CASCAIDr Care Act Round-Up

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

21.12.23

In this edition: 

CASCAIDr Coups

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From the Local Government Ombudsman….

Updates on adult social care complaints decisions

Full bulletins can be found here:

  1. 07/12/23 – New adult social care complaint decisions
  2. 14/12/23 – New adult social care complaint decisions

Complaints of interest….

Hampshire County Council (22 015 099)

Summary: Mr F complained about delays in arrangements to discharge his daughter, Miss D, from hospital, after she was detained under the Mental Health Act 1983 (MHA). He felt that there had been unnecessary and unreasonable delays by the Council and the ICB) in handling his daughter’s discharge plans and that failure to share information with a potential accommodation provider about the possible fire risk posed by Miss D had further delayed her discharge and led to unnecessary distress, avoidable costs – and was harmful to her mental health.

In August 2021, Miss D was living in a supported living placement and had 24/7 care and support from a specialist learning disability provider. She was admitted to hospital under s2 MHA due to a mental health crisis and subsequently detained under s3 for around seven months. When the s3 detention ended, Miss D remained in hospital under a Deprivation of Liberty Safeguards (DoLS) authorisation, as the Council and ICB were still trying to find a suitable community placement to which she could be discharged.

The Court of Protection (CoP) had been considering Miss D’s capacity to make specific decisions, her best interests, DoLS and arrangements for her care and support in the community. She was assessed as lacking capacity to make decisions about her care, support and accommodation arrangements, which meant the CoP had to authorise the framework in which her care and support needs would be met after discharge from hospital.

The Council and ICB contacted a number of settings and care providers about Miss D, including the landlord of the property she rented from and with whom she had had a tenancy agreement when she went into hospital in August 2021 (Landlord C).

In December 2021, the Council and ICB identified a suitable care provider for Miss D, and the care provider started doing in-reach work with Miss D in hospital.

At a discharge planning meeting in September, Landlord C asked to see Miss D’s care plans so it could support the proposed tenancy and agree a moving-in date. The Council said the care plans would need to be agreed and sent to the CoP before they could be shared with Landlord C.

In early November 2022, Landlord C said it could not go ahead with Miss D’s planned tenancy because it had become aware of previous incidents where she had started fires, saying it did not have the insurance to cover her due to this.

The Council and the ICB then started a new ‘placement’ search, but there was no firm discharge date set at the time of the LGSCO investigation. Miss D was still in hospital and had moved to the Psychiatric Intensive Care Unit (PICU) in April 2023, as staff could not manage her needs on the main ward.

The LGSCO found that the Council did not share the information about the possible fire risk with the potential landlord, which was fault which was likely to have caused some avoidable delay to Miss D’s discharge from hospital, causing her and her father frustration and distress, and leading to her incurring unnecessary costs. Other than the specific issue of fire risk, the LGSCO did not find fault by the Council or the ICB in their plans to arrange Miss D’s discharge from hospital. The Council agreed to provide Miss D and Mr F with a financial remedy and to take action to prevent similar problems happening in future, and the LGSCO was satisfied that these actions represented a suitable and proportionate remedy for Miss D and Mr F.

CASCAIDr Comment: We note that, in the LGSCO’s report, the Council said that the care plans would need to be agreed and sent to the CoP before they could be shared with Landlord C, and this was given as a reason as to why Landlord C was not made aware of the fire-setting. We would suggest that as the LANDLORD and not the care provider, Landlord C didn’t need to see the care plan as this is personal information and would fall under the GDPR. The Council would not be allowed to disclose this information without the consent of the individual, if the individual had capacity (although that point would have been moot in this case). No doubt her history was disclosed to the care provider, which is lawful and essential, but we think that it is likely that the care provider could have told the landlord. We feel the LGSCO may have erred in its legal analysis of this point because there is case law on the difference between disclosing someone’s history to a landlord as opposed to a a care provider – the irony that the father wanted the disclosure to be made sooner is not lost on us.

It is also notable that whilst the risk of fire-setting was the issue which led to this matter, there was no mention of risk assessment nor risk mitigation measures – a risk management plan arguably could and should have been shared with Landlord C, although the terms of the landlord’s insurance may have meant this would have made no material difference as regards the tenancy in question.

What is also interesting, is that the report states that Miss D rented a property from Landlord C before she was admitted to hospital, and so it might be thought rather puzzling that they were not aware of Miss D’s history of fire-setting!

Read the full CASCAIDr insight report on this complaint here. 

Darlington Borough Council (22 010 282)

Summary: Ms X complained to the Ombudsman that the Council billed her father, Mr Y, for care without any prior warning. She said that his care was only in place due to a safeguarding concern raised by the Council and that it had indicated that it would not charge for this service.

Mr Y was admitted to hospital in December 2021. He was an in-patient for a week, after which he was discharged to a care home, Provider A, for a six-week period. [It was called respite, but it was also said to be to get his strength up, from which we infer it was possibly re-ablement and free, regardless of whether it was NHS funded or council funded.] This was due to end at the end of January 2022.

Mr Y’s placement was [officially] extended by two weeks but continued until the end of February when the Council then completed a Care Act Assessment [under s9] and a financial assessment [under s14]. Following this assessment, the Council informed Ms X that it had extended Mr Y’s placement at Provider A until mid-March 2022. It also informed Ms X that it understood Mr Y to have savings over the financial threshold [£23,250], and as such he would be required to fund his own care.

The Council wrote to Ms X in May 2022 with an invoice of approximately £2,300 to cover Mr Y’s care between February and March 2022. Ms X complained to the Council, saying she had not been informed that this period of time would be chargeable. The Council undertook an investigation, upholding part of Ms X’s complaint, saying that it had informed Ms X that Mr Y would have to pay but agreed that the wording was not clear [we presume here that the Council were saying they had done this in writing], and it further acknowledged that there were delays in completing the financial assessment.

During its investigation, the LGSCO found no evidence that the Council held any discussion with Ms X about fees prior to the early March discussions.  But the discussion that was held in March about Mr Y’s financial obligation towards his care was found to be unclear and confusing, anyway. The Council did not provide Ms X with accurate and clear information about how care fees worked, the expectation to pay, or how this was calculated. This was fault.

Despite this, the LGSCO did not find that this fault caused Mr Y to be liable for more in care fees than he would have otherwise been charged, had clear information been provided, and therefore it did not recommend that the fees were waived.

The reporter said this: ‘It is possible that, had Ms X and the family known Mr Y was being charged for care for all that time, they may have reconsidered his care and how to fund it. However, on balance I cannot say that the Council’s shortcomings have caused Mr Y to be liable for more in care fees than it would have been had the Council given clear charging information.’

CASCAIDr Comment: Advice and information duties when charging for adult social care are integral to upholding the Care Act but in fact here the Investigator did not think it made any difference to the amount the service user was liable for.

We are not even sure that that is the case, we have to say, because of the weakness of the report itself. One can’t tell whether the first extension was a free one, i.e., simply because it was a step-down bed placement or free re-ablement under the ordinary rules. But there’s also no mention of the specific Covid funding rules that were in place for hospital discharge at the time. A government fund of £490m was allocated for hospital discharge between October 21 and March 2022 to cover up to 4 weeks of funded care until 31 March 2022 – and that was the period in play in this report.

All in all, this is a report which leaves us wondering whether Mx X in acting for Mr Y has in fact suffered injustice that has been overlooked by the Ombudsman’s own service.

The Care Act Guidance states that one of the principles of the approach to charging for care and support is that it should be: “clear and transparent, so people know what they will be charged” [paragraph 8.2].

The Care Act’s intention was to make it easier for the public to understand how adult social care works and why things happen in a particular way, as well as to give greater control and influence to those in need of support. That was the intention of the Act, but the reality is that it has been marked by under-funding, inconsistent implementation, and slow progress toward achieving seamless integration, even eight years on!

Read the full CASCAIDr insight report on this complaint here. 

Sandwell Metropolitan Borough Council (22 010 785)

Summary: Ms X complained that the Council failed to offer a suitable nursing home placement for her mother’s cultural needs. Mrs Z is from a Caribbean culture and required adherence to a specific regime including for her skin and hair, as well as culturally appropriate meals. Ms X complained that this was not adhered to and caused her mother distress and suffering.

Mrs Z was moved to the Home suggested [and commissioned] by the Council in September 2020. Ms X visited the Home prior to her mother moving in and was told it would be able to provide Caribbean meals, and that it would attend to Mrs Z’s cultural personal care needs, i.e. hair treatments and moisturising her skin daily.

The Home held a review of Mrs Z’s care and support plan in December 2020. It noted that Mrs Z’s family said that her cultural needs were not being met, that her hair was not being maintained in line with her wishes and that she had developed a hair condition and hair loss. It was agreed that care staff would moisturise Mrs Z’s hair using products provided by the family and that her daughters would braid her hair.

In March 2021 the Home completed a risk assessment and set up a care plan for the Black, Asian and Minority Ethnic (BAME) community which staff would have to follow. This said for Mrs Z that her hair was to be combed out, oiled, and plaited weekly.

In July 2021, Mrs Z’s care plan was reviewed again which highlighted that she was having her hair treatments regularly. Ms X queried whether the Home would refund her the money she had spent on hair products for her mother. The Home responded to Ms X’s queries about the hair products the following month saying: ‘’I think we should push back on this; we were never a culturally appropriate home. We have paid more than enough for this resident, anything else the family have to pay’’.

The Home terminated Mrs Z’s placement in April 2022. It said it could not meet the family’s expectations of care for Mrs Z including the level of cultural care. She was placed in a nursing home outside of the Council’s area as the Council could not identify a care home in the area which could meet Mrs Z’s cultural needs.

The LGSCO found during its enquiries that whilst Mrs Z’s care plan did specify moisturising her skin, it did not explicitly say how her other cultural needs should be met. This was fault and not in line with Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 [the care and treatment of service users must be appropriate, meet their needs and reflect their preferences].

In the Home’s response of August 2021, it said it was ‘never a culturally appropriate home’. The LGSCO felt that, on the balance of probabilities, if the Council had properly identified Mrs Z’s cultural needs when seeking a new placement, the Nursing Home would not have offered Mrs Z a placement, or at the very least realised earlier that it could not meet her needs. This could have avoided the upheaval and distress of an additional move for Mrs Z. So this was poor care planning, independently of poor provision.

Finally, the LGSCO was concerned that after leaving the Nursing Home, Mrs Z was placed outside of the Council’s area as no homes within the area could meet her cultural needs. It raised concerns about the market shaping duty [Care Act s5(1): ‘’A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market’’.]

CASCAIDr Comment: The experience of individuals from BAME communities in care homes is complex and multi-faceted. BAME individuals can often face challenges that can significantly impact their experiences in care settings if their unique needs are not understood or met through reasonable adjustments. This is understood and legislated for under the Equality Act 2010, as well as under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 which set out the fundamental standards those registered to provide care services must achieve.

It is disappointing that the LGSCO failed to make more of the Home’s statement that they were ‘never a culturally appropriate home’. What does that even mean? According to CQC guidance published in May 2021, ‘’culturally appropriate care (also called ‘culturally competent care’) describes care that is sensitive to people’s cultural identity or heritage. It means being alert and responsive to beliefs or conventions that might be determined by cultural heritage’’. With that in mind, how can any home make that statement? And furthermore, how can this be acceptable to the commissioners of the care? We suspect that that sort of mismatch of viewpoints could well have come out of a tendering process which set a particular price without stating what the reality would need to mean for particular BAME individuals.

Read the full CASCAIDr insight report on this complaint here. 

West Sussex Council (23 000 078)

Summary: Miss X complained to the Ombudsman that the Council failed to provide a Care Act and occupational therapy assessment in a reasonable time scale, satisfying itself with a ‘wellbeing conversation’ leaving Miss X with incurred private costs.

Miss X previously had a care package funded by direct payments but terminated it in early 2021 due to dissatisfaction. In December 2022, she contacted West Sussex County Council, mentioning that she was struggling and that her needs had increased, according to the Council’s records. She asked the Council to look at getting support in place. During one of the calls, an officer considered that Miss X had referred to harming herself, but Miss X disputed that she said that.

The Council initiated a well-being conversation, considering low-level preventive services as an avenue for Miss X to manage and referred her for an occupational therapy assessment. The conversation was later amended into a Care Act assessment in March 2023, identifying eligible needs. Miss X complained about the lack of a care package, welfare concerns raised, and intrusive questioning. The Council responded to Miss X in April 2023, citing a duty to explore unfunded community provisions first, to address safeguarding concerns and to ask sensitive questions when completing assessments.

A social worker, in May 2023, recommended 9 hours of care per week. The care package started in July 2023, delayed due to Miss X’s other commitments. An occupational therapy assessment in August 2023 found no need for aids or adaptations.

The Council couldn’t explain the absence of a Care Act assessment in December 2022 to the Ombudsman, stating the wellbeing conversation aligned with Care Act principles, focusing on preventive measures.

As a result, the LGO was not satisfied that the Council properly considered whether it should carry out a Care Act assessment at that time. The Council was at fault for delaying the Care Act and occupational therapy assessments for Miss X under sections 9 and 10. The LGO could not determine whether the Council was at fault for raising a safeguarding concern. The Council has agreed to apologise to Miss X for the distress and uncertainty caused by the delay in carrying out a Care Act assessment, arranging a care package for her and delay in carrying out an occupational therapy assessment. It also agreed to make a symbolic payment of £200 to acknowledge the distress and uncertainty caused as well as reimburse the cost of Miss X’s privately commissioned care for the period of five months minus the client contribution Miss X would have paid.

CASCAIDr Comment: The Council provided only a ‘well-being conversation’ and looked into only unfunded community provisions when asked for an assessment by Miss X which contributed to the delay in her receiving that assessment. Considering low-level preventative services should not have precluded the Council from carrying out a Care Act assessment for an individual with an appearance of care and support needs.

The report treats the ‘well-being conversation’ as having been treated as if it amounted to an actual Care Act assessment which is inconsistent with legal principles and case law.

The ‘punishment’ for failing to do the duty under s.9 of the Act, if this user had gone to court, would have been restitution – a financial remedy for breach of the statutory duty that had led to privately incurred unnecessary expense.

Councils must carry out an assessment for any adult with an appearance of need for care and support under section 9. Section 2 also requires councils to provide or arrange services, facilities or other resources which it considers will actively promote well-being and independence. They should also be aware of rights to assessments within a reasonable timescale and consistent clear/transparent communication from local authorities explaining their reasoning for finding eligible needs.

Read the full CASCAIDr insight report on this complaint here. 

London Borough of Bromley (23-000-369)

Summary: Mr X complained to the Ombudsman that the Council failed properly to conduct the care and support needs assessment for his mother, Mrs Y, and failed properly to complete two carers’ assessments.

Mrs Y lived with dementia, Carers 1 and 2 were living with and caring for her. A care needs assessment was carried out in May 2021, which found Mrs Y eligible for care and support, but a care plan was not drawn up.

Following this assessment, Mrs Y’s family requested carers’ assessments for Carers 1 and 2. They requested the assessment be done in person rather than through forms as they were unable to fill out the forms and separate from each other.

In January 2022, the Council carried out a combined assessment of Mrs Y’s needs and of the needs of Carers 1 and 2. It was found that Mrs Y was not eligible for care and support, with one reason being that the family could pay for more existing respite, and found that the carers were not eligible for support as they failed correctly to fill out the forms.

Mr X formally complained to the Council in December 2022 that the assessments were not carried out properly and were unreasonably delayed. The Council responded in March 2023 acknowledging its failings and offering three new separate assessments. Mr X alleged in his complaint to the Ombudsman that he accepted the offer of new assessments, but the Council failed to complete them.

Council was at fault for not drawing up a care plan following the care needs assessment in May 2021, and was at fault for closing the case without conducting carers’ assessments. Council was at fault in reaching a different decision with no explanation in the January 2022 needs assessment. Council was at fault for carrying out a combined assessment of Mrs Y and Carers 1 and 2 without their agreement. Council was at fault for not using appropriate methods to carry out the carers’ assessments.

In addition, Council was at fault for not responding to Mr X’s complaint within 20 working days, in accordance with its complaints process.

CASCAIDr Comment: Councils are under a clear statutory duty to make a care plan following a finding of eligibility; they are not entitled to ignore this duty just because a person may be capable of arranging and paying for their own care.

Under the Care Act, assessments of care needs and of carers’ needs must be person-centred and must involve the views of the relevant person. Councils may not combine two assessments without the consent of both adults being assessed. Although the Ombudsman investigator suggested this may be possible without consent if the Council provides a good reason, there is no basis of law for this assertion.

Read the full CASCAIDr insight report on this complaint here. 

Bournemouth, Christchurch and Poole Council (20 004 813)

Summary: Mr X complained that the Council incorrectly invoiced him for care costs. He says he did not ask for home care, and when he asked about payment the Council told him not to worry about it. He said he asked the Council to reduce the number of daily carers’ visits because they could not complete care tasks in three out of four care visits, but the Council would not agree to it. He says he was surprised and distressed to receive a large bill for care he did not ask for.

In October 2019, a social worker met Mr and Mrs X in hospital, where Mr X was, following a fall, and produced a care plan outlining the care to be provided upon discharge and the financial contribution to be made. This outlined four daily visits lasting 30 minutes from two carers. The care plan indicated that Mr X would receive assistance with transfers from bed to chair/chair to bed using a hoist and sling, which needed three people, so it included Mrs X. This began that same month. The Council’s financial assessment assessed him as over the capital limit [£23, 250] so he was responsible for the full cost of his care.

In late December, Mr X received the first care invoice [we do not know the reason for the delay].  In January 2020, the Council was again asked to reduce the care by Mr and Mrs X because the carers could not provide the care needed due an issue with the hoist and because of the cost being too high. They asked for one visit a day and not four, to which the Council agreed.

The next day, the Council reviewed Mr X’s care and support plan. It indicated that Mr and Mrs X paid for a service that was not needed as Mrs X provided the majority of care after the first care visit.  A few days later, carers began providing the new regime of care once a day, as requested. Shortly after, Mr X complained to the Council as he was told that a care package was needed which he neither wanted nor often did not need.  He said every time he or Mrs X asked about care costs, he was told not to worry.

According to records, the hospital social worker carried out an assessment of Mr X and that he was “in agreement to have support on discharge” and that he would “require a package of care x4 a day double up on discharge. Wife is in agreement to support.” There was no evidence that the Council told Mr X he had to have this care package; the LGSCO did not agree that Mr X had not asked for the package of care. The LGSCO found that Mr X could have declined the package of care at any time as he did when initially approached. Therefore, the Council was not found at fault.

Mr X complained that the Council incorrectly invoiced him for care costs and that the Council did not tell him how much he would be expected to pay towards his care costs. The records show that the Council discussed Mr X’s finances with Mr and Mrs X but not the contribution to his care costs. The Council accepted that it did not have any signed documents informing Mr X he would have to contribute. The Council failed to have proper records about what was discussed, or that charging was explained to Mr and Mrs X, in line with the guidance. This fault caused Mr X uncertainty about what he would be expected to contribute, which was injustice.

Mr X complained that when he asked the Council to reduce the number of daily carers’ visits the Council did not agree to do this. The care package could have been reduced in December when it was requested. LGSCO enquiries identified that it was in fact reduced a month later, in January, after it was satisfied that Mr X understood the risk of reducing his care package.

This fault caused injustice to Mr X as he was charged for a month’s care that was neither wanted nor needed due to the failure to act.  In this period, there were 105 care visits. Carers provided care on eight of these 105 visits. For the other 97, Mr X told carers they were not needed. They provided either minimal care on these occasions or, more often, none at all. This is evidence that Mr X did not need or want this amount of care, but he was still being charged for it, as was the Council.

CASCAIDr Comment: The Care Act 2014 says that it is a local authority’s duty to promote an individual’s wellbeing. ‘Wellbeing’ includes a person’s control over their everyday life. As a full cost payer Mr X was entitled, under s18(3) Care Act, to ask the LA to arrange his care albeit he would need to pay full cost. However, if he had arranged the care himself it is inconceivable that he would have ended up being visited 4 times a day for no good reason. How failing to take notice of his remonstrations was promoting his wellbeing, we can only imagine.

The continuation of the care in this case seemed impractical, if not perverse, as it had already been deemed that care as planned, could not be provided, due to the inappropriateness of the equipment, i.e. the sling.  Therefore, the supposed discussion that was held with the Care Provider and OT should have highlighted this, identified the difficulties, and subsequently led to a change in the level of care provision and a revision of the plan under s27.

Read the full CASCAIDr insight report on this complaint here. 

Ombudsman publishes Annual Report and Accounts

The Local Government and Social Care Ombudsman has laid its Annual Report and Accounts before Parliament, for the period April 2022 – March 2023.

In 2022-23, the Local Government and Social Care Ombudsman dealt with 16,963 cases. Of the 4,301 complaints in which it carried out a detailed investigation, the Ombudsman upheld 74% (3,203 in number). This compares to 66% (2,825 in number) of complaints upheld by the Ombudsman in the same period from 2021 – 2022. The Ombudsman’s investigations saw councils and care providers agree to make 2,578 service improvement recommendations – the highest number ever recorded. In addition to putting things right for people that have complained, service improvements make things better for everybody using services. They typically comprise actions like reviewing policies and procedures, improving public information, and training staff.

Chief Executive and Accounting Officer, Nigel Ellis, said: “I am pleased to report that despite the difficult environment we worked in, our investigations improved services for many more people than before, providing even better value for the public purse. We also completed more than half of our cases within 20 working days. This is a fantastic achievement because we know how important it is for people to have certainty as soon as possible on whether we will look into their concerns in more detail. Yet we achieved these results while having to subsume rising costs within a static operating budget. This saw us introduce a recruitment freeze leading to a 10% reduction in headcount within the year.”

CASCAIDr Comment: We have to say that we think the service has only managed those achievements with a corresponding reduction in quality and consistency, given the analysis of weaknesses we have provided in this publication over the past year.

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Legislation & Caselaw….

R (On the Application of Saint Sepulchre) v Royal Borough of Kensington & Chelsea [2023] EWHC 2913 (Admin)

Summary: The claimant, a 51-year-old man with severe physical and mental health conditions, sought judicial review of Kensington and Chelsea’s Housing Officers’ decision, which had rejected his request for accommodation during the review of an earlier decision that deemed him not homeless under the Housing Act 1996.

The Housing Review and Scrutiny Officer re-evaluated the original decision, considering additional information, including a Care Act assessment and pre-action protocol correspondence, revealing potential health decline.

Mr Saint Sepulchre had held a social housing tenancy in Truro since January, 2016, where he said he had been assaulted by neighbours, leading to multiple housing applications to move away, with the most recent rejection in 2022. Alleged assaults, including being pulled out of his wheelchair, prompted his return to London and his making homelessness applications there after an acquaintance drove him to London. Concerns about police corruption in Truro and distrust of the local authority surfaced, along with claims of broken agreements and eviction attempts. The Council mentioned a suspended possession order for the Truro address with terms for rent arrears repayment. He highlighted ongoing issues with the local authority, casting some doubt on the stability of his housing situation.

The London Council’s own Care Act assessment in March 2023 revealed a complex psychiatric history, diagnosis of paranoid schizophrenia and vertigo, and identified risks to mental health. Eligible social care needs were recognised by the Council’s ASC team, and Mr Saint Sepulchre was allocated a social worker for support.

The Council, through a decision under section 184 of the Housing Act 1996, determined that Mr Saint Sepulchre was not homeless, given his accommodation at the Truro address. A review was requested, along with a plea for continued accommodation during the review, citing Mr Saint Sepulchre’s vulnerability and safety concerns at the Truro address. The decision, while acknowledging Mr Saint Sepulchre’s vulnerability, emphasised that his landlord had advised that there were no reports or concerns raised in relation to Mr. Saint Sepulchre’s safety that would lead them to believe he was unable to reside at the address. It also said his support needs and being linked to a local social worker could not constitute exceptional circumstances as this support could be provided in Cornwall.

The impact of insufficient or flawed inquiries in this case was central to the Claimant’s contentions. The primary grievance was the failure to communicate results to Mr Saint Sepulchre through his solicitors, a crucial step considering his vulnerability and complex health conditions. Deficient inquiries related to the merits of the case, as acknowledged even by the Council, emphasising the need for a balanced judgment. The inquiry deficiencies spanned various areas, and the Council’s reliance on the Truro landlord’s information lacked balance, and there was insufficient inquiry into the wheelchair dependency and care assurances in Cornwall.

In the context of the second and third considerations outlined in R v Camden LBC ex parte Mohammed (1998) 30 HLR 315 (Admin), the Housing Officer’s link between Mr Saint Sepulchre’s collapse and the Decision became a relevant matter affecting the view that he would not suffer harm. The Housing Officer’s reaffirmation of the Decision lacked adjustment to information from the Care Act assessment.

In conclusion, due to the unfairness resulting from insufficient inquiries and poorly reasoned consideration of new information, the judge in effect found that no reasonable authority could have treated the situation as not constituting ‘exceptional circumstances’. The Decision and subsequent review decision not to provide interim accommodation were deemed unlawful, leading to the quashing of these decisions. A mandatory order required the Council to continue providing suitable accommodation to Mr Saint Sepulchre pending the completion of the review of the earlier decision under section 184 of the Housing Act 1996.

CASCAIDr Comment: It is hoped that housing and social care lawyers will see the critical link here between the application as ‘homeless’ and the relevance of social services professional staff’s proper assessments of those presenting for immediate ASC assessment – for the housing officer’s decision.

Read the full CASCAIDr insight report on this case here. 

GH, Re (Mastectomy: Best Interests) [2023] EWCOP 50

Summary: This case concerned GH, a 52-year-old woman with a diagnosis of schizoaffective disorder. GH was diagnosed with breast cancer in March 2023; however, due to delusions relating to her mental health she believed that the cancer diagnosis was part of a government cover-up to avoid paying her millions of pounds of compensation owed to her, and at other times that she had been subject to ‘black magic’ as a cause of the lump in her breast.

Sandwell and West Birmingham Hospitals NHS Trust (the Trust), who were managing GH’s cancer treatment, applied to the Court of Protection for a declaration that GH lacked capacity to make decisions about cancer treatment, and an order which would allow for care and treatment to be administered in accordance with the Trust’s care plan, namely a right mastectomy and axillary node clearance, along with the necessary sedation and anaesthetic.

Following her diagnosis of breast cancer GH was advised of her treatment options and prognosis. She was informed that without treatment the disease would progress and the implications of this, but she refused treatment. An MDT meeting agreed that due to her refusal to engage with medical professionals, and her delusional thoughts about her diagnosis, that a formal mental capacity assessment should be undertaken to ascertain whether GH had capacity to make decisions about her treatment. This was completed on 30 June 2023 by representatives from the breast cancer team and the mental health trust.

During the assessment, GH expressed her view that the lump in her breast was due to ‘black magic’ and she accused her family, a neighbour and a BBC presenter. She declined a breast examination and any treatment for her cancer. The outcome of the assessment was that GH lacked capacity to make decisions about her treatment due to her ongoing psychosis.

On 6 September 2023, GH’s capacity to make decisions about her care and treatment was assessed again, and again this was done jointly between a representative from mental health services and the surgical team. This assessment agreed with the previous capacity assessment that GH did not have capacity to make decisions about her breast cancer treatment due to her ongoing psychosis. The Consultant Psychiatrist went further to say that she thought it unlikely that GH would regain capacity in relation to the decision in the foreseeable future.

In seeking to make a best interests decision, the risks and benefits of the surgery were considered. There are specific risks of breast surgery including seroma (tissue fluid collection), haematoma, numbness, pain, skin necrosis, shoulder stiffness, lymphoedema (swelling of the arm or hand), arm weakness caused by nerve or blood vessel damage, and psychological harm caused by loss of the breast tissue.

In relation to the psychological harm, GH’s Consultant Psychiatrist said: “If GH undergoes surgery without her agreement, it is likely that she will experience distress and worsening of her delusional ideation post-surgery. She will be supported by the staff from the Mental Health Ward where she is in the Acute Hospital… we will request our psychology team to review and support GH making sense of the situation…. She will undergo sessions with a psychologist talking through coping mechanisms … There is a full care plan in place…”

She went on to say that if GH did not undergo surgery this would impact her physical health which:

“could impact on her mental health as she may become paranoid about why she is becoming unwell and this could be blamed on others around her, resulting in worsening mental health.”

The Judge was very clear in the decision being brought before the Court being in relation to GH’s capacity to make a decision about her cancer treatment, and not being swayed or influenced by any desire to achieve whatever might be considered to be in her best interests, as if capacity did not matter. He was satisfied that GH’s incapacity to make decisions about her cancer treatment had remained consistent for some time and was unlikely to change. He was further satisfied that all practicable steps had been taken to help GH make this decision.

It was GH’s delusional beliefs which prevented her from understanding and therefore using and weighing the relevant information presented to her, that she has breast cancer. It was noted that on some occasions she accepted she had breast cancer, although she cited the cause of this to be ‘black magic’ or ‘witchcraft’. Most of the time she denied having cancer, suggesting that this was a ‘cover-up’ to prevent her being compensated by the government.  The Judge agreed that this was due to her schizoaffective disorder.

GH had not made any advance decisions or appointed an attorney and therefore the Court was being asked under ss 16 and 17 MCA to ‘[make] an order, make the decision or decisions on P’s behalf in relation to a matter or matters concerning P’s personal welfare, including giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.‘

The Judge was satisfied with the medical evidence presented to him, that if GH did not undergo breast surgery, she would experience deterioration in health and wellbeing and that her life experience would be significantly reduced. He also considered that her mental health would be impacted as she suffered physical ill-health that she would not understand. The risk-benefit analysis for GH’s physical health and life expectancy, weighed very heavily in favour of surgery being performed.

It was not an easy decision to make due to the nature of the surgery and GH’s opposition to it.

But the Judge balanced this with the expert evidence, and support for the Trust’s proposed treatment plan from both GH’s family and the IMCA: “It appears to me that the benefits of treatment would outweigh the burdens … and that there is therefore a strong argument to make to the court that it is in GH’s best interests to undergo surgery and associated treatment for the breast cancer. I am therefore also fully in support of an urgent application being made to the Court of Protection in respect of this matter.”

CASCAIDr Comment: Whilst in this case, GH had been consistent that it was her wish NOT to undergo any treatment, it was agreed that she lacked capacity to understand her condition and therefore any decision by the Judge to align with her wishes would mean, as the expert medical evidence attested, significant physical and mental health implications, and a likely avoidable or premature death.

In Somerset NHS Foundation Trust v Amira [2023] EWCOP 25 [CASCAIDr’s write-up of this case can be found here], the judge referenced ‘…[T]he strong presumption that it is in a person’s best interests to stay alive, and that therefore it is not normally in someone’s best interests to engage in risky conduct that imperils life’’. In this case the ‘risky conduct’ would be to not proceed with treatment.

The Trust and the mental health trust evidenced strong working relationships in the presentation of this case and therefore it seems likely that they would continue to work together post-surgery to manage the impacts on GH, significantly the risk of her increased paranoia and disengagement with health professionals, although given the consideration paid to the importance of this in the law report, it would have been nice to have seen more explicit direction given.

Read the full CASCAIDr insight report on this case here. 

WNA v NDP [2023] EWHC 2970 (KB) (22 November 2023)

This was a private law case about damages due to the Claimant who was seriously injured as a result of a road accident and will therefore require care for the rest of her life.

The underlying issue was that of the well-established principle of avoiding “double recovery”, whereby a claimant cannot claim for the same loss twice. In this case, the Claimant could not claim the costs of her care from both the tortfeasor and the State. However, she could seek state funding if and when the Periodical Payment (PP) paid to cover the costs were to be used up, in any given year.

The issue at hand was whether the Claimant would be able to use any surplus she may have from her PP in any given year as she saw fit or, as the Defendant contended, it was instead required to be set aside and used in any future year(s) where there was a shortfall.

This case gives a good overview of the extant case law as it pertains to double recovery, including:

The judgment in this case was that the PPs are to be treated solely as damages relating to care (and case management) during the relevant year for which those services are provided. If the money is not wholly spent to meet the cost of care (and case management) provided during that year, there is no obligation to accumulate the surplus to pay for care (and case management) in subsequent years.

The Judge thought this was in keeping with the ethos of a PPO, namely that the money paid to the Claimant is to be used to provide care (and case management) for the year in respect of which the annual PP is made.

It therefore also followed that in respect of any surplus at the end of any particular year, the Claimant is at liberty to deal with it as she sees fit: Wells v Wells [1999] 1 AC 345 (HL) per Lord Clyde at p394H citing Lord Fraser in Cookson v Knowles [1979] AC 556, 577D: “It is for the plaintiff to decide how the award is to be applied. Whether he is proposing to invest it, or spend it, or more particularly, exactly how he is going to invest it or spend it does not affect the calculation of the award.”

CASCAIDr Comment: This recent case gives an excellent overview of the principle of double recovery and the up-to-date case law which shows how it has been applied in a range of contexts.

The judgment is perhaps sensible for being consistent with the idea of compensation for wrongs sounding in private law. That is, that a victim of negligence should be put back in the position that s/he would have been in had the wrong not happened, which will involve spending what it takes to achieve normalisation of wellbeing, not merely an adequate sum that might be defensible as the standard to be met by a social services council – which merely has to reduce the impact of the need on wellbeing caused by the deficit in achieving daily living domains, to something less than ‘significant’.

Read the full CASCAIDr insight report on this case here. 

Data Protection and Digital Information Bill

This Bill is intended to update and simplify the UK’s data protection framework with a view to reducing burdens on organisations while maintaining high data protection standards.

The Data Protection and Digital Information Bill has completed its passage through the House of Commons and had its second reading in the House of Lords on 19 December 2023. The Bill contains numerous provisions intended to improve data protection, but its relevance to Adult Social Care comes in the for of some controversial amendments introduced at the report stage. Amendments NC34 and NS1 create new powers to force banks to monitor all bank accounts to find welfare recipients and people linked to those payments, and report anyone who triggers potential fraud indicators (such as frequent travel or savings over a certain amount) to the Department for Work and Pensions.

The House of Lords briefing paper dated 13th December 2023 referenced concerns from MPs at the 3rd House of Commons reading and stated: “MPs raised concerns about new provisions added at report stage to enable the government to require banks and financial institutions to provide data about accounts linked to benefit claimants, which the government argues is necessary to tackle benefit fraud. MPs questioned why state pension claimants were included. They also raised concerns about the Department for Work and Pensions (DWP) having powers to look at people’s bank accounts without grounds for suspicion. The provisions were added to the Bill after a division.”

Independent Livingreported in their article DWP bank account surveillancethat currently, the DWP has the power to investigate any bank account where fraud is suspected and that HMRC routinely shares banking data with the DWP. However this bill goes considerably further, compelling banks and building societies to monitor all benefit claimants’ accounts (approaching 9 million people claim means-tested benefits) and this monitoring also extends to anyone “linked” to the receipt of a benefit, without specifying exactly what a link entails – leading to fears that the mass surveillance could also include former and current partners, children, maybe even landlords. Any bank or building society that does not comply will be subject to heavy fines.

CASCAIDr Comment: Commenting on the Bill in the House of Lords, Jenny Jones (Green) said: “Look at the Government plans to actually spy on the bank accounts of those receiving benefits whether they’re working, poor or disabled, or doing their best as a carer. It really is a new low in this government’s constant, vile behaviour. Never in our history has the government intruded on the privacy of anyone’s bank account without a very good reason and now we’re treating all people on benefits as potential criminals. If MPs think this is a good idea, then why don’t we ask them to go first? With all the cases of 2nd jobs, corruption and undeclared incomes would MPs be OK if the banks had the ability to raise red flags on their accounts?”

CPS publishes updated homicide prosecution guidance

The guidance has been refined to assist prosecutors considering the public interest when dealing with suspects in deaths arising out of ‘mercy killings’ and failed suicide pacts.

The Crown Prosecution Service (CPS) has published its updated prosecution guidance on homicide following a 12-week public consultation. The updated guidance includes amendments to relevant public interest factors on mercy killing and suicide pacts in the context of mercy killings.

Some of the amendments to the public interest factors include:

  1. In favour of prosecution: The suspect influenced the victim not to seek medical treatment, palliative care and/or independent professional advice or denied access to such treatment, care and/or professional support.
  2. In favour of prosecution: The suspect was acting in their capacity as a medical doctor, nurse, or other healthcare professional and the victim was in their care.
  3. Against prosecution: The victim had reached a voluntary, clear, settled and informed decision that they wished for their life to end.
  4. Against prosecution: The actions of the suspect may be characterised as reluctant, in the face of significant emotional pressure due to the victim’s wish for their life to end.

The revisions are designed to ensure there is transparent and consistent decision making across the CPS when considering these sensitive and challenging cases. The guidance does not decriminalise the offences of murder, manslaughter or attempted murder. Nor does it amount to an assurance that a person will be immune from prosecution if he or she does an act that ends the life of another person. In fact, the guidance states a prosecution: “is almost certainly required in the public interest.”

The homicide guidance, which has been refreshed as a whole, does not touch on ‘assisted dying’ or other similar scenarios which are treated separately in law.

Director of Public Prosecutions Max Hill KC said: “I am grateful to all those who took the time to consider the draft guidance and send in their views on this sensitive and emotive topic. Each response was carefully reviewed and considered, and those views have been used to reflect on our proposed approach to the guidance.

“Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. But it is very important to note that we will always prosecute cases of murder and manslaughter where there is sufficient evidence, and it is in the public interest.”

The guidance also adds how prosecutors can consider charges of murder or manslaughter where the conduct of a suspect, especially in a domestic abuse context, may have led to their suicide. It also adds further guidance on causing or allowing the death or serious injury of a child or vulnerable adult.

The revised guidance has been published on the CPS swebsite.

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Other Articles….

From Gov.UK….

Rapid evaluation: hospital discharge funding 2022 to 2023

Evaluates the 2022 to 2023 hospital discharge funding, focusing on local area spending, hospital discharge outcomes and funding impact.

To improve flow through hospitals and to free up hospital beds during the winter of 2022, the Government announced two additional funding streams:

This evaluation report:

  • explores how local areas spent that funding, including whether they were able to spend it as planned
  • provides insights into the impact of the funding by tracking changes to hospital discharge outcomes
  • uses impact analysis to better understand whether the funding achieved its overall aims

The findings from the evaluation suggest that, in most cases, funding was used to increase the number of discharges and reduce discharge delays. However, the ability to estimate any impact is limited by factors related to data quality and policy characteristics.

The Department of Health and Social Care also commissioned the King’s Fund, through the National Institute for Health and Care Research Policy Research Programme, to conduct independent in-depth research into the experiences of six local areas. This report, Hospital discharge funds: experiences in winter 2022–23, was published on 28 November 2023.

Adult Social Care Activity and Finance Report, England, 2022-23

The report provides information on adult social care activity and finance on Councils with Adult Social Services Responsibilities (CASSRs) in England for the period of April 2022 to March 2023. The report is published yearly by NHS Digital and contains data taken from the Adult Social Care Finance Return (ASC-FR) and Short and Long Term (SALT) collection.

It looks at the breakdown of expenditure by local authorities on adult social care, and the activity that is provided or arranged by the local authorities. It does not cover adult social care activity and expenditure that is provided or funded elsewhere, for example, if the care is arranged and funded by the client without any involvement from the local authority.

Key headlines from the report include:

  • Gross current expenditure on adult social care by local authorities was £23.7 billion. This represents an increase of £1.7 billion (7.9%) from the previous year.
  • Over three quarters (77.8% or £18.4 billion) of total gross current expenditure was spent on long term support, this has increased by £1.9 billion (11.2%) compared to 2021-22.
  • In 2022-23, 835,335 clients received long term care during the year. This has increased by 17,415 clients (2.1%) since 2021-22.
  • The number of clients receiving long term care has decreased since 2015-16. This downward trend has been mainly driven by a decrease in clients aged 65 and over receiving long term care, down 44,950 to 542,545 since 2015-16.
  • Over 2.0 million (2,002,055) requests for adult social care support, were received by local authorities. These came from 1.4 million new clients, for which an outcome was determined in 2022-23. 

Click here to read the full report on the NHS Digital website which will provide insights into the status and trends in adult social care activity and finance in England.

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From Local Government Lawyer….

LGA and County Councils Network separately warn of more section 114 notices after Autumn Statement disappointment
Councils are calling on the Government urgently to address local government finances after a survey from the Local Government Association (LGA) showed that almost one in five council leaders and chief executives think it is very or fairly likely their council will issue a section 114 notice this year, or next.

The LGA’s survey, which took responses from around a third of council leaders and chief executives in England, also showed that half of councils are “not confident” that they will be able to fulfil their statutory duty-based services next year. In publishing the data, the organisation raised concern about last month’s Autumn Statement, claiming it “failed” to provide the additional funding needed to protect services from further cuts. On the same day as the LGA figures were published, another survey from the County Councils Network (CCN), suggested seven in ten county councils will be unable to balance their budget next year.

Cllr Shaun Davies, LGA Chair, said the lack of funding for local services in the Autumn Statement “has left councils facing a growing financial crisis”. He added: “No council is immune to the risk of running into financial difficulty. As our worrying survey shows, many now face the prospect of being unable to meet their legal duty to set a balanced budget and having Section 114 reports issued. Local Government is the fabric of our country, with councils providing hundreds of services that our communities rely on every single day. For many people, these services are a lifeline.”

According to the LGA, councils’ core spending power has fallen by 27% in real terms from 2010/11 to 2023/24.

Gove dismisses claims Government to blame for problems at Nottingham City Council
Levelling Up Secretary, Michael Gove, has rejected claims made by Nottingham City Council, which issued a section 114 notice last month, that it could not balance its books as the result of issues “affecting councils across the country”.

The comments came during a Levelling Up, Housing and Communities Committee session, in which Gove was questioned on local government finances. Gove insisted that “systemic problems with leadership and governance” were to blame, saying “I don’t believe that it is the fault of central government at all”.

Committee member and MP for Nottingham East, Nadia Whittome responded saying: “Nottingham’s overspend was £23m. Conservative governments have cut funding by a hundred million a year every year since 2013.”

Gove replied: “Well we can always ask the question of how effective has the spending been, how good has leadership been, what is the quality of service delivery in Nottingham?”

This followed calls for more financial support from the Local Government Association and the County Councils Network who separately warned that one in five councils could be set to issue section 114 notices in the coming year. Gove told the committee that the figure of one in five, equating to about 60 councils was an “overestimate”. He added: “The overall position, I think Oflog would show, is that some people in local government have been crying wolf. But that doesn’t detract from the fact, as we have been discussing, that in children’s social care, in special educational needs, in adult social care and in homelessness and the pressure from asylum seekers, there are real pressures and I wouldn’t want the committee to think I was in denial about those.”

In a written ministerial statement Gove claimed that the sector was on course to see above-inflation increase in core spending power next year.

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From The Guardian….

Funding of £64bn announced for councils

Ministers will announce a 6.5% increase in the funding for local councils in England in a desperate attempt to stop them going bankrupt.

Communities’ secretary, Michael Gove, will announce a £64bn support package, less than a fortnight after he was warned that an unprecedented number of councils are likely to declare themselves bankrupt. However, the funding, which will provide extra support for social care and housing, is expected to fall far short of the amount councils need and will come in lower than the 9.4% funding increase councils received in 2023.

Care England Comments: 6.5% increase in council funding

In response to the provisional Local Government Finance Settlement of 6.5 per cent for 2024/25, Professor Martin Green OBE, Chief Executive of Care England, said:

“The writing is on the wall for Local Government.

Without a paradigm shift in the Government strategy for social care, many care services will close. With inflation at 6.7 per cent in September of this year and with a National Living Wage increase of 9.8 per cent in April next year, a 6.5 per cent uplift is a long way from what the sector requires to even stand still.

Put simply, current Government investment in the sector is not enough. The Local Government Association analysis shows funding gaps of £2.4 billion in 2023/24 and £1.6 billion in 2024/25 who also report 1 in 5 councils now fear issuing a Section 114 in the next year.

This is a 100% increase in the last twelve months. Care providers are operating on unsustainable margins having already absorbed inflationary pressures over multiple years due to insufficient Government funding but we cannot continue to be called upon to fill the funding gap left by Government.”

Linked to this Care Home Professional reports:

Sector decries ‘human cost’ of local government funding deal

The provisional local government finance settlement makes available almost £4 billion more funding for councils in England in 2024-25, an increase of 6.5% on 2023-24, which the Government described as “an above-inflation rise in recognition of the pressures being faced by local authorities”. Despite this, there are some very vocal individuals in the sector who are claiming the rise is not enough.

Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group (VODG), said: “The provisional local government settlement falls far short of what is needed to put social care on a surer footing. The previously announced increases in [the] national living wage are welcome but currently unfunded and coupled with much higher operating costs brought on by inflationary and other pressures. There are significant staff vacancies to fill which are being exacerbated by [the] government’s approach to migration. Short-term grants and optional council tax increases are not a sustainable way to fund councils.

“The majority of disability services rely on the state for funding and the government is again failing to support social care through today’s provisional settlement. The government has consistently refused to provide the funding and certainty councils urgently need. There is little in today’s statement that reassures. 73% of charities are unable to meet the current demand for the public services they deliver with the funding they receive. Charities cannot do more.

“Without urgent action, essential services will cease to exist, the effect of which will be acutely felt by the NHS, local communities and especially those in our society who live in the most vulnerable circumstances.”

Amy Little, Head of Advocacy at disability charity and social care provider Leonard Cheshire, said: “This continued lack of adequate social care funding will leave disabled and older people without vital support in the year ahead, while providers are being set up to fail. Councils and social care providers are facing a perfect storm of rising costs, workforce shortages, long-term inadequate funding and increased demand for social care.

“There’s no guarantee how much of the 6.5% increase in core spending power will be passed on to social care, with council budgets and services already stretched to breaking point. The real fear is that this settlement will do little to address the ongoing and deepening crisis in social care. A third of providers are considering exiting the sector.

“Many of these costs are expected to be absorbed by a sector at tipping point. Everyone recognises the need to increase pay for social care staff. However, the government to date has failed to accompany its recent national living wage increases with additional funding. The cost of this increase alone is at least £1.8 billion. Behind all the figures are real people – disabled and older people, carers and a strained workforce. The local government settlement failed to address the rising cost of adult social care with a real-terms uplift in ring-fenced funding. This failing has a human cost.”

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From UK Parliament – Committees….

Secretary of State Victoria Atkins faces MPs’ questions on care workers

The Secretary of State faced questions on the impact of changes to the visa scheme for overseas care workers in her first appearance before the committee which will examine a range of challenges facing the NHS and Social Care.

Victoria Atkins, Secretary of State, and Sir Christopher Stephen Wormald, Permanent Secretary of the Department of Health and Social Care, appeared before the cross-party Health and Social Care Committee, chaired by Steve Brine MP, on 13 December 2023. The appearance started with discussion on new plans, announced by the Home Secretary James Cleverly, to tighten the Health and Care visa, preventing care workers from bringing family dependants to the UK and raising the minimum income for family visas, which applies to all people, not just those working in the sector, from £18,600 to £38,700.

In relation to the announcement, Steve Brine asked: “The Home Secretary told the Commons that he had “crunched the numbers in great detail” on the impact of changes to the migration rules on the social care sector. What is your assessment of the impact that the changes will have on the social care sector?”

Victoria Atkins said she hoped the requirement for employers and providers seeking to use the health and care visa route to use CQC-certified establishments had been widely welcomed by the sector. She went on to say: “The Prime Minister has been clear, the Government are clear: we need to tackle legal and illegal migration.” 

Victoria Atkins went on to explain that the Government were ensuring that exemptions are in place in relation to salary thresholds and that, sadly, a career in social care remains among the lowest paid. She said: “We had got to the point where more people were coming over as dependants than people who were working under visas. We have to address that, and I think we have got to a very sensible place. My understanding from Minister Whately’s conversations with the social care sector is that it understands and is broadly relaxed about this.”

Steve Brine asked what impact assessment had been done on removing the right of care workers to bring their dependants to the UK and then said: “If it is a choice of coming here but having to leave behind a husband, wife, partner or children or going to a country where they can be taken, what would you do?”

Sir Chris Wormald commented that it was important to remember how heavily over-subscribed we were and that the limit on the number of people coming into the country was job availability and not the supply of international labour. Steve Brine responded: “But aren’t there 152,000 vacancies in the care sector?”

Sir Chris Wormald replied: “Yes, there is still a substantial number of vacancies. International recruitment has helped to stabilise and improve the situation, but, as you say, we still have a number of vacancies.”

On the sector being comfortable with this, Steve Brine said the committee had asked Care England who said they were not consulted on the proposals prior to the announcement last Monday. When asked if this surprised him Sir Chris Wormald said it didn’t and that the suggestion that the care sector understood the rationale for the changes and how the Government are moving forward was “obviously different from being consulted prior to the announcement”.

Victoria Atkins added that this was consistent with a wish to recruit more British people into these really important jobs and a desire to include social care as part of a programme of work to increase skills-based learning so that we recruit and retain high-quality people committed to work here and make this sustainable. Steve Brine closed the line of questioning by saying, “Perhaps we should get the care Minister back to deal with this in more detail. We will ask the sector, including Care England, for a little more detail.”

As such a further committee session was arranged for Tuesday 19th December where MPs questioned senior leaders in social care about how the sector will be affected by changes announced This one-off session heard evidence from Professor Martin Green – Chief Executive at Care England,

James Bullion – Chief Inspector of Adult Social Care at CQC and Oonagh Smyth – Chief Executive at Skills for Care.

In that session concerns about the announced plans were discussed and Professor Martin Green said that Care England were “particularly concerned, annoyed and irritated that they seem to have come without any consultation with the sector and it would have been much better if they’d been more collaborative, they’d come to talk to us and they’d understood what the implications of these changes would be before they’d announced them and unfortunately they did not do that so we were all a bit blind-sided by it.”

That session can be viewed here on Parliament TV.

CASCAIDr Comment: That the Permanent Secretary said that the limit on the number of people coming into the country was job availability and not the supply of international labour seems to be wildly at odds with Steve Brine pointing out that there are 152,000 vacancies in the sector! The Secretary of State for Health and Social Care said that a career in social care remains among the lowest paid; which along with things such as poorer working conditions, unpaid travel time, zero hours contracts and a lack of clear progression in the sector, means that there is a dearth of people wanting to enter one. Allowing people to come to the UK is one, short-term, way of attempting to fill these vacancies, but disincentivizing immigration in the face of public pressure to reduce numbers coming to the UK will leave such an initiative dead in the water. That Care England, the largest representative of independent providers in the sector was not consulted initially, quite rightly led to Professor Martin Green to being annoyed on behalf of his members. In the light of this, we must ask – what now, for the social care workforce?

Linked to this From Unison….

The final hammer blow to our crumbling social care system

“Curbing the migrant care workforce will cause utter disaster”

Unison general secretary Christina McAnea said: “The health and care visa was introduced in 2020 to plug workforce gaps, but because headlines of soaring immigration numbers are compounding Rishi Sunak’s polling problems, he’s playing roulette with our essential services.

Had he, or his ministers, spoken to any employer in the care sector, they would know that any plans to curb the migrant care workforce will cause utter disaster. Not allowing migrant care workers to bring any dependants with them to the UK, will do exactly that. Potential recruits will be put off coming to the UK, and the ones already here may have to send dependants home when their visas come up for renewal. Staff vacancies will soar from the current number of 152,000, and I don’t see a queue of British workers waiting to take up those posts. We will see care homes closing and care companies going bust.”

Care England’s Chief Executive, Professor Martin Green OBE, issued a reactionary comment saying: “The government recognised the important role international recruitment plays in the adult social care sector. Immigration is something which has been shown to save sectors in the past; immigration saved the NHS post World War 2. In a similar way now, immigration is saving the social care sector. 

Over the last year, we have seen a reduction of 53,000 domestic workers working in the care sector, but we have also seen an increase of 70,000 people from overseas starting in care-providing roles in the adult social care sector. With dependants being limited by the new changes, the government is making it harder for care providers to recruit foreign workers. If the government now wants to move away from international recruitment as the solution to fixing the social care workforce crisis, it must act swiftly and invest in improving the pay and conditions to drive domestic recruitment.”

Care Englandhave now published:

Changes to international recruitment, what now?

Whilst adult social care providers await further detail from the Department of Health and Social Care and the Home Office as to how these changes will work in practice, the significance of domestic recruitment has only become greater.

Professor Martin Green OBE, Chief Executive of Care England, said: “For years, the Government opened doors for our sector to recruit overseas workers. The new measures make this route harder than before, and consequently, the sector must now adapt. We must look at our recruitment practice and develop new strategies to bring more domestic staff into a career in care. We must think creatively about what groups of people we can bring to the sector, and ensure they are the right people to provide support to those in receipt of care.

“The social care sector is brimming with optimism and talent. It’s up to us to platform this positivity and draw other like-minded individuals to the sector. We must override existing stigmas that exist around social care by showcasing what a fulfilling opportunity a career in care is.”

Skills for Care’s data show that with values-based recruitment practices in place, 62% of staff have lower rates of sickness and absence. Additionally, 72% of staff perform better than those recruited via traditional methods. Skills for Care estimated a 23% cost saving when adopting a values-based recruitment approach. When values-based recruitment is combined with a focus on learning and development, the solution is even more effective. According to Skills for Care: ‘Employers with favourable workforce metrics (such as high levels of learning and development), on average, had better outcomes (lower staff turnover and/or high CQC ratings)’.

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From Independent Living….

Social care ‘too fragmented’

Beverley Tarka, president of the Association of Directors of Adult Social Services (ADASS), has suggested that the sector is not perceived as a core public service because it is too fragmented. Her solution is for commissioners, providers and service users to pool their efforts and campaign together for the funding and wholesale change required.
 

Speaking at the National Children and Adult Services Conference (NCASC) last week, she said:

“Maybe part of the reason why social care hasn’t secured either that funding or that change for the past 25 years – and is still not seen by policymakers as a core public service – is that we have been too fragmented.”
 

The ADASS Autumn Survey report on adult social care budgets and waiting times has recently been published, which highlights the struggles faced by people needing care and support including nearly half a million people who are not getting the support they need and are waiting for care, a direct payment or for their care needs to be assessed.

The good news is that the waiting list is down by 20,000 people since last autumn, but it is still unacceptably high and reflects the continuing challenges around recruitment and retention of care staff.

Dr Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), in response to the report said: ‘’The latest findings of the ADASS survey reiterate the need for long-term prioritisation and investment by the government in social care. Councils are clearly struggling to fund existing services and, as the recent data from the NCVO (the National Council for Voluntary Organisations) demonstrates, this means charities are being put in the impossible position of being asked to subsidise support to prevent services being pulled away. This position is clearly unsustainable. We need to re-imagine how to commission and deliver services effectively in partnership with disabled people and the third sector.

Third sector organisations are well placed to work collaboratively with disabled people, local authorities and other stakeholders to deliver change. VODG has written to all councillors leading on adult social care in England, calling on them to better utilise voluntary sector expertise and bring together commissioning teams and third sector providers to co-produce solutions and transformative approaches to commissioning. Repeating a cycle of cuts and waiting times will only serve to fail more people in need and escalate the numbers facing avoidable crisis.’’

CASCAIDr Comment: The landscape of adult social care in the UK is marked by a troubling fragmentation that poses significant challenges to the delivery and coordination of services. The system is characterised by a complex web of providers, including local authorities, private organisations, and voluntary sector entities, each operating with varying standards, funding structures, and priorities. This fragmentation often results in disjointed care pathways, leading to inefficiencies, gaps in service provision, and a lack of consistency in quality. We therefore celebrate ADASS’ statement and are eager to see proposals for addressing this fragmentation, which is essential for creating a more integrated and cohesive social care framework that better meets the diverse and evolving needs of the adult population.

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From Learning Disability Today….

MPs call for 10-year plan to improve lives of disabled people

A cross-party committee of MPs has urged the Government to produce a targeted 10-year plan to improve the lives of disabled people.

The Women and Equalities Committee inquiry into the National Disability Strategy (NDS) said that the NDS was a “list of un-coordinated and largely pre-existing short-term policies” where disabled people and their representative organisations had “little to no influence”. The Committee added that disabled people “feel excluded from having meaningful input into policies directly affecting them” and recommended the Government appoint a national advisory group consisting of the DPO (Disabled People’s Organisations) Forum England and the chairs of Regional Stakeholder Networks to “review disability policy proposals, advise ministers on key issues, and develop, implement and monitor the NDS”.

The Committee noted that only a strategy which “integrates different policy areas—such as education, health, social care, employment and transport—will have a truly transformational effect on the lives of disabled people”.

The NDS was published in July 2021 and set out the Government’s long-term vision for disabled people, including people with a learning disability and autistic people. Progress on delivering the strategy was stalled when the High Court ruled the strategy unlawful in January 2022 due to failures in the consultation process. In July this year, the Court of Appeal overturned this and at the time, Disability Rights UK said the ruling was “surprising” given that the NDS implements policies that are “harming disabled people disproportionately”. Several stakeholders, including the Equality and Human Rights Commission, disability charities, and DPOs, repeatedly asked the Government to increase engagement before launching the strategy, “but the government did not, leaving disabled people feeling further disempowered”, the report found.

Chair of the Women and Equalities Committee, Rt Hon Caroline Nokes MP added: “It is clear disabled people want more influence over the strategies, action plans, and policies affecting them. Ministers need to work much more proactively with disabled groups and develop the National Disability Strategy beyond short-term actions that were already in progress. To support this approach, it should collaborate with disabled people to develop a ten-year strategy with an action plan for the first five years outlining clear targets and timescales for delivery. The government needs to listen to the concerns that disabled people and their representative organisations had with the strategy and work closely with them to deliver meaningful, long-lasting improvements to the lives of disabled people.”

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From House of Lords Library….

In-patient Mental Health Care: Learning Disabilities

On 13 December 2023, Baroness Hollins (Crossbench) asked His Majesty’s Government what assessment they have made of progress made towards achieving the target in the NHS long term plan to reduce the number of people with learning disabilities and autism in inpatient mental health care by 50 per cent by March 2024, relative to 2015 levels.

Baroness Bull (Crossbench) responded saying: “The Joint Committee on Human Rights has made clear that the detention of individuals in the absence of individualised, therapeutic treatment risks violating their right to liberty and security. It found that rights to private and family life and to freedom from inhumane and degrading treatment are frequently under threat for people with learning disabilities and/or autistic people detained in in-patient units.

“The Government’s 2019 manifesto committed to addressing this through reform of the Mental Health Act 1983—an important Act, but one that has failed to keep pace with changes in understanding of and attitudes towards mental health since it passed into law 40 years ago. Like other noble Lords across the House, I was deeply disappointed that the Bill failed to find a place among the legislative priorities for this Government’s last Session. In its absence, we need to know what urgent action they will take now and in future to end the human rights scandal of this inappropriate and unnecessary detainment in in-patient care.

“NHS data from October 2023 reveals that there are 2,035 people with a learning disability and/or autistic people in in-patient mental health units. Over half have been there for more than two years, and under half had a date planned for them to leave hospital. As my noble friend told us, Mencap’s analysis of the data suggests that, at the current rate, the ambition to reduce the number of in-patients by half will not be met until 2029—a full five years after the target date.

“The statistics are startling, but they are also sterile. Each number represents a person locked away from family, friends and the day-to-day opportunities and experiences that most of us are privileged to take for granted. With an average stay for current in-patients of 5.2 years, inappropriate detention in mental health hospitals is devastating not just to the person locked away but to the people who love them and want to see them thrive. The reality, as we have heard, is that too many autistic people and people with a learning disability are held in mental health hospitals not because they need in-patient mental health treatment but because of the sustained failure over many years to invest in the right community support.

“The shape of the support required for those individuals to return safely to community life is set out clearly for commissioners in NICE guidance and in Building the Right Support. For example, it requires care providers with the right skills, suitable housing, intensive support services to help prevent and manage crisis situations and appropriate respite. Having a service model is one thing, but implementing it is another. Eight years on from its introduction, too many families still face issues in accessing the support that will enable successful discharge into the community or, better still, prevent the need for admission in the first place. The future of Building the Right Support is unclear. Looking beyond March 2024, can the Minister say what will happen to the associated action plan, the delivery board and the national targets? How is this being communicated across the health and care system?”

Baroness Jolly (Liberal Democrat) said: “Despite repeated commitments from the Government to transform care and end this practice, they have repeatedly missed their targets over the past 12 years. The latest commitment set out in the NHS long-term plan—to reduce the number of people with learning disabilities and autism in in-patient mental health care by 50% by March 2024—is likely to be missed again. The Government must bring forward a mental health Bill which prevents the inappropriate detention of learning-disabled adults under the Mental Health Act. It was highly distressing that this was not included in the King’s Speech and is not on the Government’s legislative agenda, despite a 2019 manifesto commitment to “make it easier for people with learning disabilities and autism to be discharged from hospital and improve how they are treated in law”.

“Ensuring social care is funded properly, so that everyone can receive the right care, is also critical. This will ensure that everyone who needs social care can receive the right support at the right time and should prevent admissions to in-patient units.”

The Parliamentary Under-Secretary of State, Department of Health and Social Care, Lord Markham (Conservative) ended the discussion saying: ‘’…we are alive and responding to the ongoing conversation and dialogue that the noble Baroness, Lady Hollins, has set in place and which will continue. I will not pretend for one moment that we have got all the parts in place. That is why it needs to be a continuing dialogue, to which I am committed.’’

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From Disability News Service….

Parliamentary meeting demands end to segregation and abuse of young disabled people

Disabled activists and allies recently came together in Parliament to call for an end to the degrading treatment, dehumanisation and even torture that young disabled people are subjected to in institutional care settings.

Disabled activists and allies united to demand an end to the degrading treatment, dehumanisation, and even torture experienced by young disabled people in institutional care settings. The End Torture of Disabled People campaign, led by The Alliance for Inclusive Education and supported by Disabled People Against Cuts (DPAC) and other organisations, highlighted instances of abuse in care homes, residential special schools, and mental health institutions. The campaign aims to eliminate the use of segregated settings, calling for an end to torture, violence, and abuse of young disabled individuals across these services. Advocates stress the need for accountability, the establishment of independent living services, and an inclusive education service.

The campaign emphasises that the voices of young disabled people must no longer be absent from the discourse surrounding their abuse. The event was sponsored by Labour MP John McDonnell, who called for a new civil rights movement focusing on desegregation and exposing failures in both public and private sectors.

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From Social Care Today….

Over 10,000 autistic adults not receiving sufficient care 

More than 10,000 people are not receiving the care they are legally entitled to, putting them at risk of breakdown, admission to mental health hospitals and worsening life chances, according to a new report from the Autism Alliance.

The Autism Alliance’s Breaking Point report found that over three quarters of autistic adults reach crisis point before social care is provided, leaving them at risk of harm or admission to mental health units.

Lack of government funding means the Care Act 2014, which states that eligible adults must receive support, is being broken every day.

Among the report’s other findings are:

  • Autistic adults wait over two years for social care rather than 8 to 10 weeks recommended
  • The number of autistic people in mental health hospitals is higher now than in 2015
  • The Government could close the gap in care by investing £70m to £140m annually, less than one percent of total social care funding

Failures in care mean autistic adults face an unacceptable double disadvantage, exacerbating existing inequalities in life expectancy, health and quality of life, the Autism Alliance said.

The report is based on an audit by economists Cordis Bright and surveys of autistic adults and their families. It found 77% of autistic adults reach crisis point before care is provided. The report called on the Government to close the funding gap either through additional investment, or by shifting existing funding from crisis inpatient services to the right support in the community. It also recommends closer partnerships between local authorities, local NHS services, care providers, the Care Quality Commission and mental health services to address barriers preventing autistic people and their families accessing specialist care and support.

Adam Micklethwaite, director of the Autism Alliance, said: “The human cost of the failure in social care is unacceptable, and autistic adults and their families are at breaking point. Government must act to end this human rights injustice. Investment is vital, but we also need reform: better understanding of autism and more support for specialist care providers. The principles of good care for autistic people would improve care for everyone, and the voices of autistic adults and their families should be a guide to wider reform of social care.”

Alongside the assessment of the gap in social care for autistic adults, the Autism Alliance has surveyed families and carried out focus groups with autistic adults and parents/carers. These have shown that:

  • Over three quarters of autistic adults reach crisis point before care is provided.
  • Where care is provided it frequently fails to meet their needs.
  • Autistic adults and their families have a poor experience of trying to secure care.

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From The Independent….

Autistic man facing abuse in mental health hospital must be given home ‘urgently’

Following an independent review, the NHS and a local council have been told urgently to find a home for a 28-year-old autistic man who is facing psychological and physical abuse within a mental health hospital

Nicholas Thornton, who is autistic and learning disabled, is currently being held in an Essex mental health unit after a decade of being locked away in places not able to care for him adequately. However, an independent safeguarding review into his care provided at the Essex hospital has now ordered the local authority and NHS to find him a community-based home because his relationship with hospital staff has become so bad, he is facing psychological and physical harm. He is one of the 2,045 people with learning disabilities and autism trapped within inpatient units across England.

Mr Thornton, who has been in the unit since May this year, is not under a mental health section, nor is he in need of mental health treatment. However, he is unable to leave because the local authority has not agreed on a place into which he can be discharged. The Independent claims to have seen a safeguarding report in which the hospital staff told investigators that they cannot care adequately for Mr Thornton as they are not trained in supporting patients with autism.

Mr Thornton said: “Essex don’t care, they just want to delay, delay, delay and keep me in torture at this hospital and not even bother to sort an agency out to get my needs met as the staff here can’t meet my needs, are not trained in my needs or anything. Instead, I’m being kept locked up for no reason when everyone says I shouldn’t be and shouldn’t be here. They are destroying and taking away my life.”

The independent safeguarding review said: “It is hard to ascertain whether the staff’s method of interaction with Mr Thornton is triggering in respect of his autism and related emotional/behavioural responses or whether at times Mr Thornton’s behaviour elicits a response from staff.”

The review also said that staff were, at times, unable to carry out personal care and hygiene care for Mr Thornton and that he can remain in a wet and soiled pad for over 24 hours. The experts reviewing Mr Thornton’s care acknowledged that the Council has placed him in homes which have not been suitable for his needs such as older people’s care homes or with family members who have not been able to provide appropriate care.

A statement submitted by Mr Thornton’s legal representatives said he had been moved at least 15 times by Essex County Council over the last 10 years and has been held in a “horrific string of inappropriate and traumatising community and hospital placements”.

CASCAIDr Comment: This is yet another harrowing example of an individual who is autistic and/or has a learning disability who is languishing in a mental health hospital – not because he NEEDS to be there, but because of an abject failure by the LA and the NHS to find him a suitable place to be discharged to in the community.

What is notable about this case, is that not only does he not need to be there, which for those in this situation already entails a hugely negative and potentially long-term impact upon their wellbeing; a safeguarding review has found that he is facing psychological and physical abuse, and he is left wet and in a soiled pad for over 24 hours! We note that hospital staff are said to have told investigators that they cannot support him because they are not trained in supporting patients with autism(!), which quite apart from anything else, just goes to show how thoroughly unsuitable this setting is for him.

As Baroness Bull said in the Lords on 13 December, “The Joint Committee on Human Rights has made clear that the detention of individuals in the absence of individualised, therapeutic treatment risks violating their right to liberty and security. It found that rights to private and family life and to freedom from inhumane and degrading treatment are frequently under threat for people with learning disabilities and/or autistic people detained in in-patient units”

It is the law that under the Care Act a person with ‘accommodation plus’ care and support related needs is entitled to be provided directly with housing by the local adults’ social services authority. Section 23 Care Act does not and cannot override the inclusion in s8 of accommodation in premises of some other type than a care home, as part and parcel of adult social care.

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From Sky News….

Government scraps dedicated minister for disabled people

The Government has scrapped its dedicated minister for disabled people – after the role was left vacant in the recent reshuffle.

Mims Davies will now take on the brief, though it will sit alongside her existing role as a junior minister responsible for social mobility and youth. The decision has attracted criticism from all sides of the House.

Labour’s shadow disabilities minister, Vicky Foxcroft described the move as “shocking”. She said: “After 13 years of Tory austerity, pandemic and cost of living crisis, disabled people feel their voices aren’t being heard and represented in government. This confirms it.”

The chair of the women and equalities committee, Tory MP Caroline Nokes, said it sent “entirely the wrong message” to disabled people. She added: “This move will do nothing to stop disabled people feeling further disempowered and I would urge the PM to re-think.”

Downing Street defended its decision, insisting it was not “downgrading” the disability role in favour of immigration.

Tom Pursglove had held the role of Minister of State for Disabled People, Health and Work until he was moved to minister for legal migration. Until now a minister or parliamentary under-secretary has held the role almost consistently since 1997. When pressed on the lack of a minister focusing solely on people with disabilities, the prime minister’s official spokesman said: “What you will continue to see is a government showing strong support for disabled people and for disabled issues.”

Ms Davies said she was “honoured” to take on the role, promising she would “work as hard as I can to ensure disabled people’s voices are heard loud and clear”.

Tim Nicholls of the National Autistic Society said: “This is a kick in the teeth for autistic people and disabled people, who are being sent a clear message that they are not prioritised by the government.”

He added: “How can a government say it really cares about improving the lives of disabled people and the importance of that work, without a full-time minister? [Emphasis ours]. Scrapping the role of disability minister follows countless broken promises to ‘fix’ the social care system and reform mental health law. After decades of underfunding for vital support and services for disabled people, this role is needed now more than ever.”

CASCAIDr Comment: We are not aware of anything that Mr Pursglove had ever done, whilst occupying the role, to highlight the government’s structural under-funding of the obligations in the Care Act.

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From Community Care….

Homelessness social work role valuable but rare, isolated and temporarily funded – study

Research calls for greater recognition of specialist social workers who are helping improve outcomes for homeless people, but it is a role that remains rare, often isolated and usually temporarily funded.

A research paper from the NIHR Policy Research Unit in Health and Social Care Workforce, ‘Evidencing the social work role within responses to multiple exclusion homelessness’, looks at the establishment of a peer-support network for practitioners working with homeless people. This study was a follow-up to previously published research into safeguarding responses to self-neglect by people experiencing homelessness.

A central finding of the research was the importance of having specialist social workers as part of outreach services for people experiencing Multiple Exclusion Homelessness (MEH). MEH refers to the intersection of homelessness – particularly street homelessness – with other forms of exclusion, such as substance use, mental illness, adverse childhood experiences and time spent in institutional care. The study was based on interviews with 17 social workers who were working in specialist homelessness roles or had done so recently; were supervisors of specialist practitioners or were in non-specialist roles that informally led on homelessness.

The study found that the specialist role involved therapeutic direct work with people, multi-agency co-ordination and statutory functions, under the Mental Capacity Act 2005 or Care Act 2014. Interviewees reported that, prior to the role’s introduction, it was difficult to carry out Care Act needs assessments of people with MEH, with one saying that they were classified as “not engaging”.

“For those particular individuals it opened the doors … you were then able to do assessments at street level, say literally just sat on the pavement,” the social worker added.

Practitioners also highlighted the importance of identifying and addressing care and support needs in helping people maintain a tenancy. The study found that this was helping prevent repeat referrals to services and people’s needs escalating to crisis point.

Click here to find out more about the network and access resources it has put together on homelessness and rough sleeping.

CASCAIDr comment: we think that miracles could be achieved by training housing and social services adults’ team members together about the interface between housing, homelessness and  Care Act services.

Record 100,000-plus social workers renew registration

97.3% of eligible social workers have renewed their right to practise, says Social Work England.

A record 100,495 social workers in England have renewed their registration with the regulator this year. This is the highest proportion of eligible social workers that has been recorded since the SWE renewals started in December 2019. As a result, England starts the new registration year with 3,609 more registered social workers than last year. In 2022, about 1,000 social workers were deregistered inadvertently due to not completing their application correctly, this year it was less than half of that number.

Data shows that children’s services practitioners made up much of the register, 57.5% of the total who provided employment data. Adults’ social workers accounted for 34.8%, with 7.7% working in other services; this mirrored last year’s data.

10% national living wage hike will trigger adult social care cuts, councils warn

The County Councils Network report that the pay rise will significantly impact on local authorities’ finances and could lead to adult social care cuts.

A survey by the County Councils Network (CCN) following last month’s autumn statement has found that next year’s 10% national living wage (NLW) increase will lead to adult social care cuts unless councils receive increased government funding. Shire authorities indicated that the NLW rise will on average cost them £6.3m each in 2024-25, totalling £230m across the sample polled. The rise in the NLW from £10.42 to £11.44 an hour, announced in the autumn statement, will benefit many adult social care staff working for independent providers commissioned by local authorities.

This comes at the same time as the Local Government Association (LGA) report that 20% of respondents to a survey said it was likely they would declare that they could not balance their budgets in 2023-24 or 2024-25. Both the CCN and LGA had been hoping the autumn statement would deliver extra resource for local government to tackle pressures on children’s and adults’ services.

Prior to the autumn statement, the CCN said its members were facing a combined overspend of £639m in 2023-24, half of which was accounted for by children’s services. However, the autumn statement left funding plans for councils unchanged.

In a letter to levelling up Secretary, Michael Gove, following the survey, 30 council leaders wrote: “We understand that the public finances are tight, but the government had some fiscal headroom in the autumn statement to help ease these pressures outside of our control. However, no direct additional funding was provided to local government, and increases to the national living wage have added hundreds of millions of additional, unplanned, costs to our budgets.”

LGA chair, Shaun Davies, said: “While councils have worked hard to reduce costs, find efficiencies and transform services, the easy savings have long since gone. The government urgently needs to act to address the acute financial challenges faced by councils.”

CASCAIDr Comment: Why, whenever there are budgetary conversations and constraints in local authorities is the ‘go-to’ position to say that Adult Social Care will be impacted? We get that this may be deliberate, as people are likely to care more about this than say libraries, but when we see this time and time again, we wonder about the adherence to the Local Authority Social Services Act 1970 s6(6) which states ‘’A local authority which have appointed, or concurred in the appointment of [a person under this section] shall secure the provision of adequate staff for assisting him in the exercise of his functions’’.

This duty to ‘secure the provision of adequate staff’ also links to the duty under The Care Act s5(1): ‘’A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market’’.

Councils should not be delivering budget cuts across the board to all departments; they should be working out where they have discretion to make cuts and where they have none. They cannot simply say that these vital services will be cut as this leaves them open to legal challenge, never mind the devastating impact on the population they serve!

Two-thirds of social workers say their practice is influenced by fear of the media, finds survey

Social workers described a culture of fear, of constantly second-guessing themselves and worrying how they’d be portrayed by the media, in response to Community Care survey.

The survey was part of Community Care’s Choose Social Work campaign, which aims to champion the brilliant work social workers do every day, inspire the next generation of practitioners and counteract the negative media coverage of the profession.

151 people responded to the survey, of which almost 28% said they or a colleague had been influenced ‘many times’ by the thought of the media catching wind of something going wrong with a case, while 35% said this had happened ‘a few times’. Many of the respondents reported feeling anxious and reported second-guessing themselves when working on cases out of fear of being targeted by the media if something went wrong. The survey, most of whose participants worked with children and families, also found that 70% had ‘often’ or ‘occasionally’ contemplated leaving the profession because of the negative media portrayal of social work.

Comments also indicated a trend of “defensive practice”: social workers becoming excessively cautious due to a fear of being blamed. “Our systems and processes often feel like they are designed around this, rather than what is best for a family, whether the individual worker recognises this or not,” said a respondent. “I feel it has made us more risk-averse in deprivation of liberty cases. Professionals are so worried about managing the risk to themselves if something happens that the impact on the child gets lost,’’ said another.

“Social workers in the UK are always fearful and have a saying about not being in the Daily Mail,” said one respondent, “The stress affects decisions on right and wrong and eventually health. I developed high blood pressure after joining [the sector]. No one wants to talk about social workers being affected mentally, no one assesses the effect.”

Over the past year, the British Association of Social Workers (BASW) and the Social Workers Union (SWU) have actively worked to counteract negative media portrayals of social work. BASW introduced its journalism awards to promote positive reporting of social work, while SWU collaborated with the Independent Monitor for the Press (Impress) to develop media reporting guidelines. Despite these efforts, Anthony Dhadwal, BASW’s senior press officer, expressed concerns about some mainstream media organisations lacking balance and resorting to scapegoating. He noted that challenging such outlets through media law often comes after the damage has been done.

Read about Community Care’s campaign here, and how to support it.

CASCAIDr Comment: It’s crucial to recognise the vital role social workers play in society, often working in challenging conditions to support those most in need. However, they can’t do right for doing wrong. If they intervene in a case of child neglect the [social] media headline says: ‘Social Workers stole my baby because they didn’t like me’*, if they don’t remove the child: ‘Did they learn nothing from Baby P?’*. And the entertainment media is no better. When social workers are portrayed, they almost always work in child protection and are described as either judgmental bureaucrats or child snatchers.

How has it got the point that a group of key workers/vital professionals working to help people are scared simply to do their jobs? Legal illiteracy has a lot to do with it, we think, in the workforce, the media and the general population.

*Actual headlines

CQC streamlines adults’ services assessment process following concerns over burden on councils

ADASS welcomes simplification of information return that authorities must submit to regulator, but says training urgently needed for CQC assessors

Following significant concerns about the burden of the assurance process on pilot councils, CQC has said it has made changes to its guidance on the information that councils must supply to the regulator during the first stage of the assurance process saying: “We’ve worked with the pilot local authorities, ADASS and LGA on streamlining the information required. We have explicitly set out which themes and quality statement the information return item relates to, reduced duplication, reduced ambiguity and added items where they would add value.”

The changes were welcomed by ADASS, with its policy and analysis director, Michael Chard saying: “Updates made to the assurance process following the CQC evaluation of the pilots will hopefully reduce the time it takes for councils to prepare and participate in formal assessments. In particular, we hope simplifying the information return, which was extremely burdensome for the pilot councils, will lead to a more efficient process.”

However, he added: “The evaluation [of the pilots] highlighted the need to provide CQC assessors with additional training on the Care Act and local government structures. This must be actioned urgently to ensure that the first tranche of councils subject to local authority assessment are judged on a level playing field with the last of the 153 councils in England with adult social care responsibilities.”

CQC have been given the green light by the government to start the assessment and assurance process for England’s 153 councils over the next two years.

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From Care Home Professional….

Adult social care requests top two million for first time

The number of requests for adult social care support in England has topped two million in one year for the first time ever.

Data from the NHS Digital website revealed that 2,002,055 requests for adult social care support were received by England’s 153 local authorities. These came from 1.4 million new clients, for which an outcome was determined in 2022-23. This is equivalent to 5,485 requests for support received per day by local authorities in England (up 65 requests per day on last year).

The data showed that the sector’s gross current expenditure on adult social care by local authorities for the period of 1 April 2022 to 31 March 2023 had increased to £23.7 billion. This represents an increase of £1.7 billion (7.9%) from the previous year. Over three quarters (77.8% or £18.4 billion) of the total gross current expenditure was spent on long-term support, an increase of £1.9 billion (11.2%) compared to 2021-22.

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From Healthwatch….

Why are we calling for changes to social care?

Social care reform is desperately needed to ensure the public can get the help they’re entitled to, and that teams have the support they need to deliver this care.

Healthwatch is launching a campaign calling for social care reform, making sure that throughout 2024 the urgent need to reform social care and the potential solutions are at the forefront of policymakers’ minds. They intend to start by looking at how people access social care, and where people aren’t getting their needs met.

Healthwatch say reform is needed as advances in healthcare mean many people are living longer, including the number of people living with complex health conditions. This has led to big rises in demand for social care, but without any significant change in how it is organised and funded. The government proposed reforms to adult social care in 2021 which included a policy to cap the social care costs a person would pay over their lifetime, funded by a rise in National Insurance. But this, and other reforms, were later paused or scrapped. This means the social care system is under significant financial pressure and struggles to consistently deliver high-quality care to those who need it.

Healthwatch’s social care campaign will look at following questions on reform:

  • How can we make sure people’s eligible care needs are always met?
  • How can we make sure there is enough social care funding and care workers are decently paid?
  • How can we ensure everyone can access the right information, advice and guidance about care, and that they can get the care they’re entitled to in a timely and affordable way?

Click here to read Healthwatch’s position on social care.

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From The Kings Fund….  

Where’s the Z in ‘social care workforce’?

Under-25s – the so called ‘Generation Z’ – make up only a small proportion of the social care workforce. What are the reasons for this and is the sector able – or even willing – to change the situation? Simon Bottery kicks off a new programme of work to answer these questions.

18-24-year-olds make up only 8% of the social care workforce, below the average for other parts of the economy. That’s long been seen as a problem. The social care sector needs every single worker it can find to tackle chronic staff shortages and if it fails to recruit younger people the problems will only increase. The King’s Fund has begun a programme of work to understand the extent of the issue, its causes, and what might be done about them.  

Some initial analysis of the current involvement of younger people in the adult social care workforce shows that they are more likely than over-25s to be working in direct care, slightly more likely to be working with older people, and less likely to be in permanent employment. The biggest problem doesn’t seem to be recruitment, with more than 1 in 6 new starters into the sector being under-25, but retention. Reseach has shown that care workers aged under-25 employed in 2014 were only half as likely as their over-25 counterparts to still be employed in the sector in 2023.

Variation between providers in the number of under-25s they employ was also found. Some larger organisations (those with more than 50 total staff) have at least 20% of their staff from Generation Z while others have none whatsoever. The Kings Fund’s initial work with social care employers, which will be published early next year, suggests large variations around employer attitudes to employing younger people.

CASCAIDr Comment: Traditionally, adult social care has been associated with experienced professionals, but a shift is occurring, acknowledging the unique skills and fresh outlook that younger individuals can contribute. With proper training and mentorship, individuals under 25 are proving to be valuable assets in addressing the complex needs of the aging population and fostering innovation within the adult social care domain, not to mention a long(er)gevity of career.

The problem, however, as we see it, is that the sector is having a bigger problem with staff recruitment and retention, so whilst we have high hopes for the King’s Fund’s research having positive outcomes, there is more to be done to make the sector more attractive to all!  

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From CASCAIDr….

You could say this was a coup?!!  Our CEO and Founder, Belinda Schwehr, who leaves us today, certainly hopes so!

A longstanding client recently described us as “a true beacon and a vital lifeline”.

It’s us who’re drowning now, however, and we urgently need your help to keep the Centre for Adults’ Social Care Advice afloat, as we’re faced with the prospect of closing at the end of this financial year.

We now need the sector as a whole to save US, so that we can continue to be there to provide specialist and legally literate advice, to those who need it most.

We need money, tech, legal expertise and all sorts of volunteers. Click here to see what sort of help we need please:

In return, we’re planning on training volunteers and other organisation’s staff in the public law principles underpinning people’s rights to care and support, and make this publication free to individuals, and expand our free Triage offer to 5 hours.  

And we’re going to spend some money on getting some undecided points of law aired through the medium of leading barristers’ opinions – we will pay for some, and crowd fund the others. You can vote here on what you think are the most important points.

Click here to read more… “a true beacon and a vital lifeline”

…and please consider clicking here to donate: https://cascaidr.org.uk/donate

CASCAIDr’s ‘Care Act Principles’ Podcast Series!

Thurs 21st Dec sees the last of our Thursday lunchtime (1.15pm-1.45pm) free introductory podcast sessions about Public Law Principles in health and social care.

The final session – 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 can be accessed by the link for all sessions here.

Recording links for all of the sessions are on the webpage which takes you to our You Tube channel here. The full list of sessions available is:

  • 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
  • Abiding by Human Rights, properly understood, part two: Articles 5 and 9
  • Not discriminating unlawfully (Norfolk) – looking at how article 14 discrimination can make a decision unlawful, in a public law case.
  • 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

We hope you have enjoyed these sessions and found the content useful. 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, so please do share!