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!

Thoughts on the Law Commission’s LPS proposals to reform DoLS

Readers will have been poring over the Law Commission’s proposals since March 17th. They clearly represent an improvement on the first and second iterations but I think that there are some serious difficulties with a few of the underlying assumptions, and in this post I will focus on just one, having reviewed the positives.

Of course there are many practical and good points in the report:
– the inclusion of all settings, by dint of removing the link with any specific sort of setting;
– the inclusion of 16 and 17 year olds, regardless of where they are living;
– the bonding together of community care and health law planning functions and MCA decision-making, because it should always have been thus, given that a refusal to accept care might always have been an incapacitated one, requiring a best interests decision by the council or CCG;
– the placing of the responsibility for authorising DoLS where it should always have lain, ie with the public bodies bearing the duty to the person in the first place, for appropriate meeting of their needs;
– the ongoing inclusion of people without seriously aggressive tendencies within the paper based regime, even if they are capable of being seen as having a mental disorder;
– the broadening of scrutiny to the nature of the arrangements in total, and not merely a focus on the narrow question: does this regime amount to deprivation of liberty?;
– the extension of authorisations to respite settings and all sorts of transport and temporary arrangements.

The Law Commission heard from many consultees that the DoLS don’t work in practice because a council will only offer one sort of a setting for care, as a result of resources difficulties, such that there is no real scope for a BIA to say that DoL is not necessary and proportionate. Examples are given where the council refuses to meet the needs in the person’s own home, because of the cost, and the only choice is between an unwanted care home and less care than is needed in one’s own home.

Instead of exploring the role of the BIA, and the scope of the assessment required of them, and the underlying public law framework as to what would be a lawful alternative offer, the Law Commission has simply accepted that as the legal truth and then moved on to getting rid of the roles of the Supervisory Body, and the BIA and tweaking the proposed role of the Approved MCP, adding in an Independent Reviewer, en route, for simpler cases, whose role is simple audit of the paperwork.

This approach seriously underplays the possibility that an offer of a care package that is not adequate to meet needs would not be a lawful offer to make to a person who was withstanding persuasion to go into a care home. If an AMCP isn’t to be allowed to say that, then calling an AMCP independent makes a mockery of any notion of professional values and integrity, and yet it will be social workers who’ve still GOT those things who need to be AMCPs!!

The Commission could have adopted the approach in the KK case, where the CoP judge used the absence of spelt out practicable alternatives to the care home, as the bare minimum for a competent decision on incapacity in the first place, to refuse to authorise deprivation of liberty. Funding Panels should always have been considering the choice between two alternative adequate options in deciding best interests, not deriving a package from a budgetary ceiling, or telling social work staff to present ONE option for approval.

If one plays out the care home vs home care possibility in the context of an application under the new LPS, the independent reviewer would just do the review on the papers, and the Approved MCP would do a real review, including making a fresh determination as to whether the conditions for an authorisation are met, as a human rights public body in their own name, by dint of their statutory role.

The suggestion that this should be done without regard to resource considerations is in my view even less than a BIA can currently do. A brave BIA would never regard a regime of DoL as necessary and proportionate if there was a less restrictive option that would cost the commissioner ONLY a BIT more than was currently being paid. A brave BIA would simply refuse to say yes to the authorisation, and that would stop the DoLS authorisation.

I absolutely endorse the findings of the Supreme Court in N this year that the CoP is not the equivalent of the Administrative Law Court, and cannot exercise a supervisory jurisdiction over the rampant cost-saving wheezes often presented by councils as lawful care packages; but the CoP is as much a public authority as any other court and under the Human Rights Act, in this country, it has no right or capability to make best interests orders about packages that are not in accordance with the law of this country.

I therefore take the very firm view that a package being offered by a council that would be judicially reviewable in the Admin Court cannot be foisted onto the CoP as the only offer for the judge to have to say yes to, just because it is not in breach of a person’s specific human rights with regard to a pleaded s7 point.

I am not, please note, saying that the fact that it wasn’t in someone’s best interests, makes it unlawful in public law terms, in the CoP: I am not suggesting that the parents were acting rightly in trying to challenge the adequacy of the package by asking the CoP judge to determine whether it was in a person’s best interests first, in the CoP. I know enough public law to know that a public law decision is valid until it is declared otherwise.

What I am saying is that IF a package is seemingly indefensible in public law terms, (whether or not anyone has issued JR proceedings in the Admin Court, prior to going to the CoP, and whether as defendant or applicant for a CoP order), then a CoP judge has no power to lend best interests legitimacy to an offer of care that could or probably would be invalid for unreasonableness, illegality, procedural unfairness or a breach of human rights. The CoP judge cannot be put in that position, in my view, BECAUSE the package contents being in accordance with ‘the law’ is a pre-requisite for the exercise of decision making functions not resulting in an unjustified interference with article 5 or 8 human rights.

So, likewise – if an AMCP thinks that the package being offered offends against public law, I do not believe that she or he can legitimately put forward support for an LPS authorisation without abandoning his/her statutory purpose and function. It is a distinct decision-making role, not mere audit.The AMCP has no jurisdiction to make a decision that is not in accordance with the law.

If this degree of independence is intolerable, but nobody can come up with a set of steps that should and could be taken by the AMCP, then the LPS begin to disappear behind smoke and mirrors.

Where’s the best forum for all this accountability?

The irony is that no decision has even yet been made about whether a tribunal, versus the CoP, is the right forum for DoLS disputes in the new era. The obvious way of dealing with the converging systems of public and private law (for private law is what the MCA is actually all about, defences against torts of assault and trespass, after all) then one MUST have a tribunal, which can have an appellate jurisdiction based on error of LAW, as well as taking decisions of a CoP nature. Once one has got that far, one will HAVE to allow for an appeal against a care package, whether or not the issue involves MCA considerations.

Against that backdrop, and all of a sudden, because of the election, fresh mention was hurriedly made by the government about ‘a cap’ on care costs – presumably the same sort of a cap as envisaged by Andrew Dilnot. The implications of the Dilnot vision had already convinced the government that some sort of an appeal system would have to be created – for all those middle income people not happy with their first ever social care allocation or decision on eligibility when they’d been to the council to get their meter started.

The idea that one would be able to challenge one’s care plan on MCA grounds, to a tribunal, or to the CoP, but not challenge the rationality of one’s care plan, in even a formal appeal system to an outside decision-maker, or have to use judicial review, makes no sense to me.

A tribunal for ALL health and social care matters, where principled decision making is the heart of the job, would seem to me to be inevitable, now.

CCG focus: cost capping of CHC packages….oooh, let me at them!!

I have just heard of a CCG – owing formal Fast Track duty CHC services to a person in a deteriorating phase of a condition that could be terminal – suggesting that it can only pay for 56 hours a week of care, unless the family pays for night time care privately, or otherwise the person will have to go into a care home.

When asked for confirmation in writing, that 56 hours was a maximum, and that the CCG would leave the family to pay for night time care beyond the value of 56 hours, themselves, as if having needs at night could just be ignored, because of it being dark(!) and what was the legal source of the power to have any such policy, please? – the clinical assessors said that they could not do that.

I am not saying that there is a right to stay in your own home to die, on CHC. I am not saying that a person can just hold out for the care that they WANT, rather than the care that they are assessed as needing, simply based on preference. This is all funded out of public money…

BUT I AM saying that this CCG’s stance is the kind of stance that could be used as a platform for high profile and embarrassing precedent setting litigation on the basis of any number of public law principles that will be familiar to anyone who is already legally literate in this field:

a) it appears to be a blanket policy about the most that people owed a legal duty ‘need’ – without regard to the professional clinical assessor’s view of the individual’s actual needs – ie a budget led assessment, not a needs led one…

b) another way of seeing this is that it’s a blanket refusal to provide services to people with needs, at night, because of the commissioning inconvenience that care costs more at night.

c) it does not admit of any possibility that patients might be at a point in their condition whereby meeting their needs in a care home, as opposed to doing so IN their own home, would be an indefensible decision by a professional: for example, where it would be highly likely to de-skill them (ie final stages of recognising where one is, with dementia), trigger a psychotic phase (eg ignoring the effect of others on a person with a brain injury and a need for calm and quiet), separate a couple who still like each other after 50 years of togetherness, or who are genuinely co-dependent), or force a young dying parent to be separated from children for the last months of their life.

d) it ignores the fact that a person without mental capacity would still need a best interests decision by the CCG even if they themselves could not say no to the offer of a cheaper solution, a placement in a care home – because relatives DON’T have the right to obstruct access to services by refusing what’s offered, on behalf of someone else: the state still has a duty to decide what it is bound to DO!

e) it ignores human rights considerations, particularly article 8 rights – which although limited, still require to be conscientiously weighed against the costs of meeting the needs in the person’s preferred setting – and ‘conscientiously’ here, means carefully and with regard to all relevant considerations, and (of course) regard to an individual’s situation – not the knee-jerk application of a rule made up by a finance director.

f) it ignores the National Framework Guidance on working out what the CCG’s offer should be, starting with the individual’s preference – the guidance has been worded to allow for wriggle room, but it is still guidance which must be followed, unless the CCG wants to identify a really good reason why it should not!

g) it assumes that there will actually be sufficient care home places in the area for less than the cost cap, in which to pop people owed a duty – regardless of the challenges that might be involved in caring for the person in question – a potentially unsafe assumption nowadays, since care homes are beginning to ask ‘What’s the point?’ and throwing contracts back at public body purchasers…

h) it appears to regard Fast Track CHC arrangements as somehow separate and distinct from ordinary CHC packages, indicating a determination, perhaps, to review people smartly OFF of that status for free care services, in a few weeks time, if they still dare to survive!

so, CCGs have been warned – they need to get more legally literate, through training or legal advice, if they are going to stay out of the judicial review courts.

The guidance suggests that disputes about the content of a CHC package should be taken to the NHS complaints system. Unfortunately that overlooks the fact that in England, allegations of illegality, instead of incompetence, have always been allowed to be taken direct to the judicial review court.

The first ever proper plan to pay for sustainable social care? Hmmm. Cap it a Little? Or Cap it a Lot?

Warning: this is serious, informed commentary – not politics!

The Conservative Party’s proposals on social care [DID!] revolve around aligning the means testing rules for domiciliary and residential care charging.

Firstly this will mean that one’s share in the value of one’s house will be counted in the calculation of one’s means, even though one is still living in it – and needing to spend money on it, and despite living there alongside a partner and other family members. This will increase, markedly, the number of home owning and needy people, more of them elderly than any other kind of client, being charged significant or full cost for their care for the first time. It will make it much less sensible to pay off one’s mortgage, too!

The manifesto does not say anything about disregards of the house, or even about the State waiting for repayment where surviving partners or other family members living in the house are concerned. Jeremy Hunt must have said something about that in trailing the proposals the night before on TV, so he may know better – but if there is no provision for that disregard and deferral until other people’s later deaths, it stores up a tremendously divisive issue for the consultation that would have to be conducted first (well, AFTER the election, no doubt).

Secondly, it is proposed that everyone will be left with as much as £100,000 and receive care ‘for free’, after depletion of one’s assets to that much higher level than the current minimum threshold of £14,250, below which care is not paid for out of one’s capital at all.

The £100,000 referred to is to be ‘the floor’, according to the manifesto – not the ceiling, meaning that nobody will be paying for services out of capital with less than that sum. This section is replete with confusion.

Nothing was said about paying out of ongoing received income, as happens in a care home setting: Mrs May said ‘NOTHING will be paid [by elderly people] whilst they are still alive’ when launching the manifesto – so that aspect of the proposals will need careful attention at consultation.

The absence of any detail about an upper ceiling (if this is the floor) is puzzling: Mrs May referred to the new threshold as quadrupling the current one – seemingly referring to the UPPER threshold of £23,250. But that is not the point at which care becomes FREE at all (whatever journalists insist on writing in so-called ‘briefings’); it is the point above which one pays the FULL cost of one’s care in a care home, instead of getting ANY local authority subsidy, via a charge from the arranging council, for LESS than the full cost – and above which, one CAN lawfully be told to go off and buy it for oneself (unless one is mentally incapacitated).

So, either there has been a mistake there in the manifesto writing, and the new threshold is meant as a ceiling, below which one’s capital will still be counted as tariff income and thus relevant for ongoing charges for at least a further period, until one reaches a MINIMUM threshold – or it really is meant as a floor, and no ceiling is planned. That would make no sense.

Thirdly, the manifesto suggests the option of extending deferred payments for care, to cover home care costs – so that one can consent to placing a legal charge on one’s house for securing the loan to cover the cost but still stay at home and receive chargeable services, there.

However, these schemes can already be extended to home care, under the Care Act 2014 – in the discretion of the council, for that purpose, as well as for residential care, albeit that the value of the house is not currently counted. It is thought that the reason they are not used in this way, in practice, is because councils cannot afford to pay for care up front, at the low level of interest that the deferral is allowed to attract. We have heard more this week from various finance bodies saying local government would have to be allowed to borrow in order to finance this level of contracting up front for people for ALL that care – care home AND home care. It is hard enough for them to meet the demand for deferred payment schemes for residential care clients, and nothing has been said about the funding for local government of this new proposed level of loan under-writing obligations.

Fuelling deprivation of assets disputes?

The alignment of the two charging schemes immediately presents a strong incentive to pass the equity in one’s house ON to one’s closest relatives, before or very early on in one’s deterioration or concern about the future, and a nationwide crossing of one’s fingers that one’s offspring will ‘do the right thing’, if one becomes needy. The way in which a trend in that direction would fit with rules on tax on discretionary trusts set up during one’s lifetime is also a very difficult topic – a field day for lawyers.

The alternative is having faith in the idea that the State will still provide what could still be described as a decent safety net. If no changes to funding going INTO the sector are made alongside these proposals, that would be a risky bet for middle-aged Middle Englanders, of whom I am one!

Getting rid of one’s lifetime security, in order to preserve it for one’s offspring, will also give rise to more widespread accusations of deliberate deprivation of assets – and legal difficulties – because aligning the two charging systems would mean extending the current residential only ‘deliberate deprivation of assets’ provisions into the lives of less dependent people who are still trying to live normal lives in the community – where their money remains, in theory, their own, to spend as they like.

When people do choose to rely on the council for home care, they must still be able to spend their own money on their less pressing needs, or wants, and contend that it should be counted as disability related expenditure and thus get their charging assessments reduced – a point not covered in the manifesto, and one that will fuel much controversy, in practice.

The proposals would necessarily entail two further changes: regular revision of one’s financial assessment by reference to how much one actually has left, instead of notionally left – meaning many more charging officers need to be employed – and a proper national policy on the extent to which one can legitimately carry on treating oneself or one’s relatives to nice things and experiences, once one needs care.

This doesn’t sit well with the duty in the Care Act to promote well-being in all that a council does!! It doesn’t sit well either, with the Conservative ethos of ‘small government’!

This focus on who’s disposing of, or spending money, and how, and why, all the time, will likely turn councils into the enemy of many MORE of the people whom they are trying to support with care – the antithesis of the intentions of people who framed the Care Act to encourage people to look at the Council as an expert friend when in need, for everyone, no matter what their asset base.

A journalist asked Mrs May what the justification was for different financial consequences for people with parents suffering from dementia as opposed to those whose parents die suddenly of a heart attack, and she did not actually reply. That is where the reference in the press to a dementia tax comes from.

Another irony is that the well-off, with any chance of leaving £100,000, will probably take actual note of these provisions, whereas when the threshold was a very low one, the thought of turning to the State was probably not on their radar at all. The provisions and the very public debate about them, NOW, may well alert the better off to the financial advantages of claiming NHS Continuing Health Care, as a means of scotching the social care charges altogether – especially in cases of chronic long term degenerative diseases such as dementia.
That is not what any health and social care integration project really needs right now, as conflicts over a bright line between the two statuses are the very quickest way to personality-driven hostilities between generally poorly informed staff at that interface, in CCGs, CSUs and councils.

Deferred payment schemes and the absence of financial services products through which to finance alternative options for buying care

Nobody has to sell their property even NOW, under the current legal framework, to fund their care.

Deferred Payment Schemes

There are already deferred payment schemes in operation, secured by a charge on the property, when a person needs to pay for care in a care home. Stephen Webb has FOI’d councils this week and found vast differences in the extent to which a deferred payment would seem to be available in the real world, although it is a mandatory option for someone who wants one and qualifies with regard to sufficient equity in their property. So the legislation already makes councils the behind-the-scenes owners of properties with low interest rates, and makes them have to pay the costs of care up front. For people preferring to stay in their own home, the sad fact is that insurance or bond-based products have not been forthcoming from the financial services and equity release market for people to buy into.

I think that that is partly because of the impossibility of distinguishing between a want and a need, let alone between what should be free response by community health care services to an NHS health care need, and what should be chargeable as social care if provided by the State. The insurance market doesn’t have the public law legal acumen to become embroiled in that sort of debate, especially not if replicated in hundreds of distressed households up and down the country.

No detail has been given about how the commercial attractiveness of the notion can actually be increased for the market’s providers; and without that, people won’t be able to avoid lumbering their partners and families with the cost of care.

Carers’ Unpaid Leave…

Finally, a new statutory entitlement to carers’ leave – unpaid – is promised – so that one can be assured of a return to work when compassionate leave is no longer needed, will be seen to hurt business in terms of skills loss. It will force more people on to Carers’ Allowance, too, as they have to live on something, and put up assessment and personal budget numbers for carers under the Care Act.

But the greater concern is surely the disproportionate impact on women, and gender equality in society generally?

It is still the position in this country that women are more often carers than men, and women are often the lower paid of a couple, making it make sense for the woman to be the one who gives up work.

I think that the underlying economic reality is that carers, in the main, women, will be persuaded for the good of their families they must go back to being the heart of the home and provide the care, or even stay with a partner whom they no longer wish to be with, in order to preserve the assets for the children.

What was not mentioned in the manifesto?

No commitments with regard to clarifying the ambiguity as to the sleep-in time counting rules, for national minimum wage levels – which are crippling the sector at the moment, and embarrassing HMRC inspectors; no commitment to banning councils from commissioning from agencies that use zero hours contractors or agencies that don’t pay the living wage. And no mention of putting back any of the funding that has been taken out over the last 5 years, and contributed to the crisis that the sector is in, so far as insufficient money even to meet statutory duties is concerned. No reference to THE CAP, until we were later told it was there all the time, in the backs of the authors’ minds…


Further comments

Post code differentials

Local Authorities use national guidance with minimal underpinning in regulations, for charging for home care services. They are allowed to use their discretion and local charging schemes vary. Aligning the approach to the counting of one’s house towards the means assessment, is not going to change local variations in other respects so care costs will still depend on where one lives and the politics of one’s local area.


Is this a resurrection of the Dilnot proposals?

The Care Act Dilnot provisions, deferred until 2020 after the last elections, involved a different kind of a concept to a floor below which your money would be left in your hands: it advised a cap on the maximum amount of notional spend a council’s client (OR a privately contracting ‘above threshold’ person needed to have spent on them, in relation to their needs, before care would become free (the cap having been settled last time round at £72,000). So the rich did well out of that, and could do even better if they accepted coming through the council’s arrangements after getting the meter ticking, by benefiting from the council’s bulk purchasing power to obtain a lower fee for care.

Before the U-turn, under the Conservative proposals, a person who was rich but ill for a very long time would not have got the benefit of any cap on their care costs – not even notionally through a local authority objectively assessed rate, nor in real terms.

Now, after the U-turn, it appears that the Conservatives have been reminded that even deferring the Dilnot lifetime cap until 2020 had already attracted much criticism first time round, and that it is an essential feature to offer to UPPER Middle England – to people who might like to keep £100,000 of equity, and not risk their spouse having to downsize if surviving them, AND wish to spread the cost of what will otherwise be insurance across the whole population. Even though the ‘upper threshold’ was going to be £118,000 under Dilnot, and the cap on a person’s spend, £72,000. It seems that there is no prospect of the population being told WHAT the spend might be – Mrs May even mentioned £10K to Andrew Neill, which CANNOT possibly be correct!! So I wonder who is making this stuff up, personally.

A problem for the Conservative dogmatist however, is this.

The Dilnot provisions would have impacted on the care home market and got rid of the private client subsidy – by giving everyone, however rich, an irresistibly economically rational incentive to use the local authority route into social care.

That would have meant central government would have had to have provided more funding to local authorities to meet the overall ‘bubble-up’ costs of the policy. This would have been needed to keep the sector afloat once the private subsidy evaporated – although in that one-off measure, one of the greatest iniquities operating in the sector could have been got rid of. That was its genius. And that was why it was almost bound to be dropped – no political party, let alone the one last elected, was willing to put up taxes for the ‘Cinderella’ service of social care.

A £100,000 ‘floor’ will not achieve that effect – there was no mention of a meter for one’s notional costs, or maximum SPEND – so there would have been no need or reason to entrust the shopping for one’s care, to one’s council, in order to start any meter towards a cap, running. It would have left better off people – culturally disdainful of social services perhaps – with more reason to make the choice of buying care in privately – if they wanted to spend their own money – rather than having the council control the question of whether they are eligible at all, and the size of their care packages, subject only to judicial review.

I guess that would have kept the numbers down for social services, and would have fitted with the fact that they are all severely under-staffed after 8 years of austerity, even now.

But if we ARE now having a cap, and it is going to be a sort of Dilnot cap, the idea of Upper Middle and Middle England submitting to social services assessment, and a notional spend, without anyone ever challenging the local authority view through public law proceedings, is about as likely as the Conservatives losing the election. The 4.5 billion taken out of social care would HAVE to be put back into it for more staff, more training, and an appeal system, if not a tribunal.

For extreme anoraks, that’s a really interesting prospect whilst the Government has STILL got to come off the fence about a Tribunal for all the Liberty Protection Safeguards challenges that might be better off dealt with there rather than in the Court of Protection. Isn’t life interesting?

Luke Davey’s unsuccessful Judicial Review case against Oxfordshire – analysed from a legal perspective

Luke Davey has lost his judicial review against Oxfordshire’s revised care plan in light of the cessation of the ILF.

Luke Davey – High Court judgment in full

What issues did this case raise?

– The problem of dealing with clients who had been able to supplement the council’s care packages with ILF money, once that source of additional funding for people dried up: ILF was effectively a grant that enabled a large number of younger people to meet a large slice of their own needs, thereby purchasing a better quality of life and more well-being than those who were not eligible for the grant could ever have hoped for by way of social care. Inevitably when the fund closed, a loss of wellbeing was going to be experienced whenever a council decided that it could not and would not continue to pay for everything that the individual had previously had the means to buy.

– Whether a council must be able to show in detail whether it considered all of the statutory wellbeing features set out both in section 1(2) and had regard to those in 1(3) of the Care Act (to which the answer was yes, and the essence of s.1(3)(d) is a duty, when taking decisions, “have regard to each person’s particular individual circumstances.”

– Who is the decision-maker on what a person needs, after they have been found at least eligible? (the council), and to what extent are the client’s personally desired outcomes a necessary or determining factor for care planning? “There is no warrant for a conclusion that [the] balance is weighted more in favour of the service user, than it would otherwise be under the Act, to the extent that the service user can have the final say on his own needs and personal budget or dislodge the principle that, under the Act, the decisions are ultimately to be taken by the local authority. The wishes of the disabled person may be a primary influence, but they do not amount to an overriding consideration.”

– The extent to which a reduction in social activities on account of a reduced budget would invalidate a care plan’s legal validity: “It is possible that there might be less opportunity to go on day trips accompanied by his PAs. This very limited curtailment does not amount to a breach of s.1 of the Act.”

– How far a council has to go, in taking all reasonable steps to agree a care plan with the client before saying “No, we are not paying any more, and this is why.” – to which the answer was quite far, and conscientiously, but consent is not a necessary constituent of a signed off care plan.

– How minutely or not a council needs to be able to justify its mathematics in relation to its stance that what it is offering will conceivably and defensibly meet need: not down to the penny, and the evidence basis might in certain cases need only to be based on the staff’s opinion based on experience. With regard to carers’ terms and conditions, the higher DP agency rate was irrelevant because the client preferred to employ carers. And the Defendant said that 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.”

– The extent to which a person’s emotional and psychological health and wellbeing are factors which are so obviously material to a proper assessment or care plan that a failure to take them into account would constitute grounds to vitiate any relevant decision: the judge found in favour of the Claimant’s position on this issue.

– The meaning of the concept of ‘independent living’, as a right in article 19 of the UN Convention on the Rights of People with Disabilities. It is not going to be of any real use to a disabled person, where the domestic legal framework presents as more detailed in relation to domains of daily life and wellbeing: in particular, no specific ambiguity in the Care Act was identified, in respect of which Article 19 might serve as an interpretive tool.

– The extent to which a council can say to a direct payment claimant “even if this sum isn’t enough for what we accept is an appropriate way for you to meet, it’s enough for something else that would do” (with regard to the notional cost of live in care). The council did not succeed in contending that the cost of something that they had not ever seriously suggested that Mr Davey could be offered (live in care in his own home) should be a benchmark proving that the greater cost offered was automatically enough – and that is not surprising: no council cannot offer a budget for something that would depend on a contract between a third party and the client about the use of a room belonging to the client!) The judge said this: “The purpose of the Personal Budget in the October 2015 Support Plan is a budget to cover the cost of a team of PAs. In this regard, whether alternative live-in care could be paid for within this budget is not relevant.”


Is it an end to litigation and the promise of the Care Act?

It’s the first proper case on care planning and wellbeing under the Care Act in a period of extreme austerity in adult social care, so it is very helpful for everyone; and there are no surprises in the judgement for anyone who appreciated that the Law Commission’s vision for the Care Act was based on continuing the substance of the pre-Act case law built up over 15 years.

But it is not an indication that a 42% cut in what has been spent overall, (eg in a mixed package with Health, and supplemented by ILF) is always going to be a safe bet for a council. There was a cut in what had been spent, but it was not a cut in what the local authority had contributed: it was an increase – and one in respect of which the judge said this: “The Defendant did put in a very substantial amount of effort, over an extended period of time, to seek to assuage the concerns of the Claimant and his mother.” There is no explanation as to what happened to the NHS contribution, interestingly enough, when the ILF ceased.

The legality of a cut to a care plan all depends on adherence to due process as well as to rational defensible substantive thinking on the matters that the Care Act and guidance require to be considered.

For legal framework commentators who like to assert that ‘need’ can be a subjective concept for the client’s determination under the Care Act, this part of the judgment would finally appear to make such a stance untenable: “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 wellbeing matters set out in s.1(2)) then there is a breach of the statutory duty. There is, thus, a duty on the part of the local authority to assess these factors.”

The implications for practitioners:

Legal practitioners need to refresh their memories of the public law that they learned once: procedural impropriety, illegality, irrationality and breach of human rights are the grounds for judicial review; and to remember that judicial review is not an appeal – a high threshold of irrationality has to be reached to shift the position that a public body’s decision, particularly as to the use of scarce resources, is valid – it remains that way until quashed, even if people don’t agree with it. “The result may impose change or even strictures upon the Claimant which are unwelcome, but that does not of themselves mean that the process has been unlawful.”

When reading assessments it is important to focus on whether the issues facing the client are reported speech by him/her, or a carer – or a professional’s opinion, whether or not consistent with what they the staff, have been told.

Social workers and advocates need more legal literacy elements in their professional training – difficult conversations training, effectively, by people with legal acumen.

The funding (and thus the PA hours) had been sensibly tapered down over a period. An experienced social worker was brave enough to assert in this case that being alone for longer periods of each day would improve Mr Davey’s independence and confidence, and 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 reminds me that the position of Kensington & Chelsea was that not providing mobility assistance at night would improve Ms McDonald’s privacy and safety. “That was a social worker’s assessment which could not be regarded as Wednesbury unreasonable and was a matter for her professional judgment…. I am satisfied that Ms Lovelock and Ms Collins did genuinely believe both that developing the Claimant’s independence was a need and that spending more time alone was a way in which to achieve this end.”

One may not aspire to be the person who has to say such things, as a social work trainee, but one needs to bite the bullet, if it can be done conscientiously and consistently with social work professional ethics, if one chooses to work in the public sector. A position on the part of a client, carer and advocate that it is essential that there are no changes to a plan, although understandable in human terms, cannot be allowed to fetter the judgement and probing for an evidence base by review staff who are spending public money.

Any council or CCG can offer a re-assessment, once challenged about a proposed revision – and many do, once someone is well informed enough to point out that the public body has blatantly failed to comply with the Act somewhere along the customer journey. Judicial review could achieve no more, after all. But the re-assessment won’t be of any use to the client if the council’s instructions to staff about re-assessment amount to a continuing illegality under the Act: for example – “Make sure that the indicative budget comes out at what it came out at before, even if you have written down more of the client’s outcomes”; or “Do not let the carer even begin to think of withdrawing from caring informally – we can’t afford that”.

Given the risk above, practitioners MUST elicit sufficient information from a council or CCG as to their approach to the statutory thinking stages, prior to being able to give the client an idea whether or not there are grounds for judicial review – and accept or refuse a re-assessment as part of pre-action protocol correspondence, dependent on whether the public body is prepared to shift any indefensible approach that would still infect any new process.

On the question of pay rates for PAs in the area, where the evidence from the council was weak and based on the practitioner’s opinion, contracts teams can help with evidence; with regard to any cuts, and public bodies’ lawyers should note that it is always best to add to a care plan words such as this: “if problems do arise from the trialled changes, we will revisit the issue.”

This openness to the need to reconsider the situation soon, helped Oxfordshire on pay rates but it was also clear that Mr Davey had in the past and recently himself recruited external non-family carers at the minimum wage. The council provided a cogent explanation why the Claimant’s evidence of a lack of response to his own recent advert for carers, did not establish that it was difficult to recruit at the rate provided for.

It’s not surprising that Mr Davey lost, on the facts of the case. His carers withdrew their resignations and he very honestly acknowledged that as long as he didn’t have to have more than 2 hours alone, he could stand more than one period a day of being alone, without suffering from depression or anxiety, and he had refused counselling.

But I don’t think that the case sends any particular message out that this is a field that will be shutting down.

It was just not the best case to take to court on wellbeing if one wanted to set a precedent that would be good for disabled people – in the same way that Elaine McDonald’s and KM’s cases were not the best cases to take about the concept of dignity in care, or about justification for the sum allocated.

What are the practical implications of this case?

For Oxfordshire, satisfaction that their conscientiousness and experience of senior staff won the day within the judicial review jurisdiction and relief that they were allowed to get their case in order during the run up to the hearing…

For the gentleman’s PAs, a choice as to whether to take less money by way of salary or leave…

For the rest of us – whoever we may be advising – the need to balance the desire to stand up for someone, against keeping in full sight the risk that there need to be some rock solid un-loseable cases brought to court under the Care Act – if things are really so very grim out there – which is why I am promoting the launch of a charity for free legal advice to try to encourage those cases out of the woodwork.

CASCAIDr will launch soon, once it has been approved for registration by the Charity Commission.

The conclusions from the Warehousing and Cost-Capping webinar

Here is a reduced size powerpoint with the conclusions, in legal terms, about the dodginess or otherwise of warehousing and cost capping

Warehousing and Cost Capping Legal Principles – conclusions

And for those who want to purchase the full length recording, and reasoning behind the conclusions, all you need to do is to write to me at belinda@careandhealthlaw.com for a coupon code which will discount the price of a recording of the event (opens 6 times) to £50 + VAT.

Purchasing the recording keeps the materials private, and protected, given the effort it’s taken me to get good at this topic, and the absence of any government funding! It also enables you to pause the recording and see the materials.

All proceeds from this particular webinar are going to CASCAIDr, my new venture, launching soon, as a free legal advice charity, to try to stop the rot in legal literacy! 🙂

Is ‘warehousing’ in Care Homes actually unlawful?

I’ve been surprised at the furore going on in the HSJ and Guardian, this last week, about the most juicy and important test case issue of our time: the question of the rights and wrongs – in legal terms – of a public body’s offering someone a care home place because it is cheaper than keeping them at home. And then offering them the lower sum of money of the two settings, if the person is intransigent enough to say no, because they’d prefer to stay at home and be cared for there….

I say I’m surprised because it’s been going on for at least 15 years, in local authority land, for people who used to be referred to as ‘the elderly’ – but never scrutinised in the Administrative Court, on a judicial review that’s been allowed to go to judgement. No precedent has ever been set, therefore.

I have been punting around the possibility of my airing a reasoned and legally well-informed answer amongst all the interested journalistic parties – for one thing only, in return, if they can’t PAY for what is a proper analysis: publicity for the charity that I am about to launch – a charity that will provide free legal advice to a specific group of people, and get funds raised for them through crowd-funding so that they don’t need legal aid, and then even front their cases with them from time to time, so that they can’t be bought off at the last minute.

I haven’t had any offers yet, mind you! Is that because proper legal analysis is considered boring, or puts an end to the column inches one can generate by emoting? Goodness knows.

So I am thinking of doing a webinar about it. Not for a customer with an agenda, but for the sheer faith I have, that people working in the sector will actually be interested.

I will say this about the issue though: the legality or otherwise of ‘warehousing’, as it’s being somewhat emotively called – would be a big ask for the charity to take up, as its first ‘public’ cause for actual litigation, because it’s a genuinely moot point, in legal terms. It depends on oh so very many of the specific circumstances of the person on the receiving end of such largesse from a council or a CCG – and it could go either way, depending on the specific case that is chosen for a challenge.

The funny thing is that it’s been going on in social care for at least 15 years. No council has ever allowed itself to be judicially reviewed, for doing it, and that suggests to me that they’ve had legal advice that has convinced them that they were probably on a sticky wicket.

But that was under the pre-Care Act law, and times is tough, now: LAs AND CCGs are getting closer to the edge, and someone is bound to think it’s worth the fight, and the risk of setting a precedent, sooner or later.

Being very comfortable with public law principles, I think that I know what the answer is, and why. And I can identify the case law to back it up.

So here is an offer, and only slightly tongue in cheek, given the way England seems to work these days:

Given that even legally literate people need to eat, I’m wondering whether anyone would anyone like to BID for the story, in terms of money or publicity for the charity? As a sort of friendly start-up donation? 🙂

It would be a completely neutrally written piece, because the answer would only be a set of thoughts about public law, defensible decision-making and legal literacy, not a real case. It might save thousands of pounds of court fees, and who knows what it would do for the people affected by such policies, and the reputations of the managers espousing them?

I am hoping that this RANT by me, has got the sector interested in what needs to be done about the sector-wide lack of legal literacy fogging up strategic thinking! And that a webinar has got to be a better idea for getting the word out there….

So here it is: 16th Feb, 2pm for just over an hour. Please send me questions or thoughts in advance, by commenting on this post, below, Here is the link: IS warehousing in a care home actually unlawful? Free webinar 16 Feb 2pm

Please Tweet to me @BelindaSchwehr or message me on belinda@careandhealthlaw.com as to whether it should be free or not – maybe free if you just want to listen, but chargeable if you want the recording? Or should it just go up on YouTube, and we’ll see whether any LA or CCG changes its plans? I gather one has done so already, since Fleur Perry’s FOI question revealed the facts about the extent of the practice. And then I’d be happy to send you stuff about the charity too.

The charity is going to be called CASCAIDr – standing for the Centre for Adult Social Care – Advice, Information and Dispute Resolution – and I am looking forward to prising those legal floodgates open soon! #CASCAIDr, naturally.

CASCAIDr will write letters before action in proper Pre Action Protocol Form, to councils and CCGs thought to be breaking the law, in many more ways than just in terms of cost-capping. It will support people to crowdfund on CrowdJustice if these letters make no difference. It will not accept service contracts from any public body, because we all know what can happen to a body’s independence and assertiveness, when service provision becomes the means of remaining viable. It will be a hub for preserving what is good for citizens in the legal framework, and reinvigorate some sort of respect for the rule of law, perhaps, which is something that we ALL need, in extremely difficult times.

Important survey – identifying the worst Care Act practices, for CASC-AIDr, the new advice charity launching in 2017

There’s a separate post on this site, about my latest cunning plan to preserve some notion of law mattering in adult social care – a post about a new charity, which I am launching in early 2017.

It going to be called CASC-AIDr from now on – the Centre for Adult Social Care Advice, Information and Dispute resolution.

And that is just what it is going to provide, and some of it for free, for those who need it the most.

I intend to focus its work on stopping the 5 most obviously unlawful things going on in Adult Social Care during this dreadful period of disrespect for legal principles and duties – while councils everywhere are budget obsessed, despite their applying regardless of lack of money (clue as to the solution for the disbelieving: look in Reserves, for funding statutory duties: it’s illegal not to consider reserves, as the West Berks case proved earlier this year!!)

So here’s a short survey which I have put together – it should take about 10 minutes, unless you find it so entertaining and instructive en route that you just have to slow down and take a few deep breaths.

Survey to identify what people think are the worst practices that need legal scrutiny

There’s a call for help at the end, and I’d be delighted to hear from people, separately, or from within that survey, on belinda@careandhealthlaw.com, if you think you’d like to be involved in any of the following ways:

Volunteering to get someone’s problem out of them, or to support them to get it, down onto a contact form, so that it’s in a shaken down state which can be analysed – over the phone or by email?

Selling the charity your advice, if you are Care Act confident and competent, and happy to do it for a self-employed reasonable flat rate?

Liaising informally (paid as self-employed, or unpaid) between the person with a problem, and a barrister or solicitor where the law is not so clear?

Admin, Fund-Raising, Marketing or specialist services such as managing a WordPress website for the charity (paid as self-employed, or unpaid)

My hope is that even fed-up social work staff will be able to refer their disgruntled customers to this service, which will cheer a lot of them up, I am thinking! Seriously, we all need social work staff to know that know they are struggling, and that we need them to continue to be true professionals in a very difficult period.

I am assuming that anyone who has ever had advice from me, will happily make a small donation, and I can’t wait to get started!

If you are an advocacy organisation, please get in touch, to collaborate, even though the charity won’t be providing free advice to everyone!

And if you are a provider, seeing your own organisation going down the plughole because of local authority cuts to care packages, this charity is the way ahead for you – you can refer clients without fear of embarrassment – but providers everywhere will need to make a donation, if it is ever going to work!

Belinda’s direct action response to the government’s Autumn Statement – which effectively ignored the crisis in social care

After the New Year, Care and Health Law will no longer be offering half an hour of completely free advice about adult social care rights, to any and all individuals who ask for it, because Belinda is on her knees from doing so, and a girl has got to make a living somehow!

However, Belinda and other experts in the field will be selling their services to a new Charity, at a charitably low flat rate – a rate that enables advisers to sustain their expertise, whilst responding to the widespread evaporation in legal literacy in Adult Social Care.

The Charity will be called CASC-AIDr – the Centre for Adult Social Care Advice, Information and Dispute Resolution, to be precise. It will be online, virtual, and have no employees at all – just trustee directors, volunteers and relationships with self-employed advisers, lawyers or companies.

CASC-AIDr will work tirelessly for the furtherance of fairness and legal principle, in adult social services.

The service will commence in January 2017. The Charity will be funded by members of the public and housing and social care providers. Service users, family members and carers – even social workers! That is, anyone who thinks it’s better that there are some actual principles underpinning who gets what…

Enlightened business-savvy housing and social care providers will contribute, too.

Their financial security and sustainability is directly related to local authorities’ awareness (or otherwise) of people’s rights to a decent care package, and yet they are naturally uncomfortable about paying for their customers to have get advice about having a go at their purchaser.

One day, though, prospective customers may well ask providers if they support CASC-AIDr, before making a decision about the provider’s offer, so there’ll be a logo for a provider to add to its paperwork, acknowledging its contribution.

The suggested level of donation is £1 per client per year for companies, from any sector.

There are some 673,000 people having a state funded care package, at this moment.

MyDonate will be the platform for giving through – ensuring the maximisation of the value of donations.

Donations will of course be able to be made tax deductibly for companies, whilst the Treasury generously contributes GiftAid as well, for taxpayers’ contributions.

The logic is that housing and social care providers will be happy to make a donation that is tax deductible, to the running of a fund which their clients can access, without any visible link between them and the problem – with no connection between the timing and size of the payment, and the need for the advice or the size of the problem – all below the radar, so far as the local authority commissioner is concerned.

Why would anyone want to contribute?

CASC-AIDr will thrive, it is suggested, because the advocacy and advice sector, and even access to formal legal advice, have all been squeezed out of funding over the last few years.

The Treasury’s grip over austerity, and the dismantling of a senior policy team for social care in the Department of Health have meant that councils have been encouraged to ignore the new law that was supposed to modernise social services provision. Those councils have even been incapable of persuading their party political mates in government to put their money where their mouths were, when the Care Act was passed – no more money for social care in today’s autumn statement, despite widespread calls for action.

The Charity will fund the provision of expert analysis and consultancy about the legal framework – and ultimately access to direct public access barristers, skilled in this area of law.

The output for members of the public will be a succinct statement of why a council is in the wrong, if it is indeed in the wrong, and acting indefensibly, in terms of public law, regarding a person’s assessment of needs, eligibility, their care plan, their package or a review.

The advice will enable ordinary people to set out for councils’ management and Members why they will be successfully judicially reviewed, if they don’t apply the Care Act, defensibly and in good faith.

The advice output will be geared to the resolution of disputes rather than the generation of litigation, but over time, its existence will re-invigorate regard for legal principle amongst the workforce, management, legal staff and Members. And it will mean that legal framework training will be a necessary part of showing that a public sector body with statutory duties has got at least halfway competent knowledgeable staff!

Those council clients with the most intransigent and legally illiterate councils will get the most benefit from the Charity.

And those members of the public affected by the most strongly arguably illegal council decisions will be able to be supported to CROWDFUND, on a related site, for an application for permission for judicial review, regardless of their means.

This means that the systematic cuts to the Legal Aid system, and any government’s inevitable control of the central money supply for supporting the enforcement of people’s legal rights, won’t matter quite so much, in future.

 

Please contact me, Belinda Schwehr, on belinda@careandhealthlaw.com, if you would like to assure me of your support, or make suggestions, or ask me a question. PLEASE put the name ‘CASC-AIDr’ into the email header.

Here’s a survey monkey survey to help me focus the charity’s work!

Survey to identify what people think are the worst practices that need legal scrutiny

Belinda’s Alternative Autumn Statement!

Nobody seems to disagree, as such,  with the assertion that Adult Social Services and Care are in crisis.

The adult social care budget constitutes the biggest area of duty-based and discretionary spend for councils, and supports some of the most vulnerable people in society. Ensuring sustainable levels of funding is critical – but no party is promising (rather than threatening) to raise tax to make up for a decade’s disastrous economic policy in this field.

The winter A&E pressures, lonely older people, caring families unable to work, and disabled people struggling to live independently are all urgent, challenging issues for any Government, but the current sector and departmental leadership has seemed worryingly incapable of making the Treasury LISTEN.

Analysis by the LGA estimates there to be a potential funding gap of at least £2.6 billion, including £1.3 billion by the end of the decade and a gap in the region of £1.3 billion now, that reflects the difference between what providers say they need and what councils are able to afford.

A raft of organisations agree that short term interests of any party in power are a poor guarantee that decent care and social work will exist when our own relatives need it.

These include the local government ombudsman, the Care Quality Commission, ADASS and the LGA (representing local government), the Care Providers’ Alliance, representing at least 6 national associations of care providers, The Independent Care Group, The Kings Fund/Nuffield Trust and Joseph Rowntree Association and the Centre for Welfare Reform.

The Association of Directors of Adult Social Services (ADASS) warned earlier this year in its annual budget survey report: “Financial risks are rapidly increasing … the quality of care is compromised.”

The King’s Fund/Nuffield Trust 2016 report, Home Truths, concluded that councils were struggling to meet basic statutory duties.

Independent Age commissioned an analysis of a range of migration scenarios pre- and post-Brexit. It found that the workforce gap could grow to anything from an optimistic 750,000 workers to a pessimistic 1.1 million by 2037.

In 2016 its annual state of care report  the CQC issued its starkest warning yet. The “fragile” social care system is approaching a “tipping point”, it says. Far fewer people are being supported than those who actually need help. Steady attrition of provision is becoming more likely. Providers are (at last), handing back contracts, selling up and exiting the market. Investors considering the returns on care sector investment are also walking away, choosing to finance up market provision for those who can pay.

In adult social care complaints investigation the ombudsman (the LGO) upholds around 58% of complaints related to social work and care home and home care. The ombudsman has seen a 25% rise in complaints about home care alone. There’s been a 6% rise in complaints and enquiries about all areas of Adult Social Care in the last year; and 70% of detailed investigations were upheld about care planning – which taking into account complaints about assessment, as well, generated 600 local authority conduct-related complaints to the LGO.

And responding to a Public Accounts Committee report on the financial sustainability of local authorities, Cllr Claire Kober, Chair of the Local Government Association’s Resources Board, said: “Councils experienced a 40 per cent reduction in core central government funding over the last Parliament and funding pressures will continue over the next few years. This means difficult decisions continue to have to be made about which services are scaled back or stopped altogether to plug funding gaps.

The current funding settlement entirely disregards demographic change, the pressure on the market, and the impact on people receiving care. The Treasury thinks it has fixed the problem with the social care precept, a regressive tax that raises funding where it is needed least.

We need a government that will take heed and action to reverse a trend of gradual but definite erosion of this sector, a lifeline for many vulnerable people. The sector is a vital connector to other public, private and voluntary sector services. And it contributes some £43 billion to our national economy (see the LGA’s report: state of the nation: adult social care.) Allowing the axe to fall on social care, in the context of an ageing population, is ECONOMIC  and LEGAL illiteracy, piling greater pressure on an already overstretched NHS. 

The Chancellor’s own Autumn Statement will hopefully take some notice of all these warnings and calls for action, for fear of making the Conservatives appear determined to go down in history as dismantling what should be the residual safety net in any civilised society. That is, the right to be cared for, if one has insufficient money or support or capacity to meet one’s own needs.

Ros Altmann has today suggested that we are sleepwalking into a care funding crisis, in terms of pensions inadequacy – so let us hope that she is not ignored too.

Adult social care should be everyone’s concern, now, not just at times of personal crises, when need strikes one’s own family….