Belinda Schwehr discusses CASCAIDr’s first 18 months’ work as a specialist legal advice charity, covering public law rights to health and social care.
They’ve withdrawn the notice and agreed to follow due process. Mrs X is over the moon and so grateful. She would have had no chance at this time of year of finding someone with availability for legal aid work.
1Mrs X is a CASCAIDr client whose disabled son was given notice just before Christmas and told he was ‘going’ to supported living.CASCAIDr opened for advice work in January 2018, after finally being permitted to register as a charity after 10 months’ effort. The name stands for the Centre for Adults’ Social Care – Advice, Information and Dispute Resolution. It raised £25,000 to launch within a two-week onslaught on social media and is still solvent 18 months later.
The charity provides online specialist advice to individuals and health/social care charities, using a model designed to be sustainable in an advice desert, where legal literacy is thin on the ground and where clients almost by definition will not be well-off.
In our first 18 months, we’ve serviced about 300 clients’ referrals, providing free initial advice to 175 of them, and taken on 19 cases of serious illegality for free. We were hugely proud to receive this endorsement of our mission: ‘Your organisation has been awarded a
Gold #IAMchallengingbehaviour Star Award as you are continually challenging the behaviour of those people and systems that stop people getting a good life.’
We’ve done all this with 10 caseworkers, without holding them out as solicitors or going to court at all. We have a litigation strategy for year two, which will see us using protective costs orders and crowdfunding to ensure that some principles that were clear before the Care Act 2014 are re-litigated to the same effect, to reduce the anarchy in the current system.
With regard to crowdfunding (through CrowdJustice), if the financial target is met before the public body finally capitulates (rendering the application unnecessary), the charity gets to keep the money collected. In a field that will rarely attract damages even for the successful, we think others should take note of the model and stand up for the value of expertise and timely advice – so we’re sharing it here.
Our model
We’re an online charity with no employees, a telephone helpline and a referral form. We have a case management system, and volunteers to help people convey their stories coherently when necessary. We cover all contractors’ and volunteers’ insurance needs but are not a regulated law firm and do not offer regulated activities.
Although of course we love donations (see below!), our founders deliberately chose a model based not on pursuing philanthropy, but on charging a low-but-professional-expert level fee when presenting problems are not legally straightforward – eg, no hard evidence, yet, of current public law illegality relating to assessment, eligibility or care planning (our criteria for qualifying for our free scope work).
This means that most referrals receive free consideration for up to two hours, resulting in an analysis of their problem, for both our triage purposes and for theirs, so that they can decide whether to go back to the council themselves, or whether it’s worth paying for more help because it’s a tricky issue, or whether to just unleash us on the council’s panel and/or Monitoring Officer to state the legal wrongs, in what might become a pre-action protocol letter before application, if the Monitoring Officer will not engage.
We have a trading company too, a wholly-owned subsidiary that distributes its profits to the charity. Services that the two companies provide for free, or for a low charge, include:
•our
‘Top cases list’, explaining and providing links to the most important pre- and post- Care Act 2014 decisions;
•combined advice and training annual packages for care providers, brokers, advocates etc (even law firms!);
•live ‘Care Act Conundrums’
webinars for £15.00 a month, including the replay link;
•affordable talks for user groups, providers and advocacy organisations.
Path to registration
During the registration process we had to surmount seemingly endless hurdles presented by The Charity Commission. The scrutiny was geared towards ensuring that CASCAIDr:
•provides sufficient public benefit to deserve registration, for which we were prepared;
•does not provide too much private benefit for care providers who aren’t charities (eg, through getting end-user clients’ personal budgets increased, and therefore easing the provider’s financial position);
•offers advice cheaply enough for chargeable matters, so as not merely to be a low-cost legal business (we benchmarked our charitable charges at £125 an hour but only after the free triage ‘steer’ has been provided); yet profitably enough through the trading company realistically to generate further income for the charity (for which we benchmarked against advocacy and emphasised our expertise!);
•understands the need to manage conflicts of interest as between its voluntary CEO (who also contracts with the charity for specialist advice at the same rates as other caseworkers, and has a private consultancy as a sole trader), the board, and the directors of the trading company.
Objects-wise, we learned that advice charities have a hard time bringing themselves within the confines of the Charities Act 2011, because they are not directly relieving ill-health or disability. It was actually suggested to us that any challenge to the content of local or central government decisions (even those made under statute in the context of welfare administration) is a political purpose outside of charity law; we pointed out (in vain) that that approach would put paid to Shelter, the Public Law Project and the Free Representation Unit.
Then we found
Human Dignity Trust CA/2013/0013. That case makes it clear that there’s a well-established charitable object that’s been incorporated into the Charities Act 2011, which should apply to all legal advice charities: ‘promoting the sound administration of the law’. Human Dignity Trust’s 2014 victory at tribunal, after The Charity Commission refused it registration, was not even listed on the commission’s own website. We were ultimately allowed to register but without reference to that particular object, or to education as a charitable purpose, and were invited to re-present our original objects of relief of the poor, elderly and disabled.
Typical CASCAIDr clients
•Those at home whose extensive care services are purportedly cost-capped by clinical commissioning groups (CCGs) and councils, eg, where care is needed at night, referencing the cost of a care home that is not even suitable, in any objective sense, or available (one council even tying that policy to people over 65, despite discrimination law!).
•Family carers faced with councils recovering direct payment monies that families have been unable to spend because the market in personal assistants (PAs), interested in direct employment, has collapsed, due to Brexit uncertainty and the wages now being offered by agencies for servicing public bodies’ mandatory obligations.
•Substance abusers being pushed from pillar to post because of the centrality of the need for basic accommodation and a willing provider, albeit not a care home, for meeting their needs safely.
•People with ADHD and other less ‘visible’ conditions being told they won’t qualify so there is ‘no point’ in being assessed, or offered an arbitrary budget but told that their charge would wipe out that budget, thereby deterring eligible applicants from insisting on individuated care plans.
•People with autism trapped in Assessment and Treatment Units for want of sufficient housing and Mental Health Act 1983 s117 mental health aftercare teams that won’t explore the decision whether housing is an essential prerequisite of a discharge plan (because they would then have to fund it, if a suitable tenancy in supported living cannot be accessed!).
Our successes
Learning disability and family carers
A London council corresponded for over a year with a parent of a young woman at home, over the alleged illegalities in its assessment, never moving beyond that point into care planning. The parents were providing an intense amount of input to ensure that their daughter got benefit from a SEN place at an art college, and wanted a direct payment to pay for public transport escorting: that and much of the care at home in the early mornings and evenings would be most easily provided if a parent were paid, as is possible, through the direct payment for input beyond what is offered informally as willingly provided on an unpaid basis.
Eventually, the council suggested re-assessment, which is all one can ever get from a successful judicial review. The Administrative Court would not have ordered back payment, but CASCAIDr insisted that just ignoring the year in which the care had been unwillingly provided was unfair, and that the parent would otherwise go to the local government and social care ombudsman (LGSCO) for a compensation recommendation.
This was accepted and paid, and while the new assessment is not being done perfectly, CASCAIDr is hand-holding for the parent and flagging up what is legally indefensible, now.
Care at home
Our longest-running matter involves a principled stance with a council that allocated clients with high needs to a ‘live-in’ model of weekly care funding in 2016 on the footing that it was cheaper and maximised the number of hours that could be obtained, flexibly, for those with space to have someone ‘live in’.
At some point, concerns arose (during the wait for the
Mencap sleep-in decision:
Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641) that it could not be shown that the national minimum wage was being paid (which would depend on the daily average that must be agreed with live-in staff on ‘unmeasured’ contracts, or the analysis of their shift patterns if they were doing night-time salaried work as well as day-time work, eg, when not really living in but just permitted to sleep at work). The council introduced hourly rates for day- and night-time work for direct payment clients, and set about reviewing the clients’
actual needs, ‘behind’ the old weekly sum that it had paid.
This client is already saving the council thousands of pounds a year by employing her mother, who is over 65 so not needing a pension or employers’ national insurance on-costs, and no need to cover the commission that introduction agencies now charge for finding a live-in worker. An impasse has arisen over a defensible and rational approach to the amount of domestic work needed: the client is physically disabled and prone to infection because of her prescribed drugs. No lessening of need has been articulated and yet the PA is being expected to do the work for free, faster, or not at all, despite catalogued impact and risk. Frontline staff have said that the panel would not ‘allow’ a recommendation of more than two hours a week of domestic input. The Monitoring Officer is yet to reply!
Top-ups and ordinary residence
The single easiest problem to deal with, because of the obvious illegality in the approach, is the stance typically taken when someone with money needs a care home placement. Councils will often tell the relatives that they’d better find a care home they like, and do nothing to explain about the disregard or deferred payments or the duty to make a decision taking account of suitability for the particular individual, and then offer choice from those suitable homes.
Relatives then find that the only available half-way acceptable home charges a lot more than the council’s asserted budget for the individual, supposedly based on the average placement cost programmed into the Resource Allocation System, or supplied by the commissioning team, knowing the rate secured from the council’s preferred providers – but most homes are charging top-ups, before admitting council clients!
The Care Act 2014 gives people rights of choice, subject to suitability, availability, acceptance of standard terms and the price for the care package that is to be bought: the package must, in public law terms, be adequate and appropriate for the individual. Merely being registered as fit (just) to be open, is not enough to constitute suitability.
If assessment is avoided altogether, and no paperwork even signed for the first 12 weeks by the council, it’s conveniently easy for the council to say that the choice was made by the family – so a top-up is required if the person wants to stay – and even better for the council if that choice was inadvertently out of area, so that it looks as if the person’s ordinary residence has now magically changed!
This is all maladministration and unlawful by reference to countless LGSCO reports, the Care Act 2014, the regulations and the statutory guidance.
Outcomes for some of CASCAIDr’s successful clients
•Adequate, practicable budgets have been secured (as opposed to arbitrarily cost-capped budgets) for a person’s own use in a person’s own home, for the service user or the carer.
•People have been supported to challenge CCGs’ Continuing Health Care decisions, and have either succeeded or got a split package – and some have even got money back – in one case £75,000.
•People have accessed or enforced proper processes, such as professionally competent assessments and paperwork, including written reasons, and threatened cuts to people’s packages, services or budgets have been cancelled or reduced.
•Complaints have been won and compensation recommendations secured from the LGSCO.
•Providers from all sectors have been assisted to stand up to commissioners, for their own clients’ rights, eg, in the face of a domiciliary care re-tender, a refusal of ‘permission’ to move to a tenancy, a refusal to do a review when told of a change of needs, and when faced with threatened cuts to service provision fees.
•More people now know about the local authority’s Monitoring Officer function: the statutory officer responsible for governance, regarding referrals of alleged illegality.