CLARiTY Session 5 – Challenging Care Act Decisions
This is a plain English summary of the topics we talked about during CLARiTY Session 5. The information we talked about in this session is quite complicated. We have not written an easyread summary of this session. We have included a video clip from the session, where Sophie O’Connell from Wolferstans Solicitors talks about how to challenge Care Act decisions that you are not happy with.
In CLARiTY session 5, we talked about:
- The Care Act 2014 – Overview and Wellbeing
- Challenging decisions under the Care Act
- How to make change happen?
The Care Act 2014 – Overview & Wellbeing
Prof Rosie Harding introduced the session by giving an overview of the Care Act 2014, which she said was a landmark piece of legislation. You can access the Care Act 2014 here: https://www.legislation.gov.uk/ukpga/2014/23/contents. It was introduced by the government in 2013-2014. When it became law, it was described by the minister who brought it in (Norman Lamb MP) as ‘the most significant reform of care and support in more than 60 years putting people and their carers in control of their care’.
One of the most important aspects of the Care Act 2014 is that it puts well-being of both the person who needs care and carers, at the centre of care and support. Well-being is defined under section 1(2) of the Act:
“Well-being”, in relation to an individual, means that individual’s well-being so far as relating to any of the following—
(a) personal dignity (including treatment of the individual with respect);
(b) physical and mental health and emotional well-being;
(c) protection from abuse and neglect;
(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);
(e) participation in work, education, training or recreation;
(f) social and economic well-being;
(g) domestic, family and personal relationships;
(h) suitability of living accommodation;
(i) the individual’s contribution to society.
Putting wellbeing at the heart of this legislation makes it an unusual and important piece of law. This means that you can use the idea of wellbeing as defined in law when challenging decisions made about care under the Care Act.
Local Authorities (Councils) and their duties under the Act
The Care Act places a general duty on local authorities to promote individual’s wellbeing. This means that they have a duty to provide a range of services that meet the needs of people with care and/or support needs. The Care Act also requires local authorities to consider how to prevent people from needing more support in the future.
Access to care and support services through the Care Act happens after an assessment. This can be a Needs Assessment for an adult with care and support needs or a Carers Assessment for carers. Care Act assessments are really important, and so it is helpful to prepare carefully for them. The advice in CLARiTY session 4 about communicating with people in positions of power might be helpful in preparing for an assessment. You might also want to look at the statutory guidance on Care Act assessments, that Sophie talks about (see below)
A person who has care and support needs can refuse an assessment under the Care Act if they want to and have the capacity to do that. If they refuse, then the Council needs to consider whether carrying out the assessment against their wishes is in their best interests or not. Local authorities also have to consider whether that person is at risk of abuse or neglect if they do not carry out an assessment.
A carer can always refuse a care assessment. Even if they do, they can still request one at a later date when needs arise.
Eligibility and Outcome criteria for support under the Care Act
There is a detailed guide to eligibility for support under the Care Act on the SCIE website. https://www.scie.org.uk/care-act-2014/assessment-and-eligibility/eligibility. The information on that website applies to England.
There is information about Wales on the Law Wales website here: https://law.gov.wales/publicservices/social-care/Local-authority-responsibilities/Care-and-support-for-adults-and-children/Assessing-and-meeting-needs/?lang=en#/publicservices/social-care/Local-authority-responsibilities/Care-and-support-for-adults-and-children/Assessing-and-meeting-needs/?tab=overview&lang=en
Knowing about the eligibility criteria and the outcome criteria will help you to be able to make your case for care and/or support.
There are different criteria for adults with care and support needs, and for carers. Make sure that you look at the right ones!
Charging for care
Social care is not free at the point of use. Care provided under the Care Act can be charged for but local authorities do not have to charge for care. So, whenever a council chooses to charge for care under the Care Act it is a policy decision.
If they’re going to charge for care they need to do a financial assessment. A financial assessment covers the level of the individual’s financial resources and the amount that they would likely to be able to pay towards the cost of meeting their needs and support. There is a duty on the local authority to provide a written record of the financial assessment.
Care Act Easements under the Coronavirus Legislation
These were powers that councils had, to stop doing assessments and reduce the amount of care and support they provided under the Care Act. All of those easements have now been removed, and councils cannot use those powers any more. Very few local authorities made use of the powers when they were available to them.
If a disabled person has an impairment that makes it difficult for them to understand the Care Act, they are entitled to a Care Act advocate, unless they have someone who can act as an ‘appropriate person’. If you are asked, or volunteer, to be an ‘appropriate person’ under the Care Act, you should make sure that you are aware of the responsibilities that different parties have under the Care Act, and the eligibility and outcome criteria, so that you can help them with the Care Act processes.
There is a guide to the Care Act Advocacy (aimed at local authorities, but freely accessible to all) here: https://www.proceduresonline.com/resources/careact/index.html there is information about the duty to provide an independent advocate as part of that guide.
Challenging decisions under the Care Act 2014
Sophie O’Connell from Wolferstans solicitors gave some information about how to challenge decisions made under the Care Act. Sophie pointed out the importance of the Care and Support Statutory Guidance, which councils have to follow when they make decisions under the Care Act.
Sophie talked about the importance of the care plan which needs to be an accurate representation of the person’s needs and wishes and the ways that council is going to meet those needs and promote well-being. If you find that the care plan or the assessment does not reflect your wishes and needs, you may take certain steps in order to challenge any decisions:
Step 1 is to write a challenge letter. This is a firm but polite letter to the social worker in order to resolve any problems quickly. This is a more informal way of dealing with problems.
Things to be sure to include in the letter:
- Your name if you write the letter for yourself, or the person’s name if you are writing on someone’s behalf, date of birth and the name of the social worker.
- If you are writing the letter on behalf of someone else, make sure to include that the person has consented to this and agrees with it. If you are an attorney or a deputy for someone then make sure to state that you have this authority
- If you know these put relevant dates like assessment dates, phone calls or meetings with the social worker etc.
- Next, you need to state what the council has done wrong and the evidence of what they have done and what they should have done. It would be helpful if you can refer to the law here and that’s why the care and support statutory guidance is very useful.
- Finally, you need to put what it is you want like a new assessment, a Care Act advocate or other support.
Step 2 is to make a formal complaint to the council. You may wish to skip the more informal step 1 and make a formal complaint or do so if informal measures did not work. To do this, set it out in the same way you would write the informal challenge letter but make sure to use the word ‘Complaint’ in your heading to make it very clear, this is a formal complaint and not a challenge letter. End the complaint by sating you want your letter passed to the complaint department, you wish for them to acknowledge the receipt with a copy of their complaints procedure and you wish for the council to set out how they intend to deal with your complaint.
Step 3 is to use the Ombudsman service. If you are not satisfied with the outcome of the complaint your next step is to go to the Local Government and Social Care Ombudsman which deals with council and social care matters. Remember there is a different Ombudsman for health complaints: The Parliamentary and Health Service Ombudsman. We talked more about the ombudsman services in CLARiTY session 2.
The Local Government and Social Care Ombudsman have some resources including some in Easy Read on how to use their services: https://www.lgo.org.uk/for-advisors/leaflets.
The Ombudsman can consider needs assessment, delay, safeguarding, poor quality care, poor quality complaint handling, direct payments etc. If you are not making complaint for yourself, you need to show you have the consent of the person this is concerning. You need to have also used the council’s complaints procedure before you can use the ombudsman. You have to make a complaint to the Ombudsman within 12 months of knowing about the problem.
The Ombudsman will look at your case and see if they agree with it. If they uphold your complaint, they can recommend changes, review the process and even offer financial compensation. This would not be as much as the court might offer. However, going to the court is a lengthy and costly process and should always be a last resort.
The Ombudsman is a free service and you should not need a solicitor to help you with this, but lots of solicitors can help with complaints about care. You can make your complaint by using the Ombudsman’s website or their telephone service.
The Ombudsman website has a list of cases it has dealt with and you may even find one that is similar to yours and see how the Ombudsman dealt with it: https://www.lgo.org.uk/decisions.
How to make change happen?
Not all change happens through law. Dr Ossie Stuart was our guest speaker at this session. He spoke about how to make change happen and how disabled people campaigned against care charges in Hammersmith and Fulham and won.
Ossie’s key points about making change happen were:
- Disability activism needs to be astute, resolute and politically focused. You cannot ignore current politics if you are working towards creating change. Make sure you are well informed about what is going on in politics.
- Find other activists who can support you or have experience in working on the issues you want to make the change about.
- Find your political allies. This means that you are taking your carefully crafted arguments to the right people who will help you take this further. Make sure you tell real stories because they usually win the hearts and minds of allies.
- You need to assess the community and the council you live in. Are people likely to support your proposals for change and your campaign? Are councillors likely to listen? It is important to work towards persuading your communities to your argument/campaign.
- Be consistent. It takes a lot of effort to find your allies and get support in the right places. To shape change you must consistently work and review your arguments with the changing political landscape.
Other useful resources and links mentioned at the session:
- CASCAIDR- Centre for Adults’ Social Care: Advice, Information and Dispute Resolution: https://www.cascaidr.org.uk/
- The Norfolk Case: https://www.bbc.co.uk/news/uk-england-norfolk-55636433. A case where it was found that there was discrimination against people with severe disabilities in the way a council calculated charges for social care.
- The MacDonald case: https://www.theguardian.com/uk/2011/jul/06/former-ballerina-judge-night-care-kensington. A case in the Supreme Court in 2011, about access to care and support. This case was earlier than the Care Act, so the law has changed since then.
- Silenced: The Hidden Story of Disabled Britain https://www.bbc.co.uk/iplayer/episode/m000rh1g/silenced-the-hidden-story-of-disabled-britain. This documentary tells the story of the history of discrimination against disabled people, and how disabled people fought for their rights.
- A white paper on Health and Social Care was published recently. Some of the plans include creating more integration between health and social care. https://www.gov.uk/government/publications/working-together-to-improve-health-and-social-care-for-all