what I was told at the hearing is now a decision of the defendant is something which can be recorded in an appropriate recital. I regard as healthy the congruence between what I am ordering under my secondary, supervisory jurisdiction based on public law principles of review, and the position to which the defendant as primary decision-maker dealing with the merits has come in the end. Moreover, the story and circumstances of this case, including the fact that there was no decision letter communicating the new decision, reinforces my view that what is needed, in the current circumstances, is clarity.

What the defendant ultimately decides, once the various steps identified have been carried out, will be a matter for the defendant as the primary decision-maker under the statute. It goes without saying, but perhaps in the circumstances it is worth recording, that that ultimate decision will be the one which the defendant conscientiously considers to be correct, on the merits. In public law terms, it will need to be one which is justifiable as reasonably open to the defendant, on the evidence before it, for the reasons it identifies.”

CASCAIDr have provided me with invaluable support in constructing and articulating a case for consideration by Social Services

“CASCAIDr have provided me with invaluable support in constructing and articulating a case for consideration by Social Services in a council which for a considerable period of years have not followed the law as laid down in the Care Act or used established protocols and procedures necessary to ensure that my son’s Care Assessment, Support Plan and Budget were appropriately aligned and consistently applied. This situation has resulted in the family needing to devote a significant amount of resource, time and effort in an attempt to resolve the dilemmas it produced. The stress and anxiety created has had a direct impact on family members’ health and welfare. CASCAIDr’s support in re-establishing a relationship with the Council has been invaluable in providing the opportunity to resolve this impasse and move forward onto a more constructive footing”

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  https://www.youtube.com/watch?v=1uAU5uuUVDE. 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 belinda@cascaidr.org.uk 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: https://uk.virginmoneygiving.com/CASCAIDr10000Steps

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!

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.

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.”

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. https://www.communitycare.co.uk/2020/04/30/eight-councils-triggered-care-act-duty-moratorium-month-since-emergency-law-came-force/?preview_id=178604 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”.

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!

R (on the application of WP (POLAND)) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2020)

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.