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CASCAIDr Legacy Opinions
CASCAIDr Legacy Opinions
CASCAIDr CIC has undertaken to publish four Opinions which it agreed to host when CASCAIDr the charity needed to close down.
They are its Legacy Opinions – leading barristers’ views on undecided and controversial points of adults’ social care law, crucially, supplied for public consumption, freely available to all.
The enforceability of the Care Act duty and the relevance of resources
This Opinion, by barristers Jenni Richards KC and Sian Davies from 39 Essex Chambers, explains the legal duties of local authorities under the care act 2014 to provide care and support for adults in need and makes clear that a lack of resources or budget pressures is not a legally valid reason for failing to meet eligible needs once identified.
Core Legal Principle – the Absolute Nature of the Duty
The Care Act 2014 creates an immediate, non-deferrable and unqualified individually enforceable duty under section 18 to meet assessed unmet eligible care needs.
Resource constraints provide no legal defence to breach of this duty.
Resources are relevant only to how needs a met (care planning), never to whether eligible needs are met. The Care Act maintained the Barry principle that resources affect only the method of meeting needs, not the obligation to meet them.
You can access the Opinion, including a useful executive summary, on the CASCAIDr website (external link will open in a new browser tab or window)
Section 117 Mental Health Act Aftercare and Accommodation ‘Plus’
The first Opinion is a linked pair on Section 117 Mental Health Act Aftercare and Accommodation ‘Plus’, from Alex Shattock of Landmark Chambers.
CASCAIDr hopes that anyone affected by s117 aftercare planning struggles will feel empowered to use the content to debate the applicable legal principles with s117 care planners and commissioners…
Public sector management everywhere can then be encouraged (because it is a requirement!) to address the Opinions as a relevant consideration, and get their legal departments to help them come up with a rationale for disagreeing, if they can find one.
Statutory Monitoring Officers in each council will be assisted in dealing with s5 referrals of conduct asserted to be in likely contravention of enactments or rules of law. They will at least now have the principles available, right at their fingertips.
You can access the Opinion on the CASCAIDr website (external link will open in a new browser tab or window)
Opinion can support complaints about Council processes
If you want to raise a complaint about what’s become of your person’s s117 care planning process, you can use this Opinion to do that, via the internal complaints processes run by councils and ICBs under the 2009 regulations.
The local government Ombudsman has said recently that it would be better if councils were to regard people’s first flagging up of an issue as a service improvement request, rather than as a complaint.
Or in default of that constructive engagement being wanted, that it would be better for councils to offer people an internal management review first, because there is only actually one stage to the adults’ complaints process.
The Ombudsman says that if no resolution emerges, even after a proper internal review, there’s no point in going through a formal complaint before going to the Ombudsman, as the matter will already have been fairly aired.
Contributing towards good governance
Anyone can use the content of these Opinions to contribute towards good governance, or to knock heads together, for people still on the Transforming Care queue – or to access a remedy for delay or for what must often look like wilful blindness to public law principles…
The ‘narrative’ we’re reframing here, with these CASCAIDr Legacy Opinions, is that “law and legal literacy just don’t matter any longer”. It might look like that’s the case, now that breach of the rule of law has become normalised – perhaps through having been publicised more, as part of everyone’s pleas for a higher profile and more funding for adult social care services; the government has its earmuffs on about the need for a rational approach to funding the Care Act, until 2028 at the earliest; the majority of legal aid lawyers can only manage to make sufficient money to make practising in adult social care law attractive, out of the Court of Protection, rather than judicial review and public law.
Law and legal literacy do still matter…
When CASCAIDr functioned as a charity, it was often the situation that once the principles were set out and the authorities cited, dispute resolution became possible. Ignorance is not bliss, in this regard.
If these opinions are useful to you, your family members, your advocacy organisation or advice resource – or even if the effort involved in getting them and publishing them, just chimes with your values, please make a donation to CASCAIDr CIC here (external link will open in a new browser tab or window)
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