The government has rejected a user-group’s request for an urgent investigation into a local authority following claims the council is ‘disregarding’ its Care Act duties.
Disability group Equal Lives wrote to health secretary Jeremy Hunt in March urging him to order the Care Quality Commission (CQC) to inspect Norfolk Council.
The group sent Hunt details of eight cases it claimed showed the local authority had breached its Care Act responsibilities.
The council has refuted the claim it breached legal duties.
The CQC used to have the power to inspect local authority adult social services under section 48 of the Health and Social Care Act 2008. However, the Care Act 2014 introduced an amendment that means the regulator cannot launch these inspections without the approval of the secretary of state.
‘Request rejected’
Equal Lives asked Hunt to order the CQC to investigate Norfolk. However, in a letter seen by Community Care, care minister Alistair Burt told the group the Department of Health had rejected the option.
Burt said the government was satisfied a ‘sector-led’ review of Norfolk’s practices would be sufficient.The ‘sector-led’ review has been commissioned by Norfolk, with support from the Local Government Association (LGA).
He said councils were best placed to make decisions about meeting local demand and need for social services, and it was not the government’s responsibility to manage their performance or delivery of services.
“In view of the support in place, and the discussions that have already taken place between the CQC and Norfolk, we are not proposing to ask the CQC to undertake a section 48 review,” Burt wrote.
“In addition, departmental officials have contacted Norfolk County Council to ensure that it is aware of our ongoing interest in this matter. The council, along with the LGA, will keep us up to date about the improvement and development of local services. This will enable us to consider whether any further action may be necessary in future.”
‘Disappointing outcome’
Equal Lives’ chief executive Mark Harrison said Burt had failed to “address the substance or detail” of the complaint and he was “disappointed” with the outcome.
He said: “The decision is not unexpected. The last thing the government wants is an inspection because they’ve taken 30% out of adult social care funding since 2010 and this will rise to 50% in 2019. This represents an even bigger cut as social care need is rising with an increasingly ageing population with increased social care needs.
“However, I am disappointed that based on the evidence we provided of systemic failings, where we detailed case study examples illustrative of where Norfolk has not met its responsibilities under the Care Act, the complaint is not being taken forward.”
He added: “His [Burt’s] letter makes reference to the conversations between his department, the Local Government Association, the Association of Directors of Adult Social Services and Norfolk Council. What this says to me is there no independent body looking after the interests of disabled people and service users – these are all corporate bodies looking after their own interests.
“I do however welcome the fact that Department of Health officials have been in touch with Norfolk and have required the council to keep them up-to-date with improvements, with the proviso to take any further action required should the situation not turn around.”
‘Improving practice’
Harold Bodmer, executive director of adult social services at Norfolk County Council, said: “I welcome the secretary of state’s view that he is happy with the arrangements we have put in place to review and monitor our processes.
“We take complaints of this nature seriously, which is why we have invited the Social Care Institute for Excellence (SCIE) in to carry out an independent audit, to help us identify ways we can improve and develop our practice.
“SCIE are very well placed to do this having previously worked with authorities across the country in a similar role and helped to draft some of the Care Act guidance.”
Background to the complaint
Equal Lives reported Norfolk Council to the Care Quality Commission in February this year.
The user-group claimed eligibility thresholds had been raised and care package reviews were being used to reduce, or completely withdraw, support for people regardless of need.
It also said the decision to remove ‘wellbeing’ payments for personal budget holders in 2014 had had a “devastating impact” on service users’ lives.
Equal Lives escalated the complaint last month by writing to Hunt, urging him to order the CQC to carry out an inspection.
The council has strongly disputed any claims that it breached its statutory duties, but requested an external audit of its adult services department following the complaint.
The audit is being carried out by the Social Care Institute for Excellence (SCIE) and funded by the Local Government Association.
[This article was updated on 5/5/16. Alistair Burt’s letter said ADASS was “working closely” with Norfolk to understand the concerns raised by Equal Lives. ADASS have since informed us it is not involved in the review of Norfolk’s practices.]
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I wondered if the Local Government Ombudsman would be another source of scrutiny? I believe Norfolk is one of many Councils in the same position but there is nothing new about ignoring inconvenient legislation……..
Has no-one cottoned on to the fact that the “sector led review” into Norfolk’s practices that was deemed to be sufficient, was conducted, in part, by the Association of Directors of Adult Social Services, of which Harold Bodmer, Director of Community Services at Norfolk County Council, is President !
I would be willing to consider Equal Lives’ 8 scenarios, and publicly analyse whether any of them appear to cross a threshold of likely illegality – for free – because I do not see how SCIE and its commissioner, the LGA, can be expected to do a legally literate job, without paying for barristers to do it for them. Harold Bodmer could have done the same thing – barristers are still independent even if one is paying them – but he was busy assuming presidency of ADASS this week.
Why don’t we use Community Care as a forum for airing the scenarios and additionally reminding everyone that law still matters, just a bit?
Someone once said they couldn’t pay me to do Care Act training for councils’ senior management because they didn’t know what I would say!
Would Equal Lives let me do it for the sheer pleasure of the exercise, I wonder?
Belinda Schwehr, Care and Health Law.
http://www.SchwehrOnCARE.co.uk
Belinda@careandhealthlaw.com
The reason it wouldn’t be an LGO matter is that the ombudsmen’s remit is maladministration, whereas Equal Lives seems to be asserting illegality. In England the law is that public law illegality COULD be maladministration if the law was clear enough for it to be inexcusable not to know it! Maybe Equal Lives was not able to afford advice about whether or not the instances they found were clearly indefensible.
Interestingly, if a complaint is actually about illegality, the LGO can actually refuse to accept the referral (even if the complaints process has been used by individuals) on the basis that it is not unreasonable for people to use a judicial review application to establish their point.
The LGO hardly ever takes that stance, with individuals’ complaints, because of the cost and the aggravation factor; but if the LGO weighed in on matters of law, all the time, the protection for public bodies, implicit in the Permission stage of Judicial Review, and in the time limit (basically three months) for a public law legal challenge, would be lost.
Tameside has recently suggested that one reason that they are not going to follow the LGO recommendation in its top-ups saga, is that they don’t think the LGO thought carefully enough about that aspect, before taking that matter on!