Welcome to CASCAIDr’s fortnightly Adults’ Social Care and Care Act Round-Up

In this edition:

Adult social care complaints decisions explored:
Legislation and Caselaw:
- Manchester University Hospitals NHS Foundation Trust v JS & Anor – An analysis of the Mental Health Act 1983 and Mental Capacity Act 2005, with useful guidance on how to decide which Act to use in cases of deprivation of liberty in hospital
- Nottingham University Hospitals NHS Trust v JM and Anor – A stark case about whether to force an autistic man lacking mental capacity to have kidney dialysis against his express opposition
Other Articles Include:

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From the Local Government Ombudsman….

Updates on adult social care complaint decisions

Full bulletins can be found here:

Complaints of interest….

London Borough of Waltham Forest (21 017 787)

Waltham Forest repeatedly mis-calculated a person’s charges and failed to follow direct payment guidance and explain net vs. gross payment process, causing confusion and distress

Ms Y received funding for three hours a week of short breaks. In early 2021 the Council (for undisclosed reasons) told Ms Y’s father, Mr X, that the support ‘needed’ to come in the form of a direct payment (DP) and conducted a financial assessment (FA) which determined Ms Y’s contribution to be up to £86.77 per week.

In February the council wrote to Mr X informing him of this decision and providing a form to set up DPs. In March 2021, the council suggested Ms Y be supported for three hours per week, at £18 per hour (for a total of £54 per week) by a shared care service. Subsequently, a funding panel agreed four hours of support a week at the same hourly rate but for unknown reasons (the word ‘contingency’ was used later on) rounded the total up to an annual DP of £3,800.

In May Mr X’s wife signed the DP agreement but by July no DP had been set up. The council subsequently advised that Ms Y would not receive any DPs as her assessed contribution exceeded their value.

On numerous occasions between July and September, Mr X sought updates and a review of the decision until in September, a review reduced Ms Y’s assessed contribution to £66.77 per week, still higher than the value of the original 3 x £18 per hour DP amount but less than the 4 x £18 per hour DP rounded to £3,800 pa or approx. £73 per week [the council’s excuse at this point was that this ‘extra’ was a contingency, albeit not explained to the family/client]. In October, Mr X requested another financial review, citing the Council’s policy of an additional 25% allowance on top of the minimum income guarantee (MIG) and claiming that additional disability related expenses (DRE) including gym membership, which had not previously been accounted for.

The Council undertook another review but excluded gym membership as DRE. Mr X then advised Ms Y could not afford all of her expenditure with the assessed level of contribution and in January 2022 a further review allowed an additional £28 per week DRE for gym sessions. Mr X then argued that the gym sessions cost £45 each, occurred six times a month and that on 10 January he had discussed this with the Council who advised the DRE was incorrect but would be updated. The Council had no record of the conversation. [The report is silent on what Mr X contended the new DRE figure would be]

In February 2022 Mr X requested an update. In March, the Council stated only 50% of Ms Y’s membership fees would be counted as DRE “due to her excess income of £220.36 per month”. Mr X then insisted the Council fulfil its promise of paying the DPs at the rate discussed during his 10 January conversation. On 5 April 2022 Mr X then complained expressing distress caused to him and his wife and arguing that Ms Y should not have to contribute to the cost of her care. Also, in April the Council conducted a further FA which reduced the 2021/2022 contribution to £31.45 per week and determined the 2022/2023 contribution to be £5.99 per week. The Council sent its stage one complaint response on 13 May 2022, acknowledging some delays but making no further changes to Ms Y’s assessed contribution [it is not clear which unchanged contribution this points to].

Still dissatisfied, Mr X requested his complaint be escalated to stage two. On 11th July 2022, the Council’s final response stated there was no record of its having agreed to fund the DP in full and that while a formal notification of the DP decision was not sent in 2021, this was now part of its process, before offering Mr X £100 for distress and £150 for his time and trouble.

Mr X then took his concerns to the LGSCO who noted his frustration and disappointment following the Council’s initial approval of DPs which inappropriately raised his expectations before discovering Ms Y would not receive DPs because of its net payment approach [where charges are treated as the first part of a person’s package by s26 which identifies the constituent elements of a Personal Budget].

The LGSCO also noted the Council had been at fault when failing to send a formal notification of the DP decision to Mr X whilst noting that the panel meeting, held two months after Ms Y’s FA, had been unnecessary given that the Council ought to have known Miss Y’s contributions would be higher than the DP. Nevertheless, failing to notify Mr X of the outcome of that meeting was still fault. Further, the LGSCO found the Council had handled the FA and DP processes poorly, and that they were also responsible for delays in responding to Mr X and his wife’s requests for updates, appeals, reviews and reconsiderations.

The LGSCO concluded the identified faults had caused injustice as the Council failed properly to oversee the direct payment process and made an error in its calculations. As such it considered that the £100 for distress and £150 for time and trouble that the Council offered was insufficient and should be increased due to having raised the family’s expectations about what support Ms Y would receive. Therefore, it was agreed that the Council would pay £450 to Mr X for his distress, time and trouble and that the DP (the difference between Y’s charges and the amount authorised) would be backdated to 2021 when Ms Y had become eligible for more support.

CASCAIDr Comment: We think this report leaves a lot to be desired. The original is hard to follow, difficult to understand and does not delve deeply enough to provide the desired level of detail. This said, Waltham Forest’s practice clearly demonstrates they did not have the correct procedures in place for setting up DPs despite having been in existence since the introduction of the Community Care (Direct Payments) Act 1996. Furthermore, it is hard to understand how a council managed NOT to explain to the family that they could not have a DP due to the care contribution exceeding the actual cost of care. a situation which could ONLY lead to an outcome of confusion, mistrust and stress.

Importantly, anyone trying to get their heads around the charging system needs to factor in that it was not the assessed charge that exceeded the cost of care: it was the maximum amount she could have been charged, based on the rules-based financial assessment, before the care plan was even finalised, it seems. As such, since the offered services cost less than that maximum, she could get no financial benefit from a DP – no subsidy, in effect. It would be paid net of the charges, and thus the value of it would be wiped out. We often see councils doing this as a deterrent to even getting a care plan finalised, because they say it proves that there is no point. But this is not the full picture, because a person managing the service user’s direct payment as an Authorised Person might not have lawful authority to access their private bank account from which to pay charges.

Furthermore, we are surprised that the report did not comment on the inappropriateness of the council TELLING the client/her family that she must have her short breaks by way of a DP. That’s a fundamental wrong under the legal framework, which seems not to have been thought worthy of attention although the investigator does recite that consent is necessary.

Read the full CASCAIDr insight report on this complaint here.

East Riding of Yorkshire Council (22 007 333)

Summary: Mrs J lived in a Council-owned care home under s117 Mental Health Act, for her aftercare. Her deputy complained that there was no contract in place to set out the care expectations whilst she lived in the home, leaving her uncertain about her rights.

Mrs J received free aftercare services under Section 117 of the Mental Health Act 1983 (MHA) in the form of a placement in a care home. She moved into a care home, which was owned and operated by the Council, in January 2012.

Mr R, who acts as court-appointed Deputy for property and financial affairs for Mrs J [and is an independent Deputy], complained to the Ombudsman that Mrs J had not been provided with a contract for her stay in the care home. The Council advised Mr R that there was no contract in place between Mrs J and the care home. It explained that this was because usually, when placing a person in a residential care home, the Council would set up a contract between themselves and the care home. In this case, because the care home was owned by the Council, there was no need for a contract between the parties.

Section 19 of The Care Quality Commission (Registration) Regulations 2009 details that “where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf:

(a) specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and

(b) including, where applicable, the form of contract for the provision of services by the service provider”.

Because Mrs J did not pay for, or contribute towards, her care in the care home, nor did she ever need to contract for her own care, this regulation did not apply to her, but the LGSCO stated that this establishes a principle that a service user should be given clear information about the services they should expect to receive, including the terms and conditions of the care to be provided.

The LGSCO recommended that the Council produce a contract, or similar document, detailing Mrs J’s rights and what she can expect in terms of care provision, reflecting the Council’s Standard Terms of Business.

CASCAIDr Comment: Signing a care home contract can of course be key to ensuring a person’s rights are protected and that there is accountability if things go wrong. This contract will detail fees, and who is to pay whom, what services can be expected, and the terms of the stay.

Typically, the contract is between the care home and whoever is paying for the service, which will generally be the council, even if the person is paying full cost back by way of charges. It is settled law that the care plan must cover the full cost of the needs that are to be met, and the full package of accommodation – and even a top-up for ‘wants’ that are related to the package but beyond the notion of eligible needs, as it happens, when the council is the purchaser.

In this case, Mrs J was not contributing towards her care at all, because s117 care is free; and therefore it wouldn’t (and could not in our view) be expected that she would have been provided with a contract. The LGSCO rightly stated that s19 of The Care Quality Commission (Registration) Regulations doesn’t apply to Mrs J. We can’t understand how the CLAE has found fault in this case. Nobody ELSE – even under the Care Act – gets to see the council’s contract in an ‘ordinary’ case: indeed, the council will often claim the contract contents are commercially confidential! We disagree, because the person owed the duty must be able to insist on seeing the evidence of the arrangements made in discharge of the duty, but we know of no case law on the point.

We are surprised that the LGSCO didn’t highlight the six-year gap between Mrs J being assessed as lacking capacity and a Deputy being appointed and question what measures were in place at that time to protect her best interests, a point that we feel gave more cause for concern than an unnecessary contract!

Read the full CASCAIDr insight report on this complaint here.

Lancashire County Council (22 013 521)

Summary: Ms Z experienced a six-month delay in receiving a care needs and financial assessment from the Council following hospital admission for a stroke. Her family made repeated contact with the Council and complained about the delays in response and assessment.

Ms Z had a stroke in December 2021, and spent approximately four weeks in hospital.

Upon discharge, she received a reablement package of care at home for six weeks, ending in February 2022.

Around this time, Ms Z’s daughter, Miss X, made a referral to the Council requesting an assessment of her mother’s long-term care and support needs.

Over a four-month period the family made repeated contact with the Council requesting an assessment. Whilst awaiting an assessment, Ms Z received care from Miss X who had given up her paid employment in order to be her mother’s full-time carer and Personal Assistant.

An assessment took place in July 2022, after which the Social Worker confirmed to the family that funding for Ms Z’s care would be backdated to March [when the reablement care ceased].

A financial assessment was completed on 31 August. Ms Z was assessed as needing to make a weekly financial contribution of £17.60, which was deducted from her personal budget of £608.94 per week. The whole personal budget was provided via a pre-payment direct payment card, which was issued in mid-November but only backdated to August 2022.

The LGSCO stated that the Council did not act in accordance with the Care and Support Statutory guidance, which says that assessments should be completed within an appropriate and reasonable timescale, consistent with the urgency of the person’s needs. The report also states that Ms Z had significant needs in both mobility and cognition, and this should have been considered when the Council were looking to complete its assessment [i.e., when local authorities hold a significant waiting list, they should not only consider the length of time someone has been waiting, but their individual needs and risk factors too].

It further queried why the payment was not backdated to March, as agreed. The Council said that Ms Z was informed, ‘’incorrectly’’, by the Social Worker that the direct payment could be backdated to March 2022, when the reablement package ended. It however reconsidered and agreed to backdate the personal budget and funding to March, when Miss X was first employed as her mother’s Personal Assistant.

CASCAIDr Comment: The LGSCO report highlights an approximate four-month delay in assessment from receipt of referral. But it fails to consider that it was likely that the Council’s social care team would have been notified at the point of discharge and prior to the reablement package starting, meaning the delay was nearer six months! That was a good reason for making the backdating go all the way back as opposed to a point at which an assessment should reasonably have been completed (which the LGSCO tends to think of as one or two months, in our experience): the longer-term needs assessment should have been ready for the end of reablement!

Read the full CASCAIDr insight report on this complaint here.

Bury Metropolitan Borough Council (22 017 174)

Summary: Ms C was living in a residential care home and expressed a desire to return to her own home. She was assessed by the Council under the Mental Capacity Act 2005 and determined as having capacity to make this decision. Ms C returned to her own home and died six weeks later

Ms C’s son, Mr B, complained that the Council failed to include him in a decision about where his mother should live. The LGSCO found no fault in the Council’s process in establishing whether Ms C had capacity to make the decision about where her care needs were to be met. It found that the Council met with Ms C several times over a two-month period, and therefore found no evidence to substantiate Mr B’s concern that it rushed the decision.

Mr B further disputed the Council’s decision, based on Ms C’s dementia diagnosis.

The LGSCO highlighted that it cannot be presumed that someone is unable to make a decision based solely on their age, disability, behaviour or medical condition. It went on to say that where there is doubt over whether someone has capacity to make a particular decision [bearing in mind this is time and decision specific] an assessment should be completed. This is what the Council did.

Mr B felt excluded from the decision-making process, but the LGSCO highlighted that Ms C had capacity to make her own decision and therefore there was no duty for the Council to seek Mr B’s views.

However, it noted that it would have been good practice for the Council to arrange a family meeting [with Ms C’s consent] and the Council acknowledged that their communication with Mr B could have been better.

CASCAIDr Comment: The Mental Capacity Act s1(2) states that ‘’a person must be assumed to have capacity unless it is established that he lacks capacity’’, and that people must be supported to make their own decisions, where able to do so, even if others may think those decisions are unwise [s1(4)].

It’s an interesting question who the decision-maker about capacity IS, once a person has appointed an attorney and the question of their capacity to make a relevant decision then arises. One might say it MUST be the attorney, otherwise what’s the point? One might equally say it must NOT be the attorney, otherwise where is the protection? But the answer to THAT, we think, is that the compos mentis grantor can lay down conditions for their own protection when creating the lasting power in the first place, to ensure that there is minimal scope for improper or capricious taking of authority by the grantee.

In cases where there is a registered LPA for health and welfare decisions, it is good practice to complete an assessment with the person to ascertain their level of capacity at that time when an important decision falls to be made. If the person was found to have capacity to make the later decision, this would take precedence over the LPA, registered or not!

Read the full CASCAIDr insight report on this complaint here.

London Borough of Hackney (20 007 613)

Hackney at fault for delays in and inadequacy of support provided on discharge from hospital during the Covid-19 pandemic

Mrs Y had been admitted to hospital from her home where she had had a package of care in place.

On the 13th February 2020, whilst in hospital, a planning meeting with Mrs Y and her family took place with a social worker, occupational therapist and NHS staff (no doubt called a Conversation).

Social services were prepared to consider supporting a return home with a package of care there, but Mrs Y expressed concern about being alone at night. Mrs X and the family expressed that their preferred option was for Mrs Y was to be discharged to a residential care home. The family had found one that they felt would be right for Mrs Y which currently had a vacancy. No assessment of needs was done.

On the 20th February the Council informed the family that Mrs X would not be offered care in a residential home as she did not need 24-hour care.

The Care Act assessment was carried out on the 25th February and between then and 23rd March, there appears to be confusion about what was planned: firstly a resubmission of an application to fund a care home; then a care plan for going home with an increased package of care waiting for funding approval; and then a delay with getting the home care package together. Mrs Y’s discharge was further delayed due to her developing pneumonia.

Mrs Y was discharged home on the 23rd March with a package of care consisting of three visits per day which was then increased to four visits per day on the 25th March.

Between the 23rd and the 31st March, Mrs Y had a number of falls, some requiring the attendance of paramedics but no admission to hospital. However, on the 29th March paramedics felt she needed to go to hospital but that it was too risky due to Covid 19. Mrs Y was contacted on the 24th March by the hospital for a post-discharge review, but they could not get hold of her. Her family reported to the hospital that Mrs Y had confusion; this was attributed to disorientation following significant time in hospital. A doctor visited Mrs Y on the 25th and 26th March. Relatives stayed over and reported helping her extensively during the night.

On the 27th March the Council arranged for a placement in a residential home for Mrs Y but this was delayed due to funding and transport issues and additional panel approval issues, and on the 30th March the Council agreed to arrange overnight support at the family’s request [it is unclear from the report as to whether it happened as planned]. Mrs Y passed away on the 31st March.

Mrs X complained to the Council about Mrs Y’s return home from hospital. The Council replied stating

Mrs Y’s return home was in line with the COVID-19 Hospital Discharge Service Requirements. They said Mrs Y was happy to return home when discharged and had made good progress with transfers while in hospital so her falls risk had reduced. The Council accepted there had been avoidable delays in moving Mrs Y to the care home as the problems which caused the delay could have been better anticipated and said it would remind the Integrated Discharge Team of the need to respond quickly to requests for additional care.

The LGSCO considered that the Council delayed in assessing Mrs Y’s needs in February. The discharge meeting was held on the 13th, yet the Council did not assess her until the 25th. The Council had also stated that Mrs Y did not require 24-hour care before conducting the assessment. This was fault.

The Council stated that Mrs Y’s discharge from hospital was in line with the COVID-19 Hospital Discharge Service Requirements. However, Mrs Y returned home with the same package of care that she had had before she went into hospital. The Council’s failure to put in place an enhanced package of care, and to consider including overnight care, was fault and the delay in moving Mrs Y into a care home in March was also fault.

CASCAIDr Comment: The Hospital Discharge Guidance for Covid was introduced on 19th March 2020, at which point the NHS became responsible for funding care needs arising after hospital discharge, with full Care Act assessment deferred to outside hospital settings. Funding was available from the NHS for any packages of care that anyone discharged from hospital needed. The government guidance failed to identify whether whatever was done by councils was to be done by way of partnership arrangements with the NHS, ie delegated authority to commission what was needed, but with NHS money, or still to be done under the Care Act – which was of course under threat of imminent suspension, at the end of March (except that it was only to be treated as suspended if a council adopted Easements, which Hackney did not).

Some important edicts within the government guidance included that the NHS would fully fund the cost of new or extended out-of-hospital health and social care support packages, referred to in the guidance. This applied to people being discharged from hospital or who would otherwise be admitted into it, for a limited time, to enable quick and safe discharge and more generally reduce pressure on acute services. Also, that during that period, funding would be made available for all patients being discharged and local authorities were enabled by the Care Act (Section 19) to meet urgent needs where they had not completed an assessment and redeploy social work staff from hospital settings to community settings to support discharged patients. [That seems to be a clear acknowledgement that ASSESSMENT would not be going on in hospitals, because the social work workforce needed to become liaison staff for the NHS funders in the community regarding the need to buy more or less for patients discharged home or to a care home]. The guidance also suspended the need for funding panels for hospital discharge, with additional funding available to local authorities from the NHS to cover any increased costs during that period.

This last edict seems to have been totally ignored by Hackney but there is no mention of this possibility in the report. We find that very disappointing.

Delay is something that comes up a lot in complaints. A two-week delay on an assessment in some circumstances would not be a problem. However, as the COVID-19 Hospital Discharge Service Requirements made clear, the policy was that discharge from hospital needed to happen as soon as possible. Regardless of what happened before 19th March, the Council was already messing the family around and indicating its likely decision before the assessment. We think that the Investigator needed to say when the Care Act assessment should have been done, once 19th March came and went, and Mrs Y was still in hospital, but given the opacity of Guidance, that s/he probably really struggled to find any clarity within it.

This period of time was extremely difficult. During the period relating to this complaint, Councils and hospitals had to adapt to an entirely new way of working as the COVID-19 lockdown was put in place. However, the fundamental principle of following a rational, lawful process would have helped the Council to pick its way through this pressured situation without fault. It is important that, even in extraordinary circumstances, we do not lose sight of the rights that the rule of law ensures. The result of not upholding the law is injustice that leads to distress, as noted by the Ombudsman in this matter, albeit not probed deeply enough, in our view.

Read the full CASCAIDr insight report on this complaint here.

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Legislation & Caselaw….

Manchester University Hospitals NHS Foundation Trust v JS & Anor [2023] EWCOP 33

Summary: This case was brought as an appeal by Manchester University Hospitals NHS Foundation Trust (the Trust) from a decision in April 2023 which can be found here. The initial case concerned JS being deprived of her liberty following the lapse of a psychiatric hospital detention under s2 MHA. The Judge found that she was ineligible to be deprived of her liberty under the MCA 2005, instead opining that the MHA not only could be used but ‘should’ be used

The case concerned 17-year-old JS who lives with diagnoses of ASD, ADHD, learning disability and attachment disorder. Following detention under s2 MHA, the Judge declared that once the s2 authority had expired, JS had been deprived of her liberty. The Judge, Theis J, set out an analysis of the Mental Health Act 1983 and Mental Capacity Act 2005, with useful guidance on how to decide which Act to use in situations such as this, as well as a rationale for why, in this case, use of the High Court’s inherent jurisdiction was unnecessary.

The Judge in the original case, Burrows J concluded that JS: ‘’was ineligible to be deprived of her liberty in the Hospital under MCA. She was within the scope of the MHA under Case E [P is – (a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes]. I have concluded for the reasons I have given that she could have been detained and treated under the MHA. I would go further and say that she should have been so detained and treated.”

“The MHA should have been used. It was available. There is no gap for the inherent jurisdiction to patch. Secondly, the MHA is a long-established bespoke code dealing with the difficult regulation of the treatment of detained patients in Hospitals. The use of the inherent jurisdiction or the MCA for that matter would have the perverse result of a Judge having to make decisions over the management of medical treatment when that code exists and is available for use.’’

The appeal Judge highlighted GJ v The Foundation Trust [2009] EWHC 2974 (Fam) where Charles J addressed the question whether GJ was ineligible to be dealt with via the MCA on the grounds that his circumstances fell more properly within the scope of the MHA. [CASCAIDr’s write-up of that case can be found here].

In GJ’s case, the Judge highlighted that “it is not lawful for medical practitioners referred to in [the MHA 1983], decision makers under the MCA, treating doctors, social workers or anyone else to proceed on the basis that they can pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) [in] that they consider one regime preferable to the other in the circumstances of a given case.”

The judge concluded that the correct approach for the decision maker to take when applying paragraph 5(3) [MCA: the first condition is that the relevant instrument authorises P to be a mental health patient. The second condition is that P objects (a)to being a mental health patient, or (b) to being given some or all of the mental health treatment.] is to focus on the reason why P should be deprived of his liberty by applying a “but for” approach or test. And to do that s/he should ask himself the following questions, namely:

(a) what care and treatment should P (who will usually have a mental disorder within the MHA 1983 definition) have if, and so long as, he remains in a hospital:

(i) for his physical disorders or illnesses that are unconnected to, and are unlikely to directly affect, his mental disorders (the package of physical treatment), and

(ii) for (i) his mental disorders, and (ii) his physical disorders or illnesses that are connected to them and/or which are likely to directly affect his mental disorders (the package of treatment for mental disorder).

And then:

(b) if the need for the package of physical treatment did not exist, would he conclude that P should be detained in a hospital, in circumstances that amount to a deprivation of his liberty?

And then, on that basis

(c) whether the only effective reason why he considers that P should be detained in hospital, in circumstances that amount to a deprivation of liberty, is his need for the package of physical treatment.

The GJ judge went on to say: ‘’I have concluded that a “but for” approach …. provides a practical approach that should help to minimise gaps and the potential for persons who lack capacity suffering harm by falling between the two statutory regimes, particularly in cases of emergency.’’

In JS’s case, she did not have a need for physical treatment and the Trust argued that this distinguished the two cases, and that JS was only accommodated in hospital because of the absence of a robust package of care, making a return home unsafe for her. The Trust further tried to say that JS’s medical treatment for mental disorder in hospital was central or key to her placement and would have been administered irrespective of where she was residing on a best interests basis.

Despite the Trust’s protestations, the Judge saw no ‘’reason or sound basis to depart from that [the GJ] test’’ and stated that to do so would ‘probably lead to more uncertainty and risk undermining the purpose of the legislation. Such a development would not be welcome in this area, where the legal landscape needs stability rather than further uncertainty’.

The Judge (Theis J) found that the previous judge’s conclusions in the court below were not wrong and did not fall into error. She found the original Judge was justified in his conclusions based on the evidence before him but recognised there are widespread misunderstandings in cases such as this. She highlighted that a practical step that could be take in cases where Schedule 1A Case E issues arise would be to utilise the GJ framework to address the issue.

CASCAIDr Comment: Working with people is an art and not a science, and judgments such as this are useful in highlighting the importance of weighing up options and alternatives and highlighting the benefit of using pre-existing legislative powers prior to approaching the court, whilst additionally giving us the benefit of impartial and independent scrutiny over the use of such powers.

The ‘but for’ test is often used in cases and legal thinking to determine causation. It asks, ‘but for the existence of X, would Y have happened?’. In this case JS was awaiting a ‘’robust package of care’’ in order to meet her needs and keep her safe. We imagine that the ‘but for’ being applied here was but for JS awaiting on a suitable package of care and support, would she be being detained in hospital? Since the decision at first instance, and upheld, was that she was ineligible for DoLS in hospital, it must be that the judge believed that she was sectionable, and thus the answer to the ‘but for’ test was that she met the criteria for detention given the facts, and in statutory terms, ‘could’ have been treated in hospital by dint of the requirement in the legislation that when considering the question which statute applies to the individual, one must assume that the same treatment would not be able to be administered under the MCA.

The statutory assumptions regarding what it means to consider whether the person COULD be detained under the MHA, i.e., removing the MCA 2005 – present the decision-maker with a stark choice: either the person is confined under the MHA 1983, or they are not confined at all. It provokes them to consider explicitly P’s capacitous counterpart for whom similarly the MCA 2005 is not available. Based on the nature and degree of P’s mental disorder, the risks arising, the options available, and P’s objections, the question is does P meet the MHA 1983 grounds? If not, they cannot be deprived of their liberty in a hospital.

Read the full CASCAIDr insight report on this case here.

Nottingham University Hospitals NHS Trust v JM and Anor

In this case the Court of Protection declined to order dialysis for an autistic man lacking capacity, having concluded that forced restraint either in the face of his expressed opposition or at a time when he is no longer able to resist, would “compromise his dignity”.

This case concerned JM, a 26-year-old diagnosed with autism at age 5, since when he had received very little support for his condition throughout a childhood which Hayden J described as characterised by trauma. In January 2021 JM had been diagnosed with chronic kidney disease and had acquired Thrombotic Thrombocytopenic Purpura (TTP) requiring 4 hourly sessions of haemodialysis at least three times per week.

The clinical consensus noted that without this, JM would die within 8-10 days.

However, neither JM, nor his mother accepted his diagnosis of chronic kidney disease or the associated need for dialysis. Hayden J noted that in sharing the same “irrational” view, the independent psychologist was persuaded that “JM’s belief structure has not been superimposed upon him.”

After a series of incapacity assessments, the court had previously made declarations that JM lacked capacity to make decisions about the medical treatment he received for chronic kidney failure, or to make decisions about whether to be accommodated in a hospital or care home for the purpose of receiving treatment.

Thereafter JM had refused to comply with an interim move to a Nursing Home or to stay in hospital. The Court had approved an “Escalation and Behaviour Support Plan” which declared it lawful NOT to compel treatment by chemical/physical restraint and instead to treat JM responsively – that is, by means of discussion, negotiation and persuasion only. However, JM was subsequently found in bed at home covered in blood from his dialysis line, with “very little doubt” that he had cut his own line. The line was removed, and JM refused to have a replacement inserted. Therefore, the question then arose, which steps were in JM’s best interests to take?

Hayden J noted that since the prior proceedings the situation was “plainly now far graver” and that “Restraining JM to reinsert a new dialysis line against his will might in and of itself be justifiable. However, JM’s objection is not merely to the reinsertion of the line but to the life-sustaining dialysis it would provide” which going forwards would mean “repeated and extensive restraint on a weekly basis and indefinitely.”

Whilst JM’s belief system regarding dialysis was “so plainly distorted as to manifestly rebut the presumption of capacity… JM’s confidence and belief in his own judgement is well-established and… unmoveable”.

The judge said that “The fact that an individual’s views may be misconceived does not, however, deprive him of the right to hold them. To approach this otherwise would particularly discriminate against the incapacitous, as well as more generally.”

Therefore, even though JM’s own reality was very different to that of others, Hayden J noted that it nevertheless requires to be respected and that “it is in this way that the autonomy of the incapacitous is respected” and afforded weight. Haydn J referenced what was said in North West London Clinical Commissioning Group v GU [2021] EWCOP 59]: “human dignity is predicated on a universal understanding that human beings possess a unique value which is intrinsic to the human condition.”

He stated, “I am clear that forced restraint either in the face of JM’s expressed opposition or at a time when he is no longer able to resist, would compromise his dignity.”

Having spoken to JM on a private video link (the solicitor for the Official Solicitor took a note made available to the parties within 20 minutes) he said this: “I found him, as has everybody else involved in his care, to be a very pleasant young man..[who] when I told him of my decision and the fact that he would die, he told me without prompt or question that he did not want to. I formed the impression that he very much wanted to live. Ultimately, all I could do was tell him that the decision was his.”

Hayden J paid tribute to the doctors, nursing staff and JM’s mother and sister. Regarding JM’s mother he stated that although she “struggles to understand the realities of JM’s situation due to her own mental health difficulties, she has an impressive and, I sense, strongly maternal instinct that the use of restraint to compel dialysis would be inimical to his welfare. Those instincts, to my mind, are sound and also require to be factored into this decision.”

CASCAIDr Comment: This stark case is rightly focused on JM and the challenges faced around his condition, needs and the competing needs around the preservation of his life, dignity and autonomy.

However, we feel it is vital that we also remember the humanity and needs of the treating clinicians. Those hands-on practitioners with whom JM had “comfortable and trusting relationships” would have needed – in contradiction to those relationships, and against the instinct to heal and to help – to do the actual restraining, and to bear the likely hostile resistance and suffering of a reluctant patient, even though they would have been seeking to prolong his life.

The case means that there is often an important and unspoken issue to be factored in, when working out what a court is likely to say is or is not in a person’s best interests: the extent we ask or expect our clinicians (or in some cases parents and carers) to go to, in carrying out their own mission, and to which detriments, distress and suffering a duty of care, TO care, and their Hippocratic Oath might expose them. We feel that just as courts will not use injunctions to enforce the delivery of personal service contracts, there is a public policy against forcing the hand of any professional or care provider to do something against the person’s conscientious objection. But that cannot mean that no force is ever used to ensure a person’s best interests, otherwise there would be people being allowed to self-harm in the name of their own ‘choices’ however delusional they were.

Read the full CASCAIDr insight report on this case here.

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Other Articles….

From Local Government Lawyer….

ICO backs reliance on professional privilege exemption for legal advice amid claims council did not have “client-adviser” relationship

The Information Commissioner’s Office (ICO) has dismissed a complaint that the London Borough of Haringey was wrong to rely on legal professional privilege grounds when it refused to disclose legal advice that it had received, despite a claim that it did not have the proper client-adviser relationship in place

The complainant had made a Freedom of Information (FOI) request to the Council which asked for correspondence between a councillor and the council’s Monitoring Officer.

The Council sent the correspondence requested but redacted a paragraph that it said contained advice subject to legal professional privilege under section 42 of the Freedom of Information Act 2000.

The complainant wrote to the ICO to complain, questioning whether the Council could apply legal professional privilege in the circumstances. This was because the redacted paragraph contained legal advice that the Council had received from Homes for Haringey (HfH). Whilst HfH’s services were set to merge with the Council, the complainant argued that at that time in question, the Council did not have the necessary client/adviser relationship in place because the advice was originally sought and provided by a legal adviser at HfH to HfH, rather than the Council.

The Council’s argument was that the information was advice provided by a professional legal adviser to their client, HfH, which was shared with the Council in the context of HfH’s services being transferred back to the Council, including the ongoing litigation with the complainant. The advice was therefore subject to legal professional privilege due to ongoing litigation or the prospect of future litigation, which it was soon to become involved in, and HfH had shared the paragraph solely with the Council’s Head of Legal and Monitoring Officer.

The ICO said that the information was clearly subject to litigation privilege whilst it was retained by HfH and that because the Council had received the information as an intended future party to the litigation, the information retained its status as privileged information under these circumstances. The ICO noted the information had been shared in confidence, with a limited number of people at the Council, and for the purposes of the Council continuing that litigation. Applying the public interest test, the ICO found that the balance of public interest lay in withholding the information and protecting the Council’s ability to obtain free, frank, and high-quality legal advice.

The ICO decision notice said that a “weakening of the confidence that parties have that legal advice will remain confidential undermines the ability of parties to seek advice and conduct litigation appropriately and thus erodes the rule of law and the individual rights it guarantees”.

The notice went on to say: “The Commissioner has concluded that the public interest in maintaining the exemption at section 42(1) outweighs the public interest in disclosure. Therefore, the council has correctly applied section 42(1).”

Hoarding disorder in the Court of Protection

Recognised as a psychological disorder in 2013, hoarding is often misunderstood as simply “keeping a lot of stuff” while the term is used colloquially to describe someone who holds onto belongings.

There has been an increase in the references to hoarding diagnoses within the Court of Protection where balancing P’s autonomy and safeguarding is often a difficult task requiring “a considered and proportionate approach to any restrictions sought to be imposed.” Cases may arise where a local authority is seeking approval of an intervention due to the risk of the impact of P’s hoarding along with potentially dangerous consequences. As such the interplay between hoarding and mental capacity in engaged as in the case of AC and GC [2022] EWCOP 39.

This case related to an elderly female with Alzheimer’s and hoarding disorder, living with her disabled son who also experienced a hoarding disorder. The local authority asserted that as a result of her condition AC’s needs could not sufficiently be met in her home and secured declarations that both she and her son lacked the capacity to make decisions about their belongings, and that they should be supported through the implementation of clearing and cleaning services at the property.

The information that the court considered to be relevant to this area of capacity included the volume of belongings and the impact on the use of rooms; safe access and use; creation of hazards; the safety of the building and that “safe and effective removal and/or disposal of hazardous levels of accumulated possessions is possible and desirable on the basis of a “normal” evaluation of utility.”

HHJ Clayton acknowledged that AC and GC’s human rights were engaged, and she could “not be satisfied that a final placement at the care home would be an appropriate and justifiable interference” with AC’s article 8 rights. As such it was considered that a trial home, following the clearing/cleaning of the property was a ‘manageable risk’. However, the care planning in hoarding cases requires holistic thinking and as in all cases, a personalised approach.

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From Birmingham World….

128 complaints upheld against Birmingham City Council by Social Care Ombudsman

The Local Government and Social Care Ombudsman (LGSCO) has revealed that in 2022/23 more complaints about Birmingham City Council were upheld than in Liverpool, Leeds, Manchester and Sheffield combined.

With 128 upheld complaints, representing 84% of all those made against it, Birmingham City Council were “way out in front of every other council” in England, with Surrey coming in second worst, with 68 complaints.

The 84% represents a higher proportion than the average 77% in similar authorities, although at least some of the higher levels of upheld complaints may be explained by the fact that Birmingham City Council has the largest population of any council in the country. However, further figures revealed that although Birmingham City Council had managed successfully to implement LGSCO recommendations in 98% of cases, this figure was also 1% less than the average.

A Birmingham City Council spokesperson said: “A new corporate complaints process has been introduced which includes bringing in additional dedicated resources with the objective of delivering a consistently high standard of service, reducing delays and improving the quality of our responses.”

Paul Najsarek, interim LGSCO head said: “We know councils face huge challenges, so it is more important than ever for them to focus on getting the basics right … we frequently find councils repeating the same mistakes, ploughing ahead and not taking a step back to see the bigger picture.”

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From Future Care Capital….

Concerns that government will ditch Mental Health Act reforms

The Times has reported that the Government is preparing to abandon plans to reform the Mental Health Act to make space for other legislation.

The long-awaited draft Mental Health Bill is designed to preserve the dignity of people detained under the Mental Health Act and prevent the inappropriate use of sectioning for people with autism and learning disabilities. However, an article in the Times claims that the Government is intending to drop the legislation to use its limited time before the next election on ‘more electorally popular’ issues.

The need for reform of the Mental Health Act has been widely accepted and was prompted by a 2018 government funded review led by Professor Sir Simon Wessely. The review found that too often the process of being detained under the Mental Health Act stripped patients of their dignity and self-respect. As a result, the Conservatives made a 2019 manifesto pledge to “legislate so that patients suffering from mental health conditions, including anxiety or expression, have greater control over their treatment and receive the dignity and respect they deserve.”

Professor Sir Simon Wessely said he would be very disappointed if reform was delayed again “so close to the finishing line” and described severe mental illness as neither a vote winner nor a vote loser. He said: “My view is it is the kind of thing that governments should do. It is the right thing to do, and it needs to be done. Lots of people have put a lot of work into this. It’s not controversial. Nobody seems to disagree with what we’re trying to do. We’re nearly there. And I really wouldn’t like us to have lost the momentum we have.”

Others in the sector expressed their disappointment more strongly. Mark Winstanley, CEO of Rethink Mental Illness, said that it would be “a huge betrayal, not only of the thousands of people detained under the Mental Health Act every year, but of all the people who have worked so hard to reform it so those in the greatest need receive the best possible support.” He added: “It is also completely bewildering when reform has cross-party support, and so should be able to pass through parliament with ease.”

Ollie Steadman, policy and campaigns manager at Mind, told the Times: “The Mental Health Act is hugely outdated and no longer fit for purpose. People detained under this legislation can’t choose the treatment that works for them, and the Act doesn’t provide a way to appeal treatment decisions.”

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From The Guardian….

Met wins battle with NHS over not attending mental health calls

The Metropolitan police has won its battle to stop attending most of the mental health calls it receives after weeks of tense talks

Following, what is described as a “tense behind-the-scenes row with the health service”, it is reported that an agreement has been reached between the Metropolitan police and health services. From 31 October the Met will start implementing a scheme that aims to stop officers being diverted from crime fighting to do work which health staff are better trained for.

Met Commissioner, Sir Mark Rowley, had previously written to health and social care leaders setting a deadline of 31 August which led to a furious reaction from health chiefs who protested that it would put vulnerable people at risk. However, the agreement now reached means the deadline for the start of the changes has been put back by two months, before a phased introduction. Health services will not publicly criticise the police decision, and instead race to put measures in place to pick up the work.

Police will continue to attend calls where there is risk to life, a danger to the public or a crime is taking place.

The Metropolitan Police’s legal advice argued that the law meant the force did not have to do the work of the health service and so would likely win any legal challenge. A health source said that although the Met Commissioner’s hard line was disliked, it had worked, and had got people talking. The source said: “It’s not malice but the NHS is notoriously slow. If he [Rowley] did not give a deadline, we would have been here for 10 years.”

The scheme, called Right Care Right Person (RCRP), was pioneered by Humberside police who claim it has freed up 7% of officer time to do what they are actually responsible for. The scheme has been agreed nationally by government departments, police and health bodies, but implementing it is down to local areas.

The Metropolitan Police are an outlier in giving health services an ultimatum. Health chiefs in London have said they do not know how they will meet the new demand saying: “The health service is already overloaded, the winter crisis is coming, and London ambulance service already faces big performance pressure.”

CASCAIDr Comment: We think that the bigger issue is the training and insurance cost that will be necessary for existing members of staff and emergency duty teams to be reassured that they know how to assert themselves safely.

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From Local Government Chronicle….

The looming row over adult social care assessments

There is a fresh row brewing in adult social care between the government and the regulator about addressing waiting lists and the conduct of assessments of people for those on those waiting lists.

It relates to the role of qualified social workers and whether they should address presenting problems or undertake a more comprehensive review of people’s circumstances (i.e., whether to favour speed or depth). This dilemma is highlighted by hospital discharges and ongoing crises “leading to a plethora of triaging, prioritising and pending mechanisms.”

Staff shortages and wider budgetary pressures have all added to the case for quick, pragmatic approaches. However, the Care Quality Commission has now begun its assurance process. This tests how councils are fulfilling their responsibilities under the Care Act 2014 with inspectors looking at how people with care and support needs can have the best possible outcomes. This may include looking for evidence that plans are co-produced, up-to-date and regularly reviewed in a transparent way. Also, that people are “supported to make choices that balance risks with positive choice and control in their lives.”

Achieving these things requires skill, judgement and a degree of proportionality in approach, yet councils are permitted to put in place processes that have regard to the best use of increasingly limited resources. Therefore, questions such as “can the job be done properly by telephone or online, can it be delegated to another organisation, and how do you judge whether that person has the capacity to participate, is not being coerced or is otherwise at risk?” are once again surfacing.

This has led Chief Social Worker, Lyn Romeo, to issue guidance, recently. Co-developed with principal adult social workers from councils, the guidance ‘Carrying out proportionate assessments’ sets out who can do them, when qualified staff must be involved, and that proportionality must not be used only as a vehicle to deliver financial imperatives.

CASCAIDr Comment: The risk of returning to a situation where assessments are not only allowed but encouraged to be reactive rather than proactive, flies in the face of the Care Act’s prevention and wellbeing principles and the emphasis on person-centred practice. The legislation, guidance and case law give local authorities a strong guide on the expectations regarding the services they provide, and nowhere in the Guidance is the real notion of a ‘good enough’ assessment explained.

A further problem lies in the lack of an effective complaint or tribunal system for those who wish to challenge, making bad decisions close to permissible by stealth amid a climate of already watered-down rights on the brink of being accepted as business as usual!

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From BBC….

Black hole in town hall budgets rises to £5bn

A BBC investigation reveals the black hole in local authority budgets continues to grow, with the average council facing £33m predicted deficits by 2025-26, prompting fears some will not be able to provide basic services.

The BBC survey of 190 upper tier UK authorities revealed that even after making £2.5bn of planned cuts, council chiefs “expect to be £5.2bn short of balancing the books” with at least £467m being stripped from adult care services. Unison has warned that some councils will not be able to offer the “legal minimum of care” next year, although the government has stated that funding decisions beyond the next financial year have not yet been made.

Councillor Shaun Davies, who chairs the Local Government Association (LGA), said inflation, the introduction of the National Living Wage, energy costs, and increasing demand for services were adding “billions of extra costs just to keep services standing still”. A number of councils are using reserves at an unprecedented level, calling for financial support from the government or, in some cases, have even declared statutory bankruptcy. Proposed closures of community services, such as Leisure Centres, has led to members of the public feeling “a lot of anger” towards councils.

Councils are funded through a mix of council tax, business rates, income from services like parking and social housing rent, as well as money from the government known as the Revenue Support Grant. The Chair of the Public Accounts Committee, found that council income was £8.4bn lower in real terms than it had been a decade ago, and said councils were at a “tipping point” where “only so many more savings” could be made.

This has led to calls for a rethink of the way local government is funded, to try and break what seems to be a cycle of pressure on the services on which so many people rely to avoid further cuts, including removal of eligibility for support such as respite and weekly care hours for people with disabilities.

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From Eastern Daily Press….

Norfolk County Council to lose £2.5m in row over payment for care

Norfolk is set to lose almost £2.5m due to a failure to keep proper records over who should have paid for the care of thousands of people in the region

County Hall and NHS chiefs have been arguing over who should have paid for people’s care over the past five years. Now, Norfolk and Waveney Integrated Care Board will pay the County Council £5.95m, while the County Council will pay the NHS just over £1m; a further £2.4m the County Council claims it is owed by health bosses will be written off – because the NHS disputes it and refuses to pay.

Council bosses (the old director James Bullion having gone to CQC as Interim Chief Inspector of Adult Social Care and Integrated Care, recently) insist this will have no impact on adult social care, a department which has had to make millions of pounds of savings in recent years after the Norfolk unlawful charging case.

However, opposition councillors have slammed the lack of oversight which led to the current position. Steve Morphew, leader of the opposition Labour group, said he was “shocked and bewildered” and that “The amount of money they are writing off is enough to pay for more than 100,000 hours of valuable care.”

Ordinarily the NHS transfers up to £90m to the County Council each year which is then used to pay for care and run services which support the health and social care system. The arrangement is supposed to check which elements of care should have the cost covered by the Council and which by the NHS. However, the picture has become muddled and debts on both sides built up – a picture exacerbated by changes within the NHS which had “led to some loss of knowledge of the agreements which formed the basis for raising invoices”.

Alison Thomas, the Council’s Cabinet member for adult social care said it had been a “pragmatic” decision to accept the £2.4m write-off in order to maintain a good relationship with the NHS and, whilst the Council could take legal action, the Conservative-controlled cabinet is likely to rule that out. A spokesperson for NHS Norfolk and Waveney, said: “Norfolk and Waveney has a high proportion of people who have complex health and social care needs. One of our key priorities locally is to help ensure people are able to leave hospital as quickly as possible, with the appropriate support they need.”

CASCAIDr Comment: s75 agreements and s256 agreements (the former is a mechanism for swapping responsibilities and ensuring the money for that is available; the latter is for the NHS to subsidise the health-related functions of social services) are supposed to be documented.

This kind of complacency about what it is acceptable to write off, when councils are not able to discharge basic duties underlines the risks of integration of health and social care, in our view. We do not know how Chief Finance Officers or auditors can turn a blind eye to it.

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From NHS Confederation….

Local health and care partnerships off to a strong start but underinvestment is hindering progress

A report on the state of ICSs suggests they’ve made good progress in their first year but are being held back because of underinvestment in workforce and capital – and a lack of a social care workforce plan.

Following their establishment as part of the Health and Care Act in July 2022, ICSs were developed to ensure healthcare was “delivered in a more joined-up way”. They are tasked with overseeing the planning of services, improving health outcomes and reducing inequalities across 42 local areas in England. However, within a new Report from the NHS Confederation, ICS leaders have cited workforce pressures, issues with social care, and financial constraints as their main challenges, which is in keeping with previous warnings from the National Audit Office and Public Accounts Committee.

Sarah Walter, director of NHS Confederation’s ICS Network, said: “Workforce pressure was cited as the biggest issue” but that, “A further barrier holding back the progression of ICSs is the government’s refusal to commit to a long-term workforce plan for social care.” ICS leaders are urging national bodies and the government to take a number of actions, so they can effectively deliver for the populations they serve. These include developing a social care workforce plan that would recognise the contribution of the sector; a capital spending review in response to the Hewitt review; support for new commissioning functions; giving ICSs the freedom to innovate in targeted areas; and embedding co-production in their approach.

Nine in ten ICS leaders were positive about partners within their local systems working collaboratively to set and deliver on key priorities and about the collaboration between their integrated care board (ICB) and integrated care partnership (ICP).

However, the research also found that, despite a commitment to devolution to place-based partnerships and provider collaboratives, only 45% per cent of respondents felt their ICS was devolving decisions to the most local level, as close to local communities as possible.

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From National Health Executive….

More investment needed to ensure ICS success, health leaders say

Integrated care system leaders believe staff pressures, financial constraints, issues in the social care sector – alongside the continued disruption from industrial action – are making both short and long-term targets difficult to achieve, according to an NHS Confederation poll of health service chiefs and chairs.

The NHS Confederation report, The state of integrated care systems 2022/23: Riding the storm also found that ICSs and have made good progress in their first year, but more needs to be done to optimise output. However, despite the need for improvement, health leaders were positive about ongoing partnerships, establishing targets, collaborative working and the new responsibilities ICBs have recently taken on, including the commissioning of community pharmacy, optometry and dentistry services.

Director of the NHS Confederation’s ICS network, Sarah Walter, said: “ICS leaders are proud of the progress they’ve made in really tough conditions, but they are deeply frustrated by some of the potentially soluble barriers that are hindering the extent to which they can get on with transforming services for their local communities.”

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From Healthwatch….

What are people telling us about accessing and paying for social care?

Each year there are nearly two million requests for adult social care, which provides long-term support to over 818,000 adultsin England. But unlike the NHS, social care is not free, and most people end up contributing to the cost of their care

There has been a rise in demand for social care due to an ageing population and the growing number of adults with disabilities. Delays for assessments, reviews, care, and support or direct payments can take months, leaving almost 500,000 people waiting for more than half a year. Additionally, staff shortages have resulted in over half a million hours of care not being provided to people who need it, leaving informal/unpaid carers to bear the brunt.

Good social care support makes a life-changing difference, but long waits for assessments, reviews, or care; the impact of staffing shortages; the challenges faced when trying to find information about costs; and finding good social care providers, have all left people passed from pillar to post, often with their condition deteriorating, and needs increasing, which can lead to the cycle starting again.

CASCAIDr Comment: Every undelivered hour of care and support is not only a deficit in the life of the person lawfully assessed as requiring it and eligible to receive it but is also a breach of the Care Act. Every failure to provide or make information available and accessible to those who need it is not only stressful and detrimental to the wellbeing of those in need of the help signposted within that information, but it is also a breach of the Care Act. Every unreasonable delay to an assessment, development and implementation of a care plan, or payment of a direct payment – these are all breaches of the Care Act – yet currently these breaches are seen as the ‘new normal’.

We would ask how long will it be until this supposed ‘new normal’ and the associated breaches of the legislation underpinning our fundamental rights are seen as the ‘new acceptable’ standard? – Both in terms of the way we feel at liberty to treat people and the esteem in which we hold the law and the rigour with which we do or do not uphold it?

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From Nuffield Trust….

The next general election will be critical for five areas of health and social care

By the end of next year, the general election will be underway; slowly but surely, health policy choices in England are becoming dominated by that prospect, with Government seeking to fulfil its key pledges and the Opposition regularly announcing interventions which they assert will bring about a sudden recovery.

Public satisfaction with the NHS has plummeted, an issue which is vying with the worst cost of living crisis in decades as the factor upon which voters will decide who controls the country. Meanwhile the new government will inherit a critical decision point for the systems that provide care. Nuffield Trust have identified five key areas where they feel post-election decisions will be vital.

Staffing was the first area, and also the most frequently cited reason for public dissatisfaction with both health and social care in a British Social Attitudes Survey, with burnout and strikes frequently being referenced.

General Practice followed, with the ease of being seen or being seen by the same doctor both declining. Social care, which was noted as “a more and more prominent campaigning theme in recent elections”, was found to be suffering from a lack of access to services creating an “unpleasant and difficult” situation for many people. Shrinking finances requiring “miraculous efficiency gains” and the lack of sufficient access to treatments and diagnosis were also identified.

Once claims and denunciations start to fly back and forth during an election campaign, ensuring that facts are accurate and available will be as important as debating the policies that really matter. As such, the hope is that by “spreading accurate information and pulling together the evidence about what works in the long term, we can help the next government to start with the benefit of having made promises that measure up to the problems.”

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CASCAIDr Comment: Social care has long been the poor relation to the NHS when it comes to political discourse, although we have seen it come more to the forefront of reporting in recent years. Often, social care is misunderstood (many people not realising they may need to pay towards some or all of their care, for example), and when it is reported, the complexity is glossed over.

Social care, when it is discussed, is also done emotively, and often used as something as a political football, with both Labour and Conservative governments being accused of trying to introduce a ‘dementia tax’ by their opponents over the last 20 years.

Our view is that this particular government has consistently failed on ALL its promises on adult social care. The issue has nearly derailed prime ministers who have not bothered to put the work in to understand it. The way it has been defunded typifies the relationship between Parliament and the Treasury: the Treasury is how the funding that the DHLUC actually gets for local government, is determined, not the elected Legislature, at all. Throughout the country, councils (even those led by Conservatives) have no authority with the Parliamentary party to say ‘er – we have these statutory duties, but £14 billion less than in 2014 when they were introduced – what do you expect us to do?’ because of how the party system works.

We are not sure any other party has any better ideas.

The BBC persistently takes a soft line on how terrible it all is, mainly looking for victim/abuse stories.

The care provider sector, that shining example of Conservative belief in market forces, is either busy throwing contracts that are unworkable and unaffordable, given the workforce crisis, back at the very people who have the statutory duty to meet the needs – or creaming extraordinary levels of profit out of public money for shareholders in Dubai.

A juicy kind of Brexit and Covid karma, one may think but nobody says so, no doubt for fear of being excluded from journalists’ briefings.

Meanwhile, the legal aid sector has atrophied, so that there is nobody offering Legal Help to people who can’t enforce their statutory rights in this country. The rule of law has thus been steadily eroded, and the DHSC has no senior policy staff left in it to raise this with.

Adult Social CAre has been integrated to some extent within the NHS and yet is regularly ignored when new initiatives to ‘save’ the NHS are announced.

CQC, the handmaiden of government – and a care provider regulator, has been wheeled in with an add- on job that it knows nothing about – ‘assuring’ local authorities’ discharge of their public law Care Act functions. This is literally incredible to those in the know.

So the risk is this – in 20 years’ time, when elderly people find that they suddenly NEED adult social care and are just relying on being rich enough to buy it privately, they and their offspring are likely to find that there is nobody working in it to buy from, any longer; the whole field will have disappeared, because it is not attractively remunerated or treated as of importance in terms of status.

It is women’s work NOW, of course, in the main, un-unionised, and simply grateful for flexibility around childcare gaps – and in the future, it will be women’s work, FOR FREE. So, heaven help people who haven’t had the foresight to have daughters or daughters-in-law!! All this means that in our lifetimes, we will have put women back into the domestic sphere, on the footing that England needs Women to Care, so that none of the rest of us have to pay any more tax.

That is an enormous backwards social change to just slip under the radar in less than 50 years.

And if that is not a politically rich, highly charged and complex area in need of debate in an election year, we do not know what is!

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From Independent Living….

Safeguarding vulnerable claimants – Call for evidence

The DWP has safeguarding processes to provide additional support to vulnerable claimants and ensure they can access the services they require – but does not currently have a statutory duty to safeguard the wellbeing of vulnerable claimants

As such, the Parliamentary Work and Pensions Committee is calling for evidence from people who have been negatively impacted by the way their benefit claim was handled. It will look at the DWP’s approach to safeguarding vulnerable claimants and question what its responsibilities should be around supporting people who find it difficult to interact successfully with the benefit system.

A round table event with benefit claimants with additional needs to discuss the issues raised is also planned. Details on how to participate will be published on the Committee’s website and social media channels in the near future. In the meantime, the questions the committee would like answered include:

Whether the DWP should have a statutory duty to safeguard the wellbeing of vulnerable claimants?
What the main challenges that vulnerable claimants face when making a claim are?
How successful any measures the DWP implements to safeguard vulnerable claimants are?
How successful the current Internal Process Review (IPR) is at investigating allegations of mishandling?

Find out how to submit evidence here – deadline 13^th October 2023

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From Community Care….

There is no justification for agency and permanent social workers having very different pay

Having previously reported how rules proposed by the Department for Education (DfE) on agency work would not fix the issues facing the children’s services workforce. Rachel Wardell, the chair of The Association of Directors of Childrens Services (ADCS) explores the opposing view

The DfE proposals include a ban on project teams; an hourly cap on locum rates payable by local authorities; a six week notice period requirement for all agency social workers; and a rule that councils do not engage agency workers within three months of leaving a substantive role in the region.

In making the case for price caps, Ms Wardell writes “there is no justification for two social workers with similar experience and caseloads in the same local authority having very different pay” and that price caps would ensure greater equity of pay and reduce incentives that “unfairly skew the market in favour of agencies, and drive high churn.”, the effect of which would be to improve recruitment and retention with the benefit of relationship-based practice being felt by families.

A particularly damaging agency practice which is cited is the refusal to supply just one social worker and instead to supply a project team, sometimes including a manager, and supplying social workers on the condition of protected caseloads. However, such arrangements cost substantially more money and the “deeply unfair” caseload stipulation has a knock-on effect on the workloads of the permanently employed social workers. Additionally, such teams may also leave with little or no notice period, thereby creating further associated problems.

Ms Wardell asserts that social work “is a role like no other, defined by the strength of the relationships you form with those who need our support the most” and that while the impact of the DfE’s proposals remains unknown, the ADCS “does not see evidence that they will result in a significant number of social workers leaving the profession.” Therefore “we urge the DfE to implement the full set of proposals and not shy away from change that is urgently needed.”

CASCAIDr Comment: Yet another example of market forces, much beloved of those favouring a minimal State, and favouring freedom for markets, ultimately having produced results that cannot be seen to be in the public interest – but this sort of solution – using regulation of businesses operating in the market and making the most of the mismanagement of the workforce by central government, is, to us, shocking in its arrogance.

Interestingly, BASW has just sent a letter to its members, saying this:

“We know that social workers need more time.

> Time to work with individuals and families to achieve good outcomes.

> Time to engage in the therapeutic, reflective, relationship-based practice that we came into the profession to do.

> Time to make a positive and lasting difference to the lives of those who need our help.

So, how can we make it happen?

Our 80:20 campaign is advocating for social workers to spend the majority of their time working directly with people, rather than on administrative and process driven tasks. The campaign is an opportunity to create effective change by putting relationships in practice at the heart of what we do.

Over the coming months a series of resources will be launched outlining what is needed to enable time for social workers to build relationships with people, families and communities, showcasing good practice examples and models providing the evidence base and outcomes when we create time for social work.”

How to leave home visits on time – and when not to

A social worker describes how she had to set boundaries when visiting families so that she could retain a work-life balance whilst noting that “My visits to families are often the most enjoyable part of my week.”

Difficulties experienced included unrealistic timescales and “trying to fit everything I need to discuss with the family into one visit.” The busy reality of admin, emails etc. meant that planning often took place “just before a visit or on my way there, if at all”.

She described another problem as being the insufficiency of allocated time for visits, often leaving a social worker in a “struggle to get out of the door” when visiting families. This was termed as “quite a skill” and a “balancing act”, often requiring an honest approach telling families that “I have another visit or meeting”.

However, she described that where progress was being made or where a child may be upset it was preferable “to stay and then leave when things are more settled.” This can pose problems if it is at the end of the day, or family requirements take precedence.

The social worker experience is different to that of say counsellors, whose sessions always end on time and therefore have lessons of value for social workers – including “referencing time after the midway point, summarising key points near the close of the session and making references to the next meeting.”

Another lesson to be taken is ensuring that all parties feel comfortable leaving matters unfinished, or in uncomfortable places and that whilst safety is paramount “families need to have realistic expectations of what social workers can do during their working hours”.

The Social Worker highlighted that “Good outcomes for families are what we want, and time is key to achieving that” but “as social workers… we need to understand what our role is, and isn’t, what we can do in our home visits and what needs to be done by universal services – and by families themselves.”

CASCAIDr Comment: Social work suffers from being professionalised relatively late, with social workers only becoming registered professionals in 2001. The public’s perception of social workers can mean that the boundaries that are openly accepted when set by counsellors, GPs or other health professionals are not expected from social workers. Balancing this with a heavy caseload (often 40+ in adult services, meaning less than an hour per week is allocated to each person), additional expectations from the employing and regulatory authorities, and urgent or high-risk cases, the social worker’s time is undoubtedly stretched.

An additional downside of the time constraints is that personalisation and outcome-focused assessments can go out of the window, with a perception from those using services that social workers are regurgitating the council’s policy and striving to protect the scarce resources, which will undoubtedly be incredibly frustrating for those needing care and support!

The answer cannot be for the individual social worker to make difficult decisions on how and where to spend their time, and certainly not to limit the time spent with the person or their family when they have probably waited months to be seen!

A useful legal contribution is a reminder that s6(6) of the Local Authority Social Services Act 1970, which is still in force, contains a statutory duty for councils with social services responsibilities to secure adequate staffing for the discharge of those functions. This is the best evidence that social services are supposed to be protected above and beyond other functions, but we don’t see Monitoring Officers reminding councillors at budget-setting meetings of that duty!

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From Disability News Service….

Government side-stepping UN examination ‘shows contempt for disabled people’

The UK Government has been accused of showing contempt for disabled people after refusing to give evidence on its progress since being found guilty of “grave and systematic” violations of the UN’s Disability Convention seven years ago

In 2016 the UN’s Committee on the Rights of Persons with Disabilities (CRPD) found that the UK Government had discriminated against disabled people on the right to an adequate standard of living and social protection, work and employment, and independent living.

These breaches were largely caused by policies introduced by Conservative ministers in the sphere of benefits and social care.

The Committee had put aside a day on 28 August 2023 to examine the Government’s progress in implementing the recommendations over the last seven years.

However, the Government has now backed out of attending the session in Geneva saying it does not want to be examined in public on its progress this month and will not give its evidence until next March.

Representatives of disabled people’s organisations (DPOs) and four UK human rights and equality bodies intended still to attend the session to give their evidence. Tracey Lazard, Chief Executive of Inclusion London, said: “The evidence is stark and clear – there continues to be significant retrogression of disabled people’s rights since the 2016 special inquiry” and “If we can gather, collate and provide evidence then why can’t the UK government?”

Ellen Clifford, a disabled activist who has been working on the shadow report for the disabled persons organisations coalition, said she believed the government was “scared of the bad publicity at a time when they are in a weakened position… and had hoped to avoid further critical scrutiny and bad press through attempting to postpone the session”.

The Disability Unit, which is part of the Cabinet Office, did not acknowledge questions about the decision for more than two days and had offered no comment more than three days after it was first approached.

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From The Conversation….

Disabled people are disproportionately affected by homelessness – and getting support feels ‘nearly impossible’

A new report, commissioned by the Centre for Homelessness Impact, explores how disabled people are particularly affected by homelessness amid record highs of statutory homelessness in the UK

Disabled people represent 22% of the overall population, but a recent survey by the University of York suggests they represent up to 39% of the homeless population. Meanwhile, government data indicates that the number of people with a disability qualifying for homelessness support in England rose by 73% between 2018 and 2022. However, these figures exclude people whose disability is not recognised or disclosed: people ‘sofa-surfing’ for example, or those who were found ineligible for support.

The report also shows how homelessness disproportionately affects a) people with learning disabilities, which occur at 2% in the general population but 13% in homeless populations and b) autism, which occurs in an estimated 1-2% in the general population but 12–18% in homeless populations. This is despite an understanding that homelessness for people with disabilities can lead to deterioration of existing conditions, or the onset of new ones.

Meanwhile, barriers to securing housing not only included not having a diagnosis, but also situations where even when housing was offered, it may not have been of the type needed – for example due to accessibility issues. However, refusing such an offer also allowed councils to label a person as “intentionally homeless” and thereafter able to deny them further support – this despite only 7% of homes in England incorporating the bare minimum of accessibility features.

Drilling down further, the impact research found that disabled people were more likely than non-disabled people to live in poverty; were less likely to be in full-time employment; and also faced significantly high additional monthly costs (£500 to £1000) to pay for specialist equipment or higher energy costs. Disabled people have also been undercompensated by disability benefits which have been reduced by almost £5bn over the past 10 years, in addition to the reductions around housing benefit which were effectively pricing individuals out of the rental market.

As such, despite the existence of policies at local, regional and national levels that aim to prevent and relieve homelessness (e.g. the Homelessness Reduction Act (2017), which places a duty on local authorities to try to prevent homelessness at earlier stages) the report shows that these initiatives are not working to protect disabled people and that in reality, their risk of becoming and remaining homeless is worsening.

CASCAIDr Comment: It should be noted that the Homelessness Code under the Housing Act does make it clear that people whose conditions or disorders negate their capacity with regard to self-control or compliance with conventional mores should not be regarded as intentionally homeless.

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From Wired Gov….

Time to introduce mandatory disability pay gap reporting, says TUC

TUC General Secretary, Paul Nowak, has responded to a new EHRC report which reveals that people with disabilities continue to be at disproportionately high risk of poverty and low income

Mr Nowak said “We all deserve a decent job with decent pay, but we know more than three million disabled workers earn less than £15 an hour. They are also more likely to be on zero-hours contracts and are twice as likely as non-disabled workers to be unemployed.” which he said was “just not good enough.” and that “disabled workers shouldn’t be employed on a lower wage or on worse terms and conditions.”

He also said that: “We know a lack of reasonable adjustments also prevents people from progressing at work, so we need to ensure disabled people get the adjustments they need to stay in their jobs – without having to wait months for them to be considered.”, and that it was “time to introduce mandatory disability pay gap reporting to shine a light on inequality at work.”

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From Scene….

My Home, My Choice – innovative new film by people with a learning disability launches in Sussex

A film developed by Team Springwell Experts by Experience at Sussex Partnership NHS Foundation Trust, has been launched as part of a project to enable people with a learning disability to have more choice in how they want their homes to look and feel.

‘My Home My Choice’ will raise awareness around the importance of home design for the wellbeing of people with a learning disability and shares ideas to facilitate as much choice and control as possible in their homes.

Viki Baker, Clinical Director for Learning Disability Services at Sussex Partnership NHS Foundation Trust, said: “It’s essential for people’s wellbeing to have choice in how their homes look and feel and sadly this is often not the case for people with a learning disability – this film aims to help change that.”

Josh, Expert by Experience, Team Springwell, added: “People in hospital, when they get out, it’s important to be listened to… We might have a learning disability but we’re all adults.”

Two films about the project have been launched to help raise awareness and more information about Team Springwell and the Learning Disability Participation Programme at Sussex Partnershi p is also available.

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From CASCAIDr….

And finally, some CASCAIDr Coups….

Partners in Care

Our Trading Company has won a Partners in Care tender to create a practical online briefing about the legal framework, as it applies to people with learning disabilities and/or autism, and particularly those who are detained under the Mental Health Act.

This will look at the interface between the Mental Health Act, s117 aftercare, the Care Act and CHC. It will include material about rights, remedies, and governance – and the mind-set and skills-set required to discharge statutory duties and powers which Parliament has put in place for this vulnerable group of citizens and their families. It’s due out in early 2024.

Our CEO can’t quite believe we have been selected, but found responding to the tender irresistible, just in case it does any good!

Care Act Conversations

A reminder that the fifth episode of our Care Act Conversations podcasts ‘Plugging away at the gap Part 3’ is now available from CASCAIDr’s website here or directly from Apple or Spotify here.

The Care Act Conversations Podcasts offer clear, understandable information for people who are grappling with the adult social care system, and for advocates, advisors and decision-makers.

In each episode, we give an overview of the law around an important area of social care law, explore some of the common issues and how to avoid them, and provide advice on what to do if you think something unlawful is happening.

In this episode, we highlight the Care Planning gap. This is the gap between what the Care Act says must or should happen in terms of people having a plan, and care being provided to meet eligible needs, and what can happen in practice. We highlight the law and the action you can take to get your entitlements and respond to legal issues.