Communities and Local Government CommitteeFurther written evidence from Sandhya Dass

This information is taken almost verbatim from advice by the principal lawyer at Celtic Knot, a niche Community Care/Social Work legal practise, sent on 6th May 2011.

1. “Mr V (The Council’s Adult Services Complaints Officer)… On charging, he says “that the local authority would be acting unlawfully were it to follow your advice on charging for services”.

On this point, I do not agree. The relevant law is to be found in Fairer Charging Policies for Home Care and other non-residential Social Services (this is a functioning hyperlink). Although this is described as guidance, I describe it as the relevant law because it has the status of statutory guidance. If you look at the opening words on page 3, you will read “This guidance is issued under section 7 of the Local Authority Social Services Act 1970.” The significance of that was considered in a court case, Rixon -v- Islington Borough Council, which formulated a test which has been frequently accepted and applied in court cases subsequently, for example M, R (on the application of) v Islington & Anor [2003] EWHC 1388 (Admin) (5 June 2003):

31. In R v Islington LBC ex p Rixon [1998] 1 CCLR 119 Sedley J, as he then was, considered the effect of guidance issued under s.7(1) Local Authority Social Services Act 1970, which provided that “local authorities shall … act under the general guidance of the Secretary of State”. At 123J-K he said:
“While guidance and direction are semantically and legally different things and while “guidance does not compel any particular decision” … especially when prefaced by the word “general”, in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

What Fairer Charging actually says (at paragraph 97) is:

Assessment of a person’s need for care should not be confused with financial assessment of a person’s ability to pay a charge. Once someone has been assessed as needing a service, that service should not be withdrawn because the user refuses to pay the charge. The council should continue to provide the service, while pursuing the debt, if necessary through the civil courts. If a user refuses to provide information for a charge assessment, it may be reasonable to require payment of a full charge.

Thus, I think Mr V’s assertion that it would be unlawful is too simplistic. On a proper review of the law, the discretion arising from the phrase “may be reasonable to require payment of a full charge”, taken together with the position from caselaw of “liberty to deviate from [guidance] where the local authority judges on admissible grounds that there is good reason to do so” means that the local authority could do as you suggest though it is not required to. A proper review of the law also reveals that a service should not be withheld if assessed as eligible need—the local authority should simultaneously provide a service while pursuing the service user through the courts if necessary. “

2. This is what the Ombudsman’s investigator wrote in her statement of reasons (supported by her assistant Ombudsman):

“In response to a draft of this statement, Ms A raises the point that the Council delayed in providing care services for Mr B following his discharge from hospital. Having reviewed the documents, it would appear that Mr B discharged himself from hospital against medical advice on 2 July 2009 and services commenced on 14 July 2009. In the interim, the Council was engaged in discussion with Ms A about whether services would have to be paid for or not. Taking these factors into account the time taken to implement services is not so unreasonable as to amount to significant injustice. I also consider that it was open to Mr B to return to hospital”.

This is about a very old man who was assessed to be in critical need of services during a hospital stay who was wholly unable to self–care. The family arranged and paid for services immediately, so clearly the Council too could have done; evidence available. But importantly, the Council was subsequently shown to be able to provide a service immediately and the Ombudsman’s investigator was given this information. It is also somewhat facetious for an investigator to suggest a very elderly person, not medically in need of a hospital bed who was being discharged to a care home against his wishes, return to hospital if no care services were provided. This too because the Council was unprepared to do so without a financial assessment. The family had suggested to the Council ways that would ensure these were paid for in due course.

This is the standard of knowledge, assessment and comprehension of LGO investigator’s in respect to complex adult care issues which have been part of the LGO remit since October 2010, the time exactly this complaint was submitted.

Sandhya Dass

May 2012

Prepared 16th July 2012