CASCAIDr Care Act Round-Up

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

07.12.23

In this edition: 

From the Local Government Ombudsman…. 

Updates on adult social care complaint decisions  

Full bulletins can be found here:  

  1. 23/11/23 – New adult social care complaint decisions 
  1. 30/11/23 – New adult social care complaint decisions 

Complaints of interest…. 

London Borough of Croydon (21 014 792)  

Summary: Ms B made a complaint on behalf of her son, Y, about the Council’s delays in arranging an alternative day centre placement when the first one ended, its failure to provide direct payments, and its failure to provide transport.  

In August 2020, the Council completed a needs assessment for Y and created a care plan which included 30 hours of support per week via direct payments to include support from personal assistants for Y to attend activities and support at home. Y was attending a day centre (Centre 1) twice a week, but Ms B had identified an alternative centre (Centre 2) as Y’s attendance at the Centre 1 was time limited.  

In mid-January 2021, Y went to a taster session at Centre 2 and Ms B considered it a supportive environment for Y. Centre 2 informed the Council that it only had capacity for Y to attend one day per week but would update the Council when more days became available. 

In early February 2021, Ms B emailed the Council and told them that Y had attended three sessions at Centre 2 with transport and she was confident it would be good for him. She asked for him to attend three days a week with transport provided by the Council. 

A panel meeting agreed a care and support plan for Y in July 2021 which included one day a week at Centre 2 and two days at other centres, including Centre 3, and one evening a week at Centre 1. The panel also agreed 17 hours of funding for one-to-one support for Y for three days a week via personal assistants whilst attending the day centres, which was separate to the existing 30 hours per week of direct payments. In August, Ms B expressed concern that she was not getting the additional 17 hours of direct payments agreed at panel.  

In October 2021, Ms B made a formal complaint to the Council, and she received a response in late November 2021. The Council reviewed and drafted a new weekly plan for Y, which it presented to the panel. It included one day at Centre 2, but it did not agree to fund transport to the centre as Y had access to the Motability scheme. 

The LGSCO said that there was an unacceptable delay between when Ms B first asked for a placement at Centre 2 and when a new plan was agreed with funding in July 2021 and that there was miscommunication between the Council and Ms B. The LGSCO said that the Council was at fault for how it managed Ms B’s request, given the extent of the delay, which Ms B said meant that Y did not have time to receive a proper transition to his new services. 

The Council was at fault for the way it considered whether to fund Y’s transport to Centre 2. Ms B was told the Council did not provide transport to Centre 2 as it was outside of the Council’s area, and it was therefore left out of the plan considered by the panel. Both other centres were within the area, and so funding for transport was agreed for them. Since it was the Council’s responsibility to meet Y’s needs, part of that included considering whether Y could access the services provided by the Council. It identified Centre 2 would meet Y’s needs yet did not instead recommend services within its area. If she had been offered another centre within the local area that met her son’s eligible needs and refused it, then she might have been expected to arrange travel privately to Centre 2; however, this was not the case. There was nothing in the Council’s procedures on care assessments or support plans that set out the circumstances where transport would or would not be provided.  

The LGSCO found no evidence that the panel agreed to 17 hours of further direct payments in July 2021, rather that it agreed to fund Y attending the day centres and fund personal assistants directly, rather than via DPs, to provide 1:1 support when attending the centres. As this was not clearly set out in any revised support plan, this added to the fault already found. In August 2021 [this is written as 2020 in the report, but we think this is an error] the service manager asked the Council to switch the 17 hours to direct payments, to which the social care team leader agreed. However, there was no reason given in case notes or elsewhere as to why this did not happen. This meant the Ombudsman found fault in the delay in the Council properly considering the request for direct payments.  

CASCAIDr comment: There are no time limits for starting or finishing the statutory decision-making functions that must be done under the Care Act, but public law principles say that every duty has to be done in a reasonable time and very long delays will be regarded as unconscionable.  

For any period of unlawfully unassessed care needs, or unlawfully unallocated or inadequate budget for meeting needs, there is a principle under the CP v NE Lincs case that restitution must follow, because the council in question will have been unjustly enriched by the savings made. In this case the money was allocated, but not paid, as far as we can tell, so that is an example of how a complaint to the LGSCO can stop short of giving the person what a legal letter would have potentially achieved. 

Read the full CASCAIDr insight report on this complaint here.  

Birmingham City Council (20-012-501) 

Summary: Ms C complained to the Ombudsman that the Council failed to listen to her requests for more assistance or provide an adequate direct payment, leaving her family member with no choice but to provide extra care. 

Ms D had previously employed a personal assistant who left, leaving her family member, Ms C, to be her carer until another PA was found. The Council agreed to Ms C being a paid PA until this was resolved, placing her in the position of both a paid PA and an unpaid carer. 

In May 2019, an Occupational Therapist (OT) assessment noted Ms C was hoisting Ms D alone and suggested a 45-minute morning call and three 30-minute calls with two carers. The family were unable to find a new PA [or two] and Ms C struggled to provide the care needed. A review by a Social Worker also noted the care package was not working. 

Ms C contacted the Council twice after the Social Worker’s visit indicating she was struggling. In July 2019, Ms C requested more support, which was refused without reassessment. In November 2019, Ms C again raised issues, with the Social Worker noting she was hoisting Ms D alone. She was told repeatedly that the care package budget was at ‘the maximum.’ 

A reassessment was agreed by the Council, but due to the COVID-19 pandemic this did not occur until August 2020. In October 2020, Ms C said she could no longer provide care to Ms D. In May 2021, a care agency was commissioned to provide all of Ms D’s care. 

Ms C complained to the Council, but it said that as she was a paid carer it could not take this complaint. Ms C therefore escalated her complaint to the Ombudsman. The LGSCO felt Ms C’s situation was unusual and was exacerbated due to COVID-19 restrictions and therefore agreed to take the complaint, despite it sitting outside its usual 12-month timeframe. 

The LGSCO found that the Council was at fault for not considering Ms C’s entitlement to a carer’s assessment correctly. The Council was also at fault due to the lack of contract and employment information provided to Ms C, and fault was found with the Council for not completing a review/reassessment of Ms D’s needs until August 2020. This was not in line with paragraphs 3.19-21 and 13.32 of the Care Support Statutory Guidance.  

CASCAIDr comment: The failure to undertake a proper reassessment and a fettering of the Council’s decision by imposing an arbitrary cap, are fairly common occurrences and are issues that need to be stamped out permanently. The Council should have determined Ms C’s roles as both paid and unpaid carer from the start, especially as they lifted the prohibition. There is no excuse for not providing the correct information and advice especially as it is a foundation of the Care Act 2014 (Section 4), and councils have had almost 10 years to get this right. 

Read the full CASCAIDr insight report on this complaint here.  

Durham County Council (20 002 566)  

Summary: Mr Y’s family complained that the Council and the care provider failed to engage appropriate medical advice and input following a number of falls and chest pain. They further complained that the communication was lacking.  

Mr Y had multiple health conditions including diabetes, Parkinson’s and dementia. He fell at home in January 2019 and was admitted to Cedar Court Residential and Nursing Home (Cedar Court) for respite. Following his return home from Cedar Court he felt unwell and was admitted to hospital with a heart attack. His family were advised that due to an earlier, untreated heart attack, his prognosis was poor, and he sadly passed away a week later. His family contacted his GP to query the previous heart attack that they had no knowledge of it. The GP advised the Care Provider had made a call to 111 about prolonged, acute chest pains two days prior to Mr Y’s return home. 

The family complained to the Care Provider, asserting their failure to obtain timely medical help for Mr Y had led to his death. Also, that they had failed to fully advise 111 of My Y’s multiple conditions, failed to inform the family of Mr Y’s chest pain or seek clarity about Mr Y’s diabetes, and failed to mention the various falls Mr Y had at Cedar Court. 

In May 2019 Mrs X escalated her complaint to the Council after the Care Provider twice informed her they were still investigating her concerns. The Care Provider, having taken legal advice, was waiting for the outcome of the coroner’s investigation. The Council apologised for the care provider’s delay in updating the family about the investigation.  

In August 2019, the complaint and the Council’s monitoring of it were paused, pending the outcome of the coroner’s investigation. In July 2020, Mrs X complained to the LGSCO as the Council had still not responded to her complaint. The LGSCO waited until the Council’s had completed its complaint investigation and response before reopening Ms X’s complaint in December 2020.  

The LGSCO noted the Care Provider had undertaken appropriate risk assessments and implemented actions to minimise Mr Y’s risk of falls. When he had fallen, it had recorded the falls, considered whether any changes were necessary and taken appropriate advice from health professionals. As such, the Care provider was not at fault. However, they were at fault regarding the failure to notify the family about the falls. 

The LGSCO was also satisfied that the Care Provider took appropriate action when contacting 111 for Mr Y’s chest pains but once again failed to inform the family of the incident. This was fault which caused significant, avoidable distress and uncertainty. 

The Care Provider failed to keep Mrs X informed about her complaints progress. This lack of communication was fault which caused significant, avoidable distress and frustration given Mrs X’s belief that the Care Provider had caused Mr Y’s death – a matter ultimately for the coroner to decide. 

CASCAIDr comment: It is always a sad situation if people who are grieving have to go through a lengthy process to get answers about social care. The issues that the LGSCO focuses in on as fault – lack of communication, limited recording and lack of clarity about the complaints process – are unfortunately all too familiar. The LGSCO has a huge backlog to work through and this would likely be much shorter if every Council could talk to the people who used its services, record enough to show their own commissioners and the end users and families that risk is managed and give regular updates about complaints. If we sound a bit frustrated about this, it is because these are fundamental public law principles of transparency and accountability (as well as basic customer service), and councils should be resourced to be able to follow them.  

Read the full CASCAIDr insight report on this complaint here.  

London Borough of Hillingdon (22 011 685)  

Summary: Ms X complained on behalf of her daughter, Miss Y, that the Council failed to carry out a proper Occupational Therapy (OT) assessment and failed to consider her views, as her daughter’s carer. 

Ms Y lives with her mother and as a result of her disabilities, is non-verbal and relies on her mother to advocate and care for her. In 2019, Ms X applied to the Council for a Disabled Facilities Grant (DFG) for housing adaptations for Miss Y, including to the upstairs and downstairs bathrooms. This was granted and work began.  

In early 2020, Ms X asked for the work to stop as she did not believe it to be in line with the specifications set out by the OT assessment. The Council commissioned a further OT assessment in March 2020, which resulted in some amendments to the recommended adaptations, including to the bath and toilets, however the works were not restarted, as Ms X continued to believe that they did not meet the OT’s specifications.  

In April 2022, an OT, a surveyor, and the building contractor visited Ms X’s home to discuss the adaptations, which were then restarted. The following month, Ms X asked the contractor to stop work and again contacted the Council stating that she did not believe that the specifications of the OT assessment were being met. The Council replied saying that the OT had confirmed that the adaptations were suitable, and it requested that the contractor return to complete the works. 

Ms X formally complained to the Council in May 2022 reiterating that the adaptations did not meet the specifications recommended by the OT in March 2020, and said that she did not feel listened to by the adaptations team. The Council responded acknowledging that Ms X felt that it had not valued her views but reiterated that the works were confirmed by two OTs as meeting Miss Y’s needs. 

The LGSCO found no evidence of an OT assessment completed in April 2022, how the Council demonstrated that the adaptations were suitable to Miss Y’s needs, nor how it had sought Ms X’s views to represent Miss Y during the assessment process. As Ms X had asserted that no OT assessment was undertaken in April 2022, and the LGSCO found no evidence of one, it found the Council’s complaint response that the adaptations were considered suitable based on two OT’s assessments to be flawed. This was fault.  

The LGSCO found further fault in the Council’s consideration of Ms X’s knowledge and expertise of what was suitable for Miss Y. The April 2022 records do not show that Ms X’s views were considered, indeed there was no reference to her views anywhere in the case notes at that time. 

Acknowledging that the Council did commission another OT assessment in February 2023, the LGSCO highlighted the significant delay in doing so, and the subsequent delay in providing adequate adaptations. The result of this was that Miss Y had the continued use of an inadequate bathroom, which was detrimental to her, and Ms X as her carer.  

CASCAIDr Comment: It seems that in this case the Council felt it ‘knew best’, not only ignoring Ms X’s views, but seemingly not seeking to include Miss Y in the process in any alternative way e.g., via an independent advocate. It is disappointing that the Ombudsman didn’t draw more out of this glaring omission. Personalisation has gone from being a ‘buzzword’, to an expectation, with the Care Act highlighting the importance of promoting a person’s wellbeing through a number of ways including ‘’suitability of living accommodation’’ [s1(2)(h)]. Yet, despite this, and the accompanying rhetoric that comes from councils and statutory services, Miss Y and Ms X’s experience is not uncommon. 

Read the full CASCAIDr insight report on this complaint here.  

Torbay Council (22 015 161)  

Summary: Mr X complained that the Council’s handling of safeguarding concerns relating to his late mother prevented him from caring for her in the time leading up to her death and caused the family unnecessary distress. 

The Torbay and South Devon NHS Foundation Trust (the Trust) had delegated responsibility which was given to them by the Council in 2016 under s75 of the National Health Service Act 2006 for some of its functions. It also gave the Trust authority to conduct safeguarding enquiries pursuant to s42 Care Act 2014. 

Mr X had been caring for his mother since 2007. In March 2021, Care Agency A, who provided domiciliary care for Mrs Y alongside her son, raised concerns about Mr X’s involvement in his mother’s personal care, including inappropriate touching.  

The Trust decided that the concerns met the threshold for safeguarding enquiries under s42 of the Care Act 2014 and informed the police. The police arrested Mr X on 15 April, and he was released the following day with bail conditions that he did not contact his mother or return to her home. 

 On 25 April, the police lifted Mr X’s bail conditions after deciding to cease its enquiries into the allegations against him. The Trust resumed its own safeguarding enquiries but was unable to engage with Mrs Y. It spoke to Mr X who denied the allegations. He advised the Trust that he had been his mother’s carer since 2007, including personal care, and wanted to continue to care for her, informing the Trust that his mother’s condition had deteriorated, and she was ‘’two weeks away from death’’. 

The safeguarding enquiries were closed as inconclusive on 4 May. In a meeting held on 6 May the Trust denied Mr X’s request to discuss inaccuracies in the report, offering instead to hold a separate meeting, but reiterated that Mr X could not be involved in his mother’s personal care, but could hold her hand, hug her and stroke her hair. Mrs Y sadly passed away on 17 May.  

Mr X complained to the Trust that its handling of the safeguarding concerns and his mother’s care was sub-par.  

The LGSCO found no fault with the Trust for making enquiries following the concerns raised by Care Agency A, but identified that it failed to meet agreed actions that came out of its enquiries, including to make a decision in Mrs Y’s best interests about contact with her son [in breach of article 8 of the Human Rights Act: Right to respect for private and family life], and did not allow Mr X a right to reply to the safeguarding report. This was fault.  

The Ombudsman found that the Trust’s response to Mr X’s complaint when it said that it had not known how close Mrs Y was to the end of her life was inaccurate. The enquiries showed that it was recorded in the meeting on 6 May that Mrs Y did not have long to live. The Trust’s failure to consider this, and therefore take more timely action to resolve the outstanding issues, was fault.  

Whilst the LGSCO found fault with the Trust, because the Council commissioned the Trust to provide services on its behalf, it remained responsible for those services, and therefore the actions of the Trust. 

CASCAIDr comment: It is important to note that the Trust’s responsibility in undertaking the safeguarding enquiries should not have been a delegated function under a s75 agreement, but under a specific provision for handing off the operational aspects of an enquiry under s42(2) of the Care Act 2014: ‘The local authority must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case’.  

S79(2) of the Care Act disallows ss42-47 functions (safeguarding adults at risk of abuse or neglect) to be delegated. The LGSCO has taken the pragmatic approach here, rather than highlighting the inappropriateness of the organisations’ 7-year-old arrangements, and instead focusing on the normal rules for any delegation of statutory authority, that the responsibility for the adequacy of the delegate’s discharge of the responsibility remains with the entity given the responsibility in the the first place: here, the council. 
 
We think that the LGSCO could have referred the complainant to judicial review here, because public law principles underpin all safeguarding process and decision-making – including with regard to duties of basic fairness to alleged perpetrators. This is an uncomfortable legal truth that safeguarding officers tend not to focus upon when running their procedures, in our experience.  

Read the full CASCAIDr insight report on this complaint here.  

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Legislation & Caselaw…. 

SB & Anor, R (On the Application Of) v London Borough Of Newham [2023] EWHC 2701 

Summary: A judicial review claim concerning the interaction between the obligations of the Defendant, the London Borough of Newham, under the Care Act and those of the Home Secretary under s.95 of the Immigration and Asylum Act 1999 in relation to the provision of accommodation to asylum seekers with eligible care needs. 

This was a judicial review claim by the Claimants – SB and his mother and main carer, SBO, both of whom were Bangladeshi nationals whose claims for asylum were being processed at the time of the hearing. They had been housed during the pandemic under the “Everyone In” programme but had become street homeless in May 2022. The same month, the Defendant in the claim, the London Borough of Newham (LBN) had carried out an assessment under the Care Act 2014 (CA 2014), provided emergency accommodation in a hotel and gave support to SB which included reablement, and then went on to house them in two studio flats.  

The assessment found that SB had eligible needs in the areas of (i) managing and maintaining nutrition, (ii) developing and maintaining family or other personal relationships, (iii) making use of necessary facilities or services in the local community, (iv) maintaining a habitable home environment and (v) assessing and engaging in work/training.  

In the assessment, LBN answered ‘NO’ to the question of whether SB’s needs would be best met in accommodation-based services and recommended that SB receive 4 hours of support a week to support him to access the community and identify activities that he can attend on a weekly basis. 

Between November 2022 and May 2023, correspondence went back and forth between the Claimants’ and Defendant’s solicitors, with LBN contending that there was no need for accommodation-related support; and even if there was, it could not provide housing because of s.23 of the CA 2014 which states that LAs cannot provide assistance to persons already owed a duty under the Housing Act 1996 (HA 1996) or that if it was not precluded by that provision, it did not need to because of asylum support provided by the Home Secretary under s.95 of the Immigration and Asylum Act (IAA) 1999.  

The Claimants brought judicial proceedings against LBN, on three grounds, namely that LBN had: 

  1. erred in relying on the availability of asylum support under s.95 of the IAA 1999 
  1. failed to apply the correct test in deciding whether to accommodate the Claimant, instead relying on the fact that SB did not require specialist accommodation or residential care. 
  1. misdirected itself in relying on s.23 of the CA 2014 because asylum seekers were excluded from eligibility to homelessness assistance under the Housing Act 1996 (HA 1996). 

LBN’s position was that it had decided that SB did not have accommodation-related needs and that, if the nature of its decision was properly understood, the legal arguments in grounds 1 and 2 would fall away. LBN also contended that an alternative remedy to JR proceedings was available to them because they could claim accommodation and support from the Home Secretary (pursuant to s.95 of the IAA 1999), which they had not chosen to make use of. 

Having examined the interpretations of, and interactions between, the CA 2014, the HA 1996 and the IAA 1999 in the case law, all three grounds succeeded, and the original decision was quashed. The case established that: 

  • A need for accommodation by itself does not constitute a need for care and support but that accommodation may nevertheless need to be provided, as a vehicle through which to deliver care and support,  
  • This does NOT mean that someone must require accommodation in a specialist institution or be of a specialised nature, for their needs to count as being accommodation-related, 
  • In the case of asylum seekers, an LA cannot rely on s.23 of the CA 2014, which precludes it from meeting needs under ss.18-20 where it or another LA is required to under the HA 1996, because asylum seekers are already EXCLUDED from eligibility to homelessness assistance under the HA 1996. 
  • Neither can an LA rely on the availability of accommodation under the ‘last resort’ provisions of the IAA 1999 WITHOUT lawfully addressing the issue of whether a person has accommodation-related eligible needs for care and support under the CA 2014. 
  • An LA cannot rely on the fact that a person has not sought support under the IAA 1999 provisions to assert they have an alternative remedy, to judicial review. 

Read the full CASCAIDr insight report on this case here.  

PN (Capacity – Sexual Relations and Disclosure)  [2023] EWCOP 44  

This judgment concerned whether PN – a man cared for by Durham County Council – had the capacity to make decisions about engagement in sexual relations. PN had significant care needs as a result of his mild learning disability and autistic spectrum disorder (ASD). He requires support for many activities of daily living and was receiving one to one care 24 hours a day. His ASD limits his ability to empathise and presents as persistent difficulty with social communication. Previous declarations had been made that he lacks capacity to make decisions about his residence, care, contact with others, and use of social media and the internet.  

The issues in this hearing were (1) whether he lacked capacity to make decisions about engaging in sexual relations; (2) whether he lacked capacity to consent to disclosing information about the risk of sexual harm he posed to others, and (3) whether he lacked capacity to consent to allowing the local authority to disclose information about the risk of sexual harm he posed to others. 

The local authority heard evidence from forensic psychiatrist Dr Chris Ince, and PN’s social worker, Mr Curran, who gave evidence in relation to the second and third issue only. After hearing evidence, Counsel for all three parties submitted that PN had capacity to make decisions with regard to all three issues and Poole J agreed but noted that the determination of PN’s capacity in relation to decisions about engagement in sexual relations was not straightforward.  

PN has a history of offending behaviour, some of it violent, and a long history of reported sexual offending, though PN has largely escaped the attentions of the criminal justice system other than a warning in 2006 for sexual assault. The judge was presented with a long list of episodes dating back to 2001 which included multiple examples of sexual assault by unwanted touching, typically of women’s breasts or legs. The assaults were described by the judge as ‘opportunistic’, and there was no evidence that P had ever committed rape or had sexual intercourse without consent. The most recent incident occurred in August 2023, where PN grabbed the breasts and leg of a female carer while on an outing.  

PN’s ability to make decisions about sexual relations appeared to have been considered over many years by a number of different professionals, but PN seemed to have a consistent understanding of what sexual assault and consent were, and what conduct was illegal. The main issue was that despite this apparent understanding, PN continued to behave impulsively around women. He accepted that he had touched women without their consent but said that the incidents were ‘not serious’. PN also said to his social worker Mr Curran that other people might want to know about his behaviour for their own protection, suggesting that PN grasped that it posed a risk of sexual harm to others.  

Poole J cited the Supreme Court’s decision in A Local Authority v JB [2021] UKSC 52, (“JB”) and the Court of Appeal judgement of Baker LJ in the same case, [2020] EWCA Civ 735, as providing a ‘definitive guide’ to applying the test for capacity to make decisions to engage in sexual relations.  

Poole J stated at para. 10 that in JB:  

“[…] Lord Stephens’ judgment appears to me to recognise that the relevant information may differ from case to case. He expressly held that in certain cases the approach should be person-specific and that the “reasonably foreseeable consequences of deciding one way or another may be different”. He gave the example that the risk of a sexually transmitted infection may not be part of the relevant information that has to be understood, retained, weighed or used if the circumstances of the case render that irrelevant. Hence, Lord Stephens’ judgment establishes that there is no requirement that all of Baker LJ’s relevant information must apply in every case. The relevant information will depend on P’s circumstances, their sexual orientation, sexual practices and preferences, whether there is an identifiable person or persons with whom they are likely to have sexual relations, and what the characteristics are of that person or those persons.” 

Poole J also considered the “protection imperative” and warnings from the Court that the imperative should not drive the capacity assessment towards an outcome that protects P’s safety rather than their autonomy. Poole J found that there may be a ‘natural desire’ to protect those with whom P might want to have sexual relations. However, some capacitous individuals might commit sexual assault or rape, but also have consensual sexual relations. 

The Court of Protection may interfere only where an individual lacks capacity to make decisions about engaging in sexual relations. If P would otherwise have capacity, then the court should not allow the desire to protect others to drive a finding that P lacks capacity. 

Poole J distilled this issue as follows:  

“One of the core principles of the MCA 2005 is that “a person is not to be treated as unable to make a decision merely because he makes an unwise decision” – s1(4). Deciding to act in a way that might be a criminal offence would be an “unwise” decision. Such decisions might contribute to a determination of a lack of capacity, but P is not to be treated as unable to make a decision merely because they may make a decision to act in a way that might amount to a criminal offence.” 

Capacity issue 1 – making decisions about engaging in sexual relations 

Applying this analytical framework to PN and his circumstances, Poole J noted that PN had no history of being propositioned to engage in sexual activity and did not fixate on any particular person. He continued that ‘[d]ue to his living arrangements, character, and impairments he is not, has never been, and is very unlikely to be involved in a relationship or even in an encounter where there is a prospect of the other person becoming pregnant or where there is a chance of either contracting a sexually transmitted infection.’  

In light of these facts, Poole J argued that some of the factors identified by Baker LJ and subsequently approved by Lord Stephens in JB did not apply, but nevertheless the evidence was clear in showing PN has an understanding of and is able to retain, and weigh or use the relevant information within that formulation, namely an understanding of the bilateral nature of consent.  

Poole J, in accepting the expert evidence of Dr Ince on PN’s impulsive behaviour, found that PN surrenders to his impulses ‘because of his character and outlook not because of his impairments’ and also noted that ‘his impairments do not cause him to lose his control in other fields of activity, or his sexual control in other settings.’  

Poole J and Dr Ince were mindful of the fact that PN could be found capable of committing criminal offences if it found that PN chooses to disregard the consent of others to sexual touching, rather than being unable to  understand, retain and use information that consent is necessary, but the judge restated that his role was to make decisions on capacity according to the evidence and applying the tests within the MCA 2005. 

The judge was also satisfied that PN understands and retains the information that there are likely serious repercussions from his decisions to engage in non-consensual sexual touching, as shown by the fact that he did not engage in such behaviour around authority figures like his older brother. Poole J concluded that PN had the necessary capacity to give consent to sexual relations and to initiate sexual activity.  

Capacity issue 2 – consenting to disclosing information about the risk of sexual harm posed to others 

The judge then turned to the questions of disclosing the risk of sexual harm PN poses to others. Poole J noted that at times PN would deny his past behaviour, but his social worker, with whom PN had a close relationship, attributed this to embarrassment and a desire to avoid getting into trouble. PN understood that he has a history of sexual offending which others might wish to know about. 

Poole J also queried the practicalities of how disclosures of PN’s offending history might be made, and also pointed out that people with capacity who had histories of sexual offending might also struggle with deciding when and how to share that information with others. He also reiterated the limits of the ‘protection imperative’, and that any decision about sharing information would need to be taken with PN’s interests at heart, not those to whom his behaviour might pose a risk.  

Poole J took care to note that his findings should not “be wrongly taken as guidance for future decision-makers” but set out his assumptions that “the relevant information will include the risks to others that arise from the previous offending, how the disclosure of information might be given so as to allow others to avoid or mitigate such risks and prevent P from committing offences which could have adverse consequences, and the reasonably foreseeable consequences of sharing or not sharing the information”. On that basis, Poole J was satisfied that PN has capacity to make decisions about sharing information about his offending history with others, emphasising that “the bar must not be set too high” and that while it was “[d]esirable” to protect others from the risk PN presents, Poole J “could not allow that to detract from a clear-eyed application of the statute.’’ 

Capacity Issue 3 – consenting to allowing the local authority to disclose information about the risk of sexual harm posed to others 

PN was opposed to the Local Authority disclosing his offending history. Poole J noted that PN understood why the Local Authority might wish to do so, namely to protect others and to ‘cover their own backs’ and that PN recognised the consequences of the Local Authority doing so. Poole J found the assessment of PN’s social worker to be ‘extremely helpful’ and cited with approval Mr Curran’s assessment conclusion: 

“PN was able to demonstrate that he understood the information relevant to the decision [to allow the local authority to share information with others] including his history of offending, that disclosing this information would likely lead to a breakdown in any potential relationship and that professionals may share this information on his behalf. PN was able to retain this information and use it to weigh up potential options. He was then able to communicate this decision verbally.” 

Poole J agreed with this conclusion and found that PN has capacity to make this decision.  

Poole J then turned to the question of whether these determinations were consistent with other determinations in relation to PN’s capacity to make decision, in particular the previous determination by the Court that he does not have capacity to make decisions about contact with others. 

On the facts of the case, Poole J was satisfied that there was no inconsistency: “PN understands sexual boundaries but he does not understand social boundaries. He does retain the understanding that consent is required to touch another person and can weigh or use that information even when the urge takes him to touch another person, but he does not have the same understanding in relation to staring at or speaking to others. He does not understand the foreseeable consequences of speaking offensively to others but does understand the consequences of touching them without consent. “ 

Sexual boundaries are, suggested Poole J, clearer than social boundaries to PN, which are not understood fully because of his impairments.  

The relevant information in respect of contact, which coloured Poole J’s consideration of the consistency of various determinations, was set out by Theis J in LBX v K, L and M [2013] EWHC 3232 (Fam)

. Poole J concluded this section of his judgement with the observation that a refinement should be made to the previous finding that PN lacks capacity to make decisions about contact with others, namely that his lack of capacity is in relation to non-sexual contact with others. 

Poole J also considered the outcome if he found that PN lacked capacity in relation either to disclosing information about his offending history, or to allowing the Local Authority to disclose that information and wondered “what practical steps could be taken to share information with others”.  

The judge also was concerned that it was not necessary or appropriate for the court even to consider the second and third decisions at issue. Having determined the first issue, it did not appear, borrowing the wording of Lord Stephens, “necessary to consider whether he has capacity to make decisions about sharing information relevant to consent with others. Indeed, as mentioned earlier in this summary, Poole J was hesitant to set out the relevant information regarding the second and third decisions lest they wrongly be taken as guidance for future decision-makers.  

This case is notable in respect of the weight placed by the Court and parties on PN’s ability to control his impulses in certain circumstances, and his ability to use and weigh up information about the consequences of his behaviour.  

Poole J’s careful analysis also emphasised ensuring – where possible – an individual’s autonomy and not simply succumbing to the understandable impulse to ensure public protection. The judgment recognised that people will sometimes freely choose to behave in ways which are not in their best interests, or in the interests of others, and freedom to choose means occasionally the freedom to make bad or even harmful decisions. Bad decisions should not be conflated with an inability to make those decisions.  

Poole J also emphasised that the more refined the decision-making under consideration, the more difficult it can be to delineate the boundaries between different kinds of decision-making and to implement practical care and support.  

He suggested that rather than seeking to identify specific types of decision-making, it may be simpler to and more practically useful to focus on core decision-making areas such as residence, care, contact, marriage, or sexual relations, while also applying the principles involved in assessing capacity to an individual’s characteristics and circumstances. 

CASCAIDr Comment:  This corresponds with training that our trainers have been delivering for over 15 years, since the Mental Capacity Act came in, to the effect that in the end capacity will come down to providers doing the day-to-day thinking and care planners – public officers acting under statute – needing to the Big Six, to do their jobs properly and lawfully compliantly. These we see as follows: 

  • Property and finance decisions, because of Best Interests not extending to contractual and monetary decisions in that regard, and covering only the question of where one might live and with whom 
  • Self-harm – through any source of risk including gluten, sugar, alcohol and drugs – because of article 8 and autonomy and views of relatives potentially with deputyship 
  • Medication – because of the need to administer it covertly impinging on article 8 
  • Wandering or moving around the community unescorted as opposed to purposeful absconding – because of article 5 
  • The internet, online and physical contact and sex – because of articles 5 but more directly, 8  
  • Information sharing – because of article 8 and the fact that confidentiality is a private law issue to which MCA analysis and thinking could well be a defence. 

Read the full CASCAIDr insight report on this case here.  

 Procurement Act 2023: key changes to the public procurement regime 

The solicitors’ firm Stephenson Harwood has commented on the key public procurement changes created by the Procurement Act 2023, which will apply from October 2024. They explore the Act’s main structure and objective changes, procedures, transparency and notices, innovations in procurement procedures, supplier expulsion and debarment, key performance indicators, standstill periods and remedies, and the termination of contracts.  

The firm Anthony Collins has also commented in Local Government Lawyer. CASCAIDr has combined the two articles here, for readers’ ease. 

The Act signals a significant shift in the public procurement landscape. The government has outlined a preceding six-month notice period. 

The Act consolidates various procurement regimes governing public contracts, utilities, concessions, and defence. Distinct rules will persist for contracts falling under different regimes. Procurement objectives now emphasise delivering value, maximising public benefit, and ensuring integrity. 

The Act grants greater flexibility to contracting authorities in choosing procurement procedures. This includes the ability to make changes to ongoing procurements, altering terms even after initiation. Notably, award criteria now focus on the “most advantageous tender,” offering flexibility in refinement during a competitive procedure. 

Addressing concerns about transparency, the Act introduces new notice requirements throughout the procurement lifecycle. These include planned procurement notices, preliminary market engagement notices, pipeline notices, transparency notices, mandatory contract change notices, and termination notices. 

Contracting authorities may now award contracts based on the most advantageous tender, (instead of the most economically advantageous tender) fostering competition through either a single-stage procedure or a custom competitive process. Additionally, the Act allows direct awards under specific circumstances, responding to lessons learned during the COVID-19 pandemic. 

The Act outlines provisions for the exclusion of suppliers based on specific grounds, mirroring existing regulations but introducing new offences such as theft, corporate manslaughter, and competition law infringement.  

Contracting authorities are mandated to set and publish at least three KPIs for themselves, with periodic assessments against these indicators. Exceptions and value thresholds apply, and the results of these assessments must be made public. 

For those seeking to challenge awards, the standstill period, reduced to 8 working days, remains a crucial element. The Act replicates many remedies from the existing procurement regime, with changes in language. Notably, a new test is introduced for interim orders, including lifting automatic suspensions. Formal court remedies will need to be pursued through judicial review. 

The Act extends implied termination rights for contracting authorities. Grounds for termination now include material breaches of the Act, supplier exclusion, and certain pre-conditions related to sub-contractors. 

Procurements initiated before the legal change will remain bound by current rules even after the Act takes effect: 

Adult Social Care Services Procurement: Light-Touch Regime (Until October 2024) 

Until October 2024, adult social care services will follow the light-touch regime of the Public Contracts Regulations 2015. These rules emphasise equal treatment, transparency, and reasonable time limits, granting public authorities flexibility in designing procurement procedures. 

Transition to Procurement Act 2023 for Adult Social Care (From October 2024) 

From October 2024, adult social care services will fall under the Procurement Act 2023, introducing more flexible rules and thresholds. The Cabinet Office is consulting on the scope of light-touch contracts, anticipating different regulations for adult social care services. 

Health Services Shift from Public Contracts Regulations 2015 (From January 2024) 

Starting January 2024, health services are excluded from the Public Contracts Regulations 2015 and the NHS Procurement, Patient Choice, and Competition Regulations 2013. Instead, they will be procured under the new Provider Selection Regime (PSR), bringing flexibility to commissioning decisions. 

Provider Selection Regime (PSR) Overview 

The PSR allows direct awards, competitive awards, and more flexible commissioning decisions for ‘in scope’ health care and public health services. It won’t apply to goods, adult social care, or health-adjacent services, maintaining procurement under the PCR 2015 and Procurement Act 2023. 

This Act grants public authorities’ freedom to design light touch procurement procedures suitable for those services that they are choosing or obliged to buy, as long as they 

  • comply with the principles of equal treatment and transparency; 
  • carry out the procedure in accordance with the information included in the contract notice (except in specified circumstances); and 
  • set time limits that are reasonable and proportionate 

It is expected that adult social care services will still be subject to different, more flexible rules and thresholds than other public contracts. 

With regard to adult social care contracts, contracting authorities must be satisfied that the award criteria relate to the different needs of different service users, service users’ views with respect to who should supply the services, as well as how and when the services should be supplied or where the qualifications, experience, ability, management or organisation of staff where those factors are likely to make a material difference to the quality of services. 

Contracting authorities may directly award contracts which meet the test to be a “user choice” service which formally enables the local authority to have regard to the individual’s views, wishes, feelings and beliefs. It means that agreements can be awarded without competition where the service user or their carer has expressed a preference as to who should supply the services, or the nature of the services to be supplied is such that only one supplier can provide them. Suppliers who are known for specialist services and developed innovative or niche offerings are more likely to be appointed a contract without the need to competitively tender. It is thought that public authorities will query whether a competitive process itself represents value for money and look for ways in which they can move most quickly to contract award. 

1st January 2024 is the date when HEALTH services will be removed from the scope of the Public Contracts Regulations 2015, and the NHS Procurement, Patient Choice and Competition Regulations 2013. They will instead be procured under the new Provider Selection Regime along with dual-funded packages such as residential nursing care and learning disability support services. 

The Provider Selection regime will apply to ‘in scope’ health care and public health services. This includes services arranged by the NHS (hospital, community, mental health, and primary health care services plus public health services arranged by local authorities e.g., substance use, sexual and reproductive health, and health visitors. The Provider Selection Regime will allow and encourage relevant health service authorities to commission those ‘in scope’ services based on: 

  • a Direct Award to an existing provider of an existing service, where there is no realistic alternative provider; 
  • a Direct Award to an unlimited number of eligible providers who have expressed an interest in providing the services; 
  • a Direct Award to an existing provider whose contract is ending, but who is delivering the current to a sufficient standard. The relevant authority can award a new contract to the same provider, provided it is not proposing considerable changes to the contract; 
  • awarding a contract to the most suitable provider. Where the relevant authority is of the view, considering likely providers and all relevant information available to the relevant authority at the time, that it is likely to be able to identify the most suitable provider; 
  • a competitive award process. 

The Provider Selection Regime will not apply to the purchase of goods e.g., medicines, medical equipment, or as explained above, adult social care services. These ‘out of scope’ services, which can reasonably be supplied under a separate contract, will continue to be procured under the PCR 2015 and then the Procurement Act 2023 from October 2024 onwards.  

But the Provider Selection Regime will be used for mixed procurements and dual-funded packages, where the health service element makes up more than 50% of the value of the contract such as contracts relating to patient transport, mental health aftercare services, discharge to assess arrangements as well as section 75 arrangements and joint commissioning arrangements. 

The comment from Anthony Collins’ professional staff’s article in Local Government Lawyer suggests that: 

“Health and social care providers will need to keep a more active eye on the Find a Tender service to keep on top of tender notices, contract awards and proposed modifications which might be subject to challenges under the PSR. Knowledge of the local market, tactical use of Freedom of Information requests and proper protection of confidential information will be essential to safeguard or challenge contract modifications. New flexibilities under the Procurement Act are likely to provide opportunities to some providers and present challenges for others.” 

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Other Articles….  

From Local Government Lawyer…. 

Autumn statement 2023: reactions from the sector 

Local Government Lawyer looks at the reaction of the sector to the Government’s Autum Budget Statement 2023 

Cllr Shaun Davies, chair of the Local Government Association said: “The evidence of the financial strain on councils has been growing and it is hugely disappointing that today’s Autumn Statement has failed to provide funding needed to protect the services the people in our communities rely on every day. 

“Supporting businesses and easing the cost of living for households is important, but not if our public services continue to be chronically underfunded and unable to be there to support people when they need them.  

“Councils have worked hard to find efficiencies and reduce costs, but the easy savings have long since gone. It is wrong that our residents now face further cuts to services as well as the prospect of council tax rises next year, with councils having the difficult choice about raising bills to bring in desperately needed funding.’’ 

Cllr Claire Holland, acting Chair of London Councils said: “Boroughs will continue to face massive budget pressures. Many are struggling to balance their budgets and the Autumn Statement leaves them teetering on the edge. London’s homelessness emergency is a key concern. After years of campaigning for an increase in Local Housing Allowance, we welcome the decision to end the freeze. Boosting LHA is essential for helping low-income Londoners pay their rent and avoid homelessness. This is good news for London renters and for boroughs’ hard-pressed homelessness services. But with one in 50 Londoners currently homeless and living in temporary accommodation arranged by their local borough, the housing crisis remains a critical risk to town hall budgets. Enormous and growing pressures can also be seen across other vital services, especially adult and children’s social care. 

“We will keep pushing for more funding support in the face of these on-going challenges, as well as the long-term reforms to local government finance that are crucial for sustaining London’s local services in the years to come.” 

Cllr Sir Stephen Houghton, Chair of the Special Interest Group of Municipal Authorities (SIGOMA) said: “There were several elements to welcome in today’s statement, including the increase in Local Housing Allowance. However, with a 1% rise in spending on public services set for the coming years, unprotected departments like local government will face another round of damaging austerity, following the decade of cuts since 2010. It was disappointing to hear nothing of adult social care and children’s services, crucial services provided by councils that are currently under immense pressure. Without additional funding for local government, more councils will be pushed to the brink of financial viability.” 

Jonathan Carr-West, Chief Executive, Local Government Information Unit (LGIU) said: “Across local government, confidence in the Government’s ability to fix the sector’s financial crisis is at rock bottom. Our recent State of Local Government Finance survey found that only 14% of senior council officials are confident in the sustainability of council finances, and under 5% are happy with the progress that’s been made on delivering a sustainable funding system. 

“The Chancellor’s Autumn Statement will have done little to boost that confidence. Indeed, local authorities will be left wondering what it will take to have their concerns recognised and addressed by the government. Councils have been pulling every lever available to them to balance their books: raising council tax, cutting services, and spending their finite reserves, and still we are seeing an ever-increasing number of councils unable to make ends meet in the face of central government spending cuts and increasing demand for council services, particularly adult and children’s social care. 

“Each year citizens are paying more and getting less from their councils, and without significant structural changes to the way funding is allocated it is difficult to imagine these dire straits ending for councils and the communities they serve.” 

Chief Executive of the Health Foundation, Dr Jennifer Dixon, responds to the Autumn Statement: “By tackling ill health to support people back into work, the Chancellor has recognised the vital role of good health in supporting economic growth and fuelling prosperity. Little more than a year ago, the government was preparing to introduce an increase in National Insurance to provide additional funding for the NHS and social care. Today, by choosing tax cuts over investing in public services, the Chancellor has stored up problems for the future. Spending on all departments and services other than the NHS, defence and education is set to fall by at least 2 per cent a year in real terms from 2025–26, leaving the next government in an unenviable position with these cuts unlikely to be deliverable. The measures announced by the Chancellor to help people with long-term health conditions are a step in the right direction, but these are mostly small-scale, will take time to roll out, and have limited impact on employment rates. 

Extra funding for the NHS was conspicuous by its absence, despite the service heading into winter with record waiting lists and significant financial challenges. While the Chancellor is right to focus on improving public sector productivity, a much better understanding of trends in NHS productivity is needed to avoid overly simplistic conclusions. And a big irony is that in the last few days, budget constraints have forced the NHS to cut back on investing in technology, which is a major route to help deliver high quality care more efficiently now and in future.’’ 

Social Care Today reported: Tax cuts, benefit increases, but not a single social care mention: Autumn Statement 2023 

Labelled as ‘lukewarm’, Jeremy Hunt’s Autumn Statement included more than 100 new announcements, but none of them offered any financial support for social care!  

The Statement announced that national insurance would be cut from 12% to 10% and that the Universal Credit Work Allowance for disabled claimants will rise. However, the chancellor failed to announce any beneficial measures for the social care sector.  

Nigel Green from the financial advisor deVere Group said the statement was ‘’the Chancellor’s main opportunity outside of the budget to make tax and spending announcements and, with Labour 20 points ahead in the polls, one of the last chances for the government to shift the narrative for the Conservatives ahead of the general election…..While some measures announced today are clearly to be welcomed, the statement as a whole was surprisingly lukewarm.’’  

CEO of the Carers Trust, Kirsty McHugh, said: ‘’More than 100 measures were announced in the Autumn Statement. It is shameful that not one of them gets anywhere near easing a social care crisis that is causing so much suffering for so many. The system remains starved of investment and still has no long-term funding plan, despite years of empty promises…..it’s scandalous that there is next to nothing in his Autumn Statement to help make that a reality for so many unpaid family carers……Even with Carer’s Allowance being raised in line with inflation, it remains the lowest benefit of its kind and in urgent need of reform.’’ 

Max Parmentier, CEO and Co-founder of home healthcare platform Birdie, said: ‘‘The Chancellor’s Autumn Statement has failed to address the health and social care crisis – despite the rising age of the population, the increasing complexity of healthcare conditions, and long waiting lists caused by staff shortages’’. 

Social care charging system “unfair, unpredictable, and complex” 

The Chartered Institute of Public Finance and Accountancy (CIPFA) has found problems with the current charging system 

Its latest report, ‘Charging for adult social care in England: reform and routes forward’, calls for funding to be provided to enable services to recover and deal with current challenges, and a commitment to adequate long-term funding to make services “fit for the future”.  

CIPFA call for reforms that are “equitable” and do not benefit or disadvantage one group in society over another, highlighting that to achieve this, local authorities desperately need appropriate funding.  

CIPFA’s Social Care Policy Advisor, Dr. Will Burns, said: “The wider social care system is facing a myriad of challenges to do with workforce, unmet need, increasing demand, and the risk of market failure. Without stable and adequate long-term funding, effective public financial management is hindered. Short-term funding arrangements have impeded long-term planning, development, innovation and investment in social care. Charging reforms need to be fully funded for local authorities to implement them successfully.’’ 

CIPFA are calling on the Government to: 

  • Produce a new impact assessment for social care charging reform 
  • Provide a long-term social care funding settlement 
  • Improve access to social care 
  • Introduce a cap on care costs that includes local authority charges/contributions.  

The report outlined the following five principles for a “sustainable and equitable” social care system: 

  • Start with a fresh understanding of needs, demand, cost and spending: a zero-based approach. 
  • Provide adequate long-term funding and certainty of funding for social care services to recover and secure their financial sustainability. 
  • Invest to rebalance spending from reaction to prevention, and to achieve value for money in the long term for the public pound and better outcomes for people. 
  • Address unfairness in how the costs of care are met between generations, by place, income and wealth, and protect individuals of all ages against unlimited costs by pooling risks. 
  • Reduce the barriers between social care and other public services to ensure greater policy alignment across government departments and financial alignment around the individual. 

The Department for Health and Social Care had been approached for comment. 

CASCAIDr Comment: CASCAIDr believes that the DHSC is actually doing something about this concern before it needs to consider resurrecting the Care Costs Cap.  
 
The existence of charging for social care is a political issue in and of itself, but the impact of charges on individuals and entire cohorts of people drawing on services is one that raises legal questions regarding discrimination and cost-shunting.  
 
We think that the worst things about the current approach to charging of individuals is that the assessment Guidance makes no comment on: 

  1. how people’s unrelated personal debt should be treated 
  1. how cost-shunting by default onto people’s relatives has occurred as people with benefits arising from their being in supported living, as opposed to care homes, have been left to decide which of their activities are wanted so much that they are prepared to spend their own money on them… 
  1. why banding of standard amounts allowed for DRE should be taken up, in order to level out the discriminatory percentage effect revealed by the Norfolk case 
  1. the practice rife in most councils of quietly ceasing to follow previous case law on disregarding the night time element of DLA if no council services for night time needs are being commissioned, so as to make it less obvious that they are counting the whole of PIP higher rate component now 
  1. the iniquity of the NAFAO figures on average heating costs when there has been no revision of figures to take account of 10 years’ worth of building standards improvements, making most people’s bills lower, on average, if they live in newish environmentally sound housing 
  1. the impact of treating spending by relatives on necessaries as merely a gift, and not DRE for the individual, since the expenditure actually triggers a liability to repay the person who has supplied the necessaries. It used to be the position that central government Guidance recommended such expenditure should be disregarded; that was dropped about 15 years ago. 

Since the 1990s social care funding has been widely viewed as unfair and inadequate, and successive governments have promised reforms and consistently failed to deliver them, with the Dilnot reforms from 2011 recently deferred until 2025 (or later, depending on which party is elected to power). Yet with demand for social care at a record high, levels of public dissatisfaction desperately low, and workforce vacancies having a major impact on service delivery, the reform offers cannot be said to have been effective, even as a sticking plaster. 

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From Autism Alliance…. 

Closing the gap in care and support for autistic adults in England – ‘Breaking Point’ Campaign 

Research commissioned by Autism Alliance shows that thousands of autistic adults across England are not receiving the social care they need, thus preventing them from living well and actively in their communities and from taking up work, and meaning that too many reach crisis point, leading to familial breakdown and confinement in mental health hospitals. 

This is in direct contravention of the Care Act 2014, which is clear that people with eligible needs for care should receive care, and that local authorities should promote wellbeing and reduce or prevent the escalation of need, because there is not enough money in the system to meet demand.  

Autism Alliance estimates it is likely to cost £70m – £140m to meet this demand, plus the cost of specialist workforce recruitment and retention, which they think is achievable through meaningful reform of social care and addressing inefficiencies in spending across health and care. They state that Investment needs to be accompanied by further reform I.e. a greater understanding of autism, and a focus on wellbeing and prevention rather than responding to crisis. 

CASCAIDr Comment: We’re signing up this organisation’s support for the Autism Alliance’s partnership regarding pressure being brought to bear on government. 
 
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From the University of Bristol…. 

Implementing the ‘Liberty Protection Safeguards’ is an urgent priority  

In 2017 the Law Commission proposed a new system – the Liberty Protection Safeguards – that would be more proportionate, flexible and improve protection of rights, than the Deprivation of Liberty Safeguards for authorisation of benign detention.  

Post-legislative scrutiny by the House of Lords Select Committee on the Mental Capacity Act in 2014 concluded that DoLS were ‘not fit for purpose’: they were too complicated, costly and resource intensive, yet offered weak protection of human rights, whilst families found them confusing.  

Despite considerable preparatory work on implementing this new system, in April 2023 the Government postponed it until ‘the next Parliament’. 

Dr Series’ opinion and recommendations are as follows: 

  • Older and disabled people urgently need better protection of their fundamental human rights. Many experience excessively restrictive care (especially following Covid), whilst families report not being fully involved. 
  • Most people who are deprived of their liberty in non-traditional settings where DoLS do not apply, such as supported living, have no independent oversight or safeguards at all. Due to the inflexibility of DoLS and under-resourcing, local authorities are currently left having to work out – in the words of the Joint Committee on Human Rights – ‘how best to break the law’.The next government urgently needs to progress work to implement the LPS to improve human rights protection for all. 
  • Some issues require further thought, particularly around domestic settings and the interface with the Mental Health Act 1983. But this cannot detract from the importance of securing these rights for individuals who draw on care and support, and their families. 

CASCAIDr Comment: This is what the Government’s impact assessment underpinning the LPS, conveyed as being the whole point of the proposed changes that have been deferred:  

“The LPS will be more streamlined and less intrusive than the existing system, and a more effective and proportionate way of ensuring Article 5 rights for all. 

We expect that all people who lack capacity and need to be deprived of their liberty for their care or treatment will have the same access to the same protections, regardless of protected characteristic. 

By putting the person at the heart of the system, and by extending access to the system, the Liberty Protection Safeguards will advance equality of opportunity, especially for those with disabilities.  

The consultation process, involving families and carers, aims to improve the process for the person and can consider needs particular to protected characteristics. 

Making this process as straightforward as possible is an important factor in making sure everyone can access and use the system equally, regardless of age, disability or race. 

To amplify this advantage, it is vital that all using the process understand it. This includes thoroughly training reviewers, AMCPs and care providers, as well as ensuring that the person, families and carers understand LPS when planning care.”   

WE think that there IS some protection against arbitrary detention in supported living, but only if the Care Act is being properly followed and care packages are ‘sufficient’ in the public law sense. For instance, in s25(11) of the Care Act, it makes it clear that one person’s plan – and hence their BUDGET – can only be combined, with another person’s plan and budget, with their agreement.  

The many thousands of people with less than full cognitive functional capability living in supported living are unlikely, we feel, to have agreed to their having to be ‘joined at the hip’ for all day-time activities with people with whom they have not, by any stretch of the imagination, been able to choose to live. And yet the provider sector continues to jump to the drumbeat of commissioners and tender exercises, regarding delivery of shared care savings without regard to direct payments and the separation of the tenure from the care arrangements. 

There is no substitute decision-making provided for, in s25(11), the statutory and provider sectors should note. Not even for a welfare power of attorney holder, we would remark – ie not even for a parent. Shared care need not mean cut price care, if the Care Act is followed. 

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From Community Care…. 

10% pay rise for thousands of care workers as government announces national living wage rise 

The national living wage (NLW) will be increased from £10.42 to £11.44 an hour from April 2024 and will apply to people aged 21 and 22, who currently are subject to the national minimum wage (NMW), which is currently worth £10.18 an hour. This is well above the current annual inflation rate of 4.6% and could be worth up to £1,800 a year in cash terms for full-time workers. 

This inflation-busting pay rise will be welcome for care staff after two years of real-terms wage cuts which have led to workforce instability and a record number of vacancies which rose by 52% in 2021-22 before falling slightly in 2022-23, following increased overseas recruitment. 

However, there are questions about whether councils and NHS commissioners will be able to afford to pay providers at rates which are sufficient to meet the new NLW. Care England’s Chief Executive, Martin Green said: “While the rise in national living wage has an undeniably positive impact on those working within adult social care, due consideration must be lent to care providers who will need to grapple with increased workforce costs again, against a backdrop of local authority funding struggling to keep pace.” 

The Department of Health and Social Care has responded to concerns saying: “The market sustainability and improvement fund (MSIF) and the MSIF workforce fund – backed by nearly £2 billion – include a focus on workforce pay and will allow local authorities to make improvements to adult social care services.’’ However, the Association of Directors of Adult Social Services said the extra resource, while welcome, was insufficient. 

Joint Chief Executive Cathie Williams said: “Extra funding from the government this year to help recruit and retain social care staff has been welcome, but as a result of high levels of inflation and increasing need, this report shows it’s not enough to solve the fundamental problem that we don’t have the resources in adult social care to provide competitive pay and conditions to the 1.5 million people working in care in England, supporting older and disabled people stay independent and do things that matter to them. … And that means it’s difficult to recruit and retain staff, with 152,000 job vacancies in care, over half a million hours of homecare were not able to be delivered to older and disabled people last year due to not having enough staff.” 

Do social workers feel valued by senior management? 

Community Care have polled social workers in light of the number of social work strikes that have taken place this year.  

Issues leading to the strikes have been cited as staffing issues and pay disparities between adult and children services and Social Workers speaking out about feeling ignored and undervalued by employers. One city council, Brighton & Hove, described the strike as a “last resort”, following a two-year campaign for adults’ social workers to be given a 12.5% supplement – as received by their counterparts in children’s services.  

Community Care’s poll received 420 responses with most practitioners (78%) saying that they didn’t feel valued, and only 15% saying they felt “quite” valued and 6% saying they felt “very” valued. 

CASCAIDr Comment: Being undervalued at work is an emotionally draining and demoralising experience that can have profound effects on an individual’s well-being and job satisfaction. They can of course leave a job but it’s a vocation, not a job, for the best in the sector.  
 
The detrimental impact of being undervalued extends beyond the workplace, infiltrating personal relationships and mental well-being, making it a challenging and disheartening situation to endure.  

It cannot be sensible or acceptable for such a large percentage of the people we rely on, to care for, and support, some of the most vulnerable people in society, to be feeling this way.  

The specific aspect WE care about most in CASCAIDr is that we think we get the social workers we deserve, as a society. If we do not value them, they will lose morale; if they see their management making unprincipled decisions, they will no doubt wonder what they studied for and become concerned that being ‘a professional’ is a meaningless title these days.  

That’s why legal literacy, which enables people to stand up and be politely assertive to their senior managers about the centrality of the legal framework, is so very important, to our minds.  

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From Care Home Professional…. 

Care homes warned to tighten overseas recruitment procedures  

A Freedom of Information request to the Home Office has revealed that between 1 January 2021 and 26 October 2023, 94 private care providers in the health and social care sector have had their Skilled Worker Sponsor Licences revoked. 

James Sage, a partner in the health and social care team at RWK Goodman solicitors, said: “While some of these providers may well have breached the rules around sponsor licences unintentionally, the consequences will be far-reaching. Not only will these providers have been forced to dismiss all the overseas workers they were sponsoring, their businesses will have faced fines and considerable reputational damage.” 

Common pitfalls which lead providers to being non-compliant include failing to: report changes to sponsored workers or to the organisation; keep compliant records; conduct right-to-work checks properly and to follow-up checks when visas expire; understand minimum salary requirements and that shift premiums are prohibited; comply with immigration law and extensive compliance duties generally. 

CASCAIDr Comment: We can see that providers are falling foul of the rules around Skilled Worker Sponsor Licences, which are key to enabling providers to recruit from abroad to fill the massive gap in the social care workforce. This is just one side of the equation however: As the article below explains, foreign care workers are, according to Unison, being exploited on a grand scale, neither of these developments bode well for the drive to plug the gaping hole in the workforce! 

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From The Guardian…. 

Foreign care workers invited to UK ‘exploited on grand scale’, says union  

The Home Office extended skilled worker visas to foreign care workers in February 2022 to help fill over 165,000 social care vacancies, which were leaving some of the UK’s most vulnerable people struggling for help. But Unison has said that foreign care staff are being “exploited on a grand scale”.  

Christina McAnea, Unison’s General Secretary, said: “The care system would implode without migrant care staff. Demonising these workers will do nothing to solve the social care crisis…….Overseas care workers have been encouraged to come here to support those most in need, only for some employers to treat them as expendable. Ministers must stop being complicit in allowing this abuse to happen. The government needs to reform immigration rules, not make them more draconian.” 

It is reported that approximately 78,000 people secured visas to come and work in social care in the year to June 2023. The current rules mean that if a worker is made redundant, or their employer closes down, they must find a new sponsoring employer within 60 days or face deportation. [And as we have seen above, employers with the appropriate sponsor licences are reducing].  

Amid reports that the immigration minister, Robert Jenrick, has drawn up options to curb immigration, including banning workers from bringing dependants, or restricting them to one relative, it has been reported that staff are being paid below the national minimum wage and being charged for training costs and administration fees, including for ‘cultural induction’ as part of the recruitment process.  

A government spokesperson said: “We do not tolerate abuse in the labour market and where we identify exploitative practices are being undertaken by sponsors we take action. This can include the revocation of their licence. 

CASCAIDr Comment: James Cleverly announced the Government’s five-point plan to cut immigration on 4 December, pledging to reduce the number of people entering the UK by 300,000 a year. The Tories propose making it harder for foreign workers to bring family members with them and are hiking the minimum earnings needed to secure two key types of visas. 

The reliance on foreign social care workers, and the current worker shortage, seems to have been remiss in the thinking for this proposal as Cleverly says that adult social care workers will no longer automatically be able to bring family dependants with them, suggesting they could be granted entry, but only through their own means e.g. securing a Skilled Worker visa of their own. The rationale for this position was given to be that of the approximately 100,000 care workers who entered the UK in the year ending September 2023, approximately 120,000 dependants came with them. It is reported that only a quarter of them are estimated to be in work, meaning ‘a significant number are drawing on public services rather than helping to grow the economy’. 

Cleverly argued that migration needs to fall to ease ‘pressure’ on social services, yet without the foreign labour, on which the adult social care sector relies, the pressure will increase! This seems to be a most bizarre chicken and egg situation! 

How Labour’s plan for ‘fair pay’ deals looks to solve UK social care crisis 

Underfunded, overstretched sector to become testing ground for battle against low pay but critics say policy is weak and vague 

Labour Leader, Keir Starmer, tells the party conference a personal story when underlining his determination to overhaul social care budgets. He said: ‘’My sister is a care worker. She was a care worker during the pandemic. Fourteen-hour shifts, often overnight. Unimaginable pressure. And the reward? A struggle every week – and I mean every week – just to make ends meet.” He pledged a clear commitment to increase unions’ roles in public life in Labour’s “new deal for working people”, which were negotiated with unions. This includes “fair pay agreements,” to boost pay and conditions for workers who have little bargaining power, and the social care sector is to be the testing ground.  

Part of Labour’s plan is a new state-brokered agreement on social care pay, terms and conditions, which hopes to attract more UK-based staff, and reduce staff turnover and exit from the sector. Wes Streeting, the Shadow Health Secretary, said the policy is central to tackling the social care crisis and the subsequent impacts on the NHS. Yet despite the policy’s importance, consultations with unions and employer groups are yet to be completed, tasks which Labour says will happen if it gets into power. 

Social care employers are concerned about funding any proposed uplifts the policy will bring, with some saying that the 10% rise in the statutory living wage announced by Jeremy Hunt in the Autumn Statement will already strain their finances. 

With many practical questions remaining unanswered, it is unclear how realistic Labour’s proposals are in achieving their aims.  

CASCAIDr Comment: The problem, as we see it, is that the care industry is simply not an attractive career. It is well known that it is underpaid, and more importantly, undervalued, so why would people choose to embark in care as a career?  

Answer: What is needed more than a ‘promise’ to improve pay is REAL investment in the sector. This would include training offers, apprenticeships, a realistic career path and a major drive to improve the public perception and status of the profession.  

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From Social Care Today…. 

Government funding blamed for inadequate care workers pay  

Public bodies are severely underpaying care staff as a result of government funding shortfalls, the Homecare Association has found. 

The Homecare Association, the representative body for homecare providers, have reported that public bodies are paying on average 25-35 percent below the amount needed to pay care workers fairly, and ensure high-quality, sustainable care services. The report says that this increases staff turnover, increases unmet needs, poor quality care, and ultimately reduces the sustainability of services. 

Dr Jane Townson, CEO of the Homecare Association, said ‘‘We have cash-strapped councils and NHS bodies driving down fee rates; driving down wages; driving down quality; fragmenting the hours and the workforce; not paying their bills on time; destabilising local markets; encouraging approaches which risk non-compliance with care, employment, tax, and benefit regulations; and, sometimes, potentially breaching human rights…..Quality care, a strong workforce, and sustainable services cannot be delivered on the cheap…….We urge the government to invest an additional £2.08bn per year in homecare right away to address the Homecare Deficit we have identified. This figure is for existing hours purchased. Much more is required to address unmet need.’’ 

Urgent answers required for new police mental health strategy   

The cross-party health and social care committee asks the health secretary for urgent answers on funding to support the national roll-out of the Right Care Right Person (RCRP) mental health strategy. 

RCRP was introduced to change the way emergency services respond to mental health calls, meaning police will not be automatically the first responders amid widespread concerns among police chiefs that attending mental health calls was putting police resources under strain. It is being rolled out across the UK but with concerns that this is happening regardless of the readiness of health systems, and questions over where the necessary funding, estimated at £260m, will come from. 

Committee Chair Steve Brine said: ‘’I’m encouraged that NHS England is asking all Integrated Care Boards about the challenges they anticipate on providing these services and what resources will be needed. This work cannot happen quickly enough…..It is right that people experiencing a crisis receive the right care from the most appropriate person. However, measures to evaluate the success of this new national model from a health perspective appear to be missing. It’s not enough to know that the changes will save police officer hours, they must also be demonstrably serving the interests of the patients who rely on mental health services in their hour of need.’’ 

Under RCRP, police officers will continue to attend calls where there is an immediate risk to life but will not attend medical calls where a triage assessment determines that a healthcare professional is more appropriate.  

CASCAIDr Comment: The concern here is not just the funding but the skill level of the health and social care professionals who will be responding in lieu of the police. This, and the question of how this will be funded post-implementation, is a case of shutting the stable door after the horse has already bolted and will only add to the existing pressures on services.

From Independent Living…. 

Carers’ Rights 

Carers Rights Day was on 23 November 2023 and aimed to raise awareness of the support available to carers and inform them of their rights, whatever their situation – in the workplace, when dealing with health or social care professionals, or at home. 

In the last decade, the number of people in Britain estimated to be caring for a sick or disabled partner, child or elderly relative, has gone up by at least a million, to 7.6 million and according to research by Carers UK, family carers are saving the NHS and local authorities £530 million a day. 

Analysis by the independent thinktank, The Social Market Foundation shows millions of people giving up their time without recompense, providing 149 million hours of care every week. This is equal to the work of four million full-time care workers. 

This enormous figure represents a combination of factors. A sharp increase in the number of people needing care; a dramatic cut in the money available to local authorities to pay for social care; and an increase in the cost of providing such care. 

One in seven carers juggle work and their caring role and around 600 carers a day have to leave work to go home and manage something to do with their caring role. Some carers have to give up working, and many find that they are struggling with poverty and social isolation, as well as their caring responsibilities.  

Carers UK highlights that anyone who is an unpaid carer is entitled to have a carer’s assessment [under s10 of the Care Act 2014], during which a social worker [or similar] will discuss a person’s caring role, their other commitments e.g. work or other responsibilities, their entitlement to benefits and other state support, and the sustainability of their caring role. This is a right under the Care Act and yet Carers UK say that four out of ten carers don’t know about the support they are entitled to, leading to an estimated £16.6 billion in benefits being unclaimed every year! 

CASCAIDr Comment: In October 2021, our CEO produced several videos to ‘sound-off’ about the catastrophic situation for people whose Care Act rights are simply being disregarded by local authorities, including carers.  

Fast forward two years and it seems like sadly, nothing has changed. You can watch the videos here.  

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From Learning Disability Today…. 

Half of carer support applications rejected by local authorities 

Almost half of applications for carer support across the nation have been rejected by local authorities, according to new research. 

Will Donnelly, Co-Founder at Lottie, who conducted the research, said the figures are “alarming” and that a lack of resources, support and assistance is “exacerbating the caregiving crisis facing our nation.” 

Lottie are calling on the government to address the ‘broken social care system’ and immediately put it at the top of their agenda saying: “It is crucial the challenges faced by unpaid carers each day are addressed and eased – starting with tackling the issue of unequal carer support discrepancies across the UK.” 

Applications for carer support include requests for financial support, local authority commissioned support and signposting to useful information and advice. Amid the cost-of-living crisis, unpaid carers are struggling now more than ever. Even with the additional benefit of receiving Carer’s Allowance, the average unpaid carer is out of pocket by £2,494 per year. 

Adult social care waiting list grows to 470,000 

A learning disability charity (Hft) says it is clear that “current funding and action are not keeping up with demand” after new research has revealed the adult social care waiting list has grown by 8% to 470,000 [across older people and people with physical and/or learning disabilities] with people waiting for care or direct payments to start, or to even have their care needs assessed. 

Councils are facing tough decisions around maintaining care and support services due to financial pressures resulting in concerns that this waiting list will grow even larger! 

By 2024/25, it is expected that cost and demand pressures will have added £15 billion (almost one third) to the cost of delivering council services since 2021/22, at the same time as one third of adult social care leaders being told to cut down spending by £83.7 million.  

Kirsty Matthews, CEO of the learning disability charity Hft said the findings are “highly distressing” and are “indicative of a sector struggling at all levels.” Whilst the adult social care sector is “resilient”, more support is needed and “Providers should not have to shoulder the financial burden of funding cuts and those who need support should not have to fight for it.”.  

She further highlighted that the Autumn Statement could be the ‘’ideal opportunity for the Government to demonstrate that it values the adult social care sector, and those who draw upon it, by investing in a sustainable and thriving future,”.  

CASCAIDr comment: We admire the hope that was placed in the Autumn Statement, but as you will see above, it included no announcements for additional financial support for social care. 

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From The Independent…. 

Elderly South Asian people ‘more likely to live in poor health, poverty and housing’  

Older people from Bangladeshi and Pakistani backgrounds are more than twice as likely to be among the very poorest in society than their white counterparts, a damning report has found. 

The State of Ageing, a new report by the Centre for Ageing Better found that more than a quarter of households headed by someone aged 50 or above from a Bangladeshi (26 per cent) or Pakistani (28 per cent) background are living in poverty compared with less than one in eight (12 per cent) of older white households and the charity warns that this number is set to rise significantly unless action is taken to tackle racial inequalities. 

Dr Carole Easton OBE, Centre for Ageing Better’s Chief Executive said: “Sadly, as our State of Ageing report details, many people from minority ethnic backgrounds suffer substantial inequalities in ageing, including worse housing, higher levels of poverty and worse health. This is a result of disadvantages in education, work and housing experienced across their lives’’. 

Jabeer Butt OBE, chief executive of the Race Equality Foundation, said the report’s analysis showed that the burden of poverty and ill-health falls disproportionately on people from ethnic minority backgrounds.  

He said “action must be taken now to tackle poverty and racial inequality, with improvement in wages and benefits as well as sustained investment in social housing, public transport and provision of health and care, combined with leadership on tackling the scourge of racism. Older people from all communities deserve better,”. 

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From the Local Government Association…. 

The return of the regulator: What adult social care needs to know  

The Care Quality Commission has said councils will start receiving notification of when assessments will take place from December. This is the return of an assessment regime for council social care departments after a gap of more than a decade. 

The LGA commissioned some learning from the five pilot areas to offer advice to other councils and have produced a Top tips document as a useful reference. 

The pilots were run at five councils – Birmingham, Lincolnshire, North Lincolnshire, Nottingham and Suffolk. The assessments were in three parts: evidence gathering; an on-site visit by CQC staff; and a follow up/clarification stage after the fieldwork. 

The pilot areas were asked to submit documents including a self-assessment, a market position statement, complaints documentation, safeguarding policies and procedures, and approaches to communication. Three weeks’ notice was given to the councils to provide this information.  

The pilots had to submit 50 cases to the CQC who asked for reflective logs for ten cases and six were followed up for interviews. People who were interviewed included directors of social care, senior managers, councillors, chairs of the health and wellbeing boards, directors of public health, people, carers, provider staff and, of course, frontline staff.  

In some of the pilot sites more than 100 people were involved in the interviews. 

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From Local Government Chronicle…. 

Warning over time consuming CQC adult social care assurance  

Yet more calls for additional budgetary assurances have come from the Association of Directors of Adult Social Services (ADASS) and the Local Government Association (LGA) who are demanding that the government provide funds to cover the additional workload created by new social care assessments.  

The participants of the first five pilot Care Quality Commission investigations identified a need for more support and funding ahead of a planned national roll-out of the scheme with their directors saying: “the workload is immense and adult social care departments will not have experienced anything like this for a decade”. 

Chairman of the LGA’s community wellbeing board, David Fothergill, said that while councils are “very willing” to participate in this process “the current precarious position of adult social care must be recognised……The added workload these assessments are causing for councils must be addressed and councils should be given appropriate additional funding and support in order to participate in them effectively.” 

ADASS Chief Executive, Cathie Williams, said: “The pilots have shown the assurance process takes up a huge amount of time and energy within local authorities, at a time when social care teams are already under pressure with growing numbers of people needing care and support, budgets under severe strain and high levels of vacancies. To ensure assurance doesn’t take away from support going to people who need social care, the government must provide local authorities with additional funding and resource to carry this out.” 

Of the five local authorities that volunteered their adult social care departments to test the CQC’s assessment framework, method and processes (Birmingham and Nottingham city councils, Lincolnshire and Suffolk County councils, and North Lincolnshire Council) four of them were given a “good” rating for their adult social care while Nottingham was labelled “requires improvement”. 

Social Care Minister, Helen Whatley, told the National Children and Adult Services Conference asked that the assurance process be seen ‘’not as a threat, but as an opportunity, an opportunity to show how well you do what you do and what a difference it makes.” Saying that the CQC reports will “provide colour” and “facts and figures” on how local authorities are providing care better than the “anecdotes”. 

She recognised the financial pressures, saying: “I know some local authorities have been concerned about this and I do know about the wider financial pressures that you are facing but this assurance is really important.” 

CASCAIDr comment: The assurance process for adult social care can only be a good thing if done properly, but CQC has no experience in evaluating public law wrongdoing, given that it is a provider regulator, and a private and voluntary sector business regulator, to boot.  

Assurance CANNOT be detrimental to the services, and ultimately some of the most vulnerable people in society who receive services. It’s all very well and good for DHSC and the Treasury to be provided with ‘more than anecdotes’ but if this is at a cost to the quality of service a cynic might say that there is an underlying agenda here!  

LGA warns nearly one in five councils face section 114  

The Local Government Association (LGA) has warned that almost one in five councils in England are likely to issue a section 114 notice this year or next year. A survey of 114 chief executives and 71 council leaders found that the likelihood of issuing the notice was due to “a lack of funding to keep key services running”. 

The LGA has previously estimated that English councils face a £4bn funding gap over the next two years to “keep services standing”. The LGA highlighted the key factors behind the “crisis” the sector is facing as councils’ core spending power reducing by 27% in real terms from 2010-11 to 2023-24, the impact of the pandemic and rising demand for services. 

Nottingham City Council issued a section 114 notice last week. Its leader David Mellen said that its £23.3m overspend was “nearly all because of adult social care, children’s social care and a rise in homelessness”. He also warned that unless the government does “something serious” many more councils will find themselves in similar situations shortly. 

Over 30 county and unitary leaders have written a joint letter to the Levelling Up Secretary warning that failure to provide additional funding would mean councils are likely to face the prospect of reductions to frontline services, raising council tax to the “maximum permitted” and using reserves, leaving them at “unsustainable levels” to deliver balanced budgets.  

Barry Lewis, finance spokesperson for the County Council’s Network, said: “The majority of the County Councils Network’s member councils will now have no choice but to increase their planned level of service reductions, reduce investment on growth-creating capital projects, and levy higher council tax rises: all of which impact our residents.”  

He added that for some councils “drastic action will not be enough” and that seven in ten councils surveyed were no longer confident they can balance their budget next year. 

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From CASCAIDr…. 

And finally, some CASCAIDr Coups…. 

Fantastic feedback from training sessions for a local authority, delivered as a Care Act Refresher course 

“Very worthwhile! Not sure why we left it so long to commission such training!” 

“Excellent discussion around 3 Cs conversation and advocacy, looking at legal perspective” 

“Challenging and thought provoking for social workers, and has meant they are now quoting the legal frameworks they use for decision making” 

[Ed.: Hope they’re not regretting having commissioned it, then!] 

Perfectly pod-sized information 

“I would like to thank you for the fantastic podcasts. I am an independent advocate, IMCA, Care Act qualified. I’ve been listening in the car on the way to my visits. You have helped me so much; I’m especially challenged at the moment with a transition case and your podcasts have been so informative.” 

Care Act Conversations: Episode 9 – Direct Payment Disarray  

In Care Act Conversations, we provide insights on adult social care law. Our senior management and a consultant expert talk through what should happen and what goes wrong when people need care and support, and how you can uphold your rights.  

In this episode we start our two-part exploration of direct payments by looking at what they are and how they can be used. We talk about some of the issues that arise – including sufficiency of the payment and flexibility – and what the law says, so that you can uphold your rights. 

You can access the latest episode on our site here and on Apple or Spotify.  

CASCAIDr’s ‘Care Act Principles’ Podcast Series!  

These lunchtime sessions every Thursday offer free podcasts about the principles from public law, to do with acting rationally, legally, fairly and compliantly with Human Rights, which underpin the Care Act – and which OUGHT to be part of social work (and increasingly, Health Service) staff’s thinking, in everything they do.  

These sessions take place via Zoom and the link for all sessions is here. 

If you missed the previous sessions:  

  • What it means to act lawfully when delivering Care Act functions  
  • The basic need to follow the Guidance 
  • Distinguishing powers and discretions from duties  
  • Being able to identify the correct decision-maker  
  • Acting rationally (with an evidence basis and not ignoring the evidence basis) 
  • Acting rationally (by not taking leave of one’s senses) 
  • Acting fairly, part one: – full information and participation rights 
  • Acting fairly, part two: – stating or giving reasons  
  • Not negating a council’s discretion by bias, pre-determination or rigid fettering 
  • Not making an error of law about the meaning of the words or duties in the Care Act 
  • Abiding by Human Rights, properly understood, part one: Articles 3 and 8 

– The recordings can be accessed via our YouTube channel here. 

Coming up 7th December: 

  • Abiding by Human Rights, properly understood, part two: Articles 5 and 9 (DoLS caselaw and MR v LBX)  

Followed by: 

  • 14th Dec – Not discriminating unlawfully (Norfolk) – looking at how Article 14 discrimination can make a decision unlawful, in a public law case.  
  • 21st Dec – Not delaying unconscionably (Sutton, and DMA) – looking at whether the Courts would be likely to decide that a duty really IS a duty, in difficult times. 

The link for all sessions is here. 

If you are not yet familiar with our CASCAIDr’s Principles Podcast Series here are some details – 

When: Half an hour, every Thursday lunchtime, 21st Sept through to 21st Dec 1.15pm-1.45pm. 

Who from: Our CEO Belinda Schwehr 

What: An explanation in ordinary English about how we can’t afford to forget the legal principles that shape and inform adults’ social workers’ approaches to who gets what, by way of care and support. The principles are clear, and the Courts and Ombudsman need to follow the law by virtue of their own role, duties and status. 

How: Belinda’s going to be delivering this message through the content of all the landmark cases, so that we don’t lose sight of where these principles come from.  

Cost: Absolutely free! We believe in broadening access to essential knowledge – so any fee presents a barrier to those who need it most. 

Recording links will be re-posted for each session, on the webpage which takes you to our YouTube channel here.  

For people not running zoom accounts, the recording links won’t need you to download zoom, but they will just take a little longer to get to you. 
 
Your QUESTIONS can be posted in Chat, during the sessions. If you can’t be IN the session, send questions in advance about the specific topic for the relevant date, above, to info@cascaidr.org.uk, please. 

Of course, we’d welcome donations – via our website – but most of all, we want to spread the word as far and wide as possible, at a very difficult time for adult social care – and care LAW!