Contact Belinda

To ask Belinda a query, about social care rights or obligations, where the answer might be helpful to others, just put it in the Comment Box and Belinda will respond by way of a message that others can see – you can put any old name in it, or no name at all, and the email address it asks for will not be shown to anyone else.

To contact Belinda privately, please use the email address belinda@careandhealthlaw.com

Belinda will give a free steer to anyone she thinks she can help, but Belinda cannot afford to give complex private advice for free, please note. She has a team of hand-holders who will provide support to people having difficulties with social services statutory processes, like assessment or care planning, or safeguarding, but they have to earn a living, and charge between £60 and £100 per hour for this sort of service. It’s cheaper than a lawyer, and different to the service that a funded advocate can be expected to provide.

 

90 thoughts on “Contact Belinda”

  1. barry

    Hi Belinda,

    Under the new Care Act, I filled out an assessment – but not with the council as they have farmed it all out to Northamptonshire Carers; they came back to me with an offer of £5 pw to help my wellbeing as I met the criteria to help with housework and the garden as I am a 24/7 carer for my wife who is in the late stages of Alzheimer’s. I got back to them and they agreed to increase it to £15.75 pw, but only by direct payment. They said there was no other option. I don’t want a direct payment – I would rather they sort it out as I have enough on plate as it is. What I wanted to know under the Act do I have to accept the DP?
    thank you, Barry

    1. Belinda SchwehrBelinda Schwehr

      Barry –

      I think that what might have happened here is that the Carers’ organisation doing the assessments maybe offered you £5 a week as a preventive offer, without a formal finding of eligibility; and then, when you went back to them, they found you to be ‘eligible’, (without telling you on the required bit of paper, maybe), and then worked out that £15.75 would meet your needs (again without necessarily being transparent about why that ought to be enough, in their view, maybe?).

      The simple answer to your question however – do you HAVE to have the help by way of a direct payment – is a completely clear NO. If you are eligible, you have to be given a support plan, and no council is able to give you a direct payment unless you request one, which you clearly haven’t done! So I would go back to them, if I were you, and check the following things out with them, showing them this blog, too.

      a) have you been found formally eligible on the basis of the carers’ eligibility criteria, please?

      b) which aspect of the criteria have you been found eligible under? I am guessing that it was the one about not being able to maintain a habitable home environment without help, and that is great. But there may have been others, and it is important to know, because whether £15.75 for your needs is conceivably defensible as a decision about what is needed to MEET your needs, depends on what your difficulties and needs ARE, as I am sure you can see.

      c) where is the support plan to which you are entitled under the Care Act? If that had been done, it would have been clearly recorded that you have not requested a Direct Payment, and in fact have said that you don’t want one. You want a service; not a sum of money, I think.

      NO-ONE can be forced to take a direct payment and do the buying of the service for themselves, Barry, under the Care Act. Lots of people buy a cleaning service for themselves though without becoming an employer – you might just lack the confidence because you have not done it before, but cleaners advertise in the small ads locally, and agencies will offer a service at a slightly higher rate, but it is not a complicated contract they would want you to sign.

      I hope that helps, Barry. If it doesn’t sort things out for you, Northamptonshire Council needs to know about it, as the carers’ organisation acts as the council’s formal delegate, and is bound to apply the Care Act properly.

      regards

      Belinda

  2. barry

    Thank you so much for your help they have agreed to my request after your advice on the law for me not to go with direct payment as I didn’t want it, so thanks to you we have a good outcome ,another success story, couldn’t have done it without your help
    Barry

  3. justine Collom

    Dear Belinda..

    This question relates to whether prompting and reminding a person to take medication is a social care outcome or a health need? This issue has been hotly debated within teams with various arguments being made both for and against this being social care outcome. My view is that it is dependant upon the impact on the individual and whether not providing this support would significantly impact on their well being, and as such may differ according to which medication and the effect for the individual from their perspective.
    I would really welcome your thoughts on this?
    P.s I have just watched your safeguarding webinar and thought it was GREAT , so glad I have found an understandable legal voice to support greater legal literacy thank you.
    Justine
    Principal Social worker for adults

    1. Belinda SchwehrBelinda Schwehr

      Hi Justine

      Prompting and supervising people in relation to personal care tasks triggers an obligation to register with CQC, but that neatly dodges the question whether it is fundamentally a social or a health care responsibility!

      On the one hand, the fact that the medication is needed for a health condition is not determinative: most of the eligibility outcome areas could be difficult for someone precisely because they are ILL.

      On the other, the eligibility domains in the regulations do not mention the administration of medication, and a draft set of them did, so the removal of that area of input could be said to be significant.

      Secondly, the government has assured people that the Care Act is not intended to alter the line between health and social care’s legislative responsibilities or government policy.

      On the other hand, social care providers have been busy administering medication, prescription and otherwise, for years, in order to normalise people’s existences despite their condition (eg epilepsy medication in daycare centres, medicine down the PEG, etc etc) so it seems kind of regressive to be arguing about prompting and supervision.

      Also, the Better Care initiative, the duty to co-operate, and the broadening of the description of responses that councils CAN meet need with, in s8, (the relevant ones here being ‘care’, ‘support’ and ‘facilities’) could all be seen, to my mind, to make it harder for social services directors to mount a defensible position that prompting and supervising the taking of medication IS NOT EVEN CAPABLE of being a social care task.

      I think it is relevant that the eligibility regulations explicitly state that prompting constitutes a form of assistance which if needed, means that the person is to be regarded as unable to achieve the domain. I know, however, that there is no actual domain in respect of which medication seems to be the focus of the threshold task: it’s not personal hygiene, it’s not toileting, nutrition, or being appropriately dressed! And of course, inability to achieve in JUST that area would not suffice: even if one is generous with stretching the domain scope, there would need to be two areas of inability AS WELL AS significant consequential impact.

      If I go to the law in the Act the section which prohibits the local authority sector from providing that which the health service must provide in terms of its own duties, makes it clear that there ARE circumstances where even though the NHS is the primary body expected to do something, the local authority MAY (not MUST) do it – and so in a good joint working relationship, I think it’s likely that the LA would be AGREEING to do it when there was some OTHER social care reason to be on the spot or in touch with the person, but not when there were not at least two other eligibility domains where there is inability to achieve:

      22 Exception for provision of health services

      (1) A local authority may not meet needs under sections 18 to 20 by providing or arranging for the provision of a service or facility that is required to be provided under the National Health Service Act 2006 unless
      (a) doing so would be merely incidental or ancillary to doing something else to meet needs under those sections, and
      (b) the service or facility in question would be of a nature that the local authority could be expected to provide.

      My view is that in the absence of agreement, a local authority should explain to the CCG why it is not willing to take on that responsibility in terms of it not being a duty related to any domain in the regulations, and not something that the council wishes to exercise its discretion to provide the service. I do not think that the LA could then be found to be responsible, morally or legally, for harm befalling a person who went without their medication because they were not prompted.

      I hope that discussion helps with that hot debate!

      1. simeon

        on the other hand the National Framework for NHS Continuing Healthcare is clear that local authorities and health bodies should not unilaterally withdraw a service before the other has agreed to pick it up – on the principle that this should be a private behind the scenes dispute between public bodies and not one which compromises necessary service provision and becomes the service user’s problem

  4. Jayneknight2@me.com

    Hi Belinda

    I keep hearing the Care Act 2014 does not apply at all to people with section 117 funding?

    This last one is in relation to having a carer’s assessment –
    It’s a package that’s half funded by the LA and half by the NHS – similarly a mother was told that with a person having totally NHS continuing care funding – she was not entitled to a carer’s assessment.

    Is any of this correct?

    1. Belinda SchwehrBelinda Schwehr

      Hi Jayne

      People with the formal status of being entitled to s117 services get their services under s117 of the Mental Health Act, not the Care Act.

      That is to say, they get their mental health AFTERCARE services, under s117 – but the Care Act has been used as the vehicle for amending the definition and scope of s117 aftercare, and potentially narrowing it a bit from what people are used to getting. So, in future, they might get their mental health needs related to keeping them well enough not to be resectioned, under s117 – and their other social care needs met under the Care Act. That would mean two Care Plans, one compliant with s25 of the Care Act, and the statutory guidance about care planning principles (- which is why mental health social work and nursing staff need training on the Care Act incidentally!) and one s117 Care Plan, which will be governed by the law and practice guidance under the Mental Health Act and Code.

      Section 117 has been changed in other ways by bits of the Care Act, in relation to which council is liable for a person’s s117 package, for instance, and in relation to putting direct payments and choice of accommodation principles INTO s117 care planning practice.

      But essentially, it is CORRECT to say that the Care Act is not the source of legal power or obligation in relation to a s117 patient’s entitlement.

      As for the other question, that’s an easy one! It is INCORRECT to suggest that a carer’s assessment is not due to a person who is providing emotional or practical support to anyone who is on Continuing Health Care OR to someone who is split funded, with health and social care taking responsibility for different parts of a joined up care package, or someone who is jointly funded, but a social care client, on paper. Carers’ assessments are due to anyone who meets the criteria in s10 of the Care Act, and that’s basically everyone who’s doing anything by way of care or support – all they have to do is be able to explain or have their situation explained so as to be understood to be saying that they have a need for support, in their view – that is all you have to do to be entitled to an assessment. Eligibility is regardless of whether any other body should be meeting the need. WHETHER YOU GET ANYTHING, THOUGH, HAVING BEEN FOUND ELIGIBLE, will depend on whether the need is unmet, and in a HEALTHY joint working situation, as between the NHS and the LA, in a given area, the NHS should be funding the respite demanded by the carer, because the carer has been pressed (however lovingly, willingly and capably) into saving the NHS the money it would otherwise have to spend.

      Hope that helps!

      Belinda

  5. TheMaskedSocialWorker

    Hello Belinda,

    I attended Community Care Live London on the 4th November and was able to attend your workshop entitled ‘Managing Legal risks in adult social care’. Thank you for delivering this and it has certainly been ‘food for thought’. I am a Senior Social Worker in a Local Authority Reviewing Team and wanted to clarify the legal position on how frequently service users in receipt of community services delivered by means of a personal budget are to be reviewed. My Local Authority has developed a policy whereby reviews (based on issues of the service users mental capacity and if they have significant informal or formal networks involved in their care) their review can be anything from 12 to 18 months. Although the ‘expectation’ is annually could you confirm if this is a legal duty and is there a chance of judicial review if reviews do not occur annually? We have enormous waiting lists of people who are awaiting reviews, some of these citizen have not been reviewed in over two years. Due to the demand on our services the LA have temporarily suspended Social Worker’s undertaking ‘planned reviews’ and are only responding to ‘unplanned reviews’ (where the service user has contacted us requesting a change to their services i.e. change of provider or due to a change in need) I am not sure what legal footing (if any) the LA are standing on here and would appreciate your advice. Could you also confirm if you offer training for Social Care workers and where I can find your availability and rates. My argument is that LA’s can not afford to find them selves in a situation whereby they are being brought to judicial review and your training fee’s are an investment!

    Kind Regards
    ThemaskedSocialWorker

    1. Belinda SchwehrBelinda Schwehr

      Thanks for this question. The stark answer is that I think that the duty to review has been kept as woolly as possible for the simple reason that the government knows that no council manages review once a year, and that it is not willing to fund the re-expansion of social work teams to a level where it would be possible.

      The duty is to keep under review, both generally and specifically, people’s budgets and plans.

      The duty is IN the legislation for the first time, but that means that there’s been a chance to define review to be something different to re-assessment, whereas before, in the case law, review WAS reassessment. A person’s needs could lessen, as well as increase, or change in nature. Now, under s27, the review is a review of the plan, not the person’s eligibility; and this should save enormous amounts of time, if you think about it.

      The statute comes close to saying that any change to the care plan should trigger a re-assessment that is proportionate to the context – in that situation it isn’t a NEW s9 or s10 (carer) assessment – it’s a special review – a s27 review, and up to the council to go as far back in the process as it thinks fit. The guidance is that the expectation for these reviews is no more than a year apart – but if you compare that language to the language of ‘Councils MUST’ and even ‘Councils SHOULD’ that peppers the guidance, then that formulation ain’t even strong enough to count as a ‘Councils ought‘, to my mind!! So, if a council is trying to do annual reviews and prioritising those who have capacity issues or (say) known safeguarding issues I do not think that they could be judicially reviewed successfully for failing to live up to the expectation. It could still be maladministration, (through a complaint to the Local Government Ombudsman) but in my view that would be less likely now, under the new law than the old system of performance management targets tied to central government approval – ironically enough.

      I think that the nature of the duty to review upon a reasonable request, is much stronger than this expectation. Also, if a person is taking any part of their personal budget as a direct payment, (the language is important here: everyone gets a personal budget but only those who request can have it as a direct payment) there is an actual firm requirement in the direct payment regulations under the Care Act that there BE an annual review after the first one has been done.

      The most interesting question regarding s27, to my mind, is whether a change of provider, without any other change to the care plan, constitutes a change to the plan which ‘affects’ the plan so as to trigger that ‘proportionate’ re-assessment that I mentioned. If the care plan provides for a placement, then a change of provider would be a fundamental change that would clearly affect the plan. But if the plan were to be for non-residential services, (ie all supported living, and all domiciliary care packages) there was – and I think still IS – a legal ambiguity over whether that change would trigger the need for a re-assessment. Under the old law, there was never any right to choose a domiciliary care provider, (despite all the rhetoric about personalisation) whereas there has always been a right to choose a care home of one’s preference, subject to all the well known caveats about availability, suitability, price etc. So your care home provider could not be changed without your input, or at least a best interests decision, and the context would have naturally been a review. But there was, already, a bit of case law based on the common law of public authority fairness – and probably now, Human Rights Law would strengthen that approach even further – to the effect that changes that would clearly fundamentally have a big impact on the personal and important aspects of a person’s life should be CONSULTED over, rather than merely imposed – and a change of domiciliary care provider had been the occasion for that principle being laid down. That case was called R v Essex County Council ex p Bucke. Despite that case law, the notion of consulting existing service users is completely ignored by most councils’ commissioners when doing a domiciliary re-tender – the message being ‘We’re doing this, to save money, and if you want to choose, or stay with your current provider, you will have to take a direct payment’, and with complete impunity, if no-one challenges the practice.

      No-one knows what the Courts would say, if that question arose under the Care Act system. It is hard to challenge local authorities’ decisions in the current climate, in terms of finding a lawyer and paying for this kind of expertise; but it has always been hard for the vulnerable service using customer, or their exhausted carers, to think of biting the hand that feeds them. I would recommend to anyone asking for advice in that sort of situation to write to the Monitoring Officer and then to the Ombudsman, instead of using judicial review, but I LONG for there to be case law as it is the only thing that draws a line in the sand about these sorts of ambiguities in new legislation.

      In the absence of case law, the need to make decisions about these sorts of issues falls to policy teams and senior managers within individual councils. And that is why I do what I do – training – training to support the workforce to stand up for the claim of social work to be a public service that operates under the rule of law, not arbitrariness or whim, or worse still, the culture of ‘he who shouts loudest’, or ‘we can’t, our budget is busted, for this month at least’. But I fear that even that sort of training is unwanted in the current climate – and it depresses me, both personally and professionally, to be honest, after 15 years of it having been in high demand. The intention behind the Care Act was to simplify social care law, not to make it a topic that is regarded as unimportant, or not requiring at least some attention to detail, I really do believe. But you’ve asked, so here goes! I charge anywhere between £600 and £1500 for half and full days for up to about 35 people, and I do it by webinar as well, for less, if you are set up technogically for those. I have a team of Care Act proficient trainers, who can do mainstream adult social care topics for less, and they are all practitioners, trainers or local authority lawyers, supervised by me.

      Your question has really cheered me up, so thank you very much for that, and for the chance to advertise!

  6. marguerita

    Our daughter is 22years old, has severe learning disability and is non-verbal. We have taken a Direct Payment for her care since she was small and have been lucky to have met and employed some truly wonderful people who we now count as family friends even though they are no longer providing care support to our daughter. That is until this summer, when (thanks to a tracker in the car we provide for use with our daughter of which the care workers are made aware) a care worker had not followed instructions and on a number of occasions taken our daughter to unknown addresses including 6 trips to her own house over a period of 4 months. We challenged her and she admitted that instead of visiting a favourite café where our daughter is made very welcome and where a number of her peers work, this worker sat in a side road and fed our daughter crisps for up to 40 minutes. We dismissed her and then discovered several other occasions where this may have happened. She is in her 3rd year of training to become a Learning Disability Nurse and works for an agency providing support to families with learning disabled children – although her work with us was via a DP. She has refused our requests for an explanation of these ‘off radar’ trips. She was clearly not acting in our daughters’ best interest and we would consider that she has deprived our daughter of her liberty as she did not give her the opportunity to choose – even though our daughter may not have understood what was being offered. What recourse do we have? Should this person be able to continue with impunity particularly bearing in mind their chosen vocation?

    1. Belinda SchwehrBelinda Schwehr

      Thanks very much for this scenario. I believe that the problem arises because of the definition of a regulated care worker – the definition of such a person determines whether or not the Disclosure and Barring Service can DO anything about less than ideal workers in the sector. A person working for a registered personal care organisation would be reportable, and bar-able; but a person working for a direct payment holder in relation to working for a relative of the holder is not within the definition. The logic, I guess, is that a person looking for someone to work for and with a loved one is bound to take great care when choosing someone – but the counterweight to that logic is that we all think we make good judgements, until we are forced to accept that we haven’t. Choosing anyone from the small ads is a risk; and a risk that it is not easy to manage or minimise.

      You say that she worked for you through a DP, but also that she works for an agency. It cannot be both: either the agency introduced her to you, and you paid a fee for that introduction and then employed her; or you paid the service, the agency in question, for providing you with a service through their employee – in which case she WILL be a regulated care worker and you can report her both to her own employer and to the DBS.

      As to what you can do to stop it happening again, there are two points to consider. Clearly you would not be willing to give her a good reference. The idea of references is that the next employer may be astute enough to spot a break in a person’s cv, and hence appreciate that the last gap might represent an employer who was not going to be happy to give a good reference.

      Secondly, you had a contract with this person. You may have dismissed her, but there is no reason not to use ordinary contractual remedies against her. The contract was to provide a service subject to instructions, and she was in breach of those instructions. Adding a claim for false imprisonment in the name of your daughter, if you act as her litigation friend as well would be a means of forcing some kind of explanation out of the woman in question. You might therefore use the legal process to get to the truth about the facts; but you would need to understand that she might not bother to defend the proceedings, and it is not damages that you are really seeking.

      Thirdly because she is in training to become a learning disability nurse, I am thinking that you could report her to the Nursing and Midwifery Council, where the definition of regulated care worker and thus the precise position about whether you were paying for a service or employing her directly, would not be an issue.

  7. Loraine west

    Hi Belinda,
    My son moved into a care home 2 years ago,he has severe learning difficulties, autism and challenging behaviour. His behaviour had become unmanageable for us and it was all very traumatic. When we asked the LD team for help we were told to ring the police.
    Anyway (we didn’t ring the police) it has now been 2 years. We have recently been presented with a bill for his financial contribution for 2 years, a total of £8650 which has come as a terrible shock. Apparently a referral to the Finance and Benefits team should have taken place at the time of his placement. Can they charge retrospectively like this?

    1. Belinda SchwehrBelinda Schwehr

      Hello – it is legitimate for a local authority to seek to enforce a debt going back several years, if the person would have been legally obliged to pay the charge if the financial assessment had been done at the right time. Putting this another way, if the money on which your son has recently been financially assessed was in his possession at the time when he first moved into the care home, then yes, the charge can be raised and there is no legal defence to paying it.

      Everyone is chargeable for their adult social care commissioned care home care based on their assessed means; and the only protection is the rules about what assets can be counted, and what assets either have to be or may be ignored.

      There is however a moral defence – it is completely incompetent for a local authority to take two years to do a financial assessment, and there is no way that a person with severe learning disabilities can be blamed for having used money that he did not know would (ultimately) be assessed for paying care costs.

      What’s called the ‘equitable’ defence of change of position should be put forward on his behalf, if his money has been spent; and when the LA in question says ‘We don’t understand what you mean by that’ I would suggest that you recommend that they tell their legal department to look it up; another way of looking at this is if you complained to the ombudsman on his behalf the ombudsman might say that the injustice caused by the maladministration should be compensated for by writing off the debt.

      It is also legally impossible to sue a person without capacity to conduct legal proceedings without their having a litigation friend, and the rules at the moment oblige any claimant to undertake to pay the legal costs of the person’s defence, for reasons too complicated to go into on this blog.

      I am effectively saying that unless you are your son’s attorney, or financial deputy, (and on that basis, should have known that he would be chargeable for his care, and should have kept the savings intact, in readiness), it would be best to leave the LA to struggle to decide how to enforce this debt, whilst acting in the best interests of their client – rather than presenting them with a cheque!

      1. Loraine west

        Hello, Thank you for your advice. I received a telephone call today from social worker to inform me that charges have been dropped. No explanation or apologies but such a huge relief after almost 10 months of anxiety.

  8. john bird

    hello Belinda,
    my wife and I are shared lives carers and feel we were taken advantage of by our county council (relating to trying to get decent budgets for the people we support, putting up with no support plans or adequate daytime care, and challenging unlawful cutting of the budget). We went through the complaints procedure to the ombudsman who found in our favour (2014). This resulted in a formal apology and a small payment for their maladministration. I am chasing them for a more appropriate amount as this was ongoing over a 2 and a half year period involving two severely handicapped service users). They recently agreed (Aug 2015) on alternative dispute resolution, following which, having decided after one meeting I had with their head of services, that they no longer saw any benefit in it as I didn’t agree with their views. (Surely if it’s a dispute I am not going to agree with them?!). I have asked for arbitration but they will not agree to this unless a court orders it. How can I assert my rights? What laws can I use to make sure they comply with the dispute resolution process. I could take them to court but this method is supposed to be easier and cheaper.

    1. Belinda SchwehrBelinda Schwehr

      Hello – the kind of problem you are having is typical of the shenanigans I hear about. A bit of history first: Shared Lives Carers are self employed people who are allowed to care for people in the carers’ own homes (including the provision of personal care) without being registered with CQC. Whilst every other care worker is regarded by the Inland Revenue as employed, not self employed, this exception is considered to be perfectly legitimate government policy, in order to facilitate a type of care that is homely without being a care home; and without over burdening the people who do it, or the regulator. The tax treatment justifies the payment of extremely low fees to Shared Lives Carers, it is thought, who aren’t doing it for the money, but for a vocation. For those who are interested, the precursor was Small Homes, which ceased to be a registration category when some bright spark in the civil service realised that if people weren’t in registered homes, they could get Transitional Housing Benefit – which then later became Supporting People funding – until that bottomless pit was covered over.

      The trouble is that the change in the funding stream meant that providers of small home-type settings were told to de-register, and re-issue the people they cared for with tenancies, in order to bring themselves within the then new funding system. This change did two things: it meant that the CLIENTS became liable for the rent, not the council – and the contract for the care between the council and the carer became a contract JUST for the care (or support, if that was all that was needed.)

      The majority of Shared Lives agreements, given to carers to sign, pay a flat rate fee, regardless of the needs of the individual being taken in to the carers’ homes. I believe that it is common for the agreements to be worded extremely vaguely, in terms of outcomes based specification, for results such as ‘Happy Safe Client’, rather than ’14 hours of one to one a week’. I believe that the majority of these agreements do not make it explicit that the person will only be IN for x hours a day, because of day care that is written into a care plan. that means that when the day care closes, the person doesn’t have a leg to stand on, in relation to enforcing a right to day care, and the Shared Lives Carer is stuffed, in relation to arguing that full responsibility was not what they had intended to take on.

      The Care Act mentions Shared Lives arrangements but only in relation to continuing ordinary residence if a person is placed out of area in a rare kind of Shared Lives arrangement these days: the sort where the council still makes the contract for and pays, itself, for the accommodation as well as the care. The law was the same when the National Assistance Act (s21) was the basis on which care together with accommodation in unregistered accommodation was organised (before the fashion for calling the accommodation arrangement a Tenancy, or a Licence, took hold, for accessing Housing Benefit).

      The Care Act means that the CLIENT can enforce the right to an adequate personal budget, to a care plan, to reviews etc. But of course the majority of the Clients are people with learning disabilities who haven’t a hope of enforcing anything without an advocate.

      Now for the unpalatable part, for which I apologise but it has to be said: YOUR RIGHTS AS PROVIDER, DEPEND ENTIRELY ON THE SHARED LIVES AGREEMENT THAT YOU/YOUR WIFE SIGNED. These are rights in contract, on which it might have been a good idea to get advice, but you would be one of thousands of good people who never thought that you would end up feeling used or abused. THE BUDGET IS NOT YOUR BUDGET: you agreed a fee, which – if you accept it and do not give notice – will, effectively, be adequate, by definition, for meeting the needs of the persons you are caring for. Of course you will not want to give notice; of course you will feel responsible for the clients, whom you will have come to really care for and feel involved with. I am afraid that this is part of the brilliance of the scheme. And here’s the really awkward part: you are the client’s landlord, and the tenancy or licence that they have, even if they don’t have one in writing, is not able to be terminated just because you no longer like the sum of money that the council wishes to pay. The right to challenge the adequacy of the budget, or the validity of the care plan, in terms of its compliance with the Care Act is the CLIENT’S right, not yours – and you and your wife are the very people who can never ever advocate or, or be the litigation friend for, so far as legal proceedings to bring that challenge might be concerned. It is your classic social care perfect storm.

      On to the dispute resolution process for the matter of the fees being paid, or which you think SHOULD be paid. If you were offered this route because it was included in the Shared Lives Agreement, it is enforceable, so far as it goes. But most such written dispute clauses are workable only in the event of both parties agreeing. ADR options, such as mediation are not there to impose a result; they are there to encourage compromise for a win-win outcome. In my experience, with councils, they turn on the very raw question of POWER, and power unrestrained by any concern for the legal niceties of the situation is very ugly indeed. You cannot insist on arbitration if it was not mentioned. You signed an agreement, in that case, which left you only with county court proceedings for money due, if you will not give notice and FORCE the council to make a proper Care Act decision for your person or people – where they OUGHT to qualify for an advocate who might be able to help them. BUT NOT IF YOU AGREE TO CARRY ON AT THE SAME RATE. My advice therefore is to go see a local solicitor and get some advice about what your actual legal position really is, and then act on the advice. You may need to go back to the LGO (the ombudsman) who now has the right to take on maladministration complaints even in relation to the commissioning side of social care .

      I hope this is helpful, and not too savage – Shared Lives providers do a fantastic job, but they need understanding of the legal framework in which they are operating, in my view, to avoid having the wool pulled over their eyes, about the distinction between THEIR position and rights, and those of their clients.

      1. john bird

        thanks belinda for your help. it is much appreciated.can i ask another quick question?if the contract states mediation and arbitration as resolution in the contract, are you saying the authority has to use it? arbitration is mentioned as a remedy in my contract if mediation fails.

        1. Belinda SchwehrBelinda Schwehr

          It all depends John: if the contract says the parties agree to use Mediation, then that is what they have agreed. But if the clause says Mediation if they both agree, then that means that one party can stymie that, and use ordinary contractual remedies. If the clause says mediation first, and if that doesn’t work, then arbitration, then that excludes resort to the courts, for contractual remedies, because arbitration is a route leading to adjudication. So you have to check what the contract says, and in particular whether it is what the parties intend to use for dispute resolution, or what they have actually agreed to be bound by.

  9. Anne Meader

    Under ‘the provisional Local Government Finance Settlement 2016-17 and an offer to councils for future years’ paragraph 1.4 states that ‘As part of these reforms, the main local government grant will be phased out and additional responsibilities devolved to local authorities, empowering them to drive local economic growth and support their local community. For example, the government will consider transferring responsibility for funding the administration of housing benefit for pensioners and Transport for London’s capital projects to local government, and will also consult on options to transfer responsibility for funding public health. The Government will also consider giving more responsibility to councils in England, and to Wales, to support older people with care needs – including people who, under the current system, would be supported through Attendance Allowance. This will protect existing claimants, so there will be no cash losers, and new responsibilities will be matched by the transfer of equivalent spending power. The Government is planning to consult in the New Year on this proposal, including on the right model of devolution and the level of flexibility that councils would need in order to effectively deliver this additional responsibility. We have been told that a consultation on abolishing the Attendance Allowance will shortly be opening. There is already a great deal of disquiet that this will take away the only thing that helps individuals remain independent and to manage without needing Social Services assessments etc. and that giving it to LAs will mean it will disappear into their shortfalls. What if anything can we do to ensure everyone knows the real implication for person centred support if this goes ahead?

    1. Belinda SchwehrBelinda Schwehr

      I guess as with the closure of the ILF, Anne, it will mean that a resource that was regarded as the client’s means, with which to meet some of their own needs, would no longer be available. Instead, it would be shoe-horned into councils’ coffers, as part of any council’s allocation from central funds, and then subject (if not ring fenced) to political and internal tensions regarding the local view as to its most ‘deserving’ (desperate?) directorates, causes, deficits, customers and circumstances. It would mean and end to any central government responsibility for aspects of the benefit system enabling people with disabilities to stay away from social services, but instead, introduce a pressure to force people to go TO and THROUGH their council, first and foremost. It is therefore not consistent with the rhetoric of the Care Act, which was about helping people to help themselves, and keep maximum autonomy over what little resource they were entitled to outside of social care – but fully consistent with the idea that a country needs to make decision-making about individuals’ needs and how much to spend on meeting them, as efficient as possible, in terms of using tax monies from all of us, cost-effectively.

      I would not have a problem with it, if I believed that councils were complying with the person-centredness requirements in the Care Act, and applying the law consistently across the country, but I do not personally believe that that is what is happening.

      So I would have to conclude that political pressure and articulate consultation inputs are the only answer to the risk, in my view, when the time comes.

  10. tina harvey

    Hi Belinda,
    I am a headteacher at a school for pupils will severe and profound learning difficulties. We are trying to understand how the Mental Capacity act might apply in the school setting to our over 16 year old pupils and how a restriction of liberty for a pupil at school aged over 16 should be interpreted.Can you help?

    1. Belinda SchwehrBelinda Schwehr

      Hello

      It is impossible, in my view, to assert that the regimes operating in schools for young people with profound learning disabilities do not amount to deprivation of liberty.

      They are not free to leave, and they are under continuous supervision, in the sense that if you did not know where they were and what they were doing, you would feel you were not doing a good job. Restriction of liberties do not need to be considered by the Court of Protection, but do need to be applied compliantly with the Mental Capacity Act and Code.

      That does not mean doing a new capacity assessment every day, or every hour, in relation to issues that are routine for any given child: in developing a plan for caring for each child whilst they are in your care, decisions will have been taken about their capacity in the respects that can be anticipate to arise. Of course capacity could increase in specific regards such as road awareness, and sexuality and aggression, but reviews should take care of noting such changes.

      Children and young people in your care are there with the consent of their parents, in most cases, and you will be acting in loco parentis; the Act is applicable to you; but it provides valuable principles and important legal defences for parents as well as professionals.

      So, your only real problem is that restriction of liberty (which can be a human right, and a part of a person’s needs, not a BAD thing, at all) can only be lawful under the MCA if it is proportionate to the risk of harm to the individual him or herself – not the risk of harm to others.

      Most providers interpret this to include the harm that will befall someone though, if they are allowed to hurt others; you have the common law to protect you, thought, there, in terms of it always being lawful to stop someone from hurting someone else, so long as you use proportionate means – and you have duties to staff which mean that staff need to be trained to protect themselves and others.

      The deprivation of liberty caselaw reported on this site (Birmingham’s case in January) makes it clear that local authorities must prepare to take ALL incapacitated 16 and 17 year olds to the Court of Protection for authorisation of the regimes in which they are cared for, even if it is not a residential setting, because parental consent is not enough; all I can say is that you should be in discussion with the education and social services authorities who place young people with you as to the order in which your young people should be prioritised.

      In my view, any young person who is objecting to the regime, and any one whose parents (or one parent) are objecting, should come first. The alternatives of the Mental Health Act and secure accommodation orders cannot be considered to be solutions that would be in the best interests of the people concerned.

      Hope that is helpful!

  11. Caroline

    In your Webinar this morning you stated that people are only eligible for an advocate where there is a care “revision” not a review. Yet the Care and Support Statutory Guidance (Chapter 7, providing guidance on Sections 67 and 68 of the Care Act 2014) very clearly states that an advocate must be arranged for assessments, care planning and care reviews. I think it is essential that this point is cleared up – LAs are already under-referring and a number of social care staff attended your webinar today who will happily take that back to their managers, resulting in even fewer referrals and fewer people getting the advocacy support they are entitled to.

    1. Belinda SchwehrBelinda Schwehr

      Thanks Caroline: I am going by the LAW, ie the Act and the Regulations, because the Guidance was written by people who were not lawyers, and review was a word that had never been defined before. One good reason for not following guidance – even statutory guidance which councils must comply with, unless there is a very good reason – is that it is wrong in law. If you look at s67 it specifically says revisions, here, and not reviews at all.

      67 Involvement in assessments, plans etc. – [the section that entitles a person to funded advocacy]
      (1) This section applies where a local authority is required by a relevant provision to involve an individual in its exercise of a function.

      (3) The relevant provisions are—
      (e) section 27(2)(b)(i) and (ii) (revising care and support plan); and
      (f) section 27(3)(b)(i) and (ii) (revising support plan);

      When one checks back to see what those specific sub-sections of s27 actually said, it is in fact true that they do not refer to review at all, but only to revisions. I did in fact check this before I said it in the webinar 🙂

      Hope that clears that up!

  12. K

    Hi Belinda,
    My brother is an adult with a diagnosis of Asperger’s Syndrome and associated mental health issues (anxiety, depression and fluctuating, at times extremely restrictive, OCD). He currently lives at home with our parents but due to their age and their own health issues it is not in the best interests of either my brother or my parents for him to continue to live there long term. He has no quality of life as he is in such a permanent state of low mood that he sees no future for himself, he does not take his medication and can at times be extremely challenging (verbally and physically threatening towards himself and others) and he sees his only purpose in life as to make our parents’ lives “as miserable as possible” as he views them to be responsible for his situation in life. He is deemed not to have a psychiatric disorder of any kind and has been discharged by mental health services.
    In the past he has received support from a number of agencies who, at the first sign of challenging behaviours, have served notice with immediate effect and he has spent long periods of time since childhood without appropriate support so as a result he does not trust professionals and does not engage. He is currently being supported by an autism specific service provider with two staff members visiting each week both who have witnessed incidents of aggression and have yet continued to attend. This is a very important factor as it means that my brother, whilst still not too keen on engaging directly with them, can slowly build trust in the knowledge that they will not judge him and withdraw their support when he needs it most.
    He has had a further Care Act assessment and is eligible for support and a supported living package is being considered for him within a service run by his current provider. Given the magnitude of a move for him and his complexities we feel as a family that it is vital that he continues with the same provider that he has begun to trust. In addition the Local Authority has confirmed that they do not currently have any alternative suitable vacancies for him.
    The problem we hit, as you may be able to predict, is that the rate for this provider is 92p per hour higher than the rate the LA commissions at and they are stating that my brother must pay the top-up out of his very limited benefits (which will more than likely be even more limited once he moves from DLA to PIP). I have queried why he would need to pay a top-up when he is assessed as requiring the care and the LA cannot provide it for the cheaper rate and they have just stated that it is fine for him to be supported by his current provider but despite being unable to provide an alternative they will still only pay the basic rate.
    I had questioned whether he could use the care element of his DLA and then offset this as ‘disability related expenditure’ against his assessed contribution to his care but have been told that they would not accept this as DRE as it would be his choice to pay it (my argument that it is not a choice when there is no alternative and it is also arguably in his best interests to maintain the current service provider was rejected).
    My question is where do we stand and is there any element of this that we can challenge?

    1. Belinda SchwehrBelinda Schwehr

      I think you stand in a very good position to challenge the stance of the council. The law about personal budgets is that they must be sufficient, and that is in the view of the council, subject to that view being defensible. Given the facts as you have presented them, which I assume the council knows about, I would have thought it was impossible for any right thinking respectable professional to ignore the aspect of the incipient trust of the current providers, as part of the obviously crucial question of how to meet the eligible assessed needs appropriately. In other words, that it cannot be seen as merely a want in this case. A council which sticks to a rate in the face of evidence to the contrary is making a basic public law mistake, and fettering its discretion as well. You have authority on your side: there is an old case called Avon where the entrenchment of the client, who was autistic, was an aspect of the need that had to be catered for. On the DRE point, too, you have authority – the case of Stockton (Stephenson) looked very carefully at DRE and underlined that it is not merely about a person’s expenditure on what the council would otherwise have to provide. If he spends the benefit on this sort of so-called choice he should insist on appealing any decision to charge him on as if he had not spent it on the footing that in so doing he’s saved the council the cost of the judicial review!

  13. Debbie Dalby

    Dear Belinda I am a director /care manager of a care home and recently had a referral to go and see a possible privately funded resident . This possible resident had no family or friends but was quite sure the local council would help him sort out his affairs . We told the discharge team that we could accept this gentleman after a financial assessment had been done . We then found he had been moved to another home as discharge was needed urgently from the hospital. I went to see this gentleman at this home and felt he had been let down badly by the local council he appeared to be a broken man and I was not surprised to hear he was going back to his home . I wrote a letter of complaint to the local authority saying I felt under the care act he should have had an advocacy to help him through this process but they replied saying as he had capacity he did not qualify for an advocate . I believe this is wrong and having read your article on independent advocacy I am sure he should have been entitled to an advocate could you confirm I am correct and the local authority should have helped this gentleman.

    1. Belinda SchwehrBelinda Schwehr

      Having no family or friends is not the test of a right to advocacy unfortunately. It is necessary for the authority to be satisfied that one has substantial difficulty engaging with the customer journey, or the processes, and the elaboration of what the council has to have regard to when considering that, makes it clear that it is to do with cognitive functioning, not just with it all being very confusing and difficult. So, unless he was obviously depressed to a significant degree so as to affect his understanding, retention, weighing or decision making, he would not have appeared to the discharge team to be having substantial difficulty. What he was entitled to, however, was Choice of Accommodation if he was under the threshold or advice and information if he was above threshold about his options, and may have a legitimate grievance in those contexts. I hope this is helpful and you are welcome to pass the information on to the gentleman in question.

      1. Debbie Dalby

        Thank you so much for your reply . I will pass on your comments to this gentleman although I think he agreed to the change of accommodation and was not given any other options but like most people of his generation ( 80 + ) he would not want to rock the boat or cause a fuss . Thank you again for your swift reply it is nice to know there is someone out there willing to help and provide unbiased information .

  14. Concerned

    Dear Belinda
    Can you please clarify a query regarding deprivation of liberty in supported living. We have a relative who was encouraged by a social services care manager to move from her own home into supported living. No MCA was completed and whilst our relative wants to live there we question whether she understands and therefore has the capacity to agree to the following:
    She cannot provide access and this is provided by staff, her activities are limited to staff availability. Finances and where to shop are governed by the staff. Visits are recorded and CCTV is in use.
    Doctors appointments are being made without reference to her extended family and despite having phone calls from our relative with assistance to phone all calls have now ceased.

    Concerned.

    1. Belinda SchwehrBelinda Schwehr

      It’s not really possible for me to say, without really going into a lot more background and I am loath to make an assertion about a matter of law in a public forum without being told more. But I will say what I think is clear: if someone has moved into a tenancy on the suggestion of a social services staff member, the tenancy ought to have been sorted out – and that means either your relative signed it or the council got a deputy or single order arranged – and that would have meant assessing capacity to understand THAT. If in doubt, and after Cheshire West had been decided, any local authority should have been thinking about the real capacity of persons with impaired cognitive skills to understand what the features of the regime into which they were moving, were going to be, or else organise a welfare order to provide the scrutiny for what would be deprivation of liberty outside of a DoL Safeguards setting. If someone has moved into supported living and is merely acquiescing with the house rules, then they haven’t consented, and IF the regime means that they are not in effect free to leave and would not be handed over to someone who came to remove them from the scrutiny of the staff for an appreciable length of time (since the place is the person’s own home anyway) and/or for good, then it amounts to deprivation of liberty.

      I don’t think that one’s activities being limited to staff availability is an issue – because it is for everyone who is not privately funded. If you mean she cannot leave unescorted, it might be that it is because of physical needs, not on account of a decision not to LET her go out unescorted. Again, resources will always be tight – the care plan should provide for adequate activities but it is a difficult question how much fun is enough, as I am sure you understand. Finances being managed by a provider has presumably been organised through appointeeship, and is not determinative of deprivation of liberty. Where to shop might mean where she shops and that’s part of group activities – or it might mean where her shopping is obtained from, and I can’t tell whose job that is in the care plan, or what she thinks about all of that.

      I do think that doctor’s appointments should involve best interests consultation but not if they are routine and relatives HAVE been consulted at some stage.

      What is not able to be discerned from your enquiry is what you mean by ‘cannot provide access’ – does this mean the doors are locked by means she is not able physically or mentally to manage?

      I cam’t tell what you mean by Visits are recorded – all visits? or just visits by some people? If the latter, then it will be on account of HISTORY – the past and who’s done what and when and why – which can’t be gone into by way of this sort of enquiry, I have to say, but of which I know nothing. The fact that CCTV is in use, is not determinative: it would depend on the extent of what is being recorded, and why. It’s not possible to tell what the history is behind the cessation of phone calls from your relative: all I can say is that it doesn’t sound good and that any council’s safeguarding entry point should be prepared to hustle to obtain the reasons and justification for you behind these changes to the care profile. In the interests of transparency and fairness you are owed at least that, I can assure you.

      I am sorry that I cannot be more specific but I encourage you to seek an explanation from the council citing your right to be seen as a best interests consultee, consider asking for a review, in which you assert that you should be involved, ask about a welfare order in case the position is one of unscrutinised unauthorised deprivation of liberty, and complain if you are not able to take things forwards.

  15. John Cooper

    Hi Belinda I attended Achieving Compliance with the Care Act in Manchester on the 29th of June. I enjoyed the day and the presentation you delivered was excellent, thank you.
    I currently work for Sefton Pensioners Advocacy, and I am supporting a couple of clients who reside at a nursing home for individuals who have long term mental health problems. Both clients have resided for over fifteen years at this home and are funded through s117 aftercare by Sefton Council, the nursing element is funded by Sefton Clinical Commissioning Group. Sefton pay the full cost and invoice Sefton CCG for the nursing element. In January of this year after an assessment the CCG decided to stop funding the nursing element of the s117, this has left a short fall of around £130.00. At present Sefton are continuing to to pay this shortfall as they had not been informed of the reduction in funding. Both Clients when assessed had not been informed the potential outcome of the assessment may put their placement in jeopardy, can you please advise as how to challenge.

    1. Belinda SchwehrBelinda Schwehr

      Here we go:

      Whilst it is true that s117 entitlement is a status that means that the client does not have to pay, and also that the council and NHS have a joint duty to assess, plan appropriate care and commission whatever unmet need there might be, related to aftercare, the law about paying for registered nurse nursing was clear, and is still supposed to be clear and unchanged: no council has the power to do it. The NHS partner in this joint duty is not able to use its own misunderstanding of the obligation of the NHS to pay for all registered nurse nursing as a justification for withdrawing from paying – and it is the occupation of the clients IN THE NURSING HOME that proves beyond any doubt that they are GETTING at least some registered nurse nursing – through the registered nurse manager if through no other route. I think that that means that regardless of who is making the contract with the home, and regardless of the mechanism by which the NHS’s contribution to the overall cost is recouped by the Local Authority, and regardless of what the person is actually getting, and regardless of the local agreement as to which partner should pay for what, and in what circumstances, it is not lawful for the NHS to have ceased to pay for the nursing element.

      So, what I would do in those circumstances is to point this out to the local authority so that they can benefit from the legal analysis and pass it on to their ‘partner’ for consideration by proper lawyers. Whatever the legal bottom line (and I am not 100% sure of the above, just 95% sure!) no NHS body should unilaterally withdraw from a joint duty – and their governance officer and chief executive needs to be held to account for that. So if no progress is made, a referral to the scrutiny committee and the health and wellbeing board would be in order, from the council or from yourselves.

      Hope this helps!

  16. Trevor

    Hi Belinda

    The current drive is for implementation of the ‘discharge to assess’ model from acute hospitals by local health and social care providers. In many cases this will entail transfer to a residential setting which has been commissioned by either the local authority, or Health, or both. Some of the people involved in transfer will have cognitive impairment and would previously have required an assessment of their mental capacity relating to that decision and where applicable a Best Interests decision if found to lack sufficient capacity before they could be transferred. That assessment would often be carried out by social workers carrying out their responsibilities under both the Care Act and the MCA.
    Along with the drive to ‘discharge to assess’ there is a drive toward a ‘trusted assessor’ role model whereby a wide range of staff in the hospital would take on the role of discharge planning, including transfer of patients to the discharge to assess beds out of the hospital.
    Is it your view that the requirements of the MCA don’t apply to such transfers of care or does it depend upon which organization commissions the discharge to assess beds? Is it acceptable for a lower level of MCA process to be applied if not in order to expedite a discharge?

    1. Belinda SchwehrBelinda Schwehr

      Feeling a bit faint here – but taking deep breaths.
      To an old fashioned person like me, the idea that you assess AFTER you discharge someone from hospital is fraught with difficulty. The whole idea of assessment is to come to a conclusion about whether someone is eg fit for discharge, eg entitled to CHC, eg eligible for social care and eg, what do they actually NEED to be in place.
      But in principle, so long as no irrevocable outcomes arise from putting someone elsewhere FOR assessment, I can get my head round the idea that it might not be a bad thing. The National Framework has long since envisaged that people who have been positively checklisted or otherwise seen as likely to merit being put through the DST for CHC purposes, ought not to suffer by being kept in hospital just because the DST has not been arranged as yet: the NF INSISTS that in that situation the INTERIM BED is paid for by the NHS. The logic of this is simple: once you are, as an agency of the State, responsible for someone, you can’t get shot of that legal responsibility unless or until the process for deciding whether it ought to be terminated has been gone through.

      Applying that to social care responsibilities, if someone is NOT awaiting a DST, and is clearly going to be eligible for some sort of placement, then an intensive re-ablement bed can only be a good idea for all concerned – to maximise ongoing recovery and increased independence. The LA should be paying, because it is the agency that will benefit. As long as no decision has been made about eligibility, the client ought not to be charged, given the regulations make it clear that this might be 6 weeks worth of package.
      It could work similarly for home care packages as well.

      The question asks whether an MCA assessment should be done before such transfers. I do not think so, for this reason: the MCA assessment would ordinarily be done when a decision has been made to place someone for the long term in a setting which was not their home, and which would carry a charge – and to which proposal, no consent or refusal could be obtained, due to perceived lack of capacity. It was only a view about incapacity and best interests decision making that could clothe THE MOVER with MCA legal protection under section 5. Yet in the above examples, there is no abandonment of responsibility or sloughing off of the person onto an agency with power to charge. In one situation it is as if the person is being moved from one ward to another ward, all within the care of the NHS, which is free; and in the other, the local authority is treating the transfer as an interim holding position, pending a decision as to eligibility for a longer term package after a period of settling and hopefully recuperation, for which there can be no charge.

      So, I do not think any MCA assessment needs to be done, until a legal decision as to what to offer, and then whether there is capacity to refuse it or consent to it, so as to necessitate a touching of the person in order to implement the offer being made.

      I do not think it matters who commissions the package as long as whoever is buying the bed is the delegate or commissioning agent of the organisation assumed to be responsible for the person at the time of the transfer.

  17. James

    Hi Belinda,
    Can you tell me whether a local authority is allowed to commission accommodation other than specified accommodation? Also, if replacement care was required and that care was a temporary placement in accommodation, could that accommodation be of a non-specified type and subject to a financial assessment of the cared-for, could a charge be made for both the accommodation and the care costs?
    Many thanks
    James

    1. Belinda SchwehrBelinda Schwehr

      Hello there, sorry for the delay.
      A local authority is allowed to commission any type of accommodation other than hospital accommodation where NHS services are what is being delivered.
      So a council can organise shelter or a roof for anyone, and put them in it, under the Care Act. If that accommodation is not registered accommodation however, the provider cannot provide personal care TOGETHER WITH that accommodation, without committing a registration offence. One supposed exception to that is the form of Shared Lives arrangement where the Shared Lives purchaser actually contracts with the Shared Lives Carer for an integrated package of personal care together with the right to occupy the Carer’s house – that is supposedly exempt from registration as a care home as long as the shared lives purchasing organisation is registered as the latter type of registrable entity. It is my experience that the Shared Lives community treats the exemption, in practice, as extending to exemption from registering as a provider of personal care, as well, (with the tacit approval of the CQC) in the much more common kind of arrangement where the occupant has a licence or tenancy with the Carer, paid for through HB, and the Shared Lives organisation merely buys care or a personal care nature.
      Your second question is not quite clear to me but here goes: whenever a council PLACES a person into accommodation, it can charge for the package, including the care costs as well as the accommodation, but must do so according to the Care Act and Guidance (ie not charging more than it costs the council to provide for the meeting of needs).

      When the purpose is respite, the council is advised by the charging guidance to charge (if at all) for the package as if the person were not in a care home (ie ignore their house etc).

      However, if the accommodation were not specified, but the council was providing it, either through owning it or leasing it, AND the council provided personal care to the person in that accommodation, by paying for it to be delivered, in an integrated package, albeit for a short period, the council would be committing a registration offence, because the provision of personal care together with accommodation in an unregistered setting IS a criminal offence. This happens quite a lot but as far as I am aware, the CQC does not regard it as appropriate to prosecute. Hope that helps?

  18. Confused Social Worker

    Hi Belinda,

    I am an Adults Social Worker, and I have a Safeguarding query.

    I am allocated a number of Safeguarding Enquiries of adults who are deceased. It is suspected the adults at risk died as a result of neglect at various Care Homes. I have been advised by the Safeguarding Lead that I need to undertake the Safeguarding Strategy and Enquiry. I would need to then complete a SAR referral form following the completion of the Enquiry, for consideration by the SAB.

    Having read the PAN London guidance, I understood with such cases, including one of mine which is being investigated by the Poilice, that it should automatically go to the SAB for consideration for Review.
    I would really appreciate some clarity on this!

    Many thanks.

    1. Belinda SchwehrBelinda Schwehr

      Hi there

      I can only direct you to s44 of the Care Act:

      Safeguarding adults reviews

      (1) An SAB MUST arrange for there to be a review of a case involving an adult in its area with needs for care and support (whether or not the local authority has been meeting any of those needs) if—

      (a) there is reasonable cause for concern about how the SAB, members of it or other persons with relevant functions worked together to safeguard the adult, and

      (b) condition 1 or 2 is met.

      (2) Condition 1 is met if—

      (a) the adult has died, and

      (b) the SAB knows or suspects that the death resulted from abuse or neglect (whether or not it knew about or suspected the abuse or neglect before the adult died).

      So, my reading of this is that if a death has occurred, believed to be related to negligence, there is no need for a SAB review UNLESS there is also a concern that the SAB, its members or other people with relevant functions worked together to safeguard the person. Members of the SAB would be the CCG, or the hospital Trust, for instance, but not care homes. The CCG may have been the commissioner of an element of the care, if the home in question was a nursing home (registered nurse nursing input). But otherwise, the local authority would have been the commissioner; its care planning and review staff would have been theoretically responsible for ongoing scrutiny of the individuals’ well-being and the working or otherwise of the care plans (regardless of whether the cases were open or closed). The undecided point is who are those OTHER persons with ‘relevant functions’? There is no interpretation provision covering this word. It’s not associated with the definition of a relevant ‘partner’ for the co-operation section.

      To my mind there is no CLEAR ABSOLUTE duty to have a SAR, just because someone has died in a care home, if you read the above provision carefully. But assuming that the persons in question were local authority or LA and part NHS funded people in care homes, I can see that the SAB MIGHT take the view that they MUST hold a SAR, when the client died, if there was at least some awareness of concerns, such that it could be said the LA or other member could have done something better than it in fact did, through commissioning or monitoring or ordering a review or a removal of the person sooner.

      That is probably why your local authority is asking you to investigate so that the SAB can consider what to do, and whether a duty has been triggered or not. That’s the best I can do for now, so I hope it helps.

  19. Claudia

    Hello Belinda,

    A client recently admitted themselves to a nursing home on a privately funded basis. The privately owned property has not been sold. The clients finances have dropped to below £23,250. The client has approached the local authority to seek assistance with funding the nursing home fees and was told that they are not entitled to the 12 week propert disregard. The local authority send this information about the 12 week disregard to the client ( from the Care Act 2014?) a key aim of the charging framework is to prevent people being forced to sell their home at a time of crisis. The regulations under the Care Act 2014 therefore create a space for people to make decisions as to how to meet their contribution to the cost of their eligible care needs. A LA must therefore disregard the value of a person’s main or only home when the value of their non- housing assets is below the upper limit for 12 weeks in the following circumstances: a) when they first enter a care home as a permanent resident or b) when the property disregard other than the 12 week disregard unexpectedly ends because the qualifying relative has died or moved into a care home.

    It appears that the LA are declining to assist in funding and grant an application of the 12 week property disregard, because this is not the client’s first entry to a care home by virtue of the fact that the client is already in the care home. The client has applied for deferred payment, but this was declined, too.

    My question is: is the LA acting lawfully? There are situations where clients may have say £30,000 in liquid assets and a property to sell. They enter a care home on a self funded basis, but then are likely to miss out on the 12 week property disregard according to above Care Act rule?

    1. Belinda SchwehrBelinda Schwehr

      The Care Act changed the way the 12-week property disregard operated. Previously, the disregard applied to a property for the first 12-weeks of local
      authority supported care. This included for people who had been in a care home for some time as self-funders.

      Under the Care Act the disregard only applies to a permanent resident’s main or only home for the first 12-weeks in a care home. A person who has been in a care home for some time will, therefore, no longer automatically be entitled to have their home disregarded.

      However, self-funders will still be entitled to the 12-week property disregard in certain circumstance. These are as follows:

      – Where a property disregard other than the 12-week property disregard ends unexpectedly.
      – In addition, local authorities have discretion to apply a 12-week property disregard where there is an unexpected change in the resident’s financial
      circumstances.

      So taking oneself into care through one’s own contractual arrangements makes it far less likely that one will get the disregard. So the answer to your question is Yes, they will more likely than not, miss out on it.

      The question relating to refusing a deferred payment is not one I can answer because one is only entitled to a deferred payment in a loan to value ratio situation where the equity is sufficient – in other words, your client would be entitled to reasons, but the validity of those is what you would then have to consider.

  20. Claudia

    Hello Belinda,
    I have another question about mental capacity assessment (MCA):
    I retired from working as a care manager, but returned to working in the hospital setting for the hospital trust in the discharge team. We manage referrals for clients, who are in a position to fund their own care. However, some of these clients lack insight to their care needs and don’t have mental capacity. I often encounter situations where there is a difference of opinion between health/social care professionals and relatives and a best interest meeting would need to be held in these circumstances. Often relatives don’t have lasting power of attorney for welfare and finances.
    My question is: who would be the best interest decision maker in these situations? The local authority don’t get involved with self funded clients.

    1. Belinda SchwehrBelinda Schwehr

      The law is absolutely crystal clear on this one: where a person lacks mental capacity to make the arrangements needed for their care, and has no authorised person to do it for them under the MCA (ie no attorney or deputy) and nobody otherwise in a position to do it for them (ie in a relative’s own name, paying as principal) the COUNCIL IS OBLIGED TO DO IT by virtue of s18(4) of the Care Act. In the case of a person with more than the threshold in assets, the person would be a full cost payer. So the discharge team MUST get the LA to do the right thing.

  21. Anne Provan

    Hi Belinda

    Our son is a severely physically disabled adult with CP. He has very limited verbal communication. He was offered a supported living bungalow by the local county council, removing him from a residential care home. After an assessment of needs he was allocated 24/7 care, this was to cover care and wellbeing hours, enabling him to participate in disability forums, sports events and give him a community presence.

    At the last review of he was informed verbally that no changes were going to be made to his staff. To cover his needs he has always requested that the results from these reviews be sent to him in writing- this doesn’t happen.

    The council have now informed him that they are proposing to remove 6 hours a day (in the afternoon) of his support. This will mean he will no longer be able to participate in the many activities which he currently undertakes. There will be “float” staff available to help with his basic needs (called via a push button alarm system), although they will be servicing 8 bungalows split between two sites.

    Prior to these proposed changes being suggested he has had no formal reassessment.

    Is this generally compliant with the Care Act, or can he take it further?

    Thank you,

    Anne.
    .

    .

    1. Belinda SchwehrBelinda Schwehr

      Hi Anne – some ambiguity here which makes it difficult to make a judgement:

      At the last review of he was informed verbally that no changes were going to be made to his staff. To cover his needs he has always requested that the results from these reviews be sent to him in writing- this doesn’t happen.

      That might be a provider’s review, or the council’s review. You don’t say whether the package is council commissioned or council provided?
      Mind you, whoever it was who gave him verbal reassurance, it doesn’t mean that they would not ever be able to renege on what had been said: even if it was the council, they can’t often be HELD legally to expectations that they have given rise to, unfair though that naturally seems.

      A proposal to remove 6 hours of support which is currently provided to him is a quarter of his support. That is surprising enough to be challengable, unless there is a good explanation of either how this won’t really affect him (difficult to envisage!) or as to how his dependency has actually lessened. I think that you probably grasp that just because he’s been able to do x, y or z with his hours, doesn’t mean that he can do those things forever, but you are right to be concerned that he has had no reassessment. If he has had nothing that could conceivably be called a re-assessment, then the proposal is not Care Act compliant – see s27 of the Care Act. If I were you I would point this out to the council if a forceful but upbeat way so as to ‘help’ it not to bring legal risk upon itself! Go all the way to the top and to the Monitoring Officer, the head lawyer in the legal department, who has a duty to put right this sort of crassness.

  22. Kevin Williams

    Hi Belinda – I have a question about ordinary residence:

    Client A was placed in a residential care home in LA area X by Social Care in Area Y in January 2014, following the death of his mother and when his own care needs became apparent. This is a specialist placement for rehab for people with Brain Injury in the area where his remaining family live, and is a service not available in Area Y.

    Client A has a significant Brain Injury and associated Learning Disability (the injury was prior to his 18th Birthday). He was placed by the LD team of area Y, with consultation with Client A’s family but no formal Mental Capacity or Best Interest process.

    When Client A’s financial circumstances changed he became a self-funder by default (as he was left money from his parent’s estate) from October 2015 until May 2016. However he is not able to effectively manage his finances, and this is managed by his family who have EPA. His family alerted Area Y when Client A’s funds were nearing the threshold of £23,250, asking for re-assessment and that area Y restart funding.

    Area Y refused, stating that as Client A had been self funding he had “chosen” to stay in the accommodation and should therefore be funded by the area were the service is, area X. Due to this the care provider has now not been paid by either authority for 9 months, and there is concern about continuity of placement as the service is receiving no payments for Client A’s ongoing care.

    I have looked through the Care act (section 39) and it seems to me that this is a case where “deeming” from the original placing authority (area Y), as Client A has made no choice but has simply stayed where he had been placed, with funding administered by his family.

    Please could you advise?

    1. Belinda SchwehrBelinda Schwehr

      Hello there.

      Yes this is easy, once you know the rules.

      Jan 2014 was pre Care Act coming into force -so the old law applies. The law under the National Assistance Act was always that if a person is placed in a care home by a council, out of area, they are still deemed to be O/R with the placing area. If the person for whatever reason becomes self funding, the council either NEEDS to terminate the placement if there is a statutory agent willing to take over (as an EPA was always empowered to do) or carry on contracting at the LA rate, for the person as an LA client, if the client lacks capacity and the statutory agent isn’t keen to do it. This saves money for the incapax client for the obvious reason that the LA rate is lower due to the LA’s abuse of the market position that it enjoys, and the assumption that homes will use private clients’ fees to subsidise those from the council.

      The crucial bit that you have left out of the facts is what happened when he became a self funder. It is clearly established that IF the council terminates the contract that it has made, then the person’s o/r shifts; whereas if they don’t bother to lean on the EPA to take over, and DON’T terminate the contract then the original placing council remains liable and the deeming continues. You’ve just said that the EPA pressed the council to RESTART funding, from which I am inferring that it did stop. But that doesn’t clarify whether the council terminated its actual contract….it might be that they continued, and the EPA simply paid full cost. So no answers are possible are possible, there, I am afraid. In a case similar to yours, where the care home was left unpaid, the home sued the resident’s estate, and the defence was that it was the council’s liability still continuing, because they had never terminated or done anything to bring their statutory liability for an incapax person to an end. The case is called ASTER and the council was Brent. But in your case the EPA may well have been prevailed upon to take over contractual responsibility. In that case, it is the second council that is now liable.

  23. Trevor

    Hello, I have a question about the Care Act. The home local authority submitted an advocacy referral for Mrs A to support her through assessment. Unfortunately she became physically unwell and was admitted to a hospital in the next district, which falls under a different local authority and a different advocacy provider. The advocate has not yet met Mrs X.

    Who is now responsible for Mrs X? Which local authority and which advocacy service is responsible for supporting the client? Would it be the original advocate from her home area? And who is responsible for submitting a new referral – the home local authority or the new, temporary one?

    Thanks.

    1. Belinda SchwehrBelinda Schwehr

      Thanks for your question! Being admitted to hospital makes no difference to one’s ordinary residence. The assessment that was about to be done should be recommenced and the advocacy referral that was made should be allocated – nothing has changed to affect the first authority’s responsibility. If the hospital discharge arrangements from the hospital are customarily done by the social workers or care management staff from the hospital area local authority, they would be doing Care Act assessment as agents of the first authority in any event. These arrangements MIGHT extend by agreement between the two councils to the latter one sorting out advocacy, more money, love or reciprocation, who knows – but in relation to the actual rights of the patient/customer, to cracking on with the now overdue assessment, her rights are as against the first council.

  24. Pam

    Dear Belinda,

    For a number of years my mother in law has received a care package from the local authority, which included a home care package and a Telecare service. Following a deterioration in her condition the NHS has agreed to fund the support she needs under what they refer to as continuing healthcare as her needs primarily relate to her health. However, they have not agreed to fund the Telecare service as part of her package of support and the local authority has ceased their funding of Telecare on the basis that the NHS is required to meet the full cost of her care. This has effectively left a gap as neither the NHS nor the local authority has agreed to pay the ongoing cost of Telecare despite it helping to meet her needs as well as providing support and peace of mind to me and my husband as her carers. I feel stuck about about where the responsibility for this lies and under which legislation that I could possibly refer them to. I would be really grateful if you could point me in the right direction.

    Many thanks,

    Pam

    1. Belinda SchwehrBelinda Schwehr

      Well doesn’t this sort of ridiculous argument between health and social care perfectly point up what is wrong with the system?

      First and foremost you need to check who was actually paying for the Telecare service. Lots of apparently local authority arranged telecare services are not in fact local authority arranged! They may have referred your mother in law to a service and she may have paid a one off cost, and then been paying the ongoing service charges and been allowed to call that disability related expenditure in her charging assessment. Some councils provide the equipment for free, as they are supposed to do, if they provide it all, but do not treat the ongoing service as free, and charge the person back for it, depending on their means. Alternatively, she may be living in a housing association where the telecare equipment and ongoing service is part of her tenancy based service charges that she pays with her rent. I am just saying: you have to check.

      Assuming you are right, and assuming that it is agreed that she has CHC status, and is not merely getting a split package (the reference to primary health need does indeed suggest that she has been given CHC status) you would normally expect the CCG (the NHS) to take over all personal and social care costs. However, they might simply be saying that she does not NEED telecare because for instance it is now of no use to her, if she has deteriorated?

      A local authority is entitled to cease paying for things when a person is awarded CHC status, but good practice should not see the unilateral cessation of existing service funding without certainty as to whether the incoming responsible commissioner agrees that the service is needed in the first place.

      The answer is that it is POSSIBLE that nobody is responsible for it. Putting that another way, there is no obvious answer to your question without a bit more probing as to what use your relative can feasibly now get from the particular system that was previously made available to her.

      regards Belinda

  25. Paul Alexander

    Hi Belinda

    The Local Council is trying to impose a Support Plan which significantly fails to meet wife’s assessed eligible needs and to pay me a maximum Carer’s Personal Budget of £20 per week, irrespective of whether it’s sufficient to meet my assessed eligible needs. Have got nowhere over several weeks complaining to Social Worker. To contact Monitoring Officer should I be direct and state that Social Worker is failing to fulfil Council’s statutory duties under the Care Act 2014 by failing to meet wife’s assessed eligible needs, thereby placing her at significant risk of harm and failing to ensure her wellbeing as well as offering a maximum Carer’s Personal Budget which fails to meet assessed eligible needs or should I be less direct, saying there must be a misunderstanding and it appears that Social Worker is unwittingly placing the council at risk of breaching the Care Act 2014, asking Monitoring Officer to ensure Social Worker complies with their statutory duties? Will it make any difference which approach to use?
    Many thanks.
    Paul

    1. Belinda SchwehrBelinda Schwehr

      I don’t think it matters how you say it – but you need to explain why it is a breach of the law. Otherwise it’s just your opinion that they are not meeting the needs. So, you need to say more explicitly whether the needs have been under-assessed, in relation to the evidence, or that the amount allocated for meeting the needs is not conceivably or defensibly sufficient to meet the needs which have been assessed; and/or alternatively that the council has refused to state its reasons for being satisfied that the amount allocated is sufficient, by reference to any evidence basis that a rational well informed council could be satisfied with. On the point of the Carer’s maximum, that point is an extremely important legal question that most councils are avoiding being complained about, so you should be able to get them to change their minds. The legal point is this: HOW SHOULD THE AMOUNT of a carer’s budget be calculated? If a carer is owed an individually enforceable duty, in relation to a given domain in the carer’s eligibility regulations, or to general psychological or physical deterioration, and the money is supposed to cover off the problem, logic says the amount needs to be assessed by reference to the likely cost of solving the most pressing problem. That is what the law has always said about budgets for customers, at least. An approach that said that it whatever it takes to keep the carer carrying on caring, and saving the money for the council, would be an alternative that would be strategically rational. But I know councils who simply pay what it takes as long as it saves more money than it would otherwise cost if the carer withdrew from caring…. One thing is clear though: I would be prepared to bet that a council cannot lawfully apply a maximum arbitrary sum to meet assessed eligible carers’ needs – it smacks of having taken the last round of Carers’ money and dividing it between the number of carers x 10, in anticipation of a rush, and that all makes assessing the carer’s own needs pretty well pointless.

      So you need to say this to the Monitoring Officer: having a maximum for carer’s budgets is neither transparent, rational or sufficient, and would appear to be a fetter on the staff’s discretion to manage the task of reducing significant impact on carers, as a result of the care that they are giving. The Monitoring Officer is obliged to explain why they think that their policy is lawful, and they might change their mind at that point, rather than be judicially reviewed.

      Hope this is helpful.

      1. Paul Alexander

        Belinda
        I cannot thank you enough for taking the time to respond in such detail and so promptly. You’ve restored my faith in human kindness! My wife has substantial assessed eligible needs but the Social Worker insists in a Support Plan which offers support on only 3 days. My need to return to work falls on deaf ears and I can’t if my wife doesn’t receive support 5 days per week. Without this she is placed at significant risk of harm – as documented by the Social Worker in her assessment. There can be no question the Support Plan is unlawful.

        Keep up the good work and I will keep up the fight!
        Paul

  26. Ken Martin

    Hi Belinda

    Firstly, what a fantastic website and blog!

    I work as an ICAA, IMCA and Dols RPR. My team have really struggled to fully understand the ICAA exception Reg 4 (3) Care and Support (Independent Advocacy) Regulations :-

    (3) The circumstances specified in this paragraph are that—
    (a) the exercise of the assessment or planning function in relation to the individual is likely to
    result in an NHS body making arrangements for the provision to that individual of
    accommodation in—
    (i) a hospital for a period of 28 days or more; or
    (ii) a care home for a period of 8 weeks or more; and
    (b) the local authority is satisfied that it would be in the best interests of the individual to
    make arrangements in relation to that individual under section 67(2) of the Act.

    In what circumstances is it envisaged that this exception is relevant? Is it the case of someone being assessed as eligible for CHC funding, or simply where there is a jointly funded package of care?

    The later it is clear as to ICAA’s role, responsibilities and powers to challenge as these defined within the act and regulations, which make reference to the LA.

    However,If it is in relation to CHC funded provision, the role of the LA is limited as Health are responsible for care planning, although the social worker may continue to be involved but not always.

    What regard do Health have to the law in this area, for example, do Health have the same responsibility to respond to an ICAA report, if not, what is the point of this exception?

    I hope you can help clarify this for us, as it is something we have struggled to fully understand.

    Kind regards

    Ken Martin

    1. Belinda SchwehrBelinda Schwehr

      I struggle with it too Ken and here’s my thinking.
      This is Care Act independent advocacy, not the same as the obligation to secure IMCA advocacy for when an NHS body’s obligation as the responsible authority to arrange for it is in play. My thinking is therefore that it must relate to local authority assessment in cases where the NHS might end up doing long term institutional care home placement – which we know will generally be a full blown CHC outcome. The DST in a CHC process is not the assessment – it’s mapping PRIOR assessments on to the DST for the administrative purpose of determining funding status. So, logically, the assessment referred to here must be any LA assessment for a person identified as someone who could clearly end up as a CHC patient – and that chimes with the category of anyone who has been checklisted by the LA as part and parcel of first contact, or a preliminary assessment under the Care Act. I don’t think that the NHS ever makes the accommodation arrangement in a joint package of care that is not a CHC status case; they’d be providing for any “clearly above and beyond LA powers” HEALTH needs, and the LA would be making the accommodation arrangement, in my view.

      Hope that helps – I think it refers to assessment or care planning so as to cover reviews of a person’s existing status on CHC where the assumption is that the LA that would otherwise have to take back the person’s care if the status is lost, would be involved.

      I know it doesn’t make for a level playing field but I hope you can follow my reasoning. I think it would have been better to just use the Care Act to amend the triggers in the MCA for an IMCA, for both the LA and the NHS, to extend to an advocate for all pre DST assessment for CHC status, personally….

  27. Spartacus

    needs are complex, however, guidance does not state that his needs can only be met by an Autism Specialist. I refer to the Statutory guidance for Local Authorities and NHS organisations to support implementation of the Adult Autism Strategy (2015) which states the following:-

    “People with autism should be assessed, treated and cared for in the community wherever possible… Having complex needs does not mean people should go into long term inpatient, residential care or assessment and treatment centres inappropriately or indefinitely”.

    Hi Belinda,

    My family member who has severe autism (non verbal) has just become jointly funded LA/CCG 60/40-until recently was CHC funded-. The LA have agreed to move X from a generic residential care home that the family have been raising concerns about for four years and following unannounced visits to the home the Social Worker has observed poor care & has concerns. The problem is we are asking for an Autism Specialist provider as this is the only way his complex needs of sensory hypersensitivity arising from the autism can be met-an independent report states his needs are not currently being met- and the LA are ferociously resisting it QUOTING THE GUIDANCE AT THE HEAD OF THIS COMMENT as their authority. An autism specialist provider has offered a place, out of area, it’s a residential home in a normal residential street in a town well served with facilities ie non- institutional in a community setting.

    So, we have argued “parity of esteem”- specialised condition requires specialised practionners-as in physical conditions. Could such a challenge of discrimination be the subject of a Judicial Review to get this established as of right? Or would some other redress be appropriate?. This point has been argued by us for YEARS with both CCG and LA resisting because of a) expense b) the historical backwardness of this locality in developing Autism Provision-they always placed people out of county and are now under pressure to bring back to home locality but without any specialist provision having been developed. Other LAs have Autism Service Models/Specifications. The commissioning is being done on a “PCP” and turned up one supported living empty property with no established service.

    Many, many thanks for your time,

    Spartacus

    1. Belinda SchwehrBelinda Schwehr

      Hi there

      I don’t think that a judicial review would establish that to be competent appropriate providers of care and support, one needs to be a specialist in a condition like autism. I agree it would be BETTER if all such care and support was specialist, but there is no definition of specialist, and no benchmark by which to measure it. Not all physical conditions have required specialist providers: dementia is a classic example. Most providers have now claimed competence by going on a short course on autism management, and of course have undercut those specialists who can command a much higher fee. If you wanted to try challenging a policy of non provision of specialist care, for a given profile of needs, you would have to show that most such clients are being differently provided for, and that is not easy, since councils have positively CHOSEN not to commission or develop these services, on the footing, no doubt that if they don’t exist, they don’t have to pay for them. I don’t think that you could contend it was disability discrimination – but I am not an expert in the legal framework for Autism provision, it being an unusual disability in having its own Act of Parliament dedicated to it.

      I am not suggesting that you cannot argue that the alternative provision to the setting you prefer is not suitable. But I would not get stuck on the issue of specialist vs non specialist, in my view. I would look at the range of activities, the behaviour management qualifications, the level of safeguarding referrals, and mount a challenge on the specifics rather than the labels.

      regards

      Belinda

  28. Martin

    Our local authority (Enfield) is consulting on a change to its Adult Social Care Charging Policy which will include any night time care element of AA or DLA, as well as all of any PIP benefit, as income, even if the L.A. is not providing night time care. We are aware of the Carton-Coventry ruling in 2000. Is this still good law in the light of the fact that the 2014 Care Act has superseded Fairer Charging? We are also aware of the DOH FAQ 203 which states that services users should not be made worse off by changes to charging policies post Care Act. What is your view on this change of policy which Enfield is proposing? If the only way of dealing with this is via DRE – how can unpaid carers evidence all the (unppaid) time they spend doing night care as DRE? Sorry that there are several questions here!

    1. Belinda SchwehrBelinda Schwehr

      I have no doubt whatsoever that the principle of fairness – part of our common law, and therefore not affected by the Care Act, unless it has explicitly overruled the principle – still applies: see here what the judge said in the Coventry case about FAILURE TO CONSULT – but I note that Enfield IS consulting. Therefore the question is not whether the principle of fairness applies but whether night time income can be taken into account for day time services is lawful – and on that, at the very end of the case, the Coventry judge said no, but without much reasoning. Fairer Charging has been superseded; all charging is now discretionary, and I don’t think that the government’s FAQ 203 would be lent much weight or give rise to a legitimate expectation that policies would never change for the meaner! BUT it is at least arguable that it is unlawful and not merely unfair, to take night time benefits into account for day time care – and REGARDLESS of what is being done with the money. See below.

      I think that if an informal carer was actually being paid to do night time care, that would DEFINITELY make it DRE – and the carer would not thereby lose carer status simply by being paid for SOME of their input – but if it is not paid, provably, it is not then likely to be accepted as DRE. It would more likely be assumed to be free care as supplied by a relative out of affection and just being there.

      “These were indeed fundamental changes to the charging structure. In my view, fairness required that
      there should be proper consultation before they were introduced, and there was none. The changes adopted
      are more than a mere uprating: they constitute changes to the policy, and to the way in which the defendants
      charged for their services. The practical effect of these changes is graphically illustrated in the before and
      after examples contained in the claimants’ bundle of documents. To people in the claimants’ position, they
      represent not only significant, but also substantial, changes. To them, these were not mere adjustments to
      the charges. They were fundamental changes. They were introduced unfairly, without the consultations
      which the claimants could justifiably, reasonably or legitimately have expected. There is no proper or
      adequate explanation from the defendants to explain the failure to consult. Moreover, it was irrational, unlawful and unfair for the defendants to apply a new charging policy which treated as income available for day care sums of DLA paid in respect of night care.

      Try debating that with the Monitoring Officer in Enfield, the Adult Services Director and the Cabinet Member for social care.

      1. Martin

        Thanks very much, Belinda. This is very helpful and makes it clear how we should approach our challenge. We are being told that many other authorities are doing this (taking the night care element of DLA and AA when no night care is being provided) without legal challenge – so it MUST be legal! I am concerned about people who have been transferred to PIP, as the DRE issue sounds difficult to address.

        Thanks again, Martin.

        1. Belinda SchwehrBelinda Schwehr

          One should never be put off by what other councils are doing – it’s no test at all of what is LEGAL. For instance, half the councils in this country were charging for s117 services, before that was ended by 4 councils actually getting the issue to court. What other councils are doing is relevant to whether something is ‘irrational’ in public law, but illegality is a different matter.

  29. Martin

    Hi Belinda,
    Just one more thing – are those who have been moved from DLA Highest Rate (night care required) onto Enhanced PIP protected? I know that the old Fairer Charging Guidance did protect those who moved from DLA to PIP with the same identified night care needs, but would they still be protected under the Care Act via the Coventry-Carton ruling? I also wonder what protection new recipients of PIP would have, if they had the same level of night time care needs. I have real concerns about having to evidence night care via DRE (ref your earlier response), so it would be good if these people could be linked with the DLA and AA recipients via the Coventry-Carton ruling.
    Thanks again, Martin.

    1. Belinda SchwehrBelinda Schwehr

      No idea Martin, I have to say – not a benefits expert. The principle in the Coventry case was about the irrationality – since the test then was the reasonableness of the charge overall, for individuals – of taking benefits intended for night time care into account, when the council was not providing that care. That principle should not have been affected, by a change in the name of the benefit, but it should be noted that there is no underlying requirement that a charge made for adult social care be reasonable, any longer, perhaps surprisingly. There is just guidance and the regulations.

      regards

      Belinda

  30. harry

    Hello Belinda
    What are the local authority’s duties and responsibilities – if any – to privately funded care home residents? Should they be providing an assessment of need and a care plan and if there are concerns regarding the appropriateness of the care home is it up to the family to sort it out/organise a move etc, or can the local authority provide support.
    I.e can a family rely on or request social services support if the client is funding the placement.

    1. Belinda SchwehrBelinda Schwehr

      Yes – through the Safeguarding duties, at least in English law – not so sure about Welsh. Under our Care Act, a person with needs for care and support preventing them from protecting themselves against abuse or neglect is able to be made the subject of a safeguarding enquiry. If it’s a self funding person, then there’s no commissioning link for the exertion of leverage to improve. But safeguarding applies to all people in the authority’s area. If a person is lacking in capacity, the local authority owes a duty to assess, assuming an appearance of need, in any event, because however wealthy one is, one is entitled if lacking in capacity to have the local authority make the arrangements unless there’s someone else otherwise authorised or doing so willingly regardless of how they are reimbursed. The LA cannot, however, take over and tell a provider what to do when it is not the commissioner; it can only flag up the provider’s having signed up to the local safeguarding protocol, or lend its support in representations to the CQC about apparent breaches of any regulatory requirement.

      Hope that is helpful – B

  31. Karen

    Hello Belinda
    My elderly father has just been assessed for funding for residential care and has been approved for OPR2 funding. I am having great difficulty in finding a residential home with vacancies available at this level of funding.. I can’t afford much in the way of any extra as I’m retired myself. Do the council have an obligation to increase funding, within reason, if no vacancy can be found in the area?
    He is currently in a short stay council run care home which is where he was assessed. He was in hospital prior to this.

    1. Belinda SchwehrBelinda Schwehr

      The law is that it is not your job to find a place that is suitable for the money that the council would like it to cost. It is their job, and it is only if we all make them put their backs into it that the rates offered by local authorities will shift upwards to reflect notions of quality and rational in relation to the duty in question. The way it happens in most councils at the moment is that they tell you the rate they want to pay, and the relatives go looking and then pay a top up out of desperation, at what they see for the money. If you bear in mind that the appropriate and suitable means to meet need come first, as their job, and one can’t be put in a bed that’s full, one can then see how the law is that the council MUST pay the full rate of whatever else there is that IS suitable, if it hasn’t managed to commission enough beds at the rate that it asserted was adequate to attract enough providers. The bottom line is that there is a duty once someone is eligible, and for some people withe higher dependency, there may be a smaller number of beds that will ‘do’. If you look up the Trafford Local Government Ombudsman top ups saga, on this website, or online, and read some AgeUK factsheets you will see that relatives are subsidising the duties of councils all over the country. A good question to ask by way of an FOI if you are minded to fight is this: How many beds have you contracted for or identified as available for council clients of OPR2 levels of need, at the rate conveyed by your staff as the rate you will pay?” You will find that that they may then offer to contribute a sum that will enable you to pay no or at least a smaller top up, if they can’t answer the question.

      regards

      Belinda

      1. Karen

        Thanks for this, very helpful.
        The social worker has indicated that dad should aim to be out of the current short stay home in about two weeks. I can’t see this being realistic as I live 100 miles away so it complicates things a bit. I’m concerned that they may try to send him home, even though this would probably result in him ending up in hospital again, if suitable accommodation can’t be located in a couple of weeks.. I can use the information you’ve given above to push for them to find somewhere if push comes to shove!
        Thanks again
        Karen

  32. Amanda

    Hi Belinda,

    I would appreciate some advice please. Should a best interest assessment go ahead whilst learning there is an ongoing safeguarding investigation in process (emotional harm)? I have decided to halt my B.I. assessment on the grounds that I cannot yet determine the client’s best interests without learning the outcome of the investigation. Additionally, the family are unaware of the allegations made in June 2017. I do not feel that ascertaining the daughter’s viewpoints without her knowledge of present allegation (unsure if past allegations are known of) is right.

    I have also learnt there have been past concerns when this lady was admitted twice into hospital in a matter of weeks and reported to be in a neglected state e.g. words used were “dirty and unkempt with pressure sores and old puncture wound above left eye.” This lady is presently being treated for pressure ulcers by district nurse. I have emailed the local authority for my reasoning recommending that whilst the investigation is underway an offer of assessment of need is advised at the very least with a care plan detailing how her eligible care needs are to be met, not least her wellbeing needs. It appears this lady has never had an assessment of need; she is privately funding her care and she is unable to communicate either verbally or through non verbal means due to her severe cognitive decline. I do not feel I can deem this placement to be in her best interests until certain processes have been implemented.

    Your thoughts would be much appreciated.

    Rachel

    1. Belinda SchwehrBelinda Schwehr

      Rachel, I am unable to help you as you don’t say who you are or what role you are in? I can’t tell whether you are an advocate, appointed under English or Welsh legislation; a district nurse, doing an MCA assessment in relation to clinical intervention for the pressure sores – or someone else, without any statutory or public sector role. You would only be in a position to be ‘determining’ this lady’s best interests if there was an MCA decision requiring that determination by a decision maker. You would only be contributing to a best interests decision BY a decision-maker if you were a statutory advocate, or representing as a generic advocate the views about the patient’s best interests, for the relatives or other interested parties. Since you are clearly not part of the council, from what you say, I am at sea in analysing your interest and hence can’t answer the question. Please have another go.

      Clearly, though, anyone who is incapacitated – as this lady seems to be, to an extreme degree – is entitled to safeguarding functions and entitled to an assessment under the English and Welsh legislation, based on the appearance of need. In connection with deprivation of liberty rules, which should have been followed, regardless of the private nature of the original placement, and in connection with care planning, an MCA decision may well be required, as this woman needs to be touched in order to be cared for, and may need to be moved. So I agree that there will have to BE a best interests consultation and decision, in order that the social or health care commissioner can be satisfied that a lawful decision can be implemented, whatever it is. I also agree that in that context, it would be necessary for any allegations that involve otherwise entitled best interests consultees to be consulted, to be addressed, but unfortunately you don’t say how any current or historical allegations actually relate to the relatives.

      regards

      Belinda

  33. Jelllihead

    Dear Belinda

    Thank you for this website and the time that you give to support all those of us who are floundering in the deep and murky waters of LA perceptions of what the 2014 Care Act actually means and administering it fairly.

    My daughter has Downs syndrome and after not having an assessment since 2012 we finally received one in January of this year. We had to have four assessments all of which did nothing to address my daughter’s needs if I, as her full-time carer, were unable to provide the care, support and administration tasks that I do on a 24/7 basis. This assessment resulted in a reduction of more than 60%. My daughter’s needs and support have not changed in the intervening years.

    I too have received an assessment but have not yet received the outcome. I have been advised to take legal action with regard to these two points:

    Lack of a ‘carer blind assessment’
    Reduction of care package (taking away previously agreed need and provision) without clear explanation as to how my daughters needs have changed.

    Could you give me some guidelines as to what legal wording I can use to convince the LA that they are breaking the law. I have already complained to the LGO and am looking at taking legal action.

    Thank you again

    1. Belinda SchwehrBelinda Schwehr

      Hello

      1. Lack of a ‘carer blind assessment’

      I am receiving enquiries from all over the country from people who are desperate to stop caring, but who can’t seem to get the local authority to believe them. The law is clear: the council is responsible for meeting UNMET eligible assessed needs, to an extent that is legally defensible. That’s never going to mean putting in as much care or the quality of care that a relative would put in; lots of what relatives do is done out of love and affection and promotes well-being 10x better than adult social care inputs could ever hope to, even if there was no ongoing austerity. So, anyone caring, who wishes to do less than what they are currently doing, needs to come to terms with the fact that their choice will have an inevitable impact on the person they are caring for. The replacement care will not be what is wanted, but what is regarded as needed, and the council is in charge of that decision, subject only to judicial review for legally indefensible evaluations or approaches to the question of how much, how often, and what sort of input will they pay for…..
      Once the decision has been made to withdraw from doing a particular task, or from providing inputs for a particular number of hours or days, one has to have the guts to tell the council. Not that one is going to stop when a review has been done, and a package secured, or that one is ‘looking to stop’at an unspecified time, but that one has decided to stop on a specific date. This is putting the council on notice that the previously met need is going to be unmet as of a certain date.
      If the person you care for is having a review and the assumption is that you are just going to carry on for ever, you need to use the words ‘not willing or able to care’ past a certain date.
      Even then, you will find that more and more councils will test your resolve by forming a view internally that you aren’t really going to stop; that is, they will take a view as to whether after years of focusing on an individual, you can even really actually make yourself stop. If they don’t hurry to organise care, they are not believing you, and you may then have to up the ante by proving that you are indeed withdrawing care. That’s very hard for ageing parents, who may be accommodating an adult son or daughter with disabilities, because the whole pattern of everyone’s life is probably set in stone by then. Another variation for people who are desperate to get back to work is to offer care for the service user for a limited number of days per week, making it impossible, seemingly, to take on a full time week. The answer in that case is ‘Tough, I am taking that job anyway’.
      In all cases, carers will think that they are being forced to care. But actually they are choosing not to stop. I know that that sounds harsh, and that it’s true that carers are disincentivised to stop, by staff playing on the value of their input from the service user’s perspective, and the unpalatable truth that withdrawing from care may actually mean that a council or CCG ceases to be willing to keep the person in their own home in the community, because of the cost comparison. People’s human rights are in play in that context, but those rights are not absolute, and do not extend to being able to get the State to pay unlimited sums of money to enable a person to feel good about the care that the carer is supported, through carer’s assessment and a budget for their own needs, to provide.

      If you have already complained to the ombudsman but are still looking to take legal action, I am afraid that you may not have persuaded the LGO of the merits of your complaint. But I hope that the above details will help you decide what to do next.

      2. Reduction of care package (taking away previously agreed need and provision) without clear explanation as to how my daughter’s needs have changed.

      This is easily judicially reviewable, if you are sure that this is what has actually happened. The case law before the Care Act was crystal clear: care packages CAN be cut, but only for rational reasons. Asserting that need has gone away without an evidence basis is unlawful and the authority for that proposition is a case called Killigrew from the late 1990s.

      But one has to be careful: it is NOT the law that there can be no change to a person’s care package unless the needs have changed. It is NOT the law that once one has got something in one’s package, it will remain there forever. That is because there are other ways of cutting a care package lawfully. For instance, a person’s condition may not have changed at all, but their DEPENDENCY may have lessened because they have acquired a new skill, a new informal carer with greater skills or strength or resilience; or they may have moved to a new environment where they don’t ‘need’ something that they did need before, to be kept reasonably safe.

      Secondly, one must be careful because the cuts in most of the cases I see at the moment, are not based on a view that needs have changed, at all, however. They are based on the legally defensible view that what was provided before, was over-generous, and that the need can still be met ‘appropriately’ with something less expensive, or fewer hours, or cheaper hours, etc, given the council’s financial difficulties. That is not illegal, if all relevant considerations have been taken into account, no IRRelevant ones have been allowed into the consideration, the process was fair, and the person’s human rights were conscientiously considered, and the suggested package is not one that is clearly bound to fail, by anyone’s standards.

      Thirdly, in some cases, cuts have been upheld, because what was being provided before was de-skilling a person, or keeping them dependent, by wrapping them up in too much cotton wool, if I can use that euphemism without meaning it offensively. Of course, in that case, it would be shocking if public money was spent on doing harm to someone, and councils are tending to bite the bullet more and more on packages where that view is able to be taken on the specific facts and the history.

      In your situation, I would be thinking that the fact that you presumably expressed yourself as unwilling to carry on doing round the clock care in the discussion about how the needs were to be met was a legally relevant consideration that was somehow minimised or left out of account, probably because they didn’t actually believe you could stop yourself, and thought that they would wait and see. That might well be true – you may well have carried on – and they don’t have a duty to meet met needs if you are in fact carrying on without challenging the council. If it’s the case that the LGO did not uphold your claim, that might be the reason why. What worries me is that there is a three month time limit for taking legal action and you may well have missed that deadline.

      If so, you need to get your daughter reviewed on the basis that her needs HAVE changed, because you are not willing or able to do the care any longer.

      1. Jelllihead

        Thank you for your time and trouble to respond. What the LA have said is that some of the DP that was used for say guitar lessons and going to the slimming club should in effect be coming from the NHS and they have suggested that I contact them to ask?

        I have no idea why? I have not had a ruling back from the LGO but then I only had my final response from the council a couple of weeks ago and the LGO have to respond by 20th September. The LA are going to cut DP on the 16th October. Can you recommend a lawyer who would be able to take my daughter’s case on under legal aid? Thank you again.

        1. Belinda SchwehrBelinda Schwehr

          If a council thinks that it was providing something that in fact the NHS should have been providing, it can cease to provide that element, but guitar lessons and slimming club memberships are not even arguably things that only the NHS can pay for, and that is the only sort of thing that the LA can just stop paying for. The Care Act guidance makes it quite clear that the fact that other agencies COULD or MIGHT pay for inputs that have been needed is not a good enough reason for ceasing to fund them; the LA should check that the other agency, WILL meet those needs. I don’t think that 60% of the budget can be for guitar lessons and slimming club membership but I do think that this BIT of the case is a situation where the cost of meeting a need that has not changed has just been cut on the pretext that you will simply accept the cut. You should ask the LGO specifically to consider the legality of withdrawing budget in that manner for that reason, in light of the Care Act guidance. The LGO costs nothing. Solicitors who do community care cases are very few and far between, let alone those that do them on legal aid. You can look here on the Law Society’s Find a Solicitor site. http://solicitors.lawsociety.org.uk/
          To find one you have to put in your postcode, then Social Welfare as a ‘legal issue’ category and then filter the choices by reference to Community Care law, and then you can see if they do legal aid.

          regards

          Belinda

  34. Rosy

    Hi
    My daughter is very poorly, and sadly confined to a wheelchair, but is fighting her challenge (Ehlers Danloss), to attend University. She as been award the highest amount Direct Payments, but it is not sufficient for 24 hour care.

    So we have applied for an assistance dog to alert if she falls,(and protect her if in public), open doors etc for her, and other tasks. We are lucky to have been accepted for the initial assessment with the charity, but Somerset will not agree to using the Direct Payment to support the dog (which is replacing failed technology in the form of alarms).

    I am looking for ammunition (such as guidelines, or other councils that do use DP for Assistance Dogs), or any other assistance in persuading Somerset that they should include the ‘running costs’ of a specially trained dog,.

    Hope you can make some suggestions.

    I very much appreciate your time.
    Rosy

    1. Belinda SchwehrBelinda Schwehr

      I am not sure whether or not the council was told of the approach that the dog is replacing failed alarms, or if they addressed that point, rationally, which they would have to do. But if she was assessed in the first place as NEEDING mobility assistance during waking hours, then the council would probably be taking the view that whilst the dog is a real asset, obtaining the dog was a choice, and not something that they had anything to do with, or any ongoing responsibility for. I would say that it might not be regarded as their duty, but it is within their statutory powers, and if it were me, advocating for the flexibility, I would say that the dog is a bit like an informal carer, minimising the extent to which social services has to meet need, which could easily BECOME eligible need, as well as assisting with your daughter’s personal outcomes – and just as supporting a carer to go on caring is a sensible thing to do, so is supporting the dog to go on assisting.

      Years ago, when someone thought up personalisation as a concept, the maintenance of dogs was the most popular example, up there alongside buying season tickets for Man Utd matches, of the sense it made for councils to see all such things as ultimately saving them money. What the personalisation proponents did not grasp, however, is that the power to spend public money has to be linked to a statutory provision creating the function. Social care functions all sit on top of an assessment of eligibility, and from there on, the allocation of budget for the meeting of an assessed need. So the issue is not whether the money could be spent on this sort of cost, but whether money was allocated for the meeting of this kind of assessed eligible need. If not, then spending OTHER money on it from the budget would leave you short on some other aspect of meeting needs. I don’t know of councils allowing for the maintenance of dogs, whether that be for comfort and joy purposes or practical assistance purposes but I am sure that there some.

      The analogy with alarms is interesting. Very often councils will point people towards a purchase of an alarm, or even provide the alarm, but they will not usually include the running costs within the item, if they do not provide the alarm in the first place. So the mention of the POWER to spend the money, as opposed to any duty, may not get you a different outcome, but you can but try.

      regards
      Belinda

  35. Polly

    If an Adult Care and Support plan has been put forward & presented to a County Council Local Authority panel am I entitled to written information/explanation from the panel regarding the outcome of the panel meeting ?
    In this instance, the plan has been neither rejected nor accepted by panel but the outcome is that the LA have been given 3 more months to explore alternative care provision, despite the fact the LA have no evidence why the current provider is not suitable and why an alternative provider would be better.
    This is for a plan which has not changed (and we do not want it to change) and this is an annual review process – the review started in January and is entering its 10th month.

    1. Belinda SchwehrBelinda Schwehr

      Hi – it’s difficult to tell from the bare bones of the scenario above. You don’t say whether it’s a home care package, a residential or nursing placement or services to someone in supported living that is under ‘review’ and you don’t say who the client is and what their capacity is, all of which matters for a proper legally literate answer.

      It sounds as if the ‘plan’ might just be a recommendation to a panel of formal decision makers and they have told the social worker and contracts staff to go away and do more thinking – that is not a No. There’s no legal basis for entitlement to reasons for a ‘not quite yet able to decide’ but you ARE legally able to get reasons (with a bit of effort and polite assertiveness and some legal literacy) for a formal No, if you WANTED a change (which you don’t, from what I gather).

      A person who has unmet needs can’t just be left dangling whilst a council cogitates – the provision of any service that there is no controversy about, or – if the response is all implicitly integrated, in the sense of not being able to be delivered in discrete separate elements, then something at least to meet eligible unmet needs, over which there is no actual controversy – would be important for a council to organise as an interim package.

      However, it sounds as if your case involves an EXISTING package which your council is reviewing.

      What I am not able to glean from your answer is whether it’s just YOU who thinks nothing needs changing, or everyone – as I am thinking that that logically can’t be the case, if they are trying to do more social work thinking and commissioning research about alternatives.

      They might just be doing hypothetical research to see if they can save money, and if they decide they could, in theory, then the really serious business regarding re-assessment and revising a care plan would start in earnest and then – if it’s a residential package for care and accommodation together that we’re thinking about, they would have to do human rights considerations regarding moving the person in question from a setting that has been his or her home for a long time. Likewise if they were suggesting a move to a cheaper provider where the client would have to up sticks and move to a new tenancy. It’s not as legally complex if you are talking standard home care services, or day care services, however.

      On the other hand, imagine that they think that something really isn’t working, in the current setting, or positively harming or de-skilling a person: they MUST in that situation work in a timely way towards changing the care plan, and managing the problem in the meantime.

      The bottom line is that THEY ARE THE DECISION MAKERS ABOUT WHETHER THE PLAN NEEDS TO CHANGE, as long as they take your views / plus those of any Care Act advocate – into account. That’s the bit of information that is completely missing from the scenario you have put to me, I am afraid.

      Review is completely different to revision. Review (consideration of whether the plan is working) should be annual in any event, so it would be ridiculous if a person’s REVIEW could take 10 months. From what you have said I am thinking that they either want or need to change the care plan, but that it is taking them a long time to find anything suitable, which is the primary legal requirement – even before they engage with best interests’ consultees’ views, the wishes and feelings of the client, and the human rights of all concerned, were those things to be relevant, given the type of service change under consideration.

      In the end, changing a care provider, and even moving someone can be legal, where the purpose is to save money for the council – but the latter (moving a person from one placement to another, or making them move to a new tenancy where there is a cheaper provider being paid for the care) is not acceptable, without considering the impact on them of that change, in light of human rights in general and in particular, the duty to promote wellbeing, including emotional and psychological wellbeing, in all Care Act functions.

      Your enquiry about reasons, rather than anything else, suggests to me that you have in fact been left in the dark about the conclusions of the initial review, and/or what’s going on now. That is poor practice, if not positively unlawful, because you ought to be involved directly in care planning or planning about the revision. Your views may have been taken into account, but I can’t tell; but you ought to be being kept in the picture.

      Do feel free to show this answer to the care manager or complaints manager if you want to take it further. Otherwise, if you feel more, I charge for advice after a free half hour, and this has taken that much time – I can be contacted on belinda@careandhealthlaw.com.

      regards

      Belinda

  36. Small LD Care Provider

    Hi Belinda,

    Given the impending implosion in LD social Care because of the absolute mess regarding whether you can be working when you are sleeping with regards to the application of the NMW to carers sleeping shifts, do you think there is any scope for judicial review to force the government to acknowledge guidance wasn’t (and still isn’t) clear and they should be funding back payments as well as providing an adequate one off increase in care fees to cover the sudden hike in staffing costs?
    HMRC are chasing providers for back pay for employees when it has not been clear (and is still not clear) that sleep in staff should be paid the NMW for every hour asleep as well as any actually awake and working. It seems to me that the initial purpose of the NMW legislation has been overlooked and loopholes found within it to argue that it should apply to sleeping hours in certain circumstances and not in others.
    We have a situation that could end up with sleeping staff in one care home being paid the NMW whilst asleep and another next door doing exactly the same sleep in shift being not eligible for the NMW!
    The legislation needs rewriting urgently it seems to me. Surely you can’t be capable of producing ‘work’ when asleep? Could adequate recompense for the inconvenience of being away from home, essentially ‘on call’ on the premises be added in the the legislation, maybe with statutory NMW payments for hours spent actually working and awake above the NMW by a % would be a sensible way to resolve the issue?

    I’d appreciate your thoughts.

    Regards

    Steve

    1. Belinda SchwehrBelinda Schwehr

      Hi Steve – I’m not an employment lawyer, but I have to say that I do not think that there is ANY hope at all, in a judicial review regarding the guidance. Judicial review operates to QUASH guidance if it is not in accordance with the law, but that won’t help providers in relation to what the law now seems to be.

      I think that there’s far more mileage in the public law legal obligation that’s already been established, to take account of the actual cost for providers of providing the care that the councils buy, when negotiating the rates. Councils though, may well say that contract is contract, and that existing contracts provide for the risk of any changes in the cost of providing care, to transfer to the provider sector. There’s a point at which that would not be possible, at the same time as councils managing to deliver on their own duty to meet needs, which they lay off on to theoretically willing businesses….

      I understand from employment law colleagues that the problem only arises if the contracts you use start out from a position that the time is measured time, as opposed to unmeasured time. It isn’t bizarre to me, as an outsider, that the NMW can be expected for time when one is asleep, nor that it turns on what the essence of the obligation really is, at night.

      Central government will only bail out the council sector, not the provider sector. So it is essential to have top level negotiations, in my view, through care provider organisations, with ADASS and the LGA. With Brexit underway, I have no idea whether there is any intention to relax NMW law, in the way you suggest, but looking at unmeasured time in contracts is a more productive way to go in the meantime as far as I am aware.

  37. Diane

    Dear Belinda
    I am a best interest assessor
    I have been asked to undertake an assessment of a lady who has long term manic depression and known to the older adults mental health team but not had a confirmed diagnosis of Dementia
    She was admitted to a care home earlier this year as her husband who is also her main career was admitted to hospital
    When he was discharged he did not feel up to caring for his wife and she reluctantly stayed in the care home – she was deemed to lack capacity
    She asks to return home when her husband visits but is discouraged also her husband wants her to come home
    There are I understand concerns that he would not be able to cope with her and may neglect her
    He also wants to take his wife out in the car etc but dissuaded from doing so as staff are concerned he won’t look after her or not bring her back
    The local authority have not done a best interest meeting
    Given that he wants his wife to return home could this be classed as a disputed placement.?
    Also is it in her best interests if she is distressed and wanting to leave with her husband?
    Finally do the LA need to conduct a BI meeting and take to COP if husband disputing?
    If I say not in best interests does that mean she can just leave and be accountable if she suffers harm

    1. Belinda SchwehrBelinda Schwehr

      HI THERE: I AM NOT SHOUTING, USING CAPITALS – JUST DISTINGUISHING MY COMMENTS FROM YOUR DESCRIPTION OF THE FACTS. YOU NEED TO TAKE LEGAL ADVICE.

      I have been asked to undertake an assessment of a lady who has long term manic depression and is known to the older adults mental health team but not had a confirmed diagnosis of Dementia.

      She was admitted to a care home earlier this year as her husband who is also her main career was admitted to hospital

      SELF FUNDING, OR PLACED? I ASSUME SHE WENT WITH CAPACITY, BECAUSE SHE UNDERSTOOD HE WOULD NOT BE THERE AT HOME FOR HER FOR A WHILE?

      When he was discharged he did not feel up to caring for his wife and she reluctantly stayed in the care home – she was deemed to lack capacity –

      THIS RINGS ALARM BELLS FOR ME: RELUCTANTLY STAYED?? IF SHE HAD CAPACITY TO STAY, ALBEIT RELUCTANTLY, BECAUSE SHE STILL UNDERSTOOD HE NEEDED RECOVERY TIME, THEN THERE IS NO DEPRIVATION OF LIBERTY. IF SHE WAS ‘DEEMED’ TO LACK CAPACITY – YOU DON’T SAY WHO BY OR IN WHAT CONTEXT?? THEN SHE SHOULD HAVE BEEN DOLS’D THEN IF SHE WAS MERELY ACQUIESCING. THE KK CASE SAYS SHE SHOULD HAVE BEEN TOLD OPENLY AND FIRMLY WHAT SHE WOULD BE OFFERED IF SHE REFUSED TO STAY. IF THAT WASN’T DONE THEN SHE WAS NOT ABLE TO BE DEEMED TO LACK CAPACITY BECAUSE SHE HAD NOT BEEN GIVEN THE NECESSARY INFO TO MAKE A DECISION.

      She asks to return home when her husband visits but is discouraged ….BY WHOM. THE FACTS ARE SIMPLY NOT CLEAR ENOUGH TO GIVE ADVICE, IN THIS CONTEXT I AM AFRAID – also her husband wants her to come home – YOU MEAN EARNESTLY AND SERIOUSLY, BECAUSE HE HAS RECOVERED, OR JUST BECAUSE IT WOULD BE NICE?

      There are I understand concerns – CONCERNS, WHO FROM AND WHY? THIS IS THE SORT OF COMMENT THAT MAKES COUNCILS GUILTY OF NOT DOING BEST INTERESTS CONSULTATION WITH SOMEONE WHO DESERVES THE OPPORTUNITY TO DISABUSE THEM OF THEIR CONCERNS, – OR MIGHT JUST BE HINTING AT A SAFEGUARDING CONTEXT THAT HAS EITHER HAPPENED IN THE PAST OR FOR WHICH THERE IS EVIDENCE, NOW. FORMLESS CONCERN IS NOT ENOUGH TO EXCLUDE HIM FROM DISCUSSIONS AS TO WHAT HER RIGHTS ARE. …that he would not be able to cope with her and may neglect her

      He also wants to take his wife out in the car etc but dissuaded from doing so as staff are concerned he won’t look after her or not bring her back – ON WHOSE INSTRUCTIONS? THE COUNCILS? OR OFF THEIR OWN BAT? EITHER WAY THE COUNCIL KNOWS ABOUT THIS, AND IT’S EITHER DISCOURAGEMENT OR IT IS PREVENTING THE HUSBAND FROM TAKING HER OUT, AS IN THE SURREY CASE.

      The local authority have not done a best interest meeting. WHY ON EARTH NOT?

      Given that he wants his wife to return home could this be classed as a disputed placement? YES

      Also is it in her best interests if she is distressed and wanting to leave with her husband? IT MIGHT BE BUT SHE MAY NOT LACK CAPACITY AND THAT CAN’T BE DECIDED UNTIL SHE HAS BEEN TOLD WHETHER THE COUNCIL WOULD EVEN OFFER TO SUPPORT HER AT HOME, AND IT NEEDS TO DECIDE WHETHER ITS CONCERNS ABOUT HER HUSBAND ARE WELL FOUNDED OR NOT, IN ORDER TO MAKE A CARE ACT DECISION AS TO WHAT TO OFFER. YOUR CAPACITY TO CONSENT COLLEAGUE NEEDS TO THINK AGAIN, I THINK.
      Finally do the LA need to conduct a BI meeting and take to COP if husband disputing? WHY WOULD THEY NOT NEED TO DO THAT?
      If I say not in best interests does that mean she can just leave – YES – and be accountable if she suffers harm NOT JUST FOR YOUR BIA’S INPUT. YOU ARE EXERCISING STATUTORY FUNCTIONS IN GOOD FAITH. BUT IF SHE RECEIVES PROPER NOTIFICATION OF A LAWFUL PROPER STANCE ON WHAT SHE WOULD BE OFFERED IN HER OWN HOME, SHE WOULD NOT BE SUFFERING HARM, IT SEEMS TO ME. AND A BIA SHOULD POINT THAT OUT. WITHOUT CLARITY IN THAT REGARD, IN ADVANCE OF A RETHINK ABOUT CAPACITY, IT IS THE COUNCIL WHO WOULD BE IN BREACH OF STATUTORY DUTY.

      1. Diane

        Thank you this is fantastic and reaffirms what I thought
        There is a lot of confusion around capacity act within social care teams which is frustrating
        Thank you again

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