New Feature writer! Belinda has been doing legal framework training and consultancy in the adults’ social care sector for 15 years now. She blogs over at Schwehr on CARE and very kindly agreed to pop over and talk a little law with us – Joe
For me, the decision to overhaul social care / community care law with the Care Act 2014 (just in force since April 2015) represents a sort of unintended ‘long service’ gift for hard labour in the sector (not a retirement present, at least not yet!). It’s a formalised acknowledgement that law DOES matter – in a field where most social work graduates have never been to a lecture about the difference between private and ‘public’ law, don’t know what judicial review is, and why you can’t actually get it, in the Court of Protection, and certainly wouldn’t know the difference between the European Convention on Human Rights, and the UK’s own Human Rights Act. I don’t think that it’s too hard to teach, but lecturers on social work courses will very rarely have studied law or done law, and I guess that the curriculum just becomes a perpetuation of what they feel comfortable including in the course…
I do what I do because I can’t think of an area of institutional activity where up to date legal awareness could be any more needed – as a bulwark against arbitrariness, and culturally embedded certainty that a council would have to be really unlucky, to be really astutely challenged by any person who might have care and support needs. The belief is that the vulnerable will not bite the hand that feeds them, at an institutional level, I find, although relying on that sort of assumption is the very opposite of what social work students are taught, in terms of values. The idea that social workers have special powers of intervention in the lives of adults, for good, under statutes, but don’t actually need to know where their powers start and stop, is still absolutely astonishing to me, and the surrealism and double speak in the sector never cease to amaze me. But working to temper all that, with a bit of legal literacy, within the social care sector, has made life as a lawyer infinitely more interesting and entertaining than 25 years doing tax law or mergers and acquisitions would have done, I am certain!
My hope for the Care Act is that its provision – as a mandatory statutory duty – of independent, funded advocacy for the most important bits of the assessment and care planning process – will change the game for people with cognitive impairments and for those without as well. I’m hoping it will do this through the impact of the existence of skilled advocates throughout the country, influencing everyone else’s gut feeling about how good they have to be at their jobs, rather than complacent or acquiescent in some of the dodgier excesses of managers, (often interims, on Performance Related Pay for cutting the spend). That is, everyone will become more aware that it’s legal rights that underpin some of the touchy feely bits of the Care Act guidance and architecture, not just waffle and sentiment or ‘values’. We get the social work staff we deserve, to my mind, and we must re-professionalise them, and invest in their continuing professional awareness of how to find out whether the law just changed!
Here are some examples:
Advocacy itself: funding skilled knowledgeable assertion of a person’s rights is a practical step towards maximising the prospects of involvement of someone of less than full capacity – something we should already all have been doing under the MCA, since 2007!
Involvement rights (eg in assessment, care planning, revisions and safeguarding): public law, and particularly the common law standard of fairness for public bodies’ decision-making, in this country, is where the inclusive notion of ‘Nothing about us without us’, actually comes from. The two most basic aspects of public bodies’ procedural fairness obligations are ‘Hear the Other Side’ and ‘Don’t be Partial’ – ie be unbiased, and seen to be unbiased, when making decisions which affect members of the public. Advocates will be asking how council deputies could possibly be making decisions about deferred payment arrangements if the top-ups covered by them aren’t defensibly legal top-ups in the first place, I am thinking!
Wellbeing – incorporating a presumption that people themselves are in the strongest position to make judgements about their own wellbeing – derived from the presumption of mental capacity, which can only be displaced by reference to a test that is the same for everyone, but always issue and context specific…
Funding for sufficiency: care plan allocations have always had to be based on the sector’s professional view as to what is adequate, appropriate, reasonable and sufficient. They have never been able to be cost capped or budget governed, as it happens. But if one doesn’t know the case law, the reality that money DOES need to be saved nationally would probably be what most purchasers, providers and service users and families have focused on. For some, that would have meant a lesser package than was legal.
Best Value – this has never been ‘the cheapest solution’ but has always meant ‘the most cost effective solution’, allowing for lots of trading off between cost and benefits….
Duty vs discretion and MUST vs should…. – public law says that ‘Guidance’ is not law, but if the statute under which it’s been written says that one must act under it, then it cannot be ignored, without a very good reason; it cannot be cherry-picked from simply according to managerial whim. The only very good reason I can think of is that it contains an error of law: the law in this country is that although government may well make up Guidance to explain the meaning of a statute which its own lawyers have drafted, it is the judiciary which is in charge of the actual interpretation – so sometimes, the Guidance is said to be misleading or just plain wrong.
The most recent example of that kind of crossing out of guidance came out of the Supreme Court last week: the Cornwall decision that in most cases involving highly incapacitated young people, the council that will be legally responsible for commissioning care for a young adult with disabilities is in fact the council which was responsible for the children’s services provided to that person when under 18 – not where the child was fostered to, schooled, sent to for health care reasons and not dependent on where one or both natural parents ended up living. The Care Act guidance will need to be re-written because that is not what it said, nor what the Secretary of State was wont to determine, when asked. It means that transition workers’ lives have got easier, and there should be less interest in exporting disabled children out of area.
Last Friday, too, readers may be aware that the Care Act phase 2 Dilnot provisions were deferred by the government because of lack of money and lack of preparedness – and probably forever – until 2020 at least, which is another administration away, most likely.
Those provisions have undoubtedly complicated the Care Act, and I would say defeated its ambition to simplify the system. When the BBC ran the story, it had to explain what social care IS to the nation, so low is its profile, and so unheard of, is it, by most people in our society. This has got to change!
Until it does, and because nothing seems to make it accessible or significant to the average person, until their own relatives need it, I am busy blogging on Schwehr on CARE, (www.schwehroncare.co.uk)
And trying to ensure that people don’t feel so lost in the system. I want people who use services to grasp that Knowledge is Power in this field, and that a little goes a very long way. Our first success has been blogging openly about a carer – he wanted a properly commissioned service which he can use for cleaning and gardening in his own home, but the carers’ organisation doing assessments for the council concerned, said that he had to have a direct payment and sort it out for himself. One week later, the Care Act is being complied with – hooray!
Please use social media if you can help in furthering this aim, and make it a place that people look to, for a steer on what is lawful, as well as what is good practice.