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legal: due process

set of parents who were inclined to take
on the caring role. The consequence is
that entrenched positions have
sometimes been adopted.
People who have been holding (in
name, at least) a direct payment for years,
are now being told that they cannot have
one as they do not have capacity. As a
result, a parent who is their personal
assistant (PA) cannot hold and run the
payment and also be paid under the
direct payment. This causes massive
upheaval.
I believe that this approach is defensible
if one starts out with a proper
consideration of a person’s capacity to
understand what taking a direct payment
does – which lets the council off the hook
of provision.
But surely this is not the case when a
direct payment has been used for years
and the adult client has been consensually Working it out: payments for care and support may be calculated using methods that do not
benefiting from the parent helping to reflect a client’s circumstances or the cost of providing services in the local market
“manage” the payment and the
employment relationship as agent for the what you’ve saved up”, overlooking the lawyer, who may already have given advice
service user; the parent is not a formal possibility that there may be a reason for on the matter to the adult services director.
“suitable person” so cannot be the the underspend. This may be because Therefore, the monitoring officer should be
employer and employee at the same time. care cannot be secured at any price or involved in case independent advice is
that the payment was to made to cover needed.
Direct payments to relatives contingencies and fluctuations in the
Connected to this are blanket policies that first place. excessive charging
a parent in the same household as the Most councils’ direct payment Mayhem in charging has been reported to
client should not be paid, even where agreements build in due process for CASCAIDr, with stories about service users
evidence shows that care cannot be something as life changing as a being charged more for a service than it
purchased in the area for the amount suspension of a direct payment. Contracts costs the council.
provided by the direct payment.
We simply cannot get our heads around
and employee relations will be irrevocably
“ The easiest way to soured if this process is not respected. how this even happens. Surely the people
who make charging software know that
the maximum is the cost of a person’s
remedies
Linked to the question of when the
services to the authority, and program in a
avoid getting stuck in the
complaints system is to decision is actually “made” is the question warning signal if it is exceeded?
of what one should do about it if it is
We think this is down to block (or
ask for something it thought to be so bad as to be unlawful. group household) contracting having
The complaint system is creaking, and
cannot provide ” the easiest way to avoid getting stuck in continued, despite the requirement to
disaggregate budgets in shared services.
it is to ask for something that the
We will be focusing on that problem in
could be the continuation of services, if
If the parent were to be willing, no doubt complaint system cannot provide. This the coming year as it is what we call a
“mindset” issue. n
on the minimum wage, to fill that gap in these are being provided, or a commitment
commissioning efficiency, how could it not to provide them pending the conclusion of Belinda Schwehr is chief executive of legal
be regarded as “necessary” to authorise it? the complaint process. If this cannot be advice charity CASCAIDr (www.CASCAIDr.
We would say it was the best way of done, a referral to the monitoring officer is org.uk) and owner of the Care & Health Law
avoiding legal action if the council’s the easy solution. consultancy. She has been a barrister,
Our view is that if the decision has been
solicitor advocate and university law lecturer
commissioners have been so inept as not
Ken Teegardin/www.assistedseniorliving.net to do so by councillors with no knowledge However, if the client or advocate can This article is the first of a two-part
to manage the market under the section 5
made defensibly – on paper at least
– making a complaint is appropriate.
duty, or have been left short of the means
identify an aspect of the situation that is
of social care law.
series. Part two will examine persistent
“mindset” issues in the approaches of

arguably strongly unlawful, it is a sort of
Suspension of direct payments
Kafkaesque madness to make clients
local authorities, care commissioning
groups and commissioners that affect
complain first.
Direct payments can be suddenly suspended
the delivery of social care and health
if an underspend is sitting in an account.
Complaints will not conceivably be
entitlements
Rather than argue about getting it back,
the council just says “Get on and spend
recourse to the council’s adult social care
www.cl-initiatives.co.uk resolved by a complaints officer without Community Living Vol 31 No 4 | Summer 2018 9