Big issues for legal advice. Part 2: attitudinal mindsets

                   Big issues for legal advice.

Part 2: attitudinal mindsets

Problems of attitude, approach and thinking that distort decision-making are often seen by advice charity CASCAIDr. In the second of two articles on troubling legal issues, Belinda Schwehr examines mindsets

This issue, I am looking at mindsets that could be worthy of legal scrutiny in test cases.

Lowered expectations

In contrast to what happened when personalisation policy was dreamed up, a new pattern is emerging. Expectations are now being managed downwards by frontline staff being allowed – or even instructed? – to be gloomy about the future with regard to funding.

This presents as the message – before a decision has been taken under the Care Act or a review has been finished – to the effect that there have ‘got to be cuts’.

I would be the first to say that the sector probably pushed the rhetoric too high in the first place in 2008 before the financial crash occurred. However, that sort of cluelessness should not be solved by going the other way and into legally risky territory.

In legal terms, this loose language could indicate predetermination or a restraint on assessment or care planning discretion. It could indicate a disregard of the principle that resources are relevant to how needs must be met but not to whether they should be.

The bottom line for a council is always a competent, coherent employee’s evidence on why so much of anything by way of care or support would be enough.

The law is that a council is allowed to be less generous in times of hardship than in times of plenty, as long as the offer is defensible in terms of the statutory duty, which is to meet needs. How far councils have to go in terms of support to improve someone’s lot so they are seen to be meeting needs is not defined.

We are looking for the right case to explore that question – the sort which will make a judge choke a bit, and think -‘Seriously…..?’

Pressure on unpaid carers

Family carers can experience pressure to keep on caring, even if they are desperate to stop.

This can happen when a family carer’s input is taken into account when assessing a service user’s ability to achieve, which is contrary to Care Act 2014 guidance.

A typical example is maintaining a habitable home environment (people’s mums just do that sort of stuff, don’t they, forever?). In this area, the guidance at para 6.15 is clear that informal input is irrelevant when assessments are made.

We think that the guidance means informal input is irrelevant to the question of the significance of the impact on the individual. However, in families where the network is fantastically supportive, it is very easy for a care manager to say that the inability to achieve is a given, but the impact of that would be oh so very small because the family are so great.

This also happens during care planning, through assuming that family input is willingly and appropriately delivered and avoiding having anything that could be called a proper conversation with a carer – let alone a carer’s assessment for their own needs because of the support load they have taken on.

Housing and care

The separation – or not – of care and accommodation is a particular problem for parents when young people move from education or college into specialist supported housing.

This is not because this type of housing is not needed but because nobody seems to be able to find or access it other than where the care provider has sole nomination rights to it.

There appears to be a clear trend of an increasing integration of care with accommodation. This makes the service a care home, so no housing benefit is paid.

However, the Care Quality Commission has no interest in that problem and will not engage. That is despite its predecessor, the National Care Standards Commission, prohibiting de facto (not just legal or structural) integration of care provision and acceptance into clients’ tenancies following the Alternative Futures case in 2004; the court said care homes could not be deregistered and turned into supported housing with tenancies if personal care and accommodation were tied together.

We assume everyone is just hoping that this problem will go away. However, if any person in supported living wants a direct payment so they can change care provider and is told that would be inappropriate, this trend will have to be scrutinised afresh.

‘Take it or argue with us’

One of the most common approaches we are seeing is an up-front indicative offer of low and flat rate levels of services. This inevitably conveys a ‘take it or argue with us’ message.

Common examples are found in respite care or transport. Offers are sometimes driven by resource allocation software that has been fatally messed about with by the authority’s officers inputting indefensibly low figures with regard to the actual cost of care services on offer to the council or to the direct payment clients.

Another typical example is standardised approaches to issues such as disability-related expenditure and policies on discretionary decisions, such as whether ever to allow close relatives to be paid from the direct payment.

In every case, these managerially driven approaches inevitably put the burden on the vulnerable client to assert themselves. This amounts to risk transfer, to our minds, instead of abiding by the law.

At some point, offers will be indefensibly low but still accepted, or will amount to an improper constraint on individuated care planning competency. If councils get away with it, the bar is lowered for all.

We understand that council officers want to treat citizens equitably. However, that should not mean identical packages for all people who fit loose client-based categories such as ‘elderly’ or ‘learning disabled’ or ‘in supported living’.

The Care Act requires councils to be aware that the same difficulty in achieving an outcome might well affect two individuals to different extents.

Under R [JF] v London Borough of Merton, 2017), an assessment absolutely requires that attention is paid to individuals’ desired outcomes – albeit not the delivery of them in all cases – for an assessment to be lawful and valid in the first place.

Delays in reaching final decisions

This trend in making shortcuts is inextricably linked to the question of delay in reaching a final decision: the lower the indicative offer and the better informed the person, the longer it takes to resolve a dispute, and the more exhausting it is for all.

A classic example we have seen is a man who has been supported to live in the community after many years of a narrow and overly sheltered institutional lifestyle.

His package was to be cut from five hours a day to three, and it has taken seven months to get the offer up to 4.25 hours before a decision has even been made. The council steadfastly refuses to be drawn at all on how the man’s needs have lessened – and clearly they have not.

Managerially driven approaches put the burden on the client to assert themselves. This amounts to risk transfer instead of abiding by the law.

We are not saying it is unlawful to reduce his package unless there has been a change in needs. The law is simple: any cut, whether driven by a change in the circumstances of the client or the council, just needs to be explained and rationally reflected by reasons, en route to the written care plan, as to what it is and preferably the reasons why it is being made.

In essence, it needs to be explained why what was needed before is not needed now or why something else will suffice (R v Birmingham City Council ex parte Killigrew, 1999).

‘Unavailable’ services

From our perspective, the most worrying example of where we are headed nationally is the attitude to actual failure to provide necessary services because they are not available – although this probably means they are merely unavailable at a given price.

Tightening belt: cuts to a care packages must be explained, whether they follow a change in the client’s or the council’s circumstances

In the sphere of autism services, where clients may have got stuck in an assessment and treatment unit (ATU) for years for want of adequate community provision that is prepared to cope compassionately and constructively with the challenge of volatile people, we foresee major trouble brewing in legal terms. Transforming Care seems to be good for stopping admissions but no use at all for supporting timely discharge.

Section 117 of the Mental Health Act obliges councils and the NHS to provide or fund aftercare services, sometimes including accommodation, for people discharged from compulsory detention under the act. Many ATU residents are fit for discharge, in terms of not needing to be detained any longer, but managers and tribunals will not order discharge unless or until there is a proper environment for appropriate ongoing treatment.

We know of case law that says that until discharge has been ordered, the person is not unlawfully detained. However, although there is a duty on section 117 teams to start care planning once it is clear a person might soon be fit for discharge, that duty is a duty of best endeavours only, not an absolute duty to provide a service in any given time.

That has always struck us as odd and unjustifiable in comparison to the nature of the ordinary duty under the Care Act, which goes like this: if there is only one way to meet needs, then the cost is irrelevant.

CASCAIDr considers that a duty to use best endeavours could be investigated with regard to just how far afield section 117 commissioners have actually looked, and with what approach to procurement and to cost guidelines. This could allow genuine legal scrutiny of the regretful assertion: ‘It doesn’t exist.’

A judge might then ask if it doesn’t exist, why doesn’t it exist Ð and what have those market managers been doing about that to stimulate the market?


In terms of housing, if there is no more housing into which this very needy client group can be nominated through homelessness points or cooperation over homes with the authority, why exactly are councils refusing to guarantee voids in privately financed schemes,  thereby attracting private capital?

Councils have an ongoing responsibility for accommodation under the Care Act for meeting care needs within specified accommodation if housing need is not seen as part of the section 117 plan; they also have broader powers under the Localism Act to support all their functions, including section 117. NHS clinical commissioning groups have got express authority from Transforming Care and NHS Continuing Healthcare guidance to build housing costs into people’s health budgets.

We hope to take that line of questioning forwards when the right case comes along. Section 117 care planning is outside the scope of our free work Ð CASCAIDr  would sink if it were not.

Belinda Schwehr is chief executive of legal advice charity CASCAIDr ( and owner of the Care & Health Law consultancy. She has been a barrister, solicitor advocate and university law lecturer

This article is the second in a two-part series looking at the most troubling issues in health and social care law and practice seen at CASCAIDr. Part one in the previous issue (CL 31:4) examined problems with due process

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