The Equality and Human Rights Commission is carrying out a research project with unpaid adult carers, adult social care users and their representatives on challenging adult social care decisions.
The commission operates independently of the government to encourage equality and diversity, eliminate unlawful discrimination and protect and promote human rights.
The inquiry team will use the commissions survey results and semi structured interviews to examine people’s experiences of challenging decisions.
The hope is that the conclusions and report will help to improve law, policy and practice and drive positive change.
The commission notes that the social care system is known to be under pressure and that Covid-19 has made many of the existing problems worse.
It knows that there have been numerous reports of reduced care packages and people’s needs not being met.
Decisions made under the Care Act should comply with equality and human rights regulations and with social care laws in England and Wales. But very often they do not.
Focus on challenging decisions
Finding homes for supported living can be difficult. Lisa Brown is bringing property investors and care providers together to design and create accommodation to meet various needs.
The commission wants to know about people’s experiences of challenging or attempting to challenge a range of decisions about their adult social care or support, including support for adult carers.
The scope is limited to assessment, eligibility, care planning and revisions. It intends to investigate whether
- People are given enough information about their rights to care and support, and how they can challenge decisions.
- People can access high-quality advocacy support to help them challenge decisions
- Local councils and other bodies learn from challenges to decisions to improve future decision-making
- There are effective systems in place to check that decisions are made well the first time round.
The qualitative research will be based on survey responses and interviews. Other evidence for the inquiry will be gathered from a range of sources, including local authorities, care workers, regulators, local and national government, advisory and advocacy services, and other experts.
The commission will make recommendations for change and improvement in policy, practice and legislation and its implementation, and all organisations must have regard to its recommendations.
Managerialism has run amok within councils and the notion of what it is to be a social work professional has been undermined
No remedies means no rights
Finding homes for supported living can be difficult. Lisa Brown is bringing property investors and care providers together to design and create accommodation to meet various needs.
The subject matter of this inquiry is something that CASCAIDr is passionate about.
We were founded in 2017 specifically because of lengthy professional frustration with the problem of how those who are relatively poor, dependent on the state for care and support, could ever feasibly be supported to challenge councils’ decisions, given the framework and the means test for legal aid and the state of publicly funded specialist advice provision in England.
CASCAIDr’s view – after operating for nearly four years – is that, without effective and accessible remedies, there are no real rights.
Professional judgment and discretion should of course be the basis for individual and person-centred decisions, but managerialism, in the face of austerity, has simply run amok within councils; the notion of what it is to be a social work professional has been undermined, as independence of mind has leached away and workloads have inexorably intensified.
The requisite conditions and content of a lawful decision are not well known. The margin of appreciation that public law offers, through its loose supervisory control and governance of statutory decision-making, leads to unfortunate wriggle room for decision-makers and support for the status quo – even when it’s obviously wrong.
People have only complaints systems and the Local Government and Social Care Ombudsman (LGSCO), judicial review and the court of protection open to them, the last two of which require a lot of money and legal acumen to make any headway.
We do not think the CASCAIDr model is sustainable in the long term, unless the culture in the sector is forced through a 180° turnaround so that the public sector ethic that legality and legal awareness are prerequisites for a proper Care Act decision is somehow revived.
We think we could be looking at the end of adult social care rights before too long
Learning from legal challenges
Finding homes for supported living can be difficult. Lisa Brown is bringing property investors and care providers together to design and create accommodation to meet various needs.
The commission thinks it vital that any insights from previous legal challenges are used to improve decision-making in future, and that there are effective systems and processes in place to maintain accountability, quality and consistency in decision making.
CASCAIDr sees little evidence that the current forms of challenge meet those aims, in practice.
Complaint’s systems have become dumping grounds that serve to relieve senior managers of applying case law for resolving issues about breaches of the Care Act.
Any new case law is quickly marginalised and forgotten even by the councils involved, let alone others.
The court of protection does not have the powers of the judicial review court, and therefore no principles of public law are being developed through the use of that court in cases related to deprivation of liberty safeguards.
And the ombudsman must be metaphorically tearing out its own hair as the percentage of adult social care complaints being upheld by the LGSCO, goes up and up each year – 68% at the last count.
knowing that care packages have been reduced, the Equality and Human Rights Commission is surveying carers, users and representatives on challenging social care decisions
No easy remedy
Finding homes for supported living can be difficult. Lisa Brown is bringing property investors and care providers together to design and create accommodation to meet various needs.
From CASCAIDr’s perspective, it is no coincidence that there is no easy access to a remedy for an unlawful decision in this controversial field of welfare provision.
A deliberate choice not to create a tribunal for the coming into force of the Care Act was made by the proponents of this legislation. It was even excluded from the Law Commission’s remit when tasked with scoping for this.
Even a very weak form of independent (review) that was hurriedly thrown together was never brought in, once the Dilnot cap provisions (a partnership model proposed by the Dilnot Commission in 2011, with a much more generous means test and a lifetime cap of between Ł25,000 and Ł50,000 on social care costs) were put on the shelf.
Unsurprisingly, there has been no further thinking about a tribunal.
People’s willingness to take what they are given in general and the lack of action on negligence in adult social work decision-making must be very welcome to both central and local government.
The effect of vulnerability and dependency makes for a low level of challenge overall. Low educational attainment levels, social media and other online information make it hard for people with no legal awareness to make judgments about what to read, believe and apply about their rights.
Basic leaflets on legal rights seem old fashioned these days. People do not think about adult social care until they have to, and this means that people in crisis are not often in a fit state to absorb information, even if they happen on something of quality.
CASCAIDr’s experience in training and teaching contexts is that you can take people to the water of legal literacy, but not make them drink it or think about it.
Awareness of grounds for challenge
Finding homes for supported living can be difficult. Lisa Brown is bringing property investors and care providers together to design and create accommodation to meet various needs.
Most interestingly in CASCAIDr’s view, the inquiry will consider evidence as to whether people are aware or made aware (and how) of the grounds upon which they can challenge decisions, and the routes through which they can do this.
The care and support guidance says nothing about judicial review or the grounds for it Đ so where would people go to find out about that, we wonder?
The legislation contains all sorts of due process requirements, but the guidance does not reference these, presumably intending to make the field appear to be one in which law does not matter much at all.
It refers to complaining in paragraph 10.86 but does not mention the monitoring officer or the administrative court or even the pilot SEND (special educational needs and disability) tribunal system, which has been made permanent.
It exhorts councils to signpost people to independent sources of advice where a person is dissatisfied with a decision but there is no duty so to do or any sanction for failing in this regard.
Even the advice and information duty itself is an obligation merely to establish and maintain a system, not to provide or arrange for it nor quality assure the content of any advice or information given.
It is difficult to tell what sort of cross-section of survey responses the commission will attract.
We support people fighting for their legal rights but we think that those most likely to respond could well be people who are still aggrieved at failing, regardless of whether the law was ever on their side.
We hope that the survey (which closed on 15 September) attracted respondents including young people, elderly people, minority ethnic users/carers, LGBT people, people with learning disabilities, autistic spectrum disorders, invisible disorders, sensory impairment and mental illness, as well as travellers, homeless people and those with a substance use problems or comorbidities.
Hopes for the inquiry
Finding homes for supported living can be difficult. Lisa Brown is bringing property investors and care providers together to design and create accommodation to meet various needs.
CASCAIDr hopes that the commission will recommend that:
- Far greater attention must be paid during social work degrees to the legal framework – not just to its existence also but to how public law works in practice.
- The ombudsman will explore with councils what their excuses are for repeatedly getting the law wrong.
- Better central government funding for the ombudsman, which should be resourced so as to be able to work more quickly, thereby reducing the pressure on the administrative court as well as the need for formal legal advice.
- The monitoring officer role in the 1989 Local Government and Housing Act is treated by the ombudsman as a role that is subject to the LGSCO’s criticism.
- Care and support guidance is rewritten so the law that underpins it and the references are put back in, so people can see at once that the guidance is subject to the law, and not its master. That rewrite should specifically mention the monitoring officer and judicial review.
- Care Act advocates need to have done a module in legal literacy before they are able to practice.
