Knowing Your Rights and Challenging Decisions

1. Knowing Your Rights and Challenging Decisions Yogi Amin Solicitor and National Head, Public Law DepartmentIrwin Mitchell LLP

2. Where do your rights come from? UN Convention on the Rights of Persons with Disabilities European Convention of Human Rights Rights enshrined in UK legislation Rights created through common law UK government department guidance

3. What help are we entitled to? • Social & Community Care • provided by local authorities • Healthcare • provided by the NHS The distinction between Social Services care and NHS care is important because services provided by the NHS are free, whereas those arranged by Social Services are means tested. Some people may have both health and social care needs

4. What is Social & Community Care? Help for vulnerable members of society, like people with a learning disability, to live as independently as possible, for as long as possible. In law ‘ Community Care’ means all the help that people get from the social care teams in the local council.

5. Community Care – The Law Adults NHS and Community Care Act 1990 s.47(1) : Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority – shall carry out an assessment of his needs for those services; and having regard to the results of that assessment, shall decide whether his needs call for the provision by them of any such services

6. Community Care – The Law Children • Section 17 Children Act 1989: duty of LA “to safeguard and promote the welfare of children within their area who are in need”. • CA 1989: Where it appears to a LA that a child in their area is in need “the authority may assess his needs for the purposes of this Act…” • Section 2 CSDPA 1970 – assess disabled person for need for services • S.20 CA 1989 – provision of accommodation for children • 2000 Framework for Assessing Children in Need and their Families – response to referral request (1 day), initial assessment (7 days), core assessment (35 working days)

7. How do I get an assessment? Make a formal written request to your local authority social services department for an assessment of needs

8. How does the council decide who gets what support? Court case in 2010: R (KM) v Cambridgeshire County Council [2012], said what councils need to do when doing an assessment of an adult who may be in need of services. The assessment should have 4 stages: 1. Do an assessment to find out the needs of the disabled person.  

9. Part 2 of the assessment 2. They then decide if they need to offer the person support.   They do this by deciding which category the needs of the person fits into. Categories: Low Moderate Substantial or Critical It is up to the council to decide which groups of people they give help to.

10. Part 3 of the assessment 3. If a person is assessed as having a ‘need’ and they fit the council’s ‘eligibility criteria’, the council then decide how to help the person. A council can choose the cheapest way of helping the person with the problem, but they must help them.

11. Part 4 – the support or the money? 4. Then the council need to ask the person if they want the cash to purchase care and support or the local authority to arrange the services for them.

12. What is CRITICAL need?Where, if support is not provided: Your life will be threatened. You won’t be able to carry out important personal care and jobs around the home. You won’t be able to carry on having contact with your friends, family and other people who support you, or people you support. You won’t be able to carry on work, education or learning. You will have serious health problems. Serious abuse or neglect has happened or will happen.

13. What is SUBSTANTIAL need? Where, if support is not provided: You won’t be able to carry out most important personal care and jobs around the home. You won’t be able to carry on having contact with your friends, family and other people who support you, or people you support. Abuse or neglect has happened or will happen. You won’t be able to carry on being involved in many parts of work or education/learning. 

14. Assessment of Childrens’ Needs The eligibility criteria for assessing and meeting childrens’ needs under the Children Act 1989 is different from that of adults There are not the same categories i.e. Critical, Substantial But there are more general requirements under the framework of the Children Act for meeting their needs.

15. How long should an assessment take? • Each need should be separately assessed. • The assessment should be carried out within 28 days. • However, if a person’s needs are urgent, an assessment can be carried out in days or even hours

16. What kinds of needs will the council provide support for? Washing. Dressing. Going to the toilet. Washing clothes. Cooking and eating. Taking medication. Getting out and about and meeting people. Shopping. Support from someone to help you to put across your view (an advocate or support worker). In some cases, somewhere to live. Day service/respite care

17. Do you have to pay for support? • The council will carry out a financial assessment – you may have to pay a bit to the cost of your support. • The council must do this bit last – after they have looked at what support you need and what services they will give to meet your needs. • If the council assess the money you have coming in, they must assess ‘disability related expenditure’ too – this is the amount of money you spend as a result of your disability. • Disability related expenditure is then removed from the calculation when the local authority charges you for services.

18. Carers • Carers can also have an assessment. • The assessment should look at carer’s work and their wish to go into work and education/training or leisure. • The council does not have to provide support for carers – but if the assessment shows that carers need support, then the council should seriously think about providing it.

19. What is NHS care and support? • In assessing whether an individual has a "primary health need", the PCT will look at certain characteristics of the individual's need and their impact on the care required to manage them. These characteristics include the nature, intensity, complexity and unpredictability of an individual's needs. If the support you need is mostly because of a health condition, you might need support from, or paid for by, the NHS too or instead. The NHS will assess your needs and decide what support you need – the council might send you to the NHS for an assessment, or it might be clear that you need NHS support. (CHC Assessment) No financial charges.

20. What if I need both? • You can • People can receive both care and support from local authorities and the NHS at the same time if they have both health and social care needs. The Law • S.47 NHSCCA 1990 – duty on the Local Authority to work together with the Primary Care Trust in determining need. • Community Care (Delayed Discharge etc) Act 2003. • Section 82, NHS Act 2006: NHS and LAs required ‘to co-operate with one another in order to secure and advance the health and welfare of the people of England and Wales’. • Sections 10 & 11 Children Act 2004: duties on local authorities working together with their ‘relevant partners’.

21. There shouldn’t be a “gap” Sometimes the NHS and local authorities disagree about who should provide an individual with care and support This means that sometimes people are not provided with care and support but – there is a “gap in the provision of care”. This shouldn’t happen “There should be no gap in the provision of care. People should not find themselves in the position where neither the NHS nor the relevant LA...will fund care, either separately or together...” National Framework for NHS Continuing Healthcare and NHS Funded Nursing Care – July 2009 PCTs and LAs must have in place a protocol for dealing with disputes as to responsible body, and must not allow disputes to delay provision of care. Sometimes people move between local authorities and when this happens their care package should follow them and be portable

22. Challenging Decisions If we are not happy with a decision that is made by a public body such as a local council or the NHS that affects us ..... we can challenge that decision using the law

23. What decisions can be challenged? There are two types of decisions: • Decisions which only affect you • Decisions which affect lots of people • Policy decisions

24. Decisions which only affect you What types of unlawful decisions could be made about you? Failures to carry out assessments Failures to produce lawful assessments and care plans: look out for care plans where provision is not quantified or the timescales for carrying out assessments are not met. Failure to make provision: look out for instances where the local authority and/or the PCT are not making provision in line with their own assessment. Reductions in provision: Has the local authority/PCT formally reassessed before reducing provision? On what basis do they feel the need of the individual/carer has decreased?

25. Decisions that affect lots of people What types of decisions will affect lots of people? Cuts to budgets for certain service provisions which will effect the level of services which can be provided e.g. Respite care Closure of day centres Moving the eligible needs threshold for providing services The “Bedroom Tax” A change in policy for providing disabled facilities grants A decision to withdraw funding of a service providing occupational therapy or speech and language therapy

26. How should decisions be made? There are rules about how to make decisions The Council must: Ask people what they think – this is called a “consultation” Think about how people will be affected by the cuts – this is called an impact assessment Think about whether some people will be affected more than others Think about whether there is any other way to avoid making the cuts

27. Consultations – The Law Introduction Community Care Magazine 1 September 2011 – ‘One in 10 councils may have breached equality laws by failing to consult properly on cuts to adult care this year.’ Based on responses from 73 English Councils to an FOI request. Includes as an example South Gloucestershire – closed consultation on the same day as it set its budget in February 2011. Where a public body undertakes a consultation, it must be conducted properly. The lead case remains R v North & East Devon Health Authority ex Parte Coughlan [1999] EWCA Civ 1871 in which it was established that a lawful consultation will require compliance with the following 4 conditions:

28. Consultations – The Law that it is in good time, when proposals are still ‘at a formative stage.’ A decision in principle, with consultation following, has been deemed unlawful – R (Sardar) v Watford BC [2006] EWHC 1590 (Admin) provide sufficient reasons so that people are able to understand it and ‘give intelligent consideration and an intelligent response’, that enough time is given for responses; and that ‘the product of the consultation must be conscientiously taken into account when the ultimate decision is taken’.

29. Asking what YOU think The council/NHS do not have to tell you before they make a decision and ask you what you think. If they do ask you what you think, they have to: Ask at an early stage. Give proper reasons to explain why they are making the proposal. Give enough time for people to respond. Take your views into account properly. If the council chose not to talk to you, it might be possible to challenge this.

30. Asking what you think Case Study – Hillingdon Day Centres 3 disabled people in their mid 40s living at home. Go to 1 of 3 day centres in their area, 5 days a week. To meet their needs and to give their families a break from caring. January 2012 – decision to close the day centres and open 1 smaller day centre.

31. THE CHALLENGE Challenged by the 3 disabled people and their families. Talking to the council did not give enough information to them and their families – they wanted to know - would the new day centres have space for them? Would they meet their needs?

32. The Equality Act 2010 s149 - The Law Equality Act 2010 S.149 general equality duty: (although the DDA was in force at the time of BCC’s decision): Every public authority shall in carrying out its functions have due regard to – (a) the need to eliminate discrimination that is unlawful under this Act; (b) the need to eliminate harassment of disabled persons that is related to their disabilities; (c) the need to promote equality of opportunity between disabled persons and other persons; (d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life.

33. The Equality Act 2010 s149 ‘The public sector equality duty’ When councils/the NHS are doing their jobs, they must think hard about: Stopping discrimination. Stopping abuse/hate crime of disabled people because of their disability. The need to make disabled people and non disabled people equal. The need to think about disabled persons’ disabilities. The need to make sure that we all promote equal rights of disabled people. The need to support disabled people to take part in activities and public life.

34. What should councils think about when making decisions? How many people will be affected? What will the impact of the decision be? How can they avoid bad impacts? Is the money that will be saved worth any bad effect it will have on people? This information can be collected by asking people what they think. The information should be collected and thought about before they make their decision.

35. Equality DutyCase Study – Birmingham City Council Decided to cut budget for adult social care and only meet ‘critical’ needs. Service users said the council’s decision was against the law because the council did not talk to them. The council did not properly think about the effect the decision would have on disabled people.

36. How to challenge decisions First step – Make a formal complaint to the council or NHS Trust If you are not happy about what has happened since your complaint, you can complain to the Local Government or Health Ombudsman. If you want to complain to the NHS, you can also do so by visiting www.pals.nhs.uk Contact a specialist public law lawyer – they could help you resolve the situation If your complaint is urgent or nothing else has worked you could ask for a judicial review.

37. How can a solicitor help you? • Advice • Your solicitor will be able to provide you with advice on what you can do to challenge a decision that you are not happy with • Negotiation • Your solicitor can talk to the solicitors at the local authority or the NHS Trust and try to resolve the issues through discussion and negotiation • Issuing Judicial Review Proceedings • Making an application to the Court to challenge a decision of a local authority or an NHS Trust is very complicated and a solicitor will be able to do this for you and take you through the process

38. It doesn’t always need to go to Court Case Example • Mr P had Down’s Syndrome and a Learning Disability • He lived in a specialist residential placement and loved living there as he had lots of friends and was able to do loads of fun activities • The local authority said that he couldn’t stay there because his needs didn’t require a residential placement and therefore it couldn’t be funded • We wrote to the local authority to challenge this decision and after numerous letters and difficult negotiations the local authority agreed to continue funded the placement • Mr P and his family were delighted

39. What is a Judicial Review? This is how the High Court decides if decisions made by councils/the NHS are not breaking the law. The time limit is 3 months from the date that the council/NHS made their decision so make sure you keep the decision letter! Is it a final decision? Is it an urgent case?

40. Who can challenge? Person affected, family member, group of individuals, community group, charity. If the person challenging needs help, the court will name a ‘litigation friend’ to help them.

41. Reasons to challenge If the council did not tell you/ask you what you thought before they made the decision. They broke one of the rules of the Equality Duty. If the council did not take the decision in the correct way. If the decision was really silly.

42. What happens if you bring a court case? If you win – the council/NHS’ decision will not happen. The council/NHS can make the decision again – but – they would have to do it properly.

43. Paying for legal challenges Legal aid is free You can use it for judicial reviews. But – you cannot have more savings than £8,000 or have more than £2,657 coming in each year. But – it is worth checking – you can ask a solicitor https://www.gov.uk/check-legal-aid If you have legal aid, you will not have to pay the other side’s costs if you lose.

44. Public Law Department Email:publiclawnewenquiries@irwinmitchell.com Telephone: 0870 1500 100