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
- Flawed Care Act assessments, in particular any based on a Three Conversations approach, or ones that lead to only an indicative budget and a charging assessment but no individuated care planning (sometimes on the footing that the charge would exceed any potential budget!); associated matters may be access to advocacy through poor or non-existent attention to ‘substantial difficulty’ and refusals to join up different bits of an assessment which span maybe health, mental health, Care Act, and substance misuse teams. And/or housing, if one wants to get really complicated!
- Arbitrary or care home cost-related capping of home care on indicative budgets or finalised budgets, without conscientious balancing of all relevant considerations, including a proper identification of needs, and human rights;
- The whole question of the absolute and mandatory duty to do this, that and the other under the Care Act, having been downgraded to unenforceable rights, now, by simple non-existence of the staff or services, and the relationship between that and the commissioning approach to spending more than the ASC budget (ie reserves) on trying to find it.
- The stance that signposting to specific “supported living” houses where shared care has already been organised with a provider, can even be regarded as a Care Act response, so as to justify a stance that meeting a person’s needs can lawfully be made 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 – when in fact the actual provision of the appropriate housing could itself be seen as an ‘accommodation plus’ scenario for many clients being manoeuvred into that sector, given their difficulties, and the impossibility of placing them in traditional care homes, if they are young and mobile and challenging, and equally incapable of securing a private sector tenancy.
- Disregard by the Monitoring Officer of his/her s5(2) LGHA 1989 responsibilities regarding likely contraventions of enactments or rules of law, in light of the Parliament’s intention that they should actually do dispute avoidance work by banging departmental heads together.
- Inadequate s117 care planning with use of the Care Act approach, in lieu, leading to an unlawful charge, and practically always ignoring the possibility that the statutory aftercare purpose could not feasibly be met without specialist accommodation and fairly intensive specialist mental health aware supervision – thus triggering another ‘accommodation plus’ need for actual direct provision of housing; there are now 4 ombudsman reports flagging this up, and s117 teams have been taught about it by me with another hat on. Also use of the AK case from 2021 on judicial review for indefensibly bad and delayed s117 care planning that does not come up to ‘best endeavours’ standards, because it is fettered and constrained in advance by irrelevant considerations and lack of understanding as to what can in fact be bought, if only it’s properly authorised by the CoP (benign DoL in the community).
- Cases for getting CHC care planning put on the same footing regarding public law principles imbuing it, as applied to community care before the Care Act, or incorporating specific Care Act principles given that it’s in lieu of personal and social care.