CASCAIDr is a specialist advice charity, launched in 2018, with a mission to try to help put right some of the not-so-good things going on in Adults’ Social Care and NHS health service allocation in this country.
It’s registered with the Charity Commission, under no. 1175911, and at Companies’ House, in England. The charity registration means that we are entitled to collect donations which are increased by 25% GiftAid from central government – if you are a tax payer. You can make donations to keep us going, or purchase an annual package of advice and training materials, for carer and peer support groups, charitable providers, advocacy organisations etc. Donations can be made via the Donate button on our Donation page here, (with a card on a system called Nochex) and for annual package purchases, via the Services or Packages page.
What we don’t offer
We don’t do personal injury negligence actions, even if related to care services; we don’t sue the NHS for negligence and we don’t get involved in pure safeguarding problems, which are always about family disputes and perceptions of the risk of harm which have nothing necessarily to do with social work decisions about care plans (public law is what we are expert in).
We don’t help people give away their money to avoid paying for care.
We don’t take on disputes with CQC on behalf of providers.
We can’t usually challenge clinical/medical decisions as to what it right wrong or needed for people who are ill, and that includes people who are mentally unwell. This is sometimes feasible in relation to psychiatric / mental illness clinical decisions regarding matters to do with care, but not often.
We don’t do employment law advice, please note, but we can at least tell a client if that’s the essence of the problem, if the client is not sure.
What we do
We have two sorts of service: our free scope work – free analysis and help, called our Triage service, for anyone making a referral online on our form (top line menu above or click here), and our chargeable work, for the majority of clients – at £135 ph after the first free maximum 3 hours’ work on our Triage decision.
After Triage, we can tell you if you will likely qualify for legal aid and try to support you to find a legal aid law firm, with a coherent ‘lawyer-like’ summary of your issues, if we’ve been able to distil them and come to a view.
If your matter is still apparently too complex for us to even make a Triage decision, in the free 3 hours, you can then choose whether to have a volunteer unpick your issues, or pay a reduced fee for more unpicking by one of our paid Caseworkers, and have it summarised to assist you in INTERESTING a law firm of one sort or another, legal aid or fee-paid, into taking it further.
For the advice work, we use self-employed caseworkers and contractors as informal experts in the Care Act, and health, social care and human rights law in general. We also collaborate with barristers who do direct public access work and hope to be licensed soon to instruct ANY barristers without the need for a solicitor’s involvement. That is because the legal aid sector’s interest in community care law is withering, as take-up of what’s known as the s21A MCA loophole in Court of Protection legal aid funding is taken advantage of by firms all over the country. We don’t DO Court of Protection work, please note.
We use the money donated, or paid to us, through grants, or generated by charitable trading and through the sale of services through our trading subsidiary’s advice and training packages, to pay our caseworkers a flat rate per task/per hour, in order to access their expertise on people’s pressing health and social care framework problems. Enabling people to earn something from using their knowledge is our way of ensuring that people still see the point of learning about this crucial body of legal principle (even if they aren’t lawyers).
The idea is that most people’s problems are down to a mistake by council or NHS staff, not a deliberate intention to break the law in the Care Act or the NHS legal framework. Sometimes it’s just plain ignorance of what the Guidance says (and the Guidance has to be followed, unless there’s a very good reason why departure from it is thought to be justified – even though it doesn’t quite count as law). Sometimes it’s the culture – the state of teh public body’s budget drives assessment, as opposed to the needs. That happens to be unlawful, not because these bodies can print money – but because a duty is a duty, and even the concept of sufficiency is subject to judicial review, for approaches that are indefensible – that is, shocking to ordinary opinion, in effect, in a civilised society.
So our first round in attempting to help people with problems within the charity’s FREE scope will usually be non-adversarial – we will be letting the client know how to tell their council or NHS body that they’ve overlooked something legally relevant to the person’s rights. We give you a checklist of what SHOULD have happened, and from that list (having analysed your account of what’s happened), things that didn’t, or haven’t happened as they should, so that you can take it back to the decision-maker.
If that makes no difference, we will ramp it up a bit, with details of WHY what’s happened is really likely to be unlawful, in public law terms. If that opinion still falls on deaf ears, we will write a Pre Action Protocol Letter direct from the Charity, which will tell the public body what it needs to do to avoid an application for permission for judicial review, and how soon. That letter may be accompanied by an opinion from an independent barrister who will have already given his or her advice to the Charity for a set rate.
The Charity is going to get people that far, without the need for recourse to legal aid funding – because it’s complex and patchy in coverage – legal aid solicitors need to be authorised to offer Community Care expertise, and it’s very thin on the ground, nationwide, making it impossible for some people who are ill or disabled, to travel to access it.
If the letter before action still makes no difference, we will support the individual to put their case onto CrowdJustice’s funding platform, with a compelling write-up, so as to see if we can get members of the public interested in funding the legal challenge, and use social media to supercharge that effort, as well as lending the charity’s backing, to attract GiftAid.
The public body concerned will be able to see the person’s crowdfunded ‘pot’ progressing towards the 30 day funding target, which will be set by reference to the likely costs of a contested application for permission for judicial review – £10-12K, usually.
If the council/NHS body sees the light, after the target is met, and shifts its position so that no further action is needed, then the charity gets to keep the money. If they change their minds beforehand, anyone who’s promised to help, is let off the need to pay up on their pledged contribution.
Isn’t that fabulous?
The driving force behind this charity is Belinda Schwehr’s belief that the rule of law has to be a better foundation for identifying the extent of a person’s rights to care and support, than any rhetoric or buzzword that any political party has come up with so far – and better than personalities and the balance of raw power determining who gets what….
She has spent 20 years specialising in this area of law, as a lawyer, an academic, and then as a trainer, before more recently moving into writing, commentating, blogging and campaigning for legal literacy and legal principles.
Her view is that without clear principles, governing the work of professional health and social work staff, we are all doomed: not a single one of us can predict which of us will NEED care, let alone be able to rely on a benign and well-informed friend or relative, if we’ve lost mental capacity.
So we may all need legally literate social workers or care planners, as well as the State’s rationally calculated funding support, and good quality providers, at some time in our unpredictable futures…
We also benefit from all the accounting profit made by our trading company, CASCAIDr Trading Ltd. This company offers advice at a reasonable rate to individuals on more complex matters outside of the defined scope of free and low cost advice provided by the Charity but depends on capacity and access to a reliable expert. Advice and training packages are also available for non-charitable organisations, at rates ranging from £150-£750 per year, for Zoom or Teams-based training recordings, together with legal advice for subscribing organisations’ own issues, or those of their clients.
For a more detailed explanation of what we offer, please click here.
We find that enlightened and business-minded housing, health and social care providers, law firms and advocacy organisations all get the point of contributing and/or investing in training packages.
Care providers’ own financial security and sustainability is directly related to CCGs’ and local authorities’ awareness of people’s legal rights to a decent care package. A personal budget from Health or the council has a direct impact on the fee being paid to the provider.
CASCAIDr’s management hopes that working with the Charity or its Trading Company will become a badge of honour for organisations – because it conveys that they care about legal rights. We hope that one day, prospective customers might well ask providers whether they support CASCAIDr’s work, before making a decision about whether to buy care from them.
Since none of us can know, now, whether any one of us will end up dependent on others for care, or lacking in the necessary mental capacity to organise it, CASCAIDr’s point is that everyone needs health and social care services to be allocated lawfully, rationally and fairly.
Covid has made things far far worse, but it was already grim before Covid, in terms of councils’ adherence to the legal framework – as can be seen in case law, and in the Ombudsman’s Reports and the proportion of complaints being upheld for sheer ignorance of how to do their day jobs!
That’s why we think everyone will understand that this field of specialist legal expertise needs to exist and thrive, and that access to legal advice must be available and affordable to those most in need.
What is our impact?
If we are unable to reach resolution in cases where there is a clear public interest in challenging strongly likely unlawful practice or decisions, CASCAIDr can support the individual to CROWDFUND, on CrowdJustice, for funding an application for permission for judicial review. We will sometimes join in, or even lead, on litigation, as an actual litigant, if we can get a protective costs order to cap our exposure to costs, if the case were to be lost.
This enables wider access to justice than currently, because it is not restricted by limitations to Legal Aid or to lawyers offering a legal aid service, either now or in the future. And if the council or CCG concedes the case on the basis of advice, before the crowdfunded project has hit its target, it won’t have cost anyone anything, because CrowdJustice takes pledges, and only collects on them if the target is reached.
If the pledges reach the target and the money collected is not in fact then needed, because the public body decides to settle the case at that point, CrowdJustice’s terms mean that the fund is returned to the charity to use in support of its longer term charitable purposes. Isn’t that great? We certainly think so, and it keeps us on track, and minded to stay bang up to date on what the law actually says, so we don’t raise anyone’s hopes, but do know how and when to take this extra step.
Here are our Year 5 stats
CASCAIDr’s Litigation Strategy
A. Flawed Care Act assessments, and Care Act journeys
arising out of any of the following
- rationing of assessment based on shortage of staff, despite the principle long since established that such circumstances are not legally relevant to the discharge of the assessment duty
- ill-informed use or placing of the conversations from a 3 Conversations approach,
- processes that lead to only an indicative budget and a charging assessment but no eligibility decision (because a duty is triggered by one of those)
- processes that lead to an indicative budget but no individuated care planning (sometimes on the footing that the charge would exceed any potential budget!);
- care plans that have only outcomes written up, no inputs
- rationing of advocacy through poor or non-existent attention to ‘substantial difficulty’ as a trigger for considering participation and involvement needs
- refusals to join up different bits of an assessment which span maybe health, mental health, Care Act, and substance misuse teams.
- assessments which are made dependent on doing something first, such as engaging with a specific piece of tech, or a person with a particular title or task, such as a reablement team or a maximising independence officer
B. Direct Payment issues in general
various issues regarding rates, management options and scope
- refusal of differentiated rate according to the type of arrangement the recipient is intending to use (employment vs going to an agency vs an ISF) and disregarding the incidental and unavoidable extras arising from that preference
- refusing to uplift direct payment rates in line with the national minimum wage increases year on year
- taking the view that it is not appropriate to spend direct payment monies on anything other than the cost of staff, regardless of the breadth of the person’s eligible domains of need
- taking a fettered approach to characterising all activities for the budget user as matters of choice, and not as matters of need, and thus obliging the person to spend their own benefits or money on the meeting of their own needs
- taking a fettered approach to when it might be necessary to allow people to pay their close relatives in the same household for care out of the direct payment
- practices whereby managed accounts are imposed on people despite their mental capacity with regard to a managing the money (eg using payment of a grant or contract price for the managed account provider as the justification for putting the direct payment through a route over which the council has control)
C. Arbitrary (or care home cost-related) capping of home care after eligibility decision-making
affecting indicative or finalised budgets,
- without conscientious balancing of all relevant considerations,
- including a proper identification of the needs in the relevant environment,
- the evidence basis as to the lowest practicable cost of meeting them in that environment, if councils will not treat declined offers of residential or nursing home care as discharging them from their duty;
- the mental capacity principles regarding informed assumption of risk in relation to a cost-capped budget, by the person in question,
- the careful balancing of the person’s human rights against the rights and interests of others,
- the state of the care home market within a reasonable distance of the location where the person would need to be cared for, if they were NOT to remain at home
- the existence or otherwise of any suitable vacancy in a setting willing to take the client on
- the rationality of the evidence basis for the council’s asserted rate for meeting people’s and the particular individual’s needs in a care home, in the first place
D. The nature of the duty under the Care Act to meet needs,
in terms of well-established community care legal principles
- with regard to the question of what has become of the Care Act duty to meet eligible unmet need – and when does failure to meet need become unlawful by reason of unconscionable delay – including factors such as
- whether the plight of people left without a care plan, or the services in the care plan, in place, has become non-justiciable despite it having been the law for over 25 years that the duty to meet needs is an absolute, individually enforceable duty, if it is the only way to meet eligible unmet needs, and that it is not a duty that can be allowed to be downgraded into a discretion?
- whether government policy regarding its preference to see adult social services commissioned from the private and voluntary sector, rather than delivered by council owned or managed services, is any justification for treating the duty to meet need as less than a duty, when the law has always been that if the services cannot be bought, then the council’s duty is to provide what has been written up in the care plan?
- given the fact that there is a mandatory duty laid upon adults’ social services councils to ensure that any council’s Director of Adult Services is able to secure adequate staff for assisting him in the exercise of his functions (which include the Care Act duty to meet eligible unmet needs), under legislation dating back to 1970?
- whether asserted non-existence of the staff or services via contractual commissioning arrangements renders the duty unenforceable, is something that must simply be overcome by raising the fees paid to the market, given that the law has been that if there is only one adequate way of meeting the eligible unmet need then that route must be taken, regardless of the cost?
- given the commissioning duties IN the Care Act, consideration of the legality of a conventional commissioning approach to spend no more than an internally set figure, (ie remaining within the departmental budget and not considering use of reserves) on trying to find care, stimulate the market to raise the salaries paid, etc, or develop new services.
E. Supported Living
- regarding any of the following approaches to meeting the needs of people with less than full capacity
- councils’ mere signposting eligible clients to landlords of specific “supported living” houses where shared care has already been organised with a provider, without consideration of whether the person has an accommodation-related need which compels provision of the housing as well as the care;
- ignoring the need for the person or a lawfully authorised proxy to agree a tenancy or other form of rights of occupation for a care plan can be based on any such accommodation, nearly 16 years after the Mental Capacity Act came into force
- making the meeting of the person’s needs effectively conditional upon a person or their authorised representative taking up a tenancy and committing to paying rent, but only in a house where it suits the commissioners for the person to be.
- ignoring the factor of suitable living accommodation as part and parcel of the duty to promote the person’s wellbeing
- ignoring s25(11) of the Care Act which lays down that care plans (and hence personal budgets) cannot be combined without the agreement of all clients (with no provision for a parent’s agreement or even a welfare attorney’s decision);
- failing to ask the question, whether, if there is no other option that is acceptable, (ie no care home or other setting where the person’s human rights could defensibly be met in any competent professional opinion), and the person is regarded as incapable of securing a private sector tenancy, and not regarded as homeless by Housing officers – why does the person not qualify for accommodation related provision under the Care Act?
F. Disregard by the Monitoring Officer
of his/her s5(2) Local Government and Housing Act 1989 responsibilities
- regarding likely contraventions of enactments or rules of law, in light of the Parliament’s intention that these officers should actually deliver dispute avoidance work behind the scenes to avoid judicial reviews (on pain of a report to all councillors)
- the relevant test being only a likely contravention of an enactment or rule of law
- the Act making the duty an individual responsibility not able to be delegated to a complaints officer or head of service
- the Act requiring councils to equip Monitoring Officers with resources for external advice when needed (eg when there is a conflict of interest were the internal adult social care legal staff to be involved, having already advised the ASC team)
- the Monitoring Officer’s statutory duty not being dependent on a complaint having been brought, or regarded by the council as an adequate alternative remedy.
G. Inadequate s117 assessment and care planning
for people under s3 etc awaiting discharge from psychiatric hospital
- with frequent use of the Care Act approach, in lieu, leading to an unlawful charge for social care
- practically always ignoring the possibility that the statutory aftercare purpose could not defensibly be met without specialist accommodation because the intensive specialist mental health aware supervision that IS required would be meaningless without a home for it to be delivered within – thus triggering an ‘accommodation related’ need for actual direct provision of housing;
- disregarding at least 4 ombudsman reports flagging this up
- assessors and care planners not asking themselves the right question regarding accommodation related needs
- paying insufficient regard to the AK case (2021) in which judicial review was the obvious remedy for indefensibly bad and delayed s117 care planning
- ignoring the nature and standard of the duty as being one of ‘best endeavours’ and instead allowing commissioning to remain fettered and constrained in advance by irrelevant considerations
- failing to ensure that commissioners are trained in the legal framework for benign deprivation of liberty in the community if it is properly authorised by the CoP.
H. Continuing Health Care
ie the stance of Integrated Commissioning Boards towards people with Continuing NHS Healthcare status regarding care planning, with regard to
- failing to accept that care planning is amenable to public law principles at all
- failing to accept that the NHS complaint system is not an adequate or alternative remedy to judicial review where the care plan is impugned on the basis of breach of public law principles
- failing to treat public law principles governing community care functions, established from since before the Care Act was introduced, as relevant to their functions despite Continuing NHS Healthcare being in lieu of personal and social care under the Care Act
- making personal health budgets in the form of cash payments impossible to secure, manage or implement, for a wide range of reasons, which do not withstand scrutiny
- making split packages for non-qualifying CHC people, untransparent and unchallengeable
- treating additional payment agreements with care homes or home care providers as something that they are in a position to forbid;
- failing to pay restitution for breach of CHC responsibilities.