Page 8 - Community Living Magazine 35-1

legal: EHRC inquiry
Hope on challenging decisions

An inquiry by the Equality and Human Rights Commission margin of appreciation that public law
into challenging social care decisions could have positive offers, through its loose supervisory
control and governance of statutory
consequences, suggests Belinda Schwehr decision-making, leads to unfortunate
wriggle room for decision-makers and
support for the status quo – even when
he Equality and Human Rights The qualitative research will be based it’s obviously wrong.
Commission is carrying out a on survey responses and interviews. Other People have only complaints systems
Tresearch project with unpaid adult evidence for the inquiry will be gathered and the Local Government and Social Care
carers, adult social care users and their from a range of sources, including local Ombudsman (LGSCO), judicial review and
representatives on challenging adult social authorities, care workers, regulators, local the court of protection open to them, the
care decisions. and national government, advisory and last two of which require a lot of money
The commission operates advocacy services, and other experts. and legal acumen to make any headway.
independently of the government to The commission will make We do not think the CASCAIDr model is
encourage equality and diversity, recommendations for change and sustainable in the long term, unless the
eliminate unlawful discrimination and improvement in policy, practice and culture in the sector is forced through a
protect and promote human rights. legislation and its implementation, and 180° turnaround so that the public sector
The inquiry team will use the all organisations must have regard to ethic that legality and legal awareness are
commission’s survey results and its recommendations. prerequisites for a proper Care Act
semistructured interviews to decision is somehow revived.
examine people’s experiences of We think we could be looking at the end
challenging decisions. Managerialism has run amok of adult social care rights before too long.
The hope is that the conclusions and
report will help to improve law, policy and within councils and the notion Learning from legal challenges
practice and drive positive change. of what it is to be a social The commission thinks it vital that any
The commission notes that the social work professional has insights from previous legal challenges are
care system is known to be under used to improve decision-making in
pressure and that Covid-19 has made been undermined future, and that there are effective
many of the existing problems worse. systems and processes in place to
It knows that there have been numerous maintain accountability, quality and
reports of reduced care packages and No remedies means no rights consistency in decision making.
people’s needs not being met. The subject matter of this inquiry CASCAIDr sees little evidence that the
Decisions made under the Care Act is something that CASCAIDr is current forms of challenge meet those
should comply with equality and human passionate about. aims, in practice.
rights regulations and with social care We were founded in 2017 specifically Complaints systems have become
laws in England and Wales. But very often because of lengthy professional dumping grounds that serve to relieve
they do not. frustration with the problem of how those senior managers of applying case law for
who are relatively poor, dependent on the resolving issues about breaches of the
Focus on challenging decisions state for care and support, could ever Care Act.
The commission wants to know about feasibly be supported to challenge Any new case law is quickly
people’s experiences of challenging councils’ decisions, given the framework marginalised and forgotten even by the
or attempting to challenge a range of and the means test for legal aid and the councils involved, let alone others.
decisions about their adult social care state of publicly funded specialist advice The court of protection does not have
or support, including support for provision in England. the powers of the judicial review court,
adult carers. CASCAIDr’s view – after operating for and therefore no principles of public law
The scope is limited to assessment, nearly four years – is that, without are being developed through the use of
eligibility, care planning and revisions. It effective and accessible remedies, there that court in cases related to deprivation
intends to investigate whether are no real rights. of liberty safeguards.
● People are given enough information Professional judgment and discretion And the ombudsman must be
about their rights to care and support, should of course be the basis for metaphorically tearing out its own hair as
and how they can challenge decisions. individual and person-centred decisions, the percentage of adult social care
● People can access high-quality but managerialism, in the face of complaints being upheld by the LGSCO,
advocacy support to help them austerity, has simply run amok within goes up and up each year – 68% at the
challenge decisions councils; the notion of what it is to be a last count.
● Local councils and other bodies learn social work professional has been
from challenges to decisions to improve undermined, as independence of mind No easy remedy
future decision-making has leached away and workloads have From CASCAIDr’s perspective, it is no
● There are effective systems in place to inexorably intensified. coincidence that there is no easy access to
check that decisions are made well the The requisite conditions and content of a remedy for an unlawful decision in this
first time round. a lawful decision are not well known. The controversial field of welfare provision.

8 Vol 35 No 1 | Autumn 2021 Community Living www.cl-initiatives.co.uk