CASCAIDr's Going Public legacy project has attracted an impressive cohort of barristers from several community care and health law teams, in specialist chambers.

Here they are - with an exciting prospect for a fifth opinion, if our fund goes up another couple of thousand, before the end date.

1. Care Act ‘lite’ -v- the Care Act, regs, Guidance and case law on the minimum process
Steve Broach (KC 2024) (39EC)
Siân McGibbon (Landmark)

2. Nature of the need: is a duty a duty, really, when all councils are broke? and if so, when will breach amount to a breach of human rights or attract a mandatory court order or restitution?
Jenni Richards KC (39EC)
Sian Davies (39EC)

3. Direct Payments and all the disasters that go wrong with them!
Irena Sabic KC (GC)
Bethan Harris, (GC), Ollie Persey (GC), Arianna Kelly (39EC)

4. S117 Mental Health Act aftercare assessment and care planning challenges
Still negotiating!

And if the fund gets a bit bigger, CASCAIDr will commission a fifth opinion about the sort of needs profile of care and support eligibility that could trigger accommodation 'plus' rights to ordinary housing, directly under the Care Act, for disabled nationals of this country. 

Siân McGibbon (Landmark), Tim Baldwin (GC)

The hardest opinion, in our view, of the 4 we're going to commission, is about when the housing element of a package of care or mental health aftercare should be directly provided by the council or the NHS, rather than through Housing Act routes.

We think that the answer is 'when their needs are such as to amount to needs for care that can't practicably be provided, other than in the context of a stable and suitably located property' - otherwise known in the legal sector as accommodation 'plus' needs.

That concept has received the most attention in the context of people subject to immigration control or in breach of immigration control, because such people are denied access to benefits and housing - rights that ARE available for nationals of this country.

We're interested to have counsel explore what sort of profile of needs - when it's put forward by a person under the Mental Health Act OR the Care Act, particularly when it's a person who's been stuck in a psychiatric hospital for years, mainly because there is no accommodation available - will trigger accommodation plus rights.

We think it could be an answer for people in the Transforming Care cohort - people with learning disabilities and/or autism, who are not conventionally mentally ILL, but count as mentally disordered, and for whom 'care in the community' has not worked or been made available - because no council or ICB has been sufficiently well funded to keep the person appropriately safe..

We're delighted to say that Tim Baldwin of Garden Court Chambers, is willing to step up to this one, and we look forward to chewing over those issues.

"My daughter was awarded a direct payment for her s117 aftercare rights, in July - my daughter requires 24/7 care. She was awarded 62 hours of paid-for support per week, and I cover the remaining hours of support voluntarily. 

The direct payment 'rules' from this council and ICB, however, require that the budgeted hours are spent within a strict 4 week period. This 4 week period is decided by the direct payments 'managed budget' system.

This is an unnecessary constraint on the budget. It has caused problems regarding my work as I am beginning to work freelance and will need periods when I require 24 hours or care over a number of days, for her, as opposed to other periods when I will be able to provide greater input.

The legal purpose of this direct payment is to ensure appropriate aftercare for the particular care needs and environment in which the person is living, and I know it should be flexible."

CASCAIDr advised this carer to write to the Monitoring Officer, to require that statutory officer, in charge of governance according to law, to investigate the restrictions placed on the woman's daughter’s s117 aftercare direct payment.

We did so on the footing that such restrictions clearly negate the purpose of the direct payment framework and make no allowance for fluctuating needs or the gaps being filled by informal carers.

In any case where the availability of the informal carer - the person making it possible for the aftercare authorities to save such a lot of money - is going to be unpredictable, the flexibility needed to make the plan work - (and nobody is saying that commissioning this sort of care flexibly would even be possible for the s117 authorities, please note) - is completely precluded by such a tight restriction. 

We made it clear that the carer needed to say that she was making a referral under s5(2) of the Local Government and Housing Act 1989 and thus triggering the MO’s duty (NOT to be mistaken for making an ordinary complaint!) to consider whether or not this is a likely contravention of an enactment or rule of law, and saying that she knew that there is case law on the illegality of conditions that negate choice and flexibility....

This produced this upbeat news the very next day:

"Thank you for your advice. They are backing down on the inflexibility of how I spend it!"

Yay! Another satisfied client....but people need to know about the Monitoring Officer, and about the legal principles underpinning s117 aftercare, to make use of legal principles like the one we identified.

In the same week, we heard this from another ex student of ours:

"I have received a new direct payment agreement after a Review which is much more restrictive than the last one I signed.  For example, the clause saying I can hold 8 weeks DP in the account has been removed; cheque and debit card transactions are no longer allowed from my DP bank account etc. There was no consultation or notice, but perhaps there doesn't have to be?"  

We said this: "The first place to look is at the old one for anything about due process before changing the rules. As you say it may be that there was an expiration clause and once it expired it gave them a chance to bring in a new one, but the basis on which the person is granted a DP - the standard and any extra personalised conditions - and any change to them - still amount to a public law decision - not a merely contractual one."

The council in question had delegated all its social care functions to an NHS Trust, but is still liable for any illegality, in law. So it was off to the Monitoring Officer in that council too, for that enquirer, for a challenge to flexibility, again on the footing it negates the legislative intent.

We think we can discern a covert interest in deterring people from even having a direct payment, in s117 cases, in situations such as these.

Please donate to get us nearer to our stretch target of £15,000. 

Ellie is a very happy young woman who has been in supported living since 2011. She has multiple disabilities but she is independently-minded, and her superpower is spreading joy in the world.

CASCAIDr has helped me as her parent and representative to understand the law properly, and to deal with care providers, housing associations and the local authority in a way which has got results. 

Getting our daughter onto direct payments so that we could choose a trusted care provider instead of having one foisted on us, despite her living in shared housing, and getting, and defending, an adequate personal budget for her care needs, are the main positive outcomes. 

Understanding the Mental Capacity Act, and the role of the Court of Protection, has enabled us to deal with best interests decisions better. 

Understanding the proper separation of housing and care in supported living has prevented the local authority from treating supported living like a cut price care home,  and has given our daughter a chance to choose who she lives with and who provides her care. 

As a result her mental health has improved radically and she is again the happy person that she was before her services were cut in 2017, and then suffered a long period of poor care commissioning and poor housing management.

"Clarity on community care law is critical for professionals, parents, clients and carers. Obtaining authoritative opinions on important points of law is really worthwhile, especially when there are ignorant and even cynical abuses of the law happening every day in the care system."

Wow! We've made our initial target, in just 4 days. Thank you to everyone who has donated so far.

Today's story is about the 3rd topic on which we're going to be getting a barrister's opinion - direct payments and everything that tends to go wrong with THEM...

One of our clients, who's had to come back several times, now, is married to a woman with complex mixed physical and mental ill- health needs - and the man was overwhelmed with caring. He was depressed, exhausted and not able to think through the options on his own.

The only way he could see his wife accepting input from someone other than him, was if her sister could be paid for personal care, household support, and gentle coaxing perhaps, back to taking some interest in life.

He'd been told about direct payments but the social worker had said that his wife could not employ a relative.

Well, that's rubbish - the rule for Direct Payments is that one can't generally employ a close relative living in the same household. 

But a) there is scope for it, if it's necessary (and if not now, in this particular climate of scarce social care staff, nationwide, then when, we wonder?)
and b) the sister wouldn't be living in the house at all!

So that was the first issue we focused on, and that was quickly put right with one letter to the council's Monitoring Officer: their job is as governance lead for the whole output of any council, would you believe. The Guidance doesn't mention THEM!!

How many hours per day was seen as needed for a tolerable sustainable level of wellbeing?

The council had provided a rate for 1.25 hours a day after its first assessment. 

This really did not touch the sides: the man was on his knees from exhaustion and the woman was not really coping at all.

We got the care package offer up, by reference to careful presentation of the evidence, to 5.5 hours a day - and got a carer's support entitlement of 3 hours a week, for the man too.

This has revolutionised the household's wellbeing: the woman has had her self-esteem restored; she is less anxious and paranoid, her husband gets some respite and crucially feels he is not alone in his commitment. They now have a mobility car to use, too, for getting the woman out more, and the couple are eating much more healthily.

They've even been able to go on a very carefully planned trip abroad, to see relatives, and it all went very well and was uplifting for all concerned.

The family members in that country were astonished at the generosity of the State in Britain, and the adult social care system, given what it's done for their family member.

This should make us all think about how lucky we are, and how this safety net which most of us don't know about or take for granted, must not be allowed to disappear.

We've assisted with legal advice, twice more, since this care plan was first set up: once over a CUT to the care plan, which the Panel had decided upon, but without following proper process under s27; that took longer to fight about, but we succeeded in the end.

Secondly, we coached the man as to how to prepare for the dreaded annual review.

He was absolutely stunned (and so were we!), when despite some basic improvements in the woman's conditions, the husband and sister were able to explain to the reviewer that a managed need was still a need and that progress was visibly tentative, with unpredictable setbacks - such that the package was NOT cut at all.

In fact, the man's carer support hours were slightly increased.

And to round off, the man wrote to us today, saying this:

"I have been able to resolve an issue with the council on the carer's holiday entitlement, and got her paid for 48 hours which the payroll service used by the council, was refusing to pay. It was an argument about taking holidays in advance where the PA has worked more than one year. I am getting better at communication and using the law. You would be proud of your student!"

Here's a case on why delay is not something that one should just put up with. 

A couple whose autistic son was living with them, but without a comprehensive care package, 'pending' a move to supported accommodation, were at the ends of their tethers. Their younger child and the mother were at risk from the difficulties with managing the much loved son. His needs were never assessed as being for less than 2:1 care for 24 hours a day. 

The council had not done a specification for what they thought they would need to commission, once housing was organised. But it did not offer any interim care plan for an 18 month period. No care provider would respond to the invitation to tender for his care at the fees being offered and without a property on the horizon. 

The parents had found a space in the local town where it was possible to commission a package of respite for a few hours a day for the man - which gave him respite from his family home as well. But even that provider needed inducting into the best way to provide care so the father was paid a rate through a direct payment arrangement along with permission to be paid from that payment. He supported his son AT the facility until the provider had become accustomed to what worked for the man. 

At no time was there any Authorised Person properly appointed by the council to employ the father or both parents, under s32 of the Care Act for someone lacking in capacity to understand the essence of a direct payment.

We became involved, and pointed out that the elements of the parents' care input, over and above what they were prepared to do voluntarily -ie that which was being required in default of any other adequate response, needed to be paid for, under the doctrine of restitution. The rate at which the father had been paid for his help with the respite package, and the size of the future care plan made it clear that the council was saving thousands, through sheer inaction. 

We also pointed out that unless the council wished to acknowledge a need to provide the accommodation as part and parcel of the care plan it should have been organising, councils don't in fact PROVIDE housing under the Care Act. 

Supported Living is not a council service in s8. The care and support are simply care at home, the person's home being signposted to, through Housing Authorities, or more commonly, obscure arrangements with private sector, or voluntary organisations or housing association owners, for maximising housing benefit for rent and 'service' charges outside of the care plan. In these arrangements, the all-important tenancy is usually signed by a deputy, attorney or the Court of Protection. 

As there had not been even one single contact with the council's in-house housing rights specialist for taking forwards its supposed ‘preferred’ outcome for supported living, this news was revelatory to the parents; they saw at once that their son could have been having his needs met in bespoke registered residential accommodation and that it would not be 'letting him down' to accept that that was a practicable solution (if he was not to be sectioned and then stuck in psychiatric facilities in a medicalised hospital environment).

The council paid back £76,000 for the 18 months' worth of care that the couple had provided in lieu of the council discharging its duty. This saved the parents' family home and enabled them to return to being relatives. The amount did not include anything for night time care by agreement with his parents.  

CP v NE Lincs [2019] was cited to the Monitoring Officer, in which LJ Haddon-Cave said this:

• A breach of a statutory duty is a breach of statutory duty. It is, by definition, unlawful conduct. Unlawful conduct by a public body cannot merely be discounted or ignored.
• Moreover, s26 [of the Care Act] is no minor matter. A local authority’s statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person’s care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins.
• In the present case, having found the Council in breach of its statutory duties, [the judge in the High Court] should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall in accordance with normal public law principles of legal accountability of public bodies.
  
  Since it had not offered anything ELSE to CP, the council could not therefore say it did not TAKE the benefit of the value proffered by the provider it had refused to contract with - and that provider deserved to be paid. The council had therefore been unjustly enriched. 

Thank you to everyone who has pledged their support for us so far. We wanted to flag up some examples of how much difference it makes, having the knowledge to be able to assert your rights. Today we are highlighting a success story related to sorting out Care Act processes ('or conversations') and making the council shape up...

One of our clients contacted us primarily to see what we thought of the draft response he had received from the LGO regarding his friend, X, who had experienced, in his and her view, a wholly unsatisfactory approach to re-assessment, care planning and support from a number of professionals (health and social care). 

X has a complex range of mental and physical needs and felt that the professionals she'd been seen by simply did not understand the effect that her brain injury has had on her and that they were closed off to the challenges she faced daily as a result. The support she had been receiving did not reflect the unique nature of those daily challenges and X was at the end of her tether.

The outcome of the work we undertook on the LGO's draft response led to the Ombudsman advising the council to apologise for the effect their actions had had on X. Given we had also highlighted the areas where ASC could better support X, the council agreed to review X's case and we ultimately persuaded them to put the following in place:

• An independent assessment by a specialist organisation of the impact the brain injury had had on X, for supporting the re-assessment that was agreed;
• Support for a newly allocated worker to complete brain injury training;
• Support for that worker in decision-making regarding X’s assessment taking the independent outside assessor's experience into account;

The client emailed to thank us our input - which was all based on understanding the law. He said that 'This has led to the change of position by the Council - something I had been trying and failing to achieve for years’.

And eventually we received this hugely satisfying message:

'We FINALLY got there Belinda!!!! 🙏🙏🙏

Thank you so much for helping us pushing them for expert brain injury advice 🙏🙏🙏'

The resulting barristers' opinions from this fundraising drive in our Going Public campaign will enable us to leave a lasting legacy to enable people like X to have a freely available resource that can give them the power to achieve results like this themselves - through reliance on established legal principle, the Guidance, and the case law.

Please donate and share, thank you.