Using the Monitoring Officer as a free and convenient means to raise concerns about illegality, in the public law sense, in adult social care

This post is for flagging up that there is a much easier way of challenging a local authority’s actions or decisions, policies or practices, than complaining, and it’s not widely publicised. The people charged with discharging this system don’t even agree about its scope, but that doesn’t mean that the words mean what the words say….

It’s use of the Monitoring Officer’s own independent statutory duties to keep a roving eye or ear out, for alleged unlawfulness within his or her council. Its existence means that all you have to do is know enough about law to be able to string 3 or 4 paragraphs together to lay out for a Monitoring Officer a coherent arguable case on why what’s been done, or is about to be done or not done,  is simply not defensibly lawful. 

This duty was first created under an Act that goes back to 1989, when governance no doubt meant something different to what it tends to mean now.

The attached documents are an explanation of what the Monitoring Officer is there to do, and a table of nearly all the Monitoring Officers in adult social care councils in England and Wales, together with their email addresses. A few are missing and will be added if anyone can give me the information, which should be in the public domain.

There used to be an excel spreadsheet supplied by a data supplier to me for money, but it was a breach of the terms of the licence for me to share that with the public. I have used it to enquire of Monitoring Officers whether they object to their email addresses being publicised here, and where that was the case, have left the name blank, given a generic address instead, or otherwise checked data that is publicly available to advise people how to get in touch with the relevant Officer. The information as to the Officer’s name could not be refused if the council was asked for the person’s contact details and if the council’s receptionist does not know, anyone could use an FOI request to the council to find out who is their designated Monitoring Officer – there has to be one.

fresh list amended for putting on schwehr on care

If there are references to Acting or Interim in the job title, they may well have changed recently.

There is also a justification for publishing their email addresses, without explicit consent, for Data Protection Purposes. If anyone thinks that making it easier to uphold the law in adult social care, by telling people how to use a remedy that’s been provided through the will of Parliament, is not a legitimate interest, on my part, as a data controller, then they are able to complain about this to the Information Commissioner.

I very much hope that people will put two and two together, maybe buy some of my Webinars about what the legal framework says about adult social care, and equip themselves to do polite, informed battle for their or their loved one’s care packages and budgets.

In the meantime, my team of hand-holders, nationally, can provide well-informed legal acumen to help you through review or assessment, or support you through a referral or challenge, for an affordable fee.

It would be better if people would write themselves to the Monitoring Officer about the absence of independent funded advocacy, but we don’t mind if they’d rather pay US. 🙂

What is this information for

Law firms don’t have to offer legal aid funded services; and very few firms nationally, do legal aid work for community care matters, even if you would qualify, by reference to your means – but there’s a search tool below.) The Public Law Project is now a Charity, and can be a good place to go for advice about where ELSE to go.

If you know of any others, please tell me their names, by email belinda@careandhealthlaw.com.

Don’t forget that you can now go straight to SOME barristers through what is called Direct Professional … or direct public access arrangements: google “community care law” or “social care law” alongside the word barrister and email or telephone the clerk and ask whether these arrangements operate in those chambers or with a specific named barrister whom you’ve found on a search.

Law firms offering community care legal services:

Ben Hoare Bell; Irwin Mitchell; Pannone’s; Bindmans; TV Edwards; DPG Law; Martin Searle Solicitors; Edwards Duthie; Switalski’s; Cartwright King; Ridley & Hall; MG Law; Foster & Foster; Sinclairs; Howells; Stephensons; Jackson Canter; Latimer Lee, Wrigleys; Clarke Wilmott; Julie Burton Law (in Wales); Burroughs Day (Quality Solicitors); Alison Castrey Ltd; David Collins (best for providers arguing about fees, but it is not known whether they take on individuals’ own claims about fees, other than for CHC); Brunswicks (mainly for providers); Bates Wells and Braithwaite (mainly for providers’ arguments and particularly charitable providers).

If you could only afford legal advice if you were financially assisted, you need legal aid. Use this link below, together with the ‘Category’ filter on the linked site, to check out if there’s a firm local to your postcode, with a contract for Community Care work – they are few and far between, these days, but most will deal with you on the phone or online, so distance need not be a problem…

http://find-legal-advice.justice.gov.uk/

Search facility for legal aid solicitors

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

8 thoughts on “

Using the Monitoring Officer as a free and convenient means to raise concerns about illegality, in the public law sense, in adult social care

  1. 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 Post Author

      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.

  2. 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 Post Author

      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 Post Author

          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.

  3. 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 Post Author

      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

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