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legal: care duties

people appreciated that most councils
were trying very hard and that individuals
were not to blame.
But look where that got us: long after
access to those easements last summer,
more than half of responding councils
were admitting they could not reliably
discharge their legal duties.
This is an object lesson as to how social
services legal rights will be lost. Not with a
bang but a whimper.
CASCAIDr ran a survey to try to find
people who had been affected by this.
Fewer than 10 people replied.
We know of no judicial reviews about
this trend. We think this is because the
Support workers encourage independence and aid social interaction – but many were having to legal aid system is broken already in this
prioritise meeting basic needs over helping people to lead fulfilling lives area, law firms know that public law judges
are aware a court order will not magic up
Behind the scenes, Adass is calling for One could be forgiven for concluding boatloads of qualified, competent care
social care to receive at least an extra that this sorry state of affairs is inevitable workers, and that golden hellos like those
£7bn funding a year, a social care and not really noteworthy. But it is an paid by retail and hospitality will not assist
minimum wage equal to what the NHS admission of breach of absolute this labour market.
pays for similar work, and for social care enforceable statutory duties. Even if politics present a more
to receive a larger share from the new Who is it, one might wonder, who appropriate means of challenge, we know
health and social care levy. decides what to write about such things? of no MP willing to ask in the House of
ADASS president Stephen Chandler said: And when is it worth actually properly Commons what the secretary of state for
“The roots of this lie in the failure to fund researching around the subject matter, as health and social care actually thinks of
adult social care sustainably over the past opposed to just going along with the press this development.
decade and to recognise and reward release provided? CASCAIDr wonders what the Local
properly the committed, courageous and Government and Social Care Ombudsman
compassionate people who work in it. will do about this when complaints about
“Opportunities were repeatedly missed We know of no MP willing to it start coming through, or on what basis
to ensure that adult social care would be ask in the House of Commons this issue could not be described as “fault”
robust enough to withstand the causing injustice once the Care Act was
challenges posed by Omicron. Any money what the secretary of state for back on the statute book in all its glory.
that has been forthcoming, though health and social care actually It can only be assumed that people
welcome, has been too little, too late.” thinks of this development have lost faith in the rule of law.
The survey was carefully worded, so We would exhort people to do a reality
Adass did not reveal precisely which check on their own thinking – because,
councils were doing what. It was not without remedies and people to seek
therefore possible to determine whether Reference was made to easements in the them, there are no rights, even in a society
any particular authority had said it was survey – an unprecedented legal device and a sector that are doing their best.
engaging in rationing. that meant the immediate suspension of
the Care Act when Covid first arrived. This Updated advice
Aiming for attention was mitigated by instructions from the As an antidote to this sort of slide,
In one sense, the survey is not a mass government to ignore the suspension that therefore, CASCAIDr has updated its
attempt to commit corporate harikiri by existed in law only, and focus on original analysis of the effect of the
half the social services sector but more of continuing to do their best. easements on whether council practices
a strategic flagging up of risk – legal risk – Councils were, effectively, asked to would attract legal challenge.
designed to grab attention at central continue as if there had been no This time, the analysis has looked at:
government level. suspension, unless or until there was no which practices would be defensible as
Passing attention was stirred up in the option left to them but to admit defeat. they would just be making use of Care Act
care and serious press, but with regard At that point, a council could trigger flexibilities whether or not any easements
only to the numbers, not to which easement and scrutinise itself very had ever existed; which ones would be a
measures might be on the wrong side of
breach of public law when there are no
carefully for exactly how people’s human
Seán Kelly/www.seankellyphotos.com might be just about defensible. in 2020. It would seem that the rest would be unlawful even if the original
the flexibilities in the Care Act, and which
rights, at least, would still be honoured.
easements (ie currently); and which
Eight councils triggered easements
easements were reinstated.
Nor was any attention given to the
We hope that you will find this useful in
consequences for clients, or for their
just got on with slip-sliding away from
the legal framework and escaped
carers – women, in the main. Nothing was
your dealings with your local council. n
l Practices that May or Clearly Amount to
said about the routes to challenge these
challenge because of widespread
developments via the courts or
a Breach of the Care Act is available from
the ombudsman.
underpinned by the Care Act, and as most
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www.cl-initiatives.co.uk ignorance of the rights actually Community Living Vol 35 No 3 | Spring 2022 9