Campaigners to produce guidance on safeguarding powers of entry due to ‘inadequate’ official advice

Campaigners are to produce fresh guidance on social workers’ powers to enter homes in safeguarding cases after claiming that official advice published last month was inadequate.

Action on Elder Abuse (AEA) is gathering together a group of solicitors and social workers to devise the guidance to assist practitioners in using the law to resolve cases where they fear a vulnerable adult is at risk of abuse, but access to them is blocked by a third party.

This follows the publication of Department of Health-commissioned guidance designed to do this by the Social Care Institute for Excellence. The Scie guidance was promised by care minister Norman Lamb in Parliament during the passage of the Care Act 2014 as he rejected calls to introduce a new power of entry on the grounds that existing powers were sufficient and social workers simply needed to improve their understanding of them.

AEA was at the forefront of calls to introduce a new power to fill a perceived gap in the law to protect adults with capacity to make relevant decisions but who are coerced into silence by abusers. However, despite holding this view, the charity said the Scie guidance could have done a lot more to explain how social workers could use the existing law to implement local authorities’ Care Act duty to make safeguarding enquiries in such cases.

Lamb’s predecessor as minister, Paul Burstow, who led calls to introduce a new power during the passage of the Care Act, also expressed disappointment with the guidance.

Gaps in guidance

AEA chief executive Gary FitzGerald said two of the key gaps in the Scie guidance were in relation to the use of domestic violence legislation and in providing comprehensive guidance on how practitioners could – and should – apply to the High Court to use its inherent jurisdiction to make orders in these cases.

The Scie guidance does not mention any domestic violence provisions. However, an analysis of the current law produced in February for AEA by leading Court of Protection barrister Alex Ruck Keene listed several such provisions councils could use, including:

• helping the vulnerable adult apply for an injunction under section 3 of the Protection from Harassment Act 1997 preventing the alleged abuser from harrassing them;
• helping the adult obtain a non-molestation order, preventing family members, partners or former partners from threatening, intimidating or harassing them, or an occupation order, preventing the abuser from entering the area around the adult’s home;
• asking the local police force to issue a domestic violence protection notice (DVPN), requiring the alleged perpetrator to cease molesting the victim and, where they cohabit, possibly requiring them to leave the premises; DVPNs trigger an application to court for a domestic violence protection order (DVPO) which, if granted, would prohibit the alleged perpetrator from molesting the alleged victim for 14-28 days.
• “They had the opportunity to direct people to how they could domestic violence legislation in these cases but chose not to do so,” said FitzGerald.
• The Scie guidance includes a three-page section on inherent jurisdiction setting out that councils can apply to the courts in situations where vulnerable adults are reasonably believed to be under constraint, subject to coercion or undue influence or otherwise deprived of the capacity to make a relevant decision. It also sets out that the purpose of such an order would be to ensure that the adult is making decisions freely, not to overrule their wishes, and that it is possible that such an order could be made against a person exercising undue influence or coercion.
• However, FitzGerald warned: “Nowhere does that guidance say to people, ‘if you can’t use the existing law and you feel someone is still at risk you must use the inherent jurisdiction.”

Burstow said: “It is disappointing but not surprising that Scie’s new guidance offers nothing to bridge the gap that leaves vulnerable people open to abuse and neglect. I argued as the Care Bill went through that the law fails to protect people with capacity who are being abused by family or supposed friends in their own homes. A golden opportunity has been missed to put this right, and with this year’s figures showing over 40,000 allegations of abuse in people’s own homes, it is the vulnerable who are paying the price.”

Responding to the criticisms, a Scie spokesperson said: “Scie has fulfilled our work, as commissioned from the Department of Health. Other organisations and individuals are, of course, free to offer further guidance on the issue of gaining access to an adult suspected to be at risk of neglect or abuse.”