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.
=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+
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...
Written by
Maurice_Mencap
Partner
To view profiles and participate in discussions please or .
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.
Content on HealthUnlocked does not replace the relationship between you and doctors or other healthcare professionals nor the advice you receive from them.
Never delay seeking advice or dialling emergency services because of something that you have read on HealthUnlocked.
How the authorities are using and abuseing the vulnerable to cover up there mistakes I need answers to these questions I can't get answers
Benefits, contributions and inflation. What help is out there?
Oral Hygiene Practices In supported living accommodation 
Oral health care and dental services - what do you think? 
