Individuals

Live Webinars and the recordings

0 thoughts on “Individuals”

  1. neil harrison

    Very thought provoking, cant wait to hear about the 117 intricacies, the current situation we find very difficult to provide 117 aftercare to someone at the other side of the country, not really in tune with the wellbeing principles of the care act if your nearest support is some 300 miles away.

    Regards

    1. Belinda SchwehrBelinda Schwehr

      Of course, but the more I talk to s117 staff the more I think there’s a division of opinion as to the pros and cons of either system. That is, it’s a toss-up, between the notion that a s117 client really needs someone on hand, locally, to do the real job aftercare is intended for, versus the benefits of a key worker with in-depth knowledge of one’s history and stressors, maybe, which one only gets from responsibility having continued long term….

      Ideally, one would have both, and that would be possible maybe, if anyone had ever come up with a piece of software that tracked the time spent by ONE authority doing the key-working and co-ordination stuff on the spot, but as the agent, and on behalf of the OTHER – the distant but legally responsible, s117 authority, I am thinking…?

      What do other people think, I wonder?

  2. Robin Murray-Neill

    I have a couple of questions that I hope someone will be able to answer.

    1) When is the Guidance updated to show the Transitional Provision Order and the amendments to Care and Support Regulations such as Ordinary Residence? It all looks the same – is there some kind of appendix attached? How does it work?

    2) Some local authorities are interpreting “the need must arise from, or be related to physical or mental impairment or illness” as meaning a medical diagnosis can be required. People have been told to get a diagnosis before they can be assessed. The Care and Support Statutory Guidance states that “a formal diagnosis of the condition should not be required”, but because it doesn’t say “must not” it seems to be interpreted as being up to the council to decide if it wants one. Are they right?

    1. Belinda SchwehrBelinda Schwehr

      Well, although the Transitional Provisions Order was out a long while ago, the statutorily underpinned guidance can only ever be a simpler version of the government’s own view of what its lawyers have drafted in the Act and Regs, and a convenient reference point for central government policy about social care directions. So you have to plough through the Order itself, for the law. Here is the link to the amended regulations for o/r.

      http://www.legislation.gov.uk/uksi/2015/644/regulation/4/made

      and here is the link for the Order:

      http://www.legislation.gov.uk/uksi/2015/995/pdfs/uksi_20150995_en.pdf

      When council staff on First Contact desks, or even further into the process, come out with such utter tosh as you mention having heard, I would recommend saying these three things – as well as pointing to the guidance, which says neither assessment nor eligibility ‘should’ turn on a diagnosis!

      1. Assessment duties turn on the appearance of needs for care and support, which is nothing to do with having a diagnosis, and eligibility turns on acceptance of a link between something that one can rationally regard as physical or mental impairment, and the inability to achieve the outcomes in the regulations!

      2. Under the OLD law, where each statute had a different definition of the client group for which it was intended, it might be good to ask pointedly whether anyone had to have to have a diagnosis, then – for instance, about being “substantially and permanently handicapped by illness, injury or congenital deformity”? (The definition in s29 National Assistance Act, on which s2 CSDPA services used to sit, and still does for anyone not yet reviewed under the new Care Act!).

      I very much doubt that ANY council was that way off message….and nothing should have changed, in a modernising, needs-based improvement to the legislation!

      3. Under the Mental Capacity Act, does the council get a diagnosis of the preliminary threshold test for a finding of incapacity, given that the MCA only applies if the person is unable to make a decision “because of an impairment of, or a disturbance in the functioning of, the mind or brain”?

      I am thinking NO again, – obviously not.

      The inevitably unchanged case law about the weight to be given to all the ‘must’ and ‘should’ edicts in the guidance is that even where it only says ‘should’, the council is obliged to have a very good reason indeed, for not acting under, and in accordance with, the exhortation. I can’t say that ‘should’ actually means the same as ‘must’, in legal terms, but I can very confidently predict that any council that says a diagnosis is necessary before it does an assessment or an eligibility decision would be found to be acting unlawfully.

      If this is happening in your local area, the Monitoring Officer should be contacted immediately (usually the head lawyer, who owes an enforceable and non-delegable statutory duty to keep the council’s officers and policies under review and on the right side of the law!). All you have to do is send an email in and say “Please refer this allegation of a breach of the law, to your statutory Monitoring Officer”.

  3. Belinda SchwehrBelinda Schwehr

    Other interesting ideas from the speech, but not sure if this one would work, space wise, in English care homes! See below –

    “In the Netherlands, they’ve introduced a different type of au pair system for elderly people, where students are offered rent-free accommodation in nursing homes in return for spending at least 30 hours a month with some of the elderly residents.”

  4. Christine RowleyChristine Rowley

    A similar idea to the full time volunteering organised by Volunteering Matters (formerly Community Service Volunteers) . Placements used to be in a person’s own home but I’m not quite sure whether that is still the case . Some resistance from the sector as I recall at the idea of untrained people being placed in the homes of vulnerable, or older people . But it may be an idea whose time has come

  5. 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

  6. Belinda SchwehrBelinda Schwehr

    I have mixed feelings about delaying Dilnot and if it happens think that the detail of what else is brought in or NOT, is going to be important. On the good side, money set aside for Dilnot will be able to be scrabbled for to keep councils able to deliver the rest of the Care Act, but the private client subsidy culture which keeps homes able to be bullied into taking lower fees from councils will continue. Dilnot’s vision gave well-off people a rational reason to get over themselves if they would have otherwise disdained social services involvement in their lives – an economically rational reason to let the council do the purchasing, at a lower rate than the privately contracting wealthy person would be charged. Never mind the cap – few would have reached it – no, the attractive part for better off people was being able to insist on being purchased for, through the auspices of s18(3) of the Act, albeit paying full cost, and no doubt top ups as well for better rooms.

    Whatever discussions have convinced the DH of, over timing, I would be willing to bet that THAT provision will remain on the statute book, but not in force. It will effectively mean that the old rule, that you are not entitled to a council contracted for care home placement unless care and attention needed is not otherwise available to you including through your own means, UNLESS you lack mental capacity AND have no-one willing to sort it out for you.

    The other aspect to watch out for, if there is an announcement about pausing Dilnot, is what is to happen to the idea of bringing in so-called appeals? Mixed feelings again: they weren’t appeals at all, but they would have had a stultifying effect on judicial review. And without judicial review, there would be no legal consistency in the interpretation of the Act at all.

    What would YOU do if you were advising government on this issue, from within the civil service?

  7. Belinda SchwehrBelinda Schwehr

    Well, the announcement has been made. The DH has described the decision to delay Dilnot into an example of how carefully it listens to stakeholders and I hope that .

    Some of the unexpected outcomes for adult social care, from my perspective:

    a) It means that councils don’t really need to have a Resource Allocation scheme, because they can just do care planning for those eligible care and support needs, and cost each one out, sensibly, using an evidence basis: they don’t need to tell people a notional amount. The guidance says ‘indicative’ allocations are ‘vital’ and ‘important’ and ‘essential’ but they are not a duty, or a MUST – and we all know that they are no use if they are not rationally configured or populated in the first place.

    b) The National Assistance Act notion of being ineligible, for having care and attention ‘otherwise available’ to you – purely because you have the money to be charged so much in fees that you are effectively contributing twice – once through your taxes and once through your fees – for others who have no means to pay, for whatever reason – is preserved, for another 5 years, although the legislation itself will be repealed. Mr Dilnot, deliberately or not, had found a way of solving one of the trickiest moral issues of our time: getting rid of the private client subsidy so that the government of the day (ie we people as a whole nation), have to pay more because unfortunate but rich people should not have to contribute disproportionately. Did anyone get to vote on deferring the Dilnot measure? The sector will have to go back to deciding which well-off eligible people to ‘let in’ to the secret council rate and which not – more discretion, more potential arbitrariness.

    c) No appeals system for adult social care as yet. For me personally, that probably preserves at least a CHANCE of continuing to offer training and consultancy at a level where the notion of legal literacy adds some real value for those seeking to understand how the system works – if only the odd judicial review can ever find its way to court, to clarify what’s legal and what is not.

    TWO cheers from me then, but a tear on account of what squashing the Dilnot provisions into the same Act as was supposed to SIMPLIFY adult social care, ultimately did to its architecture, elegance, and intentions….

    1. David

      Hi,
      I think that the Government’s decision is a betrayal of the highest order – worth more than a tear, if I may respectfully suggest. I know people who voted Tory in the last election because they believed that their homes and savings may be saved through a cap on care costs. I am appalled at such duplicitous political behaviour.
      Also, forgive my ignorance but would you please be good enough to explain why there would now be no need for a resource allocation system. I am struggling to see the link (in the context of councils needing to evidence how they fairly allocate resources) and the announcement made by the Government to delay Dilnot.
      Thanks

      1. Belinda SchwehrBelinda Schwehr

        Sorry! I should have explained more clearly.

        There is no STATUTORY LEGAL requirement for an indicative resource allocation or the use of a RAS in the Care Act or the Assessment Regulations. They are just management accounting tools, and not determinative of anything, but something of a check against the risk of a professional (or otherwise) ‘fringe’ element in assessment.

        Many councils have bought into commercially provided RASs, and some have home grown and bench tested ones; and the centrally grant funded project for developing a “Common RAS” found favour with as many councils again, for a while. But the reason that having one was still regarded as worthy of reiteration in the Guidance, in my view, (now that everyone should be within less than a year of having their own formal statutory care plan and a budget derived from that plan, rather than a plan derived from the budget) was that DILNOT people (shorthand for people with over the capital threshold for being entitled to a financial subsidy from the council through being charged less than the full cost of their care) were not going to be entitled to get a care plan, under the Care Act.

        They were only going to get an assessment, an eligibility decision, and a notional personal budget for the purposes of their individual care account that would record their progress to the Dilnot cap. The idea was that after eligibility, the service would have a basic conversation about whether the person WANTED the council to meet their needs, and if the answer was “No thanks, I am going to buy in my own services, but I just wanted to get my progress to the cap started” then one was not entitled to a care plan.

        If you try to imagine how a local authority worker would struggle to come up with a notional figure, rationally and defensibly, once challenged, without having done a proper care plan, you can see how impossible it would have been to run the system without a really good resource allocation system.

        The best ones already enable staff to compare people’s situation with how much it costs to meet their needs, or at least with how much they seem to need to cope, so if working properly, they are undoubtedly useful, for treating people equitably, and fighting the ‘S/he who Shouts Loudest’ syndrome that can sap morale within a service.

        But once the need to give Dilnot people a notional amount, no longer exists, no council needs to have a RAS.

        They can just follow the old Cambridgeshire case principles, which say coming up with a figure is not that hard: you take the type of care the decision- maker thinks is needed to suit the given area of need, after person centred assessment, and the rough cost of that sort of care. Then you take the rough amount of the service that the professional thinks is needed, in terms of hours, minutes, days, sessions, outings or whatever; and then you multiply the two together, to produce a needs-led budget.

        If a council keeps good records and scores the types of need in a rational way, and its contracts officers are good at sourcing facts about how much things cost, then the council will eventually be able to tell NEW people coming into the system, the rough amount of money they are likely to be given, if they are agreed as presenting a particular needs profile, so that the person can be thinking about their care plan with a realistic figure in mind…

  8. David

    Hello Belinda,

    Thank you for highlighting this case. It certainly does highlight that Local Authorities would put their honed and toned risk assessing prowess to better use in understanding the dangers of focussing on money, without paying attention to what are very basic public law principles.

    In relation to your unfortunate (albeit amusing) experience of the unnamed LA, I would admit to being temporarily flummoxed about why they would consider asking for your advice in the first place if they wanted any more than for you to pat them on the back and say “carry on – all is well legally”. Then I reminded myself that modern local authority risk assessments in truth amount to nothing more one question … ‘what is the chance of us being caught’.

    I have read the case which does indeed shed light on a number of things to my mind:

    1) Given that the events took place before the Care Act came into force, many of the arguments surrounding legal principles now established in statute (such as the duty to involve a person) had already been rehearsed and decided at common law. For example (and this is only one example) that the council did not involve Mr Clarke, and even when a cursory (and it appears late in the day) attempt was made by the local authority to ask his opinion about moving, it was simply ignored, without engaging with whether it was the council’s right to do so.

    2) Although the ruling makes no comment upon the old or new provider’s professionalism, the case highlights two hugely differing approaches for providers. One being principled and conscientious, paying attention to detail. The other clearly unaware of the risk that it is laying itself out to. Who knows what the consequences would have been if Mr Clarke had been moved to the new provider.

    3) The case is a desperately sad example of all things bad about the care world of today. Remembering that the facts of these circumstances involved warnings for medics about possible avoidable death (and to my mind it doesn’t get any more serious than that) I would like to think that this happens occasionally – when a Local Authority completely takes its eye off the ball because of a combination of incompetence, unprofessionalism, under-capacity, awful commissioning, a lack of organisational legal acumen, and plain stupidity. However, I fear that for every one ‘Mr Clarke’ who makes it through the minefield there are hundreds of thousands whose lives and safety are being put at risk.

    Maybe local authorities should risk assess how (and why) they are assessing risk, and think beyond risk assessing if they will be caught. The new Care Act provides an opportunity to attend to a new organisational risk assessment process.

    1. Belinda SchwehrBelinda Schwehr

      Thanks for commenting.

      I think it is quite common that prospective new providers are ‘drummed up’ when a council has decided to remove someone from their current provider, cut their package in half, or not to start contracting for the person with the preferred provider of the person.

      I am not knocking the commitment of any council to finding an evidence basis for its stance that needs can be met more cheaply; this is all public money, and the law is clear that finances being tight is a legal factor to put into the mix of what budget or response is adequate and appropriate for signing off.

      What does happen though in my experience is that the old provider is deliberately made more anxious about competition and the risk of losing a client, and a range of sometimes untested new providers may not be told the full story about the client’s situation or history. So a lower than feasible quote may be obtained, and used to beat the current provider over the head with. I wish providers would get the idea that if they wouldn’t be mug enough to take on responsibility for a high cost client, without a trial period or even meeting him or her, then their real competitors might not either. But undercutting is the name of the game, and this is supposed to be a GOOD aspect of ‘a mixed economy of care’ – with the purchaser market probably not bound by the Competition legislation, but the provider market very definitely threatened with warnings against anti-competitive conduct…

      Even this is not unlawful, as it’s a fee negotiation, not a cut to the package, necessarily – but outcomes based specification, which focus on the contractual obligation being ‘a happy safe client’ as opposed to any detail about what the NEEDS to include by way of even TYPES of input, let alone hours, became fashionable in the great ‘transformation’ and personalisation movement before the Care Act.

      What IS unlawful is ignoring Mental Capacity Act due process rights of the person and people who are interested in their welfare; ignoring the concerns of the current provider just because there is a commercial interest as well as the best possible source of evidence about the impact of moving; and ignoring human rights such as articles 3, 5, and 8. The Care Act obligations to involve ANYONE whom a capacitated person asks to be involved will help here too – it could HAVE to be the current provider, regardless of a council’s preference to keep that organisation out of the discussion.

      This case is the first I have seen which subtly underlines that a person may well be offered a care home placement courtesy of the council’s decision about care planning, and need to move house in that sense; but a person can NOT be expected to move from their own home setting to another own home setting to enable a council to make savings: the new tenancy is not a council’s adult social care service being offered, in any shape or form, but a private contractual arrangement, the making of which has to be the decision of the client, and cannot be made a precondition of a person’s entitlement to have his or her eligible unmet needs, MET!

  9. 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

  10. Mary B

    The potential administration costs alone of the proposals were huge, so yes – a collective sigh of relief across adult social care. This was never going to affordable for local authorities. However, is it worth highlighting that the £72,000 cap was always a bit of a myth? This cap was only ever for ‘care’ and not ‘hotel’ costs, and only at the local authority rate. In reality people would still have been paying significant sums over £72,000 for their placements. At the risk of being provocative, is this necessarily a problem – if people have significant amounts of capital why should they not contribute towards the costs of care – should it be a priority of government in these times of austerity to protect the inheritances of the few at the expense of supporting the most vulnerable.

    1. Belinda SchwehrBelinda Schwehr

      Thanks for the comment Mary. I do think that one of reasons the policy was hard for people to understand was that it was hard to characterise – I could never decide whether it was so right wing that it disappeared around the back to become leftish, in the sense that it transferred risk to the State in order to smooth out unpredictable high level costs for a 1 in 10 section of the population – or so out there in terms of neo-socialism that it became right wing, in the sense that it was going to involve central government controlling the cost of care, by virtue of incentivising people to let councils do their buying for them, and thus becoming uncontrolled monopoly purchasers. The policy was multi faceted and think that one of the reasons it was geared to protecting people’s assets is that any government still needs to encourage people to work hard and save, and it was trying to lay off the risk that none of us knows whether we will need care. Protecting the inheritances of the few seems to be precisely what canning Dilnot has enabled the government to do, mind you, since the inheritance tax threshold has been put up to £1m per couple!

  11. 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

  12. Bridget

    Dear Belinda

    Please can you look at my questions which I believe may affect many people. Please feel free to edit, I may have gone on a bit! Please contact me if you need further clarification before responding. I hope you will consider this as a useful query for others. I can provide my surname too but I don’t want to publish my full name,

    Many thanks

    A very worried parent
    __________________________________________________________________________________________________________.
    Here is the query:

    Can the council take all or most of the mobility allowance?

    My council states that the Care Act allows them to take the mobility allowance to fund day service transport and has included the plan in a draft policy to be implemented in 2016. All service users will need to be reassessed by March 2016 and Support plans revised.

    My son, who lives in supported living, faces losing all of his mobility allowance for day service transport. His remaining transport costs, afternoons, evenings and weekends, will be considered as DRE. There is no guarantee he will be allowed to keep sufficient funds. These charges sit outside of the MIG and there is no MIG for mobility allowance. The DRE transport assessment will determine if he is entitled to keep money for essential travel, leisure, medical appointments, specialist holiday transport, shopping etc. I believe this will put huge restrictions on freedom of movement and the ability to get on with everyday lives.

    Even if transport to the day service is specified in the support plan the council says it can still charge £10 or even as much as £17 per day. Transport has never been separately costed for specialist day services. It has always been included in the total rate for the specialist service.

    My son requires 2:1 support in the community and cannot travel on public transport. He has to travel with trained support workers and I believe this forms part of his care and support needs. My son has complex and challenging needs and it was health professionals and Social workers who identified the day service as the best way to meet his needs and keep him safe. It is likely he will have joint CHC and social care funding but he will still make a financial contribution towards his care. My son did not ‘decide’ to go to the service but the finance team’s view such provision as his decision on how to spend his personal budget and so he is liable to pay for transport.

    The plan is out for consultation but the council is adamant the Care Act permits this, so it WILL happen. In fact, the officers have been very blunt and said they are after the mobility allowance.

    Please can you clarify:

    Is transport for some a care support need or eligible need?

    If transport is specified in the support plan, does the Care Act require the service user to fund from the mobility allowance?

    Can the council take the whole or most of the mobility allowance higher or lower rate?

    Is there a MIG for the mobility allowance?

    Are there equality or human rights implications for restricting travel for the most vulnerable? (Presuming all or most mob allowance funds day service transport).

    1. Belinda SchwehrBelinda Schwehr

      Hello! thanks for your enquiry. I am cogitating about the answer but I would stick my neck out and say this is wrong in principle. Will come back on this one as soon as possible. Loving the question though!

      B

  13. [email protected]

    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

  14. Loma

    Having worked at a senior level in Social Care and worked in partnership with our Health partners over some 25+ years I can only agree with Lord Sutherland. I have thought for a very long time that the Health budget would be more responsive and efficient if managed under local council control. Nothing focuses the mind of a local councillor more than the 4 year elections and ensuring that they are re-elected and the strategy to achieve that objective. The opportunity for a local council to invest in and ensure a high quality and responsive local health service would without doubt help drive up and maintain high standards. It really is a no brainer as not to do so would guarantee losing one’s seat. Whilst Health remains under DH control the local accountability and therefore incentive to improve all such services is lost. I do though somehow doubt Government or indeed the DH would willingly allow such a radical devolution.

  15. Amir

    I find it a positive that carers’ assessments will have regard to the carer’s participation in education. However will this assessment take into account the financial cost for the carer as this can place a financial burden on the family through loss of benefit entitlement. Will this bill address the concerns that carers feel that there is lack of support for carers entering the education sector due to the extra financial resources then needed to care for the child in need i.e extra childminder cost whilst carer is in education. Obviously the finances change when the child in need reaches 18, so will the carer still receive the same financial support if they are in education when the child in need is in this transitional period? More guidance and clarity is needed in regard to this matter. From a political perspective it makes logical sense for carers to be able to be fully supported if they want to enter education; as for many carers this is central to their mental wellbeing, and thus would be beneficial in the long term in regards to the extra support needed if the carer’s well-being declined.

  16. Imran Mohammed

    This is certainly an interesting case in that it raises an important question such as: Are local authorities fully prepared to deal with the challenges that the Care Act presents? If so, how proactive have commissioning departments been in responding to the need of employing extra advocates and who is given priority according to those waiting on a list for an advocate. If a person is in hospital awaiting discharge they will understandably be seen first, due to the nature of the setting, and doctors and consultants urging for a discharge, equally, if a crisis erupts in the community and an emergency assessment needs to be undertaken, how quickly can an advocate be arranged? Also, what is interesting is the language being used, for example, the judge stated: “mandatory duty”, but, this also is also about duty of care and the responsibility to ensure safe discharges to a place of safety. Furthermore with the customer journey practitioners are required to hold onto cases as part of good practice which means the on-going need to involve the advocate at the assessment, support planning and review stage. This case is just the beginning of many more to come and organisations and local authorities really do need to take note!

  17. bigsean

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

    1. Belinda SchwehrBelinda Schwehr

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

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

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

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

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

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

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

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

  18. 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!

  19. 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.

  20. Pingback: We need a new kind of ‘ordinary’ – Alex Fox's Blog

  21. 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.

  22. Xoxa

    Thank you for your blog it is really enightning and very educational I’m enjoying reading your articles.

    I’ve been reading through the national framework continuing Healthcare and I’ve discovered that it is not clear when it comes to the criteria for joint packages of care please can you clarify the criteria for this if you get time.

    There appears to be an overlap of the definitions of ‘primary health need’ being what is beyond ancillary or incidental to the local authority’s provision of accommodation in order to meet needs, or nursing and health services that are beyond what the local authority is expected to provide. The concept of ‘primary health need’ that someone qualifies for NHS CHC.

    The apparent contradiction I struggle with is that in the framework it appears, that the criteria for joint packages from the local authority and NHS are defined by the same criteria for fully funded NHS CHC which is ‘health’ needs beyond what the local authority will provide. Where do we draw the line?

    Is there any case law or Ombudsman’s decisions on joint packages of care that clarify this matter?

    The national framework is divided into two: the legal framework and the practice guidance. Does it mean that the legal framework has more authority more than the practice guidance?

    Prof. Luke Clements argues on youtube that if we plotted Pamela Coughlan’s needs on DST she would not meet the criteria in terms of severe, priorities etc for NHS CHC yet the entire national framework is based on this case as meeting the criteria.

    Please help

    1. Belinda SchwehrBelinda Schwehr

      There’s a lot of information about NHS CHC on my legal website, but here’s the basics, which I hope will explain some of the mystery around CHC.

      Primary Health Need does not mean having a primacy of need for health care (doctors and nurses and medicine) as opposed to social care. It is a circular definition, created by government, in this sense – people who qualify for CHC are those who have been assessed as ‘having’ it, and people who have it, must be seen to qualify. However, there is no hard line that can be drawn, other than the edict that one priority or two severes will do the job. The highly subjective and ambiguous DST mapping exercise for ALL the needs, even the needs that would traditionally come within social care’s remit, is the way the government has directed it should be determined – because QUANTITY as well as quality, and CONTINUITY as well as unpredictability, can all get one there.

      Everyone working in this field knows that Pamela Coughlan’s needs would now only qualify her for Funded Nursing Care, if she were to be re-assessed; but a) judicial review does not set precedents based on the individual’s circumstances, only for the principles of law laid down by the Court – and these have been legitimately moved on somewhat since the Court found the relevant health authority’s approach to be unlawful – by the very existence of the National Framework, even though it purports not to have moved the line at all – and b) she is cared for in a building that counts as a hospital, and therefore there is no justification for re-assessing her – she cannot qualify for FNC, as that’s for people in nursing homes.

      The line has been made harder to reach by the National Framework, consciously, by government, in my view, to stop people in nursing homes ALL asking for CHC or even a split package (ie more than the FNC NHS payment). That is lawful, because the legislation at the time ALLOWED for the government to make health and social care policy – including as to where the line should be drawn, if there is an overlap between health and social care legal powers.

      But the Care Act has made it harder too, to tell with any certainty at all, what is or is not able to be seen rationally and semantically and legitimately as social care, as opposed to only ever health care input from the NHS, by making the definition of things that the council CAN provide, even woollier than it was before. For example, in s8, there is a list of examples, which includes “goods and services”, care, support and accommodation, and even “FACILITIES” without any of the old notional limitations, drawn from policy guidance from the past, such as ‘only the extent of nursing such as one would get in one’s own home from family members’, or inferred from the actual words: “wireless” or “practical assistance in the home”. The only thing it is even tolerably clear that cannot be bought by the LA is the kind of nursing, ever, that a registered nurse would be required to do – the trouble being, however, that that is nowhere defined, either!! Take the administration of medication: it is not limited to nurses, is it? But it’s not one of the domains for eligibility under the Care Act regulations either (although it was, in a draft version, which would have been really interesting, if ADASS and the LGA hadn’t lobbied to get it removed!).

      What is clear is that none of the domains in the DST that go all the way up to Priority scores for CHC purposes are anywhere hinted at in the domains that are now relevant for social care eligibility within the regulations. So to that extent at least, it’s clear that someone has engaged brain somewhere in the Department of Health and allowed for a respectable assertion that there is a difference between health and social care needs. Somewhere. Those fields were Behaviour, Breathing, Drug regimes and Altered States of Consciousness!

      All this surrealism (deliberate in my view) means that joint packages, now explicitly mentioned as something that health and social care services, busily integrating for the spending of the Better Care Fund, SHOULD consider, are legal, likely and still a good idea for at least some people. The sort of person who would get one is one who gets several Highs and one Severe when being assessed for CHC. The logic would be that their scores don’t justify a decision of Primary Health Need, but they do have needs which the LA has no power to meet, and those should be met by Health. This would be through direct NHS commissioning if the need was a need that only Health could commission for, under the NHS Act 2006 (a truly SPLIT package) – registered nurse nursing, for instance, in a person’s own home; or through cross-subsidy (a s256 arrangement from Health to Social care) if the input is merely very extensive and perhaps contributing to creating health related benefit or prevention outcomes, but still in the nature of personal care or some other typically council service obviously within social care’s remit. The point would be that the element paid for by Health, expecially through a pure SPLIT package, could never be charged for, and so the package would save the LA and the client some money that could then be spent on social care for someone else.

      I know of no ombudsman’s or legal decisions on split packages.

      The legal framework governs the validity of the whole of the guidance, but no distinction is now made between the practice guidance and the policy guidance in terms of ‘mandatoriness’.

      Happy Christmas and I hope this helps!

  23. 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.

  24. Julia Roberts

    Good morning,
    In my role I’m new to working with the Care Act 2014 – please can anyone advise me as to its challenges as I seem to be reading that one of the main is the role of advocacy and how it is going to be sustained. Further am I right in saying that this is the first time an act has introduced a more active role in working with prisoners.

  25. 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.

  26. 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!

  27. Mr. Boppett

    Hi Belinda,

    I have been horrified at the advice given recently by my Service Manager to close all the self funding cases. At least one colleague has been put under pressure and forced to close a case, against her professional judgement, simply because the client was a self funder. Having a good basic knowledge of Care Act, it is my understanding that reasons for case closures cannot purely be because of a client’s financial situation. It is my understanding that reasons should most likely be along the lines of achievement of outcomes, determination of non eligibility, reduction of risk.
    Am I correct in my reaction to the above?

    Many thanks

    Mr. Boppett
    Generic Adult Care Fieldworker

    1. Belinda SchwehrBelinda Schwehr

      Mr Boppett! I am just not understanding what you mean by ‘close all the self funding cases’. If the client is self funding, a council would not have a file on the person, to my mind. Do you mean the files of people who are full cost payers, which is a little different? I am not even sure what you mean by ‘close’ – many councils now ‘close’ the cases between reviews, so as to make the workloads look manageable for the staff holding open cases – but the person can come back at any time, via the entry to the system, and the case gets opened again.

      What I can say is that the fact that a person has a reasonable amount of capital does not affect their right to an assessment; their eligibility, or their right to have home care arranged by a council. The only thing it prevents is having their eligible needs met by way of a care home response – because that one type of service is not something that the council is obliged to contract for, if a person has over the capital threshold. Even that rule has exceptions though: anyone who lacks capacity to organise it for themselves and no-one else authorised to do so for them, or willing to contract in their own name for the needy person’s benefit, IS entitled to oblige the council to contract. And of course anyone entitled to the 12 week disregard will be a live open case as well – by definition, they will be on a council contract in a care home, for that period.

      Hope that helps? Do please clarify, if not.

  28. Teejay

    My comment is in relation to Deputyship for Welfare not the LPA as mentioned in your article above. As a mother and Deputy for the Welfare of my daughter who has a severe congenital learning impairment, now in her late 30’s, I would like to see various tiers of local authority management, social workers, front line workers trainers/educators and the like understand what the Deputyship for Welfare is and what it entails, as I fear many social/health workers do not. This may be because Deputyship for Welfare is fairly uncommon and is not given lightly by the Court of Protection to family members who are acting on behalf of their disabled loved one who lacks mental capacity.

    1. Belinda SchwehrBelinda Schwehr

      Council staff ARE supposed to understand about the role of Deputy, I have to say, but I am told that there is no money for training, and no time to expect staff to keep themselves professionally updated. That is why the right to independent Advocacy is so important because Advocates would be there to remind ill-informed and unqualified staff what this status is for. That said, one of the reasons the status is not widely granted is that the Courts have taken the view that there is very rarely any need for a welfare deputy, given that any health or welfare matter would be decided by way of best interests consultation and discussion, by the relevant decision maker in the specific context; and if disputed, the Court would decide the issue by reference to best interests, through an application for a Single Order. The real role, in my view, for a welfare deputy, is to be able to give consent to proposals that need consent; but there are hardly any decisions that the council would take that would require consent, in the end, if the council were responsible for funding the proposal. A deputy can also refuse what a CCG or LA offers, but the danger there is that a robust council will simply apply the consequences of that refusal counting as the needy person’s OWN refusal, and treat itself as discharged from its duty to meet needs. So it is a VERY tricky path to tread, especially when one is emotionally involved! Good luck with it!

  29. Fred Bloggs

    Our LA are “reviewing” eligibility for Freedom Passes.
    They are considering withdrawing some from people with learning disabilities.
    They say they can use their DLA instead.
    Is this lawful? If not, why not?

    1. Belinda SchwehrBelinda Schwehr

      It’s a difficult question because Freedom Passes are not necessarily adult social care services. Very often they are something that the council pays for, or grant funds, as a targeted service for the good of the community in general, and not just people with eligible needs. So, their existence is what makes it possible for councils NOT to fund specialist transport for people with disabilities. What IS clear is that it is not open to an adult social care council to treat someone’s financial means – and their DLA, and especially the mobility component – is part of their means – as relevant to eligibility, under the Care Act. So a canny council will not say to a person ‘you are no longer eligible under the Care Act for a Freedom Pass’. They will say instead: we are allowed to charge you for transport that we provide, even if it takes you below the Minimum Income Guarantee – because there are special rules allowing us to do so for NON-CARE services – one of which is transport. In a convoluted way, that seems to me to be a way of forcing people to spend their mobility component on services that ARE provided to people with issues, without it looking as if the council is taking the mobility component into account for the purposes of charging. If your council is doing something else, and genuinely saying that the person is not eligible because they could PAY the full cost of the transport that is not being provided as a social care service, that is definitely dodgy. Finances are not relevant to the eligibility criteria at all; and a person cannot just be told to go and buy something for themselves!

      Hope that is helpful! L

  30. 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!

  31. Alison Lawson

    Hi – I heard about this and missed it – too late! Is there opportunity to hear this mornings Webinair to then persuade myself and others to buy in to future Wednesday Webinairs? Thanks, Alison Lawson

  32. Mark Donnelly

    Hi Belinda,

    I attended your recent Webinar session, one of the particular elements was around reviewing. It was extremely useful. Can I clarify something (as I do not have the slides, any chance of having them please) my understanding was that all local authorities need to ensure that customers have transitioned to be Care Act eligible by end of June at the latest ?
    If this is so, are we aware of any possible government check or sanction if this does not happen? How will it be monitored ?
    Please clarify
    Regards
    Mark

    1. Belinda SchwehrBelinda Schwehr

      Hey Mark, glad you liked the one I did for community care. Here is the link for that recording, Webinar Recording on Reviews and Revisions and the slides show as part of it when you play it back. You can pause for a better read, any time you like. When people get my paid-for webinars, the slides show in the same way, but I am protecting the slides themselves, as it’s taken me a long time to acquire the knowledge and I want to stay in control of it, despite being ready to spread it wider, now it seems so necessary.

      I think that it is only government expectation that people are on a Care Act plan by the summer: if you have heard June, it sounds like a 3 month period of grace. There is nothing illegal about letting it happen, because the Transitional Order provided for everyone to be deemed to be on a Care Act basis by April 1st. But I do absolutely agree that it could be bad for a person to have been overlooked and just passported over, if the Care Act criteria in the eligibility regulations had not been in anyone’s mind – a person could miss out on a broader more person centred approach. The way England works I expect that there would be tickings off behind the scenes but nothing worse than that, as between central and local government. Freedom of Information challenges come to mind though, along the lines of “How many adults’ social services clients have become entitled to Care Act services, without having been re-assessed or reviewed?” – and then a complaint to CQC, such as has been made about Norfolk, on other grounds, for disregarding the Act. It would also be maladministration to leave it just sliding on; but it would have to be a service user or carer who took such an issue to the Local Government Ombudsman, and very often people are told that they must use the complaint system first. It is also a matter for a Health and Wellbeing Board or an Overview and Scrutiny Committee, in my view.

      Belinda

  33. Sarah orton

    Do LA’s have a duty to reassess all existing service users under the care act even if the person’s needs have not changed?

    1. Belinda SchwehrBelinda Schwehr

      I think that one has to be really careful with language here Sarah – a person can ask for a review – not a re-assessment, if they think that their needs have changed, or for any other reasonable reason. The Transitional Order from government issued last year said that everyone should be reviewed by now, and that ‘a review’ meant an eligibility decision, so that would have involved a Care Act assessment. All such people should now have a Care Act care plan, complying with s25 of the Act.

      But if that exhortation was not followed by councils, and hasn’t been done by now, the Order ensured that everyone not yet assessed would be deemed to be getting their services under the Care Act.

      So, there are plenty of people sliding over to a Care Act footing whose needs WON’T have changed, and they won’t have asked for a review.

      They should now ask for one, not because their needs have changed, but because it is their right to be assessed under CARE ACT criteria, which may be more beneficial for them, than was the FACS framework. If they don’t ask, a council has a duty generally to keep people under review, but my concern is that people could be treated as if still eligible, but without a proper chance to expand their eligibility across the 10 domains. The general position under the Care Act going forwards, is that there is no duty to re-assess, if nothing has happened which the council regards as “circumstances affecting the plan”.

      I hope you can see why I can’t give you a straight yes or no on the question as asked!!

  34. Elissa

    Please may I check an issue arising out of the ‘advocacy and reviews’ webinar?
    I am currently updating my guidance . It refers to the duty to provide ind adv applying for the purpose of review (new para 7.20 ) – how irritating a drafting error made all the numbers move. Section 27 (2) as you say refers to the adv for the purpose of REVISION.
    So is the guidance actually wrong or just interpretable?

    1. Belinda SchwehrBelinda Schwehr

      I think it’s actually wrong, but I spent the day with advocates today whose position is that if they are not able to be involved in a review, how will they ever be able to have any impact on the extent to which the council needs to go back to the beginning of the assessment journey? There is no explicit obligation to involve a person in the Act, in a REVIEW, so I am sure that as a matter of law, the guidance is wrong, but it’s one of those example of where one would want it to be correct. My point is that if a council isn’t providing advocates for reviews, it’s not likely to lose a judicial review, whereas if it’s failing to do so for assessment or care planning or safeguarding, the unlawfulness is much much clearer. If one is writing to the Monitoring Officer for instance, on behalf of a person, it’d be worth referring to the guidance regarding advocacy for review, but I doubt that one would find the council caving in, if that was all it was doing wrong!

    1. Belinda SchwehrBelinda Schwehr

      It depends on how far back you would be asking Chris, and in what context.

      For instance, there are cases about children’s ordinary residence, that were not affected by the case or the Care Act, because they were about children who were still children, and covered by the Children Act 1989.

      If you mean what was the position for transitioning children, ie children who were about to cease being children, and transitioning to Adults’ Services, the case law tended to support the concept of continuity, so in that sense the Cornwall judgement, which was decided on the old law, not the new Care Act, did not change much. At least that was the case if the young person lacked capacity to sign a tenancy and was not someone with a deputy, and was a person needing residential care. If the person was a person who might well thrive in independent living the old council might have taken deputyship and then signed the person into a tenancy out of area, acting not as council, but as statutory agent, and that would have amounted to the person moving elsewhere under their own steam; and that USED to shift ordinary residence to the new authority. The same would have been true of a young person choosing to live in a tenancy, and choosing to live out of area.

      It was really the Secretary of State’s decision in the case before it went to Court that put the cat among the pigeons, by focusing on the concept of where the child’s ‘real base’ was, without regard to the fundamental problem that it took even the judges until it reached Supreme Court level, to really nail down.

      That fundamental issue of ambiguity is that the provisions on ordinary residence under the Children Act, only apply to children whilst children, and the provisions in the National Assistance Act about ordinary residence look back to the moment before Adult Services start to be responsible, without any clue as to what the law should be interpreted to be, when at that very moment, if the person needing adult services is a child who’s had children’s services, then another Act of Parliament, the Children Act, provides for DEEMED ordinary residence even if it’s not where the child is actually living, right up to the moment when children’s services stop.

      That Act does what IT does for ITS purposes, and the National Assistance Act does what IT does, for ITS own purposes; so the job of the Secretary of State, and for the Courts, when that office’s decision was challenged, was to determine whether the purposes were comparable and whether there was a way of making the policy work consistently for the fact that there’s a legislative ambiguity as to what should happen.

      I think the courts did a good job be regarding the policy of both Acts as continuity; and in effect, reading into the wording of the National Assistance Act – that in referring to where a person was ordinarily resident immediately before the council needs to provides Adult Services, the additional words: ‘deemed’ to be ordinarily resident, as well. I think that the law would be regarded as being the same under the Care Act, with this difference: even if the child needs ‘specified accommodation’ as an adult, the old authority will be liable, wherever that accommodation might end up being.

  35. 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!

  36. Jill H

    I’m dismayed that the CQC does not regulate care services for those with severe learning difficulties, unless it’s personal care. My son has been financially abused many times, but neither CQC or the local authority take any action.

    1. Belinda SchwehrBelinda Schwehr

      CQC regulates srevices, of one type or the other, Jill, but appointeeship, which is the means or vehicle used to manage a person’s money, if they are not able to do so on their own, is a regime that is governed by Department of Work and Pensions rules and staff. So if your son has benefits, and the care home or the care provider is in charge of his money, as appointee, then it is to the DWP that you need to go to raise a concern, because management of a person’s money is not PRIMARILY the business of the council, as part of the social services package that the council will probably be the care planner and funder of. Whether or not the perpetrator is the care provider, or someone who has been ALLOWED to exploit your son, financially, the wrongdoing might also be a crime if it involves fraud or abuse of position. If you have raised the issue as a safeguarding issue with the council, the council is obliged to check out with your son, first and foremost, how he feels about what has happened, if he has capacity to be aware of the facts. But if he isn’t capacitated to that extent, then the council has the lead responsibility now, to be making safeguarding enquiries, and if they won’t, then you are entitled to reasons, or alternatively you can make a complaint about ignoring the flagging up.
      I hope that is some help.

  37. Nick G

    Hi Belinda
    We’ve had a couple of paid carers tell us recently that they have been told by their local council that people in receipt of direct payments can only use the DP to pay organisations that are CQC registered. Has something changed that this is now the case or should we be challenging this assertion?
    Thanks

    1. Belinda SchwehrBelinda Schwehr

      It all depends on what you’re selling Nick. If you are selling a regulated service such as prompting together with supervision in people’s own homes (what used to be called a Supporting People type service, very often, when Housing Benefit was available to pay for it as part of sustaining a tenancy) then no-one can properly spend public money on a criminally unregistered agency: the fact is that the service is what determines whether the provider should be registered. But if what you are selling is support and support ONLY, ie, support that doesn’t count as a registrable service in the first place, then anyone can buy it from anyone.

      When a person is given a direct payment by a council, the recipient becomes the commissioner of the service, and so the recipient is not doing public procurement or anything that is subject to special rules – so if carers, managing or holding another person’s direct payment are being told they can only spend it on regulated providers, that is a bit misleading, without going into the question above.

      The holder of a direct payment can choose to buy a service from an unregulated individual, but you sound as if you are a business. So I am thinking that you might be an agency which is merely HELPING people to SPEND their direct payments, a sort of broker?

      If that is the case, and the clients all have mental capacity, or the clients have proper Authorised Persons holding their direct payment for them, and it is the AP who is coming to you for that help in purchasing, then THAT IS NOT A REGISTERED SERVICE, so it would be very wrong of the council to tell carers that that was the position.

      If however you work in a part of the country where the council is still foisting direct payments onto the carers of people without mental capacity, to hold one in their own name, and without abiding by the rules about Authorised Person status, then the council may have grasped that you are in effect being purchased by an incapacitated person which is enough to make you into a direct provider of what you then organise with their direct payment money – and that MIGHT be why they are saying that you should be registered – assuming that the end product is a registrable personal care service being provided to the ultimate client?

      The council is allowed to imposed reasonable conditions on the holder of a DP, but the council is not allowed to constrain choice by imposing unworkable conditions. They can say that the money must not be spent on a particular provider, but not a whole CLASS of providers, especially if it’s not legally the whole truth.

      If I were you, I would ask a direct question to the council’s direct payment support provider, or a Head of Service, if you can’t get any further with what the carers have been told.

  38. londonboy

    This is a great website and I’m delighted to have found it.
    My son in autistic (without an intellectual disability) and was in care as a looked after child. He has PDA and does not accept he is autistic and will not meet any of his family including extended family. This makes him very difficult to help or even protect.
    He is now a former looked after child aged 18. What I experienced as the parent of a neuro-developmentally disabled child in the Care system profoundly shocked me, awareness about his needs was so low. His local authority have put it in writing the they have no’ preventative duty’ in Pathways Planning. Are these children excluded from The Care Act, Autism Act etc by virtue of the Statutory Guidance of the Children’s Act 1989 updated in Jan 2015 as ‘there is no preventative duty set out within that guidance’?
    I’ve asked this question of the Dept of Education looked after children team without a response.
    Do you have any answer to this?
    Also can Autism strategies be challenged if they do not make reference to former looked after children who may not have the protection of a loving caring family. How can the lack of provision be challenged?
    Please do not print my email address to protect my son’s privacy.

    1. Belinda SchwehrBelinda Schwehr

      My mind is boggling here. Are you asking whether someone can be excluded from all the rights in the Care Act just because the Children Act does not provide for a preventative duty? If so, the answer is that you are looking to the wrong body. Now your son is 18, his rights are for Adult Services, and the Children Act only has any relevance to him because Children’s Services and Adults’ Services have not yet agreed the handing over of responsibility. He needs an advocate, under the Independent Advocacy Provisions of the Care Act, (because he will not consent to you supporting him through assessment and care planning, I am inferring from what you say?) and he needs an adults’ assessment, under the Care Act, where there is most definitely a duty to focus on prevention and reduction first. I really hope that this helps you on the way to getting him his due as an adult.

      Duties owed to Looked After Children are not adult services, please note. They are the responsibility of the Children’s team, in parallel to Care Act services, and they are to cover the sort of thing that a young person might hope for from a family on reaching adulthood. Any Autism Strategy should involve co-operation between children and adults’ services because of the timing for transition and the likelihood that many children with or without a formal diagnosis, will count as Looked After Children, by virtue of having been accommodated or in care as a child.

  39. 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 .

  40. 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.

  41. 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!

  42. zatti

    I have been diagnosed as being on the Autistic Spectrum. I have asked for help in the past, but received nothing as I am “High functioning”. We have been in trouble with the law, and got no help as we were on legal aid. I am now reading up on a few things, and I am shocked and sad at how we were let down. This makes me cross, because, although I can deal with it, my husband cannot.

    1. Belinda SchwehrBelinda Schwehr

      Hello – I’m sorry to hear that you’ve tried to get support, and been turned down. On one approach, being high functioning (forgive the repetition of the classification, please!) might be seen as meaning you cope well with what you have to contend with, and hence less needy than others. But one’s intellectual capacity is not relevant to the statutory test for an assessment or any part of the definition of eligibility, so yes, you should be angry. If I were you, I would look up the Care and Support (Eligibility) Regulations, 2014, and discuss with your husband which domains or tasks (they are called outcomes in the statutory guidance) you see yourselves as unable to achieve, bearing in mind that managing those things but with anxiety, distress or endangerment to self or others, or taking a lot longer than might be expected to achieve them, still means that you can count as unable. Then try to write down the significance to you both of the impact on your wellbeing, and have another go, asking, this time round, for written reasons, as per s13 of the Act, as to why you are not considered eligible. Good luck, too.

  43. Belinda SchwehrBelinda Schwehr

    Dr Yvonne Statham on Linked In (not possible to share it outside so I have copied it here – Belinda)
    Chief Executive Officer at Changing Directions Associates Ltd

    Belinda provides clarity, once again, around the legal rights within care. This article focuses on the rights of anyone who may feel entitled to remain a hospital bed. Belinda quite rightly points out the role councils have in providing adequate support in after-care. As most councils are cutting budgets, including the support of after-care, the impact is such that the NHS is compromised and beds are not available for new patients. Surely it makes better financial sense for councils to support the care community rather than the current trend. The NHS simply can’t afford bed blocking & care needs do need to be met elsewhere.

    1. Belinda SchwehrBelinda Schwehr

      I couldn’t agree more, so long as the NHS discharges ALL of its continuing NHS Health Care obligations properly including commissioning proper levels of rehabilitation, intermediate care and interim beds placements for people positively checklisted, and does split packages for those with complex needs in the community who don’t qualify for CHC.

      It always takes two!!

      Belinda

  44. 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.

  45. Sharon Lamerton

    Nicely said Belinda. I have always been concerned about contracts being signed by people who do not actually have capacity to do so and where families have signed on their behalf. People were moved from residential care or long stay hospital care into supported living and were given a Direct Payment to meet needs yet a lot of resources in the community were then closed by Local Authorities with no alternatives being offered. LA’s seem to think that taking a client to the local garden centre and having a coffee is doing something purposeful and meeting need when maybe, in the past, this client was benefiting from an art class or a dance class. Things do need to change for the better but without political support and lobbying this is not going to happen anytime soon.

  46. Donna Ryan

    Excellent article, raised some valid points that are worthy of further discussion. No need to wince as lots of us have taken this view for some time. Having worked in Supporting People team & Social services i can confirm that suitable alternative arrangements are extremely difficult to find. The council doesn’t have an open check book but foremost the rights of individuals with disabilities should always be paramount. I would be interested to learn of alternatives that are working well.

  47. David Minto

    Hello Belinda
    Interesting as I’m currently researching local authority attitudes towards returning Ex Pats. I’m a a social worker on a career break supporting a couple of people who feel they cannot continue to reside in Spain but are currently getting a poor approach from their chosen area of English residence.

    Folks are getting quite anxious with regard to Brexit and the apparent closing door of localism!

    Good luck

    David

    1. Belinda SchwehrBelinda Schwehr

      The Guidance says this and must be followed as it represents the law:

      British citizens resuming permanent residence in England after period abroad

      31) British citizens returning to England after a period of residing abroad (who had given up their previous home in this country) are entitled to an assessment as soon as they return if they appear to have needs for care and support.

      32) Accordingly, a returning British citizen would usually acquire an ordinary residence in the area in which they chose to locate, if their intention was to stay living there for settled purposes. For example, they may have family in a particular area and choose to settle there for that reason or they may have no particular reason to locate in a given area. As long as they can demonstrate an intention to remain in the place they are living for settled purposes, they are able to acquire an ordinary residence there.

      33) However, if a returning citizen presents to a local authority on their return to England but has no particular intention to settle in that area, the local authority may decide they may be found to be of ‘no settled residence’ and/or in ‘urgent need’ (see heading ‘People with Urgent Needs’). Each case should be decided on an individual basis.

      34) It should be noted that ordinary residence can be acquired as soon as a person moves to an area, if their move is voluntary and for settled purposes. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

  48. Elizabeth Bush

    Totally agree. I have recently returned to this field after a gap and, have been concerned to discover that, some of the people I work with have got mortgages despite being assessed as lacking mental capacity around finances. When I questioned how this was happening, I was informed that ‘as long as the person had an understanding, that goods or services had to be paid for, they do not need any greater capacity.’ I do not believe that it is common practice for someone to be granted a mortgage when their income is made up, solely, of benefits.
    I also agree with the views above regarding ‘meaningful activities.’ Meaningful for whom? The majority of the people who I have worked with over the years, prefer to access a wide number of activities and events, in the company of other people with LD. Possibility as this enables them to relax and be themselves in a non-judgemental, non patronising environment.

  49. Neil

    Hi
    It all sounds good but if you are a single homeless man with disabilities, you will just get told to clear of when it comes to housing.
    I have cervical myelopathy, tremors, intense pains, paralysis all down my right side so can’t use my arm and leg and if I fall awkwardly could become a paraplegic. And yet have been left to sleep in the streets by Enfield council for the last 3 months.
    As my health is deteriorating I have come to the conclusion that instead of dying in a shop doorway like many homeless men, I will make my peace in a very public place, to highlight the total inequality of it all.

    1. Belinda SchwehrBelinda Schwehr

      Neil, the difficulty is that your needs for housing are being considered under Housing Law. They should be applying the proper test for vulnerability, and are challengeable on this decision if they come to one that is indefensible, in legal terms. But the law for social services is that that service is not responsible for people’s housing needs, these days, unless a person’s needs are such that they could not be met other than through the provision of housing. Putting that another way, the fact that a person is destitute is not a social services problem; if they are unable to achieve two or more of the specific domains in the Care Act regulations by reason of mental or physical impairment or illness, and having housing would enable the impact arising from the inability to be offset to something less than ‘signficant’, then there could be a chance that Enfield were taking a judicially reviewable position.

      Sorry not to be able to be of more use, but you need advice and information that is credibly correct, from a housing service or a charitable provider, to my mind.

  50. 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?

  51. 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.

  52. 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.

  53. 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.

  54. 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.

  55. Bob

    Hi Belinda,

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

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

    Many thanks
    Bob

    1. Belinda SchwehrBelinda Schwehr

      Hello

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

  56. 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.

  57. Nadia Phillips

    Hi Belinda
    I am hoping you may be able to help/
    My son, now age 19 and a ‘former relevant child’ had to be Sectioned under the MHA 1983, on 19 September 2015. Initially under S2 – he was re-sectioned under S3 and again under S3 and then a 12 month section sunder S3.

    Initially, he was in a Generic Mental Health Facility within our local area, but given him having a diagnosis of ASD (since 2012) and ADHD (2007) – he was transferred to a Specialist (Autism) MH Hospital in Nottingham (190 miles from home); where he remains.

    Since being detained, he has had CPA meetings and his last CPA was on 25 October, we were told at that meeting that a new system, meant another meeting would follow shortly afterwards, called CTR (Care Treatment Review). However, despite chasing this up, the meeting did not take place until 10 January 2017 (announced at very short notice, on 5 Jan 2017).

    Anyway, my ongoing concern in relation to my sons general Care and Treatment/ Care planning etc is the lack of any direct input from our local Social Services or Mental Health (Oxleas Foundation)Team – which means that my son has now been detained for 16 months and despite my repeatedly pointing it out at meetings (with CCG present / NHS England) that there is no discharge planning / Social Services Intervention/Community Mental Health Team?

    My son had a Social Worker when he was sectioned, she is from the Leaving Care Team and had been very unsupportive and unhelpful and clearly did not recognise Autistic traits and how it affected my son. I had made it very clear that my son needed to be seen/input from Adult Social Services and the Social Worker from Leaving Care Team – said she had made referral to them??
    Several months ago – but have had no feedback.. The Social Worker had visited my son a couple of times, but having no authority or understanding of the system and totally not experienced or able to source appropriate support and accommodation planning for my sons return to our local community?

    My son is under CPA and eligible for S117 aftercare. He has a diagnosis of Schizoaffective Disorder and has made amazing progress. He has been taking full advantage of S17 leave, he had his first home leave last week, which went very well. Although he was given 12 hour leave, that included 8 hours of travelling to and from my house. He was assessed by a Doctor from a Specialist Mental Health Hospital closer to home last week and this was successful, now awaiting transfer/available bed? Which should not take very long.

    I have major concerns that my son is now progressing at such a rate, he is almost if not already at the point of discharge /community treatment order? However, Social Services still not involved, no assessments carried out and there is the question of his accommodation being organised.
    My son’s MH Journey/recovery has been distressing, alarming and he has had a very difficult journey to get where he is now. I am concerned without the right support planning /accommodation and very specialist assessed support and intervention, he will quickly return to old lifestyle/habits and problems in community. As he knows no different, he needs help to manage day to day living, keeping a home, making the right choices decision, advice and practical support to find training/employment. Leisure activities /new interests and accommodation is major/key to him remaining in the community.

    I have done all I can to alert everyone (professionsals, Hospital Social Workers, Local Social Services, his Social Worker/ her line manager, CCG and NHS England and Experts by Experience) yet they do not seem to be majorly concerned? I am really beginning to panic. now as I envisaged at this rate, my son will once again be ‘set up to fail’ by Social Services – who have totally ignored all my requests?

    Any advice/information you may be able to offer, would be very much appreciated.

    Many thanks
    Mother and Nearest RelativeNADZ1P

    1. Belinda SchwehrBelinda Schwehr

      Hello

      I have to say at once that I cannot help on this forum with a matter of this type. It is a request for legal advice with enormous significance for your son. You need to a regulated lawyer who works in mental health, and the firm of Lucy Scott-Moncrieff is the best place to start looking. click here I will email more privately. Belinda

    1. Belinda SchwehrBelinda Schwehr

      No, he can’t I am afraid. One only gets the right to be in a hospital through one of two route: being there for hospital services, that are needed, or paying as a private patient. So, whilst he is regarded as clinically needing to be in hospital, he is fine to stay put, but one he reaches a point of wellness that makes doctors see him as fit for discharge, he no longer has the right to stay there. He becomes a person who has outstayed his welcome, and a bed blocker. There are cases that show that a hospital will get a court order for eviction of a person from a hospital bed once all medical assessments of any disputed need to carry on being there have been done and conscientiously considered. If he wants to stay as a private patient he can sign a contract to pay the charges. If he doesn’t want to be evicted but can’t manage in his own home and has no-one willing and able to help him do so, the local authority may well owe him a duty to provide care services, but they are charged for according to his means (not counting his house, if he is going to have care at home). If the council decides that he needs to be in a care home, or does not need to be but could both appropriately and cost effectively be cared for in a care home, without it de-skilling him or overriding his wellbeing, the council can offer a care home as a discharge of its duties. In that situation the value of the house is taken into account and a person often ends up paying for the whole package in the care home.

      This is why responsibility for paying for care is a big issue in the news at the moment. If you save enough money, or are lucky and have willing and able relatives to look after you for free, you get to choose. If you don’t or couldn’t and aren’t then the State provides for you through other people’s tax contributions, so the service will never have bells and whistles on it. Very few people understand this until it is too late.

  58. 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.

  59. Colin Slasberg

    Belinda’s account outlines very helpfully how the prevailing eligibility process works. It illustrates well its complete irrationality. Whilst it’s widely believed the process is a requirement of the law, this is not the case. The eligibility process is a policy choice, albeit one the law permits. A different policy choice, another one that the law will permit, might enable us to find the ‘holy grail’ Belinda mentions.

    Eligibility policies serve the purpose of controlling spend by restricting what the council considers ‘need’ in a way that the council believes will ensure they can afford. They create a circular definition of ‘need’ whereby a need is a need only if there is resource to meet it. This is plainly irrational, as Lord Lloyd for the minority in the original Barry judgement pointed out in 1997 saying that if a child needs a pair of shoes, they need them whether or not it can be afforded. Lady Hale in her minority position in a Supreme Court judgement reiterated this view in 2012 saying she regretted the more rational view had not prevailed.

    A consequence is that ‘needs’ not deemed eligible are reduced to mere wishes of the service user. They are stripped of their status of being needs.

    Belinda says ‘it’s always been possible for a public body to decide that where two places CAN meet needs, there is only one practicable place to meet them, and choosing the cheaper of the two’. In the case in question, it would cost £0.5M a year for the person to be supported at home and substantially less in residential care. But it is not the case that the two places would meet his needs. Support at home is likely to enable him to have a substantially better level of well-being as needs in relation to such as self-worth, independence, self fulfilment etc would be met, but would not be met in an institutional setting. The institutional setting will, however, be able to meet a restricted range of needs – to be fed, watered etc. But life would be miserable. How can the concepts of self worth, self fulfilment and happiness be stripped of their status as human needs?

    But it is not only irrational – and insulting – to reduce needs for wider well being to being only a ‘wish’. It is surely now also unlawful given the Care Act’s nine areas of well-being. The Act requires the assessment to address all relevant areas of well-being.

    Under eligibility policies, councils have no choice but to behave in this irrational and offensive way. They are trapped between levels of resourcing below that required to meet needs for well-being, and a policy requirement that all assessed needs must be met (whether informally or by the council). If they acknowledged the full breadth of needs for well-being as ‘need’ they would become ‘eligible’ and therefore land themselves with unsustainable costs.

    But the Care Act has made it clear that it does not have to be this way (it actually never did, eligibility systems were always only a policy option, albeit dressed up as a legal requirement). Under the Act assessed needs fall into two groups – those that are a duty to meet and those a council has discretion to meet (power). This has the potential to radically change the landscape. It is for the council to decide where the threshold lies between duty and power to meet need. The range of needs the residential option can meet would be those that are a duty to meet. The range of needs that add quality of life can be a power to meet.

    This won’t change the outcome in the short term, of course. The residential option will still be the one offered. What is different is the honesty and transparency of the decision making process. This can have profound implications. The first thing is respect for the service user and for their views. The second is it will enable the service user and council to have an honest relationship – the service user will be told that the real reason why he has not been offered the home support option. And this changes the political dynamics. Belinda says, quite correctly, that under the current eligibility regime, if the service user doesn’t like the decision ‘they need to lobby Parliament to change the law’. This, of course, is completely unrealistic and no doubt said tongue in cheek. What the honest approach will do is make it plain what is perfectly obvious anyway, which is that the level of needs met is determined by the level of resource that is available. So the service user should be sent to lobby their political leaders for a change in funding levels. That is a much more realistic objective. Nobody can know the outcome of such a changed narrative, but is surely the right narrative to develop. It is also much less expensive than judicial challenges.

    A system of resource allocation is needed that is lawful but accepts that it is the political system, not the judicial system, that determines the level of resourcing of social care and therefore the level of needs met. The current eligibility based system denies this. It is quite wrong to say that ‘warehousing’ meets a service user’s needs but in a cheaper way. It meets only some of their needs. But it plays perfectly into the hands of political leaders who can hide behind a judicial process which is prepared to label the needs that make life worth living merely service user’s ‘wishes’ for which, therefore, the state has no responsibility.

    1. Belinda SchwehrBelinda Schwehr

      I believe in free speech and am a generous soul so am happy to give Colin Slasberg the space to air his views. But I do not agree with their correctness in legal terms. My view is that if the definition of deserving need were to be reduced to the political arena, he who shouts loudest would always get the most. I believe that law – public law – for all its weaknesses – is the only answer to the fact that welfare provision is not the same as social security and HAS to depend on a professional’s view of need, not the member of the public. It is the fact that people aren’t aware of their rights, and that even when they are, they can’t do much about them, that has driven me to conceive of a free legal advice charity to help such people enforce their rights, such as they exist. I am interested in fidelity to the legal framework, as it has been passed by a Parliamentary process, and contributed to the framing of the Care Act. In my view it is simply not helpful or relevant to speak of what might have been, or should have been legislated for. Even if Colin were right, in legal terms, when he suggests that the duty to promote well-being somehow turns people’s personal and widely varying aspirations into outcomes that MUST be financed by the rest of us through taxes, instead of merely informing the discretionary view subject to public law, there would STILL have to be a professional’s decision as to how much of anything was ever defensibly enough. The legal test of that concept at the moment is whether no other body in the same boat would consider a similar decision to be rational and lawful and the judge decides whether the position on the offer is defensible, taking credible professional consensus into account. I agree that the power to meet need in a better than the cheapest way is all important, (the full webinar includes a reminder of that power for all) but the legal fact is that a lawful answer to the suggestion would still be ‘No, after due consideration, we still think we haven’t enough money.’

  60. 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

  61. Rembrandt

    HI
    I have been trying to move my son from a care home that fraudulently said they were Autism Specialists and has delivered poor care since April 2013. Two best interest meetings in Dec 2013 and March 2014 agreed to move him and were then ignored by the CCG who are funders- the BI decisions were under the auspices of the “subcontracted” Commissioning Support Unit.
    A barrister we consulted said we needed to prove my son’s needs weren’t being met. An ” Autism Expert” was agreed and jointly funded by CCG and family and reported that my son should be moved as his needs weren’t being met in February 2016. The CCG had now taken the case out of the hands of the CSU. Then in July 2016 the CCG was taken into Special Measures.
    In Oct 2016 the CCG said there must be an assessment of needs as it was 20 months overdue. This was done and the CCG are now disputing he qualifies for CHC funding with the LA disputing back the other way. All this time I have been raising and evidencing concerns and even abuse in the home. Unbeknown to me, at the time of my original complaint the CSU were negotiating with the provider concerned an extremely lucrative new contract for a purpose built home described in a press release as an “Autism Care Home” that had been lacking in the county. The new facility was to be a 21 bed home and press release said the venture was “With the backing of NHS ****shire”. My son was the first “guinea pig” client of NHS ****shiire with this provider. No mention of this project was ever made nor conflict of interest expressed. We have been subject to overt bullying and intimidation-and still my son is in a home of poor care,unsafe inflated marketing claims and devoid of good standards, ethics, honesty, training etc. Nothing in procedure has afforded any redress. It could serve a textbook case of the worst possible scenario of care law pertaining to a vulnerable adult at every possible level. Please, please help

    1. Belinda SchwehrBelinda Schwehr

      Taking this bit by bit – it sounds like an episode from a surreal TV drama and you can possibly go to NHS England about it. They supposedly provide light touch supervision of meltdowns in CCGs – they are part of the chain of accountability to the Secretary of State. Special Measures should mean that the new management is under more scrutiny than before.

      b) “the BI decisions were under the auspices of the “subcontracted” Commissioning Support Unit.” These decisions could have been recommendations only, to the CCG unless the CSU had power to effect, and not merely recommend, care planning decisions. So this is ambiguous at present, I appreciate that it has been superseded by the sacking of the CSU by the CCG.

      c) An “Autism Expert” was agreed and jointly funded by CCG and family and reported that my son should be moved as his needs weren’t being met in February 2016.
      That’s enough for NHS England to be bothered, and to have justified judicial review, but I expect you were told to complain. It’s not too late to do either, if you act quickly but the later details make it a case where ironically it could be said to be premature, given the fresh assessment.

      d) “in Oct 2016 the CCG said there must be an assessment of needs as it was 20 months overdue. This was done and the CCG are now disputing he qualifies for CHC funding with the LA disputing back the other way.”

      How very typical. Kind of makes their having paid for the independent expert’s input, a bit of a stalling tactic, doesn’t it?

      Have you been asked whether you wish to appeal? You might not have cared who is legally liable, because whether the service was chargeable or not might have been of no significance to you. However, if you appeal, you could have been using the IRP system, to get the decision reviewed, proactively, I would suggest. If you don’t appeal, it would just be the two bodies slugging it out in private in their no doubt tortuous inter agency dispute resolution mechanism.

      e) All this time I have been raising and evidencing concerns and even abuse in the home.

      What’s been done and to whom and by whom? CQC? NHS England? The Equality and Human Rights body? The special measures management?
      Insufficient detail here, I am afraid.

      f) Unbeknown to me, at the time of my original complaint the CSU were negotiating with the provider concerned an extremely lucrative new contract for a purpose built home described in a press release as an “Autism Care Home” that had been lacking in the county. The new facility was to be a 21 bed home and press release said the venture was “With the backing of NHS ****shire”. My son was the first “guinea pig” client of NHS ****shiire with this provider.

      I am sorry but I am not understanding this because of the way you have expressed it: he was supposed to be their first client in the FUTURE, for within the new home, if the deal came off, or do you mean that he WAS BEING guinea pigged during all your concerns about abuse and incompetence? Just not clear I am afraid.

      You mention a complaint here for the first time? Do you mean a formal complaint, or an informal one, a flagging up, etc?
      Do you mean to the NHS complaints system, or do you mean to the provider? Without the detail of whether this was upheld or not and if not why not, I am in the dark.

      g) We have been subject to overt bullying and intimidation-and still my son is in a home of poor care,unsafe inflated marketing claims and devoid of good standards, ethics, honesty, training etc. Nothing in procedure has afforded any redress. It could serve a textbook case of the worst possible scenario of care law pertaining to a vulnerable adult at every possible level.

      It could, perhaps, but not without more detail. It may be that this is your perception because the home has felt that you have made it difficult for them to get on with their job: I am just hypothesising here – but such disputes can and do happen and if the CCG is legally illiterate it will not have known how to get the parties round the table to thrash out an agreement for all staying calm.

      I can comment on this in order to elicit the details but you have already been to a barrister but not said what the current advice is, nor what is currently going on.

      I charge for advice through Care and Health Law, and you are welcome to seek it but not in this sort of a forum. This is for steers. When the charity that I am starting is launched, this sort of matter would be taken on for free but only with one outcome: a pre action protocol letter threatening legal action in judicial review, and I am guessing that you have been advised that for some reason this is not a current possibility, by professional advisers, so I think that there may be more complexity behind this than first appears.

      regards

      Belinda

  62. 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

  63. 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….

  64. Anon

    Wonder also about the care act promise for a zero cap for those who develop or have care needs before age 25. Anyone know about that please. Still a commitment or not?

    1. Belinda SchwehrBelinda Schwehr

      Not heard a sausage about that. I recall the consultation on that aspect of the Dilnot suggestions being mired with concern about all sorts of things: it was one of the things that made the cap look so much like it was focused on getting as many elderly people as possible going for care through their councils so as to control the cost of care home care even more effectually. Also there was concern about hard lines around a given date of deterioration: the last month before one was going to be 25 it would have become essential to register for a need! And it was kind of assuming that if you were under 25, say with a learning disability, you’d never be winning the lottery or receiving any other inheritance, so it was overly favourable to a particular category of client. All in all, I don’t think it would be a flagship part of any new scheme, personally. Belinda

  65. 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

  66. 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.

  67. 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

  68. 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

  69. 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

  70. 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

  71. 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

  72. 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

  73. Confused

    I have been reading about the various ways in which policy has been used to create particular ‘categories’ of people to facilitate their governance and came across your site when I too was wondering why all of a sudden people with a diagnosis of learning disability and people with a diagnosis of ASC were lumped together like this. I understand that the drive for all the new legislation was the Winterbourne scandal, but who decided this was the best way of addressing the ‘problems’? And why is no one else (that I could find, anyway) questioning this conflation of autism with intellectual disability (and of course the problem of legislating for both ‘challenging behaviour’ and ‘mental illness’ as though they are the same thing)??? Are you aware of any research that looks into this new ‘trend’? I really wish it was service users / those diagnosed who made (or rather, un-made..) legislation, rather than people who are already empowered by existing systems and frameworks…

    1. Belinda SchwehrBelinda Schwehr

      I think that the Care Act wording overall, might have been expected to have lessened the tendency for the natural and sensible grouping of staff with a particular client group expertise, then leading inevitably and unfortunately, to silos for ‘this’ sort of client, or ‘that’ sort of client…because it got rid of any ‘threshold’ criteria for qualifying which referred to any age, (other than 18), disability, or ‘status’. But in the real world, those groupings have persisted and the arrangements within councils and CCGs still seem to determine expectations for who qualifies for what.

      The practical reason, I think, for the alignment of people with learning disabilities and those with autism related issues, was because places like Winterbourne View and Assessment and Treatment Units in general had a clientele with one thing in common – the need for the management of very challenging behaviour for the sake of the clients and for others – and because BOTH of those sources of difficulty mentioned can and do give rise to that sort of care and support (and CHC status) issue, for different reasons (lack of absorption, retaining, understanding or insight, or communication difficulties in the case of some severe learning disability clients, and sometimes lack of ability to weigh information up and down due to rigidity or entrenchment and/or communication difficulties, in the case of autism clients).

      Also, both sets of people can end up sectioned, or start and remain in situ in such settings, as ‘voluntary’ patients, on paper. In real life, given the paucity of available services out there, to enable people to re-enter the community, they are harder to care plan for. So once Winterbourne View had hit the news, the powers that be seem to have decided that a project and a lot of project managers were needed to solve that problem….

      In my view, anyone in an assessment and treatment unit is either entitled to s117 services or a proper package of appropriate adult social care and/or some or a lot of NHS directly commissioned input. The budget is not able to be capped, in legal terms, if there IS a willing and able provider to meet need. I think that that is the legally most dangerous fact for the powers that be.

      If one knows some law, one would have to ask WHY is nobody bringing judicial review proceedings in relation to the speed or grasp of s117 or ordinary Care Act care planning for these people, instead of everyone going to endless ‘Care and Treatment Reviews’ and waiting and waiting and waiting, when the problem is clearly a commissioning problem: the rate at which care is being sought.

      To my mind, those who lived and made their names through faith in the notion of a mixed economy of care leading to a successful functioning market for health and social care commissioners, need to put their money where their policy mouths have been for years, and simply pay the going rate. Clients due their ‘freedom’ in the community should be using law and legal principles to hold commissioners to account, for the absence of appropriate care providers or care settings.

      I think that those people who would be regarded as high or very high functioning autistic clients would not have been so likely to have landed up in such settings. I know that the concept of ‘mental disorder’, rather than ‘mental illness’ in the mental health legislation is now wide enough to cover people with autism. But in the Care Act, the wording of physical or mental ‘impairment or illness’ is used as part of the qualifying criteria. I think it would have been better to use the word ‘disorder’ or ‘condition’, but at least it means that people with autistic spectrum ‘disorder’ are able to qualify for Care Act services.

  74. 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

  75. Nyomi Shafiqueq

    I am having concerns about a care home , I have raised to my social worker and ask her I want a monitoring officer to go to care home, social services are saying what’s this ???

    1. Belinda SchwehrBelinda Schwehr

      The monitoring officer is not the right route to use for concerns about what is going on in a care home. If you read the blog post on the Monitoring Officer’s role, on this site, you will see that the Officer is in charge of governance of the local authority’s practice and processes, in light of a concern that IT, the local authority, is doing something ILLEGALLY. If you are worried about a care home, the only reason you would be taking that concern to the Monitoring Officer is if the care home was run by the local authority, and even then, it would be more likely to be a CQC issue, as the CQC regulates ALL care homes.

      It is not unusual for social services to be puzzled when people refer to their Monitoring Officer – as local authority staff don’t often come across anyone who’s heard of this mandatory official position that every council has to have. However, it is usually the chief lawyer, these days, so that is the other person to ask for, when you DO have a genuine concern about local authority illegality. I repeat that it doesn’t sound as if your concern is a matter for the MO, but instead, is a CQC issue.

      1. Nyomi Shafiqueq

        Than you so much for your reply. I am at a lost to know where to turn; my 24 year old son has been given 30 days’ notice! I think that this is because I have raised some concerns about his care, which I feel amounts to neglect, unexplained bruises, marks, dirty clothes, not following his dietary needs, no interaction, or structured activities, lies and misinformation with all staff, so my son has regressed!!!! He has lost weight, and become very anxious. I have raised these issues with the social work team, and they are just ignoring them, saying that they don’t feel it’s a safeguarding matter. Also my concerns is in 5 days the 30 days’ notice is up !!!! And there has been no alternative placement put in place. I have requested an advocate but the local authority tells me there’s a waiting list and they are unable to get one for the coming meeting next week. To discuss moving forward!!!! I am extremely concerned that the authorities are going to propose a placement behind my back. I have no deputyship over my son for his welfare as this is still ongoing with the CoP. Any advice please? thank you

        1. Belinda SchwehrBelinda Schwehr

          Let’s take these things separately then:

          “My 24 year old son has been given 30 days’ notice! I think that this is because I have raised some concerns about his care, which I feel amounts to neglect, unexplained bruises, marks, dirty clothes, not following his dietary needs, no interaction, or structured activities, lies and misinformation with all staff, so my son has regressed!!!! He has lost weight, and become very anxious.”

          These are issues for the home’s management, its Board of directors or trustees, and ultimately for CQC.

          Some of them will be regulatory breaches of the home’s permission to be in business. The system is that you raise it with the home’s management first. They either answer you satisfactorily, or fail to, in which case you raise it with CQC.

          The point that you must make is that the care home is a public authority for the purposes of the Human Rights Act and that it is a breach of article 8 to give 30 days notice without making conscientious efforts to resolve the circumstances that have led to notice being given.

          After proper consideration, it may be the home’s right to give notice, because (possibly) your son’s needs have increased beyond a level which the home can or is willing to resource, given what it is paid, regardless of its own practices – or above what it can seek to get the fee increased to by way of a review of the price – if the council is rejecting any requests for an increase. In that case, the ultimate protection for your son, faced with an unwilling provider, is that the council still owes him a duty of care, and must find a suitable alternative, and only after following all due process obligations regarding his re-assessment, revision of his Care Act care plan, and consultation of best interests consultees if he lacks mental capacity.

          I accept that the notice might also have been given just because you have raised concerns, and the timing of those and any correspondence going back and forth will be relevant to whether you are right about that – but that sort of a reaction would be such poor management practice that the manager should be in fear of losing his or her job and professional reputation, if the manager is properly trained. That is why you should raise it with CQC, and ask that body, as regulator, to state in writing what their stance is on this sort of practice. If in fact the stance of the care home is that you yourself are making it impossible to keep your son as a client, you need to step up to that position and decide whether it is true or whether even if it is not, you can moderate your own expectations of the home. I have to say that, because there are plenty of cases around where in fact an over anxious or unrealistic relative needs to be made aware that it is they who have in fact wound a home up to such a pitch that it can no longer see the economic sense in keeping the client, profit or no profit, reputation or no reputation, any longer. I do not mean this personally of course: I cannot possibly know more than you have told me online.

          The fact that the placement is commissioned by the council is also relevant in relation to what might be going on behind the scenes, and safeguarding. Councils are allowed to take a view whether anything further need be done by way of an enquiry if they think that there is some other way of dealing with an issue: if they are buying a really ‘rubbish’ service, then the council is not getting value for money, and their commissioning team could be holding the provider to account under the contract that will be in place. On the other hand, if the poor service is actually because your son’s needs have been increasing and the council has been ignoring requests from more money, for more staffing or whatever, that would be the council’s own fault and then saying no to treating the matter as a safeguarding issue would be wrong in itself.

          Secondly, you have said “I have raised these issues with the social work team, and they are just ignoring them, saying that they don’t feel it’s a safeguarding matter.” They are not allowed to just ignore it without a rational set of reasons. See below for more help in this regard – only you know what you have done to document these concerns so far. You are entitled to know WHY they do not see it as safeguarding.

          The bottom line is that unless notice is withdrawn, because the dispute has been resolved, then an alternative has to be found by the council. That is because care homes take clients out of choice, not out of duty, and there is no security of tenure in a care home. So your son and his things could be put out on the doorstep if the provider was willing to take the risk in doing that. In reality therefore, that is unlikely because most providers are too worried about their own reputations and injury to the person to do that – but councils exploit those fears in turn, and that’s probably why there’s not the urgency to the situation in real life, that the situation would seem to commmand, from an outsider’s view.

          Thirdly you have said that “Also my concerns is in 5 days the 30 days’ notice is up !!!! And there has been no alternative placement put in place”. The legal position is that the authority is the legally liable decision maker for what it must next do, but would be acting illegally if it took no proper steps to identify alternative accommodation in the light of notice having been given. That would be a breach of the Care Act and a breach of human rights, and that’s the sort of thing you CAN refer to the Monitoring Officer. See below as to what to do about that.

          With regard to this concern: I am extremely concerned that the authorities are going to propose a placement behind my back. – the legal position is that they have to involve you and are obliged to take on board your thoughts about your son’s best interests under the MCA before physically moving him, if he lacks mental capacity to consent to moving in his own right. They do not have to get your consent as a mother as the council is responsible for meeting your son’s needs.

          It is important to realise that welfare Deputyship would not necessarily help even if you had yet acquired it from the Court of Protection: it gives you power to refuse consent, but no power to make any demand which your son could not himself make, in legal terms. If you had welfare deputyship, and you refused consent to his being moved, despite the care home having been given notice, you would be treated as refusing on his behalf, and although it would mean that he could not be moved to another care home and DoLS’d, because of the No Refusals condition, it would also mean he would be regarded as refusing the offer of a new placement by the council, thus discharging the council from its duty of care – you would not want that. And it would mean that he would risk appearing to be making himself liable for the fees as a private payer, by refusing to vacate the current home, which could be disastrous.

          So my advice is that you show this to the manager of the care home, the CQC, the council’s care manager, and their line management, and say that unless there is either a renegotiation of the notice, between them and the care home, or a sensible plan for identifying an alternative that will meet his needs and compliantly with his human rights and needs, properly reassessed under the Care Act, you will be going to the Monitoring Officer.

          You should also say that you require from the council’s safeguarding lead, a written explanation of why the council does not regard a) your concerns about the care home and b) the home’s apparent reaction to your having raised them – as a breach of human rights, and thus a safeguarding matter. The decision as to what to do when a concern is raised, under s42 of the Care Act is itself a public law decision which has to be taken rationally, so in the absence of reasons that make sense, you will also be passing that matter up to their head lawyer, as Monitoring Officer. That officer then has to act according to statute, him or herself, with regard to forming a view about illegality, as per the information on the Monitoring Officer blogpost on this site.

          Hope it helps. I do sell advice for money at the moment, privately, but have put this online as it may be helpful to other people and the bodies in question.

  76. K

    Currently, the law makes it very easy for councils and social workers to breach the Care Act with impunity. Legal literacy will not change this. We need the law to protect us service users better. The Care Act explicitly states what the rules are. The problem is not legal literacy. The problem is, staff are allowed and encouraged to break the rules because they know they can get away with it most of the time. They know very well that it’s near impossible for service users who are often the poorest, the most vulnerable in society and the least able to defend themselves, to file a lawsuit and succeed against the authorities who are very well protected by the best legal teams.

    Lack of funding is often blamed for poor health and social care. Yet, social care and NHS bosses receive extravagant salaries.

    The problem is hypocrisy and corruption.

    1. Belinda SchwehrBelinda Schwehr

      Thanks for your views. I think that there IS hypocrisy; and some corruption in the commissioning of social care – and some anti-competitive conduct on both sides of the buying and selling divide. But I don’t agree that legal literacy would make no difference. Here’s why: I absolutely agree that staff are allowed and encouraged to get away with as little as possible, when making decisions about eligibility and care plans, but that is made possible by their lack of legal awareness, their lack of self esteem, their lack of feeling like real professionals. Real professionals make judgements, and grasp that a different professional might take a different view and that neither of them might actually be being negligent. That’s the point about judgement. But NHS and local authority culture – having been done over by rampant managerialism and long having been one where the Budget drives all decision making, all appraisal, all promotion, all status, etc, has meant that the rule of law ABOUT the rights and wrongs of MAKING those important judgements has been forgotten. If staff knew how to speak truth to power, about the unlawfulness of some of the instructions being given to staff – and why they would not therefore be following them, given their HCPC registrations – particularly ‘review’ staff – then the vulnerable and dependent would be better assessed and provided for, and there would be more equity in the system, and the true cost of social care would be something we could debate nationally, and sanely, in my view.

  77. 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.

  78. 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

    1. Belinda SchwehrBelinda Schwehr

      Happy with the first, as a myth, but not the second – because if that was a complete myth, nobody would be working on a zero hours contract for an agency. The PA here might be putting up their rate willy nilly, and we’d all be underwriting that. The local market rate could well go up though, if all PAs do the same thing….

  79. Stave Jones

    My grandmother is currently in an NHS rehab unit. She has been there for 16 weeks and whilst we agree it is time for her to move on, she needs to go to residential care. Although her needs are complex, they aren’t classed as nursing. She has been refused from two homes we would’ve been happy to send her to on the grounds of her mobility. Other homes suggested by social services do not meet her needs and further to this are very far away from us, her family, who she relies on to communicate her more complex needs as her English is only conversational and basic. We have found a home that has accepted her, that meets her needs and can provide her with a safe environment but it requires a top up. We as a family can contribute £100 per week. Social services are refusing to meet the rest of the fee. Can they evict her from the rehab unit although they haven’t provided somewhere that we deem safe for her to go? And if so what’s the process? Thanks.

    1. Belinda SchwehrBelinda Schwehr

      This sort of thing is happening all over the place in my experience, either from rehab or from acute hospital beds. If the NHS has properly decided that the patient is fit for discharge and does not qualify for any further NHS services, then yes, the person is blocking a bed and could be made to give up possession. Social services is however liable for someone who is eligible, and must have discharged ITS responsibilities properly too. SUITABLE accommodation must be offered, where there is a vacancy that is offered; a home that is not suitable is not a lawful Care Act offer. Whilst suitability is a matter for councils, the judgement is subject to judicial review, and the emotional and psychological aspect of ongoing relationships with visitors is a hugely relevant consideration for promoting wellbeing, and meeting needs in a defensible way.

      All councils are obliged either to pay the full amount of a suitable home if none can be found that are willing to take the person at the council rate; that is not a top up, but simply the council doing its duty to meet the needs.

      A council can refuse to make up a shortfall between its rate and what’s left after a top up that the family can afford, but only if the rate paid by the council is defensible in the first place, and it is often not – when top ups are more the rule, than the exception, for instance.

      So the way forwards is openly to suggest that the council and the NHS unit should co-operate under s7 of the Care Act and make your objections to the homes offered explicit, with regard to not promoting wellbeing. That way it will be clear that you are not obstructing your grandmother’s rights to a safe discharge but standing up for the full extent of her rights to a sufficient budget.

  80. Nadia Comish

    My Dad was in hospital, he required a nursing home and after a DST we only got FNC funding. We then began looking for a nursing home. In the mean time the hospital moved my Dad to a separate nursing home as a sort of intermediate until we found a home. This was done without our knowledge or approval. My Dad lacks capacity but no meeting took place before he was moved. Is this legal? The nursing home he went to was too far for my mum to even visit!

    1. Belinda SchwehrBelinda Schwehr

      Hi there
      When a person is in hospital and ready for discharge they can’t stay there forever (and who would want to?) and their rights, if any, to free care from the NHS have to be determined first before it becomes any other agency’s responsibility under the Care Act. So after it was determined that he did not qualify for CHC, and instead, for the FNC payment for care in a nursing home, and chargeable privately or through social services charges if the council was liable to make the placement contract, it would be necessary for him to be got to that care home. when you say the hospital moved him, you might mean an ambulance was used, but that doesn’t mean that the hospital was actually responsible for touching him, conveying him and parking him at the care home. It might mean that the council was responsible for doing that, and an ambulance was provided through joint working arrangements. The bottom line though, is this: IF he lacked capacity (he might have been able to give consent to the hospital staff on the day, I can’t guess at that) and IF your existence was known to whoever took this decision, it was UNLAWFUL to purport to take a best interests decision to make that journey without consultation of yourselves. You were without a shadow of a doubt, best interests consultees, and the only justification for not involving you would have been a decision that something you’d previously said or done was so anti-social or offensive that they it was not practicable to consult with you. I can’t guess at that either, of course. The phrase ‘sort of intermediate’ does not clarify who PAID for this home for the period before a final move on from that first home was arranged, but ANY INTERIM, INTERMEDIATE, RE-ABLEMENT or REHAB bed, MUST be suitable, and appropriate, and that means taking account of the person’s connection with partners and relatives. So, again without a shadow of a doubt, if it was not reasonably practicable for your Mum to visit, it was not a proper lawful discharge – regardless of whether it was done under the NHS legislation or the Care Act. What you now DO about that view of course, is another matter. I hope things were ultimately resolved to everyone’s satisfaction. Belinda

  81. stephen

    Hi
    re: S117 ‘top ups’
    further to “117A After-care: preference for particular accommodation
    ”(2)Regulations under this section may provide for the person concerned, or a person of a prescribed description, to pay for some or all of the additional cost in prescribed cases.

    My question is does this extend to or is there an equivalent for community based aftercare services e.g. if a person has a DP set for example at £12 p/h but wants to use their DP for support that costs £13 p/h can they top up themselves?

    1. Belinda SchwehrBelinda Schwehr

      I’m sorry but the question makes no sense in its current form. A top up is an amount paid by a service user’s relative or friend (only exceptionally is the service user able to make the payment for ordinary residential or nursing care placements) in a registered setting where the council is placing the person, and the top up is for wants rather than needs, and the top up amount is by law included in the amount the council pays to the home.
      A Direct Payment is the transfer of funds equivalent to the cost of meeting needs appropriately and adequately to the client, usually net of any charges (and none would be netted off for s117 patients). BUTT THE PERSON WOULD THEN BE SPENDING THEIR OWN MONEY in any contract for the purchase of services that cost more than the direct payment would fund. NOBODY CAN STOP A PERSON SPENDING THEIR OWN MONEY – that’s not a top up, properly so called. That’s a choice as to how to spend your own money. So yes, a person can do that. That does not mean that they should: it may be that the amount they have been given is inadequate to meet their properly assessed needs, in terms of the amount of care they can buy or in terms of the market rate for the type of care that’s needed.

      1. stephen

        Trying to clarify ‘aftercare’ as opposed to ‘care and support’ options (and settle a discussion we are having here).
        The Care and Support and After-care (Choice of Accommodation) Regulations 2014
        Does reg5 para 5 (qualifying in what circumstances the person themselves can top up their own care home fees in relation to care and support arrangements) apply to people whose accommodation is being made under aftercare.
        Reg 4 covers aftercare and makes reference to certain para’s of reg 5 but this does not include para 5 ( for myself I was unsure why reg5 para 5 would be required as crag isn’t being applied for in aftercare arrangement’s).
        Would be interested in your thoughts
        Regards
        Stephen

        1. Belinda SchwehrBelinda Schwehr

          I think it’s totally clear that regulation 4 provides s117 people with the same rights of choice of accommodation (- where that accommodation is arranged and commissioned by the s117 authority), as people have under the ordinary Care Act, albeit that the ordinary Care Act route to calculating a top up for an ordinary client is by working out a sum that sits on top of a fee that is being charged for under the means test regulations, which is not the case for a s117 client who will by definition not be charged for what they are provided with under s117.

          People whose housing does not have to be specialist housing for the purposes of mental health act aftercare, will not get that housing in a care plan under s117. That is, where it is secured through the signing of a tenancy, it would not be part of the actual s117 care provision PLAN, albeit part of what the person’s situation requires to be in place in a more general sense. A good example is if they needed SPECIFIED ACCOMMODATION for personal care purposes, for instance. Or just a roof over the head, like anyone does, as opposed to specialist supported living mental health aware supervision.

  82. stephen

    Hi
    I am trying to interpret CA provisions regarding O/R in relation to people leaving custodial settings who need specialist accommodation.

    I have looked at statutory guidance
    ‘’17.48 The deeming provisions in section 39 of the Care Act, which provide that in most circumstances a person’s ordinary residence is retained where they have their needs met in certain types of accommodation in another local authority area, do not apply to people who are leaving prison.

    (I expect because they have not CHOSEN the setting).

    However, local authorities can reasonably follow the approach set out in section 39 for people who are due for release from prison. Therefore, where a person requires a specified type of accommodation (see chapter 19 on ordinary residence) to be arranged to meet their eligible needs on release from prison, local authorities should start from a presumption that they remain ordinarily resident in the area in which they were ordinarily resident before the start of their sentence.’’

    So if person was in LA ‘A’ before imprisonment, is now in approved premises (located in LA ‘B’) and needs specialist accom, is that for LA ‘A’ to provide (or LA’B’)?

    If the person wants to live in LA ‘C’ but still needs specialist accom (and has mental capacity to consent to welfare arrangements) is it LA ‘A’, ‘B’ or ‘C’.

    Does it make a difference if they can not return to a specified area in LA A (but are not prevented form the wider LA A)

    I am unsure of the relationship between the last sentence of 17.48 and S39 (1) (b) in terms of the person being at an AP unable to return to their address prior to custody and whether this in effect makes them of no settled residence (based on now) or if O/R prior to custody prevails.
    (hope this query makes some sense)
    l Would be grateful for your thoughts

    many thanks

    1. Belinda SchwehrBelinda Schwehr

      How I wish I knew what sort of ‘approved premises’ you were talking about Stephen. I have looked up the term, and do not think that we are talking about one and the same thing: I was thinking that you were asking about release from prison at the end of a sentence, but I think that you are perhaps talking about the release of indeterminate prisoners on licence, or determinate prisoners regarded as high risk and under MAPPA provisions. If so, the answer is simple: taken from the National Offender Management Service guidance, April, 2016:

      4. Adult Social Care Eligibility

      4.1 In the community, local authorities are responsible for meeting eligible care and support needs for people ordinarily resident in their area. The relevant Acts for England and Wales clarify that adults who are detained in prison or residing in approved premises in England and Wales are treated as if they were ordinarily resident in the area where the prison or approved premises is located, regardless of where they have lived prior to imprisonment. The relevant Acts also apply to people aged over 18 years in young offender institutions, secure children’s homes in England and Wales and Secure Training Centres in England. Adults bailed to a particular address in criminal proceedings are, like those in prison or approved premises, treated for the purposes of the relevant Acts as ordinarily resident in the local authority where they are required to reside.

      4.3 If the person previously detained under the Mental Health Act 1983 was ordinarily resident in the area of a local authority immediately before being detained in hospital under the Mental Health Act, that local authority will be responsible for their after-care while the person is in prison and upon their release from prison. However, if the person was not ordinarily resident in any area immediately before detention, the local authority responsible will be where the person is resident or where they have been discharged (i.e. the local authority responsible for the prison to which the person has been discharged). The local authority will be jointly responsible with NHS for providing or arranging after care while the person is in prison in England.

      [note that the quandary discussed all over the country, about people with DEEMED ordinary residence by virtue of having been placed in B by A, and thus in B when sectioned, is not addressed]

      So these two paragraphs from the Guidance area not talking about ‘normal’ prisoners with social care needs; this is talking about specially problematic prisoners (as perceived by officialdom).

      “1. The main purpose of Approved Premises (APs) is to provide intensive supervision for offenders or defendants who present a high or very high risk of serious harm. Most will have been released from prison on licence. Some will be serving community sentences or be subject to a suspended sentence, while others be on bail pending trial. In all these cases they will be subject to a condition of residence that is similar to the residence condition in a licence. The great majority of AP residents are licensees and this advice is focused mainly on them, although the final section deals with bail.

      The position of an ‘ordinary’ prisoner with mental capacity coming to the end of his or her sentence, is just like that with regard to a person who ends up in hospital out of area when they weren’t expecting to, in my view, and makes a new plan as to where to LIVE from now on. If they need residential care arranging, or what’s called ‘specified’ supported living or a shared lives contract making for accommodation as well as care, it will be their old authority that is liable to provide it, if there is no special feature preventing the assumption of continuity. But if their release is regarded as an opportunity for a discussion as to where they might WANT to live, and specified accommodation is not being considered as essential for their needs (specified accommodation focuses on a need for PERSONAL CARE, not containment, per se!) then that is sufficient to trigger a shift in ordinary residence, and if they are going to move to the area they were visiting (in a non-prisoner scenario), because of for instance relatives being there to help meet needs, or TO relatives’ homes, then home care will be due from the area on the spot.

      Many ‘ordinary’ prisoners coming to the end of their sentences, will have had their ties with their old authority severed by dint of choices of others who have given up on them; some, as you say, will be banned from returning to an area. Some will NEED specialist services from the NHS – which will only be available to them if they go to a particular part of the country. And yet others will NEED specified accommodation, as defined, for personal care purposes.

      My view is that if no reasonable care planning authority could feasibly think that the person’s needs could be met in anything other than specified accommodation as defined, it is their old authority that should pick that up, but the accommodation element will still depend on HOUSING law, unless it is a care home placement to be made. That authority is clearly not able to meet their needs in any area from which they are banned from returning.

      If the prisoner CAN live in ordinary accommodation, with a care package that does not include personal care, as defined, then they can, if they have capacity, effectively choose where to go, making an informed choice with regard to the whereabouts of any other agency’s services that they might agree that they NEED. If they are banned from a specific area, they are not free to choose that area.

      If the soon to be released prisoner lacks capacity, and has no attorney, deputy or other willing person content to sign in their own name for an accommodation arrangement FOR that person, then the old area should take that into account and make a best interests decision, in my view.

      That is all without reference to the person currently being in approved premises, however.

      My understanding of the policy for ordinary prisoners is that for the last few months of their sentences, they would be moved to ‘step down’ prisons to serve out the remainder, but also so as to be put in touch with local housing and social services authorities. The only point of that policy would be if people were expressing a choice as to where to go, or a best interests choice had been made for them, and in either of those two cases, the facts that support a finding of ordinary residence IN THAT AREA would already have occurred, and been evidenced.

      So taking this question apart, and taking the NOMS guidance into account, my view would be as follows:

      Q: So if specialist needs person was in LA ‘A’ before imprisonment, is now in approved premises (located in LA ‘B’) and needs specialist accommodation, is that for LA ‘A’ to provide (or LA’B’)?

      A: if I am right about the policy and the nature of being in approved premises at the end of one’s sentence, it would be B. It would NOT be the case if the person was not in approved premises and needed specified accommodation. It would be A in that case. And if the person was in a step down prison and had been consulted about the future, before going, it would be B.

      Q: If the specialist needs person wants to live in LA ‘C’ but still needs specialist accom (and has mental capacity to consent to welfare arrangements) is it LA ‘A’, ‘B’ or ‘C’.

      A: The person placed in approved premises in B is the liability of area B, because B is his or her DEEMED area of ordinary residence by virtue of being in Approved Premises as defined and B must arrange the specified accommodation … as defined, allowing for choice of accommodation rights if the person has capacity.

      Q: Does it make a difference if they can not return to a specified area in LA A (but are not prevented from the wider LA area of LA A)

      A: If a person is in approved premises in authority B, and not able to return to authority A, the person’s preference to live in C is of no moment, legally, for liability purposes. It is still B, albeit B might think that it would be likely to work out better in the end if the preference can be met, and is bound to offer Choice of Accommodation rights, assuming something suitable can be found.
      If a council makes an arrangement for specified accommodation, it remains liable, regardless of where that accommodation is, and that remains the case unless or until a non specified accommodation is chosen by the person under their own arrangements, or no further need for it in care planning terms, is recorded by the authority.

      Please remember that it is a prisoner’s being required to be in approved premises is what determines a deemed O/R, where those premises ARE, physically.

      Please also remember that choice to go out of area into specified accommodation is only someone’s right if it is a care home that is being considered; tenanted specified accommodation will be signed for by the ex prisoner, not by the council – the ongoing obligation is just to pay for the CARE.

  83. mary Smith

    Our daughter who has a long history of mental health problems, BPD, OCD,etc.. recently had a bad stroke. She has been in hospital for 4 months now ,most recently in our local hospital. They are now hurrying up her discharge despite our concerns to the contrary. The problem is that whilst in hospital mental health have refused to get involved with her case, and the discharge team are determined to get her out as soon as possible.
    She has a home which is privately rented with stairs etc… which due to the stroke she can now not safely manage nor would she manage washing etc… safely. She has been offered a bungalow from the local social housing authority but which is totally unfurnished and so needs a lot of work in a very short time. I am a pensioner and my husband works full time from home and is in the process of applying for carers allowance for myself. Both our daughter and ourselves are on low income.
    We can eventually get the bungalow livable but are under so much pressure from the hospital and with no money and grants etc.. that take weeks to get if successful , we feel the hospital is being very unreasonable. they are suggesting putting her in her private rented house for the time being until the bungalow is sorted out and made safe. But the hospital discharge team dont seem to want to take into account that this is a private landlord and he is very unlikely to agree to putting rails in, making adaptations, etc.. into the property for a few weeks ,which we can fully understand.
    She cannot stay with us because of my work , our home being even more unsuitable than her present home and also her mental illness which is extremely difficult to deal with. My wife is getting very ill and depressed with the whole situation.
    The hospital we feel is not providing an adequate duty of care in hurrying this discharge without taking her mental health situation into account when making decisions.
    They say she is fully mentally capable but we strongly feel otherwise .
    I put down that i didnt want us named on any care plan, which is entirely understandable considering my health and age and my husband working full time .. But the hospital have tended to use this to avoid keeping us informed about assessments they have carried out on her to come to the decisions that she is safe to be discharged. The Doctor in charge of the ward has also at times been rather aggressive if challenged and even called me a liar in front of everyone at a meeting on the ward. Also discussing sensitive things in front of our daughter in public in the hospital main foyer.
    There also seems a lot of bad liasoning among the different departments such as occupational therapist saying that discharge aimed for end of jan 2018 and then they suddenly say as soon as possible.
    I hope you can understand at least some of our frustration and can comment on this hospitals discharge procedureMary .

    1. Belinda SchwehrBelinda Schwehr

      Let’s take it apart:

      Anyone in an acute hospital bed deserves to be assessed for long term social care or sometimes CHC. Before a hospital can discharge someone they must have considered whether any further NHS service is due to the person: you don’t say anything about rehabilitation – stroke victims usually get SOME. SO I have to leave that up in the air.

      Let’s assume that nobody on the discharge team thinks that your daughter can benefit from further rehabilitation; nor that she would qualify for CHC so that she has not been, nor needs to be- formally checklisted.

      If this is the case, then she has a right to social services’ expertise and to an assessment.

      It is not YOUR duty to get her out of that hospital. It is not even HER duty, even if she were fully capacitated, unless or until she has had her entitlement in terms of process and a lawful offer from social services. You don’t say a single thing about social services’ input or approach, so I am just stuck there, I am afraid.

      “She has a home which is privately rented with stairs etc… which due to the stroke she can now not safely manage nor would she manage washing etc… safely.”

      Even assuming a council has been involved, done a Care Act assessment, and decided that it is not feasible to meet her needs in her own home, as may well be the position, – that does not mean that they have discharged their duty. The only other offer they can make, unless she is willing or able to move to alternative accommmodation, temporarily, is a care home. Re-ablement beds can be provided for, in care homes, for younger people: this is obviously what is needed and should be commissioned as the duty of the council.

      “She has been offered a bungalow from the local social housing authority” – that sounds great, and sensible, and for the longer term future as well…..

      “but which is totally unfurnished” – furniture does not in fact take long: she is not entitled to wait in a hospital bed until the new place is perfect; she can get a crisis payment from the DWP or a loan from social services (an interest free loan counts as ‘facilities’ under the Care Act)

      You don’t say what would happen to HER home, where presumably she HAS got at least some of her own furniture, already? Would she be giving up a tenancy? Is it her furniture, or the landlord’s? Can you not lend her some? There are charities that will provide and deliver furniture. The lack of info here means I can’t give a proper view, I am afraid.

      “and so needs a lot of work in a very short time” – that doesn’t sound like a mere problem with furniture, but I cannot tell what you mean, I am afraid. If work needs doing, the council must take that into account, but the hospital does not need to, because it can rely on the council’s mandatory duty to meet her needs, somewhere else, temporarily, under the Care Act.

      “I am a pensioner and my husband works full time from home and is in the process of applying for carers allowance for myself. Both our daughter and ourselves are on low income.” – understood, and carers’ allowance will help.

      “We can eventually get the bungalow livable but are under so much pressure from the hospital and with no money and grants etc.” As I said, it is not your duty to get her out of hospital. But she can’t expect it – and nor can you – to be perfect. The hospital is entitled to expect that social services would meet her needs in the interim, somewhere, appropriately, and you don’t say what social services is saying, I am afraid?

      ….” that takes weeks to get, if successful. We feel the hospital is being very unreasonable. They are suggesting putting her in her private rented house for the time being until the bungalow is sorted out and made safe. But the hospital discharge team don’t seem to want to take into account that this is a private landlord and he is very unlikely to agree to putting rails in, making adaptations, etc.. into the property for a few weeks, which we can fully understand.” – Of course the landlord won’t do that, and you would not want him to, if she is willing and able to move…but that doesn’t mean one can occupy a hospital bed for no good reason in the meantime, I am afraid.

      “She cannot stay with us because of my work, our home being even more unsuitable than her present home and also her mental illness which is extremely difficult to deal with. My wife is getting very ill and depressed with the whole situation.” – there is no obligation whatsoever on you, morally or legally, to accommodate her.

      “hospital we feel is not providing an adequate duty of care in hurrying this discharge without taking her mental health situation into account when making decisions.” I agree that the hospital must take the patient’s mental history and state of mind into account, but even if they did, it would not mean that she could occupy the bed, whilst work is being done on the bungalow. It is entirely within the power of social services to provide facilities, goods and chattels to speed the discharge to the bungalow, and my advice is that you need to engage very firmly with whichever council it is to ensure that they do their job.

      They say she is fully mentally capable but we strongly feel otherwise” – I am sure you are correct, and they need to take the views of anyone interested in her welfare into consideration when considering her capacity. But it makes no difference: if she lacks capacity to accept she needs to leave the hospital, the council or the NHS can place her somewhere else: it does not mean that she cannot be safely discharged. It means that her autonomy will be taken away, which is not exactly what you need, I am guessing. It would be better to make social services solve the problem of an absence of furniture and facilities: this is precisely what the flexibility in the Care Act and the Better Care Fund is for. A re-ablement package or placement in a care home – whether paid for by the council, OR paid for by the NHS for formal rehab service provision, would maximise her recovery from the stroke in the meantime and give more time for whatever has to be done.

      “I put down that i didn’t want us named on any care plan, which is entirely understandable considering my health and age and my husband working full time …” – that was sensible, given the way informal relatives are often exploited these days

      “But the hospital have tended to use this to avoid keeping us informed about assessments they have carried out on her to come to the decisions that she is safe to be discharged. The Doctor in charge of the ward has also at times been rather aggressive if challenged and even called me a liar in front of everyone at a meeting on the ward. Also discussing sensitive things in front of our daughter in public in the hospital main foyer.” – it is not lawful for a hospital Trust to ignore the views of people obviously interested in the welfare of patients, with regard to capacity or best interests processes, without a reasonable view that it is not practicable or appropriate to consult them, and it is just plain rude and disrespectful with regard to the other points. These concerns amount to complaints to the hospital, or to safeguarding, at the council, in my view. The charity, CASCAIDr, can help you with that, but only for a fee – see http://www.cascaidr.org.uk

      “There also seems a lot of bad liason among the different departments such as occupational therapist saying that discharge aimed for end of jan 2018 and then they suddenly say as soon as possible.” – again, an aspect that should be complained about, in my view, via the NHS process.

      “I hope you can understand at least some of our frustration and can comment on this hospital’s discharge procedure” – I can and I have done so above, and would reiterate that social services can solve this problem under the Care Act, or via reablement, with or without the NHS’s help on rehabilitation. These bodies are under a mandatory duty to co-operate. You just have to make them do it. Feel free to name some names on this site, if that will help.

  84. Tiger mum

    My local Council LBWF, who pays me respite money, have in summer 2017 made an announcement that from now on, carers in the borough are NOT to receive respite money anymore. This is an “across’ the board decision.” I was told by a representative, .. ” No carers will get respite any more., Instead we are offering a NEW DEAL, to carers, which is…the cared for Person will be reassessed, and if they need any more money , THEY will get it, this will be centre based” (not suitable, and all closed down anyway) “or home based,”. (also not suitable) “and so if they spend time away from you, YOU WONT NEED RESPITE! WILL YOU!!.”…this last part was said to me in a distinctly triumphant tone! ….I in fact use MY respite money to lift and enhance BOTH our lives, which in turn makes my daughter easier to care for and gives us BOTH , best usage and outcomes for BOTH of us. Making MY life a whole lot easier, and this in itself is respite for me. If I were to use it £ for £ on a carer to come in while I went OUT, I’d need ten times what they give me, for it to have any beneficial effect on my life. I’m NOT accepting this ‘ across the board’ decision as legal. But I’m still having to fight tooth and nail every month for them to pay it. My adult daughter is severely Autistic with LD , and other health and behavioural problems, it would cost them FIVE times what we get combined, if I dropped dead and she had to have full residential care and support. I only use HER money for HER needs that are DIRECTLY related to her DISABILITY.

    1. Belinda SchwehrBelinda Schwehr

      Not sure what to say about this, because it’s not a policy or a practice: this is the law. Respite is not a service for a carer: it is an aspect of the service user’s needs. No council has any discretion about this. The Care Act and the statutory guidance make it clear beyond any doubt that the absence of a willing and able carer creates unmet need, which must thus be met. A sitting service that enables the carer to go out to do eg shopping for the service user might be a carer’s service, to meet THEIR needs generated by the support that they are doing, but not care which enables them to withdraw care. That is the service user’s need. If you as a carer have eligible needs arising from the support you provide, then you will still get those met or funded. The council can’t say it won’t. But it probably isn’t wise to refer to your needs as respite.

    1. CASCAIDr

      Only if we can find a company that wants to sponsor us so that we can distribute to Healthwatch and GP surgeries. It would say something like:
      Struggling with hospital discharge? Under pressure to pay a top up in order to vacate that bed?
      Been told that your care package is going to be cut by 40%, before anyone’s even looked at it?
      Exhausted from caring for a person who’s got a direct payment, but you can’t find any half way decent care and support staff to spend it on?
      Been told that you can have £450 a week to spend if you insist on staying in your own home, because that’s the cost of care home? Or not EVEN the cost of a care home in real life, but the cost that the council pretends it costs for an adequate care home placement?
      Been told that your relative doesn’t stand a chance of qualifying for Continuing NHS Health Care, (free care) even though they are terminally ill?

      All these positions represent what councils and NHS clinical commissioning groups are saying all over the country, and they can be challenged with LAW, LEGAL AWARENESS and LEGAL PRINCIPLE that public bodies can’t ignore.

      CASCAIDr is a charity seeking to clean up decision-making so that people’s rights are worth having, and get people what they are actually legally entitled to. Please see http://www.CASCAIDr.org.uk or phone 01252 560 856.

  85. Mark Gilligan

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

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

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

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

    I have identified from the Care Act Guidance the following

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

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

    1. Belinda SchwehrBelinda Schwehr

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

      Belinda

  86. Finola Moss

    This is good news but from a legal and PR perspective it had to happen.

    What worries me, is human rights issues can still be ignored and circumvented on spurious, made up safeguarding issues found in the family home, deliberately to force all into private for profit care homes/community living or whatever the latest name. This can then be forced by means of COP orders, which appear to ignore human rights and indeed the MCA.

    It is far far cheaper to care for a person at home, particularly if ASD/LD and they do not have physical needs so do not understand why this argument of cost can be made. Just look at the profits that are being made by Care UK, Cambian etc, and the fact that care homes have been hailed in investment magazines as the hottest investment of the decade.

    This, as with austerity is about forcing all into for profit residential care to feed our economy not about cost. Many of these homes are paid in excess of £8000 a year (a week?) by CCGs and LAs with scant accountability as to how the money was made. The MENCAP etc case was not about insufficient money to pay but making more profit to recycle. As was Cambian take over of Lifeways when they cut workers’ wages to below legal min.

    1. Belinda SchwehrBelinda Schwehr

      The reason the cost argument CAN work for public bodies is, I think, about the way the sector operates as a whole, and what the differences in market forces are regarding risk – that is, the factors that lead to cost comparisons in different settings for say, the older person who is not mobile or particularly challenging, but who may be very distressed and need a LOT of physical care; for people with physical difficulties who need a lot of input too but whose mental capacity is able to be harnessed to keeping them stimulated and occupied, and for people with learning disabilities who might be very mobile, and may need a lot of prompting and supervision but less physical attention for personal care.

      It is cheaper to look after a person with LDs in tenanted accommodation than in a care home, but increasingly they might miss out on all the specialist provision that drives up the cost of care home care. In a care home, the cost model for an individual will have to be based on a proportion of the cost of that service and the building, even if they don’t use it to the full. Concepts such as Flat Rates, Core Hours, Shared Care, Wants vs Needs vs Top Ups and additional payments etc, Usual Rates, the “cost to the council” and references to sufficiency for goodness sake, when there is no solid test of what is actually required to MEET needs – no standard no benchmark, and no explicit principle – and the lack of connection between all of these things and the person’s actual care plan from the body obliged to meet the needs, have all contributed to the lack of transparency.

      I don’t have a problem with people making money (or replenishing charitable reserves) from providing care at all, as it happens. I think it is an interesting question whether most people in care jobs would prefer to keep their jobs and be paid an allowance, rather than the NMW for every hour. Since councils and CCGs don’t like to PROVIDE, and we don’t prime our sons and daughters to be the physical providers of care in this country, there is no option but to look to business for the services.

      We should be honest about it, however, I think, and not cover up that the State is withdrawing from funding social care, just as it has withdrawn from from funding housing. This is a political choice but not one that is easily explained in a way that reaches people’s hearts.

  87. Dr Prasanna de Silva

    In Newcastle, solicitors firms are specialising in challenges to DoLs and MHA in terms of Article 8 of the HRA. Involving not I<MCA's but RPR's (Relevant Person's Representative).. the cases of the articulate are taken up, not the majority who are either meek, unable to express an opinion or from BME.

    Then, the local Mental Health Trust is asked by court via Sect. 49 to prepare a capacity report fee of charge (compared to the lawyers and RPR's who get paid by the hour).. this request can occur even if the mental health trust is not providing services to the client. I think this is a money making scam, as there is conflation between being articulate (i want to go home) and actual capacity to understand risks of non-deprivation. It is also a huge drain on the legal aid budget.

    1. Belinda SchwehrBelinda Schwehr

      I can’t tell from your comment whether you think that the Mental Health Trust should be being paid, or that the lawyers shouldn’t! From my perspective, you can’t blame the lawyers for going where the market takes them – they’ve given up judicial reviews under the Care Act to all intents and purposes and gone for DoLS work because of the legal aid that exists for challenges to authorisations, and the lack of a permission hearing needed. Very often people detained under the Mental Health Act will be people who have no need to be there any longer, would have s117 status but are still in an ATU, stuck there for years because of a commissioners’ perspective that ‘there is no available care out there’ when what they really mean is that ‘there is no available care out there at the price we have been told to not go above, when looking’…To my mind, that is a stance that needs to be challenged, whether or not you are meek and fearful, or if you have a Warrior Mother from Hell behind you, as your RPR. I know it seems as if a person who can say I want to go home should not be being treated as incapax under the MCA, but in fact there is a lot of nuance as between what you have to understand in order to be seen as consenting, in legal terms, and what you might say that you understand if you have been aware that you have been detained in a psychiatric hospital and are offered freedom, but on terms, such as under a CTO. So I wouldn’t bash the lawyers, if it were me. Ending up in an ATU can happen to anyone whose parents have a crisis and need some respite, and the want of services in the community since the State gave up providing via housing law and just started buying services to deliver into houses owned by pension houses, is a non-understood scandal of our time, in a supposedly civilised society…

  88. Sarah

    Hi Belinda, a friend is in a long term mental health hospital on section 3 and has been in seclusion for several weeks. We have been told that the hospital have applied for a new medication, but they are waiting on confirmation. Until then, he is being kept in isolation due to various risks, as his previous medication does not work and he can be quite volatile. I am concerned that there seems to be no time span for being kept isolated, surely as each day passes this is causing further negative effects on his wellbeing, his dignity, and his rights? Is there some guidelines for duration and for how long a CCG should take to authorise a new medication? It just doesn’t seem right to me that he’s locked away because they cannot find the right medication. Thanks.

    1. Belinda SchwehrBelinda Schwehr

      Thanks for this enquiry. I have to say that what goes on inside mental health acute wards to patients under isolation for whatever reason is a mystery to me, and it is not social care law. Hospital managers are allowed a wide managerial discretion on account of what they’re doing and the duty of care owed to one and all, and under a s3, one is lawfully detained and can be forcibly medicated. On the one hand, a person’s regime should never be inhuman or degrading, but it is allowed to be designed to keep a person safe and others safe from that person, proportionate to a professional’s view of risk, if the person has been lawfully sectioned. I can only suggest contacting Mind, the Mental Health Charity.

  89. Chris Bancroft

    Thanks for your thoughtful piece Belinda. I wouldn’t be so sure that this is over just yet though, as key parts of the judgement do not accurately reflect the nature of the modern sleep-in.

    When the NMW regulations were drafted, the sleep-in shift was generally a back-up for waking night staff. When you are able to sleep unless a colleague wakes you for an emergency the flat rate made sense. However we are now the ‘lone nightwatchman’, lone working and using our trained listening ear for subtle and individual signs of need. If clear, reliable communications could be used then chances are we’d be replaced by assistive technology and the like.

    It has been mutually understood, if not contractually spelled out, that we do not claim for non-emergency actions. Given the higher thresholds required for even a sleep-in worker to be provided, broken nights become the norm not the exception in services where physical presence of trained workers are the only safe solution for independent living.

    The other flaw I will point out is the ‘permission’ of us to sleep in, classed as ‘by arrangement’ in the judgement. We can only stay over if a double contractual lock is in place: the purchaser contracts the provider and the provider contracts the employee. The relationship will be different for directly employed PAs. As leaving the premises will end our career through disciplinary action and DBS consequences, the obligation can be argued to constitute work in itself.

    It’s taken the Court of Appeal defeat for isolated social care workers to find each other and to start talking about what we really do, now without the protection of the minimum wage. This case still has a way to run.

    1. Belinda SchwehrBelinda Schwehr

      thanks for this too, although I have to say that I come at this from the rights of the service user, not as an employment lawyer or flag waver for the workforce.

      I absolutely agree that the practice in the sector did not accord with the modern shape and flavour of a sleep in sort of a care package, and I for one, would be glad to be right if it turns out that people don’t go back to ‘allowances’ even though they could. In the old days people WALKED into residential care homes instead of being stretchered in, and now people have hospital at home types of AT home or in a nursing home.

      I agree that whilst the Court could have read into the concept of being required to be somewhere, AS work, the slightly different notion of being required to be there to be AVAILABLE for work, if work arises, on pain of discipline for leaving, I don’t think that factors external to the employer/employee contract were ever supposed to be relevant in working out the answer whether one amounts to the other, in any given case.

      If the employee in Walton could be on unmeasured time, whilst being expected to be there several nights of the week, then that model for directly PAs continues to work for now – albeit with commission on top. I would say that we NEED it to work, lest everyone who is single, but who needs more than 4/5 hours a day of care is told that it’s inevitably a care home for them, now, because social care funding for any other model for meeting night time needs has been determinedly withheld from councils.

  90. Marie Harvey

    Hi Belinda
    I am assisting a friend whose mother has been receiving commissioned care (via an agency) for a while, and as it is not working they have been offered a Direct Payment – they have a carer lined up and two others who could cover days off, holidays etc.
    The budget is decided, and the social worker has said they just want to mimic the calls the agency has been doing. Costing has been done by the support service for the carer to be paid £9 per hour during the week and £10 per hour at the weekend – this does not use all of the budget, it leaves a surplus which could be used in an emergency.
    The local authority have told the lady that they “do not pay more than £8 per hour for a Direct Payment worker unless it is specialised care” I am absolutely sure they cannot dictate the rate of pay and absolutely know that other Direct Payment users in the same area are paying £9 and £10 in some cases.
    Where In the Care Act is this covered please? I have tried to contact the Advocacy Service, and they have not even called me back! The lady is still suffering with the agency – and has been diagnosed as needed pallative care now so time is of the essence! She will be much much happier and the daughter much happier (she lives a considerable distance away and so worries but would feel much happier with their chosen carer who has been known to the service user since she was little).
    Thanking you in anticipation!
    Marie Harvey

    1. Belinda SchwehrBelinda Schwehr

      Marie hi
      The short answer is that it isn’t covered in the Care Act. And that’s not an accident!
      The law is this: the budget must be set rationally, and sufficiently, based on the assessed eligible needs and the person’s priorities where they at least overlap the statutory purpose which is meeting the needs so that the impact is reduced to something less than whatever counts as ‘signficant’. Sufficient is not defined. The budget needs to take in the market rate for the hours that have been regarded as needed, including a consideration of the skill level, as care costs differ according to input required. The budget might have to take account of the willingness of the person to be a direct employer, in which case the rate being paid to PAs is what has to be paid; in this current market, more than minimum wage plus oncosts is required to attract a carer, in most places. Some councils assert that an average will be a wage that pays more at the weekend; others don’t. Some pay more for bank holidays; others don’t. The offer/indicative budget is not lawful if there’s no rational justification (an evidence basis) for thinking it will be enough. BUT ANYONE CHALLENGING THE COUNCIL’S ASSERTED RATE ALSO needs an evidence basis: a decision is defensible unless challenged competently. Those whom you believe to be paying higher salaries would be said to be paying for wants and not needs, no doubt. So someone seeking to say that it is not enough to GET a carer (not the carer that they want but a carer who would do) needs to look in the small ads for what others are paying, or put an advert in to show that the money on offer is not enough. So, the way forwards is to ask the council for their evidence basis, whilst marshalling one’s own, and insisting that you have a management review as the budget is disputed (the Guidance says that this is what should occur) and that you are not to be taken to be complaining, but requiring more transparency in the budget, as emphasised to be necessary in the NE Lincs v CP case (recent, and binding).

      NB I am not sure whether the rate being mentioned is exclusive of the oncosts, or the gross amount to be paid. I am finding that where support services are being paid to manage, councils are quoting the net salary and leaving the oncosts unstated in the budget, which is absolutely not correct. It may be that depending on the chosen carer, they don’t need a pension to be contributed to, or they don’t need training, etc; so it should all be more personally worked out.

      regards
      Belinda

      1. Marie Harvey

        Hi,

        Ok thank you. The rates of £9 and £10 are exclusive of on-costs, the PA does not want to opt in to a pension, and the budget covers all other on-costs easily, with the £40 odd left each week as a surplus.

        So, my understanding of what you are saying is that even though the budget covers this hourly rate the council can indeed legally say “No, we only want to pay £8 for that sort of care” and the onus is then on the client to prove that this is not a feasible rate to attract and keep a good carer?

        I have emailed you also, you can ignore, sorry I had not seen reply. I also forgot to say that you were referred to me – emails explains by whom.

        Thank you

        1. Belinda SchwehrBelinda Schwehr

          I have replied by email but going further than the first response on this site. A situation where the budget you are given to work with will cover oncosts because of special features of the chosen PA is indeed one where real savings can be secured and a much better outcome attained, but the council’s obligations do not extend to funding what a person would LIKE to pay a PA. They are based on allocating a gross DP budget for what the market compels a person to pay a PA, which has to be minimum wage plus oncosts, but which may well be more, in this particularly difficult market. The fundamental problem in your scenario is the budget you were working with and the absence of any detail as to where it came from – because if a person wants a direct payment, for exactly the same profile of service, they can fully expect to be asked what their intention for use of it is: employing a person will lead to a cut in the existing budget, perfectly lawfully, because it will generally meet the needs rationally and sufficiently. If agency use is contemplated, however, the existing budget might even have to be enlarged, as a provider might well charge an individual client more than a bulk purchaser for the same inputs.
          A council cannot legally say we only want to pay £8 for that sort of care, and that is not what I have said, with all due respect. That would be a fetter of discretion, and one which would potentially ignore the real cost of care. In the Luke Davey case, there was no actual challenge the evidence that the rate finally offered by Oxfordshire would not meet the need by way of attracting or retaining staff, remember. In your case there is no detail as to what the preferred carer would like to be paid. That must be the starting point, for a support service. The onus is not on the client, but what a legally worded challenge to the budget would do would be to say what is the evidence basis for saying that £8 is enough to meet the needs? If a person is going to challenge the budget then it is only prudent for them to have marshalled their own evidence basis which will then have to be addressed by the client. Ultimately, the onus to challenge IS on the client, because the law in this country is that a public body’s decision is deemed to be lawful, unless and until challenged. a conscientious management review is all that the legal framework entitles the client to, outside of the complaint system, and that is why a proper advocate would have been able to get a response out of this particular council, I feel. Please see the email I’ve sent as to my guess as to why there is none appointed.

          best regards

          Belinda

    1. Belinda SchwehrBelinda Schwehr

      I have looked at your link to Nottingham’s protocol which I agree is lacking in analysis of the duties imposed under the Care Act. But I cannot say that anyone has an absolute right to remain in employment just because they have a child AND a disability. The Act does not go that far. My issue is with councils whose Adult Services department regards a parent who is not being investigated as a risk to their child as NOT UNABLE to achieve parenting, or UNABLE but not experiencing significant impact due to their deficit in capability, whilst at the same time the council’s children’s services department does not regard the child as a child in need. There is no doubt that having a child is a choice, and a choice that carries with it parental responsibility, but it makes moral and ethical sense to support people with disabilities if they have managed to do have a child, rather than let the situation deteriorate to a crisis.

  91. Dotty

    In spite of the fact that I am classed as a vulnerable adult – autism and neurodegenerative disorders among others, the local authority have repeatedly refused to provide me with an advocate for assessments in spite of me asking for one and the LGO directing that they should. ON one occasion when I asked for one as the social worker intended undertaking an assessment, I was still waiting for one when the SW apparently assessed me when I wasn’t present and without my knowledge and then justified it when my DP’s went down ( this after a nine hour operation when I was totally helpless) by stating that one of the officers of the council had misapplied unit costs. The SW then told the LGO investigator, a year later, an entirely different tale, stating that she’d decided to do the assessment because I had said that post operatively that an assessment would lead to delays – my DP’s I’d been assessed as needing seven months earlier were still not in place. On each occasion in spite of increasing need and disability, my DP’s have been reduced. and my Disability Related Expenses have never been considered.
    Oh! and any services I was entitled to before my nine hour operation were withdrawn the day before my operation. I was informed of this by letter so I did not know about this, as the letter came after I entered hospital, and therefore I could not do anything about it.
    I came home with four layers of internal stitching the whole length of my abdominal muscles, external stitching from hip to hip, compression of the lungs and biilateral pneumonia. I have MS, angieodema -(epipens) cerebral palsy, a nearly full thickness tendon tear in my dominant arm, an inability to regulate my body temperature. No care, no services, lying social workers.. Can’t even get a solicitor to represent me since the LA apparently don’t have any money so no-one wants to challenge them..
    I only had physical health problems before I came into contact with the LA, I now have mental health problems, no kitchen I can access – apparently I need to be in a wheelchair before they’ll even consider it, no proper heating – the LGO is currently looking at the 3 year delay in implementing a proper heating system. etc etc.

    1. Belinda SchwehrBelinda Schwehr

      All these woes are potentially instances of illegality, unfairness, breach of human rights and what’s called irrationality, in public law.
      They could all have been the subject of legal challenge, and whilst I agree that one can struggle to find a legal aid solicitor practising in this field, it is possible to qualify for legal aid for judicial review, on the basis of low means and strong merits, still, with a strong case. The reason that there are not many solicitors with capacity to take this sort of thing on is not that local authorities are not worth challenging, with all due respect – this kind of law does not lead to DAMAGES/COMPENSATION – but to a court order to the council to do its job lawfully, second time around – but because law firms have to carry the risk of not getting paid for the first stage of their work if PERMISSION to proceed to a full hearing is not given by the Court as a first hurdle. That involves financial risk for solicitors, and that is I have set up CASCAIDr, a charity that offers to do the first bit – the analysis – for free, in certain circumstances, sometimes using a barrister, and beyond that, using crowd funding to ensure that this structural failing in the system does not deter people who might not qualify for legal aid because of 2nd home ownership or a partner’s means, etc. Most of its work is chargeable, £125 an hour, including complaining about things that have long gone by. Inappropriate cuts in services with lack of an advocate where one is triggered are potentially free work, and delay in doing something about them is not necessarily fatal when illness and recuperation are an obvious factor.

      Rather than assume one needs a lawyer at all, or the charity, I have to say that what you have set out above could also be written up by yourself as a referral to the Monitoring Officer. That officer has an independent, non-delegable statutory duty to manage governance within the council, and must therefore do something about anything that is obviously unlawful. Here is a link to a post on the subject:Post on use of the Monitoring Officer

      and here is the address of the charity, http://www.cascaidr.org.uk if you want to refer your matter for consideration as to what basis we might be able to help you upon.
      regards
      Belinda

  92. Angel

    I live in Gloucestershire and have seen my son’s funding HALVED over the past years. It is now so ridiculous that if he were to “port” it anywhere he would not be able to cover himself for what he needs. I believe him to be at risk. He is currently living in a community but the latest cuts mean he probably wont be able to afford to access their workshops. He is someone who loves to work and will stagnate, become isolated and act out if this state of affairs is allowed to continue. I am, of course, contesting this latest cut via MP case worker and county councilor but feel I must now take his case to law and am looking for a lawyer who would take this on via legal aid. Can you point me in the right direction to find one or, even, make a recommendation? Thankyou

    1. Belinda SchwehrBelinda Schwehr

      Unfortunately, it is the law that if councils MINCE towards meanness, at the same rate as other councils, slowly, rather than leap there in one fell ‘cut’, they are likely to be able to defend a judicial review on the basis that everyone is doing it these days, so that it is not unreasonable in the sense required by public law principles established in the case law. So challenging the first cut, or the second, was probably an important thing to do, but most citizens are stoic and put up with it. Once 3 months have gone by, it is difficult to challenge a historic cut, rather than a threatened one or a recent one, and most people don’t know that.

      If someone is living in a community as you describe it, the council is not paying for the workshops in all likelihood as meeting assessed needs – they will be relying on the person choosing to spend their own money on taking up those activities privately. A person needs to claim the cost as disability related expenditure or otherwise explain that the council’s charges for other services render them unable to continue to meet their own needs and in such circumstances, a review needs to be scheduled urgently, for reconsidering needs and services…. or the charges.

      Finding a lawyer who does this area of work on legal aid is difficult. I have launched CASCAIDr as a charity who will do some work for free and some for a low charge, and you are welcome to refer your son: http://www.cascaidr.org.uk – look for the form on the Free Advice tab on the top menu. However, there is also a blog post on THIS site with names of solicitors on it – search for Switalski in the search box.

      regards
      Belinda

  93. AT

    Hi Belinda
    I am glad to have come across you very useful blog site. I am currently struggling with SS as the carer for my mother who has dementia and has been in hospital for the past two months. The crux of the issue is the SS’s failure to carry out a statutory function i.e. to assess and put it in a plan to become eligible needs. They simply do not want to do it YET! Of course the reason is financial and all they have offered on a ‘presenting needs’ basis is a ‘maximum of 4 calls’. My mother is a high falls risk and needs a sitting service. I say the SS’s treatment of the 4 calls as a maximum amounts to a maladministration at the very least based on cases that have gone to the Ombudsman. I’ve pointed this out to them and whilst I agree they can install a ‘guideline’, they are not entitled to treat it as a ‘maximum. We don’t have a leg to stand on given that my mothers needs are not ‘eligible’ Of course the SS know that if the plan falls short of needs it will be challenged and if the plan (in draft form for the past two months!) does detail her eligible needs and they can’t be met they will have another challenge on their hands! So, in effect, they seek to keep us at arms length in the hope that I will never challenge the meaning of ‘reasonable’!

    The NHS’s and SS’s actions of last week are worthy of particular mention. I was told that my failure to give the access code to my front door to allow them to bring my mum back to my home by ambulance staff will amount to my making my mum homeless and I will be reported to safeguarding! This was all done under the ‘discharge planning for ultimate destination’ banner but in conversation they also said she is being evicted!! This ‘heavy handed’ bully tactic approach is capable of working against some people however I refused to hand any details over which resulted in them taking her back to a step down/interim NHS controlled facility which is where she’s been over the last week.

    I do now face the in enviable pleasure of now having to engage with another social worker at the new facility who’s ‘worth their salt’ and going back to the same arguments about the non-existence of a care and support plan/eligible needs. If they think they can get away with treating people like this by thinking they have an option whether to exercise a statutory function or not as had been intended by Parliament in the Care Act on the basis of ‘no money’, they will have to demonstrate by evidence to the Judge how they find themselves short of money at the material time when making a determination of my mother’s care needs! Ignorance of the law is of course no defense. It always possible they would only take us to the Court door but not before making our life a complete and utter hell. These actions would look very good in the cold light of day in Court I am sure the Judge would be horrified and is likely to make an Order to carry out the s19 power.

    In your considered option, where might one go with these circumstances please? I would be very interested to hear your views. Also, I do detect a certain ‘reluctance’ in solicitors taking on such a case. Is this evidence of ‘the establishment’ controlling our beautiful judicial system?!

    1. Belinda SchwehrBelinda Schwehr

      Shocking as this might sound, this comment SO made me chuckle.

      I chuckled at the realistic cynicism that you had no option but to inject into your tone. I live with this sort of aggravation every day, now I run CASCAIDr, the legal advice charity. We operate on the footing that if we can FIND a decision that’s been made, that’s clearly unlawful, we will help the person for free. We find though that the majority of people who approach the charity (www.CASCAIDr.org.uk) have received gloomy HINTS, or pre-warnings, to the effect that it’s all very grim and there will have to be cuts, guidelines, reluctant offers of care homes instead of home care, etc. We find councils have stopped bigging up direct payments now that they do not attract extra government money, and that they regularly deny them to people in their own tenancies in supported living. We find that the commissioners prefer to bully providers into going lower and lower, close day care on the footing that LIVING with other disabled people will constitute social inclusion, and force providers into ‘skills’ training that is supposed to manage the now invisible day care needs. I could go on. But the point is that our model involves charging people, albeit a low fee, in order to fund the Free Scope work, and we are doing great, because MOST people haven’t actually ever RECEIVED an actual decision, or had a cut formally IMPOSED, – the councils are HIDING from making statutory decisions, exactly as you say. Prevention and reduction powers, during assessment, have been used as an excuse to get people’s relatives to do ALL the work, following ‘signposting’ up dead ends to services with no vacancies, no suitable offer to make for the particular person’s profile, etc. And all the time, so long as no care plan is actually firmed up, people can only challenge their ‘assessment’ which will probably also be said to be in the ether somewhere, waiting for goodness knows what, before it chrystallises. And then the person is told that they can just complain.

      The answer to all of this for some is this: the Guidance says that one can have an assessment based on the appearance of need, and one can reject offers of prevention and reduction, reablement or whatever else it might be called locally, and crack on to an assessment decision – ie what ARE one’s needs, and are they eligible. After that, a care plan is a statutory entitlement within a reasonable time. If one refuses the first round of suggestions, of course one is risking being told that the impact of one’s difficulties can’t be all that significant, and that one is therefore ineligible, but that doesn’t happen often, because it has to be provided in writing with reasons under the Care Act, and it can’t happen if the reasons for rejecting community based solutions are obviously soundly geared to why they are unfeasible or unsuitable, too expensive, not accessible, etc etc.

      In your case where you have been seen as obstructing your mother’s rights to (to – er what?? a guestimate of her needs?) and cast as the perpetrator so as to trigger Safeguarding, the important principle, to my mind, is that it can NEVER be abusive to stand up for the proper rational, transparent, timely discharge of a council’s social care functions.

      That means understanding that they get to make the decision, they get to spend the public money, but that they have to do that subject to public law principles. You said this: ‘My mother is a high falls risk and needs a sitting service.’ That might mean that you think that that is obvious, but others don’t. It might mean that they’ve offered her a care home because that is the cheaper alternative to anything more than 4 visits a day. Neither of those positions is NECESSARILY unlawful, but councils rarely follow the correct process in legal terms to arrive at those decisions defensibly. That’s a question of knowing what LAW and LEGAL PRINCIPLES they should be sticking to.

      Their discretion and public law principles mean that whilst they can take cheaper ADEQUATE alternative settings or means of meeting assessed eligible needs into account, they can’t use their resources to refuse to meet those needs altogether, and they can’t use their resources difficulties to deny that someone is eligible when assessed according to the regulations, or to pretend that something outrageously mean or inappropriate could possibly be regarded as meeting the needs, or allow resources to fetter or pre-determine proper professional judgment on care planning, or human rights to respect for proper consideration of one as an individual. So, by refusing to facilitate access to her own home, when she was discharged, you may have been a bit brutish but CASCAIDr is finding that often, nothing less will suffice these days to make SOME councils pay proper attention to their duties. I wish you’d said which council it is!

      What you DO need to be careful of is that if they offer a care home instead, you do not just say NO, because if she lacks capacity, they will simply take her to one and use your position as an excuse for asking for an injunction against you. Instead, you need to use the principles of the KK case and/or the right sort of wording to make them show how they have
      a) properly assessed her needs according to the Merton case,
      b) taken reasonable account of her outcomes or your best interests consultee view of them
      c) promoted her wellbeing by taking the s1 Care Act features of that concept into account
      d) made an eligibility reason in writing with reasons, one way or the other
      f) abided by the MCA and DoLS rules if they need to do that to make it lawful to take her to a care home IF she lacks capacity
      h) conscientiously grappled with her human rights to respect for her home and private and family life
      i) abided by the KK case if she MAY have capacity, by telling her exactly what they regard as practicably able to be offered to her in her own home, if she were to be considering refusing care in a care home. Not just saying ‘4 visits max a day is what we aim for….’
      j) set out a s25 Care Act care plan, rationally identifying how the budget that will have been identified will meet her assessed eligible needs (many care home fees being asserted as the usual rate are themselves artificially low because in fact most care homes now charge top ups for council clients without providing luxury or an objectively superior environment, so the amount that they are paying is not even defensibly sufficient to pay for the amount of care that councils are obliged to purchase to those to whom a duty is owed)

      Got that? Simples, eh? 🙂

      The ultimate solution is the Monitoring Officer, if you have no money for a lawyer, or don’t want to refer your mother via CASCAIDr for a free scope or chargeable piece of work.

      There is a post on this site about the Monitoring Officer route to challenge. Just search for it in the search box.

      If you go that route I would say that your account of what’s happened is not quite specific enough as yet because it really isn’t clear whether an eligibility decision has been made that she is ineligible (hard to credit I would have thought and possibly free from us?) or that she is eligible but 4 visits a day is unfeasibly inadequate (possibly free from us depending on the actual EVIDENCE as to her needs and what else has been offered and if a care home, just how lawfully has that offer been made??) or that the eligibility decision has not been even made as yet for a defensible reason, or maybe an indefensibly untimely delaying period (probably free from us).

      If you want help to shake this down, the referral form for CASCAIDr services is on the website mentioned, under Free Advice on the top menu.

      Thanks for an entertaining start to the day in any event.

      regards
      Belinda

  94. K

    Our local authority has a policy that there is a fixed upper limit on the cost of certain items such as electronic items Eg laptops which are bought using direct payments.

    I believe this is a fetter of discretion since its a blanket policy which applies to all service users before they’ve even had a chance to discuss the options and then decide on the most suitable option which then determines the cost.

    What are your thoughts?

    1. Belinda SchwehrBelinda Schwehr

      My thoughts are that a council can lawfully take its resources into account and limit the quality or sophistication of the GOODS it will fund. Councils have discretion regarding the appropriateness of a direct payment as a MEANS to meet needs in the first place. But even if they are happy to offer the cash, in that form, instead of services, they need not fund a direct payment to an unlimited level. They have an almost unfettered discretion to put conditions on the taking of a direct payment. First of all they have to determine a lawful personal budget, which is defined as the cost to them of meeting the need. Then they have to consider whether a direct payment route to obtaining that response will cost a human being more or less than it would cost the council. With objects, goods, hardware, etc, a council can often get things for less than individuals can. With other services, individuals can sometimes get input for less than a council can – eg by being a direct employer, for instance. I think that a council can legitimately say that a bog standard laptop will meet the person’s needs that were assessed as eligible social care needs, in the first place, not a posh one. If the council were putting a limit on anyone’s overall budget before considering their individual needs, that would be potentially unlawful – but it is common for councils to offer flat rates for this or that type of input, and that is not something that is unlawful unless one is a special case.

  95. Jenny Dowswell

    Dear Belinda,
    Having recently retired from social work and management after 40 years, I am now on the receiving end having to find a nursing home for my mum. What a nightmare.
    My query is about choice. We were given a list of care homes in our city and narrowed this down to 11 which provided appropriate nursing care. We were told the rate set by the LA and that any choice outside this would lead to a third party top up.We were advised to start ringing round.
    After weeks of ringing and checking and visiting, we found there were none at that rate. We told the social worker and advised that we understood that they had a duty to offer at least one within their budget and that choice should be offered. She then made calls of her own (so I do wonder why I wasted so much of my time) and came back to us with a choice of 3. On talking to her, she confirmed that only one of these was at the LA rate (that home had changed their rate for the social worker having told us a higher one) and the other two were slightly more expensive so would require a third party top up.. That was not my understanding of what is meant by choice. The home which was at LA rate was not acceptable to me as, on my visit, I had concerns about quality which I have raised withe the LA Quality team. We have now selected a nice home which my elderly Dad is happy to send my mum to but the top up is pretty high.
    My query is, do you feel that the LA should offer a higher personal budget to my mum on the basis that there was only one establishment at their rate so no meaningful choice was offered? My sister and I are ready to take this up with them and we think that Annex A of the Care and Support Statutory Guidance will help us. If they did agree, how should they decide how much extra to give? Would it be based on the lowest priced home on the market? We want to get my mum moved so, if we win on this, do you think they would back date any extra budget allocated to date of admission?
    I would be really grateful for any advice you could offer on all of this.
    with many thanks,
    Jenny

    1. Belinda SchwehrBelinda Schwehr

      Jenny, the Care Act guidance says at least one at the level of the budget set. The pre Care Act law provided for choice based on the usual rate. It’s obvious therefore that choice has narrowed, but impossible to say what the courts would make of that, in terms of reasonableness. An average ensured that the market rate was relevant to the legitimacy of the rate set for the start of a top up. Just one, potentially means that a local authority could specifically foster a relationship with a God Awful home (Crumbling Gables for instance) which always has a vacancy at the rate the council pretends is enough elsewhere. I do not personally think that the courts would say that the Guidance is correct in its interpretation of what has to be shown.

      The more worrying though about your enquiry after 40 years of social work is that you were asked (and went along with) doing the council’s job, which is first and foremost selecting suitable homes from the homes with vacancies, before offering choice. The assumption that all homes with vacancies within a given client group category are automatically suitable for the given individual’s needs is widespread – no doubt from the history of the need being simply ’24 hour care’ instead of something person-centred. So once you understand THAT, as a social worker, you appreciate that you’d have to be satisfied that the homes being flagged up to relatives were actually suitable. And that’s something that has to be a rational judgment, taking all relevant considerations into account. In your case your concerns about suitability would have then been dealt with at an earlier stage, with the result that it would be likely that the only home that could have been presented as suitable would have been one of the others. And the principle is that if there’s only one suitable home, the difference can’t be treated as a top up, and the council must pay the whole rate. Half the complaints made to the LGO about top ups are about this issue and half of THEM end up in successful complaints resulting in backdated compensation.

      Hope that helps! Enjoy retirement too!

  96. Diane

    Hello Belinda
    Can you offer me some advice
    A client with Learning Disabilities and Personality Disorder ,
    Lives in a residential cottage on the grounds of a residential home
    Ordinarily assumed to have capacity, but has been emotionally aroused over recent weeks and found to have fluctuating capacity
    Tried to leave the care home and concerns expressed due to lack of safety ‘re traffic.
    Staff persuaded her to return.
    Then concerns from care staff ‘re her safety as she was emotionally upset and threatening to leave again in the early hours of the morning
    Should the care home have applied for an urgent dol s or what steps could they have taken lawfully to keep her safe
    Many thanks
    Diane

    1. Belinda SchwehrBelinda Schwehr

      If the cottage COUNTS as part of the residential care home’s registration – ie is one of the beds, then yes, a DOLS authorisation could have been done by the home. But if not part of the care home, then the only justification would have been section 4B of the MCA which allows for the detention of any one believed to be incapacitated for the doing of a vital act, which can include keeping them safe, PENDING an application to court for a determination of the lawfulness of depriving them of their liberty. That sort of application to a court would morph into an application for an order sanctioning the deprivation of liberty in the community, even if the cottage is not part of the care home. But if the person HAS capacity at the time, of course there is no justification. And welfare concerns for someone capacitated, however genuine, are not of relevance – a person’s best interests are for themselves, if capacitated – unless or until the circumstances suggest that the person has lost the presumption of capacity, ie the evidence suggests that one of the 4 building blocks of cognitive function is negated by the state the person is in. But I hope that that’s helpful.
      You don’t say who is responsible for paying for this person’s care, so I can’t say more with any degree of confidence.

  97. Finola Moss

    Cambian owned by UHS are paid over £8,000 a week for a deemed severely autistic adult. UHS also own ATUs via Cygnet that charge £13,000 a week for an autistic in a secure unit. These sums are effectively unaccountable as is their treatment and care. Huge funding is available to for profit institutions which are the only funded support for 18 + yet nothing at home, no respite and with 105 DWP and 63 carers allowance paid it would be far cheaper to leave people with family but this is not allowed.

    1. Belinda SchwehrBelinda Schwehr

      That’s why the Mental Health Act review project has advocated that EVERY person in the mental health system should have a care plan, just like people who receive their services from social care authorities. The trouble is that the sector does not care to abide by the legal framework when it is inconvenient for people who are not properly funded. So s25 of the Care Act requires every single person to have one, if in receipt of any public money or arrangements. Surely that makes sense? Accountability only exists in so far as a country’s politicians are willing to fund what they’ve passed into law.

      I don’t have a problem with companies making money out of taking on responsibility for people who need a lot of specialist care, because I think that people doing this kind of work deserve to be properly paid for their skilled input. What is wrong, in my view, is the dogma that says that the NHS should not provide services but only buy them, and its commissioners who are so macho and do not understand the impact on the market of the bullying that they do, without any awareness of the underlying duties with regard to transparency, sufficiency and appropriateness of the packages being planned!

      regards
      Belinda

  98. Val Compton

    Hello Belinda

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

    Thanks in advance
    Val Compton

    1. Belinda SchwehrBelinda Schwehr

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

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

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

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

      regards
      Belinda

  99. Will Cox

    We are struggling to sort out numerous issues around our autistic son’s needs. We have lodged formal complaints against both the local authority (received the final letter this week) and the care provider (waiting for their final response) and have lodged premature complaints with LG&SCO for both and are pondering our next moves. There are some clear legal issues – here goes!
    1) in 2009 our son’s social worker set up meetings with him and he signed an agreement to receive direct payments. We have recently discovered a copy of this, showing that we did not sign anything. We have struggled to get a dialogue on alternative funding arrangements, to no avail. These include a social services manager drawing up an action plan – which was then ignored by his staff! We have long argued that our son lacks mental capacity both in terms of CA2014 S. 67 (all four conditions) and the MCA.
    2) In March 2018 a review was done by a Social Care Practitioner but neither we nor our son were given an opportunity to sign it, and the box marked re need for an advocate was marked no. The complaint handler ‘deems’ therefore that our son had capacity. We were recently sent a copy of this support plan suggesting that it was never published by the SCP.
    3) We were told that our complaint about failure to conduct reviews could not be taken up, but that we must request a new referral (thus wasting yet more time). Our son now has a new allocated Social Worker who has accepted our ‘model support plan’ as the basis of a new support plan, and agreed to quadruple the support hours. On Monday she also introduced an Independent Care Act Advocate for our son and we have confidence that things should be better in future. She also ruled that it was clear that our son lacks capacity under the MCA.
    4) Given that our sons conditions are life-long, it seems that our view has at least been vindicated, but this leaves questions around the legality of the award of direct payments (and the insistence that that is the way that payments have to be made) in the first place.
    5) Our reading of the complaints regulations is that, while there is a general 12 month rule, there may be reference back beyond that in exceptional circumstances.
    6) We are minded to go to the LG&SCO, but are not sure about the admissibility of the evidence around the 2009 error by the Social Worker.
    7) Meanwhile, there have been three staffing collapses by the care provider during the last 15 months, partly due to the habit of simply removing staff from the roster when we raise concerns around safeguarding, neglect or abuse; this week our son is receiving no support at all. I am 70 and we struggle to keep things going for our son.
    8) ‘Minor’ issues include the local authority ASC complaints procedure stating that they will “offer to meet” but then altering their website after we had initiated our complaint, and stating that the offer to meet is not part of the procedure. The confusion from this greatly complicated the process of our complaint.

    1. Belinda SchwehrBelinda Schwehr

      with all due respect I am thinking it must be obvious from the nature of comments and responses on this site that it’s not the right place to come for specific legal advice about full on matters like this. I run CASCAIDr now, a legal advice charity to which you can of course make a referral, but I can tell you to save time that the sort of issue you have set out above is a matter that is NOT within our free scope category of work. It’s chargeable, and that IS our model and how we keep the more time sensitive pressing legal work free for some people. Any matter that has gone as far as a complaint already is much more complicated to unpick than just pointing out was was wrong (if anything was wrong) with the public law side of things, in which we specialise. There is no prospect in my mind of getting anyone anywhere to look back as far as 2009 so it is better to seek to use that situation as th context in which all other things since have been allowed to happen. Complaint shenanigans with councils are many and varied and par for the course these days.

      What you need the current and more clued up practitioner to DO is get one of you to be the Authorised Person under s32 of the Care Act. The fact that this was note ever done before and nothing has changed about his capacity means that you should be able to embarrass the council for its won ignorance but that is of no relevance as to whether the content of the package/funding etc is good bad or in legal terms, defensible or indefensible. AND since things are going better after such a long saga, you might not want to be too challenging. That’s simply a matter of tactics.

      Please do a referral on the referral form tab on the top menu bar of wwww.cascaidr.org.uk if you want to take if further and think it worth paying for what we call handholding.

      regards, Belinda

  100. Vera

    Hello, I am supporting a lady who has recently gone into hospital for an operation. Prior to this, she lived in a supported setting and received £x funding. Coming towards discharge, we have asked the LA for extra funding to allow for 10 hours/pw support at her home to help with recovery. Unfortunately, they have refused and said she has to go into a Young Disabled Unit (which costs half the price).

    She has a LD and is very settled in her home with familiar staff and routines. She lacks capacity for any major decisions. I believe sending her to a YDU could hinder her recovery, cause her distress and take away some of her freedom. She does not adapt to change. I am also concerned that the LA would keep her on the Unit permanently due to cost and she would never return home..

    Her needs have not changed, however due to the operation and recovery process, she does need additional temporary support. Is there any way to challenge the decision of the LA? Surely they have to prove the YDU is in her best interests and not just about money?

    1. Belinda SchwehrBelinda Schwehr

      I am sorry that I did not SEE this message at the time. I expect it’s all happened by now and hope that you managed to stop the plan – but my answer would have been that decisions of this nature are only challengeable if they have not been made using the right approach, or where the decision itself flies in the face of ordinary people’s thinking. Councils are allowed to save money, but I agree with you it might be the thin end of the wedge. But if she is in supported living, she would have had a tenancy – it was her HOME, for goodness sake, and the council can’t simply put her somewhere else. There should have been a deputy to sign the tenancy, and the deputy cannot have a conflict of interest with the funder/commissioner – so if this lady has no-one else, I do not think that that deputy was in a good position to make a best interests decision as to where she should recuperate, and certainly not where she should live in the long term. To make this kind of a decision lawfully, there has to be a conscientious grappling with the pros and cons of all the options, her human rights to respect for her home, her needs (first and foremost, although they are the judges of those and what would appropriately meet them) and her wishes and feelings, via an advocate, if she qualifies for one on the footing that she needs a review / revision, and thus needs an independent funded advocate to support her fullest possible participation in the decision.

  101. Clive

    Dear Belinda, I would like some advice please before I go back and challenge my local Adults Social Care.

    I am my wife’s registered carer and have a full time job and we have two wonderful children. My wife is registered deafblind and has direct payments to provide her with support workers – 15 hours a week.

    I have received a carer’s assessment and last year I was awarded a direct payment of £600 to pay for personal training sessions for health reasons and mental well being. After one year and spent the money on PT sessions and would like to continue with this as I felt I am benefiting enormously from this. I asked for another £600 for 2nd year but was told this is a one off and I was not likely to get another lump sum or direct payment! I am confused because i thought direct payments is an ongoing system subjected to reviews/reassessments?

    I have also been earmarked for foot surgery next month and will not be able to drive etc – on crutches for 6 weeks. My wife can utilise her own direct payments to ensure cover for driving by her support workers but I am concerned about other duties not being done because of my being laid up for 6 weeks post op; such as gardening (I am worried that grass and hedges will grow out of control in 6 weeks). Adults Social Care have advised that they will not assist with this and insisted my wife uses her PIP to cover the additional costs of engaging a gardener to cut grass and hedges.

    Is this legal and do I have grounds to challenge this?

    Thank you for your help and I look forward to hearing from you.

    With best wishes,

    Husband

    1. Belinda SchwehrBelinda Schwehr

      Dear C

      Thanks for your enquiry. I understand that you get direct payments as a carer and that is great. They can’t tell you it’s a one off, because that would amount to cancelling carers’ support budgets regardless of their needs; they are obliged to review from time to time, and that is what you have to insist on. They ARE, however, entitled to REDUCE the amount of support they feel will appropriately meet your need – and what you were given it for is one of those on the cusp things – because if you’ve been dedicated to it you will have felt stronger and more in control, I am sure, and they may be hinting that there’s a risk that the need has been managed out of existence. You would say back – ‘a managed need is still a need’ and ‘if I don’t keep doing it, I will lose the benefit of all the effort made so far’ – and it is anyone’s guess which way that debate will go. The thing about carers’ budgets is that they are much more of a bribe, thank you, negotiation, inducement or reward than a service user’s budget because councils know that carers don’t have to care, so really, the answer to the question ‘how much is enough to meet need’ CAN on one level be this: ‘whatever it takes to keep the carer caring.’ With a devoted husband, I am guessing that they’d be guessing they were on to a safe outcome that you are not going to withdraw from caring if you don’t get this budget continued, and in this particular environment, I don’t know many councils who wouldn’t try that on, to see what happens. The vast majority of relatives do not want to be seen to be wringing their hands, and asserting themselves in relation to the choice they’ve made to care, and councils also exploit that natural moral reticence, I am afraid.

      So to conclude, it would be unlawful to say that they’re not doing direct payments for carers, or only did them for one year, but not unlawful to be more nuanced about it, as described above.

      Given the foot surgery, you WILL be withdrawing and that is a massive change of circumstances for your wife, who is entitled to insist on a review, under s27 (on any reasonable request). So I hope I’m not too late in replying. On the other hand, gardening is not provided by most councils now as an aspect of social care – maintaining a habitable environment is a narrower concept than keeping one’s garden looking respectable I am afraid. It would be unlawful to say We Never Do Gardening but it is one of those things that they probably don’t do, in all honesty, whereas if it was shopping or cleaning, you would be able to show that they ARE in fact doing those things for lots of people. What your wife would be able to do is to claim the cost of temporary gardening as Disability Related Expenditure so as to reduce charges that are levied on her at this point.

      If you want help regarding this matter we may be able to do it for free and get a better outcome via CASCAIDr, a charity I now run – please go online and see what it does and use the referral form, if you cam – otherwise book a call.

      regards
      Belinda

  102. Deborah Le Cornu

    In Nov last year my 89 year old mother was admitted to hospital with last stages heart failure & I was told she had 24 hrs to live – a diuretic drip was administered & she picked up but I was told she didn’t have long & that I needed to have the conversation as to where she would like to end her days . She couldn’t return home & & couldn’t come to us as we have no downstairs facilities & her care needs were too great . She chose the care home she had been to after breaking leg , femur , shoulder & having 2 strokes in 2015 . She was admitted & social services contributed approx £400 towards the £1400 bill ( I pd the remainder ) whilst at the care home she had numerous falls & a severe seizure so it was decided she would need to become a permanent resident – a permanent placement financial assessment was booked for May 15th but without warning the social services ended their temporary placement on 26th Feb leaving approx 12 weeks with no contract . The care home then wanted a self funded contact signed & 8 weeks money in advance – (plus arrears that we’re caused by SS ending their portion ) the amount was needed within 4 days and amounted to approx £16.000 ) I couldn’t find that much cash at such short noticed so paid for 1 week respite & removed her on the 7th April back to her home where I employed private carers to help me look after her – we lasted 2 weeks & she was admitted to hospital by ambulance crews over the Easter break – as soon as she left the previous care home I organised another with a deferred payment scheme where I can pay a reasonable weekly fee & pay back once her property is sold – this involves paperwork via a solicitor to put a charge against her property- this is taking longer than I thought but she has been accepted & her house is on the market – I cannot speed things up . My mother was moved from ASU to a discharge ward after her first week but is now in her 3rd week in hospital & I have been told that she is to be evicted . The reason we are between homes is because social services stopped their temporary placement contact but are not taking any responsibility for their error so are planning on moving my mum to a temporary care home till the paperwork for her new one is finalised – it seems so unfair to cause an 89 year old such distress by moving her so many times – her anxiety is through the roof – can they really evict her from hospital after such s short over stay ? especially when they know that as Soon as the paperwork is finalised she will be leaving –

    1. Belinda SchwehrBelinda Schwehr

      D hi
      There is something I’m not getting here I have to say: it’s this bit: if she was expected to die, why wasn’t she assessed for CHC – on the footing of being terminally ill – the concept is called being fast-tracked.
      Secondly, if it was going to be a short term temporary placement by social services, and not the NHS on CHC, then local authorities have different charging rates for temporary accommodation and whilst they do operate the choice of accommodation rules in relation to temporary care, I am surprised that it was only £400 towards the £1400 fee. If you mean £1400 per week, that’s absurdly costly albeit I understand you were not expecting it to be for long. But here’s the thing: a person is allowed to spend their OWN money, not yours, during the 12 week disregard period. So that is odd too. During that time, therefore, the council should have been contracting for the top up, and not obliging you to pay it DIRECT.
      You don’t say anything about your mother’s capacity. It’s critically important on the issue of the termination of the contract that you mention. The 12 week period of being the council’s client cannot simply end if a person lacks capacity, because there may not be a person with any lawful authority to contract in the person’s own name – you don’t say if you’re a deputy or an attorney.

      I don’t understand what you mean by ‘leaving 12 weeks with no contract’ 26 Feb until when – now?

      Now I have got to the end I can see that there’s a safeguarding issue about the decision to take her home, and the fact that it failed and that she ended up in hospital again, – but also a safeguarding issue now with evicting her – if there’s an underlying public law wrong, MAYBE, underlying it,. Unfortunately I have to say that the facts are not coherently enough set out for me to get a grasp of what you are really saying. I can only suggest that you make a referral on the site that is what I now run: http://www.cascaidr.org.uk where there’s a referral on the top line menu. We do some work for free; other work for a low cost charge, and most top up scenarios like this ARE able to be sorted out with the use of law, but not so easily when a hospital bed is being blocked. There is a helpline to book a call upon, please, but writing is the essential thing for getting the facts straight. We may be able to write a letter to the council’s lawyer to stop what is about to happen but I cannot promise.

      regards
      Belinda

  103. Help needed for my family member

    Hello
    A family member had a stroke in 2018 and after a long fight and very poor respite in a care home we secured a 24/7 package of care at home which was working great for 6 months and there were lots of improvements. Part of the last care and support plan stated that family and the MDT team believed a nursing home placement would have a detrimental impact on my family members mental health. The respite was only agreed while the package of care was put into place. The family member lacked capacity and still does.

    The family member is in hospital and has been medically fit for discharge for 6 weeks but the local authority refused to increase the care package on a short time basis to allow the family member to heal from a fracture. As the family member is unable to help with repositioning at this time so there is a need for two carers at night instead of one. When the family member first went home last year they had two carers at night but this was reduced as was not needed so we are not asking for something that has not already been awarded.
    We asked for a best interest meeting and were told that could not happen until a decision was made on the care package. We waited a few week and were then told package has been refused. We asked for a best interest meeting and have now been told any best interest meeting would not look at care at home as it is no longer an option. best interest meeting is about hospital or nursing home – neither is what the family member wants.
    We asked for an advocate April and have continued to ask. Finally one is being allocated yet they want to have a best interest meeting early next week which will not allow the advocate time o speak to the family member as communication is not easy for them.
    We have asked to see the care and support plan in advance of the best interest meeting and after weeks of requests still do not have it. How can we fight for the family member when we cannot get access to the information.
    I asked for a copy of the mental capacity assessment as CoP advised I needed it to request and emergency order but the local authority will not give it to me.
    I do not feel the wellbeing of the family member is being considered. the family member will disengage and once there is no improvement because of this they are unlikely to ever put the care at home in place again. Surely the family members mental wellbeing should matter as much this time as it did last time. We have tried to work with the local authority but the situation is becoming more and more difficult.
    I work for the same local authority and adult services approached one of the heads of services questioning my role and how my career is at risk. I am now at the stage of seeking legal advice and potentially going to judicial review but want to avoid if at all possible.
    Is this a situation a monitoring officer could be involved in?

    1. Belinda SchwehrBelinda Schwehr

      Hello
      You need to identify illegality in the approach of the council to go the Monitoring Officer. That means public law illegality – such as unreasonableness, fettering, error of law, or a disproportionate interference with human rights. You are in care planning territory in an era where the law allows the council to determine what to offer, having taken resources into account, but not willy nilly: what is offered does still have to be lawful in relation to meeting needs, from an objective, evidence based, professionally competent perspective. So the bit that strikes me as worth referring to CASCAIDr if you are not happy doing it yourself is this: best interests decision making on the footing that decision whatever it is will involve touching or moving your family member without consent, has to occur first, under the MCA, before a lawful care plan can possibly be offered. The fact that a care package was ‘refused’ does not mean that that was a lawful refusal. The professional view that the hospital or a care home is the only place where the family member’s care needs could feasibly be met would be required to justify a bald refusal as described, and I would bet that there is no such basis that could be disclosed. A LAWFUL care plan has to be offered, and reasonable steps taken to agree it, however, before a best interests decision can be said to be ripe for the attention of the Court of Protection. The advocate MUST be involved, since you have a dispute with the family about a material disagreement – the regulations require it, so it would be completely illegal to consider best interests for any purpose without the IMCA or Care Act advocate. The Haringey case makes it clear that the advocate must be involved and had their chance to have private time with the person represented. Without stating the reasons for not disclosing information to you, the council has not abided by information law or public law principles of fairness. So if your family member is fit for discharge, and the council won’t return the family member to whence s/he came, they must be transparent in their reasons, and their reasons can include the cost, but your input to those reasons as a best interests consultee would be that it worked last time, and it need only be for a short time, and that the CoP would look askance at NOT trialling a home care package out for a limited period before a final decision, because otherwise it looks very like cost capping or fettering of care planning considerations. The fact that you have been implicitly threatened because you work for the same authority is something that makes my blood boil, and I can only say yes the Monitoring Officer should be involved.

      CASCAIDr will act for free in cases where you can evidence the above. The account you have given is not enough – there needs to be evidence of all this, because we will not aggravate a council for no good reason. But if it is able to be evidenced, then it should qualify for free scope work. You will have to do a referral form on http://www.cascaidr.org.uk on the top menu bar – look for Referral Form, but please try to say what the evidence is that underpins this saga, unless you can pay charges as described on that site, please.

      regards
      Belinda

Comments are closed.