‘Review of council’s Care Act compliance has serious flaws’

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.

‘Practice compromised’

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.

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.