Challenging brother's care package

[Gallivanter25]

Question for Belinda. My brother has autism, severe learning disability, is non verbal and lacks mental capacity. Nearly 5 years ago he was subject to a no fault eviction, so the local authority moved him to a care package within their locality against my mothers wishes. They previously funded an out of area care package. We have faced numerous issues with the care package and have raised numerous safeguarding concerns all of which have fallen on deaf ears as far Adult Social Services are concerned. They fail to investigate complaints properly and just make excuses for the care provider. My mother is currently challenging the care package at the Court of Protection which is proving to be a nightmare because she was unable to find legal representation for my brother. They have now removed her as a litigation friend and appointed an accredited legal representative. She’s extremely worried and numerous social workers have told her that my brother has no right to freedom of movement and must remain where he is forever, we would all like to relocate in a few years.

[LawLover Expert]

I am not able to grasp the actual question being posed here. I can't tell whether your brother is placed in a care home or is a tenant in supported living (the reference to no fault eviction from a previous setting suggests it may be the latter?).

I can't tell whether there is a challenge to the DoLS authorisation in the CoP or whether your mother has genuinely started freestanding legal proceedings about the best interests decision-making process in the CoP (which is different and which does not attract the non means tested legal aid which is available for a s21A DoLS challenge) or whether she is in adversarial CoPDoL proceedings because your brother is in fact in supported living, and not in a care home.

All these things are relevant to why no representation can be found, and frankly, an ALR has to be funded by someone and some councils are refusing to fund even that, and they have no obligation to do so, as such.

If your mother had ever taken out deputyship for finance and property for your brother, that would have given her some leverage in relation to a tenancy, if indeed a tenancy is involved. She could then have surrendered the tenancy, and forced a move to an area wherever she thought it would have been in your brother's best interests to be.

But if she has been removed as litigation friend, it will be because there is perceived to be a conflict of interest between her and her own son, and whilst this is not as bad as a position that she is the cause of the problem, it can often be the culture in which council staff work: ie to marginalise the person who is the strongest supporter of the rights of the person in question. If this is the case here, then she would likely find it difficult to get deputyship now, without there being an objection to her taking on that role. Also, if your brother is under some form of deprivation of liberty safeguards authorisation already, she would not be able lawfully to just move him through finance and property deputyship, in my view.

I don't know if she knows anything about social care law, and the limits to what it is reasonable for her to expect for your brother, so I can't comment further on that. It is one thing to be a natural advocate and speak up for someone whom one loves very much but another thing altogether to know enough about public law and the Care Act to be able to assert his rights and not MORE THAN his rights, and ultimately I have to tell you that there is insufficient legal expertise in this country and insufficient funding for legal aid for her to be able to be assisted in that regard. But no council can be obliged to do exactly what people think that they should do or what people WANT: they actually derive their powers and functions and duties from the Care Act and it's all publicly funded by other people's taxes.

The decisions councils make under the Care Act must be rational, lawful, fair and compliant with human rights, but the right court to go to for a challenge to the care package content or amount is the Administrative Court, for judicial review, not the Court of Protection. And for judicial review, one needs to be a person with less than £3000 to one's name: if that is your brother's situation there is nothing stopping your mother being his litigation friend for a legal challenge to the legality of the care package, under the Care Act.