RoLOs are Rule of Law Optimists…
CASCAIDr CIC would like everyone to think about why it matters to be one, and fight for its preservation, at the dawn of a new era in government.
Lady Hale said this, recently, on the contribution of the rule of law in a civilised country, when opening a Law Centre in Leicester:
“Society is governed by rules, not by the ditkat or whim of a ruler. The rules should be accessible to all those who are affected by them. The rules respect the fundamental rights, dignity and equality of all human beings. Everyone is subject to them, the rulers as much as the ruled.
Everyone must have access to courts and tribunals to assert their rights or defend themselves. Courts and tribunals must be independent. Everyone should be enabled with legal advice, help or representation if needed, to assert their rights or defend themselves.
The justice system should be properly resourced to function. And the justice system should be properly understood, with all who work in it, being properly respected.”
She continued:
“Our justice system is not properly resourced despite the Secretary of State for justice swearing an oath to do so…. The justice system has been deprived of 40 per cent of resources during austerity, a greater level of cuts than any public-facing department. Totally shocking.”
Sue James, Legal Action Group’s CEO has suggested that access to justice is too important to leave to the politicians.
Buoyed up by the election, and the appointment of a human rights lawyer as Attorney General and a Muslim Lord Chancellor with the guts to make the prisons crisis front page news, I would like to think it’s not too late for adult social care law and legal aid.
CASCAIDr CIC is off to a flying start, focusing on analysis and information, now the cost of expertise is too great for a charity to sustain, and the incidence, too scarce. Our Alert Service is flying off the shelf, and that is all the evidence we need that people and professionals get the point. If we don’t use our legal rights, we will lose them, sooner rather than later.
And I’m happy to report the following, all of which is very cheering.
- I’ve had dinner recently with a GP who had the good grace to admit that he had never heard of public law principles – but would quite like to learn some to be a greater force for good in the Integrated Care Service in his area.
- I’ve lectured a cheerful and up-beat group of social workers, too, who still love their jobs. They had no idea that public law means that their ICB was not simply able to disagree with three levels of social work analysis as to what was needed for a CHC patient, in public law terms. But they were game to learn why, in a working group that would meet up later!
- I’ve encountered a s117 team which did not know that it had a duty to create a written plan that recorded their decisions as professionals as to what a person needed to discharge the statutory purpose of s117. But they liked the idea that if something needed would inevitably involve a long waiting list at CMHT level, such as DBT or a further specialist assessment, it should be funded, rather than waited for, consistently with the notion that s117 is an individually enforceable duty, not just an inchoate, soft, ‘target’ duty, like the rest of the duties under the NHS.
Tellingly, perhaps, the new Ombudsman’s appointment last year has coincided with an apparent determination to investigate fewer complaints, which sounds bad, at first.
But on the other hand, the complaints coming through, now, where fault has still been found are now generating stern exhortations to get some training in the public law framework for basic functions, rewrite policies and apply the learning to a wider cohort of people than just the complainant. In particular the reports are very frequently embracing restitution as a remedy for poor discharge of Care Act duties.
A positive LGSCO development is inclusion in the report of comments about the often appalling standard of the complaint investigation that even got the council taken to the ombudsman in the first place, and some probing as to went wrong there, too.
We think our long-standing prediction that the Ombudsman is set to become the alternative to judicial review is coming true.
In all honesty, as long as the Ombudsman’s team is well-trained and up-to-date; as long as councils take note of the findings, and the LGSCO service uses deterrent levels of remedy for the very particular fault that is constituted by public sector staff just not following or even knowing the law that governs the public body’s functions, we don’t think it matters too much if judicial review is a rare beast.
Even if a case only goes all the way to Court, a few times a year, advice centres, charities and law firms just need to start using Pre-Action Protocol letters as a matter of course, to drive the message home that judicial review is the source of interpretation and development of public law principles – the bedrock of the Rule of Law.
At least the Ombudsman’s services are free, alongside the still extant internal Monitoring Officer remedy for more urgent requests for a stay of execution against any imminent cut.
To conclude this week’s blog, I can report that we’ve done some analysis of a subset of returns sent to the Legal Aid Agency, over the last year by firms presenting as active in community care law, having been contracted to deliver it.
The statistics show the number of Matter Starts (case files) that these law firms have recorded, in the last year. Matter Starts are used to obtain funding for provision of Legal Help, for which it is only necessary to have less than £8K to one’s name, in order to qualify.
There are 61 firms, nationwide, actively using the contract, to offer services, which doesn’t sound too bad, at first.
But when one realises that 46 out of the 61 of them have provided under 20 clients each with Legal Help, in the last year, (and 18 of those have provided none at all with Legal Help, but have only started cases where better paid full legal aid has been considered appropriate), one can only wonder that there have been any judicial review cases AT ALL in the field this last year.
That means that just 9 firms nationwide are shown as doing over 30 Legal Help matters in that same year. Out of 11576 Matter Starts allotted out of the Legal Aid Agency’s budget, only 1583 were used, leaving 9993 totally unused.
Someone at the Legal Aid Agency will have been able to be promoted with that large saving from the budget, I expect!
There has still been important case law activity, however. The Rule of Law is not quite dead and buried!
Case law highlights (regardless of which side actually won!) have been TMX (Croydon), SB (Newham), RW (Windsor & Maidenhead), Saint Sepulchre (RB Kensington & Chelsea), Campbell (Ealing) YVR (Birmingham) and Care North East Northumberland (Northumberland County Council).
It is a little known fact that law firms contracted to the Legal Aid Agency for community care work are entitled to open Matter Starts for complaints work….
We’re going to start positively celebrating those firms who bother to go the extra mile by opening up their Legal Help service for public law matters, once again.
We will give half-price places on our next annual Care and Support Legal Rights course, starting September 18th, to paralegals from any Legal Aid Agency contracted firm which provides us with a small something of value in return, whether it be podcasting with senior partners, or ad hoc pro bono help with one of the more difficult questions posed to our One Off Q and A service.
CASCAIDr will continue to do its small bit towards making sure that social care legal rights do not go gentle into the good night.
The words and effort must fork some lightning!
RoLOs unite!