Challenging opaque, illegal social care plans for disabled adults

With Belinda Schweher, CEO, social care legal charity CASCAIDr

Challenging opaque, illegal Care Plans for disabled adults

Anyone who's tried to get social care help for a young adult, or to get care listed as "educational" support in an EHCP, knows it can be a battle. What's more, getting a plan that is clear, transparent and that works in practice, is even more difficult. Many parents don't know what their young person is entitled to or how to challenge inadequate provisions- especially if they are providing unpaid care themselves.

However, a recent Court of Appeal decision has underlined the illegality of opaque care plans - opening the door to rights to repayment of money spent in lieu of a proper budget, for special education and adults’ social care. It centres on provision for a 22-year old woman with global development delay, learning difficulties and an autistic spectrum disorder. It should be understood when reading, that under the Care Act, parents of adults must not be expected to provide care, and not for free.

Belinda Schwehr is a social care lawyer expert at defending the care rights of disabled adults. She wrote on SNJ a while ago about the role of the Monitoring Officer in local authorities. Today, she's explaining how this recent case, CP v NE Lincolnshire, shows how the Care Act is proving to be a force for ensuring rights are upheld. The whole article is very long and quite complex so, with Belinda's permission, I have edited it to a more manageable length, providing it in full as a PDF at the end.

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Challenging illegal care plans, a case that could make a wider difference by Belinda Schwehr of CASCAIDR

The Care Act is beginning to generate judgments of real use to young people with learning and other disabilities.

In CP v NE Lincolnshire (Court of Appeal, October 2, 2019), public law proceedings were used to challenge the sufficiency of the funding for a 22-year-old woman, CP, with complex and multiple disabilities requiring round-the-clock care.

During a long-running dispute, the council claimed the day provision she had benefitted from was being provided ‘for free’ by her father, JP, from choice, because he had started the charity that operated the service. The council was described as having ‘a visceral resistance’ to funding the package because they saw JP (who was acting as his daughter's "litigation friend") as profiting, but the council had offered nothing else instead. Indeed, it paid for the transport and the support worker to be with CP while she was at the service. 

By the time of the judicial review hearing, everyone was satisfied that the service counted as education for EHCP purposes, and what its value was, going forward. The council had also agreed to an "objectively reasonable" amount for CP’s placement at the day service of £10,800 a year.

However, some of her earlier care plans had failed to state a personal budget at all for adult social care purposes, and none had set out any breakdown of the figure being offered at any given point. There was also a period before the day service was agreed to be educational in nature, that the council still hadn't agreed to repay. This meant despite agreement on other fronts, the case had continued to a hearing.

Transparent costs required

The first level judge found that the s26 Care Act duty to specify the personal budget for the adult required a transparent figure to identify how eligible needs could be met. This would prevent mistaken assumptions about informal care being willingly and freely provided by relatives being made:

“The adult with eligible needs and those providing voluntary care should have a good understanding of the extent to which support will be provided by the local authority in respect of both those services which are provided directly by specialists (and paid for by the local authority) and those which will be funded by way of direct payment. Of course, because voluntary care figures in most assessments, and it is this aspect in which the family will be interested, if the personal budget covers the total cost of meeting the eligible needs, thus including the direct payments, that element to be provided voluntarily will be easily discernible.”

“The duty is a clear one derived from section 26 of CA 2014, and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of judicial review.”

And in a section that will be manna to the souls of exhausted parents, the judge reiterated: 

“It is also clear that an adult’s family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.” 

Despite this, the lower court accepted that there should be no payment ordered for the early period of unpaid placement fees.

The Court of Appeal, however, held that if a council breaches the Care Act, then it is acting unlawfully, and that in this case, it had to pay back what it would otherwise have been obliged to pay towards the person’s care plan, if it had acted lawfully. The judge said, 

“In the present case, having found the Council in breach of its statutory duties, [the judge in the High Court] should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall, in accordance with normal public law principles of legal accountability of public bodies.”

The judgment

CP’s lawyers said the council’s mid-hearing acceptance of the principle of paying for the future, did not make irrelevant the unlawfulness of earlier plans. The Court agreed that the judge should have determined the legality of CP's care plans starting with the 2016 plan that was first challenged:

The Council had acted unlawfully in failing to comply with its statutory obligations properly to fund CP’s care and needs between  April 2016 and November 2017; and as a result, CP has remained out of pocket ever since. …The Council’s unlawful failure has, therefore, had a continuing effect on CP since her financial position has remained less than it should have been.  

Accordingly, CP is entitled to compensation to reimburse her.” 

Nothing else that happens afterward stops the council from being legally liable for its original breach or continuing obligations under the Care Act 2014. 

The Council’s arguments that failed, and why

The council didn't agree the setting was right for CP, and, in any event, claimed as it was a facility provided by CP’s parents, her needs being met by her father, JP.  

Not only was it not ‘education’, as far as they were concerned, it was not a social care need that the council was required to fund under paragraph 10.26 of the guidance. Yet despite the council claiming the provision was an inappropriate social care facility selected and provided by CP’s parents, it had done nothing about it. However, it was the view of both an educational psychologist and a special schools expert, that CP was benefiting educationally from attendance.  The Court said:

“…there was no basis for suggesting that the facility was not a perfectly lawful charity, run on an arms-length basis.  If and in so far as the facilities were adjudged suitable for CP, there is no reason why the charity should not charge for their use, just as they would any other user.”

Conflict of interest?

The council argued that CP’s father was the ‘real claimant’ and was ‘using the proceedings inappropriately to profit' as it was his charity. The Court said the conflict contention was misconceived: 

“There is no conflict of interest on the part of Mr JP.  The claim is brought in the name of CP because it is her legal rights which have been breached and it is her legal entitlement to compensation from the Council for failing to fulfil its statutory duty to provide fully for her care needs…”

Should a complaint have been made instead of a court case?

We suspect that at court, argument would have ranged over the absence of a formal adult social care complaint as a reason why no remedy should be awarded, even if the court was against the council on the legal principles. The first instance judge had (worryingly) hinted that a statutory review or a complaint was more suitable for a family member to make their point about inadequate funding, saying: 

“Unlawfulness could only be identified in circumstances where there had been a refusal to review, in response to a complaint, or insistence on family care in the light of clear evidence that the family was unwilling, or that there had been an irrationally low level of care identified on the assessment.” 

The spectre of an "alternative remedy" being regarded as a bar to judicial review was thereby implicitly raised. There is no Tribunal to adjudicate upon (or even an appeal against) adult services care plans and budgets - and the complaint system is wholly inadequate to deal with matters of public law illegality, in practice. So it is a relief that the Court of Appeal paid no heed to the notion that one must complain first before using judicial review.  It said this:

“CP has sought to enforce her legal rights by the various legal avenues open to her – judicial review proceedings and the SENDIST.  But the question of liability under s.26 could in no sense be ‘ceded’ to the First Tier Tribunal.  

…That CP could have appealed, and did, against the Children and Families Act 2014 EHC plan decisions [to the Tribunal] did not excuse the Council from making lawful Care Act 2014 social care plans. Section 21(5) of the CFA 2014 deems “social care provision” which educates or trains, to be SEP, but only for the purposes of CFA 2014 and not so as to displace the Care Act 2014 obligations, let alone while the Care Act 2014 points are subject to JR challenge.”

CASCAIDr’s view of the implications

Here, the claim was made in public law proceedings because the special education Tribunal could not determine anyone’s rights in terms of social care. 

In our opinion, there is a right to restitution in private law, once the public law error is conceded, when involuntary personal or commercial care services have been used (with the knowledge of the council), because the service user is obliged to pay for them, (even if they lack capacity). 

The Court of Appeal said that CP “is simply asserting an orthodox public law right to be paid monies due to her under the Care Act 2014, and which the Council has unlawfully failed or refused to pay.” 

We think that restitution is a private law cause of action, but one that can and indeed MUST be advanced in a public law case, (or on an appeal within the Tribunal’s jurisdiction), if it depends on an earlier public law ruling of an unlawful refusal to fund a service.

How is this significant?

You should never need to go to court to get back what you are legally owed, in a clear case of illegality, because the Monitoring Officer can put the matter right under s5(2) or s5A(2) of the Local Government and Housing Act 1989. They can propose a settlement under the provisions for ex-gratia (moral) payments where there is fault by the council – the very same basis on which payments are made when the Local Government Ombudsman recommends them.

CASCAIDr corresponds with many councils’ Monitoring Officers every week. We use this statutory remedy to help people avoid getting stuck in the complaints system, and avoid having to get adversarial and threaten judicial review. Read the SNJ article about the Monitoring Officer here

We’re often told, when a dispute arises about the discharge of Care Act duties, that council governance duties are not triggered because (in some way that is never explained), that particular sort of dispute is not “really” about contravention of an enactment or a rule of law – and that the individual should just use the complaints service. This is despite the Ombudsman’s own complaints service often describing failures in procedure or unevidenced thinking as breach of the Care Act.

In many, if not most cases, however, a person or a third party is not able, or does not have the knowledge, to spend money seeking redress for the wrongs of the council’s adult social care department. Sometimes the person will just go without care and have a worse life. In other cases, relatives (usually parents) will just step up, whatever the consequences for themselves, for want of legal awareness. 

Restitution is fundamentally about money, not labour provided voluntarily, even if by mistake. If inadequate care plans are not challenged, then the carer and the person being cared for both suffer, and there is no chance for restitution.

There will be a strong case for restitution when a person or their family has paid out money (willingly or unwillingly) for something written in a Care [Act] Plan, when it should have been provided by the council. There are further complications when the care necessarily has to be provided by close relatives who could not normally be paid through a direct payment. This requires a further discretionary decision for exceptional permission, which may compel public law proceedings in any event. [More on this in the PDF]

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Conclusions

The Court of Appeal was not saying here that the breach of statutory duty gives rise to damages to compensate CP for the effects or harm caused by non-provision of adult social care services. It was saying that the council cannot be seen to retain the benefit of its own wrongdoing.

What is exciting about this development is that it MIGHT make decent public law firms interested once again in private client work in the community care field, where the person in question has too much money for legal aid. The fact that actual money may be reimbursed would enable law firms to offer services on a ‘no win, no fee’ basis, which could only be good news for the thousands of people getting fobbed off with less than their legal rights. 

We think that people in similar situations should refer the council to para 10.86 of the statutory Care Act Guidance and demand the Management Review mentioned there, so that the council can put right any non-compliance with legislation, without further ado. That will be especially important in any council where they are running the Care Act process on Three Conversations lines, unless they are documenting the conversations compliantly with the Care Act itself.

What is clear to us is that where expenditure has been the only way the person has coped, there will have to be a public law challenge, or at least a referral to the Monitoring Officer before a private law claim for the missing funding could be made. 

Once it is appreciated by lawyers that restitution represents a golden seam in a council’s coffers, Monitoring Officers will need to engage properly with referrals which identify breaches of the Care Act, or otherwise have to answer, in one court or another, for failure to discharge their own duties under their governing legislation. 

Belinda Schwehr, CASCAIDr (The Centre for Adults’ Social Care – Advice, Information and Dispute Resolution)

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