Page 9 - Community Living Magazine 33-4

legal: ombudsman

manager is not both the employer and the
employee at the same time. The manager
is just helping the real employer discharge
his or her duties towards the employee.
A person who cannot understand the
basics of a direct payment cannot
nominate a person to help them manage
it, and needs an authorised person
instead. In such cases, the authorised
person is the principal who makes
decisions on care, not merely an agent
who implements such decisions.
That means if that same person wishes to
be employed to care, the authorised person
would be both the employee (for the care)
and the employer. That is potentially a
problematic position to take up voluntarily,
even if HMRC could understand the
purpose of such an arrangement.
Anyone, however, can now be paid up to
£1,000 a year for self-employed work View from Merton civic centre: despite having oversight of a care plan showing high levels of care
without registering with HMRC, reflecting were needed, the council took nearly two years to find suitable accommodation and care for a client
the reality of the gig economy. The
payments administration part of the Care still in force under section 6 of the Local wrong with oversight of the way in which
Act regulations on direct payments hints at Authorities and Social Services Act 1970. the Care Act has been implemented.
this being the better way to go about it – a This duty shores up the fundamental The newly reformed all-party
small set sum per week or month, perhaps. principle that, if there is only one way to parliamentary group on social care should
meet a need, then it must be paid for. The factor a lack of legal literacy into the
‘Manifestly unacceptable’ wait duty to meet needs may have to be analytical mix, for the sake of the green
In a case involving the London Borough of discharged through direct provision if no paper that has been so long in gestation. n
Croydon (LGSCO, 2019c), which went back provider wishes to sell its services to a ● This article is the second in a series of
for more than three years, the LGSCO took council – and that duty is a statutory two on the ombudsman. The previous
the matter on despite the time lapse. function which must, in turn, be staffed. issue gave an overview of the service and
This was because a man’s current issues The LGSCO said that the wait of its benefits
could not be logically separated from the approximately three years and nine
older ones, and as his mother had been months was “manifestly unacceptable”. Belinda Schwehr is chief executive of legal
told that he had been “added to the The LGSCO concluded that the man had advice charity CASCAIDr (www.CASCAIDr.
council’s waiting list for an assessment”. missed out on significant support org.uk) and owner of Care and Health
Councils must carry out assessments provision since 2015, simply because the Law, a consultancy. She has been a
within a suitable and reasonable timescale. council had failed to assess him sooner. barrister, solicitor advocate, presenter,
In this case, both a transition and an The council was persuaded to pay: the writer and university law lecturer
adult’s assessment had been long overdue. man £3,000, in recognition of that; his
The ombudsman found the authority at mother £1,000, for her frustration at its References
fault for failing to properly assess the failure to act on her requests to assess; R v Bristol CC ex p Penfold (1998) 1 CCLR 315, QBD
man’s situation from as early as August and a further £500 to her, in recognition Local Government and Social Care Ombudsman
2015 when he became 18, and also at fault of the significant time and trouble to (2019a) London Borough of Merton (18 011
for failing to properly review his education, which she had been put. 437). https://tinyurl.com/wgtqqqr
Local Government and Social Care
health and care plan (these plans should Ombudsman (2019b) Somerset County Council
be reviewed at least annually). Reflecting legal decisions (16 016 755). https://tinyurl.com/yyuhsuay
Case law shows that the legitimacy of a As my previous article noted, the LGSCO is Local Government and Social Care Ombudsman
wait for anything due under a statutory clearly becoming less coy about finding (2019c) London Borough of Croydon (18 016
duty depends on the facts, the urgency fault relating to ignorance of the law. 105). https://tinyurl.com/yxazgwct
and the wording of the specific duty. The LGSCO is not a court, and has no
There is no such thing as a waiting list jurisdiction to decide whether something
for assessment that is based on a shortage is unlawful but, where case law says that CASCAIDr has offered to reference
of staff – not one that is legal, anyway. The something is “required”, “fundamental”, some of the case law in the guidance,
R v Bristol ex p Penfold (1998) case “essential”, “mandatory” etc for to make it clearer that the first figure
scotched the suggestion that assessment compliance with the Care Act, the LGSCO a council comes up with is not
can be rationed; this is because it is a is bound, it seems, to reflect binding legal necessarily a lawful budget, and
sarflondondunc/Flickr of resources can be a lawful consideration. what amounts to maladministration. You can provide this by e-mailing
developments in its own consideration of
would welcome support for this offer.
duty, and not a duty where the availability
We think that the statistics about
CareActEasements@dhsc.gov.uk
There is already a duty to ensure that all
social services authorities have sufficient
FAO Rhia Roy/Rosamond Roughton
increasing numbers and levels of fault
staff to discharge their functions, which is
Community Living Vol 33 No 4 | Summer 2020 9
www.cl-initiatives.co.uk indicate that things have gone very badly