Written evidence from Access Social Care

 

Legal Aid Reform

 

About Access Social Care and CELC

This submission has been prepared by Access Social Care (ASC). ASC is a new charity working to provide access to justice for people with social care needs. We act as a central hub for social care advice by providing second tier support to helpline organisations and advice and casework support to social care providing organisations and their beneficiaries through a membership model. The legal team at ASC have worked together to provide community care advice and casework support for over 10 years, hosted firstly within national deafblind charity, Sense, and then within the Royal Mencap Society.  At ASC, we never go to court. We operate in the early legal help space, providing casework support up to and including the letter before claim. 

 

The analysis of the legal aid legal help scheme (Legal Help) has been provided by Karen Ashton. Karen is a nationally recognised specialist in community care law working as Head of Public Law and Human Rights at Central England Law Centre (CELC). CELC is the largest Law Centre in the UK which provides specialist legal advice to people across central England. Karen provides consultancy support to ASC. Karen is a member of the AJC Advice Sector Panel and sits on the AJC Council and Steering Group on behalf of the Law Centres Network.

 

Access Social Care is a member of the Administrative Justice Council (AJC) Advice Sector Panel and is working with the AJC to bring to the fore the issues impacting on access to justice for community care matters. Karen Ashton is also a member of the AJC Advice Sector Panel.  The AJC is supporting a working group, led and initiated by ASC, which is looking at the problems of accessing advice generally in the community care law field, including the difficulties people have in accessing specialist legal support through the legal aid. The Advice Sector Panel has prepared its own response to the Legal Aid consultation, which we have seen. The AJC Advice Sector Panel endorses our submission.

 

Executive Summary

This submission has been drafted to focus on legal aid in the context of community care where the problems with legal aid are particularly acute.

 

We would like to highlight:

 

We are calling for an urgent review of the scheme with a view to developing a scheme which reflects the particular characteristics of Community Care work.

 

Rising demand and limited resources for social care means too many people are denied the social care they have a right to

 

Demographic changes have led to increased demand for social care:

 

Local authorities, who are usually responsible for publicly funded care are struggling to meet demand. The latest Local Government Association estimates are that the sector-wide funding gap will be £8 billion by 2024-25, with £3.1 billion in 2019-20.[2] Reduced funding and rising demand for services mean that in London alone, boroughs needed to make almost £400 million of savings in 2019-20, as part of almost £2 billion planned over the four years to 2022.[3] Boroughs plan to use a third of their earmarked reserves over that period to balance their budgets. These were the figures before the pandemic; now the Centre for Progressive Policy estimates 8 out of 10 councils do not have sufficient funds to make up for increased costs and reduced income caused by Covid-19. [4]

 

Increased demand and limited resources are putting acute pressure on services provided to some of the most vulnerable people in our society,[5] and local authorities are struggling to meet their legal duties to provide care. The Association of Directors of Adult Social Care found  in a survey of individual Directors that 96% of local authorities are not confident they will meet their legal duties to provide care in 2020, none in 2021[6]. Too many people are being unlawfully denied access to social care by the very public authorities that are there to help them. And of course, there is no financial incentive to act lawfully.

 

Unsurprisingly, the evidence from helplines and ASC indicates that there has been a steady increase in demand for advice and casework support. Helplines across the country have seen a year on year increase in demand for their services with cases becoming more and more complex.

Mencap’s Learning Disability Helpline received over 14,000 calls in 2019, compared to 12,464 in 2016. Age UK and Carers UK have also seen a gradual increase in community care queries in 2019-20.

 

 

Problems with Legal Aid are leading to legal aid deserts

Poor decision making driven by a lack of resources is exacerbated by significant issues with access to legal aid for community care which effectively means that local authorities can act unlawfully with impunity because people with social care needs struggle to find a lawyer to help them.

 

Whilst in theory, legal aid is still available for community care cases, the reality for the people we support, is that they cannot find a lawyer to help them. Research by the Law Society shows that only 20% of local authorities have a legal aid community care lawyer[7].

 

The legal aid statistics are categorised into family, immigration, mental health and other non family cases, the latter of which community care cases form part. If we look at the statistics for other non-family the drop in cases is even more stark. The number of other non-family cases dropped from 488,329 in 2009-10 to 39,488 in 2019-20 – a reduction of 92%. The impact of this drop on public body decision making and accountability should not be underestimated.[8]

The evidence is that the drop in Legal Help matter starts is not due to a drop in need for specialist legal assistance. 

The majority of community care cases are loss making for legal aid lawyers. This is leading to lawyers leaving the community care law specialism in droves. There is now a national shortage of community care solicitors, leaving law centres and legal aid practices struggling to recruit and retain staff.

 

Before taking a case on, the legal team at ASC would try to place a case with a legal aid provider if we thought that the client’s matter fell within scope and they were likely to pass the means assessment. Between March 2018 and March 2019 we worked on over 100 cases. Of the cases we tried to refer out 53% were not taken on by legal aid provider despite being eligible, and 47% were not taken on by the legal aid provider until we had worked on the case to crystallise the issues. 

 

We soon realised that only those cases that had progressed to the point of needing work conducted on a certificate of legal aid were being picked up. We held a number of meetings with a number of different law firms to try to unpick this issue. We were repeatedly told that it is loss making for firms to do work on a legal help basis and that the cases that were unlikely to progress beyond legal help were difficult to work on because of these financial pressures. These firms were clear with us about the types of cases that they would take on – policy challenges, group closures for urgent cases requiring interim relief, we were told “casework for individuals is becoming impossible”.

 

A keyworker in a college setting approached us to let us know that a young man with autism and a learning disability that he was supporting at college was homeless and sleeping under a pier. He was coming into college hungry, upset and frequently covered in cuts and bruises. We established contact with the young man and determined that he was eligible for legal aid  – it was an ordinary residence dispute and his situation was known to two authorities but neither wanted to assess his needs and put a package of support in place for him. We approached several law firms to try and get a specialist to support this person but we were unable to. One of lawyers we approached told us that the case was “too obviously unlawful” and it would be ‘wrapped up’ too quickly and never progress beyond legal help. They did not feel it was cost effective to work on this and were also concerned by the added cost of visiting him in person and conducting a capacity assessment.

 

This is the sad reality, this gentleman had no family to support him, he could not access support alone and were it not for his college keyworker taking some initiative, he may have gone unsupported much longer. We continued working on the case, because no one else would and ensured that the right authority assessed his needs, put a package of support in place for him and provided interim emergency accommodation in the short term and something more appropriate in the longer term.
 

This gentleman is not alone in struggling to access legal aid. This is a regular pattern in our cases. Another of our cases was written up by Open Democracy and can be found here:

https://www.opendemocracy.net/en/openjustice/unlawful-state/ive-been-neglected-one-man-and-the-social-care-crisis/

 

 

Lack of access to legal aid is affecting the rule of law.

Without access to justice there is no public body accountability. The rights and corresponding duties to provide social care might as well not exist.

 

The ASC legal team advised on 189 cases between March 2018 – March 2020 (whilst we were still housed at Mencap) and we had a staggering 98% full or partial success rate with our cases.

 

Whilst it is true that local authorities have cut back on the internal teams that would previously have created checks and balances to prevent unlawful policies and practices, it is sadly also the case that financial pressures on local authorities are resulting in them acting unlawfully. On the Mencap helpline we had whistle-blowers from social services call us to tell us about unlawful policies and practices within their own councils. As local authorities struggle to balance their books, we have seen a trend of our legal caseworkers needing to rely increasingly on issuing a letter before action to get the local authority to engage or to reverse a patently unlawful decision. We are now sending pre-action protocol letters in nearly 50% of our cases, whereas only 18 months ago it was less than 10%.   

 

H’s college placement ended and the education department failed to arrange alternative education despite him being lawfully entitled to this. H’s care provider were having to subsidise the cost of H’s package of support to ensure he was adequately supported in his home during the days that he would have been at college. The LA failed to engage with the care provider and would not respond to requests for an urgent review of this gentleman’s package of support, which is what he was legally entitled to. The care provider could not continue to subsidise this package of support and his placement was put at risk. We wrote out to the LA on numerous occasions to remind them of their duties and to ask for an interim increase in support, but they did not respond to our letters until we sent a letter before action which was seen by their legal team.

 

Lack of access to legal aid impacts upon the lives of the people we support

Unlawful delays and unlawful decisions impact upon the lives of people with social care needs making them vulnerable to sometimes extreme safeguarding issues.

 

We supported Mary, John, and Ahmed. All of them had a mild learning disability and all of them received a few hours of support so that they could live independently in the community. The local authority reviewed their package of support and cut their hours, even through their needs had not changed. Very quickly, their lives span out of control. Without support to manage his finances, John very quickly became street homeless. Without a few hours of support to manage safe sexual relationships, Mary fell prey to a sexual predator. She was trafficked to the Midlands where she was sexually abused by a group of men. Ahmed was violently abused by a drug dealer who started dealing drugs out of his flat. The families of Mary, John and Ahmed all tried to resolve the cases themselves, but the local authorities refused to step in. Our legal teams sought to resolve these matters through early correspondence which in one case was ignored and in the other cases, the local authority shockingly claimed that the individuals with intellectual disabilities had the capacity to consent to the serious criminal harm that they were being subjected to.  The pre-action protocol was essential to get the local authorities to act lawfully. Legal advice was essential to get the local authorities to act.

 

When a local authority fails to step in, it can impact upon the lives of family carers

 

Connor* is 53 years old and requires support at home because he has a learning disability. The local authority funded 50 hours of support and in addition his mum Sally, provided over 45 hours per week to Connor. Without notice, the Local Authority suddenly decided to reduce the number of hours of care Connor would receive to 15 hours. No proper reassessment was completed and there was no justification for the cut, as Connor's needs had not changed. When Sally came to us for support, philanthropy income meant we could take the case on and we successfully reversed the decision and after further wrangling with the council, they agreed to reimburse Sally for backdated pay amounting to over £20,000, providing justice for Sally and protecting Connor’s health and wellbeing.

 

Marianne’s aging mother, Nora, was diagnosed with dementia. Nora’s health deteriorated quickly and she soon required 24/7 care. Nora had no savings and qualified for local authority support. Marianne was an effective advocate, and knew about her mother’s right, but she still struggled to get the local authority to act lawfully. Despite the urgency of the situation, it took over 8 months for the local authority to step in. Marianne’s sister took a sabbatical from work losing a significant amount of income. Marianne’s employer was not as flexible. She lost her job, and living in an area with a high rate of unemployment, she is still unemployed.

 

 

Specialist advice is important from the outset

We work with a range of helpline advisors providing information and advice. These advisors are an important part of the ecosystem of advice and can help people negotiate the complexity of applying for social care and occasionally other discreet issues. However, it is important to understand that this type of support cannot replace the need for specialist legal advice at an early stage of a dispute. Unqualified advisors who lack a detailed understanding of the law are not able to accurately advise and may inadvertently disadvantage a person with social care needs. The absence of specialist advice at the outset risks further delay and fair and just outcomes for people with social care needs. Community care law is complex and far from formulaic. Knowing the right approach to take on a case can require a detailed understanding of a range of legislation, regulation, guidance and case law that cannot be expected of a helpline advisor. Specialist advice can both help individuals understand when their case has no merit, and improve decision making by the local authority, preventing a case from escalating.

 

Sandra is deaf and blind and has a learning disability. Sandra lived at home with her elderly parents. As a result of their frailty, Sandra’s parents were unable to take Sandra outside. Sandra started to display behaviour that challenges to express her unhappiness. Sandra’s parents asked for help from the local authority. The local authority agreed that Sandra needed to move out of the family home, but two years later, despite numerous interventions from advice officers at a local charity to raise safeguarding concerns, nothing had changed and Sandra was still at home with her parents. Successive decision-making panels had unlawfully refused to fund a placement on cost grounds. Eventually Sandra seriously assaulted a care worker. When the case came to our team we were able to get Sandra moved into a suitable supported living placement within 6 weeks.

 

 

A detailed analysis of the   Legal Help scheme in Community Care casework

The non-immigration/non-family fixed fee Legal Help scheme impacts in particular ways in Community Care casework because of the particular nature of this type of work. It creates significant problems with financial viability and a number of perverse incentives and risks to quality. 

The nature of Community Care casework

Factors contributing to frontloading of early casework

 

 

The implications of Community Care casework being a public law discipline. 

No such thing as a ‘standard’ case

Adult social care decisions under the Care Act

Section 17 support for ‘Children in Need’ by reason of disability  

Section 17 support for ‘Children in Need’ by reason   other than disability (e.g. families who are found intentionally homeless)

Migrant support 

Support  for children in the care system and on leaving care  

Court of Protection  best interest issues

Service closure and reconfigurations

Health/social care divide issues.

 

 

            The use of a fixed fee scheme for early legal help in Community Care cases

These characteristics of  Community Care  work mean that the  Legal Help fixed fee remuneration  scheme is particularly problematic for Community Care  casework.

 

Does the availability of Investigative Help help?

 

 

 

 

 

The perverse incentives

It is very difficult to find alternative solutions to the financial viability problem. There is very little privately paying Community Care work which could provide an alternative cross-subsidy in private practice. Being disabled, a migrant, a care leaver makes you poor

Conclusion

 

There is a crisis in access to legal help for community care cases. As we have shown, the limited take up of legal help for community care is not driven by a drop in demand. Demand for community care advice is strong, and arguably growing, but the financial disincentives to take these cases on means that people with social care needs are being denied the legal help they need.

 

In a democracy, we should all have the right to hold public bodies to account, but when it comes to community care law, the rule of law is broken. Public bodies can and are acting with impunity. There is a mounting urgency for the legal aid agency to act to ensure that community care lawyers are properly funded. People with social care needs and their families are systematically denied access to justice when they need it the most. The impact of these failures is ruining the lives of older and disabled people across the country.

 

October 2020


[1] https://www.instituteforgovernment.org.uk/publication/performance-tracker-2019/adult-social-care

 

[2] https://www.local.gov.uk/sites/default/files/documents/9.117_A_Year_In_The_LGA_v_11%20WEB.pdf

 

[3] Fair Funding Review: A review of local authorities’ relative needs and resources Consultation response by London Councils P.2 file:///C:/Users/KariGerstheimer(AC)/Downloads/FFR%20Relative%20needs%20and%20resources%20Feb%202019%20-%20London%20Councils%20response%20-%20FINAL.pdf

 

[4] https://www.progressive-policy.net/publications/why-the-government-needs-to-pay-up-before-levelling-up

 

[5]The LGA states, “the ability of councils to fund preventative activity in relation to adult social care and children’s services is being constrained by budgetary pressures” https://www.local.gov.uk/sites/default/files/documents/The%20impact%20of%20local%20government%20spending%20WEB.pdf

 

[6] Page 6 https://www.adass.org.uk/media/7973/no-embargo-adass-budget-survey-report.pdf

[7] https://www.lawsociety.org.uk/campaigns/legal-aid-deserts

 

[8] Legal aid statistics England and Wales tables April to June 2020

https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2020