Adult Care Features

Fluctuating capacity, the “longitudinal approach” and practical dilemmas

David Lock KC asks whether a “longitudinal approach” to when decisions can lawfully be made by patients with fluctuating capacity is consistent with the Mental Capacity Act 2005 (“the MCA”) and, if it is not, whether there is a better framework that could be used to enable decisions to be taken to protect this vulnerable class of persons using the inherent jurisdiction. Read more

NEWS

Nov 21, 2024

Local Government & Social Care Ombudsman calls for more powers to address “accountability gaps”

The Local Government and Social Care Ombudsman (LGSCO) has called on the Government to provide it with extra powers to ensure they are fit for purpose and to address what it describes as “accountability gaps”.

Nov 13, 2024

NHS Oversight Framework to be updated by next financial year to ensure performance is “properly scrutinised”: Health Secretary

Health and Social Care Secretary Wes Streeting has said the NHS Oversight Framework, which sets out how trusts and integrated care boards are best monitored, will be updated by the next financial year to ensure performance is “properly scrutinised”.

Nov 12, 2024

Costs to councils for providing care and support for working age adults could grow to reach £17bn by end of the decade: CCN

The cost of providing care for working age adults and life-long disabled people requiring social care is now “far outpacing” social care to the over 65s, analysis by County Councils Network (CCN) has found.

Nov 06, 2024

More than 80% of councils on course to overspend adult social care budgets: ADASS Autumn Survey

Four out of five councils (81%) are on course to overspend their adult social care budget in the current financial year, up from 72% in 2023/24, the Association of Directors of Adult Social Services (ADASS) has found.

Nov 06, 2024

Government reforms to Mental Health Act to include introduction of statutory care and treatment plans and end to “inappropriate detention” of autistic people

Reforms to the “outdated” Mental Health Act will introduce statutory care and treatment plans, end the use of police and prison cells to place people experiencing a mental health crisis, and end the “inappropriate detention” of autistic people and people with learning disabilities.

Nov 06, 2024

Government to review upper limit on Disabled Facilities Grant after judicial review settled

The Government has agreed to review the limit on grants to fund specialist adaptations to disabled people’s homes, following a legal challenge brought by a family left unable to meet their six-year-old disabled child’s needs.

Nov 05, 2024

More must be done to ensure unpaid carers are “proactively identified” and informed of right to carers’ needs assessment: Public Services Ombudsman for Wales

Although carers in Wales are legally entitled to a needs assessment if they appear to have needs for support or are likely to do so in the future, only 2.8% of carers across four local authorities in Wales have had their needs assessed, a report by the Public Services Ombudsman for Wales has found.

Oct 28, 2024

Care Quality Commission calls for “substantial intervention” into Deprivation of Liberty Safeguards system

Too many people are waiting too long for a Deprivation of Liberty Safeguards authorisation, despite multiple examples of local authorities trying their best to reduce backlogs, the Care Quality Commission (CQC) has warned.

Oct 23, 2024

Legal rights charity wins tribunal case demanding Government transparency on determination of adult social care funding

The Information Tribunal has ordered HM Treasury and the Ministry of Housing, Communities and Local Government to reveal information requested by legal rights charity Access Social Care around the decision-making processes which determine funding for adult social care.

Oct 18, 2024

Ombudsman criticises housing and adult care teams at council over lack of ‘joined-up’ support for vulnerable homeless man

The London Borough of Tower Hamlets left a vulnerable man with significant needs, including disabilities and complex physical and mental health needs, with insufficient support after he told the council he was being made homeless, the Local Government and Social Care Ombudsman has found.

Oct 15, 2024

Final report into Care Quality Commission identifies “significant internal failings”

The Government has pledged further action to strengthen patient safety after a final report identified “significant internal failings” at the Care Quality Commission (CQC), hampering the regulator's ability to identify poor performance at hospitals, care homes and GP practices.

Oct 07, 2024

Council at fault in consideration of best interests of elderly woman, Ombudsman finds

The Local Government and Social Care Ombudsman has found fault in the way that Stockton-on-Tees Borough Council considered an elderly woman’s best interests before placing her in a nursing home.

Sep 26, 2024

Ombudsman upholds four in five of complaints about adult social care where it conducts investigation in detail

The Local Government and Social Care Ombudsman (LGSCO) upheld 80% of all adult social care – including council delivered care – cases it investigated in detail in 2023-24.

FEATURES AND ANALYSIS

November 20, 2024

Capacity and civil proceedings

Holly Tibbitts examines new recommendations from a working group of the Civil Justice Council on determining capacity to litigate in civil proceedings.

November 20, 2024

Update on the draft Mental Health Bill

There are some key provisions in the draft Mental Health Bill which are relevant and will have an impact on health and care providers and commissioners, writes Kirsty Stuart.

November 01, 2024

Recovering adult social care charges via insolvency administration orders

Yisroel Greenberg explores the circumstances in which an insolvency administration order should be considered, summarises the legal framework, and offers some practical suggestions when considering applying for one.

October 23, 2024

Court of Protection case update: October 2024

Lauren Gardner and Eleanor Suthern round up the latest Court of Protection cases of interest to practitioners, including an important ruling on representation during review periods.

October 23, 2024

Communication with protected parties in legal proceedings

Abby Watson provides practical tips on how representatives of protected parties can enhance communication, and prepare them for judicial visits.

October 23, 2024

The way forward for CQC – something old, something new….

Carlton Sadler and Siwan Griffiths look at the principal findings of the Dash and Richards reports into the Care Quality Commission and the Single Assessment Framework.

October 04, 2024

The Ombudsman, DoLS and triaging – asking the impossible?

Alex Ruck Keene KC (Hon) examines a recent Ombudsman report following a complaint about the Deprivation of Liberty Safeguards authorisation process.

October 04, 2024

Navigating key trends in health and safety prosecutions: Insights for care and housing providers

Recent prosecutions by both the Health and Safety Executive (HSE) and the Care Quality Commission (CQC) have brought forth issues which appear to be at the forefront of regulators’ minds. Freya Cassia and Beth Parlane identify developing trends which could help care and housing providers focus on improvements and address these issues.

MORE NEWS

Sep 23, 2024

Ombudsman upholds care home’s complaint about funding for resident

The Local Government and Social Care Ombudsman has found Leicester City Council at fault in relation to a lack of funding support for a resident in a care home, finding that its actions led to a “financial shortfall” and a “missed opportunity to reduce the risk of harm to the Home residents”.

Sep 23, 2024

Ombudsman recommends council review triaging procedures for Deprivation of Liberty Safeguards requests

The Local Government and Social Care Ombudsman has found Stockport Metropolitan Borough Council at fault for depriving a woman of her liberty without an authorisation, and failing to involve her attorney in a best interests meeting to decide on a new placement.

Sep 17, 2024

Ombudsman investigation sees council agree to waive £15k in care charges

The Local Government and Social Care Ombudsman has found the London Borough of Barking and Dagenham at fault for failing to complete a capacity assessment of a woman, and failing to keep her and her mother “suitably informed” about care charges.

Sep 11, 2024

Single word judgements cannot adequately capture complexity of adult social care, says LGA

The Local Government Association (LGA) has called for the scrapping of single word ratings in Care Quality Commission assessments of councils’ adult social care services, following Ofsted’s decision to end single word ratings for schools.

Sep 03, 2024

Application by BBC for review of transparency order rejected by Court of Protection

The Court of Protection has dismissed an application made by the British Broadcasting Corporation (BBC) for a review of a transparency order, with a view to including the situation of a vulnerable young man within a BBC documentary.

Aug 30, 2024

Applications for Deprivation of Liberty Safeguards increase 11% in single year

New data published by NHS England has shown there were an estimated 332,455 applications for Deprivation of Liberty Safeguards (DoLS) received during 2023-24 - an increase of 11% similar to the previous year, which is closer to the rate of growth seen before the pandemic.

Aug 29, 2024

Council decision-making procedures and legal advice “not followed” during closure of care home, independent review finds

An independent review into Wakefield Council’s decision to close a residential care home, moving some residents in less than 48 hours, has found that the council’s decision-making procedures were “not followed properly”, and that there wasn’t enough focus on the needs of residents.

Aug 27, 2024

Council to pay £18k after woman was wrongly charged contribution to care fees when she was entitled to free mental health aftercare

Kent County Council has been told to pay more than £18,000 after the Local Government and Social Care Ombudsman (LGSCO) found it at fault for not providing an elderly woman with free section 117 aftercare.

Aug 22, 2024

Teenager with significant support needs left days from homelessness due to ‘unfathomable’ council failings: Ombudsman

The Local Government and Social Care Ombudsman (LGSCO) has found fault in the actions of Devon County Council after it left a teenager with needs including Autism and ADHD less than a week away from being made homeless because the council had not decided where he should live when he became 18.

Aug 20, 2024

Council to give staff refresher training on charging for adult social care after failure to give woman clear information

The Local Government and Social Care Ombudsman has found West Sussex County Council at fault for failing to provide clear charging information in relation to an elderly woman’s care and support and for “significant delays” in completing a financial assessment.

Aug 20, 2024

Elderly man left owing almost £5,000 to council after financial assessment delays

An investigation by the Local Government and Social Care Ombudsman has found that an elderly man was left owing nearly £5,000 to Kingston Council after it wrongly paid for his live-in carer for six months.

Aug 19, 2024

DHSC “working through” stayed ordinary residence disputes after Supreme Court judgment

The Department for Health and Social Care (DHSC) has updated its statutory guidance on the determination of ordinary residence disputes in light of the outcome of a Supreme Court judgment last year.

Aug 16, 2024

National Data Guardian stresses need to be “straight with people” on data processing after seeing attempts to bypass safeguards

The National Data Guardian for Health and Social Care, Dr Nicola Byrne, has highlighted the importance of using language accurately, after seeing attempts by organisations to “falsely describe” some activities that rely on patient data, such as population health management, as “direct care”.

Aug 09, 2024

Ombudsman urges Integrated Care Boards to “learn from mistakes” after healthcare group failed to properly assess 24-hour care of woman

The Parliamentary and Health Service Ombudsman (PHSO) is urging Integrated Care Boards (ICBs) to “learn from mistakes and take action” to prevent other families facing unnecessary financial strain, after it found that a healthcare provider failed to properly assess and fund an elderly woman’s care.

Aug 01, 2024

Judge decides further orders regulating residence or constraining choices of vulnerable woman are “unjustified”, despite concern over dysfunctional relationship with father

No useful purpose would be served by continuing protective orders for a 29-year-old woman, P, a vulnerable adult who is under the influence and control of her father, the Family Division has decided.

Jul 31, 2024

Continuing along same path “comes at a cost” to lives of people who draw on care and support: ADASS on scrapping of adult social care charging reforms

The Association of Directors of Adult Social Services (ADASS) has shared its “disappointment” with the Government’s decision not to proceed with adult social care charging reforms, while acknowledging the absence of “sufficient time” to deliver them by October 2025.

Jul 26, 2024

Independent review finds “significant failings” in effectiveness of Care Quality Commission

An independent review has identified “significant internal failings” at the Care Quality Commission (CQC), and has warned that the regulator is unable to “consistently and effectively” judge the quality of health and care services.

Jul 23, 2024

Councils struggling financially to meet people’s “higher-level” needs: ADASS

The Association of Directors of Adult Social Services (ADASS) has warned that an increase in complex and long-term care is pushing local councils to overspend.

Jul 23, 2024

Nine in ten councils ‘not well prepared’ to implement cap on adult social care costs

The County Councils Network (CCN) has called for a delay in the introduction of the cap on adult social care costs, after finding that nine in ten councils are “not well prepared” to implement the changes due to funding uncertainty, demand for services and a “persistent” workforce crisis.

Jul 23, 2024

Sector welcomes “long overdue” mental health law reforms

Charities have welcomed the Government’s intention to deliver reforms to the Mental Health Act, while warning that the “ambitious” measures will require funding and resources to be fully realised.

Jul 19, 2024

People being let down by “poor communication” between councils and NHS, joint Ombudsman report on integrated care finds

The Local Government and Social Care Ombudsman and the Parliamentary and Health Service Ombudsman have warned that local authorities and the NHS need to work more closely to improve local care, after a joint investigation found evidence of “poor communication” between services.

Jul 16, 2024

Integrated care systems seeing progress in collaboration but more transformative work proceeding “at a slower pace”: King’s Fund

There are clear signs that progress is being made as a result of the establishment of integrated care systems (ICSs), a King’s Fund report has suggested.

Jul 03, 2024

Christian who lost out on job over anti-gay views vows to appeal Employment Tribunal decision despite winning claim

A charity's decision to withdraw a job offer after finding a prospective employee held strong Christian beliefs about homosexuality constituted direct discrimination, the Employment Tribunal has found.

Jun 21, 2024

Councils and charities in plea for party leaders to avoid “trap” of politicising debate about future of adult social care

A coalition of councils, charities and campaigners have written a joint open letter to all party leaders, urging the incoming government to “champion and prioritise” adult social care in the upcoming election.

Jun 17, 2024

Urgent judicial review claim issued over planned closure by council of “vital” mental health services

A group of claimants are challenging Devon County Council’s decision to close the North Devon Link drop-in services, including on the basis that the local authority failed to have regard to mandatory considerations including its duties under the Care Act 2014 and Health and Social Care Act 2012.

Jun 11, 2024

Council defends High Court challenge from care home operators

Northumberland County Council has successfully defended a legal challenge brought by an unincorporated association of care home operators regarding the weekly fees paid by the local authority to care home operators.

Jun 04, 2024

Council told by Ombudsman to reconsider decision regarding alleged intentional deprivation of assets

The Local Government and Social Care Ombudsman (LGSCO) has found fault with the way that Knowsley Metropolitan Borough Council reached its decision about an intentional deprivation of assets in relation to care home charges.

Jun 04, 2024

Council at fault for not properly consulting autistic man about who to involve in his care review and for not completing review in “person-centred” way: Ombudsman

The Local Government and Social Care Ombudsman has found Peterborough City Council at fault for failing to properly consult an autistic man about who to involve in his care review and for not completing the review in a “person-centred” way.

MORE FEATURES

September 18, 2024

Outsourcing and the Human Rights Act 1998 – the consequences

Alex Ruck Keene KC (Hon) analyses a recent High Court case that considered the Human Rights Act in relation to outsourced care.

September 18, 2024

Commissioning care and support in Wales: new code of practice

The Welsh Government has published a new Code of Practice which came into effect on 1 September and applies principles and standards to the commissioning of care and support services by local authorities, local health boards and NHS trusts in Wales. Emma Watt looks at the details.

August 21, 2024

Deprivations of liberty and representation during the review period

A High Court judge has issued a really significant judgment for COPDOL work dealing with the ongoing representation of P during the time between a court authorisation of a deprivation of liberty and the next review, writes Ben Troke.

August 20, 2024

The functional test for capacity

The Court of Appeal has found that there is no requirement for “belief” in the Mental Capacity Act functional test. Katie Viggers examines the ruling.

July 23, 2024

Wishes and feelings in the balance

Barristers at 39 Essex Chambers analyse the outcome of a s.21A MCA application and contested hearing of whether it was in the best interests of MA, a 90-year-old woman with a diagnosis of dementia residing in a care home, to have a trial return to her home with a package of care.

July 23, 2024

Health and social needs and EHCPs

The Upper Tribunal has, for the first time, provided detailed guidance as to the approach the First-tier Tribunal (Special Educational Needs and Disability) (“the FtT”) should take when considering whether to make recommendations as to health and social care needs/provision in Education, Health and Care Plans (“EHC Plans”). Mark Greaves looks at the key points.

July 05, 2024

A delicate balance

When is it in the best interests of an adult without capacity to be separated from her mother and covertly administered medication? A recent decision at the Court of Protection provides some guidance, writes Sarah Hutchinson.

June 19, 2024

Ensuring compliance with Court of Protection orders

How far can the Court of Protection go to ensure its orders are complied with? Alex Ruck Keene KC (Hon) examines a recent ruling.

June 07, 2024

Capacity, habitual residence, and internet use in Scotland – a Court of Protection conundrum

In a recent ruling David Rees KC (sitting as a Tier 3 Judge of the Court of Protection) helpfully set out guidance as to what has to be done where there is a question of whether it has jurisdiction in a cross-border case. Alex Ruck Keene KC (Hon) examines the judgment.

May 31, 2024

Charging disabled persons for services

A recent challenge to Birmingham City Council’s policy to charge disabled persons for services at the statutory maximum has failed. Joe Thomas explains why.

May 21, 2024

Housing Act 1996 and Care Act 2014: how do they interact?

A local authority recently defended a Court of Appeal case focusing on how a local authority’s obligations under the Care Act 2014 interact with its obligations under Parts VI and VII of the Housing Act 1996. In particular, the Court of Appeal considered how s.23 of the Care Act should be properly interpreted, writes Joshua Swirsky.

May 10, 2024