About this blog

Belinda‘Schwehr on CARE’ is a specialist health and social care blog run by leading legal trainer and consultant, Belinda Schwehr.

The blog aims to  to look at different aspects of the Care Act each week and provide a public forum of discussion about what is actually happening in the sector, in order to flag up if there is a difference between practice and theory.

Comments can be made by anyone – you can put your real name up if you want, or make one up, if you don’t. Your email address doesn’t get shown; but all comments are moderated, for your and my sake…

Belinda says ….

‘In view of the new provisions for local authorities arising out of the Care Act 2014 the Schwehr on CARE blog aims to provide an opportunity for a ‘conversation’ regarding legal thinking within the social care sector of the United Kingdom. In particular, the blog hopes to examine legal wrongs and highlight poor social care practice. 

I will blog as regularly as I can. ‘Guest bloggers’ will also contribute blogs and particular pearls of legal wisdom. But importantly you are also welcome to comment and make suggestions about information and materials on the blog. Or you may simply want to let others know about something you are aware about that’s happened. I always moderate contributions before they are posted publicly. I will strive to do so as speedily as possible.

It is all free, but you should bear in mind it is just opinions and the material in this blog should not be interpreted as legal advice. The blog is a discussion that is intended to raise awareness and inform more rigorous thinking about rights and obligations. Please be warned, and bear the distinction in mind! I do my best to keep the blog up-to date and accurate.

I hope that you find the discussion informed and helpful. The site has a number of contributors. And everyone will take responsibility for what they write. However, you should bear the following in mind when considering the information in the blog.

The information may be inaccurate. For example it could be simply out of date because the law sometimes moves on really quickly. Or the information may have nothing legally to do with the issues you are interested in and therefore inapplicable. However, I always try to keep the blog information accurate and applicable.

The blog intends to provide links to rich sources of information. I will remove any links to incorrect information that I become aware of. However, I can not check all the information for all of the links personally. It may also be legally incorrect.  

Therefore I will not accept legal liability for inaccuracies in the information, because it would not be reasonable for users to treat the information as formal legal advice, or applicable to their own situation. Use of the blog is conditional upon the acceptance of my position on this issue as explained above and as further elaborated upon in the ‘privacy and cookies’ page.

Having said all that – happy blogging and reading!’

How to use the blog

The side bar

The side bar on the right has most of the links you will need. You can click on particular blogs and also search the blog for certain phrases or words. You can do that by clicking on the ‘tag cloud’. Or you may wish to see a blog from a certain contributor. Simply click on the contributor name or picture.

Join the discussion

The blog provides opportunities to comment or make suggestions. Feel free to do this by writing in one of the comments boxes at the foot of each post.

The blog is moderated and any comments that you make will be reviewed as soon as possible and posted if considered suitable. Please be conscious of respectful behaviour when making comments. For the purposes of guidance examples of proper behaviour on this blog are;

  • if something is not already in the public domain (eg published on a council’s website) then writing something about a council by name or in such a way as to make it identifiable may well be in the public interest (and it may also  be 100% true) but neither you or I want to be sued for libel or threatened with an injunction. So please say “My council has refused to…” or “the social worker said…” – if you don’t, I may have to, in all of our Best Interests! or …
  • if you are an employee of a provider or CCG or council you should be using supervision, line management and whistleblowing law for agitating about really clear illegality. That should be your first port of call. But if you want to to be able to show your colleagues my analysis of whatever it is you’ve asked about do not blog here under your real name if you haven’t done one of the above. And be very careful not to provide information that would make any person identifiable that would be entitled to privacy. The Data Protection Act applies on this blog as it does everywhere else.
  • Bear in mind, if you are a carer, that any of your relatives lacking in full mental capacity may not be in a position to consent to their stories being told – so if you are writing about their situation, don’t leave your surname, and give the person a new name…or just use their initials.

Resources

My main website has developed a resource depository of links and other materials surrounding the Care Act 2014 and associated law. This can be found at:

Care and Health Law legal database. Feel free to have a look around the resources there.

If you are aware of any information that you think would be useful for others send me a copy or provide me with a link by email or by using the comments page at the bottom of this page.

Blogs and contributions on this blog may link you to other sites. The information on this blog is provided on the understanding that you may be directed to other sites that I have no control over. Those sites may charge a fee for services or information so be wary of this when leaving this site.

Become one of Belinda’s Guest Bloggers !

I am always on the look out for interesting contributions and perspectives. If you would like to become a member of our family of regular guest bloggers feel free to drop me a line and I will look forward to contacting you to discuss your prospective contributions.

4 thoughts on “About this blog”

  1. bigsean

    Hi Belinda, my council provides independent advocacy by paying a company. Within The Care Act, are they truly ‘independent’ as the council pays the company to provide advocates. Is there a legal definition for what is meant by ‘independent’ within the Act?

    1. Belinda SchwehrBelinda Schwehr

      I know it sounds weird that they could be paid, AND independent, but I think that independent here has a special meaning.

      The Local Authority is the council that has to provide social services and the Care Act has added a new duty to APPOINT advocates in certain situations related to the council’s statutory functions. APPOINTING someone to discharge a statutory function is not the same as EMPLOYING social workers or care managers, in a legal sense; nor is the same as ENGAGING, as a contractor, a company whose activities help a council to deliver the care that it is their duty to deliver, to eligible persons with unmet needs. Think about the Best Interests Assessors, under the MCA – appointed to discharge statutory thinking, laid down in the DoLS amendments to the MCA. They are – in the main – employed by the same authority as manages the care, but the point is that for the purposes of the MCA< they still count, in legal terms, as independent (I feel sorry for them in that situation, but the best ones know that they are actually the decision makers, because the Supervisory Body cannot authorise DoL if they think that it is not necessary or proportionate - they just have to have the guts to tell that to the commissioners - ie "If you spent a bit more money to achieve this this and that, then I would be able to say legitimately and with professional integrity, that it does not even look like Deprivation of Liberty!!”).

      The advocacy regulations made under the Care Act forbid the appointment as an advocate of anyone who is providing care or treatment to the individual deserving the advocate; and they also forbid councils from appointing as an advocate, anyone who is ‘otherwise working’ for the council.

      Since the guidance actually recommended to councils that they expand their IMCA contracts, to cover the Care Act advocacy function, that formulation of words in the regulations immediately raises the question, ‘Well, aren’t these companies already ‘otherwise working’ for the council, and if so, how come they are able to do Care Act advocacy as well?’

      One possible answer to that is that the requirements for independence and all the other good things that an advocate has to be to do the job, are stated as being applicable to ‘a person’ – such that maybe it’s only the individual advocate who must not be providing the care or treatment, or otherwise working for the council.

      The trouble with that ‘answer’ is that ‘person’, in statutes, always means legal person as well as human being – so the ordinary approach would be to treat the requirements for advocates’ independence as applicable to companies as well.

      It might be said that at least SOME IMCA advocacy companies provide IMCA services under GRANTS, not contracts, and that would mean that they were not otherwise working for the council – their own activities are merely being subsidised by public money. But many companies hold IMCA contracts AND Care Act advocacy contracts. So it is the unavoidable conclusion, to my mind, that a lot of Care Act advocacy commissioning has been done in ignorance of the legal framework regarding independence.

      All of this is surmise only – ie the application of an informed approach to statutory interpretation to an interesting legal question, but the short answer is NO, there is no definition as such, of independence for Care Act advocacy purposes, just a set of rules as to who cannot be appointed; the implication being that if they were to be, then the requirement of independence would not be met.

  2. Bob

    Hi Belinda,

    I have a query regarding assessment and eligibility that’s been bugging me since the Care Act came in and I would be grateful if I could shed some light on it. I’ve been thinking about the wording of the Care Act and the Care and Support Guidance in relation to our duty to assess etc. The Act identifies that an LA’s duty to assess is triggered when it has reason to believe that an adult has need for care and support. It is the semantics here that bothers me. There must be a distinction between “care” and “support” as the Act also refer to individuals with support needs only (i.e. carers). However I’m struggling to find any definition of “care and support” anywhere in the guidance.

    I have asked numerous colleagues and trainers but no one seems to be able to define care and support with any certainty. The best answer I’ve had is that care refers to the hands on things like personal care, maintaining the environment, maintaining nutrition etc. and support refers to emotional support. Is this the case? If so does a local authority’s duty extend to an adult who has support needs with regard to managing nutrition and maintaining their home environment, but has no emotional support needs for example? Or likewise has emotional support needs that prevent them from engaging with work/education and accessing community services but has no need for physical care – quite common with people who have a diagnosis of Asperger’s for example.

    Many thanks
    Bob

    1. Belinda SchwehrBelinda Schwehr

      Hello

      I think that there are lots of interesting ambiguities in the basics of the Act, and that it’s right that care and support are not defined as such. Section 8 sets out a set of examples of the sort of things that can be DONE or PAID FOR to meet care and support needs, but they are examples of the collective paid of concepts. Carers have support needs, related to their domains where they have difficulties or to their general mental or physical health; whereas service users have care and support needs. The care and support needs – in order to be ELIGIBLE needs – have to arise from or be related to physical or mental IMPAIRMENT but beyond that there is no more detail. To BE a carer, the status can turn on whether you at least provide emotional or practical ‘support’. All any person – service user or carer – has to do is meet the eligibility criteria – and for users that’s inability to achieve in 2 or more areas with significant impact – and for carers it’s one of their specific domains, and significant impact. That’s the best I can do, I am afraid!!

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