Reversing the Charges: Disabled and Done Over?

by Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)

Reversing the Charges: Disabled and Done Over?

by Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)
Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)
Case Owner
Belinda Schwehr founded CASCAIDr to stand up for people's legal rights to care and support. We're public law experts, using law and legal literacy to persuade councils to comply with the Care Act.
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Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)
Case Owner
Belinda Schwehr founded CASCAIDr to stand up for people's legal rights to care and support. We're public law experts, using law and legal literacy to persuade councils to comply with the Care Act.
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Latest: April 16, 2021

The Legal Opinion is about to land!

Thank you for your support for our Reversing the Charges campaign, this far.

The Opinion that the crowdfunding campaign has been used to obtain, is in draft, right now.

The Local Authority Sector has a…

Read more

We’re CASCAIDr, a specialist legal advice charity. 

We use law to enforce people's social care legal rights - ie Care Act legal difficulties, affecting adults with mental or physical conditions, disabilities or illnesses.

We need your help in fundraising for legal advice to help put right a nationwide injustice. 

Thousands of people have been unlawfully charged for care services and discriminated against, and we need to stop this happening and get money back. 

The illegality has already been highlighted in a recent legal ruling, but its implications are complicated to work out.

The campaign is to fund making legal advice available to the general public, so that up to 300,000 people on disability-related benefits could get back between £300 and £3,000 each - and without generating litigation, just for the sake of it.

That's millions of pounds, back in people's pockets for the things that they need to make life live-able ... nationwide.

What's going on here?

Whenever a council meets someone’s care needs, it’s allowed to make charges from the person’s benefits income, to cover some of the cost of whatever is provided. To do this, the council conducts an assessment of the person's finances in line with its local charging policy. 

In December 2020, in a case called SH v Norfolk County Council, the High Court held that Norfolk County Council’s Charging Policy had the effect of discriminating against severely disabled people. 



The case highlighted that most councils have been counting in more and more of people’s benefits, up to the absolute maximum allowed by law - partly because there's been no national solution to the crisis in local government funding, for many people living with disabilities and serious health conditions.

In SH's case, the judge said:

“The severity of the differential impact on SH and those like her, is serious. There is nothing she can do to limit it. It directly contradicts one of the Council's stated aims, to encourage independence. She will have less money for independent activity, such as social activity. Any reduction in her use of Council services will directly impact her independence, for example by reducing her use of the personal assistant.”

The discrimination was contrary to equalities and human rights law, and found to have disproportionately disadvantaged the most severely disabled people in society. 

But the Norfolk decision opens the way for thousands of disabled people to challenge the charges being demanded by their local authority, and to get money back. 

It could make a difference too, to the 160,000-plus people already known to be in debt to the council because of the charges they are paying for their social care. And to all those who have refused help, despite being eligible, because of the fear of debt…

Why can't this just wait until it's all paid back, automatically?

This is the first successful case brought against a charging policy since the Care Act came in (2015). Councils are given a lot of freedom when deciding how to charge, so it's difficult to challenge these decisions.

Norfolk plans to pay back £1m to 3,220 affected people, we believe. 

But the Norfolk judgment doesn’t automatically mean that every council doing the same as Norfolk, or something similar, will accept that it has acted unlawfully. The legal issue is more subtle, unpredictable and more complicated than that...

CASCAIDr is already putting pressure on the council sector to publish the advice received by its leaders and finance officers following the Norfolk case - and on the sector and government to create a nationwide scheme for every council to work to, for organising reimbursement and amendment of current policies.

But we think it's possible that councils may all end up taking a different approach to dealing with the issue.

What is CASCAIDr going to do?

We believe that people who qualify for help in the first place should not have to push the authorities for this reimbursement – especially anyone with cognitive impairment, who might not have anybody else to help them, or only an Appointee (sometimes even the council itself!) managing their benefits. 

CASCAIDr therefore seeks to raise £6000 to 'scope' and obtain the legal advice. We're seeking this advice from the barristers who won the case, and on terms that mean the advice can be shared with the public, so that people can choose to take action for themselves.  

The legal advice will set out:

  • what people should look for, to work out whether their council's policy is presumptively unlawful, so that they can assume that they will get some sort of  a refund without too much difficulty
  • whether their council has likely got some sort of answer to the suggestion that it has discriminated, such that people should gear themselves up for the long haul
  • whether the council's stance on Disability Related Expenditure deductions from chargeable income, is potentially ALSO discriminatory
  • how they should engage with the council in question in the most cost-effective way
  • what to do if they are ignored.

By commissioning and publicising this legal advice, we believe it will help everyone affected to assert their charging and reimbursement rights to their council, themselves, or through advocates, parents, relatives and appointees. 

We think that most people might get back about £1000 a year, back to whenever their council first adopted certain charging policy changes - sums which could make a huge difference for their lives. 

They could perhaps even buy a shed, like this person did, when her Disability Related Expenditure claim was finally allowed!

This work will be progressed by CASCAIDr unless or until a nationwide scheme to fund the reimbursements due is created by the local authority sector, and backed by the Department for Communities, Housing and Local Government, the Treasury and the Department for Health and Social Care.

Who would we hope to inspire to donate to this campaign?

This campaign is about helping as many people as we can to access the information they need to make sure they are not being overcharged for their care. This affects:

  • Anyone who uses social care services, or knows someone who does
  • Disabled people and people with long term illnesses
  • Family carers
  • Appointees, Finance Deputies and Attorneys
  • User-Led and Peer Support groups interested in disability and rights
  • Supported living providers
  • Care agencies
  • Advice agencies
  • Social workers and financial means assessors
  • Advocacy services and CABx and debt advice agencies
  • Legal aid law firms

CASCAIDr's work goes much wider than charging cases, however. We were founded by people whose experience has driven them to call out councils' social care-related wrongdoing, across the whole range of Care Act functions. The laws and principles that we should all be able to benefit from, must continue to mean something, in increasingly difficult times.

So, any further sums received through this campaign will go to support our general aims, which cover the whole of the Care Act and the many other ways in which it is being breached on a daily basis. We get no public funding at all; we value the independence that that brings us, and we care very much about enforcing public law principles and Care Act rights. But it does all cost money!

We would be particularly glad to receive donations from care / supported living providers who act as corporate appointees, because not only do we think that that group of young people is the most disproportionately charged, across all social care clients, but we also want appointees to be well-informed, in managing the special fiduciary duties owed to the people they support... 

And if you're a group or organisation that still has any end of year budget left and you can legitimately use it to make a pledge, please do take that step right now

Alternatively, you could use a sum to support your own members or clients, through funding legal advice, by booking a set number of the low-cost basic Unlawful Charges Checks (£35) that we're offering - a check on the legality of their charges (explained below); you can then allocate those, yourselves, according to need, amongst your own group. You need to email belindaschwehr@cascaidr.org.uk for booking those Checks in bulk.

What if the issue is more complex?

Of course, people could try to get help from a legal aid law firm if they qualify, in terms of means, and there's a Find a Legal Aid Adviser link here.

But due to years of legal aid fees being cut, and kept to lower than 2007 levels, the expertise and capacity for taking on such a large volume of cases is very thinly spread. The task of even finding a firm willing to start your case, is mountainous - which is why we are offering to get people started for as low a cost as possible, whatever their means.

If, after accessing the counsels' advice we're commissioning, people (or their families, appointees, deputies or attorneys) need more help, or prefer to seek help from the outset, then CASCAIDr can, as a charity, offer a basic check about the legality of the financial assessment for a £35 fee. We will write the important first letter to the council, as part of that service. 

People can pay that charge themselves, or their appointees can pledge their credit under the law of necessaries and the Mental Capacity Act. 

Deputies and attorneys can, of course, simply make the payment as statutory agents.

We’re also committing, here, to putting half of any Gift Aid that this campaign brings in, over and above the cost of the fixed fee advice from the legal team, into funding those basic legality checks, for people who really cannot afford one.  One needs to be a UK tax payer to be able to tick that Gift Aid box, please note.

If you want to book a basic Unlawful Charges Check or find out more about that offer: look here.

NB You should not book this sort of Check if you, or the person whose benefits you manage, or whose finances you are in charge of, lives in a care home; it would not be likely to be justified because the Norfolk case was about the minimum income guarantee for people living outside of a care home setting.

The legal bit!

We also hope for donations from Legal Aid Law firms with a contract for Community Care Law. We will need to make referrals to firms all over the country, arising out of the checks we're undertaking. It won’t matter to the law firm where the person who needs the help actually LIVES, because they will all have disabilities, which justifies going outside the Legal Aid procurement area for one's address, for legal help.

The Legal Aid Agency contract rules forbid firms paying anything for referrals/introductions. But we're a registered charity. Donations are the only way we can subsidise this sort of a Checks service and remain viable ourselves. The product of those Checks will be hugely useful for the law firms to which many of the people we've helped, will end up turning, for issuing applications for permission to bring judicial review proceedings, on full legal aid.

We expressly disavow any link between the size of any law firm's donation, and the number of clients we might need to refer onwards. 

We will choose law firms (legal aid law firms, or those offering privately funded work) to collaborate with only if they can convince us that they've got the capacity and focus to attend well to the volume of basically analysed cases that we'll be steering their way.


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Update 6

Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)

April 16, 2021

The Legal Opinion is about to land!

Thank you for your support for our Reversing the Charges campaign, this far.

The Opinion that the crowdfunding campaign has been used to obtain, is in draft, right now.

The Local Authority Sector has also taken collective advice (through NAFAO) from reputable leading counsel. They have done a joint opinion which is being shared nationally, currently, within councils, via the regional groups of ADASS (Association of Directors of Adult Social Services).

We have been told (not confidentially) that their lawyers’ opinion is that the Norfolk case is not one to worry about! 

We were surprised, but gather that that is for legal reasons - reasons which currently remain obscure, but which we have asked to see. 

Those reasons would have to be explained to anyone asking, or pressing for change or for a refund, in any event, once councils have had a think about it.

Local authorities everywhere will be considering that advice in the context of what to do, locally.

They will be reading our barristers’ opinion, too, which may coincide, in places, with theirs, but otherwise 'round out' their strategic thinking. They know what Norfolk itself has done, by way of refunds and changes to its policy.

We guess that the council sector will be getting further strategic advice too: advice that is legally privileged from disclosure, which nobody will get to see.

We will be doing the same, and that is a reason, we hope, for a further donation to our campaign here or support through sharing this message for wider public awareness. 

We’ll obviously not be able to publish that further advice, for general consumption – not without losing the benefit of the confidentiality of the strategic advice  - but we WILL share it 

  • with legal aid law firms with community care contracts, nationwide, if they are working with us, on the Hub we are setting up... 
  • with Groups who want to work with us, too
    • as long as it’s understood that we are a charity, that we have individual clients to whom we owe a duty, and that we are not ourselves able to campaign to change the law, only to enforce it and uphold it. 

So if you can support us further, or have contacts in user-led, family carer or peer-support Groups who will likely wish to access several layers of help, NOW is the time, please.

Given what is at stake, there is unavoidable legal jeopardy in ad hoc demands for money back, or an end to charging, or debt recovery. Co-ordinated ones would be better. 

So we would ask for some really careful thought, as to the best way forwards for people with disabilities in your group or area.  That may be you, your loved ones, or your clients, if you are a corporate appointee.

On the other hand, we think that there will be councils making changes and willing to settle some types of cases, amicably, depending on how they are given the opportunity. We are a dispute RESOLUTION organisation, first and foremost, so it makes sense to try through ourselves, first, we think. 

As an alternative, we will be using our Legal Aid Lawyers' Hub to refer cases onwards, after initial screening, to law firms who are interested in actually resourcing dealing with the workload, as explained at the outset. 

If you know of any legal aid law firms with community care contracts, local to you, who might be interested, once they understand the issue, please check with them to see if they have been invited, and if not, put them in touch via belinda@cascaidr.org.uk

 The CASCAIDr sponsored barristers’ Opinion – likely to be published next Thursday, but before 27 April as a backstop - covers the following topics.

  • What the Norfolk case decision itself, actually stands for, in terms of what its value is and what about it cannot be easily ignored;
  • Why councils need to consider it conscientiously now and as they keep their policies under review in any event
    • Why some councils might simply refuse to engage, and in what circumstances that in itself would be unacceptable
    • Why some councils might make changes for the future, and not the past
    • Why some councils might make refunds as well as changes, and how much you might expect, depending on your benefits status
    • Why some councils might wipe out debts or at least re-calculate your DRE
  • What sort of changes to policies would be inadequate, or good enough, in terms of discrimination law?;
  • Information about the Monitoring Officer route that exists in every council as a free remedy for making a referral to, if you can explain why a council’s policy is or has been in likely contravention of an enactment or rule of law...;
  • Why a challenge in correspondence or a pre-action protocol letter will be likely to be required to bring about change;
  • The position of particularly vulnerable people and the situation where the council is also corporate appointee or deputy;

Please think about where further donations for the follow-up strategic advice that we will need, might come from.

Any excess goes, as we have explained, to sustaining CASCAIDr. We use it to pay for proactive, legally clued-up charitable advice and action, to enforce legal rights, across the full range of community care legal issues that people are struggling with right now.

Please consider coming on our Guided Learning and Supported Study courses, too, advertised here https://www.cascaidr.org.uk/2021/04/08/have-you-got-the-voice-for-asserting-peoples-legal-rights-to-care/ – they start in May, with closing dates of 25 April (professional level course) and 30 April (public course). 


Update 5

Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)

April 8, 2021

Have YOU got The Voice for putting wrongs RIGHT in social care decision-making??

This Spring, to signify emergence from dark times, CASCAIDr is investing in training up members of the public - and people working in health and care - to embed a culture of legal awareness of community care law.

This is CASCAIDr’s bid to further legal literacy amongst tomorrow’s leaders in adult social care and health … and skill up the public as well, to be better able to self-advocate, efficiently and assertively, in an increasingly brutish decision-making culture.

Belinda Schwehr, CEO, will be running the programme, with contributions from other specialists. Even now, 3 years into nurturing CASCAIDr, an experiment in harnessing a charitable model for the provision of specialist legal advice, she still burns for the subject, and for spreading the word!

  • The Public Level course is designed to create strength in the community at a grass-roots level for building legal literacy for use in networks, peer-support and self-advocacy groups.

If you believe in the values of co-production and person-centredness but don’t see much of it in practice, and flounder when it comes to changing that, you could use this course to stop feeling helpless or passive - and take ownership of the means to do something about it.

  • The Professional Level course is intended to train up a new generation of advice workers, independent advocates, social workers, social work academics, paralegals and junior lawyers - to become expert in community care law - so that accountability is not mere pie in the sky when health and social care try to operate under two different legal frameworks.

    Coverage

  • Just like on 'The Voice', survivors of these courses will get the benefit of over 20 years' worth of the coaches' experience and legal insight...

    • At the Professional Level - into 26 topics within the Care Act, past and current case law, and a chance to do case studies and even work experience, if good enough.
    • Graduates of the professional level course could earn money through CASCAIDr as contractors – either as fact-finders or caseworkers, within 6 months of starting. We hope to be able to accredit people’s experience for the SQE route to becoming a solicitor - but even if that's not for everyone, knowing this stuff can only help people who want to work in activism, advocacy, or just want to be better at their existing jobs.
    • At the Public Level - anyone lasting the distance on the public course will have learned a good deal about 12 broad aspects of care law, which they can take back to their existing roles, or to their peer-support groups, family carer groups, or advocacy services.


Both courses build up over one year - so you can fit this in around your day job, or other commitments. You need to do an hour's reading per week, and find the time for the fortnightly weekday evening lecture, monthly Q&A session or the recording.


Cost/Scholarships/Bursaries

The cost of the Public level course is £35 for the year and Covid culture and tech means that we can take large numbers.

The cost of the Professional level course is £350 for the year, with scholarships or bursaries for strong candidates, from donations we have already attracted.

Entry to the latter is competitive, due to the limited number of places, likewise any application for financial help.

Delivery

All online sessions and lectures are via Zoom meeting with breakout rooms for group working, with recordings for those who cannot attend the live session.

They will be delivered out of work hours – probably Wednesdays at 7pm for 1.5 hours at most (breakouts remaining open for anyone whose circle wishes to continue). 

They will be scheduled fortnightly for the Professional course, starting 12 May and once a month for the Public level (probably 19 May and mid September depending on numbers).

Entry criteria

There’s no need for formal legal qualifications for either course.  Our best caseworkers haven’t always had them!

For the Public Level course you’ve just got to be interested enough to be prepared to do the Guided Learning and Supported Study reading, every week. You will not be helped, outside of a learning circle, but you will be encouraged, enthused and motivated - and there will be many lightbulb moments….

You can start on the Public level and apply to move to the Professional Level, if you find it is too basic.

A covering letter will be fine, indicating whether you want to be considered for a free place.

Even if you want to do the Professional level course, all you need is to be able to convince us that you already have the following knowledge, skills and attitudes:

  • Familiarity with the adults’ social care system, ie the Care Act, and the thrust of the Mental Capacity Act…
  • Understanding what sort of law applies in this sector; the difference between the Administrative Court and the Court of Protection, and how law actually works in the context of local authority and public sector culture…
  • Knowing what you don’t yet know; an inquiring mind, internet research skills, and an appreciation that all is not quite what it seems, in adult social care law…
  • Intellectual acceptance that there’s a difference in legal terms (even if one wishes there was not) between what a person wants and what a person could defensibly be said to need out of public money, when the legal test is NOT ‘the best life a person could possibly have’…
  • That one magical thing: legal acumen - which means an ability to make a judgment about what someone thinks or says happened, and what they can prove probably happened, to a reasonable standard – often having to cut through distressed streams of consciousness on a referral, to probe them quite hard…and then paraphrase the essence of the problem
  • A belief in the power and value of public law for good, and its consistency with traditional social work values of accountability, non-discrimination, anti-oppression and anti-arbitrariness.

A cv and a covering letter is required for the Professional level course.  If you make it past that hurdle, there will be one written exercise, for a place; or two, if you would like to apply for financial assistance for taking up that place.

Please note that if you are currently working in a CCG, a local authority ASC or legal department - or for a law firm or advice service, you are most welcome to apply for the Professional level course, but we cannot extend financial help – we are a charity. You may of course be paid for by your employer and it will count for CPD points, if you complete the course. There will be no ‘sides’ taken on these courses.

To apply for the Professional level course, please write to sebpark@cascaidr.org.uk with a proper cv, not an electronic standard one, and a covering letter explaining what you’re currently doing, and how and why you think you meet the above criteria.

  • Explain where your existing general legal knowledge, knowledge of public law, and your knowledge and USE of the Care Act in particular, all come from.
  • For the Professionals’ course, please indicate whether you NEED money off or whether you would be prepared to pay, if not offered financial assistance.    
Update 4

Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)

April 7, 2021

The various types of charging dispute we see, where the Norfolk case could help!

In all of the following examples, the Norfolk case could help a person, their family member or their financial representative, defeat a claim for charges. NOT ALL the charges, for everyone, but a good chunk of them, for some!

1. Claims for care charges, where the client is currently said to be in debt, whether because of an increase in charges, due to adoption of a policy for taking 100% above the MIG, or because of other difficulties not necessarily related to the Norfolk decision - but where the policy is the same or similar in its discriminatory effect. That's a question that turns on possible justification, which needs engagement upon, and some knowledge of discrimination law, before one can get very far.

2. Claims where the client/representative is facing a reclaim from the council, 

either for 

a) unspent direct payment (due to Covid-19 making it impossible to spend) where there was no review and agreement as to how ELSE to meet needs during Covid-19) and no pivot of the reclaimed monies to some other form of support. When this happens, the charges have to be recalculated anyway, as the amount charged cannot be more than the amount actually allocated in the overall budget. Some councils set these sums off notionally against each other, year by year, and others do it by the week or month, we've noticed. It's complicated because depending on how the needs WERE met in the meantime, there could be a claim for restitution for whoever stepped up beyond an agreement, or paid out, which would mean that the reclaimed direct payment would not then BE unspent. We love those ones, because they're conceptually HARD to sort out.

b) a supposed overpayment into a direct payment account, where the money was paid net of the charges and the person is said to have been undercharged for whatever reason. An under-claimed charge = an overpaid direct payment, in theory. This is common where the person needing services has been said to have omitted to disclose getting a new disability benefit, or obtaining the care component where the service user did not qualify in the past. The Norfolk case goes directly to whether the whole of that new benefit should lawfully have been counted in for charging purposes, or left out, to mitigate discrimination.

3.  Where a person believes that they've been overcharged and shouldn't have been, then that overpayment of charges could equate to an underpaid net Direct Payment and the unlawfully charged money (if Norfolk applies) should go BACK into the DP account, and then not affect the person's benefits. But the tricky legal question would always be, by how MUCH has the person been overcharged? 

4. Claims where the client’s Direct Payment Authorised Person, or their Lasting Power of Attorney holder or their CoP appointed Deputy or a person’s DWP benefits Appointee, is being threatened with a charges claim in their own name, often where the service user clearly lacks capacity to be sued in the local courts without a litigation friend. We love those ones, they're dead easy!

5. Claims where the person or their family member has been allowed to turn down care services, for which they have been found to have eligible needs/impact – because of the charges and the fear of debt. Those ones are easy too, for anyone who knows community care law - agreement to pay the charge is not a condition precedent to getting the care! These complaints or cases can lead to restitution, where the staff should have known better than to walk away without raising affordability with management - and the charges, if any, in turn, for that retrospective payment, could be affected by whether the council had a policy the same or similar to Norfolk's.

6. Claims where the individual is already in the middle of a tussle about Disability Related Expenditure DRE for whatever reason – eg the council is ignoring it, refusing it for unconscionable reasons, fettering its discretion with an over-rigid policy, making people jump over Olympian-type hurdles for it, whatever. These ones require a bit of public law legal acumen and LGSCO findings awareness, not just Care Act knowledge. You can find LGSCO reports on charging on our site.

7. Claims where there has never BEEN a DRE assessment and it’s only mentioned online and not on a leaflet or even on the Financial Assessment forms, so that there’s an arguable breach of the (accessible) advice and information duty and a failure to follow the Guidance. The charge may well be way too high in the first place and money may be due back. These ones benefit from a combination of the Norfolk case, some general public law and some knowledge of LGSCO decisions, in our view. 

8. Claims where the person is paying out even more than SH, proportionately, because of getting their Severe Disability Premium counted in as income, but not counted as a disability benefit or even as disability-related income when it clearly is the latter, for the purpose of applying any standard percentage-based disregard for DRE (and where this disregard actually made people worse off than before, when they had their DRE individually assessed.) This is test case material, and we recommend Leigh Day for that sort of issue!

Update 3

Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)

March 30, 2021

Why are we fundraising for so much more than the cost of the barristers' advice?

Update no. 3

People have asked us why are we crowdfunding for a 'stretch' target, and such a high one, when we’ve already met the target for the primary purpose of paying for Counsel’s legal advice about unlawful charging for care. 

We're very happy to explain why. 

It's our lived, authentic experience; we hope it’s hard-hitting, and that people read to the end.  

We reckon that if changing the culture in adult social care can be done once, by publicising legal advice to put a stop to non-engagement by council staff, well, that could be repeated 20 times over, about every single undecided point of community care law that creates uncertainty and misery for people who use services.  

We think that the power of strong legal principle, publicised, can be harnessed to 'clean up' social work practice, country-wide, without crucifying the legal aid system.

For instance: reputable legal advice could be funded, to be made public, about all these questions: 

  • Can a council lawfully offer an inadequate budget, ie the cost of a care home, when the service user doesn’t want to live in a care home, but wishes to stay in their own home? What if care, there, is bound to cost twice as much, and it’s taxpayers who'd be paying? 
  • Is it a person's right to have a council pay the cost of care in a care home which charges more than the going rate for the needs, because it caters to people who need a special type of diet, decreed by their religion, in the name of human rights? 
  • Can a council say no to funding a direct payment just because it costs more in the market, for an individual to buy decent care at 10pm than it would if bought by the council, through unregulated use of its dominant purchasing position? 
  • Should the legal aid sector stop trying to frame every challenge to a care plan in the shape of a DoLS challenge in the Court of Protection just to make legal aid flow and ensure the firms’ viability?
  • In what circumstances does the council sector owe people money for breaching the Care Act, given that the Court of Appeal has assured us all that unjust enrichment through unlawfully underfunding a care package, gives rise to restitution, as a 'normal' incident of social care law?
  • When does a person on s117 aftercare have an entitlement to be provided with accommodation paid for by the State, as opposed to just being signposted towards a tenancy that enables the s117 funders to save money through the existing arrangement with an on-site provider for shared specialist mental ill- health-related supervision?  
  • And can a person refuse to accept being cared for by their partner or parent or offspring - or is it the law that the council treats a relative’s willingness as a good reason for not funding a formal care package?

But this kind of analysis and trawling for test cases, all costs money, and CASCAIDr doesn’t make enough of that, to finance that output, unassisted. 

We have a litigation strategy, and boundless ambition, but insufficient logistical capacity and expert caseworkers – before Covid, and definitely during Covid!

 

In early 2020, we got off to a good start for our third year of charitable work, pointing out to Dominic Cummings, in a letter delivered to his London address (not Barnard Castle…) that councils probably owed £150m to people by way of restitution for non-compliance with the Care Act (see CP v NE Lincs.… which we have used, to get back £76K for a family, without even looking for a law firm…).

We suggested to Mr Cummings that the government (any government!) probably needed to think of a seemly way of organising that exercise – perhaps by grant funding us to work out which cases had a legally strong basis. But then Covid landed, and all bets were off.

Covid led to the modification and in some parts, suspension, of the legal framework that underpins our very existence and our tools for the job (the Care Act, shortly to reinstated in all its glory, we believe), and secondly, it radically affected the availability of reliable expertise in the specialist field of law we work with, which was already very thin on the ground.

A year later, no councils (not blue ones, nor red, yellow or green ones…) seem to feel the need for that cover. But no council that is ‘prioritising’ and ‘rationing’ services by reference to what they’ve got, rather than commissioning to meet needs adequately, is legally ‘safe’, in fact. It's just not legal.

When we guestimated for Mr Cummings’ edification that £150m needed to be set aside to be paid back, we weren’t even thinking of charging law. But by the end of 2020, Norfolk County Council had been held to be making unlawful charges. The impact of that decision may necessitate a restitutionary exercise across the country of as much as £1m per authority, on ITS OWN, just for that bit of wrongdoing, never mind the value of all the other Care Act breaches that never see the light of day.


On the casework side, in our third year in 2020, cases about cuts, day care closures under cover of Covid, young people transitioning into supported living (or not!), providers needing to raise their prices to direct payment clients, having only just realised that they ARE their very own clients, providers’ fee disputes with councils, and the general breakdown of due process around reviews (fuelled by pandemic pressure) have filled up our days….alongside briefings about Easements, DNARs, Covid NHS Discharge to Assess practice, etc.


We’ve been involved in some shocking cases that sadden and appal us, as legal thinkers, about the way the social care world is headed, integration with the NHS, or not.

For example, we’ve seen cases where - 

  • a council has failed to pick up responsibility for a woman in a care home, without anyone else to arrange payment for her, until the person had no money left at all, whilst telling the relatives that they would have to pay a top-up; 
  • a person who has 38 hours of care a week was told it’s to be cut to 35 because the Panel ‘made a mistake’ last year, and that it has been decided that it’s legal to make a cut because of that mistake, even though they’ve just referred the woman for a CHC assessment because her needs are now seen to have increased to beyond the scope of social care services….; 
  • a council has told vulnerable adults that they couldn’t have direct payments, because they just weren’t capable of managing them, even though they’ve all had enough capacity for tenancies - organised by the council’s own social workers – AND had sourced a corporate helper to nominate as their DP manager; 
  • a supported living provider told service users they could not go to day care because they lived in shared accommodation alongside other people;
  • a care home said that a resident could not go home to their family (when it was an explicit part of their care plan) and expect to be re-admitted;
  • one who told clients they could not be visited despite being in the last few days of their lives; 
  • or could not be visited, because the Xmas visiting guidelines from government were simply being countermanded by the local authority which had placed the person, so that both it and the home owed human rights to the person in question… but responsibility was fudged;
  • a housing association, used to getting rental voids paid for by a care provider in supported living, had thought that it had the legal power to tell the care provider that it had decided not to ‘allow’ the care provider to provide the care to the council’s clients living in that house any longer, despite the housing association having nothing to do with the care contract at all; 
  • a case where a woman had been paying for her mother’s live-in care for over a year around the clock, and the council had allowed that to continue on the basis that there was ‘no evidence’ the mother needed anything more than a standard offer of 4 visits a day
  • a case where a council had failed to do a proper assessment of a man, where a review (policed by us) led to an increase in 10 hours a week of care – nearly double what he had been having – and where he will now get restitution, because he’d paid for the shortfall, himself. 
  • a case where a council had not put up its direct payment rates for 5 years, leading an elderly dual sensory impaired man to consider equity release, and to self-ration his care plan down from 34 hours a week to 27, just to get by; 
  • a care provider had threatened to sue an ex-client’s mother for the fees that the council had failed to pay, until we became involved and resolved the matter, wiping out £19K of debt;
  • a CCG had messed up a budget for a gentleman by failing to realise that the salaries it had agreed to fund for the man’s care team, inevitably carried on-costs that needed to be part of the personal health budget - and blamed the man’s wife for paying the ‘wrong salaries’;
  • a council had left a person’s placement in a care home underfunded to the tune of £16,000 per year, in comparison to what it was paying for similar clients in the same home from other clients of that same council, for at least 5 years;
  • a council had informed a couple with autistic spectrum disorders and hugely complicated inter-dependencies that it could not ‘find’ a provider to meet their needs (until we got involved and pointed out that that would be a breach of statutory duty to leave their eligible assessed needs unmet)
  • a council and CCG had failed to provide a man with a s117 care plan and instead used the Care Act, ignoring the scope and purpose of aftercare services altogether, and pulling in charges at the same time for what should have been free aftercare;
  • and at least three cases where hospital discharge arrangements during one of two periods of special NHS funding responsibility were royally cocked up through simple lack of grasp of the legal framework by all the public authority staff – in two of which, the daughters of the discharged patient ended up in dispute with the council about who should have been doing what, and who was liable for the consequences.

This is the day to day work of CASCAIDr, never mind the charging law project.

We don't think that these developments have anything necessarily to do with ‘party’ politics. They have emerged from influences running much deeper than that, which are seismic, and regressive – and they indicate the gathering of pace of malign influences in the opposite direction away from civilised society and ethical behaviour.

The nation is now facing the consequences of ever more blinkered and short termist managerialism from the top down – driven by the ideology of austerity that has prevailed, with majority public support – to the effect that public service authorities don’t really need to get the law right, or manage their own governance. That’s no problem, because if people aren’t happy  - well then, they can always make a complaint, go to their councillor, or use legal aid … 

We see no way back, from that loss of a public sector ethos, other than using a charitable model for providing a service that continues to feed a series of decisions of the Administrative Court that underline that there ARE consequences – just occasionally – for public bodies who skimp on legal literacy.

In this coming year, if we don’t manage to raise awareness as to what is happening under the very noses of the public, to the notion of the rule of law within welfare provision, and adult social care law, in particular - CASCAIDr will either collapse from the tsunami of need for specialist legal advice and the lack of reliable expertise – or make sufficient money to survive, and make more of a difference. 

So the rest of the funding being sought in this campaign, is for training future generations of advice workers, independent advocates, social workers, social work academics - as well as paralegals and junior lawyers – whether they be barristers or solicitors, to become expert in community care law. 

In that way, this charitable project will not have been in vain, and others can then rage to greater effect, perhaps, against the dying of the light.

Please apply to join us as a caseworker if you are really strong at public law – we are committed to paying decent rates, to keep the expertise going: sebpark@cascaidr.org.uk.

And please – if you burn for people getting their legal rights - but are willing to be open to the fact that they’re not as described in the rhetoric of personalisation, please apply for our training course, starting in May 2021, lasting one year. 

  • Reading materials every week, and one lecture and Q and A per fortnight. 
  • Practical casework experience on the way, because those cases just keep on coming in!
  • Free tuition to the 20 strongest candidates - £350 to the next 20
  • Bespoke cvs and covering letter, please, to sebpark@cascaidr.org.uk

And if at the end of the year, CASCAIDr is still viable, we will take 5 people on, as contractors, or even as employees of what will then be a law firm, if we have survived, from the 30 people that we will train, to a very high standard. We will be able to accredit people’s experience for the SQE route to becoming a solicitor.


Update 2

Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)

March 25, 2021

Q & A from a typical parent and a working link to our Jan 2021 letter

Jenny: I was wondering what responses you have had regarding your Monitoring Officer referral to all Local Authorities following the judgment in SH v Norfolk County Council, sent on 22 January 2021, which you made available here: https://www.cascaidr.org.uk/uploads/NorfolkChargingPolicyandWiderUnlawfulnessLettter.pdf

CASCAIDr: Yes, we have had about 90 replies, and are chasing non-responders.

Most just said that they were ‘awaiting advice’. NAFAO and ADASS have paid for central advice for all councils, we think, but it is slow in the coming.

The central advice for councils may be published, we know not. We have asked NAFAO and they haven’t replied. Our feeling is that the advice will not be published.

 

Jenny: Will these responses be available to the public now or in the future?

CASCAIDr: No, we have done that work out of our own resources, and it had to be paid for, so we are recouping the cost of that through our £35 offer for a basic charging check that is advertised on the campaign page.

We will be using the replies to mention whether the council DID reply to that letter, when bespoking a letter for any individual person, and that will be part of the grounds for writing in, and asking for repayment...

Anyone can use the above link though, to ask their own questions to the Monitoring Officer for their local council. 

We would recommend waiting until councils start saying that they have received and taken advice and decided what to do about it, otherwise you'll just get an 'Awaiting Advice' reply, just as we did! We're saving FOIs up for the next round once we've worked on a list of councils whose policies we think put them in the danger zone.

 

Jenny: Will you be providing any template letters that may be sent to the local authority challenging their policy, in light of the above case?

CASCAIDr: Yes we will, but not for free, only as part of the £35.00 charging check we are offering.

Our contribution as a charity has been in writing the original letter and writing the instructions to the barristers who won the case. We've done that from a position of knowledge of applying public law and charging rules, so that the advice is made as useful as possible, and public for everyone else’s use. We've taken the risk on the campaign here, too.

 

Jenny: But people who are being unlawfully charged won’t be able to pay?

CASCAIDr: We have put the call out to user-led groups and organisations who care to consider funding checks centrally, in sets of 10, for them to give to the people who they think need them most.

We have also offered to put 50% of all of the Gift Aid on donations to this campaign to free charging checks too.

Beyond the Norfolk question of the potential illegality of any other local policy, and a basic look at the council’s DRE policy for obvious legal error, any further fuller advice as to whether there’s other stuff wrong about any individual’s experience of the charging system has ALWAYS been a low-cost but chargeable part of our own service model. Our site explains that. We get no public funding. We have to remain viable. We are not just playing at this.

Part of the background to this charity’s existence is a belief on its founder’s part – that if there is no financial value attributed to being able to use public law knowledge and principles, or to community care legal framework knowledge, then nobody will study it, nobody will practice it, and the skill will evaporate – which will make it so much easier for any government to dismantle the very notion of social care rights to have needs met, once a duty has been triggered.

Just watch what happens to that notion, if the White Paper on integrating social care with NHS services ever comes to pass!

 

Jenny: What if people really can’t afford or don’t want to pay for the check? 

CASCAIDr: If people don’t want to pay £35 for a basic check, of course, that’s absolutely fine: people can use the link to our letter, above, to ask their own questions in a letter to the Monitoring Officer for that council. A donation would be nice but is not a condition!

They can then go to the legal aid sector and try phoning 20 or so firms. Or just complain and go to the Local Government and Social Care Ombudsman (LGSCO).

But we do have all those Monitoring Officers’ addresses, and we are not confident that the legal aid sector is able to cope with the workload, given the last lot of LAA statistics.

Lastly, the LGSCO is busy upholding over 68% of community care complaints and has a backlog, not eased much by the Care Act having been suspended and the Covid Easements being of unclear significance in relation to the role of the LGSCO on all those complaints arising since March 31st 2020.

CASCAIDr wants to be a hub for getting the right cases to the right solicitors who are actually competent and have capacity, which is why we are presenting this option to the public and the advice sector, via the campaign. 

We are also getting licensed for direct access to any barrister via the Bar Standards Board scheme, to make it even easier to get proper advice for large groups of people – so that they do not have to struggle with legal aid hurdles at all.

A year into the pandemic, we are trying to stay afloat, and make enough money to pay for the expertise that we use – not just on charging matters, but on the whole range of other Care Act breaches that we see every day, nationwide!

Hence the strategy of crowdfunding, as well as charging cost price for a BASIC check. 

 

Jenny: Also, please can you advise where I might find the breakdown of the Minimum Income Guarantee which shows how much an individual in my son's circumstances would be expected to pay for the various categories, ie, heating, water, clothing, petrol, activities, etc.

CASCAIDr:  Here is the link to the MIG uprating circulars: there will be another one like this in early April 2021, because that is the time of year the rates go up in a very small way, when premiums etc are uprated.

https://www.gov.uk/government/publications/social-care-charging-for-local-authorities-2020-to-2021

And here are the regulations that govern why councils have to deduct DRE in the first place: look at paragraph 4 on this page here

https://www.legislation.gov.uk/uksi/2014/2672/schedule/1/made

And here is the guidance to councils on deciding what counts as DRE: search “Disability-related expenditure” on this link here, and also, “Minimum Income Guarantee”

https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance

 

Jenny: My son’s current MIG is £151.45 but it is difficult to know whether my son's expenditure on the various categories of DRE is higher than the norm and whether they would even be classed as DRE. 

CASCAIDr: That is why we have to charge for the charging check and deeper ongoing advice, to be honest, Jenny! It requires skill and professional judgment and thinking outside the box to work out whether a council is being mean but legal, or irrational and unlawful, in public law terms. We can't change that system. It's how judicial review works.

For those who are happy to use local democracy, self-help or the power of the people (involving councillors, the press or the shared experience of user-led groups etc), the very best advice we think we can give to all, is this: 

a) ASK for justification of the policy and what thought was given to mitigating proportionate discrimination as between different categories of benefit claimant? 

b) ASK for discretion to be exercised on the basis of one’s own actual circumstances under regulation 15(2) of the charging regulations and Guidance

c) ASK for reasons for any decision or charge, in writing.

Update 1

Centre for Adults' Social Care - Advice, Information and Dispute Resolution (CASCAIDr)

March 24, 2021

The instructions are with counsel.... whilst local authorities are being chased

Thanks to all who pledged so fast and furiously to get us to our target in the first 2 days. 

It means that there is no jeopardy now: the money will be paid over so we know we can pay for the work that's been commissioned from Emma Foubister and Zoe Leventhal of Matrix Chambers - for publication as soon as it is finished. 

We've also pursued councils to ask them (again) to make a decision about whether they MUST make repayments to many people, in their professional and public sector view, or will wait until they are challenged.

Here's 10 ways in which the issue can lead to signficant changes over the next few weeks or months, in our view

1. We'd like to work with organisations such as In Control, Social Care Future, and DPAC, to get the word out there that it makes sense for individual people to ask councils for their position on their current policies. It is the first step to identifying which councils are in the weakest position regarding 'doing a Norfolk'. To that end, we want to make it clear that anyone can use any bits they like out of this letter here, CASCAIDr's Monitoring Officer referral Jan 2021 to flag up their own individual case, but the clearer one is able to be, when explaining why the charge is a contravention of an enactment or rule of law, in legal terms, the more likely the Monitoring Officer is to sort the matter out efficiently behind the scenes. 

2. If this is going to be achieved, it requires a people-led movement, but one that knows when to use specialist skills and professional support. There needs to be a network that transcends regional or specific disability interests, we would suggest:


This is just a suggestion!


3. We know that legal aid law firms have only opened 18 files about charging cases, nationwide, over the last 2 quarters of the Legal Aid Agency's statistics. More than three quarters of the 50 or so firms actually still offering Preliminary Legal Help to those with under £8K in savings have started fewer than 10 cases on that footing over the last two reported quarters in the stats. That means that there is insufficient expertise nationwide to deal with the work - hence the need for this generic advice that is to be made public. But if you are - or know of - a legal aid law firm with a community care contract whose staff want to work with us, on charging checks that will support well organised firms to go straight to full legal aid funding, then please get in touch with us here - kayleelindsey@cascaidr.org.uk - we want to be a hub!

4. If you know of people who have got large debts (pre court or with a judgment) because of their care charges, now is the best possible time to get them wiped out - by offering to forego any repayment of unlawful charges, in return, we would suggest. Councils can use discretion and it is always worth asking them to exercise it, and worth it for them, if it keeps more cases out of the Administrative Court. We've done it for someone with £18K's worth of debt - the judgment has gone clean away, although not merely on Norfolk grounds, we should stress.

5. We are a limber and agile organisation - we get no funding from any public body source. We can pay people on a self-employed basis to operate our Unlawful Charges checks efficiently and quickly. If you'd like to take that role on and have a welfare benefits, or charging and finance background, we would love to hear from you. Email kayleelindsey@cascaidr.org.uk about that too.

6. We have sent FOI letters to all client finance teams in local authorities to ask them how they are managing the perception of conflict of interest, arising from their officers who act as appointees, and the charging officers up the corridor, all working for the same employer. We've found some councils where the same person does both jobs! We're not saying that it can't be managed but some of our questions are designed to generate public debate about the inappropriateness of practice in this field.   That link is here: FOIs about Conflict of Interest. If your relative has a council appointee, you can ask these questions too, in individual letters.

7.  The very most useful thing that local groups can do, who want to support a wider national effort, is to advertise locally to get people to come forward and ask everyone to put their experiences of financial assessment down on paper on a zoom that can be recorded. The Be Human webinar  https://be-human.org.uk/wp-content/uploads/2021/03/Webinar-details-on-Charging-for-Care-and-Support-31st-March-2021-.pdf on March 31st is a great initiative for bringing people together. That way, everyone will discover that every council's standard £10/15/20 a week DRE allowance is magic: it was somehow designed already 'to cover' everything else that anyone puts forward as expenditure, with evidence of receipts!  

8.  Someone needs to focus on Easy Read information about the Norfolk case and what people need to do. That's not easy, when it's about law! If any organisation would like to offer to do that for US, with the advice we are getting from the barristers, we would be happy to co-badge it with them. 

9. Radio or Zoom based interviews about the issues would be good: is this really not newsworthy, are we thinking? We've been in touch with Money Saving Expert and Radio 4, but nobody's been back to us yet. Does anyone know how to let the CABx network know about this legal development or organisations like WHICH?

10. We're continuing to crowdfund - the extra money enables more charging checks to be given away, up to the value of half of the Gift Aid received. So to do 100 checks for free, we need to collect £28,000 in donations for £7000 in Gift Aid. Now there's a fundraising challenge for anyone with any energy left! We should stress that the actual pledges will get us back to the charity's ordinary day job, which is chewing through all the OTHER Care Act breaches that happen daily - and not just because of the pandemic.

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