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legal: EHRC inquiry

A deliberate choice not to create a
tribunal for the coming into force of the
Care Act was made by the proponents of
this legislation. It was even excluded from
the Law Commission’s remit when tasked
with scoping for this.
Even a very weak form of independent
“review” that was hurriedly thrown
together was never brought in, once the
Dilnot cap provisions (a partnership model
proposed by the Dilnot Commission in
2011, with a much more generous means
test and a lifetime cap of between
£25,000 and £50,000 on social care costs)
were put on the shelf.
Unsurprisingly, there has been no
further thinking about a tribunal.
People’s willingness to take what they
are given in general and the lack of action
on negligence in adult social work
decision-making must be very welcome to
both central and local government.
The effect of vulnerability and
dependency makes for a low level of Time to talk: knowing that care packages have been reduced, the Equality and Human Rights
challenge overall. Low educational Commission is surveying carers, users and representatives on challenging social care decisions
attainment levels, social media and other
online information make it hard for The legislation contains all sorts of due sensory impairment and mental illness,
people with no legal awareness to make process requirements, but the guidance as well as travellers, homeless people
judgments about what to read, believe does not reference these, presumably and those with a substance use problems
and apply about their rights. intending to make the field appear to be or comorbidities.
Basic leaflets on legal rights seem old one in which law does not matter much
fashioned these days. People do not think at all. Hopes for the inquiry
about adult social care until they have to, It refers to complaining in paragraph CASCAIDr hopes that the commission will
10.86 but does not mention the recommend that:
monitoring officer or the administrative ● Far greater attention must be paid
Complaints systems have court or even the pilot SEND (special during social work degrees to the legal
become dumping grounds and educational needs and disability) tribunal framework – not just to its existence
also but to how public law works
system, which has been made permanent.
relieve senior managers of It exhorts councils to signpost people to in practice
applying case law for resolving independent sources of advice where a ● The ombudsman will explore with
Care Act breach issues person is dissatisfied with a decision but councils what their excuses are for
there is no duty so to do or any sanction
repeatedly getting the law wrong
for failing in this regard. ● Better central government funding for
Even the advice and information the ombudsman, which should be
and this means that people in crisis are duty itself is an obligation merely to resourced so as to be able to work more
not often in a fit state to absorb establish and maintain a system, not quickly, thereby reducing the pressure
information, even if they happen on to provide or arrange for it nor quality on the administrative court as well as
something of quality. assure the content of any advice or the need for formal legal advice.
CASCAIDr’s experience in training and information given. ● The monitoring officer role in the
teaching contexts is that you can take It is difficult to tell what sort of 1989 Local Government and Housing
people to the water of legal literacy, but cross-section of survey responses the Act is treated by the ombudsman
not make them drink it or think about it. commission will attract. as a role that is subject to the
We support people fighting for their LGSCO’s criticism
Awareness of grounds for challenge legal rights but we think that those most ● Care and support guidance is rewritten
Most interestingly in CASCAIDr’s view, likely to respond could well be people so the law that underpins it and the
the inquiry will consider evidence as to who are still aggrieved at failing, references are put back in, so people
whether people are aware or made aware regardless of whether the law was ever on can see at once that the guidance
(and how) of the grounds upon which their side. is subject to the law, and not its
they can challenge decisions, and the We hope that the survey (which closed master. That rewrite should specifically
routes through which they can do this. on 15 September) attracted respondents mention the monitoring officer and
The care and support guidance says including young people, elderly people, judicial review.
nothing about judicial review or the minority ethnic users/carers, LGBT people, ● Care Act advocates need to have done a
Seán Kelly grounds for it – so where would people go people with learning disabilities, autistic module in legal literacy before they are
to find out about that, we wonder?
spectrum disorders, invisible disorders,
able to practice. n
www.cl-initiatives.co.uk Community Living Vol 35 No 1 | Autumn 2021 9