By Belinda Schwehr, legal trainer
If one had read only the press release from Norfolk council after the independent review of its progress in implementing the Care Act 2014, one might think the conclusion had been that it was an authority doing its best in difficult circumstances.
However, if one digs deeper into the review by the Social Care Institute for Excellence (SCIE), then the inescapable conclusion is that a grim state of affairs was uncovered in Norfolk.
SCIE’s review followed a complaint by user-led group, Equal Lives, in regard to Norfolk’s alleged non-compliance with the Care Act. The complaint detailed the stories of several people who had seen their care cut despite, in some cases, their needs actually increasing.
This might be unsurprising, given the government’s austerity regime and the poor state of funding for adult social care, but the point here is whether it was illegal and breached the act.
SCIE’s review has some serious flaws, in my opinion, not least that it failed to probe any of those complaints, or reach any actual conclusions about the legality of practice in Norfolk.
A clear case in point is that despite the Care Act being in full force, with much of it mandatory, the reviewer says: “The implementation of new practices and duties has yet to be fully and consistently embedded across the county”.
However, what did come out clearly in the review was that most people interviewed said the financial implications associated with personal budgets, combined with increasing caseloads, appeared to have compromised practice on some occasions.
If the Equal Lives complainants feel their concerns remain unresolved by the review (and so far, there has been no word on what they propose to do now) then the question will become whether the cuts and actions of Norfolk could be seen as ‘defensible’ under well-established public law principles. This depends on the reasonableness of the council’s thinking, and its recording of that thinking, which the SCIE review does not appear to have demanded.
The Care Act guidance requires transparency about sufficiency in care planning/reviews and recommends that reasons should be stated as part of any disputed package process. In Norfolk it appears the staff and social workers were just saying ‘it’s the cuts and there’s nothing that can be done about it’.
‘Strive for wellbeing’
That would not be a lawful stance. A duty is a duty, regardless of available resources; a council’s reserves have to be spent if a duty has been triggered. The council is the decision-maker on adequacy and appropriateness and it is legally entitled to take its resources into account in relation to care planning. But it must still strive to promote wellbeing, be person-centred and respect the private and family life of the client and carer so as to comply with human rights, abide by the Mental Capacity Act and other UK laws, and not breach public law principles of reasonableness and proportionality.
Social workers must be able to give coherent reasons as to why the final offer is, in the above context, regarded as being rationally related to the cost of meeting assessed eligible needs, after asset and strengths-based planning has been explored.
The review highlighted that many members of staff and social workers felt anxious about meeting needs amid budget cuts, that their caseloads were increasing and impacting on their social care practice, and that the driving priority for senior managers was to make savings.
There is still a mandatory duty on councils, under the Local Authority Social Services Act 1970, to furnish a director of adult social care services with sufficient staff to assist them in the exercise of their functions. But very few social services departments seem to be invoking this part of the law to help in their arguments over funding.
The review of Norfolk’s practice has identified some areas of concern for managers, frontline social workers and local authority lawyers everywhere, which could and should be used to monitor their own practice, and inform an increased focus on legal literacy, within ongoing Care Act training.
Concerns for frontline staff
- No record of advice being given regarding the reduction of care plans or in terms of prevention or information (p.29);
- The quality of the recording and the level of detail on assessments needing to improve (p.17);
- The absence of a system to properly discharge assessment obligations in cases of fluctuating needs (p.22);
- Taking carer’s input into account as relevant to eligibility, as opposed merely to meeting needs (p.25);
- Assessment processes that do not identify clear personal outcomes or individuals’ priorities around wellbeing (p.23);
- Delivery of statements (i.e. ‘we have to make cuts’, ‘I have some bad news, and we need to reduce the budget’), rather than explaining and discussing the situation and exploring potential alternatives (p.18);
- The space on the budget questionnaire for an answer to the question ‘if you and your care assessor have not been able to agree on the answer for a question, please tell us about it here….’ generally not completed (p.30);
Concerns for management, in terms of system design
- There was some evidence of ‘screening out’, based on what is wanted, before any attempt at assessment has been made (p.28);
- Evidence of a rigid, imposed framework for assessment processes, instead of a person-centred one – in relation to locality, timing, and involvement of others (p.22);
- Reports of service users spending weeks/months on a waiting list, after initial triage, for an assessment; (p.15)
- A significant difference in practice between initiatives and policies in the various localities, with an impact on the quality of practice (p.14);
- Response times between telephone calls, elements of the individual pathway or referral and assessment were very long; and individuals sometimes having to chase assessors (p.16);
- Health staff’s level of knowledge of the Care Act not always sufficient to ensure aligned interventions with social care, and creating false expectations among local people (p.14).
- Some elements from the core individual pathway sometimes missing from cases (p.16);
- Staff perception that too much valuable time is spent inputting on Care First and that senior management approval is needed for too many decisions (p.15).
- Staff inability and unpreparedness for difficult conversations about why cuts were being made, and why they were thought defensible (p.17);
- The council’s relationship with providers, charities and user-led organisations in need of development (p.14).
- Providers reporting that about half the assessors did not always involve them in a service user’s review (p.24);
Concerns for complaints officers and lawyers
- An inadequate process to support the implementation of independent advocacy obligations (p. 19);
- Many stakeholders sensing a need to make complaints, in order to be heard (p.14);
- Non-compliant care plans in terms of requirements under s25 of the Care Act (p.28);
- Many of the cases reviewed, including carers’ assessments, lacked an initial review following the implementation of the care plan (p.24);
- Absence of prompts as to the nine areas of wellbeing in the statute (p.20);
- Statements of eligibility conditions that were only partially correct and not fully accurate in the assessment form and fact-sheet (p.20);
- Absence of written reasons for determinations of eligibility (p.23);
- Evidence of serious misstatement of the law on and scope of carers’ Direct Payments (p.30);
- Carers reporting being told they were only entitled to one assessment per year and that a review does not generally happen unless they ask for it (p.24).
Finally, what of the complainants themselves? Whatever the position on illegality, several of the examples in the Equal Lives complaint were, at first glance, strong enough to go to the Ombudsman as complaints of maladministration.
One cannot go to the Ombudsman however, unless one has already complained, and it is not clear whether this was ever done.
The unusual referral route that the group took instead, to the CQC for a special review, albeit requiring the permission of the Secretary of State (which was refused in this case, on account of the arrangements for SCIE’s review) is free and does not require any individual person to complain first.
But neither does use of the Monitoring Officer, the free and dedicated legal governance route if one is concerned about ‘public law’ unlawfulness rather than a mere complaint.
I fear that what the SCIE review of Norfolk’s practice does show is that the Care Act is in danger of being yet another good law that is scuppered by the government’s austerity agenda and the lack of sufficient legal literacy on the part of social workers, their senior managers and their council representatives.