Advice in this country about adult social care is becoming literally unfundable. All the lawyers who understand community care law are holed up in one of two settings: local authority legal departments, or legal aid law firms, in the main, just doing Court of Protection stuff, not public law (with some honourable exceptions, of course).
They are paid between £32 and £55K a year, before oncosts, which is beyond the funding capacity of the average charity.
They do also benefit from perks: pensions, from the public sector, and supervision, from more experienced colleagues with ‘equity’ or salaried partnership prospects. Some have 9-5 jobs, others have at least the knowledge that they are never going to be sued for perhaps not knowing something that they should have been on top of.
In this country, funding for advice is not merely something that charities provide: all big welfare-focused philanthropic foundations understand that they need to resource expertise, if support in the form of advice is ever going to be anything other than a band-aid.
In our experience, the funding sector is not yet willing to admit that it needs to fund advice about remedies – not just advice about how the system should work. We can see it must be very unpalatable to have to acknowledge that the public sector is not abiding by the law, or is ignorant about the law it should be acting under, but that is the reality.
The Ministry of Justice also provides funding for charities to come up with other ways to compensate for the mess which is the legal aid system, for which it is responsible. Last time it did this, it chose to give the money to the Access to Justice Foundation, for distribution, one of whose conditions is that a grant-seeking organisation is not doing work that is covered by the legal aid system.
That’s a huge problem for organisations like CASCAIDr, because ALL community care legal advice is COVERED by the legal aid scheme – one can get it, that is, if one meets the means tests for the two basic types of legal support funding.
One is is geared to people having less than £8,000 for preliminary legal advice; the other is for people having less than £3K in savings, for full legal representation or investigative legal aid.
So the theory is that charities should not need to be working in this field where legal aid is available – because there will always be legal aid lawyers applying that means test – and opening files for those who are in need. Any funding ear-marked for community care legal advice can only therefore logically be intended for people with MORE than those sums of money to their names, rather than less. That seems like a very surreal basis for funding charitable assistance, is all we can say, with regard to the Ministry of Justice.
We say that because we know that community care law affects people regardless of their means – in the sense that councils will blithely ignore the legal framework even if you are a person who would not qualify for a funding subsidy for your services. Assessment is routinely denied to people who have SOME reasonable means but not enough to pay for fee-paid legal advice.
This makes us MAD. We don’t think it’s a positive conspiracy, to kill off community care legal expertise, but we do think it means that awareness of public law principles will wither away through simply lack of interest, unless or until something is done about remedies for breach of these social care safety net statutory duties – and that that is not inconvenient to any government, of whatever persuasion is next returned to power.
One answer is restitution – the concept of reimbursement for all the money spent whilst a council was busy not doing its duty by a disabled or ill or elderly or neurodivergent person, or someone else was providing free support under duress, by dint of non-action by a council or ICB. It’s been possible to claim restitution since 2019, since a Court of Appeal case made the link between what it means to owe a duty but not actually deliver on it. See here: CP v NE Lincs.
But if one is too dependent on the State for services, or not well-enough informed about one’s rights to FIGHT for them, there is a terrible legal fact that people do need to grasp: public sector decisions are valid until challenged, and still valid unless overturned by a Court.
So if one’s budget is insufficient, but one does nothing about it, then one is acquiescing in the breach, and providing an evidence basis to the council or ICB that one is not so bothered about the impact as to do the obvious thing, which is use the law of this country to stand up for oneself!
We think that if nobody uses public law principles, because nobody can find a lawyer to support them, they will eventually disappear altogether – and community care law will become ungovernanced, other than through recourse to the Ombudsman.
That is not progress, to our minds, in a civilised country!