Category Archives: Uncategorized

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If you would like to receive either of those documents for your own use, just email on [email protected]

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

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

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

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

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

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

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

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

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

Likely consequences of the decision in the care sector

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

Why this is not necessarily bad for low paid workers

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

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

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

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

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

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

Direct payment clients and the ambiguities in their budgets

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

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

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

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

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

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

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

Press release received today

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

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

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

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

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

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

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

Comment from Belinda

Lots to say here.

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

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

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

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

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

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

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

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

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

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

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

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

What CASCAIDr’s been up to in its first three months

CASCAIDr has been open just over three months now. To celebrate, we’ve done a case list covering all the most important community care cases that were ever heard, pre and post the Care Act, establishing solid, enforceable legal rights to care and support for people with complex conditions and disabilities. Here it is: CASES Template

Aside from a load of admin, driving awareness and donations, and responding to well-wishers, we’ve fielded requests for advice and support from about 45 people, asking either on their own behalf, or for loved ones.

We can be found on – there’s a referral form under the Free Advice tab on the top bar menu, if you want to see if you could get free advice.

We’ve also been approached by parent carer forums, advocacy groups, providers and social care staff who are directly concerned about the legality of the decisions they’re involved in, and who are buying our packages combining advice and training webinars – or seeking short talks or half day sessions from us on issues that matter to parent/carer/user forums, for instance. We want professionals to go up the legal literacy learning curve too, so this is great news!

We have done two talks for GROUPS of parents of people with complex disabilities about their loved ones’ rights in the face of threatened cuts and closures – and the councils and CCGs concerned have gone strangely quiet as the rejections of their proposed cuts have started flowing in!

The charity is already building up a picture of behaviours which go against the spirit – and in some cases, the actual letter of the law – as set out in the Care Act.

We’re going to do a series of live facebook video posts about what to say in various standard situations, that we keep on seeing come up, all at the level of principle, of course, but hoping to bring the issues to life, and generate donations at the same time, to keep us going!

If anyone can offer us publicity on a national or regional scale, without insisting on photos of the people being assisted, please get in touch to [email protected] or .com

The range of issues we have been asked to assist with includes:

  • A sizeable claim for retrospective payment to compensate for mis-assessed entitlement to CHC status
  • Dodgy supported living arrangements where the Care Provider makes the nominations of tenants to the landlord and the clients HAVE to have the care commissioned on a fully shared care basis, and are refused direct payments as a group…
  • Missing assessments and reviews dating back to before the Care Act, so still based on FACS, not the law, or the specially stretched definition of ‘unable to achieve’.
  • Ordinary residence issues in the context of a Shared Lives client.
  • Cost capping of the offer of home care if the person won’t accept a care home – when the care home isn’t even conceivably suited to the person, and the cost comparison is therefore arbitrary
  • Proposed cuts of over 40% on the current package, with no explanation or any justification other than austerity…
  • Shenanigans over fees being re-negotiated behind the scenes by a commissioner, without regard to the impact on a user’s care plan contents or quality of provision
  • Disputed liability (as between adults and children’s services) for helping a disabled parent care for her baby whilst under 2 yrs old. And 2 other mothers with disabilities, and children with their own disabilities, hopelessly lost in the gap between children’s and adults’ services – on the footing that the children weren’t at risk, so therefore the women weren’t unable to achieve parenting. Oh dear.
  • A claim for unlawful detention arising out of a council simply failing to process a hospital’s urgent DoLS authorisations into standard ones under the DoLS process (AND, please note, where the provider has conducted the so-called safeguarding enquiry).
  • Pressure on carers to keep on caring, no matter what the impact on them, through the council’s refusal to accept there’s been a change of circumstance affecting the care plan, such as the carer going back to work; and in one case a council saying that a person with an acquired brain injury will have to make do with a general home care provider with no ABI expertise, in ‘the interim’, until something better has been found. Oh and by the way, if he or his carer says no, they will be taken to the Court of Protection to get the patient’s capacity to refuse, assessed, and the carer injuncted from obstructing his partner’s rights to ‘care’!
  • Direct payment difficulties: a refusal to increase a person’s direct payment, covering care at night time, on account of the new interpretation of the working time directive regarding sleep-ins. Secondly, a case where the local population is being told “You can’t have one, unless it will save us money – so, unless you are willing to have a live-in carer, to avoid the NMW problem, or to pay someone directly, to avoid HQ costs of an agency, we won’t ever be granting direct payments as ‘appropriate’ because we’ve got a new framework contract with providers offering us large volume discounts, and so your personal budget will never be more than what it would cost us to meet your needs through one of them. There endeth Personalisation Policy, it seems. Lastly, a case where the young woman’s direct payment might be taken from her, on the basis that the council would like to ‘check her capacity’ to have been given one in the first place over 2 years ago, despite her having had enough capacity to take on a tenancy in her own name, and to get married and divorced in the meantime!
  • The DB Service’s decision to bar a person with a conviction when a teen, from volunteering with vulnerable adults, when he himself has a disability and was not given an advocate on referral to Safeguarding of a recent concern.
  • Provider issues: a care home struggling to tell the difference between self funders and Full Cost paying council clients, and thus not knowing who owes what to whom… And some legal help for parents of a woman who’d been thriving in supported living, until concern about DoL or the NMW ‘prevented’ the night staff from providing sufficiently close supervision to stop her from picking at a leg wound, with the consequence that she had to be taken to a relative’s own house for 24/7 distraction for over 2 months – whereupon the support providers felt unable to provide support, IN that home, during weekdays, if the young woman would not willingly go to day care activities when they came to collect her, all because of the way the service had been commissioned and funded to avoid the need for regulated home care staff to be allocated to the daytime hours
  • Top ups – a ‘Move your mum to a cheaper home by the end of the week, if you can’t pay a top up’ problem – for a daughter, whose mother had not been assessed at all for the therapeutic viability of moving her in the first place – let alone with regard to the suitability of the suggested new home; and another one for a gentleman whose mother is only IN a care home, at all, because of the failure of the council to manage the market and the consequential inadequacy of home care provision to manage people’s assessed needs in their OWN homes! And another demand for a top up for a woman who went into so-called respite care because her council literally could not find a home care agency which could meet her assessed need for two carers – except that that’s gone on now for 6 weeks and they think she should pay a top up to stay in the home THEY chose….
  • Psychiatric hospital impasses: a case where a young person was seemingly stuck in the transition between children and adults’ services, a diagnosis of untreatable emotional unstable personality disorder and sectionable mental health needs, and facing eviction from a CAMHS unit and transfer to an adults’ in patient psychiatric facility, just because the s117 team had been lacking an adults’ services team member from the council and had started planning a bit late – and secondly, some legal help in a complex hospital discharge arrangement involving the need for CoP authorisation of deprivation of liberty within a Community Treatment Order.

We could already do with some more volunteers with social work skills to speak to people who are struggling – it would require only about an hour or two at a time, and only on the phone, at a time that’s been booked, with details in advance. And you can always say no, if you can’t manage it. Please sign up on our site on under ‘Volunteer’ if interested.

Please do download our information as to what we’re about, try to put it up on council Advice and Information services, and help us level the playing field – just a little! CASCAIDr Q and A 2018

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

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

Here’s the scenario:

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

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

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

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

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

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

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

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

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

Answers can be sent to [email protected] – that charity wants to know what YOUR council is doing about this.

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

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

These are our favourites but we’ll vary them if there is a big demand for some others we’ve not yet come across: please email [email protected] with your nominations

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

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

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

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

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

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

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

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

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

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

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

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

A suggestion for CQC when it comes to scrutinise local authorities’ and CCG’s performance – why not focus on legal literacy?

Readers may be aware that CQC has started to scrutinise local authorities and CCGs in a programme of visits culminating in a report to the Secretary of State for Health. CQC normally regulates providers of care and health, but there is provision for this sort of ‘special’ review of commissioning, too, in the legal framework.

The focus is on health and social care moving forwards together, and the quality of relations between the council and everyone else: Health, the third sector providing advice and information, clients, patients, carers, providers, etc: “How well do people move through the health and social care system, with a particular focus on the interface, and what improvements could be made?”

The link between adult social care and primary care and acute and community health services is the main topic for investigation and it seems to be a review focusing only on the experience of the over 65s.

20 areas have been identified for review, which is about 15% of councils, so the sample ought to give a good picture of what’s happening nationally, by the report stage, scheduled for 2018.

The ‘maturity, capability and capacity of the local area’ will be considered, in these Local System reviews, which will take place under s48 of the Health and Social Care Act.

Section 48 (2) provides that a special review or investigation looks at —
(a) the provision of NHS care,
(b) the provision of adult social services

I think that it must have been decided that it would be better for the Secretary of State to use that s48 special review power, pro-actively, rather than have more organisations start to lobby the office, for his approval of a single review, after identifying specific complaints or trends said to be a breach of the Care Act, as happened when Equal Lives complained about Norfolk’s practice, last year.

No mention of legal literacy

One question for the project team is ‘What else needs to happen?’ in the context of relational values and the culture in a given area. But Legal Literacy is not mentioned anywhere in the Chief Executive’s briefing paper about the reviews.

My view is that legal literacy is an essential for the health of both those aspects of a system, when the staff are concerned in the delivery of statutorily underpinned judgements, on which legal rights, do, after all, turn.

I am not a specialist adviser to the project but I would like to suggest that it is time for legal literacy to be assessed as part of the competence of front line staff and management.

Evidence of awareness of the legal framework on the part of both health and social care staff should be a primary focus for the reviews.

I do not know how CQC is going to manage the reviews without mentioning legal literacy, as it is an organisation that doesn’t have to interpret or deal with the public law duties of councils any longer, apart from in this context. The reviews are likely to create awareness of a tidal wave of user discontent with the way systems actually operate in practice, outside the legal framework altogether, in lots of situations.

Why do I say that? Well, in the last year, the following are some of the stances that I have been notified of, along with the inquiry from the correspondent – “is this legal?”.

I have given up gasping at what is now landing on my desk, when all any council really needs is an understanding of why Oxfordshire won the Davey case, and why Merton lost the JF case, both cases decided this year.

Staff from the highest to the low, in both health AND social care – do need to know just a little bit about how law WORKS, if decision-making is to be accountable and defensible, as the very minimum we should be resourcing.

Examples of stances around the country:

• Before we’ve even started your re-assessment, we need to tell you that you’re not going to be able to keep that £xxx, for such and such – all that sort of stuff is going now: the Panel says so
• You can’t have an assessment from us, unless and until you actually come here to live, and have actually arrived!
• You can’t get social care if you’ve got more than £23,250 in savings, so there’s no point in being assessed…
• You can’t ever get an advocate unless you’re mentally incapacitated – and certainly not if you’ve got any relative willing to speak for you, regardless of whether you want them to
• You can’t get a Care Act advocate (even though we know you deserve one), because we haven’t got any going spare at the moment – so let’s just get on with your assessment…
• We’ll ‘involve’ you in your relative’s assessment or care planning process, just by telling you the result…
• You can’t count as a carer and get assessed for support, if your relative is already in a care home, in supported living, in hospital or if they are on CHC or s117 aftercare…
• We don’t ‘do’ shopping, cleaning, meal preparation or night time care…
• You can’t have the price of a season ticket, a gym membership, swimming lessons or the cost of any actual ‘fun’, training, instruction or membership of anything, however long we’ve been funding that sort of thing, or promising that it’s part of personalisation – it’s not social services if it’s therapeutic! Go ask your GP….
• If you’re a carer, you will have to make do with a set sum of money for meeting your support needs, because that’s what we’ve always done…
• If you’re a person with a learning disability you have to live in shared care even if that means moving into a tenancy towards which we can only point you … and you can’t use a DP to choose any other care agency than the one that’s there at the ‘scheme’ whom we’ve appointed….
• You can only have a direct payment if it saves us money … and we give everyone the minimum wage, whether or not they want to be a direct employer;
• Relatives can never be paid out of the direct payment, to do the care, even if we’ve managed the market so badly that there’s no agency with any capacity, nor anyone willing to be a PA, for minimum wage, for miles around…
• We can sue the direct payment client’s helper, in their own name, for mismanaging the money, when we ourselves overlooked the inconvenient detail that the client lacked capacity to sign the direct payment agreement, and we didn’t bother with making the helper into an Authorised Person under the regulations…
• Your relatives will have to pay a top up to keep you here in this posh home, when your capital depletes under the threshold, because we never pay the full rate of a home when it’s above our rate and we can move anyone who needs social services, regardless of the distance
• We can cost-cap the level of services we should offer you in your own home, to whatever the cost of any other way of meeting your needs would be, that we can think of … regardless of its suitability, its availability, your needs, your well-being, your wishes and feelings, your human rights and your best interests consultees’ comments on what you’d think of THAT!
• If you disagree with the budget, we don’t have to give you a service in the meantime, even though your needs have been found to be eligible…
• The CCG Panel makes the decisions about CHC, around here, regardless of what the MDT has scored or recommended – and the Fast Track patients often die before the commissioners manage to sort out care
• We don’t do joint funding around here, if you don’t qualify for CHC – it’s illegal….
• If you complain, we suspend the care planning process until that complaint is closed
• The complaint system is the only remedy for a disagreement over a care plan
• We tell you, the providers, what to sell, and what the price of care ‘is’, and you all have to accept our prices, because we can put you out of business.

I look forward to seeing the report, but I am not holding my breath, because legal literacy is not yet an integral part of either the culture or ‘relational value base’ in health and social care, in my professional view.

In the meantime, if anyone wants advice about how to challenge any of the above stances, I offer training in Difficult Conversations, and give advice to individuals and organisations about what can be done if you’ve been affected by dubious decision-making on the part of statutory health or social care staff. I can be contacted by way of [email protected] or on this site.

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

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

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

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

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

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

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

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

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

There was thus no increase in the personal budget.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lady Justice Thirlwall added this:

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

The day trips point

The Court said this:

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

The minimum wage point

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

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

The national Care Act guidance says this:

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

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

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

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

Commentary regarding the rates being paid for direct payment users

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Where’s the best forum for all this accountability?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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