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 For example it could be simply out of date because the law sometimes moves on really quickly.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.


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.

13 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

    1. Belinda SchwehrBelinda Schwehr


      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!!

  3. Mark Gilligan

    Hi Belinda,
    My father who has dementia has been in residential care since November 2016. They have a jointly owned property, which the local authority have disregarded in regards to his social care finance contribution he has to make towards the cost of his residential care placement.

    My sister and I have Lasting Power of Attorney for Property and Financial Affairs and Health and Wellbeing for my father who is no longer able to make decisions for himself.

    The fact that my father has gone into residential care has impacted on my mother, in particular her mental wellbeing. To reduce her social isolation and help her to make more longer term plans we have encouraged her to sell her property, which she jointly owns with my father. We have helped her identify what we feel is a suitable property which is a retirement flat, in a Extra Care Village, which she will part buy.

    To enable my mother to purchase the flat she will need to utilise all the funds in my father’s 50% proportion of their property. The Benefits advisor from the Extra Care Village raised concerns as she informed me that they are aware of other cases of where some of the residents of the village had sold their property which was joint owned and their partners were in care homes funded by the local authority. Apparently the local authority who are very cash strapped have treated the sale of residents original homes as a separation of their assets and then advised them that they will be including funds from the sale of the original property to be part of their partners (who are in residential care) to be included in their cash assets.

    I have identified from the Care Act Guidance the following

    Annex E: Deprivation of assets
    Max has moved into a care home and has a 50% interest in a property that continues to be occupied by his civil partner, David. The value of the property is disregarded whilst David lives there, but he decides to move to a smaller property that he can better manage and so sells their shared home to fund this.
    At the time the property is sold, Max’s 50% share of the proceeds could be taken into account in the financial assessment, but, in order to ensure that David is able to purchase the smaller property, Max makes part of his share of the proceeds from the sale available.
    In such circumstance, it would not be reasonable to treat Max as having deprived himself of capital in order to reduce his care home charges.

    Please can you clairfy the law if possible on this, would my mother only be able to purchase another property with up to 50% of my fathers’ share in their property or can she use all his funds.

    1. Belinda SchwehrBelinda Schwehr

      Mark – I think it’s obvious that the money is still his own and it is not unreasonable for a spouse to house his still independent spouse. My view is that this is an example of one of the reasons that a council should not regard the use of the money on a house for the other’s occupation as deliberate deprivation of assets. I think it would be important to act in your father’s name and purchase the other half of the property on his behalf, so that he is not giving the money away. I think that the sale of the property (which you will have to sign in your father’s name, IS separation of the assets, but the reasonableness of the use of it is the important thing. The fact that a council has asserted deliberate deprivation of assets is not the same as proving it, and the Care Village might simply be concerned because it didn’t know how to tell people what to do about it.


  4. Val Compton

    Hello Belinda

    My son has been in educational then residential full time care since he was 16. He has lived in his current residential care home for over 10 years and is at last settled. They are now applaying for status as a Supported Living establishment. the changeover has been lengthy and upsetting for my son. he doesn’t understand the concept, as they will all be staying in the same home but the administration will change greatly. He’s getting very stressed. I have been involved in correspondence in my quest to get answers and have been told in writing that the CQC will still inspect and the service users cannot choose their own care providers… which I am quite relieved about as my son verbally “sacks” any carer who doesn’t give him what he wants! having listened to File on Four this evening, I am more enlightened and it doesn’t sound as if this residential care home fits the criteria or that our social services dept know what the criteria are. How do I proceed or reach the people who will make this decision? I do not want my son to enter the supported living system – he is thriving in a residential setting.

    Thanks in advance
    Val Compton

    1. Belinda SchwehrBelinda Schwehr

      Difficult one to comment on Val, because of the steam roller effect that an initiative like this tends to have. And just think of the other people whose situation would then be in crisis, if CQC decided to refuse to de-register?

      In Alternative Futures, where exactly that was what what happened, the effect was that people who had been tenants for a long time, as far as their families were concerned, got no more HB, and logically, I think that the NHS who had been grant funding anything not able to be wedged into the notion of transitional housing benefit as a ahem service charge related to the HOUSING, would have been obliged to make up the difference again. The fundamental difference is that the care home manager owes a duty of care to ALL clients in a care home, which is why the place has to be managed, and can never be quite as homely as a place in which nobody can tell you what to do – but where nobody is responsible for managing the ructions that always arise in any shared accommodation setting. THE DODGIEST bit of what you’ve described is the edict that he can’t choose his own care providers. That in and of itself confounds the REACH standards and community care law. If it’s written up in any way it would be unconscionable for CQC to allow it to de-register. But that denial of a direct payment is the bit that you’re in all honesty the most relieved about and you will not be alone!! That is why the File on 4 programme had to layer in many different perspectives in order to convey the complex interests that are in fact in play in any such situation.

      You don’t say if you’ve signed a tenancy. You can’t without deputyship, if your son lacks capacity, and the same is true of the other prospective sharers. The council can take deputyship, however, so that side of things is still unclear. If you haven’t signed, you don’t have to, but if the place does de-register, successfully and you don’t sign, your son will not be able to stay and that might be more traumatic.

      I can’t advise you as to what to do in this particular situation but I will say this: anyone who KNOWS that what is happening is a sham form of supported living is in a very good position to use that knowledge to leverage a better care package out of the commissioner and providers and the housing association, all of whom stand to lose so very much if it all collapses because of the rule against care together with accommodation in an integrated package. That is not blackmail I should hasten to add. That is the legal truth – the person is entitled to a direct payment but if you don’t want that, the person is entitled to an individual personal budget which does not have to be shared with anyone. That single fact is enough I would hope to ensure that your son is protected from the worst aspects of what could unfold.


  5. Michael

    Hi Belinda
    Thanks for these really useful blogs. Can I ask whether councils have any liability for employment law (including tax etc) in relation to service users employing personal assistants through direct payments. There seems to be some scope for liability under sections 12.32 (example if they didn’t pay enough for the user the pay redundancy), 12.49 and 12.63 (if they failed to carry out a planned or unplanned review) or 12.70 (if they continued making payments when they knew there was a problem.
    I remember a case a few years after direct payments came in, probably late 1990s/early 2000s, where a court held a council as ultimately liable for a service user’s actions as an employer as there was a basis for shared responsibility. Do you know whether this might apply today?

    1. Belinda SchwehrBelinda Schwehr

      Michael hi

      I think that it’s fairly safe to say that in theory, a council cannot have any liability for employment law obligations – the essence of a direct payment is that the person taking one, accepts that they are becoming their own commissioner, and that they are therefore a competent adult to accept the obligations that go with that, namely contractual or employment law, if they choose to take on a direct employee. I am absolutely clear on that, but I did say in theory, didn’t I? That is because I know of the South Lanarkshire case to which you refer, and others, where
      a) the direct payment was given to a person clearly lacking in capacity
      b) the direct payment was put through a CIL without the CIL having any legal authority to BE the employer – calling it payroll services did not wash, if there was no competent directing mind
      c) the council’s support service provided no advice or information about what the person’s responsibilities were
      d) the council’s monitoring of the financial propriety of the payment was defective
      e) there was no check to see that the right employer was properly insured for harm to the PA
      and in all of those cases, councils have either paid someone to shut up, or been found to be the real employer.

      As far as redundancy is concerned, there is no doubt that it is an employment responsiblity, but the government pays some of the money back in the end and can make a loan: https://www.companyrescue.co.uk/guides-knowledge/guides/cant-afford-to-make-redundancies-worried-directors-guide-3934/

      In the old days, contingencies would be put aside to abide against the risk of this or maternity cover or whatever, but these days in most councils the rate is pared down to mandatory oncosts such as holiday cover and the pension and the employer’s national insurance. Even anti-social hours money has been cut, on the footing that if one just pretends that people will work through the night on an allowance, instead of expecting a premium, (pending Mencap making any of that any clearer) then that is the going rate…. And forgive me but some CILS inadvertently collude with the councils who grant fund their existence, because they do not know how to support people to challenge the illegal inadequacy of the rate; and we applaud any that help the person provide an evidence basis that nobody will come even to the interview if that is the rate being made available.

      But the bottom line is that if someone accepts the rate as the rate, then they are accepting the rate, and the responsibility. I do not think that we have yet got to the point whereby a person can claim that their own ignorance of social care law meant that they council has to pay whatever the person may have put the rate up to in order to keep a precious PA. The liability ought to remain the client’s in most circumstances therefore.

      It should be less likely today that the wrong form of direct payment gets made, because since 2009, Direct Payment regulations (now those under the Care Act) have required that a direct payment for the needs of a person unable to understand the basics of a direct payment can only be paid to a person acting as principal in their own right, ie an Authorised Person, once known as a Suitable Person. The Personal Health Budget rules go even further: even a nominated helper must take AS PRINCIPAL, not as the person’s agent. But since most councils ignore these rules, I would not ever suggest that the above principles would not still by applied by a tribunal.

  6. DP

    From a social work perspective:

    When changes to a care and support plan occur, we need to consider whether the person has capacity to consent to the new level of support. If the person previously lacked capacity to consent (albeit years ago), is it absolutely necessary to re-assess their capacity at this time? This isn’t such an issue where the person is able to communicate via the phone or using video calls, but when this isn’t possible Because the person has more severe Learning Disability or advanced dementia, or is unable to communicate verbally, we would usually complete a face to face assessment. However, at this time, we are also trying to reduce the spread of the coronavirus, and families and placements don’t want Social Workers to visit and they see this as unnecessary (some are still shielding).

    1. Belinda SchwehrBelinda Schwehr

      The only reason you need to consider a person’s capacity to consent to anything is if it would be an assault to do it to them without consent. I do not think that increasing or decreasing the amount of support is an MCA sort of a decision and it is done under the Care Act, but I agree that if the nature of the intervention amounts to touching in a different way, or more intensively or restrictively, yes, you need consent and a best interests process. I don’t have a problem when a person has got a more severe impairment that one would conduct that consultation and balance sheet approach on the phone with the relatives. You have to do this quite simply because if someone says no, it’s an assault unless they HAVEN’T got capacity, or alternatively, if you took that at face value – the no – then it’d be discrimination (and negligent) to walk away from them and not give them a service because they couldn’t say yes. But if what you’re really asking is can you do a cut without a face to face assessment the answer is yes – as long as you take account of all relevant considerations.

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