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legal: due process
Big issues for legal advice.

Part 1: due process

Problems with due process are commonly seen at advice charity CASCAIDr.
In the first of a two-part series on the most troubling issues in health and
social care law and practice, Belinda Schwehr looks at these

any issues with basic due instead of combined or joined-up ones by decision as to how much of anything is
process come across the screens staff who have been trained to do more enough to be seen as meeting a person’s
Mat legal advice charity CASCAIDr. than just one task. Such tasks include needs.
These are genuinely concerning, and carrying out a “carer’s assessment” or That has been the law since the late
are likely to be driven by an inadequate “children and families assessment”, or 1990s, and providing care plans is a
number of staff employed to do this work going through the continuing healthcare duty to all clients under section 25 of the
in the statutory sector. (CHC) decision support tool process. Care Act.
The following problems crop up regularly. This problem is intensified when a Written care plans are the only possible
person has been placed outside their area way to spot: the difference between a
Resource allocation versus actual costs through choice or necessity. Local defensible care plan and one that is
This concerns the Resource Allocation authorities, in the main, are not using irrational; a care plan that disregards
System, which creates a score that is used their freedom to buy in a statutory obviously relevant considerations; or one
to work out how much money can be assessment from a company acting as the that is unlawful because it breaches
made available to meet a person’s needs. council’s delegate, whose staff might be guidance or a statutory provision.
Problems arise where the figure bears no more than merely competent assessors of
relationship to the actual cost of care in single issues. what is delivered
under the working time directive, or the “ Problems with delays the caring public do not seem to grasp
the local market.
Advocates, service users and members of
The costing of live-in care is a good
example. Allocations may ignore the
that a Care Act journey is not “done” until
a care plan exists, so get lost in the
breaks that a live-in carer has to be given
continue, while nothing
their collective feet down.
weekly commission that is charged for an is delivered in complaints process, instead of putting
introduction to a person who will count as the meantime A missing care plan does not just
a worker for employment law purposes ” mean that the service user has no idea
even though they are regarded as of how council staff think that the
self-employed – and therefore responsible experts by lived experience, particularly allocation of money or services could
for their own tax and national insurance parent carers, should set up such feasibly meet assessed eligible needs. It
– with HMRC. companies pronto, and take their values also means that, when it comes to a social
We have one family where a person’s directly to the commissioners. services review, neither client nor carer
budget has fallen from £60,000 to knows what inputs the council or care
£20,000 to £3,000 in three years on the Financial allocation delays commissioning group considers it has
premise that her lifestyle had changed. There are longstanding problems with been paying a provider for.
She was at school for the first year, and delays in decision-making about financial Furthermore, there is no way of knowing
the budget paid for care and support allocation for the contents of notional whether that menu has been delivered or
during the school holidays. In the second care plans, without anything being watered down, and therefore what has
year, she was at home and going to delivered in the meantime. actually been paid for has “worked”.
college. She is still living at home and This saves councils millions of pounds, In legal terms, a provider’s own care
going to college for the third. and those who need a decision appear to plan must be adopted by the
One of the items on the scoring sheet is put up with it, instead of requesting commissioners if no other statutory care
“daily check to see if safe”, so it was “Please get on with implementing what is plan is in place, as part of a council’s
clearly not drawn up for people living in so far agreed, at least” in the meantime. section 25 commitment.
their own home. Thanks to trends in guidance to
The reason for this massive reduction Lack of finalised written care plans commissioners from personalisation
cannot be explained, we feel, merely by The staff left in post after years of gurus, care plans will often be based on
the fact that she is now able to travel to redundancies appear to know enough “outcomes” only, which is no use to
college on her own, although not home basic legal principles to cover themselves, anyone involved in a judicial review.
again in the rush hour. if the absence of finalised care plans is
anything to go by. direct payments and capacity
Separate assessments The law sees formal council care plans Some councils never really thought about
Another problem is that assessments are as the record that renders the council capacity when doling out direct payments
carried out by different agencies. This is accountable in public law terms for the in the early years of personalisation to any

8 Vol 31 No 4 | Summer 2018 community Living www.cl-initiatives.co.uk