Author: Belinda Schwehr

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!

IS it always unlawful to cut a care package/budget, if a person’s needs haven’t CHANGED?

The Care and Support Alliance says that 29% of disabled 18 – 64-year-olds who rely on council funding have had their care funding cut over the last year.

When Mencap challenges decisions, they are frequently reversed – probably because the Powers that Be KNOW that cuts made without due process or without a coherent rationale are unlawful.

CASCAIDr, the charity that I run, finds this too.

It’s our opinion, at CASCAIDr, from the scenarios that we’ve had referred to us, that local authorities’ senior management turn a blind eye to front line staff being ‘economical with the truth’ or incompetently legally illiterate.

People do have enforceable legal rights to a transparent, rational and sufficiently funded budget to meet their assessed eligible unmet needs appropriately.

But vulnerable, dependent adults, with carers at the end of their tethers, don’t often challenge. They can also find it hard to access a competent law firm with any spare capacity for more legal aid work in this field.

That’s why CASCAIDr was launched – and we’ve been at it for 10 months now…

But we know that it’s not necessarily unlawful to make cuts to a care plan, even when a person’s needs haven’t actually changed.

The Care Act did not change that legal principle, and actually made it a bit easier to get away with, if the council staff know and apply the law about revising a care plan because of a change of circumstances.

The ‘change’ can be something to do with the price going down for whatever reason; or other sources of input or technological change, becoming available – not just a change in the person’s condition, or their ‘inability to achieve’ or the impact to their wellbeing, thereby arising, with regard to the eligibility domains.

Many councils, however, are having no specialist training whatsoever in the legal framework and how law works. This means that if the affected person has no clued-up advocate, and no legal awareness, they won’t be able to show the council the error of its ways. Just complaining will likely make no difference whatsoever, because the complaints staff can’t or won’t tell the council’s management that they are acting unlawfully.

So, CHALLENGING the legality of what’s gone on, is what CASCAIDr will do for service users and family carers. We do it because we believe in the rule of law, and that any government ought to fund what Parliament thought should be enshrined in legislation – a social care safety net that operates to an adequate, appropriate and dignified level.

We’ve also created lots of FREE material about people’s legal rights, and the importance of legal literacy when dealing with councils and CCGs in what is a cash-strapped and under-staffed climate for the whole sector.

Our Myth-Busting Briefing shoots down 26 popular misconceptions about what’s legal (and what’s not legal AT ALL), in adult social care.

Our Case List covers 20 years’ worth of judgments from the Administrative Court, and explains what the precedents are still good for, when asserting a person’s legal rights to a decent care package or budget.

If you would like to receive either of those documents for your own use, just email on belinda@cascaidr.org.uk.

The implications of the Mencap win in the NMW appeal – not as straightforward as one might think!

CASCAIDr’s analysis on the successful Mencap appeal will be out ASAP on Community Care’s site, but for now, this post just covers the highlights.

Mencap has won, and sleep in staff do not automatically get paid the NMW for every hour worked on a night shift.

Merely being required to be present somewhere does not make one automatically required to be somewhere for the purposes of working. It can do, but it doesn’t HAVE to.

Mencap argued that employees ‘sleeping in’ are only entitled to be paid when they are awake for the purposes of working and that was the true intention underlying the legislation implementing the National Minimum Wage giving effect to the recommendations of the Low Pay Commission – the idea being to give low paid workers some protection via a NMW but not to pay for being asleep.

The claimant in this case was required to carry out a sleep-in shift between 10pm and 7am but there were no specific tasks allocated to the Claimant during a sleep-in. She was allowed to sleep and further there was an expectation that she would have had a sufficiently good night’s sleep to enable her to perform her duties satisfactorily the following day. However, she was obliged to remain at the premises in question throughout the sleep-in.

The Tribunal found that the only task that she was required to do during sleep-ins was to be there and to deal with tasks that required her intervention, as and when, although it then went on to find that she was there for the purposes of working and on time based work under regulation 30.

The Court of Appeal has decided that one only gets NMW on a timed work footing, if one is required to be there for the doing of some specific task, not just being there ‘just in case’.

It will still – potentially – be a question of fact in a given case as to which side of the line it falls, if the employment contract allows for lack of clarity about the nature of the obligation at night, but the sector should be able to take care to avoid finding itself embroiled in this debate, by sensible drafting.

Likely consequences of the decision in the care sector

People who sleep in with permission, on a shift, without living in on the premises, were once and will now lawfully be allowed to be paid an allowance for night time work, plus NMW for any hours that they are awake, in light of this judgment.

Why this is not necessarily bad for low paid workers

CASCAIDr’s view is that this judgment will not actually affect the current practice of paying NMW for all night shift work, necessitated by the fact that the NMW has HAD to be paid since Mencap first lost its case, because of the state of the market in adult social care more generally.

For workers who have been paid the NMW for every hour, since the judgment in 2016, CASCAIDr thinks it is extremely unlikely that they will be expected to take a cut in salary now, just because one could contend that they don’t have to be paid NMW at night.

The state of the market probably means that workers will go to any provider who will pay them NMW for every hour. Agency are already struggling to recruit in order to discharge contractual obligations to councils.

Since no council wants to go back to having to provide care through directly employing its own homecare staff, now – and remembering that the duty is to provide, in order to meet need, if it is not in fact POSSIBLE to purchase from providers, we don’t think that commissioners will be mad enough to try to enforce a return to the old ways.

Providers MAY come under pressure from the most macho parts of commissioning to take cuts to the fees for the future, and must absolutely resist, if they are going to continue to pay the NMW to keep the staff turning up for work in the real world. They cannot decide to do this as a cartel as that would be criminal. But they can do it individually if they have any business sense and grasp of law, and just say No.

LAs will have budgeted for it, after all. Their remedy for their own funding difficulties lies with putting up a stronger front and speaking truth to power (the Treasury and the Ministry of Housing Communities and Local Government) and the new Secretary of State in the Department of Health – whilst he is hopefully still open to learning about the enormity of the problem facing social care.

Direct payment clients and the ambiguities in their budgets

Community care clients on direct payments are in an interesting position. They are unlikely to have had their budgets increased over the last two years, unless they were knowledgeable and assertive and well supported by advocates.

They don’t need an increase now, in legal terms, but in market terms, in order to be able to keep decent staff, they may well do…

CASCAIDr’s message is that it is not open to councils to pay less than the MARKET rate for the right level of PA, and therefore it may be necessary for direct payment holders to check out what the effect of this case really is in their own local market, and seek a review under s27 of the Act based on a change of circumstances.

Now Mencap has won, it is unlikely now that employed PAs will be going to a Tribunal for back pay, so most direct payment holders can sleep easier in their beds. But if cuts are imposed on the next review, they need to be alive to the point that it is the MARKET rate that has to be paid, not the NMW. In many places the market rate will be higher than the NMW or NLW.

The Oxfordshire case is not authority for the proposition that paying the NMW is easily defensible, and nobody, in CASCAIDr’s view, can be MADE to be an employer as the price of being granted a direct payment. There is no DUTY on a direct payment client to make it cheaper for the council to turn them into commissioners, in order to deserve a direct payment.

We do not think that there will be an appeal, in the current climate. If Unison were to ballot its members, working in care, it is thought that more of them would prefer to preserve their jobs, than threaten the market with total collapse, and would not want to sue their employers for back pay.

A fantastic result – using real legal literacy – that will deter commissioners from driving people into care homes – and just before the Mencap decision on the NMW and sleep-ins might make care during the night beyond the means of most!

Press release received today

NHS U-TURNS ON DISCRIMINATORY POLICIES
Thirteen NHS organisations have agreed to review their NHS Continuing Healthcare policies following the threat of legal action by the Equality and Human Rights Commission (EHRC).

The U-turn resolves almost eight months of disagreements between the EHRC and Clinical Commissioning Groups (CCGs) across the UK over their unlawful NHS Continuing Healthcare (NHS CHC) policies.

In March 2018, the EHRC threatened to judicially review 13 CCGs over concerns about their blanket NHS CHC policies which placed arbitrary caps on funding and failed to consider the specific needs of individual patients, amounting to a serious breach of the Human Rights Act, the Public Sector Equality Duty and the Department of Health and Social Care’s own NHS CHC framework.

The CCGs have since demonstrated that they are in the process of revising their policies, meaning further legal action is not necessary at this time. The EHRC has asked to see the revised policies to ensure they are lawful and adequately consider equality and human rights implications for their patients.

Rebecca Hilsenrath, Chief Executive at the Equality and Human Rights Commission, said:

“Everyone has the right to live their lives to an adequate standard and to have access to good quality health care. Those who need help are individual human beings with individual circumstances which need to be taken into account. We said that it is unacceptable and de-humanising for CCGs to adopt a blanket approach in forcing people into residential care, especially when with the right support they would be able to live at home with the families who love them. We are really pleased with the result and we know that all those affected will be reassured to see CCGs putting the rights of patients at the heart of their decision-making processes. We will continue to work with CCGs to ensure that future policies do not make the same mistakes.”

The EHRC first voiced concerns over the policies in October 2017 when it wrote to 43 CCGs demanding more information. Of the 43 CCGs contacted, all but one have now replied to the EHRC and most are reviewing their policies or following the NHS CHC Framework. Haringey CCG is the only organisation that has failed to share its policies with the EHRC. It was not one of the 13 that originally faced judicial review, but their lack of engagement now leaves them open to further action.

Comment from Belinda

Lots to say here.

First, it’s brilliant that civilised discussion of how legal principle simply must be taken to apply to faceless CCGs and NHS commissioning support units can actually do some good.

Second, it was a challenge to a blanket policy, which was always the best way to attack such abjectly ignorant daftness on the part of presumably highly paid NHS personnel.

And third, it could not come at a timelier moment whilst the sector awaits the Mencap decision on the national minimum wage for every hour of a sleep-in. Anything that makes care at home more expensive than it has hitherto been able to be bought for, is a driver that means individual decisions will in fact be made by the State – Councils, and not just CCGs – to offer care home care rather than care at home. But fortunately, now, not as a result of a blanket policy that was a fetter to any care planner’s professional duty to take account of individual circumstances.

One reason we will need to look out for ‘warehousing’, as it’s called, when the Mencap case comes out – is that it’s businesses that provide care home care, under contracts for services to council and CCG commissioners; and they can often be persuaded, for commercial reasons to take a smaller margin, overall, whilst paying enough to keep their employees from suing them.

Ordinary people, however, who have taken a direct payment, in order to pay a human being who works as an employee in day to day contact with a dependent relative, will already have noticed that their direct payment amounts have not all been put UP to match the current state of the law on paying the NMW.

For some people, using their direct payments to employ live in carers on unmeasured work contracts, that model of obtaining care in the first place, might just become unaffordable, depending on the breadth of the forthcoming Mencap judgment, assuming that it loses (which is by no means inevitable, please note – it’s too close to call, to my mind).

It seems obvious to me that people with a direct payment form of personal budget will find their hours are cut on the next review, even if their needs haven’t changed. Unlawful! – or that they’ll be told by councils, in particular, that they cannot be sustained at home any longer, so it’s off to a care home for them.

The case brought by the EHRC would have been more useful if it had involved some councils as well, to my mind, because councils have been pursuing this sort of an approach for far more many years, and just not publicising it as POLICY.

But the outcome will still help STOP the legally literate at least from being so easily manoeuvred into thinking that the offer of a care home is simply the default position – at the point of hospital discharge; at the point of a review, or at the point of a person’s moving to another part of the country to be closer to loved ones.

This campaign by the EHRC does not resolve the often related issue of whether a person who can lawfully be offered a care home as a way of meeting their needs, (ie not as a result of a blanket policy, but due to a proper consideration of individual aspects of their situation and a comparison of the costs) can THEN be offered merely that same sum of money as the care home would have cost the council, if and when they say Thanks, but No, Thanks, over My Dead Body….

That’s known as cost-capping, and half the council sector thinks it’s illegal, and the other half thinks it makes perfect sense, and gives people their ‘choice’ whilst managing public funds. On balance, I think it’s unlawful, but I don’t think it’s a black and white issue, like the issue the EHRC took CCGs to task over.

That’s the next legal issue that needs to be the subject of some test case litigation, but in the right case, I sincerely hope, not in a weak one.

CP v North East Lincolnshire Council [2018] – a judicial restatement of pre-Care Act legal principle about the transparency of, and requirement for, an explicit Personal Budget!

In this case a challenge was made about the provision for a 22-year-old woman, CP, with complex and multiple disabilities requiring round-the-clock care.

CP’s parents and the local authority were also engaged in an FTT appeal about educational provision which had a bearing on what else was or might be needed. They continued Alternative Dispute Resolution (ADR) efforts during that appeal and, by the time of the judicial review hearing, had essentially reached agreement about the degree to which CP’s social care needs would be met by informal care from her mother, and the level of that part of CP’s Personal Budget to be delivered via a Direct Payment.

Over the period of dispute, the local authority had repeatedly reassessed CP under the Care Act and issued new proposed care plans which increased the proposed Direct Payment from £387.50 per week via £519.70 per week to a final agreement on £720.67 per week.

Transparency of the Personal Budget

Several of the earlier care plans had failed to state a personal budget at all and none had set out any breakdown of the figure.

In line with the pre-Care Act case law (R (Savva) v Kensington & Chelsea [2010] and KM v Cambridgeshire [2011]), HHJ Wood (QC) took the view that the duty in S.26 Care Act to specify the personal budget for the adult required a transparent figure which set out how the persons’ needs could actually be met by various elements within it.

Personal budgets

“93. It is important to understand the rationale of the personal budget which is available to the individual being supported and his/her carers. It seems to me that this is clear from paragraph 11.3 of the statutory guidance. The adult with eligible needs and those providing voluntary care should have a good understanding of the extent to which support will be provided by the local authority in respect of both those services which are provided directly by specialists (and paid for by the local authority) and those which will be funded by way of direct payment. Of course, because voluntary care figures in most assessments, and it is this aspect in which the family will be interested, if the personal budget covers the total cost of meeting the eligible needs, thus including the direct payments, that element to be provided voluntarily will be easily discernible.

94. The duty is a clear one derived from section 26 of CA 2014, and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected. The Claimant provides a compelling argument in respect of the earlier plans which were defective in providing this transparency.

Informal Care

“It is also clear that an adult’s family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.” [Para. 97]

The judge went on to indicate that, even if a carer believed that an assessment was overly reliant on informal care input there were steps which could be taken short of judicial review to resolve the disagreement.

“unlawfulness could only be identified in circumstances where there had been a refusal to review in response to a complaint, or insistence on family care in the light of clear evidence that the family was unwilling, or that there had been an irrationally low level of care identified on the assessment.” [para. 102]

Paragraph 6.15 of the Guidance appears to have been overlooked and not specifically considered during the hearing.

Paragraph 6.15 spells out in greater detail the relationship of informal care provision to the process of assessment:
“During the assessment, local authorities must consider all of the adult’s care and support needs, regardless of any support being provided by a carer. Where the adult has a carer, information on the care that they are providing can be captured during assessment, but it must not influence the eligibility determination.

…After the eligibility determination has been reached, if the needs are eligible or the local authority otherwise intends to meet them, the care which a carer is providing can be taken into account during the care and support planning stage. The local authority is not required to meet any needs which are being met by a carer who is willing and able to do so, but it should record where that is the case. This ensures that the entirety of the adult’s needs are identified and the local authority can respond appropriately if the carer feels unable or unwilling to carry out some or all of the caring they were previously providing.”

The judgment should also be taken as a reminder of the need to engage in extensive ADR efforts prior to and during the process of Judicial Review (see Cowl v Plymouth City Council [2001]), especially where, as in this case, the public body appears willing to review or reassess the situation.

That said, one wonders whether such substantial increases in CP’s Direct Payment would have been forthcoming without the existence of the Judicial Review proceedings. It should also be noted that, nevertheless, Judicial Review remains the appropriate route where the claim raises a point of law of general importance or where the public body involved fails to give clear decisions and/or reasons (O.H. v London Borough of Bexley [2015]).

Full text at: CP v North East Lincs

Services to support an eligible disabled parent look after a baby – should the Adults’ or the Children’s services budget fund the meeting of needs? Or neither?

Would anyone care to engage with CASCAIDr, the charity, on an interesting stance we’ve come across in our first month – on a council NOT paying for services for a parent whose disability renders them unable to achieve the discharge of her responsibilities to a child?

Here’s the scenario:

A council says ‘You’re a long term physically disabled client of ours, we accept that. You have had a baby. That is a change of circumstances and we will review your plan. You can have 12 hours extra input a week on top of your own care plan for 8 weeks. Then we’ll hand the matter over to Children’s Services.’

After 8 weeks, the Early Years team notes that the child seems to be doing fine, so far, and conveys to the mother that the Early Years Panel isn’t likely to agree to fund ongoing services even if the child counts as a Child in Need under s17 of the Children Act.

The mother goes back to Adults’ Services which then says no, you cannot have any extra help. This is because ‘the father shares parental responsibility with you’.

The father is present within the family unit. He has reduced his paid hours of employment since the baby was born. The implication is that he should be doing more at home for this baby – the council will not say that he should give up work, but they are signposting the couple to paid child-care. However, he is the breadwinner for the couple. The relationship between the new parents has developed on the footing that the man will earn the money, and the woman will shoulder most of the responsibility for the baby whilst she is under 2 – which is a pretty commond arrangement for child care, in many families, in modern Britain.

This woman’s health is deteriorating given the extra difficulty the care of the baby involves on top of her own physical disabilities.

So, what does your council say, in relation to meeting need of this sort, after applying the eligibility regulations for adults’ social care, and having found that the woman’s condition makes her unable to achieve (applying the stretched definition which incorporates achieving but only with significant pain, distress, anxiety or taking significantly longer than others normally would, on a given outcome):

“(j) carrying out any caring responsibilities the adult has for a child.”

– We don’t do this, it’s a children’s services responsibility?
– We won’t meet these needs, if our children’s services team WILL pick it up? But we can’t make them, and we will just leave it to the client to challenge that stance if they say no.
– We can’t afford to provide what is in effect child care for children of a disabled parent, unless the child is at risk?
– We will meet these needs if we can charge your household the full cost of the services we arrange.

Where does the Care Act, or the regulations or the statutory guidance, allow for any of those stances, please?

Answers can be sent to belinda@cascaidr.org.uk – that charity wants to know what YOUR council is doing about this.

We think it’s an error of law, a fettering of discretion, irrational and a breach of statutory duty. Does anyone care to disagree, by reference to legal principle?

Adult Social Care Myths to be busted by @CASCAIDr during its fundraising campaign 4-15 December

These are our favourites but we’ll vary them if there is a big demand for some others we’ve not yet come across: please email belinda@cascaidr.org.uk with your nominations

• You can’t have an assessment – you couldn’t possibly qualify!
• You can’t have an assessment unless you try prevention and re-ablement first (for years!)

• You can’t have an assessment until you actually come here to live, and have arrived!
• You can’t get social care at all, if you’ve got more than £23,250 in savings

• You can’t get an advocate if you’ve got anyone else who’s able to speak for you
• You can’t get an advocate unless you are mentally incapacitated

• You can’t get an advocate because we haven’t got any spare at the moment – let’s just get on with your assessment, shall we?
• You can’t count as a carer if your relative is already in a care home, in supported living, in hospital or if they are on Continuing Health Care or s117 Mental Health Act aftercare

• Sorry, we don’t ‘do’ shopping, cleaning, recreation, meal preparation or night time care, any longer…it’s not social care, you see, because everyone has these needs…and there’s benefits for all that stuff
• If you’re a carer, you will have to make do with a set sum of money for your support needs, because that’s what we’ve always done

• If you disagree with the budget we offer you, we don’t have to give you any service in the meantime
• If you complain, we have to suspend the care planning process until that’s been finished

• We can decide whether your care and support needs are met or not, even if we don’t pay for anything after the assessment in which we found you were eligible…
• We can cap respite to a set amount per year and charge carers for it

• We can change your care plan and cut the funding whenever our own funding gets cuts from central government or our own budget looks wobbly
• We can tell you at your review how much we’re going to cut your budget by, without any other process or negotiation

• If you’re a person with a learning disability, you have to live in shared care to get our services, even if that means moving into a tenancy we’ve secured for you…
• If you live in one of the tenancies we can secure for you, you have to abide by house rules about friends coming back for the night

• You can only have a direct payment for your services, if it saves us money…
• We can tell you that you have to use an agency from our preferred provider list for your direct payment funded services

• People’s relatives aren’t allowed to be paid out of a direct payment
• We can cap the level of services provided in your own home to whatever the cost of any other way of meeting your needs would be, any alternative that we can think of…

• Top-Ups aren’t lawful, so you can’t do business with us, or ever charge the client or other people anything extra
• We tell you, the provider, what the price of care is, and you have to accept our prices, and sue third parties for any top-ups that dry up!

FREE LINK to a webinar on the Care Act Judicial Reviews, so far!

I doubt that it has escaped the notice of this blog’s followers that I’m involved in starting a social and health care specialist legal advice charity called CASCAIDr.

If you tweet, go to CASCAIDr’s aims and story and please plan to follow @CASCAIDr before the end of the month.

It will launch in January, and hopefully make some of what is covered here, travel quite a bit further, and maybe even stick where it matters most – and I am very excited – scared witless, but committed, driven, working all hours and ageing visibly by the minute…but thrilled to be given the go ahead.

We have to make money first though, in order not to run out of steam before we make any impact at all.

So, on 8th December, midway through #CASCAIDr’s pre-opening fundraising campaign, I’m offering a free 1.5 hr webinar, on the Oxfordshire and Merton cases (all about how councils MUST behave during assessment and care planning, if the outcomes are to be lawful).

The aim is to empower and enable people needing social care services, their advocates and their relatives to wise up, and become legally literate enough to ensure that they get their just deserts – their full legal entitlement.

The webinar is free to anyone who can attend online on the day. It’s interactive and the sound will work if you have good broadband and a sound card in your laptop.

The RECORDING of the event will cost £50 for anyone who wants one afterwards, and will play for as many times as you need, but I will be donating ALL the proceeds to the charity. And getting gift aid on top, courtesy of our wonderful government…

If anyone would like to make further donations, I will not say No, of course – and there will be a link to our MyDonate.com button on the day, on this blog post.

So, please do diarise now. 8th December 11am-12.30pm.

Here is the registration link for getting admission to the webinar: Registration link for Care Act JRs free webinar

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.

Analysis of the Court of Appeal’s judgment in Luke Davey’s unsuccessful Care Act case

Court of Appeal – Davey judgment is the link to the judgment of the Court of Appeal – in the first case to reach this level, so far, under the Care Act.

Mr Davey has (not surprisingly, it has to be said, with all due respect to his legal team) lost his case. It is important that service users and social workers and advocates should understand why, I would suggest.

The facts of this man’s case are set out in an earlier blog post on this site (Search Luke Davey in the search box) so I won’t go over them again.

Suffice to say that Mr Davey was assessed and planned for (after the ILF element of his package was terminated) on the footing that he could, in the Council’s view, safely spend more time alone without the benefit of a personal assistant (PA) being present. Secondly, it was determined that he both could and should reduce the amount which he chooses to pay to his PAs, who were largely members of his own family.

Mr Davey had indicated through lawyers that he was not willing to accept the reduced weekend rate, the reduction in the day rate for the two main carers, nor the payment at standard rate on bank holidays. The council’s position was that as regards carers’ terms and conditions, there was no evidence that carers would leave – as the two main carers had withdrawn their resignations, and the minimum wage of £7.20 and the £40 night shift rate were compatible with rates many other service users were paying.

It is important to note that the care planning for time alone for Mr Davey before the case was started had been suggested to be phased in and to increase gradually.

The plan had extended the duration of such periods from 2 hours, once a week, to 5 hours on 4 days a week, and 5.5 hours alone on 3 days of the week, costed out on the rates for PA attendance, from time to time, not live-in care. This time alone would go up, eventually, to 6.5 hours a day. At the outset of the phasing / tapering period there was to be care for 19 hours per day, reducing to 17.5 hours from January 2016 onwards.

From May 2016, the hours of care per day were increased slightly to 18 hours and the weekday rate was increased to £7.20 due to the increase in the minimum wage from April 2016, but the weekend rate was further reduced to £9 per hour.

There was thus no increase in the personal budget.

These suggested timings as part of his revised care plan and budget were because the assessor and planner thought that Luke “risks loss of independence and autonomy as although he lives in his own home, he has become dependent on carers and family to meet his needs”.

In the next column of the documentation for care planning it was said that this risk could be: “Managed by carers encouraging Luke to do as much as possible for himself, within safe limits. …”.

The council specifically denied that its view of the right time for him to be left alone, had been driven or constricted by funding (which is perhaps hard to believe when the hours went up but the rates went down and kept the budget within the initial planned limits!).

The grounds for appeal, and the Court’s approach:

– The council had failed to consider the effect of the Claimant being expected to spend three periods of two hours per day alone upon his ability to engage in social activities; that constituting a breach of Section 1 of the Care Act 2014 or another unlawful act of some sort;

– Mr Davey contended that anxiety from being alone was not identified as a risk arising from any reduction in carers’ time. So it was alleged that the council did not have regard to the need to ensure that decisions about the Claimant were made having regard to all the Claimant’s individual circumstances and thus did not act in compliance with its duty under Section 1(3)(d) of the 2014 Act;

– The Defendant failed to evidence its contention that the proposed rates for personal assistants providing care to the Claimant were reasonable or compatible with its obligations under the 2014 Act.

Since then it was reported that Mr Davey does now successfully spend three periods of two hours each day alone; and also that two new carers have joined the Claimant’s team, each paid at the (current) minimum wage of £7.50 per hour.

The Court was clearly impressed by the first instance judgment, as appears here, in a passage where the Court confirms that the legal framework in the Care Act does indeed have implications for the lawful practice of adults’ social work teams and care management staff:

52. The judge (Morris J) made the following observations on this sub-section with which I would agree. First, the assessment duty is a duty upon the local authority and the assessment under s 9(1)(a) and (b) is an objective assessment made by the local authority (usually acting through its social workers or occupational therapist). Secondly, under s 9(4), there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. On the other hand if, in the course of a needs assessment, the local authority does not assess the matters specified in s.9(4) (including the impact on well-being matters set out in s.1(2)), then there is a breach of the statutory duty.

That confirmation is GOOD for anyone interested in the rule of law in adult social care, it is suggested, and together with the Merton judgment, covered in another post on this site (search Merton in the search box) makes it easy to challenge an indefensible assessment, at least by those who take the time and trouble to use the legal framework.

The UN Convention point – on independent living rights in article 19

Mr Davey’s lawyer got nowhere on this point either, and neither did the third party interventions by way of written submissions from the EHRC and the charity, Inclusion.

The judge had found that it was irrelevant because there was no ambiguity in the Care Act which admitted of even interpretative assistance by reference to article 19, the UN Convention being merely an unincorporated international treaty which, absent incorporation, creates no direct obligations in UK domestic law and setting out aspirational provisions which cannot qualify the clear language of primary legislation.

“Mr Burton did not argue that there was any error in the judge’s conclusion that Article 19 of the UNCRPD did not assist the Claimant’s case.

I have set out the judge’s conclusions on this topic only because the EHRC, in their written submissions lodged as interveners in this court, argued that “the decision of the Respondent in this case, and the judgment of Mr Justice Morris upholding that decision, goes against the principles of Article 19 of the UNCRPD”. I need say no more in the present case than that, with respect to the EHRC, the judge’s analysis seems to me entirely correct.

But this should not prevent the argument being advanced in a future case where it is the subject of adversarial argument by the parties.”

The issue about the consideration of the impact of a change in care regime

The judge had agreed that the assessment finding that a major change would carry significant risks in fact represented Ms Lovelock the social worker’s view and not only the Claimant’s own assertion.

This Court agreed that the reference to a “major change” which in her view would carry “significant risks” was a change to a live-in carer rather than a change in the team of PAs, which was not a change in regime to which the council had actively tried to budget down.

Like the judge at first instance, this Court was of the view that the budget was based on a team of PAs, not necessarily the current ones preferred by Mr Davey.

The social worker had explained that she thought that changes in the Claimant’s current care team would be positive for the Claimant and his emotional wellbeing, enabling him to reduce dependence upon specific carers. This would be unsettling in the short term, but bring important benefits in the longer term.

This Court agreed that this would have been inconsistent with a concern about significant risk, but that was explained away as having been about a potential change to a live in regime. This Court was quite satisfied, as had been the first instance judge, that the view about the positive implications was a genuinely held view. The lead judge (Bean L.J.) said this:

“It does seem counter-intuitive to me, at least if one is referring to a complete or substantial break-up of the team who have looked after the Claimant for so long; but I am not an expert in the field, and I cannot possibly say that the view expressed by Ms Lovelock is irrational. In any event, if the judge was entitled, as I have held that he was, to find that there was no sufficient evidence that the existing team of PAs would break up, the issue of whether or not that would be a positive move in reducing the Claimant’s dependence on them, simply does not arise.

Lady Justice Thirlwall added this:

“Like Bean LJ, I find it difficult to see how a change in the team could be thought to be beneficial but in the light of the judge’s findings about the likelihood of this I say no more about it. The very significant reduction in the Claimant’s personal budget was reached at the end of a lawful process, as the judge found.”

The day trips point

The Court said this:

“83. In an early witness statement Ms Lovelock stated that “it is only during the proceedings that the issue of Mr Davey going on day trips has been raised”. There is a degree of ambiguity in the phrase “day trips”, but if it means trips lasting all day, it is right to say that such trips, other than to the Claimant’s parents, hardly feature at all in the contemporaneous evidence. The judge was entitled to make the findings of fact which he did in the paragraphs just cited, and on that basis to reject the claim under Ground 2c.

The minimum wage point

As regards how much to pay PAs, the Oxfordshire guidance for Direct Payments had stated thus:

“You must pay them at least the national minimum wage. On average, the typical hourly rate for a Personal Assistant is around £8.50 during the week and £11.05 at the weekend. …”

The national Care Act guidance says this:

“11.25 The Act states that the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs.
In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.
To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.”

It may be that Oxfordshire would have liked to pay more than the minimum wage, and the judge had noted its own guidance found that a typical rate was in fact higher. But the judge said this, after the cuts had bitten on the council’s own ability to do what it would have liked.

“81. No one could criticise Sue Davey’s opinion that payment at minimum wage rates is a poor reward for a carer of her quality and experience. But as the statutory Guidance makes clear in paragraph 11.25 cited above, a personal budget should reflect local market conditions. The judge was plainly entitled to accept Ms Lovelock’s evidence about local market conditions in the area of the Claimant’s home, together with the indication that if those conditions change the Council would be bound to revisit the issue. The Claimant is in effect saying to the Council “(a) some of my carers are not prepared to work for the local going rate; (b) therefore, in order to maintain the continuity which I value, you must set my personal budget at a level which enables me to pay them more than that rate”.

I do not consider that it is unlawful for the Council to decline to do so. Ground 4 therefore fails.”

Commentary regarding the rates being paid for direct payment users

Readers should take special note of the emphasis in bold and italics before despairing about the rates being offered locally, by other councils in direct payment discussions.

This doesn’t mean that the council can ignore law or the evidence about the going rate, if it is higher than the national minimum, by dint of local determination on the part of providers; and nor if the specialist needs of the client are such that the minimum wage sort of employee isn’t going to be able to be seen to be competent in providing appropriate care to meet the actual needs of the individual in question.

The best way to draw this out is to demand a care plan should be produced, as per s25 of the Care Act, showing how the council would itself manage to commission appropriate care for the cost being offered, after allowing for the effect of direct employment savings, if the potential Direct Payment purchaser is going to become a direct employer and not use a DP to pay an agency, it is suggested.

Neither does it mean that the council can set a budget at a rate which disincentivises people from ever taking a direct payment, ie, paying less than the market would charge an individual purchaser, and only offering to pay that which a council would pay for a bulk/volume service from an agency trying to stay in business – because in taking such an attitude, the council would be wanting the benefits of getting people off of its books, whilst not taking into account the obvious and rational reasons why the rate to a person buying on their own might well be more than it would be, to a council buying in bulk.

And finally, this case cannot make it legal to deter a person from remaining on a direct payment by an offer ONLY to pay for the new interpretation of the minimum wage counting rules about night time work, ONLY if the client uses an approved provider of the council. The conditions that councils can lawfully attach to direct payments do not go that far, in the context of a direct payment being intended to maximise choice and flexibility, it is suggested.

The Queen (on the application of JF acting through his mother and litigation friend KF) v Merton LBC

Well, what do you know? It seems as if community care law is still in existence, and needed, even – as a measure of accountability, in very difficult times! Councils have a legal obligation to keep up staff’s competence, and will thus have to ensure that the message is properly conveyed, to both senior and front line staff. Does anyone want a webinar? 🙂

Merton – in a decision of Anne Whyte QC, sitting as a Deputy High Court Judge – has apparently ignored many long-established pre Care Act principles and has consequently lost a case about assessment under the Care Act, setting a precedent about what makes for a lawful assessment. Here is the link to the judgment, and analysis follows below: Merton judgment about Well-Being and Assessment

The case holds no real surprises but is a useful precedent for anyone looking to write to a council’s Monitoring Officer about poor practice regarding assessment duties. The old cases of Killigrew, against Birmingham, and Savva, against Kensington & Chelsea, could have been relied upon without going to Court, perhaps.

Lessons for funding panels, and review team assessors

The case also underlines the ‘building block’ approach to a lawful assessment, with recording of views about x, y and z, under the Care Act, all being a necessary part of delivering a proper assessment to care planners, and proving that one has had regard to and taken account of all the necessary features of a person-centred assessment.

So a decision to terminate a placement and move a man from his current placement to a setting where there was no specialist multi-disciplinary team, after years of his being able to access such a service, without any evidence basis identified for a decision that one was no longer needed, was clearly unreasonable. The Killigrew case had settled that as a principle, before the end of the last century!

I think that the most important lesson emerging is for Funding Panels, harking back to the Savva decision, pre-Act.

That case established that the Panel’s written reasons for regarding its job as done, when it signs off a disputed budget and plan, are necessary as an aspect of procedural fairness. Neither the Care Act, regulations, guidance nor even this case goes quite so far. However, the judge used the absence of any clarity about the Funding Panel’s personnel, scope of delegated authority, policy or processes, as going directly to the unlawfulness and unreasonableness of the decision.

The facts

The man in this case, JF, is in his early twenties, and has Autism Spectrum Disorder and severe learning difficulties. He is non-verbal and requires alternative communication techniques to assist with his basic communication. He is highly anxious and this is exacerbated by any change to his routine or environment, however minor. His emotions and behaviour can be disinhibited and he regularly tries to abscond. He is at risk of self-harm. As a result, he requires adult residential care with specialist support.

A specialist college had appropriately met his needs to date, and the council had funded his access to an on-site multi-disciplinary team for some 15 years, including occupational therapists, SALT therapists etc.

This was what the council decided would not be needed, and thus why it was necessary to move the young man, as the cost of maintaining that team was no doubt part and parcel of the provider’s costing model.

Merton prevailed upon a care home provider candidate which it had somehow identified BEFORE any Care Act process, to do a Pre-Admission Assessment. The provider’s document was supposedly designed to identify the needs of each service user at the pre-admission stage. The provider had concluded that it was suitable and could adequately meet the man’s needs.

This was of course a decision that any provider has to make in some shape or form, to meet CQC expectations that providers don’t take on people they are not competent or sufficiently staffed to manage; it may also be useful as part of the first stage of a tendering process, to ascertain capability, but it is not a Care Act assessment.

His parents were concerned that any transition to another accommodation and in particular to the provider favoured by the council would not only risk a serious reversal of the slow progress that their son had made at the College but that it would also harm his emotional, physical and psychological well-being and place him at a higher risk of being made subject to a MHA detention order. The family visited the proposed placement and came to the conclusion that it could not meet their son’s needs. From their perspective (and the College’s), their son was doing fine and should have been able to stay at the College because it also had adult provision to offer.

By June 2016 the situation appears to have been that
i) LBM had said that JF’s placement would terminate;
ii) LBM planned to move JF;
iii) an alternative service provider had deemed itself by 26 February 2016 a suitable provider to meet JF’s needs;
iv) LBM agreed that that provider could meet those needs; but
v) LBM had not yet authorised funding for the new placement.

Matters (i) to (iv) all occurred before the completion of any Care Act Needs Assessment.

Some thought was given to a short residential assessment – ie moving him to the potential placement for a trial. The parents considered that it would not be in his best interests to have his routine dramatically disrupted for the sake of such a short-term transition and in circumstances where his likely disturbance would affect the quality of the assessment. They therefore declined this offer. It is not submitted that this was unreasonable.

The parents suggested that the provider’s staff re-visit their son at the College and conduct a fuller assessment in order to establish whether or not they rally could meet his needs; Merton refused, because it was considered that an adequate assessment on site had already taken place as reflected by the provider’s pre-admission report.

The arguments

The man’s lawyer asserted that the process followed was a wholly inadequate basis for moving someone from their current accommodation.

The council predictably contended that no final decision had yet been taken about the man’s future placement, because such decisions were made at a funding panel level.

They also tried to argue that an assessment was not even a judicially reviewable decision!

The barrister for the council suggested that ‘it had been assessed that he did not need on-site multidisciplinary access’ but there was no evidence of an assessment of that question ever having taken place; nor was the judge told when or who had decided that.

In my view that starting point for re-commissioning is bound to have been a budget-led edict, when management last looked at the state of its departmental budget. It is commonplace for review teams to be given ceilings or targets in advance of care planning, but that trend cannot translate into a wiping out of previously assessed needs without a new evidence basis. This judgment says that that sort of question can’t be concluded, formally, without a lawful Care Act assessment.

The findings of the judge:

The judge referred to the findings in the Davey case earlier this year:
Section 1(1) and (2) impose a distinct duty upon a local authority, in each individual case, to promote the individual’s well-being, including for example physical and mental and emotional well-being (or, as here, access to suitable accommodation).

Section 1(3) contains a separate “have regard to” duty to a further set of matters listed therein.

If the relevant local authority does not assess the matters specified in section 9(4), including the impact on “well-being” (as defined), then there is a breach of the statutory duty.
This means that the assessment must determine how those assessed needs impact upon one’s mental and physical and emotional wellbeing and the implications of that impact on the suitability of accommodation that may be required. (See section 13, too, for a duty to consider what COULD be done to meet needs, before care planning commences).

Councils have a mandatory duty to identify and record a person’s desired outcomes in the context of the section 1(1) duty to promote “well-being”. There is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes.

This judge, here, also adopted and summarised the Davey Court’s conclusions as follows:-

First, where there are specifically factors required by law to be taken into account, a failure to take account of such obligatory factors will necessarily invalidate the decision.

Secondly, where there are other factors which may be taken into account (or indeed which others or the court itself would have taken into account) a failure to take such factors into account will not vitiate the decision.

Thirdly, there is a class of factors which ought to be taken into account. Here a failure to take account will vitiate. Such factors have variously been described as “relevant” or “clearly relevant” or “so obviously material” to the exercise of the particular discretion such that they ought to be taken into account.

She reiterated (as is already well established) that the proof required to show unreasonableness must be convincing. The claimant must demonstrate an error, or errors, of reasoning which rob the decision of its logic. Given this man’s permanent vulnerability and dependency upon care and support workers, however, the intensity of review required in this case is high level review, not arm’s length.

The judge regarded it as clear legal principle that:
• If the Assessment failed to assess the impact of the client’s needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act, then it is an unlawful assessment.
• Likewise, if it failed to assess the outcomes that the man wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful.
• If it fails to have regard to the matters specified in Regulation 3(2) of the assessment regulations, it is unlawful.
• If the assessor fails to have regard to the wishes and preferences of the individual (expressed here to a degree by his parents), then it is unlawful.
• And if the Assessment is neither appropriate nor proportionate then it is unlawful.

The judge did allow the submission that an Assessor is not under any explicit duty to explain in a Care Act Assessment document, why he or she disagrees with anything contained in such reports or with the views of parents etc. The conclusions reached were set out, and the material on which they are based was identified, and that is a legally sufficient approach to an assessment, but, the judge said, always subject to the conclusions being rationally based on the material.

The decision to terminate

The judge concluded that despite the fact that the Funding Panel had not met, the council had formally decided to terminate the man’s current placement at the College.

The combined effect of the language used in the statements for court, and the late care plan, and the steps taken was one of decision rather than undecided planning, implementation of which had merely been deferred.

As to that decision, the judge said that the decision to terminate the placement could not be said to be rational. It had been made before his needs had been conclusively assessed under the Act and on any view, before the preparation of the Care and Support Plan. In those circumstances, it was difficult to see how the decision could have been made in compliance with any of the statutory duties contained in section 1 and 9(4) of the Act and in Regulation 3 of the Assessment Regulations.

There was no evidence before the Court justifying the decision to terminate. No reasonable local authority would terminate the placement of someone with such complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs.

Looking forward from the identification of needs, to actual care planning:

In relation to the arrangements for any future move, the judge found that an Assessment under section 9 is not required to deal with the detail: the Care Act Assessment is designed to be a statement of static current needs, not how such needs should be met or changes in the response. It must consider the effect of his care and support needs on the suitability of his accommodation, not how he might move to and from any such accommodation.

But the judge confirmed that that would be part of care planning: because then, the council would need to promote his well-being under section 1 and would have to manage any transition in a way which complies with section 1.

Where a duty to meet needs arises, councils must, under s24 (1)(a) of the Act, actually prepare a care and support plan – here the plan was not prepared until well after the proceedings were commenced. The plan was not actually the focus of the case, but the detail was relevant to the adequacy of the prior assessment and the rationality of the assessment conclusions – pre-cursors to care planning, many would say.

When Merton’s barrister was asked if Merton had already decided that its preferred provider could suitably meet the man’s assessed needs, he acknowledged the ‘impression’ that such a decision had been taken (in particular by the social worker/s responsible for the Assessment), but said that no decision about the provider’s suitability had been taken at “corporate” level because no decision had yet been made about funding the placement. This meant, he contended, that the provider placement was merely “on the table”.

The judge at trial had been shown various independent reports which she thought supported the contention that this man NEEDS an on-site MDT, total communication environment and detailed and long term planning for any change in placement.

The care plan may well not have been signed off, but the work of care planning had certainly been done by the social worker: her statement, however, just stated that the local authority had decided that its client did not need an on-site MDT or a TCE. The only evidence about the decision concerning these potential needs came from Ms Singer; she stated that there was consultation and advice about this and the outcome was that the “local authority” decided that he did not require an on-site MDT and a TCE. It was therefore not stated that it was HER professional view.

The judge was not provided with any evidence about how the funding panel operated or any written policy and procedure distinguishing between the significance of decisions by social workers and decisions at a corporate level about placements of this nature. The decision-making process behind the conclusion no MDT/TCE was needed, was not particularised and the decision maker/s not identified.

The judge said that the council might well be entitled to conclude that he did not need MDT or TCE, but only on a lawful and rational basis. As it is not possible to tell when the decision was made that he did not have these particular needs nor by whom, it was not possible for the Court to be satisfied that the parents’ views (and the client’s wishes) were taken into account. In this assessment, omission to deal with the subject prevented any reader from understanding whether need for an on-site MDT/TCE was actually considered and rejected, or simply not considered at all.

It was also impossible to know whether in this respect, the defendant had regard as required to the desired outcomes for the man, or whether it assessed the impact of his MDT needs in the context of his well-being and suitable accommodation. But if he didn’t have those needs, it would be a departure in the type of service provided to the man for the last 15 years….

In legal terms, care managers either make recommendations to panel, who are the decision-makers, or they make decisions which a panel might audit but not overturn, perhaps thinking it better to save the panel process for dispute resolution if someone challenges the adequacy or legality of the package. My long-held view that Panels should be asking staff to come to panel with TWO recommendations, and not merely one, so that Panels can do what they were born to do, which is exercise discretion, in their own senior professional names, for rational reasons, chimes nicely with this case, I feel.

The wondrous conclusions of the court for this client, on these facts – even though a council COULD make the same decision, second time around, please note:

“I am satisfied that the defendant failed to comply with its duties under sections 1(1) and (3) and section 9(4) of the Act. The decision was not reasonable in the Wednesbury sense. Accordingly the Assessment was not lawful. Any re-assessment of JF’s needs must be based on his current situation and not conducted from the position that his placement is no longer available to him.”