DLS welcomes the report issued by EHRC yesterday on its Inquiry into challenging decisions about adult social care. We support the 13 recommendations made in the report and urge the UK government and other bodies mentioned to adopt them.
DLS gave evidence to the Inquiry, and in particular in relation to:
- disabled people’s experiences of challenging, or attempting to challenge, decisions about adult social care;
- the effectiveness of the existing regime regulating complaint-handling by local authorities; 
- and failure to meet the access needs of disabled people when attempting to challenge local authority decisions.
DLS has supported community care recipients on a range of legal issues where local authorities have not fulfilled their obligations.
Many important social care decisions are made when a person engages with their local authority to request care services. These relate to a person’s entitlement to care, the form and manner decisions are reached and communicated, care planning and care delivery. To be properly challengeable, these decisions should be communicated, and in a form that can be retained, considered and shown to others. Far too often, adult social care decisions are not properly challengeable.
Under the present Regulations, local authority social care complaints handling is not effective because the complaints regime does not demand enough from local authorities in respect of process, quality, timescales and outcomes. It is also undermined by the absence of independent review, and technical (social care) knowledge among complaints investigators.
Local authorities are required to make reasonable adjustments where the usual way of exercising their functions places disabled people at a disadvantage. It is a positive duty, and it is intended to enable access, by requiring consideration of a) barriers and b) enablement. That duty is to be exercised concurrently with the exercise of the public function. Our experience is that the concurrent consideration of barriers and enablement simply does not happen.
This is demonstrated by two anonymised cases:
- An articulate individual was declined an independent advocate because the local authority considered it was not necessary. That decision was not put in writing. The decision was made despite the person’s mental health condition and our representation that, due to previous distressing experiences with adult social care workers, the individual was likely to experience anxiety triggers during the assessment. Such triggers would affect the client’s ability to participate. The assessment proceeded without an advocate, and was subsequently curtailed by the social worker citing the client’s difficulty engaging.
- A client with ME lost her specialist PA. Agency carers stepped in to cover essential needs. A reassessment of care needs was arranged. The assessment document recorded the client’s account of her (unchanged) needs, supported by her ME specialist nurse. It also recorded the account of the agency carers and placed reliance on the fact that were not attending to ME-specialist care matters. The client’s daily care was reduced by the time that had been allocated to ME-specialist care. The document did not explain the decision(s) that had been taken, and contained no information on what-to-do-if-you-don’t-agree. Within 6 months the client’s GP wrote a letter to the local authority advising of a direct link between the absence of ME-specialist care and a degradation in the client’s significant health and well-being.
We particularly welcome the EHRC’s recommendations on improvements in accessing information, services, advocacy and on local authorities observing the duty to consider reasonable adjustments. We also welcome the recommendations to develop (improve) the jurisdiction of the Local Government and Social Care Ombudsman.
In general, DLS are frequently overwhelmed with enquiries and issues, and does not have the capacity to support everyone who needs the help they do. We have waiting lists but if you are interested in getting help on community care matters contact:
If you have MS: https://dls.org.uk/free-advice/ms-legal-advice-line/
Otherwise please see: https://dls.org.uk/comm-care-and-housing/
Notes to editors:
Disability Law Service (DLS) is a national charity and Disabled People’s Organisation based in London. We have a team of solicitors and other advisers supporting people all over the country. We are often the adviser of last resort. Last year DLS received 30,500 calls for help on the legal advice line. Some could be dealt with straightaway whereas nearly 4000 people were provided with representation and casework support in the areas of employment (including discrimination in the workplace), community care, housing and welfare benefits.
 The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009