rightsinreality

Thoughts on the crossroads of law, politics and society – for when 140 characters just won't do. This blog contains general information and commentary on legal matters. It is not intended to provide legal advice. This blog discusses the law in England, unless otherwise stated.

Tag: Care Act

Law Commission consults on review of children’s social care law – please respond

The Law Commission is consulting until 31 October 2016 on its next programme of law reform. One of the issues it is considering reviewing is children’s social care.

There will be competition for what goes into the Commission’s next programme. If, like me, you think children’s social care law is badly in need of an overhaul then please respond to the consultation before the end of next month – see the end of the final link above. One option would be to respond to say – ‘yes please, the current law is a mess’. However I’m sure the Commission would be assisted by slightly fuller responses. Here are some outline thoughts on the issues raised by the Commission in its consultation.

Firstly, the Commission must be right that many of the factors which required new legislation on care for adults in the Care Act 2014 also apply equally to children’s social care. As previously for adults, the law in relation to children’s social care is piecemeal and patchy. Although it centres around Part 3 of the Children Act 1989, the 1989 Act has been repeatedly and confusingly amended in the intervening years and there are other important statutes, not least the Chronically Sick and Disabled Persons Act (CSDPA) 1970 for disabled children. There must be a compelling case for a simpler, more streamlined scheme for children as for adults.

Secondly, it is noteworthy that the first two specific issues identified by the Commission concern disabled children. This reflects in my view the fact that the current statutory scheme works particularly badly for disabled children. It is very difficult if not impossible for families and professionals to understand the links between the CSDPA 1970, the Children Act 1989 and the Children and Families Act 2014. The way social care law operates (or fails to operate) for disabled children therefore seems to me to be particularly ripe for review.

I will post my full response to the Commission nearer the time, but I hope the above is helpful as a starter for 10. Please do respond to the consultation and spread the word to others who may be interested. The Commission has an excellent track record of getting its proposals into law and so this is likely to be a worthwhile investment of time.

 

A new right to short breaks – but only in Scotland

I’m heading back from the fantastic International Short Breaks Association conference in Edinburgh, where I spoke about Aiming High for Disabled Children and the short breaks duty in England. This gave me a chance to look at the (relatively) new Carers (Scotland) Act 2016, which will apply from 2017-18. Although some aspects of the Scottish legislation are familiar from the English scheme (for example the requirement to publish a short breaks services statement), there are of course important differences.

The most striking difference to my mind is that in Scotland there will shortly be an enforceable right to services (potentially including short breaks) for some unpaid carers of disabled children, not just disabled adults as under the Care Act 2014 in England. This is because the Scottish Act applies to ‘carers’, who are defined simply in section 1 as ‘an individual who provides or intends to provide care for another individual ‘. There are then two exceptions, the first being ‘professional’ carers. The second exception is that the definition does not apply ‘in the case of a cared-for person under 18 years old, to the extent that the care is or would be provided by virtue of the person’s age’. It seems to me that applying this exception is likely to create practical difficulties – is the parent or other relative support a disabled child by reason of her disability, her age or both? Regulations should shed light on how this test is expected to work in practice.

Although the test may be problematic, the principle of extending a meaningful right to support to unpaid carers of disabled children in Scotland must be welcome. The high point of the English legislation in this respect is the duty under section 17ZD-ZF of the Children Act 1989 to carry out a ‘parent carer’s needs assessment’ (‘PCNA’), but as blogged previously these sections do not create any right to support.  The English short breaks duty and accompanying regulations are focussed on the commissioning of short breaks by local authorities and do not confer any individual rights.

The right to support (including short breaks) in the Scottish Act stems from section 24, which states that subject to certain criteria local authorities ‘must provide support to the carer to meet the carer’s eligible needs’. Eligibility is to be determined by reference to local eligibility criteria, although the Act contains a power for Ministers to make national criteria through regulations which would override local criteria. I can imagine some interesting discussions about whether that power ought to be used.

Section 25(1) of the Scottish Act states ‘A local authority, in determining which support to provide to a carer under section 24(4), must consider in particular whether the support should take the form of or include a break from caring’. As such there must be specific consideration of whether short breaks need to be provided in every package of support for carers with eligible needs. It may well be in many cases that the carer’s eligible needs can only reasonably be met through the provision of some sort of short break.

Much of the detail of the scheme under the new Scottish Act has been left to regulations, which are still forthcoming. I very much hope colleagues in Scotland are able to push for the most rigorous scheme that will provide an example in England and elsewhere.

One final reflection – the Care Act 2014 in England applies to disabled adults and their carers. The Scottish Act applies to carers of both disabled children and adults – but not to disabled people themselves. Is it naïve to think that we might be able to have a single joined up scheme covering disabled people of all ages and those who provide them with care? This seems particularly important when a short break must be a positive and rights-respecting service for the disabled person, not just a chance for a break for their carer.

There is a lot more in the Scottish Act than I have covered in these initial reflections. I should also stress that I am an English lawyer and am not familiar with the wider scheme in Scotland in which this Act sits. Any comments by those with more expertise will be very welcome.

Using the law to recover the cost of care which the state fails to provide

A recent case has shed some light on one of the most difficult problems that some disabled people and families may face – how to recover the cost of care which should have been provided by the state.

A typical scenario might go like this. An assessment shows that a disabled child or adult has eligible needs. There may even be a care plan put in place or other agreement on the services or funding required to meet those needs. Then nothing happens – and so the disabled person or their family is left paying for care which the state has accepted it ought to provide.

There are a number of options in this situation. For example, a complaint can be made through the local authority complaints process and ultimately to the local government or health Ombudsman, which could recommend compensation for maladministration. These recommendations are almost always followed by public bodies. Alternatively, if the local authority is asked to refund the monies and refuses, that decision could be challenged by way of judicial review on the usual public law grounds, including rationality and reasonableness. This is particularly likely to be appropriate where there are other ‘live’ issues with the care package. The sums involved would need to be significant to justify a stand-alone judicial review to recover past care costs.*

A recent case however shines a spotlight on a third option – an ordinary civil claim for ‘restitution’. The case in question is Richards v Worcestershire CC and South Worcestershire CCG and the judgment at [2016] EWHC 1954 (Ch) concerned the defendants’ application to ‘strike out’ the claim.

The value of the claim was significant, amounting to over £644,000. This reflected the costs of care for Mr Richards after his discharge from hospital in 2004. Mr Richards had been detained under the Mental Health Act 1983 and so was entitled to ‘after care’ support under section 117 of the 1983 Act. Importantly, the judgment records (at [18]) that Mr Richards was ‘not challenging the defendants’ assessment of his needs and or their decisions as to what after-care services should be provided. His case…is rather that the defendants failed to provide the services that they considered should be supplied’.

The Judge did not have to concern himself with the factual issues in Mr Richard’s case, because the defendants’ application was to strike the claim out on the basis that it was ‘not properly the subject of private law proceedings’ (at [20]). The first issue the Judge had to resolve was whether it was possible in principle for Mr Richards to bring a restitutionary claim. He decided this in Mr Richards favour, firstly on the basis that the 1983 Act did not exclude any such claim at common law. It would seem that the same analysis would apply to any of the other statutes which give rise to an entitlement to community care services, for example Care Act 2014.

The Judge also considered that Mr Richards may be able to make out a claim for unjust enrichment. The Judge recorded that ‘failure to perform a public law duty has never of itself been held to be an unjust factor for the purposes of a claim in unjust enrichment or a sufficient basis for any other restitutionary claim’ (see [36]). However it was seriously arguable that the defendants had been enriched at Mr Richards’ expense and no argument was put forward that Mr Richard’s case that the monies had been paid by ‘mistake’ could not succeed.

The second issue was whether Mr Richards was entitled to pursue an ordinary civil claim (under Part 7 of the Civil Procedure Rules) or if he needed to bring his claim by judicial review. In short, the Judge held that Mr Richards was entitled to bring a civil claim for the reasons set out at [50] in the judgment. This is potentially helpful in future cases as there is a much less strict time limit for ordinary civil claims than for judicial review.

The defendants’ application was dismissed and Mr Richards’ claim will now proceed to trial unless it now settles, which my uninformed guess says is likely.

In terms of the factors which would seem to be needed to mount a successful claim of this type, the first requirement would be a clear breach of statutory duty to provide support by the public body. It would seem unlikely that another breach of statutory duty, for example a failure to complete an assessment, would be sufficient, even if this led indirectly to expenditure on care. The claimant would then need to show the presence of an ‘unjust factor’ such as a mistake – or convince the court that the common law should be extended so that failure to perform a public law duty alone would be sufficient.

None of this is likely to be straightforward and disabled people and families will of course need specialist advice on the facts of their individual case. It may however be helpful to consider a civil claim as part of the set of legal options where a local authority or NHS body is simply refusing to cover the costs occasioned by a breach of one of their duties.

Thoughts on the above and / or examples (anonymised as appropriate) of how costs of care have been recovered in other cases are most welcome via the comments below.

*Moreover it is not possible to bring a claim for restitution alone via judicial review (see Civil Procedure Rules r 54.3(2)).

Challenging local cuts – some key legal questions

Following the political choices set out in the recent Spending Review, it would seem inevitable that local authorities are going to need to make cuts to important services next year, including those provided to children and disabled people. Recent Kings Fund analysis shows that the 2% precept on council tax is a totally inadequate solution to the funding crisis for adult social care. No-one seems to be talking about what the Spending Review means for children’s social care, which wasn’t even mentioned on the Department for Education press release – but it is unlikely to be good news.

The issue now is not whether there should be cuts, but whether the cuts which have to be made are lawful, both in terms of their effect on services and those who use them and the process by which the decisions were made. As Mr Justice Blake said in R (Rahman) v Birmingham City Council (para 46) in relation to the ‘public sector equality duty’ (PSED) found in section 149 of the Equality Act 2010:

Even where the context of decision making is financial resources in a tight budget, that does not excuse compliance with the PSEDs and indeed there is much to be said for the proposition that even in the straightened times the need for clear, well-informed decision making when assessing the impacts on less advantaged members of society is as great, if not greater.

In rather an Alice in Wonderland way, Parliament has continued to impose new duties on local authorities at the same time as central government has taken their funding away to comply with them. However this means that councils need to take the hard decisions that will be made in their budgets for 2016-17 and beyond with a crystal clear understanding of their legal obligations. Although there may come a time where a local authority is unable to set a budget which allows it to meet all its legal duties, I doubt we are there yet.

Councils are currently working up and consulting on their budgets for 2016-17, so now is the time when residents and local groups may want to ask some of these legal questions:

Will the council be able to meet all its ‘specific’ statutory duties owed to individual residents? For example:

  1. The duty to meet all ‘eligible’ needs for disabled adults and their carers under the Care Act 2014
  2. The duty to meet ‘eligible’ needs for disabled children under section 2 of the Chronically Sick and Disabled Persons Act 1970
  3. The duty to provide free suitable home to school travel arrangements for all ‘eligible’ disabled children under section 508B of the Education Act 1996
  4. The duty to secure special education provision in education, health and care plans for disabled children and young people in section 42 of the Children and Families Act 2014
  5. The duty to provide advocacy to disabled people and carers during the care and support assessment and planning process under section 67 of the Care Act 2014.

Will the council be able to meet its ‘sufficiency’ duties to have a sufficient level of particular services to meet local needs? For example:

  1. Childcare, including childcare for disabled children up to the age of 18, under section 6 of the Childcare Act 2006
  2. Short breaks for disabled children under regulation 4 of the Breaks for Carers of Disabled Children Regulations 2011
  3. Education and care services for disabled children, under section 27(2) of the Children and Families Act 2014
  4. Children’s centres, under section 5A of the Childcare Act 2006
  5. Services for disabled adults and their carers, under the ‘market shaping’ duty in section 5 of the Care Act 2014

Has the council had ‘due regard’ to the needs specified in the PSED (see above) – for example the need to advance equality of opportunity for disabled people (children and adults)?

Will the proposed cuts give rise to unlawful discrimination between different groups, contrary either to the Equality Act 2010 or Article 14 of the European Convention on Human Rights?

Has the council had regard to the need to safeguard and promote the welfare of children under section 11 of the Children Act 2004?

Has the council treated children’s best interests as a primary consideration in its decision making, as required by Article 3 of the UN Convention on the Rights of the Child?*

Has there been ‘fair’ consultation on the proposals? In particular (quotes are from the leading consultation case of ex parte Coughlan:

  1. Has consultation taken place at a ‘formative stage’, i.e. sufficiently early in the decision making to influence the outcome?
  2. Have consultees been provided with ‘sufficient reasons for any proposal to permit of intelligent consideration and response’ – i.e. do residents know what cuts are being proposed and why?
  3. Have consultees had ‘adequate time’ for consideration and response?
  4. Once the consultation has finished, has ‘the product of consultation’ been ‘conscientiously taken into account’ in the final decision.

Several of these legal principles – for example consultation, non-discrimination and the PSED – apply equally to NHS bodies such as clinical commissioning groups who may also be contemplating cuts to valued services.

If residents and local groups are not getting answers to these questions, or are unhappy with the answers coming back, then the next step may be to consult a specialist solicitor who can advise on whether there may be a challenge via judicial review. It is essential that any challenge to financial decision making is brought extremely promptly – so advice should be obtained before any final decision is made if possible, or otherwise straight after the decision.

It is also important to bear in mind that not all councils are equal – particularly given the increased focus on councils raising revenue from their own areas. Residents and local groups may want to ask questions about what level of reserves their particular council holds – particularly ‘free’ or unallocated reserves. Although spending reserves is obviously only a short term solution, it may be possible to use reserves to mitigate some of the cuts and help with transition to alternative forms of provision.

It is unlikely that legal challenge alone is going to be sufficient where cuts are proposed – there also needs to be political pressure. There are a number of guides for local groups on how to campaign, including campaigning against cuts or to save services. I really like this one from the Every Disabled Child Matters campaign.

Local politics will still come down to local priorities, although the choices will get harder than ever. In the light of the duties above, the law requires councils to give significant priority to services for children and disabled people. It is hoped that the decision by Hampshire not to cut its short breaks budget for 2016-17 is therefore one that other local authorities will follow to the extent they can.

*We can save detailed arguments about whether and why the UN CRC has to be followed when it is not directly incorporated into English law for any case that goes to court.

The difference #LBBill will make

I am re-posting here the post I wrote for Justice for LB, explaining why I think #LBBill is so important as part of the campaign for disability rights. I would be very grateful if everyone who agrees could take five minutes to contact their MP and ask them to support the Bill. It will take multiple contacts from campaign supporters to persuade MPs that this is an important issue.

It is such a thrill to see the map of the UK turning green as Justice for LB supporters contact their MPs to ask them to support #LBBill, the proposed new law to reinforce disabled people’s right to live in the community with choices equal to others.

Getting the Bill to this stage has involved the collective wisdom of a huge number of passionate and committed people. We have had input on the content of the Bill from disabled people’s organisations, individual disabled people, families, carers, friends and allies. The text of the second draft of the Bill is much improved from its first draft, with a stronger rights focus including implementation of the right to independent living in Article 19 of the UN Disability Convention.

There are some ideas in the bill that can be traced back to one individual, like Mark Neary’s original idea that all placements made by the state should be subject to approval, which is reflected in Clause 5. Others have emerged from the free-flowing discussion, debate and dialogue that has characterised the process so far.

We had hoped to have more time to debate Draft 2, it’s my fault we don’t, because I’d thought the ballot for private members’ bills was in July, whereas in fact it is on 4 June. This is the kind of mistake that would get a professional campaigner fired, but as we are all volunteers and no-one’s in charge I’ll probably get away with it. Apologies nonetheless.

So the key action now is to get as many MPs as possible informed about and supportive of the Bill, so that when we know the outcome of the ballot we have the best chance of getting a high-ranking MP to sponsor the Bill (see the #LBBill process post for a more detailed explanation of this).

One of the question supporters are likely to be asked by MPs and their staff is what difference would #LBBill make, and in particular, wasn’t this all dealt with last year in the Care Act 2014? The short answer to these questions is, a huge difference, and no. A more compelling answer to the difference question has been given by Sara Ryan in an amazing post as part of this Week 10 of #107days.

So I’ll take the lawyer’s question, which is why the Care Act isn’t enough.

I’ll be the first to agree that the Care Act is a step forward. The well-being duty in Section 1 has the potential to transform the approach to how social care is provided to disabled people. However, the Care Act is an act about social care, it says nothing about the NHS services that many disabled people need. It also falls far short of implementing a right to independent living.

In particular the Care Act doesn’t do any of these things which #LBBill would do:

  1. Require the state to ensure that all disabled people can live in their community, with choices equal to others and the support necessary to ensure their full inclusion and participation in the community (Clause 1)
  2. Expressly reject any idea of capping expenditure on care at home at the level of the cost of residential care (Clause 2). This is likely already to be unlawful but it is known that this practice goes on and it should be outlawed.
  3. Require the state to secure in every area a sufficient supply of community support, and to make sure disabled people are employed to plan and commission these services (Clause 3)
  4. Ensure that the most appropriate living arrangement is made for every disabled person who needs state help, which will generally be the arrangement they choose (Clause 4)
  5. Require appropriate approval of all living arrangements made by the state (Clause 5)
  6. Require reporting on all living arrangements made by the state, to create the disinfecting effect of sunlight which is so badly lacking at present (Clause 6)
  7. Make the Mental Capacity Act 2005 more respectful of the rights of disabled people and their carers, as a prelude to proper systemic reform of the MCA (Clause 7)
  8. Take people with learning disabilities and autism out of the scope of the civil sections of the Mental Health Act 1983 (Clause 8)
  9. Ensure the provision of appropriate community mental health services to people with autism and learning disabilities (Clause 9)
  10. Abolish the use of secret ‘panels’ and require disabled people and those around them to be properly involved in all decisions made about them (Clause 10)

So, none of #LBBill duplicates anything that is in the Care Act, or other existing legislation. It’s all new and it’s all what the community of #JusticeforLB supporters has said is needed if the law is to properly reflect and respect disabled people’s human rights.

With the government expected to announce today its intention to repeal the Human Rights Act and replace it with a British Bill of Rights, let’s get our politicians thinking about the rights disabled people and their families have said they want and need to be enshrined in law. Please keep pushing so that every MP knows about #LBBill and knows how much it matters in advance of the ballot.

Amendments to the key duty for disabled children’s social care

At one level this is an extremely geeky post – covering the amendments to various social care duties for disabled children’s social care now the Children and Families Act 2014 and the Care Act 2014 are both in force. However it serves an important purpose, which is to highlight how far we are from a single coherent scheme to make sure the education, health and care needs of every disabled child are properly met. Some of the changes made are also potentially important, including a new duty to provide information on services to disabled children.

This post concerns the attractively named Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015. This is ‘secondary’ legislation, being law made by the Minister – in this case the Secretary of State for Education.

Its purpose is to make changes to the various Acts of Parliament which are affected by the new schemes introduced by the Children and Families Act 2014 and the Care Act 2014. You might ask how a Government Minister gets to change the wording of an Act of Parliament – surely that’s a job for, well, Parliament. The answer to this lies in section 136 of the Children and Families Act 2014 and section 123 of the Care Act 2014. Through these sections Parliament has allowed the Secretary of State to make an Order changing other Acts of Parliament as a consequence of the two Acts passed in 2014.

Any boy has she done so. The Order makes amendments to 39 different Acts of Parliament on my count. These include the Opticians Act 1989 and the Water Industry Act 1991 which need not concern us – but on any scale it’s a huge number of changes. There is a very helpful summary of all the changes in the Explanatory Memorandum published with the Order for those who want the complete picture.

To see the changes themselves you need to look at the Schedule to the Order. Many of the amendments concern restricting previous legislation solely to Wales. However there are important changes made through the Order to section 2 of the Chronically Sick and Disabled Persons Act 1970 – which I am constantly banging on about because it is the key duty to provide disabled children with social care services. These changes apply to England and Wales and are found from paragraph 19 of the Schedule.

What the Order does is insert new sub-sections into section 2 of the CSDPA 1970 – see para 21 of the Schedule. Sub-section 4 now reads:

Where a local authority have functions under Part 3 of the Children Act 1989 in relation to a disabled child and the child is ordinarily resident in their area, they must, in exercise of those functions, make any arrangements within subsection (6) that they are satisfied it is necessary for them to make in order to meet the needs of the child.

So the key duty to provide disabled children with social care services is now in section 2(4) of the CSDPA 1970 (as amended). It seems to me that this works in the same way as the previous duty in section 2(1) – the local authority must assess the child’s needs under section 17 of the Children Act 1989 and the Working Together statutory guidance, and then decide whether it is ‘necessary’ to provide any of the specified list of services.

The list of services is now found in sub-section 6. Some of the wording has been tidied up but it is in practice the same as the previous list – and so covers every type of conceivable social care service apart from residential short breaks. To emphasise – there is an individual right to these services for every disabled child where after an assessment the local authority accepts that it it is necessary to meet their needs by providing them.

It is also very helpful that the new 2015 version of the Working Together guidance says at p18 that:

When undertaking an assessment of a disabled child, the local authority must also consider whether it is necessary to provide support under section 2 of the Chronically Sick and Disabled Persons Act (CSDPA) 1970. Where a local authority is satisfied that the identified services and assistance can be provided under section 2 of the CSDPA, and it is necessary in order to meet a disabled child’s needs, it must arrange to provide that support.

This shows the link between the duty to assess under the Children Act 1989 and the duty to provide services under the CSDPA 1970 in the clearest possible terms.

The Order also creates a new right to information about the services for disabled children under CSDPA 1970 section 1(5) – see para 20 of the Schedule. This seems to be a kind of tailored ‘local offer’ for individual children which could be very important. The Explanatory Memorandum says nothing about the purpose of this amendment – it simply seems to have been made to reflect the existing duty in relation to disabled adults. However any new right to information for disabled children must be welcomed – and interestingly the right is for the child to be informed, not the parent. I look forward to a host of new accessible information on available services for disabled children from every local authority.

There may well be some other important amendments – for example the carer’s assessment duty under section 6 of the Carers and Disabled Children Act 2000 has been amended to apply only to Wales, as there are new provisions for parent carer’s needs assessments in England. However as far as I can tell there is nothing of substance changed – nor should there be in an Order intended to make only consequential amendments.

To return to where this post started – in no rational world would we need to amend 39 Acts of Parliament when we have introduced two new Acts that are supposed to ensure proper support is provided to disabled children and adults. However what the Order highlights most clearly is that social care for disabled children falls through the gap between the two 2014 Acts – which is why this support is still being provided under an Act passed for disabled adults in 1970. Perhaps this will be remedied in the next Parliament.

Easier read – Disabled people’s rights if the Independent Living Fund closes

I’m very grateful to Anne Collis at Barod for taking the time to turn my long post about the closure of the Independent Living Fund into easier words.

This is about England. Scotland and Wales have different rules.

The Government says they are closing the Independent Living Fund on 30 June 2015.

Disabled people are still campaigning to #SaveILF. Two disabled people have complained to the United Nations Disability Committee. But the Government has not yet changed its plans.

This is what the Government plans to do in England if the Independent Living Fund closes.

The Government will give extra money to local councils. But:

  • They are giving less money than the Independent Living Fund spent
  • The local council does not have to spend the extra money on support for disabled people

Many people are very worried and angry about this.

  • The Independent Living Fund supports 18,000 disabled people. This is a lot of people.
  • How can local councils give them good support and make budget cuts?

There are elections in May. Only the Green party has said they will save the Independent Living Fund.

So we need to plan for 1 July 2015.

Disabled people need to know their legal rights.

Anyone getting money from the Independent Living Fund needs to plan for 1 July 2015.

From 1 July 2015, people who get support from the local council and the Independent Living Fund will get all their support from the local council.

By law, people should still get enough support.

But I think people may need to challenge their local council to get this support.

The Care Act 2014 is a law. Everyone must do what a law says.

Chapter 23 (from paragraph 26) of the Care Act guidance says what happens when the Independent Living Fund closes. There is also an Easy Read version of the guidance.

The Care Act 2014 says that local councils must meet all a disabled person’s “eligible needs” when the Independent Living Fund closes.

This means local councils must know each person’s “eligible needs” before 1 July 2015.

The Care Act has rules to work out someone’s “eligible needs”.

“Eligible needs” are needs that the local council must meet.

Local councils must make plans so people do not have problems with support while the Independent Living Fund is being closed

You may have “eligible needs” if you need support so you can:

  • Be safe at home
  • Keep your home in a fit state
  • Make and keep friendships
  • Get involved in work, training, learning or volunteering
  • Use community services
  • Care for a child (if you have a child)

Section 18 of the Care Act 2014 just says the local council must “meet needs”.

Some local councils may think this means they can put someone into a care home if this is cheaper than support to live at home.

The guidance (paragraph 10.27) says local councils can balance what someone wants with how much money the local council has.

But the guidance also says local councils are not allowed set a maximum amount they will pay for support to live at home.

Paragraph 11.7 says local councils must at all times respect how someone wants their needs met.

It says local councils cannot assume people must move into a care home just because it is the cheapest option.

The Human Rights Act 1998 means:

  • people cannot be treated in an inhuman way
  • people have a right to a family life

The Courts may also look at the UN Convention on the Rights of Persons with Disabilities.

This says disabled people must be able to choose where they live, just like people who are not disabled.

I think that it would be against the Human Rights Act to make a disabled person go and live in a care home when the Independent Living Fund closes.

So if a local council says someone must go into a care home, they may be breaking the law.

The Care Act says local councils must “promote that individual’s well-being”.

The Care Act has a list of what “well-being” means.

The list sounds as if people cannot be forced into a care home.

But the Courts will have to decide if the local council can force someone into a care home despite what the Care Act says.

The Care Act guidance (paragraph 11.26) says someone cannot get direct payments if the local council could arrange the same support and achieve the same outcomes but cheaper.

The Care Act says what must happen when the Independent Living Fund is being closed:

  • Someone from the Independent Living Fund and someone from the local council should come to see you
  • The local council must do a full assessment, using the Care Act rules

Just doing a visit is not the same as doing a full assessment.

I hope we can still #Save ILF.

  • Tom Shakespeare spoke on Radio 4’s A Point of View. He said why we need to #SaveILF.
  • The Independent Living Strategy group are about to launch a survey about independent living.
  • Kate Belgrave and Ros Wynne-Jones made a film with disabled people saying why we need to keep the Independent Living Fund.

The Independent Living Fund helped disabled people to be independent. Will the Care Act do the same thing?

If the Independent Living Fund closes, I think a lot of people may need to go to Court to get their rights.

Here are some lawyers who may be able to help you go to court. They can tell you about legal aid to pay for the costs of going to court.

I hope this post helps you to plan for 1 July 2015.

We must not let local councils act as if disabled people do not have human rights.

Please add your comments on how your local council is getting ready for 1 July 2015 and any worries or questions you have.

#SaveILF

What’s the point of a parent carer’s needs assessment?

In all the excitement of Care Act Day, it is important not to lose sight of the fact that important provisions of the Children and Families Act 2014 for parent carers of disabled children and young carers also come into force today (1 April 2015).

I plan to blog about the duties to young carers contained in both the Children and Families Act and Care Act shortly. However this post aims to answer a simple question which I have been asked a number of times – what’s the point of the new parent carer’s needs assessment (PCNA) introduced by section 97 of the Children and Families Act?

One thing is crystal clear – there is no new right to services for parent carers of disabled children, as there is for family carers of disabled adults under the Care Act. What we have for parent carers of disabled children is a new assessment duty – and one that should lead to a better informed decision about the holistic package of support that disabled children and their families need.

Section 97 inserts three new sections into the Children Act 1989 with effect from today (1 April):

  1. Section 17ZD is the assessment duty. It requires that a local authority must carry out a PCNA where it appears to the authority that the parent carer may have needs for support or the authority receive a request from the parent carer to assess, and the local authority are satisfied that the disabled child and family are eligible for support under section 17 itself. Given the broad definition of ‘disabled‘ children in need under section 17(10)(c) and (11) and the fact that support can be provided for any family member of a disabled child under section 17(3), this second requirement is unlikely to prove a problem. Nor is there any requirement for parent carers to be providing a particular level or intensity of care; any parent carer who requests a PCNA is entitled to one – indeed as with the Care Act assessment duty local authorities must proactively seek out parent carers who may have needs for support and offer them an assessment (a point reinforced by sub-section 14). The only exception to the duty to assess is if a ‘care-related assessment’ has already been carried out and the needs have not changed – unlikely given the dynamics of family life generally and particularly with disabled children.
  2.  Section 17ZE, which supplements the assessment duty by:
    1. Making clear that providing care includes providing practical or emotional support (sub-section 2);
    2. Allowing for the PCNA to be combined with any other assessment of the parent carer or disabled child (sub-section 3). However in my view this should only be done with the agreement of all concerned, including the disabled child where they are capable of giving or withholding consent;
    3. Allowing for regulations to be made to supplement the duty (sub-section 4). However as at 1 April 2015 no such regulations have been made.
  3. Section 17ZF, which is titled ‘Consideration of parent carers’ needs assessments‘. This is the ‘so what?’ duty – having done the PCNA, what are the local authority supposed to do with it? The answer is that they must ‘consider the assessment and decide‘:
    1. Whether the parent carer has needs for support in relation to the care which he or she provides or intends to provide;
    2. Whether the disabled child cared for has needs for support;
    3. If A and / or B applies, whether those needs could be satisfied by services which the authority may provide under section 17; and
    4. If yes, whether or not to provide any such services in relation to the parent carer or the disabled child (emphasis added)

So the high point of the PCNA duty is a duty to decide whether or not to provide services to meet the needs identified through the assessment. This falls some way short of the duty to meet eligible needs created by section 20 of the Care Act for family carers of disabled adults.

Importantly however, in carrying out every PCNA the local authority must have regard to the well-being of the parent carer and the need to safeguard and promote the welfare of the disabled child cared for and any other child for whom the parent carer has parental responsibility; section 17ZD(10). ‘Well-being’ here has the same meaning as under the Care Act and so is very broad. This should mean at least that the ‘holistic’ assessment of disabled children required by the Working Together statutory guidance is strengthened by a specific assessment of the needs of their primary carer(s). 

There are however a number of further problems with PCNAs:

  1. The most obvious problem is that they are only available for parent carers. Luke Clements has described this as the ‘grandparent problem‘ (see p53). In order to ensure that non-parent family carers still have a right to an assessment, section 1 of the Carers (Recognition and Services) Act 1995 is remaining in force. As Prof Clements notes, ‘The 1995 Act creates a higher assessment threshold for carers than does the Children & Families Act 2014, section 97 (ie the ‘regular / substantial care’ requirement and the obligation on the carer to request an assessment)‘. This ‘solution’ is therefore messy at best.
  2. A second fundamental problem is the complete absence of read-across between the PCNA duties and the key duty to provide disabled children with social care services, which is found in section 2 of the Chronically Sick and Disabled Persons Act 1970. This may not be a problem in law, as the case law is clear that local authorities discharge their duties under the CSDPA 1970 by carrying out their functions under section 17 of the Children Act 1989. However it will almost certainly be a problem in practice, as local authorities will be well aware that the section 17 duty is owed generally to children ‘in need’ and does not give rise to an individual right to services for a particular child or family – so said the majority in the House of Lords in the Barnet case. So we may see local authorities wrongly assuming that neither the PCNA or a child ‘in need’ assessment for a disabled child can lead to services as of right to the child. Any misapprehension to this effect needs to be corrected urgently. It is true that services under the CSDPA 1970 can only be provided to the child not the parent – but as we have seen one of the functions of the PCNA is to determine what level of support should be provided to the child.
  3. There are now far too many social care assessment duties for disabled children, young people and their family carers. At the last count we have:
    1. The implied duty to assess disabled children as children ‘in need’ under section 17 of the Children Act 1989, as governed by the Working Together statutory guidance;
    2. The duty to carry out an assessment of education, health and care needs under section 36 of the Children and Families Act 2014 – the route in to an EHC Plan;
    3. The PCNA duty in section 17ZD of the Children Act 1989;
    4. The duty to assess all family carers in section 1 of the Carers Act 1995; and
    5. The Care Act transition assessment duties for both disabled young people and carers – which will be the subject of a later post.

This may not even be a complete list – for example it seems the parent carer’s assessment duty in section 6 of the Carers and Disabled Children Act 2000 is still in force, although this would appear to have been made redundant by the advent of PCNAs. Such a lengthy list of assessment duties doesn’t seem to me to be a sensible approach to making sure the needs of disabled children and families are met in a streamlined way.

So at best there is only a qualified welcome to PCNAs. They are far from pointless as they should inform the service provision decision for the disabled child in their family context. However their impact will depend to a great extent on whether local authorities comply with the spirit not just the letter of the new obligations – which is a central theme across all the new reforms.

Comments on emerging practice re PCNAs welcome below.

Five headline changes in the Care Act 2014

It’s Care Act Eve (The Night Before Care Act?) and time to focus on the good the new legislation may bring.

Yes, there’s not enough new money, with some councils issuing judicial review proceedings against the Secretary of State as a result. Yes, there hasn’t been enough time to prepare; Luke Clements has highlighted that there was a three year implementation period for the NHS and Community Care Act 1990, whereas the Care Act comes into force less than six months since the final guidance was published. So the world will not magically become a better place for people with needs for care and support overnight. However there are undoubtedly aspects of the new law which everyone interested in the rights of disabled people and carers must surely welcome. In the spirit of an earlier post on the Children and Families Act 2014, here are my top five changes:

  1. The well-being duty.The Care Act begins with what the guidance describes as a ‘principled approach‘ to adult social care in section 1. The precise words bear close consideration: ‘The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual’s well-being’. As the guidance highlights, the involves local authorities actively seeking to improve the well-being of disabled people and carers in everything they do under the Care Act. Moreover ‘well-being’ is very broadly defined; the first aspect mentioned in section 1(2) is ‘personal dignity‘ and the list includes ‘control by the individual over day-to-day life‘ and ‘participation in work, education, training or recreation‘. It is clear from section 1(3) that judgments on well-being are subjective; local authorities must have regard to ‘the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being‘. The guidance is perhaps somewhat ambitious in suggesting that the well-being duty effectively incorporates Article 19 of the UN Convention on the Rights of Persons with Disabilities, but it certainly strongly points local authorities in the direction of that obligation. If the spirit of the duty is adopted by local authorities then this will be a game changer in the way care and support is provided.
  2. Advocacy. If the well-being duty is the major change of principle, the advocacy duties might lead to the most significant change in practice. Section 67 requires independent advocates to be appointed at all stages in the care and support process where a disabled person or carer would have ‘substantial difficulty‘ engaging in the process and there is no ‘appropriate person‘ to represent and support them – note that the disabled person or carer can object to a suggested ‘appropriate person‘ and this should be respected. Section 68 creates a parallel duty to appoint advocates during safeguarding enquiries and reviews. The rights and duties of independent advocates are set out in the extensive Advocacy Regulations. Although there are some curious features of the regulations – should an independent advocate really be reporting to the local authority when things go wrong in the care and support process? – they plainly give advocates significant status and power in the care and support process. Many people will of course be entitled to both a Care Act advocate and an IMCA under the Mental Capacity Act 2005, and thankfully the guidance confirms that this can be the same person as long as they are qualified to take on both roles. The main issue seems likely be be under-supply of Care Act advocacy; a recent survey of providers found none who were confident that sufficient funding would be made available to meet the advocacy duty. Let’s hope this has changed in the past few weeks.
  3. Rights for carers. This one is for Mark Neary, who I’ve been promising for some time that I would try to show that the Care Act does something really significant for carers. The big news is section 20, which for the first time creates an express statutory duty to meet carer’s eligible needs. Previously there was a right to an assessment for carers, but no clear right to a service. Of course everything won’t suddenly be rosy for carers – for example local authorities are entitled to charge for support to carers under section 14, although the guidance discourages this (charging carers is described in the guidance as a ‘false economy’).  However there is now an obvious point to carer’s assessments, not least because a carer may be entitled to a service in their own right even if the disabled person doesn’t have eligible needs. Note also that there is no requirement for carers to be providing ‘regular’ or ‘substantial’ care – any level of informal care opens the door to an assessment and support for a carer’s eligible needs.
  4. National eligibility criteria. Adios the ‘FACS bands’ – no more ‘critical‘, ‘substantial‘, ‘moderate‘ or ‘low‘. Instead eligibility for both disabled people and carers is governed by the criteria set out in the Eligibility Criteria Regulations. The link is to a previous post where I’ve set out why I think the eligibility threshold for disabled people is set significantly lower than the current ‘substantial‘ band. Similarly for carers, the bar is not set too high – the carer has to be providing ‘necessary care‘ and there has to be a ‘significant impact‘ on their well-being, but many carers will meet these and the other tests in the regulations. So in my view many more people will have a right to have their needs met under the new scheme than the present scheme. This will be most obvious in the handful of ‘critical only’ authorities (Northumberland, West Berkshire, Wokingham – any others?) but may well also be the case in the many other areas currently operating a ‘substantial‘ threshold. The early case law will make clear whether I’m right about this.
  5. The extension of the Human Rights Act 1998 to non-state care providers. This is a change which has not had anything like the publicity it deserves. Section 73 puts paid to the long-running debate about whether private and voluntary sector care providers are caught by the HRA 1998. It is now clear that  all registered care providers providing care arranged or funded by a local authority are exercising ‘functions of a public nature‘ and must respect the incorporated ECHR rights. This means, for example, that private care providers will have to comply with the substantive and procedural obligations imposed by Article 8 ECHR (right to respect for private and family life and the home) in reorganising or closing services. It also potentially makes private providers liable for breaches of Article 5 ECHR occasioned by an unauthorised deprivation of liberty – something which should give charities and companies providing care serious pause for thought after the Supreme Court’s judgment in Cheshire West. What section 73 means for disabled people and carers is that their human rights must be respected regardless of the nature of the body actually providing them with care or support that is funded or arranged by the local authority. In the contracted-out world of social care this provides essential clarification and human rights protection.

So that’s my starter for five. There are many other candidates, please feel free to highlight any I’ve missed in the comments below. It’s important to note that under the transitional order the new scheme will apply from tomorrow (1 April) to new entrants to the system, with all existing recipients of social care to be reassessed or reviewed under the Care Act by April 2016. This is the date the new charging scheme is supposed to take effect, including at present an entitlement to free lifetime care for anyone who has an eligible need before their 25th birthday. Let’s hope that the swingeing cuts to local authority budgets don’t prevent the Care Act from realising at least some of its huge potential by that date.

For more on the Care Act, the website of Professor Luke Clements is an absolutely indispensible resource – check out in particular the updated overview briefing. This will have to keep us going until the next edition of Community Care and the Law comes out. There are also a huge range of resources produced by SCIE, the most recent on transition from children’s to adult services, which might merit a blog post of its own…

Disabled people’s legal rights if we can’t #SaveILF

Although the Independent Living Fund operates in Scotland and Wales, the post is focussed on the transfer to Local Authority support in England.

The government has decided to close the Independent Living Fund (ILF) with effect from 30 June 2015. The description of the ILF on the gov.uk website (link above) is that the ILF ‘delivers financial support to disabled people so they can choose to live in their communities rather than in residential care’. The contradiction between closing the ILF and the aims of the No Right Ignored green paper is stark and obvious. The sum being transferred to local authorities is less than the current funding through the ILF and is not ringfenced.

Disabled people and organisations are campaigning under the #SaveILF banner to try to reverse the closure decision. The first judicial review challenge to the closure decision succeeded in the Court of Appeal. The second judicial review challenge failed after the government re-made the closure decision. This is a rare example of a fundamental weakness with judicial review – that a challenge to the process which succeeds may just result in the decision being taken again lawfully. The most recent legal step in the campaign was a complaint to the UN Disability Committee launched last week by two disabled women.

It goes without saying that I strongly agree with all those challenging the closure decision. The ILF has been closed to new applicants since June 2010 and doesn’t support anywhere near enough people – but you deal with the unfairness this creates by providing better community support for all disabled people, not by taking away vital funding from those whose lives have been fundamentally changed for the better by the ILF. The numbers involved are also significant – the ILF currently supports around 18,000 people. How realistic is it to expect that local authorities will manage well the transfer of responsibility for this group of severely disabled people at a time of deep cuts to their budgets across the board?

However there has been no clear promise that I have seen from any of the major parties to reverse the ILF closure decision after the May election. It seems that only Caroline Lucas for the Greens has expressly supported retaining the ILF. Hope that Labour would reverse the closure decision if in government after the election appears to have been dashed. I hope this changes – but given the Fund closes at the end of June we can’t afford to wait to work out what happens next if (as seems highly likely) the closure decision stands.

The headline message is that the responsibility for providing support for disabled people who have received ILF funding will transfer solely to Local Authorities. My view is that the law is likely to require in most cases that a very similar level of support is provided after transfer – although that may well not be what happens in practice without challenge from disabled people, advocates and friends, families and allies. In particular it will be unlawful if the closure of the ILF results in disabled people being forced into residential care. I’ll explain my thinking on this below – but first we need to look at what the official guidance says on the ILF closure process.

The starting point is the statutory guidance issued under the Care Act 2014, as it will be unlawful for Local Authorities not to follow this guidance in the absence of a considered decision not to do so. There is also non-statutory guidance on the ILF transfer programme issued by the Fund in April 2014 and aimed at current ILF recipients. This guidance describes a six stage transfer process which should be followed.

The Care Act guidance deals with issues relating to ILF closure in chapter 23 on ‘Transition to the new legal framework’. The section on the ILF starts at para 23.26. In the second paragraph (23.27) the guidance states ‘Local authorities will have to meet all former ILF users’ eligible needs from 1 July 2015. Funding in respect of former ILF users will be distributed to local authorities on the basis of local patterns of expenditure following transfer, to allow them to meet users’ care and support needs’ (emphasis added).

It is therefore essential that there is a proper determination of which needs are ‘eligible’ before the ILF closes for every current ILF recipient. As the guidance states at 23.28, ‘Local authorities will need to plan for the transfer of adults currently receiving ILF payments to ensure that their care and support continues and is not interrupted during this period’.

To do this Local Authorities will have to complete an assessment under the Care Act and apply the new national eligibility criteria to determine which needs are eligible for support.  As I have blogged previously, I think that the new national eligibility criteria are more generous that the current ‘substantial’ band. Importantly the outcomes which can make a person ‘eligible’ include:

  • Being able to make use of the home safely
  • Maintaining a habitable home environment
  • Developing and maintaining family or other personal relationships
  • Accessing and engaging in work, training, education or volunteering
  • Making use of necessary facilities or services in the local community
  • Carrying out caring responsibilities for a child

These are the kind of independent living outcomes which the ILF has previously funded.

The duty under section 18 of the Care Act 2014 is to ‘meet needs’, not provide a particular service. This raises the possibility that a Local Authority would purport to meet a person’s needs by a means which does not promote an independent life for them – at its most stark by offering only a package of residential support in a care home on grounds of cost. We know some local authorities are already operating ‘maximum expenditure policies’ where the cost of care at home is capped at the level of the cost of a care home placement for that person.

Para 10.27 of the guidance is of great importance in cases like this:

In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value. (emphasis added)

This final sentence is obviously key. Needs should be met in the way which delivers the desired outcomes for the best value. None of this will be achieved by forcing a disabled person into a care home or other residential accommodation against their will. This is reinforced by a later paragraph of the guidance, para 11.7:

At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option. (emphasis added)

So in addition to this clear message in the Care Act guidance, what are the ‘related public law duties’ that local authorities will have to comply with when someone transfers from ILF support? As well as the general requirement to act rationally, reasonably and fairly, one of the central requirements will be to respect the person’s human rights. This includes the ECHR rights directly incorporated into English law by the Human Rights Act 1998, most notably Article 3 concerning freedom from inhuman and degrading treatment and Article 8, which mandates respect for the individual’s family and private life and their home. Article 5 ECHR is also important, as it protects a person’s liberty which may be deprived if they are placed in a care home against their will. These rights bring with them ‘positive obligations’ on the state to take steps to avoid them being breached.

However the recent Supreme Court judgment in the Benefit Cap case (R (SG) v Secretary of State for Work and Pensions) makes clear that in interpreting the ECHR rights incorporated by the Human Rights Act 1998 the rights under the other human rights conventions may also be highly relevant (blog post on what the Benefit Cap judgment means for international human rights in English law to follow). The most obviously relevant right in the UN Convention on the Rights of Persons with Disabilities (CRPD) in ILF transfer cases will be Article 19, headed ‘Living independently and being included in the community’. The essence of Article 19 is that disabled people should be able to choose where they live on an equal basis to others, not to be forced into particular living arrangements (this is also the principle behind the #LBBill being promoted by the Justice for LB campaign). So any decision taken by a local authority which requires a former recipient of ILF funding to live in a place or in a way which is different than they would choose may well breach Article 19 of the CRPD, read with Article 8 ECHR.

Would such a decision breach the Care Act itself? Possibly, depending on how the courts interpret the well-being duty in section 1. This duty states that in carrying out their Care Act functions in an individual case the local authority must ‘promote that individual’s well-being’. ‘Well-being’ is then defined in a lengthy list of factors, including ‘personal dignity’ and ‘control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)’.

It may well be that the courts hold that forcing a person into residential care against their will breaches the well-being duty. However notably absent from the list in section 1(2) is the principle of choice which is so central to the Article 19 CRPD obligation. This is why there must be some degree of caution about the optimistic words of the Care Act guidance at paras 1.18-1.19; ‘Although not mentioned specifically in the way that “wellbeing” is defined, the concept of “independent living” is a core part of the wellbeing principle…The wellbeing principle is intended to cover the key components of independent living, as expressed in the UN Convention on the Rights of People with Disabilities (in particular, Article 19 of the Convention)’. However the guidance should be read at face value until a court expresses a different view.

The link between the well-being duty and the ILF transfer process is expressly made in the Care Act guidance at 23.29. However the guidance also makes clear not only that resources are generally relevant to local authority decisions (see para 10.27 cited above), but also that direct payments may not be made ‘where the costs of an alternate provider arranged via a direct payment would be more than the local authority would be able to arrange the same support for, whilst achieving the same outcomes for the individual’ (para 11.26). We may well therefore need the full force of the human rights obligations to stop disabled people’s right to independent living being undermined by the ILF closure.

The Care Act guidance describes a ‘Transfer Review and Support Programme’ being run by the ILF to assist users to transfer to local authority support. This should involve a face-to-face meeting with an ILF assessor and a local authority representative. However this cannot take the place of a full assessment by the local authority and a determination of eligible needs under the Care Act eligibility regulations. This is plainly required given that the closure of the ILF will be a highly relevant change of circumstance for those who currently benefit from it.

I hope that everything I have written above will become entirely irrelevant because the next government will heed the call to reverse the ILF closure decision. If it doesn’t, given the overall pressures on local authority budgets it seems likely that many post-ILF cases will be fought out between disabled people and their local authorities, including in the courts. This does not seem to be the most auspicious of likely starts for the new Care Act era.

The need to save ILF has been highlighted powerfully recently by Tom Shakespeare on Radio 4’s A Point of ViewThe Independent Living Strategy group – a group of disabled people and allies from a range of organisations concerned about independent living – are about to launch a survey about people’s experiences of independent living and specifically the ILF transfer. This film by Kate Belgrave and Ros Wynne-Jones shows disabled people making the case for why ILF should be retained. As Daphne Branchflower states in the film, ‘everyone…deserves to be able to reach their full potential. The ILF definitely helped me to reach my full potential’. Will we be able to say the same about the Care Act in five or ten years time?

I hope this post is some help for disabled people and their allies who are planning for the transfer from ILF to local authority only support from 1 July 2015. We must not let the dire (and understandable) predictions that local authorities will breach disabled people’s human rights after ILF transfer come to pass. Comments on how the process is working and any observations on these legal issues most welcome below.

#SaveILF

%d bloggers like this: