Social workers would review each other’s decisions under government plans to set up a system for people to appeal against local authority judgements about their care and support, announced today.
And retired social workers may be appointed as independent reviewers of local authority decisions under the plans to set up an appeals system to allow challenge of judgements in relation to issues including assessment, eligibility and care planning.
However, local authorities would not be bound to accept the judgement of an independent reviewer should they ask the council to overturn or revise its decision in relation to a person with care needs or a carer.
The policy proposals were issued today for consultation by the Department of Health to inform its implementation of section 72 of the Care Act 2014, under which regulations would be made to set up an appeals system against local authority decisions under the act. The regulations and statutory guidance will be published following the consultation on the policy proposals, and the system introduced from April 2016.
Under the plans, a three-stage appeals system would be introduced to govern challenges against local authorities’ decisions by the person affected, someone acting on their behalf, with consent, or in their best interests if they lack capacity to consent, or an advocate.
In the first stage – known as early resolution – a member of staff from the local authority will review the decision.
The DH said this should not be the original decision maker and should be someone with appropriate knowledge, “such as someone from a different social work team” to the decision maker.
Following this, the local authority should decide whether the original decision was reasonable or whether it should be amended. It should normally do this within 30 days of the appeal and notify the person of the outcome and their right to an independent review.
A role for retired social workers
At this second stage, a person outside the local authority would be appointed to examine whether the council’s decision was reasonable with reference to regulations and guidance, the facts and local policy. The DH has proposed that it should be someone who had not worked for the particular council for at least three years, and should have suitable expertise, such as retired social workers.
Relevant information and records would be passed to the independent reviewer, who could either request further documentation or request a meeting in order to question the person concerned and relevant staff about the case. The independent reviewer should also take 30 days to review the case, and should provide a final recommendation to the council and the person concerned.
The third stage, the local authority resolution stage, involves the council deciding whether to accept the recommendation. If it rejects it, this needs to be done by a senior manager, with legal advice. A person dissatisfied with the outcome of the third stage would still have recourse to the Local Government Ombudsman to consider whether the local authority has caused the person an injustice because of poor administration or service failure.
Local authorities should advise people of their appeal rights after each applicable decision and the government has proposed that appeals should be lodged within 12 months of the original decision, but with discretion for the local authority to extend this. Councils should ensure appeal documentation is accessible and be flexible about how they receive information about the grounds for appeal.
Decisions that will be subject to appeal
The system would not cover all decisions under the Care Act, and the government has proposed that it would cover local authority decisions in relation to:
- the format of assessments of assessments of people with care needs or carers, including whether these are carried out face-to-face or on the phone (under sections 9 and 10 of the act);
- an adult’s eligibility for care and support or a carer’s eligibility for support (section 13);
- the needs, for an adult or a carer, that the authority is going and how it is going to meet them in a support plan (section 25);
- direct payments for the adult (sections 31 and 32);
- the amount deemed appropriate to meet the adult’s eligible needs in a personal budget (section 26);
- the costs that the local authority assesses it would spend on meeting the needs of a self-funder who wants to be considered for the cap on care costs (sections 28 and 29);
- how much a person can take as a deferred payment to meet their care needs (section 34);
- refusals to provide a transition assessment to a child, a child’s carer or a young carer or a child’s carer (sections 58, 60 and 63);
- whether a person should have an independent advocate (section 67).
No appeals against safeguarding or charging decisions
Areas that would be excluded include local authority decisions on whether to carry out a safeguarding enquiry about suspected abuse or neglect, under section 42 of the act, or to charge for services, under section 14.
However, as part of its consultation, the government is asking whether other types of decision should be included.
The government is yet to draft the regulations or statutory guidance on implementing the system as its thinking is at an early stage. These will follow and be informed by the consultation process, which runs until 30 March 2015.
You can respond directly on the government’s Care Act consultation website or by emailing firstname.lastname@example.org.