Can you defend your practice against the most likely Care Act legal challenges?

Legal literacy is essential to defensible social work practice, according to legal trainer Belinda Schwehr

Picture: Gary Brigden

We’re more than six months into the Care Act. Those extra legal duties. The 500 plus pages of statutory guidance. All in force. All dictating what you must – and must not – do when assessing, planning and determining eligibility for care and support, among other things. How’s it been?

Judging by the packed room for Belinda Schwehr’s Community Care Live session on Care Act legal challenges, social workers have plenty of anxieties about implementing the legislation in the face of year-on-year spending cuts.

Belinda, a leading legal trainer and Care Act expert, is adamant social workers need “legal literacy” to practice in a defensible, not a defensive, way.

The Care Act will be among the topics discussed at Community Care Live Birmingham 2016, which takes place on 10 and 11 May. You can view the draft programme and register to attend here.

To stress the point, she covered the risks of ignoring the law. In the first Care Act legal challenge, Haringey council was ordered to re-assess an asylum-seeking woman after failing to appoint an independent advocate to support her. The council’s barrister argued that demand for advocates exceeded supply at the time. The judge deemed that no excuse to ignore a legal duty.

The case means any assessments made without an independent advocate – when the advocacy duty has been triggered – are likely to be declared invalid, Belinda said. All councils should also take note of the judge’s dismissal of Haringey’s ‘lack of resources’ argument.

How does your practice fare?

What should you watch out for in practice? Here’s Belinda’s list of the most likely risks of legal challenge (click on the image for a full-size version):


Other Care Act questions

Here are some other Care Act questions to test your local authority against:


Belinda covered other issues in detail: advocacy accidents, prevention pitfalls, eligibility embarrassments, budget bungles and direct payment disasters. Her blog, Schwehr on Care, captures examples of the act being poorly implemented (published anonymously). She urged social workers to get in touch with their experiences.

Belinda concluded by stressing the importance of organisational culture in supporting defensible practice. Ask yourself, how seriously does your council take supervision? How are whistleblowers treated? Do senior managers do legal update training so they are on top of the latest law? If staff question the legality of something they’ve been asked to do, is it seen as helpful or irritating? All are key, Belinda said, to Care Act practice staying on the right side of the law and out of court.

You can find out more on Belinda’s training at Care and Health Law.

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One Response to Can you defend your practice against the most likely Care Act legal challenges?

  1. Martin Porter November 12, 2015 at 8:45 am #

    The main thing missing from the Care Act is risk. Someone may be able to carry out all the needs in the eligible list, but display behaviour that makes them unsafe e.g. ‘wandering’ outside of the house, and not technically meet the eligibility criteria.