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The Care Act shows its teeth

Haringey’s failure to provide an advocate, and the first judicial analysis of a little known part of the Care Act – accommodation for asylum seekers – give us the first indications of how the new Act can be applied. Belinda Schweher explains

We now have the first legal precedent of real principle under the Care Act. This concerns the mandatory nature of the duty to appoint an advocate if the statutory threshold is met (the person’s likely experience of substantial difficulty with involvement in the assessment process), or no reasonable council could consider the person to be without substantial difficulties. The approach of the Court means that it is unlawful for councils to assess a person without an advocate, if one is triggered, and that the assessments made without one, when the duty has been triggered, are likely to be declared invalid.

The woman in question (SG), an asylum seeker, had post-traumatic stress disorder (PTSD) and resulting anxiety and depression; severe memory difficulties, could not count, could not tell the time and had severe difficulty in learning her way to new places and using public transport. She struggled with many basic tasks, including self-care, preparing and eating food, management of simple tasks and taking medication. Haringey failed to appoint an advocate until after the assessment had been completed.

Are the shortages an excuse?
Resourcing an advocate, at a time when most IMCA organisations will be stretched to capacity on the DoLS backlog, may be difficult. The council’s barrister suggested that because demand exceeded supply, it was relevant for the Court to take that into account.

But the judge said:
“[Haringey’s barrister] …contends that as a result of the new Care Act ‘demand currently outstrips supply.’ She says the claimant’s services have not been prejudiced as a result concerning the outcome of the assessment, but I agree with [SG’s barrister] that we simply do not know that. I accept the defendant’s submission that there may be cases in which it is unlikely the presence of an independent advocate would make any difference to the outcome. This is not one of them because this appears to me the paradigm case where such an advocate was required as, in the absence of one, the claimant was in no position to influence matters.”

So this case decided that the absence of independent funded advocacy where the right has been triggered, or could not reasonably be denied to have been triggered, renders an assessment invalid if challenged.

Low advocacy numbers
My concern is not merely that advocates are not being found for those who are entitled but that First Contact systems in councils are not following the law about who is entitled to be referred to the council’s commissioned arrangements for independent advocacy.

What may be being overlooked is that a person’s relatives may be willing to speak up and be involved in their loved one’s assessment, obviating the need for a formal advocate – but they are not able to be seen to be appropriate for that role, unless the person with the substantial difficulty actively consents. That must mean understanding what the person is going to do for them and that they are entitled to someone else if they don’t want their relative to support their involvement.

Presumably, councils are assuming that people are happy to accept this support from their relatives and are not necessarily explaining that they don’t have to have them and that they can have a paid-for skilled alternative.

The issue for asylum seekers
The claimant was an asylum seeker, both before and after the Care Act came into force but had been granted asylum by the time of the hearing. She challenged a decision made in May, under the new Care Act, that she had more than solely destitution-based needs for care and attention (which are eligible needs under the Care Act) but was not entitled to accommodation because it was not accommodation that she really needed.

Although the paperwork described her as ‘not eligible’, the council seemingly accepted a clear duty to provide services, both before and after the May decision, but not accommodation through its new Care Act powers.

This shows that it is no longer a good idea to use the concept of eligibility in relation to a particular service: one is eligible, and then care planning determines for what, precisely and separately.

The claimant had a wide range of unarguably significant inabilities under the new criteria and Care Programme Approach needs as well.

The post-Care Act May decision was first made on the basis that the claimant was not entitled to receive accommodation under the Care Act, because she had accommodation available to her provided by the National Asylum Support Service (NASS). Under the old law one had to ignore the accommodation provided by the NASS when deciding whether care and attention was otherwise available under the National Assistance Act (NAA). This judge held that that is STILL the law under the Care Act. The council had conceded that point at the hearing; the real issue was whether the needs required an accommodation-based response.

Under the National Assistance Act the need for care and attention for a person with immigration status had to be at least accommodation-related– not just a need for a fridge, or other physical assistance, for instance.

It did not mean that care and attention could ONLY be of the kind that could be provided by a specialist setting such as a care home. But the old case law established that a need for ‘care and attention’ simply had to mean something more than just ‘accommodation’. The law (section 21{1}a) was not intended as a general power to provide housing. The ordinary meaning of the words ‘care and attention’ in this context was ‘looking after’, doing something for the person being cared for which he could not or should not be expected to do for himself. It might be: household tasks which an old person could no longer perform; protection from risks which a mentally disabled person could not perceive; personal care, such as feeding, washing or toileting. The input had at least to be care and attention of a sort which is normally provided in the home (whether ordinary or specialised) or would be effectively useless if the claimant had no home.

Having summarised the old law, the judge said in his opinion, these principles continued to apply under the Care Act:
(a) the services provided by the council must be accommodation-related for accommodation to be potentially a duty;
(b) in most cases the matter is best left to the good judgment and common sense of the local authority;
(c) “accommodation-related care and attention” means care and attention of a sort which is normally provided in the home or will be “effectively useless” if the claimant has no home.

The judge gave his view that only two of the various services being given to the woman were actually accommodation-related. All the other council-provided services were to do with learning support, counselling, advice, escorting, language support, and management of appointments.

However, she was already being
• visited at home by an officer and her home environment was checked;
• assisted with domestic and practical tasks in the home by other women who lived there and by the officer;

Even though two of the services were delivered at the woman’s refuge, the judge thought it could still be lawfully within the discretion of the local authority to decide that it was not appropriate to meet needs through the provision of social care accommodation. He did not tell the council how to go about articulating that conclusion, though, on a judicial review, the body gets a second chance to make the decision correctly!

The real failure by Haringey was that it did not ask itself the right questions. The judge found no evidence at all that the council ever asked itself whether, even if the necessary services could have been provided in a non-home environment, they would have been rendered effectively useless if the claimant were homeless and sleeping on the street. “This is so, despite the fact that it was acknowledged that it was agreed that [the claimant] would benefit from some structured activities to minimise her PTSD symptoms but before that, she needs help with the very basic practical support before she can be referred for more structured activities.”
So the judge concluded that the care planning stage had to be redone.

Can people complain?
Readers may be aware that since the Dilnot proposals have been put on ice, the proposed appeal process that was to accompany them has also taken a back seat. The position remains that there is no appeal against assessment or a care plan in the social care system; the only option is complaining, or demanding a review up the line management system, or using the Monitoring Officer for alleged breaches of the law or maladministration.

On the law about the proper construction of the rights of a person with unresolved asylum seeker status to social care, Haringey asserted that since this was a service provision dispute only, the pre-action protocol at (paragraph 3.1) suggested there was an adequate remedy for this under the Council’s complaints procedure.

But the judge said that ‘in my view, it is not adequate to deal with contested interpretation of legislation’, which has always been the preferred analysis by public lawyers – the complaints decision makers are not lawyers, after all. I predict that will prove a very valuable statement for use in other cases.

This is the first care plan lost for failing to consider all relevant facts or for error of law, as well as having been derived from an invalid assessment for want of mandatory advocacy.

We can only hope for more case law so people know there is a legal bottom line under the Care Act.

What are the lessons of this case?
Independent advocacy
Councils have a duty to appoint an independent advocate if the statutory threshold is met, ie. that the person is experiencing substantial difficulty in the assessment process.

In these circumstances it is unlawful for councils to assess a person without an advocate and an assessment made without one is likely to be declared invalid if challenged.

Relatives are not considered appropriate for that advocacy role unless the person actively consents which should mean being informed of their right to a skilled advocate.

Asylum seekers
The judge decided that
(a) the services provided by the council must be accommodation-related for accommodation to be potentially a duty;
(b) in most cases the matter is best left to the good judgment and common sense of the local authority but councils should ask themselves whether what they are providing is appropriate in the person’s environment;
(c) “accommodation-related care and attention” means care and attention of a sort normally provided in the home or will be “effectively useless” if the claimant has no home.

Complaints
There is no appeal against assessment or a care plan in the social care system; only complaining, demanding a review up the line management system, or using the Monitoring Officer for alleged breaches of the law or maladministration.
Belinda Schwehr
Care and Health Law