What’s SCIE going to do with this complaint?

Equal Lives and Norfolk’s implementation of the Care Act

Equal Lives’ Users’ complaints about Norfolk’s alleged illegality under the Care Act can be found on the group’s website. I’ve had a look at them (for free!) to see whether there’s evidence of flagrant breaches of the Care Act and the public law principles that underpin all local government functions. You can do so here: https://equallives.org.uk/?attachment_id=13293

When SCIE starts its LGA funded review it will need to probe the relatively brief details that were put together by the Group, in fairness to Norfolk, but also ask some more questions of the people who came forwards.

Problem no. 1 for SCIE is that to do this probe in a proper way, one needs to know some public law principles, because with law, and especially with public law and open texture of much of the Care Act, there’s a lot of scope for disagreement, without a lack of an agreed care plan or budget, automatically meaning there’s been illegality. An investigator can’t hope to ask the right questions of staff, management or complainants, unless s/he knows the legal principles, it seems to me.

With statutory duties and discretions, the most likely risks of being challenged for acting unlawfully will arise from a council’s

  • Not doing its duties at all, or taking unfeasibly long about it – eg
    • Not providing formal funded independent advocacy where it is acknowledged to be necessary and an entitlement, within the regulations;
    • Not providing written reasons, when the law or the regulations say that these must be given (ie as in s13 for any decision about eligibility);
    • Stretching the assessment phase out, by offering ‘prevention’ again and again, without coming off the fence about the eligibility question;
    • Never finalising a care plan, for want of agreement about the size or content of a proposed care plan – just offering ‘reconsideration’, again and again, and never actually saying ‘This is our decision – we think we’ve done our job now’.
  • Not exercising powers, or not making decisions about duties that turn on professional judgement, sensibly, or ignoring the statutorily underpinned guidance, without a very good reason!
    • Failing to consider the power in s19 to meet need even if the person is not eligible – the Guidance refers to why doing so might be best value or good for prevention or simply to promote well-being;
    • Running a lawful waiting list for a scarce resource – but based on alphabetical order, instead of need;
    • Not giving reasons for why an offered package or budget is considered to be enough…when the guidance clearly says that reasons should be stated, and the pre-existing case law such as Savva and KM makes it unarguably unlawful not to;
    • Leaving an eligible person without services, whilst their package is argued about, contrary to the Guidance!
  • Not discharging council duties within the words used in the Act or Regulations – or ignoring the statutory purpose – eg
    • Failing to allow a person to require the involvement of a nominated person, such as their existing advocate, in a social services decision, where this is required by the person – see s9;
    • Imposing a condition on a direct payment recipient, as allowed, but where the content of the condition actually negates the whole point of the offer – choice and control.
  • Fettering the discretion of the council or its staff, or not doing decision-making fairly, so far as the implicit rules of procedural fairness are concerned…
    • Failing to consider giving a person direct payments to spend on care services from a close relative in the same household, by having a rule internally that says ‘We never do that…’;
    • Not allowing a person to make representations or provide evidence, about what they say is wrong with the suggestion that a service available for free, locally, could and should be seen, as able, appropriately, to meet a person’s needs.

With a new piece of legislation, in an era of unprecedented central government cuts, the real risk to a council comes from its senior and middle management and front line staff not understanding what’s changing, or where to check that out – through lack of training or motivation – because if staff don’t know what they don’t know, or when they are on a legal wobble…they will openly say to members of the public things like ‘We have to bring the package in on budget, we’ve been told that there’s no question of raising it’ – which in itself is enough to get a council judicially reviewed. Or ‘You have to rely on your neighbour/friend/relative – regardless of what you think of that or of each other – because there is no more money since the cuts’. Ditto.

The Equal Lives users’ complaints

All of the complaints have cuts in common – and not just small cuts, but massive ones – the sort that a judge MIGHT regard as so surprising, that the threshold for at least permission for judicial review would be met. Whether or not the cuts would be justifiable, however, would be a matter for the judge, depending on the council’s recording, or evidence. If the evidence that what’s been allocated is not enough, objectively, in credible professional terms, to meet the assessed eligible unmet needs, then that’s unlawful.

Taken at face value, from the website, all of the complaint examples have an absence of defensible reasons in common – either in writing, or even, in some cases, even verbally, and this is very likely to be unlawful, given the Care Act requires reasons or even written reasons for findings of non-eligibility, and for refusing or removing direct payments  – and the Guidance requires transparency about sufficiency and for reasons to be ‘stated’ if a person is not agreeing with their care plan or budget being enough.

Some of the complaints mention exchanges with staff who have either seemingly not been trained to deliver unpalatable messages in language that properly reflects the legal truth of the governing framework – ie explaining that the council is the decision-maker and can take its resources into account in relation to care planning, (subject always to not going over the judicial review line of unreasonableness, illegality or unfairness, that is) but must strive to promote well-being, be person-centred, and respect the private and family life of the client and carer. Instead, the staff appear to have been saying that ‘It’s the cuts and that there’s nothing that can be done about it’, which suggests, sadly, that either this is the truth, as they have been told by management, which would not be lawful – because a duty is a duty, regardless of available resources (if one can only be legally literate in the first place, about what that duty IS precisely!) and reserves have to be spent if a duty has been triggered – or that they’ve not been taught that however unpleasant the news is that cuts can be lawful, even if a person’s needs haven’t changed, there is a way of explaining what is going on that IS lawful, and which IS defensible. Much as I admire their honesty, it doesn’t bode well for morale if they do not know, or believe any longer, that the rule of law runs as far as Norfolk!

When cutting a care plan’s content, or the amount for a direct payment, to meet eligible needs, councils are not able lawfully to ignore a deterioration in condition or an increase in dependency. They don’t have to believe or adopt everything they’re told, by doctors or other people, but they must have an evidence-based reason for not doing so – not just the impact on the budget!

They ARE able to make cuts, but only by explaining either how the needs have been managed away for good, or how the impact has lessened so that it is not significant any longer, OR how a new way of meeting needs, even if it isn’t wanted, isn’t just being imposed to save money, regardless of what the person says, but only because despite what the person thinks of it, it is still conscientiously regarded by staff as adequate and appropriate.

One gets the strong impression from the complaint document that the staff concerned with the clients in question would not agree that they think that what’s being offered would amount to an appropriate response, in terms of social work values and consensus. That is, that they have been told what they have to say and do, because of the cuts that the Elected Members have passed on to the directorates tasked with discharging the council’s functions.

That is bad news for Norfolk, because once a management team’s views, and the real view of their staff, part company, the council itself lacks the all-important thing for defending itself in court, which is a rational, reputable evidence basis, for its decisions. The pre-Act case law says that if a council’s allocation panel wants to stick to a disputed budget, it must be the panel that grapples with the reasoning, and prepares to be cross-examined or scrutinised, because they could well be overriding the competent, trained and experienced professional who’s actually seen the client, the carer and the situation….and made their recommendation based on relevant considerations. Whilst having less money than a council had previously, is legally relevant to HOW to meet the need, the people allocating the money still have to be able to explain how it will meet need, not just that it ‘has’ to! The case law says it is the panel’s reasons that have to be given to the client, even if it’s the social worker who has to pass them on!

The Care Act guidance is referred to a good deal, in the complaint about what Norfolk has been doing ‘wrong’, and of course it must be recognised that the Guidance is not law. It makes a clear distinction between what must be done and what should be done, and what might be done by a council, reflecting the legal framework about the difference between duties and powers, and between ‘target’ duties to the public or to individuals, and legally enforceable duties owed to individuals. What most people don’t get, because they are not legally literate, is that all government guidance has to be written with an awareness of public law principles in mind, by people who know the relevant case law and what it has already established. So it’s a sort of manual for managing legal risk, passing on principles, but without flagging up that judicial review is there for people who need to challenge what’s been decided or offered.

So SCIE will have to say that where it appears that the Guidance has not been followed, it will give a chance to the staff and management in question to explain what their reasons were for departing from it. Whether the records will contain any defensible reasons that were actually in the minds of the staff at the time, remains to be seen.  I am intrigued, though, personally, to learn whether SCIE – the Social Care Institute of Excellence, after all, will publicise the legal principle that DH Guidance does not actually have to be followed if the council has a very good reason, and whether SCIE’s audit team think that lack of money from central government was a good reason for the particular departures that have been instanced by the complainants.

One of the complaints is about a person whose budget is removed on the footing that her partner and child can do the care. In the particular example, the parent is opposed to relying on her family members for care; it is unclear from the complaint whether they were willing, but it IS clear that the mother is capacitated to be refusing consent to their doing the personal care that she needs.

Of course it is correct that a willing and able carer can obviate the need for expenditure on meeting needs, but the stance that a child of 13 should be regarded as the means to meet needs without a Children Act assessment about being a child in need, as a young carer, and in the face of dissent from the person needing the care, is clearly sufficient to get a person through the permission stage into the judicial review court, in my view.

One case involves a client who has already been to the Ombudsman, which is interesting; her complaint was upheld, but Norfolk has not changed its position. The appropriateness or legitimacy of the findings of the Ombudsman are only able to be challenged if the council itself bothers to bring proceedings against the Ombudsman; simply doing nothing reflects a worrying trend taking shape in the sector (Tameside has just done the same thing), which is certainly unedifying, to say the least.

Whatever the position on illegality, several of Equal Lives’ examples needed to go to the Ombudsman as complaints of maladministration. The Ombudsman rarely forces people to use the legal route, even if their complaint reeks of illegality or irrationality or unfairness, because of the expense, the perceived risk of damage to the relationship with the council, and the state of health of the individuals concerned. One cannot go to the Ombudsman however, unless one has already complained, and it is not clear from the Equal Lives documentation whether this was ever done in the cases of the people whose stories on which the Complaint is based. It is correct, however, that the unusual referral route that the group took instead, to the CQC, for a special review, is well suited to User Led Peer or Support groups, and this remedy does NOT require one to complain first. Neither does use of the Monitoring Officer, the free and dedicated legal governance route that I have been highlighting on this site, as a better use of anyone’s resources – in any matter based on a coherent allegation of public law unlawfulness, rather than a mere complaint.

One of the most telling features of the Complaint is the effect on the mood, perceptions and well-being of the complainants, that the struggle with the Council has had. Take this one excerpt, for instance:

“So we spent the next few weeks and months going back and forth with amendments, arguments and counter-arguments. There has been absolutely no ‘personal’ aspect to this budget. It has taken far too long to process, communication from the team at the Council has been notable by its absence – the onus being on us to chase them up – and I feel like I’ve been left to fend for myself. I’ve still not had the budget signed off. I was absolutely devastated when Social Services told me what I eventually could have, with my Personal Budget – basically only a PA and a contingency. I told her that my college course was my only opportunity to socialise – she didn’t even realise that it had been okay-ed previously….  Cutting the remedial massage element (I was directed to my GP to find out possible NHS funding – a complete waste of both of our times) has been the worst thing they could have done. Before, I felt my health was manageable, my mood was better, I felt better able to cope with my chronic pain. But now I have gone downhill pain-wise, which in turn has greatly exacerbated my depression.  Working in tandem, my college course, massage, activities and short breaks made me feel more in control of my life and health. Now they have cut short breaks, we don’t have the ability to do anything that can get us out of these four walls. Cutting my travel allowance has made me struggle to socialise and relax. This has affected my health and well-being, my partner (who is also my carer) and our relationship. My days are spent in my home because my health has deteriorated. I don’t see anyone, I have nothing to look forward to, I feel isolated and like a non-person who has been left to make do.  I feel we have been misled and lied to from the very beginning by the very people who are meant to be there to help people like me, and I actually felt like stopping the whole process because of the inordinate stress it has caused… Why weren’t we given the courtesy of honesty from the very beginning? If the money wasn’t available, tell us – don’t string us along with empty talk of ‘well-being’, it’s insulting.’

I don’t know what SCIE will make of all this, but it must be of concern to the whole of ADASS and the LGA, I believe, if this sort of experience and impact is as widespread as my own, as a writer, trainer and campaigner, suggests.

You can alwasys tweet to SCIE and Equal Lives, using @equallives_org and @SCIE_socialcare and @1adass if you feel the need.

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!

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