Hi everyone, this expert event is now over - thanks to everyone who joined the conversation and especially to Belinda for taking time to answer all your questions.
We'll be joined by the director of CASCAIDr CIC Belinda Schwehr from Monday 4 November until Friday 8 November, for another 'Ask the Expert' event here, posting as LawLover. Please ask any questions in the thread below for Belinda.
Here's Belinda with an introduction.
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Hello everyone – Belinda Schwehr here.
I will be popping in all week to look at any general questions I can help with.
I’m an ex-barrister and ex-solicitor, now trying to find a way of getting accessible information to the public – and to practitioners – affected by the legal framework for care services – and the state it has been left in, having been consistently and knowingly underfunded by government.
It’s a community interest company which pours out free expert analysis of important legal developments about adult social care, the ombudsman’s findings of fault in that sphere, s117 aftercare rights, Continuing NHS Healthcare decision-making and care planning, and referrals to a council’s Monitoring Officer, the lead on good governance.
CASCAIDr CIC has three important free services to offer – its database, its podcasts and its Q&A service. All those are sustained by people’s subscriptions to our weekly Alert Service, which saves subscribers all the thinking and the trawl time it would otherwise take, to keep up-to-date on the important public law aspects of ensuring people stand a chance of getting their rights to a decent care package, or due process, actually delivered.
Do read more about the service and the engagement it offers you, with like-minded people, if you want it – here: cascaidr.org.uk/cascaidr-as...
If you understand how important it is to keep this expertise flowing, as social services, social care and social work continue to be ignored by government, we’d be so happy to welcome you as a new subscriber: it’s £25 per year, per person, so it’s ultra-low cost, and you can even pay monthly (£2.25).
Please bear in mind that I can’t engage in face to face discussions on this HealthUnlocked thread, and am not giving bespoke legal advice: it’s information, but a small and seemingly unimportant fact, here or there, could make all the difference, so please don’t rely on it and ‘go for the jugular’ without taking further advice or reading the Government Guidance, here: gov.uk/government/publicati...
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question for Belinda: my son’s care provider is unable to give me a copy of its safeguarding vulnerable adults policy. It’s not available on its website. When I asked the director of care for a copy she asked me ‘what I wanted it for’. I know this is entirely inappropriate but what should I do about it?
If you son is an adult and is funded by the council, the provider as well as the council owes him human rights protection as well as a contractual duty to meet his needs. A safeguarding adults policy is only a bit of paper, and whilst the commissioners and CQC may require a provider to have one the bottom line is whether the people running the facility KNOW about safeguarding. So if I were you, I'd have that discussion with the Director of Care and ask very straightforwardly what his or her feeling is about the actual culture and mention that you expect it would be of concern to the commissioner and regulator if none was in existence to evidence that it was something all the staff could look at and operate under.
Question for Belinda: There are a number of groups on social media who are campaigning against LAs making their Charging Policies less 'generous'. Can LAs change charging policies (or any other policies for that matter) without consulting those who have an interest in the change. Are there any underpinning legal principles about consultation, or does the LA get to choose whether to include the requirement to consult?
They cannot change them without consulting at all - because charging is discretionary and any policy regarding the exercise of discretion - if it is changed, runs the risk of a human rights discrimination claim or a challenge for breach of the public sector equality duty.
There are wide-ranging common law obligations to consult (under the auspices of the rules of fairness) and the most recent case on consultation is found here: it's called MP - bailii.org/ew/cases/EWCA/Ci... - it is about charges but not social care charges, and it is worth reading in full.
It is worth bearing in mind, that all councils are taking care to consult because of the Norfolk case from 2020 on what was an unlawful charging policy change, but that does not mean to say that all such consultations will be done properly and the above case is good on what properly means.
But also bear in mind that Birmingham succeeded in defending a judicial review recently about changing its policy and it had consulted - the justification for the change was the dire financial straits it has fallen into.
Question for Belinda: we have an adult child with complex health needs. They now live in a residential care home. Due to their vulnerability and having lost mental capacity a DOL has been applied for but not yet received. The costs are borne by the LA. Due to the anticipated temporary nature of their lost mental capacity we have not applied for Deputyship and unfortunately we weren't able to arrange for either LPA before they lost capacity. I am appointee for benefits.
Without these legal provisions in place, who makes decisions for an adult such as our 'child'?
The local authority makes the decision about the regime that should be written up in the Care Act care plan as in the best interests of your adult son or daughter. Having deputyship or and LPA in place would not make you the decision maker on what the care plan included, because the council is paying for it. But in relation to the DoLS process, having either of those forms of authority would mean that you could REFUSE to consent to deprivation of liberty, if you felt that it was not needed. That is because there is a No Refusals criterion implicit in the process for authorisation of DOL. Being an appointee for benefits only enables you to manage benefits.
Even being a welfare deputy only enables you to refuse consent to activities that would otherwise be a trespass or assault to the body of your son or daughter or to their possessions. But being a parent - you are still the most obvious best interests consultees with regard to all that is being done to or with your adult offspring, and the Mental Capacity Act code of practice explains how you should be being consulted.
If you fundamentally disagree with what is being done you need to use the Court of Protection to challenge the determination which has led to the care plan, or use judicial review proceedings in the Administrative Court. One is legally aided, regardless of means, and the other (the latter) is not, so most people look for a CoP law firm and offer to act as their loved one's litigation friend.
Sometimes a good council will accept that they should get the matter to court themselves if a significant dispute regarding DoL is apparent. But if they are behind with the process (very likely as this is commonplace) they will be in difficulties because it means that your son or daughter's regime is unlawful, in strict legal theory.
Question for Belinda . Mum had a stroke. She has been discharged and recouping at a friend's. Wants a social needs assessment when she leaves to go to her own home. Does she apply now or wait til she goes home? Worried that waiting list might be very long (she's in Leeds).
If she was hospitalised and was discharged appropriately to a friend's home, without any services, it would logically be because no professional involved in the discharge thought that there was a requirement to involve social services or provide her with a reablement package in that friend's house. So I am thinking that your Mum was regarded as able to cope. If nevertheless she has the 'appearance' of needs for anything that could feasibly count as care or support, thought, she has a right to an assessment within a reasonable time, and whilst there is no law about what is a reasonable time (given that it all depends on the circumstances, extremity of presenting need, urgency with regard to a carer's situation etc etc) the Guidance says it ought to be done in a timely manner. Social services are 'rationing' assessment because they are all short staffed but the bottom line is their approach to how they are doing that. It must be rational and transparent. Your Mum can apply any time, and should try to come over as clued up about the need to be patient, but at the same time, clear about the circumstances. That is, is the position that she CANNOT safely go home and must therefore continue to rely on the friend's good nature, in terms of what the stroke has done to her ability regarding daily living activities? She or you if you are having this call should ask for the questions regarding assessment in advance and read this chapter of the Guidance, carefully: gov.uk/government/publicati...
Question for Belinda. Are there guidelines in the Care Act or any other legislation which advises on how long a local authority has to communicate the outcome of an adult LD reassessment, I.e is 9 months a reasonable amount of time for an outcome to have been reached and communicated?
Please see the above question regarding rationing of the START of an assessment - the same is true of the length of time it takes to FINISH an assessment. It all depends on complexity. For instance, sometimes an expert in the psychological aspects of the condition or disability is needed to inform the assessor's identification of all the needs; sometimes the difficulty is that an OT is needed to give a view on the physical environment that the person with the condition or disability is living in.
However you might be using the word 'assessment' when what you really mean is the care planning stage. That care planning stage is legally separate from the assessment, and comes after the eligibility decision, which comes at the end of an assessment. So what you might be asking (in my experience) is how long should it take to get the care plan done and services that have been regarded by the council as necessary to meet the needs, in place. That might be for a good reason, or a not so good reason - either side may be taking an entrenched position, instead of applying public law principles to the question of the care plan - which say that the council is the decision maker and must meet needs to a defensible degree, but always subject to challenge on the grounds for judicial review. So it all depends.
Or it might be a dispute about the budget and how much it needs to be to cover the needs appropriately. And if that's the case, the Ombudsman says that it definitely shouldn't take 9 months - the council can't be offering enough money - rationally - if nobody's interested in taking the client on - and even better, the Care Act is clearer, because the duty to meet the needs dates from the eligibility decision, not the signing off of the care plan. There should be an interim albeit second best care plan for meeting needs in the meantime.
Thank you. Support, and therefore a care plan/funding etc was already in place however her needs changed hence the reassessment. At reassessment there was professional input from all of the professionals involved ie OT, psychiatry etc. who recommended that additional support/hours/funding be implemented in order to keep her safe. The support provider agreed to do this as a temporary measure until the outcome of reassessment was reached. Despite family and the support provider regularly chasing the authority for an update/outcome they are not forthcoming with ANY information so we are unsure as to whether it's a financial/budgetary decision as they are not communicating with us. Any advice as to furthering this would be gratefully received
Well, that means that the provider is taking the hit, and is being exploited because the provider is still meeting the need. The legal analysis is that the council should have been funding the interim arrangement. The council is taking advantage of the provider's good will, so it is for the provider to say that they have waited a reasonable time - and for you to say that the person being cared for (who was due their reassessment paperwork and a revised care plan within a reasonable time) are entitled to a proper articulated decision which must be transparent fair and rational. You could each do it and cc the other party IN, to make for combined pressure.
I attended a meeting with a mother who holds budget for her daughter fully funded by CHC.She needs to be an employee whilst trying to get more staff and train them cannot get staff and has had to stop work. The ICB may consider exceptional circumstances now but she has been told that she cannot ask a friend or family member to be budget holder as it would be a conflict of interest as they would be compromised if challenged her on anything. Is this true as I have spent hours looking through guidance and still no further forward.
The advice I give about this is that if one is holding a budget as a Representative (- this is the same as being an authorised person, for a council DP) because one's funded person is mentally incapacitated with regard to understanding the essence of a PHB - OR in fact, merely nominated BY one's person who DOES have capacity to understand the essence of a PHB, the regulations say that one acts as a Principal. In legal terms, this means that one is the decision maker, the commissioner, the employer, if one is managing this sort of a budget, and that therefore one cannot be BOTH the employer and the employee because one would be hiring and firing oneself, which is not possible in terms of employment law. So I do think that the ICB has the right to say no to the Mum being the employee and the budget holder.
HOWEVER, being the employer of an employee who is a friend or family member, (in either case, living in the same household), IF it has been agreed as a necessity (- which is likely here in terms of the market shortage AND if the ICB has been prepared to agree that the Mum can be an employee in the first place, if only someone else can be found to manage the budget), is not in and of itself any different from the person with the primary health need being allowed to employ a friend or family member, themselves, if only they had capacity.
So the bottom line is that there IS a conflict regarding the budget holding and being an employee at the same time, but not with regard to employing the friend or family member. And if the friend or family members in question are not living in the same household, there is a lesser degree of control over the employment of those people anyway, in the applicable regulations. So the real issue is who to get to manage the budget.
Question for Belinda?I am an appointee for my daughter and have looked after her benefits appointments etc since she was 3 years old. She is now age 29 and has profound learning disabilities with no diagnosis. Health wise she is very healthy and medications are just for bowels, drooling and an antihistamine for sleep when needed.
Two years ago. She moved into supported living and I continue as her appointee as there is no need to be a deputy. Bills are paid by standing order or directly like her water bills. Money is given weekly for any food top ups and activities. She comes home to us regularly and myself and husband buy her food ,and send it with her when we bring her back. She comes most weekends as the complex she lives is only 20 minutes drive. Every thing is managed through her benefits with ourselves, buying her clothes. We have a contingency to pay for big items she might need.
Our daughter is health funded 100% so we have a healthy budget each month.
What I would like to know is who will take over being her appointee when we are no longer able to. We have two sons but don't want to burden them especially the younger one.
Would she be better in the future moving into residential care where there is no need for a tenancy or reliance on standing orders for bills?
What would the procedure be then for managing money? I am hoping that we will remain healthy for the foreseeable future but you never know what is round the corner.
It's now common to provide for professional appointeeship. Towards the end of your lives, you can relinquish appointeeship and the DWP will appoint a professional company, such as MoneyCarer Foundation. The service costs money, but because it is so clearly related to one's disability, and an absolute necessity, councils will generally concede that they must allow for it to be disregarded from a person's means assessment for social care charges.
Given that your daughter is currently entitled to CHC, I of course understand that she isn't charged for her care, but you cannot always assume that she won't one day lose that status.
Councils generally offer in-house appointeeship services as an incidental aspect of prevention and reduction of need functions, because if they didn't do it there would be knock- on problems for recouping social care charges, and more safeguarding concerns for people who are receiving benefits but who are vulnerable to being targeted for exploitation. It's not part of the Care Act criteria for Care Act help but prevention and reduction functions are owed to the community as a whole, and it does not matter that your daughter is a CHC recipient - the council local to wherever she is might in fact be willing to offer that service. Be warned, though, fewer and fewer of them are offering it for free; and some people think that there's a fundamental conflict of interest inherent in having in-house staff running the benefits of people who (not your daughter, but others) are dependent on the council for the adequacy of their personal budgets / care packages, AND who can only be charged a lawful charge, under the Care Act charging regulations, for services received. So there's a lot to think about.
So if I were you I would ensure that they know what to do to get a professional appointee put in place in an emergency, and commit to that direction of travel using the time to investigate the pros and cons of the companies that offer that service. The charge will simply be taken FROM her benefits. Most professional appointee companies will offer a regular welfare benefits check as part and parcel of their service.
Thank you for your detailed reply.It has given me an insight of what might be the options in the future. The future is something you have to plan for when you have a child with complex needs.
I will show my husband this reply so that we can plan for the time when we are no longer able to take care of her financial needs ourselves.
Question for Belinda: My son receives a small amount of Health funding after a CHC assessment in 2020. I felt the assessment was inaccurate because it scored low for managed conditions eg. Behaviour, choking, constipation. Without continual and expert management of these, my son would be at risk of dying. I didn't challenge this at the time because quite frankly it felt irrelevant what percentage of his funding comes from the health pot since it wasn't going to be 100% and I had greater worries at the time.
I know that a Social Care assessment must include all needs whether they are being met or not but needs that are being met are not eligible for social care funding so does the same apply to a CHC assessment - if a health need is being managed by social care staff, it scores low in the DST?
I have just been informed that we are due another assessment and I would like to learn as much as I can beforehand this time. Please could you signpost me to what I need to read. Thank you.
I think it's fair to say that the structure of the CHC decision support tool exercise is not immediately easy to correlate to the eligibility framework for adult social care, and I agree absolutely that the descriptors for CHC eligibility (Priority, Severe, etc etc) are not well worded to make it explicit that the thinking about the person's needs has got to be without regard to the input currently being received (whether for free from relatives or paid for by the current care plan).
The CHC descriptors often make the scoring of a need, depend on whether it fits into the category of known as beingable to be managed by nurses, or professionals... or "skilled carers or care workers".... or "by the individual or specifically trained carers or care workers".
The principle however, that a managed need is still a need, DOES come out loud and clear - ie that it is a mapping of ALL the needs and not just the UNMET needs that is the job of the MDT on a Decision Support Tool exercise:
See here in the Guidance on the Decision Support Tool:
31. Needs should not be marginalised just because they are successfully managed. Well managed needs are still needs. Only where the successful management of a healthcare need has permanently reduced or removed an ongoing need – such that the active management of this need is reduced or no longer required – will this have a bearing on NHS continuing healthcare eligibility.
This principle is incorporated into the domain descriptors of the DST. For example, in the behaviour domain, the level of support and skill required to manage risks associated with challenging behaviour helps determine the domain weighting. In such cases, the care plan (including psychological or similar interventions) should provide the evidence of the level of need, recognising that this care plan may be successfully avoiding or reducing incidents of challenging behaviour (refer to paragraphs 162 to 166 of the national framework and note 23 of the national framework practice guidance). For example, where psychological or similar interventions are successfully addressing behavioural issues, consideration should be given as to the present-day need if that support were withdrawn or no longer available, and this should be reflected in the behaviour domain.
BUT - and it is a big but, and not the subject of any case law that I know of - it goes on to say this:
32. It is not intended that this principle should be applied in such a way that well controlled health conditions should be recorded as if medication or other routine care or support was not present.
For example, where needs are being managed via medication (whether for behaviour or for physical health needs), it may be more appropriate to reflect this in the drug therapies and medication domain. Similarly, where an individual’s skin condition is not aggravated by their incontinence because they are receiving good continence care, it would not be appropriate to weight the skin domain as if the continence care was not being provided (refer to paragraphs 162 to 166 of the national framework).
Given that I lecture for a living, I have had to try to work out what that reference to routine care meeting need, MEANS for people.
My view is that it's a bit like equipment: if someone's needs can be met by equipment, one doesn't assess them on the footing that they haven't got it, if they in fact HAVE. Nobody is going to take it away any time soon. It is HUMAN assistance that must be left out of account, for the purpose of capturing the whole of the need, the deficiency, the deficit, and what is needed to make up for that gap.
I think that the DST guidance is referencing medication with the same sort of intention - nobody is going to take someone's equipment OR their medication away, so the good it does, HAS reduced the extent of the difficulty the person has (their need), and nothing about that is going to change.
But routine care IS human assistance, and I think that the reason this is referenced in the same context (that is, the context of when is a managed need NOT still a need for the DST descriptors) is that care providers couldn't be in business without providing the essence of what it that they do: one can't run a care home without doing laundry, for instance; one can't call it care or support if one isn't doing the bare basics of whatever it is the business exists to do. So 'routine care' here, is not the same as a dedicated bespoke behaviour support plan - however 'routinely' the staff, rightly and expertly, put that plan into effect.
I think that the aspects of your person's care such as constipation might be routine care and properly scored as low, because of being managed. I don't know what is involved. The Tool says this: Low = "Continence care is routine on a day-to-day basis; Incontinence of urine managed through, for example, medication, regular toileting, use of penile sheaths, etc. AND is able to maintain full control over bowel movements or has a stable stoma, or may have occasional faecal incontinence/constipation."
I don't even think that the DST Guidance sits well with the Decision Support Tool itself in this regard.... take this as an example. A person who is at risk of choking or aspirating on food could have that managed by the delivery of nutrition by other means, and that would be routine, once put in place. But that sort of response in the domain of nutrition is treated very differently - with scores of High or Severe - because of the skill factor that is needed to keep those delivery systems under review.
Perhaps your person is at risk of choking because of saliva production, which is of course different to feeding and drinking issues?
Maybe that should have been scored in the 'spare' domain in the Decision Support Tool. I don't think it would be fair to put it into 'Altered States of Consciousness' and score it low just because the Tool says this: Low = History of ASC but it is effectively managed and there is a low risk of harm.
However, with regard to behaviour, I think that your person should only be regarded as managed down to low if the behaviour (if not behaviour that "does not pose a risk to self, others or property or create a barrier to intervention") is being managed by medication (with a score that reflects that in the domain of Medication.
I applaud your interest in getting tooled up in advance. The actual DST form is here where you can search for the word 'MANAGED': assets.publishing.service.g...
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