A suggestion for CQC when it comes to scrutinise local authorities’ and CCG’s performance – why not focus on legal literacy?

Readers may be aware that CQC has started to scrutinise local authorities and CCGs in a programme of visits culminating in a report to the Secretary of State for Health. CQC normally regulates providers of care and health, but there is provision for this sort of ‘special’ review of commissioning, too, in the legal framework.

The focus is on health and social care moving forwards together, and the quality of relations between the council and everyone else: Health, the third sector providing advice and information, clients, patients, carers, providers, etc: “How well do people move through the health and social care system, with a particular focus on the interface, and what improvements could be made?”

The link between adult social care and primary care and acute and community health services is the main topic for investigation and it seems to be a review focusing only on the experience of the over 65s.

20 areas have been identified for review, which is about 15% of councils, so the sample ought to give a good picture of what’s happening nationally, by the report stage, scheduled for 2018.

The ‘maturity, capability and capacity of the local area’ will be considered, in these Local System reviews, which will take place under s48 of the Health and Social Care Act.

Section 48 (2) provides that a special review or investigation looks at —
(a) the provision of NHS care,
(b) the provision of adult social services

I think that it must have been decided that it would be better for the Secretary of State to use that s48 special review power, pro-actively, rather than have more organisations start to lobby the office, for his approval of a single review, after identifying specific complaints or trends said to be a breach of the Care Act, as happened when Equal Lives complained about Norfolk’s practice, last year.

No mention of legal literacy

One question for the project team is ‘What else needs to happen?’ in the context of relational values and the culture in a given area. But Legal Literacy is not mentioned anywhere in the Chief Executive’s briefing paper about the reviews.

My view is that legal literacy is an essential for the health of both those aspects of a system, when the staff are concerned in the delivery of statutorily underpinned judgements, on which legal rights, do, after all, turn.

I am not a specialist adviser to the project but I would like to suggest that it is time for legal literacy to be assessed as part of the competence of front line staff and management.

Evidence of awareness of the legal framework on the part of both health and social care staff should be a primary focus for the reviews.

I do not know how CQC is going to manage the reviews without mentioning legal literacy, as it is an organisation that doesn’t have to interpret or deal with the public law duties of councils any longer, apart from in this context. The reviews are likely to create awareness of a tidal wave of user discontent with the way systems actually operate in practice, outside the legal framework altogether, in lots of situations.

Why do I say that? Well, in the last year, the following are some of the stances that I have been notified of, along with the inquiry from the correspondent – “is this legal?”.

I have given up gasping at what is now landing on my desk, when all any council really needs is an understanding of why Oxfordshire won the Davey case, and why Merton lost the JF case, both cases decided this year.

Staff from the highest to the low, in both health AND social care – do need to know just a little bit about how law WORKS, if decision-making is to be accountable and defensible, as the very minimum we should be resourcing.

Examples of stances around the country:

• Before we’ve even started your re-assessment, we need to tell you that you’re not going to be able to keep that £xxx, for such and such – all that sort of stuff is going now: the Panel says so
• You can’t have an assessment from us, unless and until you actually come here to live, and have actually arrived!
• You can’t get social care if you’ve got more than £23,250 in savings, so there’s no point in being assessed…
• You can’t ever get an advocate unless you’re mentally incapacitated – and certainly not if you’ve got any relative willing to speak for you, regardless of whether you want them to
• You can’t get a Care Act advocate (even though we know you deserve one), because we haven’t got any going spare at the moment – so let’s just get on with your assessment…
• We’ll ‘involve’ you in your relative’s assessment or care planning process, just by telling you the result…
• You can’t count as a carer and get assessed for support, if your relative is already in a care home, in supported living, in hospital or if they are on CHC or s117 aftercare…
• We don’t ‘do’ shopping, cleaning, meal preparation or night time care…
• You can’t have the price of a season ticket, a gym membership, swimming lessons or the cost of any actual ‘fun’, training, instruction or membership of anything, however long we’ve been funding that sort of thing, or promising that it’s part of personalisation – it’s not social services if it’s therapeutic! Go ask your GP….
• If you’re a carer, you will have to make do with a set sum of money for meeting your support needs, because that’s what we’ve always done…
• If you’re a person with a learning disability you have to live in shared care even if that means moving into a tenancy towards which we can only point you … and you can’t use a DP to choose any other care agency than the one that’s there at the ‘scheme’ whom we’ve appointed….
• You can only have a direct payment if it saves us money … and we give everyone the minimum wage, whether or not they want to be a direct employer;
• Relatives can never be paid out of the direct payment, to do the care, even if we’ve managed the market so badly that there’s no agency with any capacity, nor anyone willing to be a PA, for minimum wage, for miles around…
• We can sue the direct payment client’s helper, in their own name, for mismanaging the money, when we ourselves overlooked the inconvenient detail that the client lacked capacity to sign the direct payment agreement, and we didn’t bother with making the helper into an Authorised Person under the regulations…
• Your relatives will have to pay a top up to keep you here in this posh home, when your capital depletes under the threshold, because we never pay the full rate of a home when it’s above our rate and we can move anyone who needs social services, regardless of the distance
• We can cost-cap the level of services we should offer you in your own home, to whatever the cost of any other way of meeting your needs would be, that we can think of … regardless of its suitability, its availability, your needs, your well-being, your wishes and feelings, your human rights and your best interests consultees’ comments on what you’d think of THAT!
• If you disagree with the budget, we don’t have to give you a service in the meantime, even though your needs have been found to be eligible…
• The CCG Panel makes the decisions about CHC, around here, regardless of what the MDT has scored or recommended – and the Fast Track patients often die before the commissioners manage to sort out care
• We don’t do joint funding around here, if you don’t qualify for CHC – it’s illegal….
• If you complain, we suspend the care planning process until that complaint is closed
• The complaint system is the only remedy for a disagreement over a care plan
• We tell you, the providers, what to sell, and what the price of care ‘is’, and you all have to accept our prices, because we can put you out of business.

I look forward to seeing the report, but I am not holding my breath, because legal literacy is not yet an integral part of either the culture or ‘relational value base’ in health and social care, in my professional view.

In the meantime, if anyone wants advice about how to challenge any of the above stances, I offer training in Difficult Conversations, and give advice to individuals and organisations about what can be done if you’ve been affected by dubious decision-making on the part of statutory health or social care staff. I can be contacted by way of belinda@careandhealthlaw.com or on this site.

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

2 thoughts on “

A suggestion for CQC when it comes to scrutinise local authorities’ and CCG’s performance – why not focus on legal literacy?

  1. K

    Currently, the law makes it very easy for councils and social workers to breach the Care Act with impunity. Legal literacy will not change this. We need the law to protect us service users better. The Care Act explicitly states what the rules are. The problem is not legal literacy. The problem is, staff are allowed and encouraged to break the rules because they know they can get away with it most of the time. They know very well that it’s near impossible for service users who are often the poorest, the most vulnerable in society and the least able to defend themselves, to file a lawsuit and succeed against the authorities who are very well protected by the best legal teams.

    Lack of funding is often blamed for poor health and social care. Yet, social care and NHS bosses receive extravagant salaries.

    The problem is hypocrisy and corruption.

    1. Belinda SchwehrBelinda Schwehr Post Author

      Thanks for your views. I think that there IS hypocrisy; and some corruption in the commissioning of social care – and some anti-competitive conduct on both sides of the buying and selling divide. But I don’t agree that legal literacy would make no difference. Here’s why: I absolutely agree that staff are allowed and encouraged to get away with as little as possible, when making decisions about eligibility and care plans, but that is made possible by their lack of legal awareness, their lack of self esteem, their lack of feeling like real professionals. Real professionals make judgements, and grasp that a different professional might take a different view and that neither of them might actually be being negligent. That’s the point about judgement. But NHS and local authority culture – having been done over by rampant managerialism and long having been one where the Budget drives all decision making, all appraisal, all promotion, all status, etc, has meant that the rule of law ABOUT the rights and wrongs of MAKING those important judgements has been forgotten. If staff knew how to speak truth to power, about the unlawfulness of some of the instructions being given to staff – and why they would not therefore be following them, given their HCPC registrations – particularly ‘review’ staff – then the vulnerable and dependent would be better assessed and provided for, and there would be more equity in the system, and the true cost of social care would be something we could debate nationally, and sanely, in my view.

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