Archive for News – Page 3

Keeping calm about the Care Act, during the crisis

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

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

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

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

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

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

So here’s our invitation:

  • We are keen to hear about – and publicise – sound, rational, sensitive, humane policies and practices from Councils or Care Trusts.
  • You don’t need to name yourself, publicly, if you don’t want to – your email address won’t be shown and if you don’t even want your NAME to show, simply omit to fill out the name box, and you will be shown as Anonymous.
  • You can choose whether or not to mention the council’s name.
  • You must anonymise the name of the person whose situation or stance you’re describing, if it’s not you – whether a service user or a worker. We suggest how to do that below.

We won’t publish material that we think is negative – it’s not the time or the place.

  • We are not saying don’t give us bad examples, or problems; we are saying that those need to be treated differently, please note.
  • If it’s a policy or general approach issue, do still give us it, please, on the form below, and we will reply privately to you with suggestions about how to get poor practice changed – we can exert some leverage with a simple letter as to why it’s not a great idea.
  • Examples that come to mind are the stories of surgeries sending consent forms for DNRs to be filled out in care homes on the basis that people over a certain age ‘won’t be offered hospitalisation or a ventilator’. Words fail us. But letters to CCGs and councils rarely do!

We’ll be moderating the material posted to the form at the bottom of this page, behind the scenes, so accounts of bad practice or policy will be treated as referrals for a free steer as to their legality, not put up on this page.

Anything that is put up on this page as an example of good practice can be further clarified by the council or Care Trust being promoted, via a further comment.

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

Individuals’ difficulties

If it’s an individual’s difficulty you need to get some help on, please tell us on our referral form on the top line menu bar, above, in the normal way.

How we’re surviving the crisis, as an organisation with no public funding stream

  • Unless charities get financial assistance, our Corona Crisis Mode is limited to a private free steer on all such issues.
  • Like every other charity, we’re scrabbling for grants, philanthropy, and donations.
  • We can and will make referrals on to law firms with capacity to take on cases that compel urgent action.
  • Any law firm that wants to offer us information about its credentials for this kind of work, and is willing to support us legitimately following SRA rules, Legal Aid rules or under its Corporate Social Responsibility Policy is welcome to get in touch with belinda@cascaidr.org.uk.

PS Don’t forget that we’re also providing free template letters for use by all members of the public in their own names, who want to know the right way to assert their case, politely and calmly, as one that must or really should be prioritised – the link to that page is HERE where they will be going up over the next few days, if we can survive, financially


Our form:

May we suggest that you copy and paste the most relevant form of wording below, into the Comment box below, before continuing to type in your own local story or good/not so good practice example:

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

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

Or

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

Or

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

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

eg … the council / Care Trust is saying that…


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The Coronavirus Act and its impact on the Care Act

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

Regulations were passed on 31st March bringing the suspension into force.

Confusingly perhaps, the DHSC issued Guidance under the new law, saying councils could each choose whether or not to adopt this easement but had to follow a process of very careful mapping and thinking beforehand.

That is confusing because the Act already suspended the duties as soon as the regulations were triggered; the Guidance is guidance only and said ‘should’ do this or that, but can’t change the fact that the duties do not have to be complied with.

Regardless of whether one’s own local council has made its decision as yet, and regardless of how long it might take the management team to follow the process and decide, the legal issue is thta nobody is really sure therefore whether councils are bound unless or until they do what the DHSC has asked them to, (which process, itself, they could mess up, in a public law sense) or whether they are not bound, but must try to exercise all functions under the Care Act lawfully and rationally in any event.

One thing is clear, councils are and were already able, without fear of legal redress, to start doing a bit less than their normal duties or doing them differently, if that is considered necessary, because there is an element of retrospectivity provided for, for easing transition to the new era, in para 16 of the relevant schedule in the Act (sched 12). 

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

So here’s some good news, we think.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This expectation remains central to this updated statutory guidance”.

  1. Salford City Council (19 002 111)

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

What Happened

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

Findings

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

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

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

  1. Staffordshire County Council

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

What happened

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

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

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

Findings

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

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

3. Stockport Metropolitan Borough Council (18 014 455)

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

What Happened

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

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

Findings

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

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

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

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

Comparisons

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

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

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

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

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

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

Considerations/ learning for all public authorities:

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

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

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Solihull Metropolitan Borough Council at fault for failure to FUND a supported housing placement for a s117 client

Upheld 02/10/2019

What happened

Miss A had been compulsorily sectioned for a mental health condition and received free aftercare under S117 Mental Health Act from the Council for a placement in a care home.

In 2015, the care home closed and Miss A then moved to supported accommodation for people with mental health conditions. Ms C (Miss A’s deputy for finances appointed by Court of Protection) arranged for housing benefit for Miss A until Miss A received an inheritance.

In May 2018 Miss A was ordered to pay back an overpayment of housing benefit and then needed to pay for her ongoing housing costs through her inheritance.

Miss A received a 30 hour per week one to one s117 aftercare package from an organisation which comprised housing and support arms. It purported to provide support rather than care but the contents of this woman’s care plan had remained unchanged from 2016 from when she had been living in a care home:

  • Staff provided support with personal care and hygiene needs, laundry and cleaning; and
    • Staff supported her with shopping, budgeting and managing her money.

Ms C complained to the council on Miss A’s behalf because the Council would not pay Miss A’s rent or service charges as they claimed those liabilities were not part of her aftercare, while Ms C argued that if the accommodation costs were paid in a care home it was appropriate to pay costs in specialist supported housing. Ms C also made a claim for repayment of the housing benefit paid through Miss A’s inheritance and the overpayment that Miss A had been required to return.

The council responded saying that the costs in Miss A’s previous care home were paid because there was no way of separating out the accommodation and care costs in that context; Miss A chose to move to supported housing by signing the tenancy so she was responsible for paying housing costs; ordinary accommodation needs were not covered by S117 as they were not mental health needs; S117 only supports needs arising from a person’s mental disorder; and payment of rent was not a mental health need. But the Council agreed to pay the flat rate weekly fee to cover a daily self and wellbeing check, access to daily activities and 24 hour staffing. The care package of 30 hours remained the same.

Ms C complained again, saying that the tenancy agreement provided accommodation and care and support as part and parcel of the same contract, and terms provided that the company may repossess the property if another care provider was sought.

The council still rejected the complaint saying that the tenancy agreement did not require that the care provider must be the same as the landlord and that the company had not sought repossession from anyone who refused care.

However, a copy of the tenancy agreement signed by Ms C did state as follows: “Obligation to accept support: The provision of support services is a fundamental part of this tenancy agreement. You agree to accept the support services provided. If you fail to accept the support services we may seek an order for possession.”

When the council rejected Ms C’s complaint, she approached the Ombudsman.

What was found

  • Care planning for aftercare takes place under the Care Programme Approach (CPA) framework. The person must have a care plan to document aftercare which should say which services will be section 117 funded. Ms A’s care plan did not set out her entitlement to aftercare services or specify what those aftercare services were. The care plan should have set out Ms A’s aftercare. This was fault which caused avoidable confusion and led to this complaint.
  • Drawing from the Mental Health Act S117 and its Code of Practice, the Ombudsman confirmed that if a person needs to live in specialist supported housing in support of their mental health aftercare needs, then the Council and CCG should pay the housing costs. The person should not have to claim housing benefit.
  • Mwanza vs LB Greenwich and LB Bromley (2010) sets out the criteria by which housing costs can end up needing to be met under S117 aftercare.
  • Afework vs Camden LBC (2013) is another case about the difference between ordinary housing needs and having a mental health aftercare need for housing, arising out of a brain injury. In this case, a duty to include accommodation within the s117 package was rejected because the need for accommodation related to the brain injury rather than the pre-existing mental health disorder. (However, the law has changed and the Care Act amendments do not require the aftercare to be needed for the same condition that one was sectioned for now, please note).
  • It was not a satisfactory argument to say that in a care home it was not possible to separate care and housing costs as opposed to the situation in supported housing. That is not the test of what is needed by way of aftercare. Nor that she chose to live there. She was placed there, in reality: “Miss A was only placed there because of her mental disorder. I cannot see why she would have been placed there otherwise.”
  • Furthermore, the supported housing was clearly presented as offering an integrated service of care and accommodation for people with enduring mental health disorders. 
  • Miss A did not have the mental capacity to choose her accommodation even if she was consulted on it.
  • Miss A had been placed in a supported housing scheme to support her mental disorder making her housing costs eligible for S117 aftercare funding. 
  • The Ombudsman was satisfied that Miss A’s overall care package was entirely different from one that would be delivered in mainstream accommodation with a package of care.  Inclusion of Miss A’s accommodation costs were in accordance with the Mental Health Act, Code of Practice and the two court cases cited.

Agreed outcomes

Within one month, the Council will refund Miss A’s housing and service charge costs paid to date and arrange to fund these costs in future, while she is eligible for aftercare services. The Council will apologise and will repay the overpayment of housing benefit made by Miss A in May 2018 and also £500 in recognition of Miss A’s distress.

Comments for Public and Health and Social Services

  • The LGO is pointing out that it should not be assumed that accommodation cannot be funded under S117 Mental Health Act. Specialist accommodation that supports mental health aftercare needs and the statutory purpose is capable of being an aftercare purpose and should be funded. The Mental Health Act Code of Practice 33.4 includes supported accommodation in its list of possible services for funding provided it is for mental health aftercare purposes.
  • This legal necessity to provide housing directly, and pay for some or all of it, can actually arise we think, if a suitable tenancy  in a supported living house, with a specialist provider in situ, either
    • cannot be accessed within a reasonable time, (because there’s no vacancy local to where the rest of that person’s life needs to be run from)
    • or is not being regarded as part of a scheme that is ‘affordable’ by the commissioners
    • or is not accepted as suitable, by willing clients with capacity, or by the proxies of people lacking in capacity to understand the nature of a tenancy
  • or if the intended tenant won’t apply for Housing Benefit, or (even if it’s applied for by an appointee) won’t qualify for Housing Benefit!

Who needs a specialist roof?

  • Of course, the vast majority of people who need accommodation on discharge, but not in a care home, WILL need a roof that provides the setting for aftercare services – from specialist mental health providers whose task is supervision and prompting and monitoring. Here the LGO listed the specialist features: the special features of the accommodation are/were: 24-hour on site staffing, CCTV, organised activities and a welfare check, all of which had the purpose of monitoring Miss A’s mental state and reducing the risk of her mental health deteriorating. These features are not available in mainstream housing.”
  • People in this situation should not be expected to contract in their own names for Housing. They should be placed by dint of the council making the arrangement with the housing provider, and permitting the person to occupy under a licence for as long as they qualify for aftercare.
  • A need for proper supervision and support in terms of time or reaction speed are the indicators for a need for specialist housing.
  • If living rights in a building have to be in a person’s package, in order for the rest of the package to work, it has to be paid for by the s117 budget.
  • This is a bit like the test under the old law, for being in need of care and attention that would not otherwise be available if it were not for the authority’s arrangement of registered OR unregistered accommodation (s21 NAA). If the person does not need specialist accommodation then Housing is something that the person can be helped to find, by supporting them to apply as  homeless, or otherwise deserving of points in the Housing Register system, or nominating them to specialist mainstream supported living under the Care Act. But that doesn’t count as providing the housing within the plan. Providing means commissioning or funding it, here.

Registration implications

  • If councils and CCGs paid for occupation rights for individuals under s117, the accommodation element would not then get fatally mixed up with or interdependent on the care. The Landlord would be the Local Authority and the licensee can receive care – even care that counts as personal care, through a contract with a care provider.  That is the provision of care in the place where a person lives, and it is not unlawful for it not to be registered as a care home.
  • If a tenancy between the person and a business taking a property on a long lease stipulates that the tenant must accept support services, to get the tenancy, and the support services amount to personal care, that is the same scenario as was outlawed in Alternative Futures many years ago – that would be unlawfully unregistered (criminal) care home care based on a de factor integration of the two elements.

Impact of this decision, potentially

  • The clients most crucially affected by the legal questions lurking in this report are young people trapped in ATUs or adults’ psychiatric facilities with s117 Mental Health Act status for aftercare purposes.
  • The thrust of this report would completely solve the Transforming Care queue – councils could just contract for spaces in which to accommodate people and arrange appropriate services to go in, like a home care model, instead of pretending that they are dependent upon specialist care providers and housing associations to do deals for nominations and voids guarantees. Sir Stephen Bubb’s vision for creating a source of private investment in housing for this cohort has not worked and is seriously open to challenge because of the tying together of the care and accommodation element arrangements, in practice.
  • We think that social services councils and CCGs DO – just sometimes – have to buy into unregistered property – or rent unregistered property – in which to place someone – for the essential underpinning to a person’s s117 care package. We think that legal literacy and well-informed advocacy and co-operation between housing, social services, mental health and health service professionals, is the only way to solve the crisis in Transforming Care.
  • If it CAN be done, then the next question is when SHOULD it be done? It’s almost impossible to think of people with autism and challenging behaviour NOT needing 24 hour supervision and that is meaningless unless it’s under a stable roof.
  • And after that question, this one: what is the sanction for not doing it or not considering doing it, unlawfully, in public law terms, now that restitution has been said to be the ordinary consequence of public law illegality in CP v NE Lincs? People will have mouldered in psychiatric hospitals for want of a roof, or paid through HB for the privilege of being told which one to go and live in, and both positions seem wrong to us.
  • We absolutely agree with the LGO that is not lawful for authorities to decline funding on the basis that accommodation and care provision “is treated separately” for the purposes of S117 aftercare. That is the culture, certainly, but it is not the law. It is much more subtle than that: everyone needs a roof, and some people need a roof to stop them being readmitted to hospital, which is a need for a roof by way of aftercare, but even if they do, taking a tenancy IS a viable choice, and the result is not a placement at all; the housing is not then provided BY the s117 council and CCG, and the rent would not be in the package.
  • The LGO investigator has not addressed the inconsistency of the Deputy here having contracted for a tenancy whilst at the same time contending for the rent to be paid as if the s117 team was the contractor for the accommodation. An organisation can’t contract for a tenancy ‘for’ somebody else, in English law. An organisation can contract for the right for a person to occupy someone else’s building with permission, but it won’t be a tenancy.
  • The LGO investigator does not address the point that many people discharged on to s117 might WANT a tenancy, in to which specialist services are being SENT, or at least does not MIND signing up for one. It has never been the law that a liable body is obliged to provide that which a person willingly provides for themselves, however much it is needed / the person has eligible needs for it (eg under the Care Act).

If you need help from CASCAIDr, make a referral via our Referral Form link on the top menu bar of www.CASCAIDr.org.uk

The full report can be found here:

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-002-160

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CASCAIDr’s Highs (and stats) from Year Two…

SUBJECT MATTER covered by this year’s referrals:

Challenges to Assessments – including non-eligibility findings, un-evidenced assumptions about carers’ input and decision-making without regard to advocacy rights

Challenges to Care Plans – cuts, delays, lack of care plan transparency and decisions relating to accommodation versus homecare; people being told to spend their own money on conventional homecare services

Direct Payment disputes – managed accounts, employment of close relatives in the same household, reclaims of unused amounts, for want of any interest in the job for the rate paid, including unpaid charges

Continuing NHS Health Care status or care planning enquiries and retrospective reimbursement claims

Arbitrary rates for direct payment budget holders after a decommissioning exercise to reduce the number of commissioned home care providers

Charging challenges – mainly Disability Related Expenditure, but some reablement financial issues after hospital discharge

Top-up disputes when a person’s capital depletes or on first admission

Mental Health – lack of services in the community

Delays with inadequate interim services during the wait for housing rather than a placement – s117 and ATU patients stuck in secure facilities; unconscionable delay in concluding Care Act processes

Care home or supported living evictions, often after complaints

Transfers to other authorities and disputes about where responsibility lies

Safeguarding concerns (which are out of scope); family struggles

OUR MOST SIGNIFICANT CASES in Year Two:

Lack of care planning or any adequate interim care leaving a young man to pose a safeguarding risk to own parents and siblings – whilst waiting for the mirage that is supported living

T is a young man who is acknowledged to need 2:1 care all the time, but who had been living at home with parents and his younger half-siblings ‘waiting for housing’ for want of any provider who could reliably find appropriate staff for servicing the care plan. This situation had come about because the council’s policy for preferred outcomes for transitioning young people with high cost needs (and the parents agreed), was ‘supported living’ rather than a placement in a care home. The trouble was that the young man by this time posed a safeguarding risk to the parents and other children and no interim provision that was conceivably sufficient to meet his needs was being funded. CASCAIDr’s intervention led to the parents realising that nobody would be likely to offer a tenancy to this young man without a connected contract for the care at a high enough cost to actually attract staff. This led to the rapid commissioning of the first stable placement in a suitable care home that the young man had had in years, a return to normal life for the rest of the family, and happier relations between the siblings. A claim for restitution for the £76K of care that the family had just been assumed to be willing to provide all along, was then settled.

“Having heard you speak (which served to reconnect me as a worker to stuff that I hadn’t realised I had lost) I am convinced of the need to make sure that you are out there holding Local Authorities to account when the pressures of austerity tempt them to forget both the letter and the spirit of the Care Act. We chose to come to CASCAIDr because of your focus on the whole picture – building understanding, upholding people’s rights, empowering them to act and to challenge for themselves and finding positive solutions that trigger learning for LAs. I cannot tell you how good it was to read your plan – you are right, it has really cheered me up! To know that something really good may come from the horrible time that T and my family have lived through is really important. Thank you for giving us this.”

Supported living under threat due to repeat dissatisfaction with commissioned providers no doubt being incapable of getting staff to stay

J is a young woman living in her own flat with 24 hour care from a provider that had perhaps been in place too long and lost interest; the legal dispute was about getting the council to recommission at a proper price, after the elderly parents had grew tired of organising everything that had to be done via a direct payment route for managing the package. There were TUPE and public procurement issues being seemingly treated as insurmountable, but the duty to meet her needs was sufficient to break the impasse.

“Miracles do happen! We had a meeting with the head of learning disability and she agreed that J could have her care provided by our chosen care provider; J would keep her care team; J would not need to be reassessed; TUPE conditions for the staff would be observed. The new provider has a value system which is actually applied for the benefit of their clients rather than just written down and then forgotten. I am really impressed with what I have seen so far. It’s also great to see the way they really value their staff and involve them in decision making. Thank you once again for your help – we would never have made it without your help.”

Dispute over a care package with pressure being put on dedicated parents to manage within the budget despite their no longer being able to cope

G is a young man with a large sum of compensation from a personal injury settlement whose assets are not able to be counted, in the financial assessment for social care, although they are of course known about, leading to a rear-guard action against spending any more public money than £493 a week. On being informed of a change of circumstances on the part of the informal carers, (a lessening of wiling input) the council told his parents that they could spend the current budget differently but would have to stay within it, regardless of their wishes for retirement and leisure. There was no proper assessment and no care plan. After some support to the client’s deputy, the outcome was a much-enhanced care package of £826 a week.

Domestic support for a woman for whom infection control is significant to managing her long term physical health

C is a woman whose council has determinedly stuck to an offer of 2 hours a week for cleaning and domestic work in a situation where the person’s reduced immunity to infection compels great care with hygiene and a significant consequence if she becomes ill. Her consultant clinician is known to the council to be of the view that she needs 4.5hrs a week on these tasks as a minimum. The woman had been given a budget for having live in care and the council purported to change that model and offered an arbitrary amount for care in addition. It failed to abide by the Care Act or Guidance en route to a final decision some 18 months after commencing its work on review. The council’s Monitoring Officer also refused to engage with the independent governance duty she is bound by, on the footing that the allegations of breach of the Care Act were a dispute, and not such as to oblige her to report ‘likely’ contraventions of enactments and rules of law. This matter is now with the LGSCO.

               “Just to say, my family and I cannot thank you enough for the professional but kind help you have given us for the past 2 years. We are thrilled with the content and the way you have written your 3 final attachments and I hope the things I have highlighted and requested be amended/corrected don’t add too much extra work. We do not know where we would be without you and your organisation and honestly cannot thank you enough for all of your time, effort, energy hard work and for spurring me on and keeping my chin up when I was finding it difficult to battle on!”

Direct Payments, Payment Cards and Choice

B was a woman who was told she would have to have a payment card, unless there was a therapeutic reason for sticking to a bank account. Our intervention led to a change of position on that front, and the woman remains on a personal budget that is recognisably a direct cash payment.

“I am very grateful for the support and advice given to me by CASCAIDr in my fight to keep a traditional bank account for my direct payment, when the Council tried to force me to have a prepaid card which was unsuitable for my needs. After what felt like a David vs Goliath battle, thanks to the support received from CASCAIDr my local Council agreed to comply with the Care Act, allowing me to continue using a traditional bank account.”

Interim placement and a risk of losing his own home, for want of a proper care package

J was a man who owns his own accommodation but who was unusually wandering and distressed and unsettled. He was temporarily accommodated in a care home without a DoLS and told to go and look at several options, none of which were suitable. Our intervention led to a much better care package in his own home, albeit one that was a complex patchwork of different sorts of activities. He now gets 16 hrs a day 1:1 commissioned care from an agency, and overnight telecare supervision from the property’s staff. He has an alarm box that notifies them if he gets up in the night and opens his apartment door. He’s aware of the purpose of this (to keep him safe) and agrees to it. So he’s still in his own house. His family said that J has made loads of progress and is getting back to his old self.

“CASCAIDr gave me the strength, confidence and knowledge to fight for J’s entitlements; without it, the outcome would have been catastrophic for J and may even have resulted in his death.  I feel that this is the time to get things sorted once and for all. I now feel I have the confidence and knowledge to discuss J’s rights with social care.  Thanks for empowering us both.” 

Continuing Health Care and an increased package of care

A was a woman with physical and psychological issues related to diagnosed ASD and gastrointestinal problems of a severe degree. Her council had put her forward for CHC whilst ignoring the fact that her needs had increased significantly since 2013 and leaving her plan inadequately funded. She ultimately qualified for CHC after we made it clear to her social worker how we would expect the case to be put in an MDT by any competent council. Her CHC care plan is adequately funded and the representations about ensuring sufficient clinical input into her package as well about community engagement have been acted upon. Our client is now writing up LGO reports for us, as a volunteer.

“I had a meeting with CHC on Wednesday – the indicative budget they are offering seems really reasonable – covering personal care, ASD mentoring, physio and support to access the community. It seems too good to be true, so I am wondering what the catch is…”

Charging and Disability-Related Expenditure

K is a young woman challenging her council’s approach to disability related expenditure – contending with approaches varying from ‘we can’t read your receipts’ to ‘this can’t be DRE because it’s not mentioned in the care plan as a need.’ The council is now being required to make a proper decision about the discretion that it has been given, within the concept of being obliged to allow for DRE.

“This overview is amazing, and I cannot thank you enough! I’m so grateful for your response – it really does help to be put in the picture from a legal point of view. I absolutely see myself as fighting not just for myself but for other people that are struggling to make ends meet and not have this life destroy them physically and mentally.”

Liability for maintaining a previous authority’s care package, when a person moves from one area to another, under the continuity provisions in the Care Act

L is a young man whose parents moved from one council to another, with the previous one’s care plan being conveyed in advance. No care plan for ongoing direct payments was put in place for his arrival, and no lawful care assessment was commenced for 10 months after he arrived. Our intervention led to a curated referral to a legal aid law firm with which we collaborate and the issue of judicial review proceedings after that firm’s instruction of a barrister. This case will probably lead to a back payment as well – the sum being effectively imposed and determined by the continuity provisions of the Care Act.

“Is there any way you would kindly consider carrying on for us, pretty please with knobs, whistles & bells on?  We really NEED YOU! You have single-handedly reduced the stress and anxiety we have been under for so long – we refuse to let you go!!”

Retrospective redress for unpaid fees in a continuing NHS health care case, plus compensation for wasted time and legal advice expenses

In M’s challenge to the CCG for retrospective reimbursement of fees for an unassessed period of CHC entitlement, for her father, the back fees were paid, but the CCG refused to pay the claimed compensation for the taking of legal advice, distress and aggravation and compensation for her own wasted hours of self-employment. She had to complain to the CCG as well as gather all the evidence, and comment on the nurse assessor’s report, on the review. County Court proceedings for restitution were issued and the CCG eventually settled the case, having told us that there was no such action known to law.

“I’m grateful for your comments about the likely outcome of mediation and the likely motivation of a court service mediator. Thanks again – I think my brain may explode after reading the caselaw you’ve helpfully sent.”

Challenge to the failure of a council to place a person before their capital depleted, followed by a Conversations based approach to assessment, followed by insistence on a top-up for so long that the woman’s capital depleted to NOTHING

B is an elderly lady whose family moved her into residential care without realising that a person lacking in capacity ought to be placed by a council regardless of her wealth, if there is no deputy or other authorised and willing person to make arrangements. Once her capital had depleted the council told her that her relatives HAD to top up if she wished to stay where she had now settled. They did this without any consideration of her human rights or wishes and feelings or the social work duty to consider the suitability of her current accommodation and the impact on her wellbeing if she was obliged to move. This is an ongoing matter!

Refusal to let a 15 years’ divorced ex-wife provide paid for care out of a direct payment to her ex, now her lodger, with cancer

P was divorced from ‘I’ over 15 years ago but were regarded as living together ‘as if’ husband and wife, even though they have had no intimate relationship for 15 years and do not share even a bedroom. The result was that the council said that the man could not use a direct payment to pay his ex (and now his landlord) to care for him and meet his needs without addressing the evidence or explaining their rationale. After some correspondence from CASCAIDr they have been issued with Legal Help (the legal aid board NOT regarding them as a couple and thus not aggregating their income, ironically) for judicial review proceedings. This case will likely lead to a back payment, in addition.

“From the initial telephone consultation and very many subsequent emails, the service, excellent advice and support I received has been invaluable. I had absolutely no idea that this service was available until S.I.L. explained it to me but it certainly provided me with unwavering support at a time when I needed it most – its help, subject knowledge, support and advice is definitely second to none.”

Dispute over the adequacy of a care package during a period of 5 years of lack of clarity about what it was or was not FOR…

A is a young man who has been overpaid a direct payment for over 5 years, according to his liable council, but not according to his parents, who have banked the excess, over and above what tends to be needed, and believe that it was always due in light of historical assessments and the rhetoric of personalisation, such that it should still be available for use. CASCAIDr’s intervention has led to the council in question being willing to devote significant resource to sorting out the question of who owes what to whom and regularising the care package arrangements for the future.

“Thank you so much for your help and support – really appreciated.”

Discretionary visiting expenses when a young person is placed a very long way away from family members – but by the NHS not the council

A is a young man with parents who visited him determinedly over the years when he was in a far distant ATU. They claimed the expenditure for visiting, and CASCAIDr helped the family pursue that matter as a complaint to the CCG, who eventually recognised that they hadn’t done sufficient evidence gathering, on which their own policy regarding financial support of carers was supposed to depend.  Our intervention led to an offer of travel expenses, albeit that the amount was more than they had asked for. The re-application of the policy, in light of it having been pointed out that the CCG had known all along how central the family was to the man’s wellbeing was one issue and the complaint about failure to review the man’s package was treated separately; the complaint response is still anticipated, even though it was promised weeks ago!

“Just to let you know although we haven’t received a complaint response yet the panel met again regarding travel expenses to visit AP and has written offering the £500 a month expenses. Thank you so much for your help and writing the complaint letter. The report published on Human Rights & ATUs today quotes some of my evidence and also says this on page 54: ‘Placing young people a long way from their home reduces their support from their families and undermines their right to family life under Article 8 ECHR. It must stop. Until it is stopped, families must be given the financial support they need to be able to visit their loved ones.’”

Protracted dispute over whether a person needed 1.25 hours a day of care or 5 hours – for a complex mixture of mental and physical health needs, causing massive carer and family strain

N had been a vibrant and confident woman who had become almost bed-bound whilst awake all day and night, through spinal and muscle deterioration and associated mental illness, to the point where her husband was really struggling to care for her. CASCAIDr and a law firm acting on a fee paid basis, because they owned a house and could not qualify for legal aid, secured an increase in hours from 1.25 per day to 5 hours a day, over a period of protracted correspondence. The extended family is now thriving, and NM is taking much more interest in daily life and the world outside.

“Our family moved on from utter despair to some hope, because of CASCAIDr. The council acted unlawfully and CASCAIDr and the law firm made them change their minds. No one was prepared to listen until very fortunately for us we were introduced to this charity. The charity’s kindness empathy and efficiency helped to keep a vulnerable wife with her husband, at home, and in the community. It secured us the means to let one sister help the other sister in much need, which the council had said could not happen. The intervention has improved our quality of life as a couple and as members of the community we live in. As a family, we have no words to express our gratitude. Thank you CASCAIDr!”

Some of our Trading Company’s work

Mental Health

“Thank you so much for your extensive reply. It is much appreciated. There have been many charities I’ve contacted, and many don’t want to know. My uncle is a complex case and different to many, as he does have mental capacity. Many organisations are simply not interested. I thank you deeply for taking the time to respond in depth and after thought.”

“Just wanted to say thank you for everything. I got E a lawyer thanks all to you and things are getting a little easier after a nightmare few weeks. NS is on the case and taken a huge burden from my shoulders. You really stood out on safeguarding across all professions I have talked to in my own career and in the last few weeks. You saved my sanity and probably E’s life.”

Types of client by reference to primary need/condition/concern


 Asperger’s/ASD





39
LD 54
PD/illness 35
Elderly clients 31
Mental Health 20
Finance or charging 81  
Prisoner’s care 1
Providers’ enquiries 5
Safeguarding 10
Parenting Support 2
Special Education 4
Total 277 individuals
5 companies       
282 clients (5 – 6 new clients a week)
Numbers, by reference to CASCAIDr’s charging model  
  Triage                                                                   282 individuals
Triage requires 1.5 hrs on average

Chargeable clients  after Triage
46 individuals or companies
   
Free Scope work after triage
18 individuals
    
We spend 1 day a week out of 4, giving completely free advice through Triage, regardless of the merits of the person’s referral.      
Hours of free work to the public 529 approx, incl triage cases  
Hours of chargeable work  180 approx

So, about half a day per week was spent on free work for those with strong cases of illegality.

And half a day per week was spent on chargeable less clear-cut cases, or complaints work.

For the remaining 2 days per week we are open for, we focus on our other objects such as providing free updates to the public and sector, delivering webinars, writing articles, publicising the charity’s existence and mission, fundraising and billing, governance and support of the caseworkers and volunteers.

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London Borough of Hammersmith & Fulham at fault for delays in reviewing care and the carer’s and client’s packages

Decision Date: 30th September 2019

What Happened

Mr B complained to the Council on behalf of himself, as a carer, and his mother, Mrs C.

Mrs C was an elderly lady, who suffered from several health problems. She needed help with personal care and often to mobilise. She was also at risk of falling from her bed during the night.

Mr B was her main carer.

In March 2017 the Council completed a full initial assessment and put in place a care plan. The package of care remained in place until February 2018, when Mrs C was admitted to hospital.

When the hospital discharged Mrs C the package of care resumed. The Council does not appear to have reviewed the care package at this time. However, it carried out a carer’s assessment for Mr B in March 2018.

The carer’s assessment found Mr B was happy to continue in his caring role but would like more support. Mr B said he was now staying at Mrs C’s house overnight more frequently because she slept badly and more often fell from bed. He said Mrs C had become incontinent since the last assessment and he had to support with personal care and changing her pads. Mr B said he felt socially isolated, often felt low moods because of the caring role and was limited in gaining employment.

The assessment found Mr B was at risk of continuing stress and possibly physical harm from lifting Mrs C. The Council offered Mr B moving and handling training, but he declined for unknown reasons. It put in place a personal budget of £300 for Mr B so he could take a break away.

Mr B said that from between April and June 2018 he started to call the Council frequently and leave messages that said he was not coping and needed more support. He said it was often late at night or during the early hours of the morning that he called as these were the times he was struggling most.

The Council had no records of any calls from Mr B until July 2018. At this point a council officer spoke to Mr B who said he was not coping and needed support urgently. The officer sent a request for an urgent review of both Mr B’s and Mrs C’s support packages.

Mr B did not hear back.

The Council’s records showed he called again two months later, in September 2018, but Mr B said he called more times in between, again possibly out of hours.

Mr B said his mother’s health had worsened, she was injuring herself and the care package was not now meeting her needs.

After the call in September, the council officer saw the review was overdue so sent a further request for the review team’s immediate attention.

The following day the Council allocated the case for a review. However, two days after that Mr B called to say Mrs C had sadly passed away.

Mr B complained to the Council.

The Council apologised to Mr B as it said it could have arranged a review sooner. It said the reason for the delay was because of a large volume of requests at that time. The Council said it was going through a service wide transformation, with new staff, systems and procedures which likely played a part. The Council accepted it provided a poor standard of service to Mr B and Mrs C and apologised.

What was found

Annual Review

Councils should review a person’s care plan at least once a year. The Council assessed Mrs C and put in place a care plan in March 2017. A review was therefore due in March 2018. However, the Council failed to review the care plan before she passed away in September 2018.

The Council said Mrs C’s care plan ‘would’ have been reviewed when she was discharged from hospital in February 2018. However, it provided no evidence of any review. The correspondence provided suggested it merely reinstated the existing care package.

Therefore the LGO found the council at fault in failing to conduct an annual review of Mrs C’s care plan.

However, the Council did conduct a carer’s assessment for Mr B. It put in place support for Mr B in terms of a personal budget to allow him a break. However, during that assessment Mr B said his mother’s needs had increased.

This itself may have been enough for the Council to consider a review of her support package and therefore added to the fault that it did not conduct an annual review when one was due by this point.

Requested review

The LGO had to consider that without records of Mr B’s calls, it could not say whether the Council could or should have responded. If Mr B left clear messages that council officers could respond to, they should have passed these on to the relevant team. However, without any file notes or recordings, there was not enough evidence to make a finding on this point.

The records provided by the Council showed that Mr B first requested a review in July 2018. The Council accepted it could have actioned a review sooner. Normally a timeframe of four to six weeks is acceptable in terms of arranging a review. However, in this case Mr B was clearly distressed and asking for urgent help. The review request was marked as urgent. This suggested the Council should have arranged a review at the earliest opportunity.

It did not allocate the case for a review for two months. This was fault.

Mr B said the impact of the fault was that he continued caring for his mother with a care plan that did not provide adequate support for him or his mother. This caused him distress and risk of physical injury from moving his mother. The LGO recommended the Council pay Mr B £300 in recognition of this injustice, apologise for the delay in reviewing his and his mother’s support plans, and for not carrying out an annual review of his mother’s care package.

Points for the public and for the council

  • This baleful and sorry tale of our times underlines what is happening all over the country due to redundancies and frozen vacant posts whilst cuts from central government continue to take effect.
  • We are surprised that the LGSCO did not refer to the legal duty in the Local Authority and Social Services Act 1970 that is still in force, and binding on all councils – the duty to ensure that social services departments are furnished with sufficient staff for the discharge of their functions.
  • Assessments, reviews, and revisions to care plans are at the very heart of social services functions, and are statutory duties. Unless the man in this case was regarded as making up the calls that he claimed to have made, there is no possible excuse for failing to get someone to review this package, and a referral to the Monitoring Officer would have been a better thing to do, we think, in this situation.
  • Someone died in this case, and the carer was clearly at the end of his tether. There can be no confidence that that outcome could not have been avoided by proper due process and the all important timeliness that the statutory Guidance requires of adult social services.
  • Section 27 of the Care Act allows anyone to be reviewed upon any reasonable request, not merely an annual review as expected in the Guidance. When the sort of delays above occur, we have to wonder whether we still live in a society with any respect of the rule of law.

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

The full Local Government Ombudsman report of London Borough of Hammersmith & Fulham’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/18-019-910

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Westminster Council found to be at fault in relation to how its delegate handled a homelessness applicant

Date of decision: 26 Sep 2019

What happened

Mr B complained about the way Westminster City Council (the Council) dealt with his homelessness case.

Readers may well recognise the issues of delay and people being passed from pillar to post: these issues are commonplace, and regarded as inevitable, by most councils, these days.

But the LGO thinks not.

In particular, Mr B complained that the Council:

  1. delayed unreasonably in deciding his homelessness application;
  2. delayed unreasonably in finding him suitable accommodation;
  3. lost documents he provided to it (for medical assessment);
  4. was not making enough effort to obtain important information from the police regarding his case;
  5. was not communicating with him properly; and
  6. lost the housing register application he had made the previous September.

What the Housing legislation provides for

When a person presents as homeless, the Relief Duty may apply, and arises, regardless of whether the applicant may be in priority need, but it does not extend to the authority actually having to secure accommodation (although it may choose to do so).

The duty to provide INTERIM accommodation, however, arises once it is decided that a person is in priority need.

The Relief Duty should not extend the period it would otherwise take to decide on priority need – that is not the point of the new duty.

The Housing Act guidance says in most circumstances, assessments will require at least one face to face interview. However, where that is not possible or does not meet the applicant’s needs, assessments could be completed on the telephone or internet or with the assistance of a partner agency.

There are no specific timescales for assessment or producing a Personal Housing Plan under the Relief Duty, but the Guidance stresses the need to take reasonable and sometimes urgent steps to prevent homelessness – and that these may be taken alongside the process of assessment and drawing up the PHP. 

The facts

Mr B became homeless in May 2018 after injuring himself and losing his job. He completed an online assessment on the Council’s website in mid-September 2018 and he was phoned on 13 September 2018. Mr B said he had been sleeping rough for 12 weeks, after losing his job and home. The officer referred the case to the partner agency (the Housing Solutions Team) as it was probable that Mr B was eligible and homeless.

On 8 October 2018 someone contacted Mr B by telephone to arrange an initial assessment. Mr B declined as he was by then working and could not take time off. He did not want an initial assessment and said he would continue working with a different organisation that helped rough sleepers to find accommodation, unless he needed help in the future.

Mr B’s recollection was different to the council’s, the report made clear.

He said that when he first approached the Council in September 2018 he asked to apply ‘for housing’ and also said he was ‘homeless’. He says he completed a housing register application form. He said the receptionist dealt with him and he was not interviewed.

When he received a telephone call he said he asked what he should do but the person did not say to come in for an assessment. He said he was placed in a shelter for 8 weeks by a different organisation. He was then back on the streets until April 2019 when he went back to the council’s partner agency.

The Council had no more records until 12 April 2019 when Mr B re-approached the partner agency as a rough sleeper. He had been sleeping in a hostel for some of the time. He explained again how he had become homeless, that he was in receipt of benefits and was a UK citizen. He also said he had medical problems and provided some evidence of this.

The record said that the person who interviewed Mr B spoke to another member of staff and they said there was not enough evidence to say he was in priority need.

He was provided with a hostel bed on 3 May 2019 for 4 weeks and was given an appointment with a Council caseworker (to be referred to as CW) for 13 May 2019.

On 13 May 2019 he was interviewed by someone from the partner agency, not the caseworker, who was not able to honour the appointment. The interviewer sent an email to his caseworker after the interview explaining some events in Mr B’s past which meant he may be at risk of violence. The interviewer had contacted the police but had not been able to get any information. The interviewer also provided a completed medical assessment including details of his ongoing injury for which Mr B was awaiting surgery.

The Council said it did not provide interim accommodation at this point because it was not satisfied that Mr B might be in priority need, but in fact what they meant seems to be that they didn’t consider the information provided.

On 4 June 2019 the partner agency telephoned the caseworker to chase the matter up. On 5 June 2019 the caseworker discussed the case with a manager for what appeared to be the first time and agreed he may be in priority need. On 14 June 2019 the Council provided him with self-contained interim accommodation.

On 20 June 2019 the Council completed an assessment, accepted the Relief Duty towards him and issued a PHP.

The Council agreed to refer him to two housing projects for private rented accommodation and referred Mr B to a housing project for accommodation. It required Mr B to provide some information.

The caseworker referred him for housing on 21 June 2019 and spoke to Mr B by telephone to explain the relief duty and what might happen when it ended.

The caseworker also confirmed that the Council could discharge its housing duty via housing in the private sector.

The caseworker also contacted the police to obtain information about the risk of violence – Mr B had provided a crime number but the police did not recognise it, for reasons that were not clear. Mr B said another police force was involved.

The ombudsman found as follows:

Between first contact when he was actually homeless, and first action, there were 3 weeks, and that was too long. 

The Council should have carried out an assessment of Mr B’s situation much sooner, considered whether he was eligible for interim accommodation and whether it owed him any further duties.

Mr B believed he had filled in a housing application but the Council’s records did not support this.

Mr B said he requested further help but the Council says he declined assistance as he was in a hostel.

The Council should have communicated much more clearly with Mr B as to what his options were.

The record of 13 September 2018 noted he was street homeless but did not consider whether he might be eligible for interim accommodation or explain what the process was.

The note on 8 October 2018 confirmed he was in a hostel and therefore likely to be homeless but no further advice was given. There was an insoluble conflict of evidence, as to whether Mr B declined any further assistance but the LGO thought it was not clear that Mr B was able to make an informed decision at that point.

Mr B approached the partner organisation for help on 12 April 2019, but he was not interviewed until 13 May 2019. This was too long. The Council may well have been very busy, but over four weeks was too long for a street homeless person to wait for further assistance.

There was no indication what the council then considered or whether it asked Mr B for any more information. When Mr B was interviewed, he provided information crucial to the decision on priority need that he was possibly at risk of violence on the streets. So, it was likely that if he had been interviewed sooner, he would have been offered interim accommodation at an earlier point, the LGO thought.

An email sent to the caseworker the same day as the partner organisation interviewed Mr B could not be regarded as equivalent to a detailed record of what was discussed or considered.

The caseworker then fatally delayed in acting on this information for over three weeks.

Once she actually considered the information, she quickly decided Mr B was in priority need and arranged interim accommodation within two weeks.

She also accepted a relief duty towards Mr B and prepared a PHP.

In reality, she had had sufficient information to make this decision on the 13 May 2019 and the delay in doing so was fault which caused Mr B injustice, as it took longer for him than it should have done to be offered interim accommodation.

In recognition of the delays in dealing with Mr B’s case, which delayed him obtaining interim accommodation by approximately a month to six weeks, the Council was advised to pay Mr B £300 and review its procedures to ensure all homeless applicants are interviewed promptly and that decisions about interim accommodation are made much more quickly.

Please note that CASCAIDr does not specialist in housing law advice but if your problem is about the interface between housing and social care rights, you are welcome to make a referral on our form here: https://www.cascaidr.org.uk/free-advice/

The LGO’s report can be found here: https://www.lgo.org.uk/decisions/housing/homelessness/19-003-747

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

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

For recommendations, see here:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That’s very cheering, isn’t it?

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

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