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05.Dec.2011

Field Court Chambers has launched a dedicated Court of Protection group in recognition of the jurisdiction’s increasingly high profile.

The team has nine barristers who specialise in cases that come before the Court and in related cases in the High Court in which the inherent jurisdiction can still be invoked to protect vulnerable adults.

They include Hilton Harrop-Griffiths, who represented the local authority in the leading High Court case of London Borough of Hillingdon v Neary & Anor [2011] EWCH 1377.

Field Court said members of the group handled a range of sensitive and complex matters involving issues such as deprivation of liberty, human rights, financial abuse, disputes with deputies and media applications.

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02.Dec.2011

Proposals to extend the Care Quality Commission's role risk distracting the organisation from its core work of regulating health and social care, the National Audit Office has warned.

Additional responsibilities that the Department of Health expects the CQC to assume include oversight of fertility clinics and responsibility for HealthWatch England, the new national consumer body for health and social care.

In a report the NAO said the public’s expectations of the Commission were high, but this was based on a misunderstanding of what it could achieve as a regulator.

The report also said that the CQC’s role – although clearly defined – had not been communicated effectively to the public and providers.

The Commission was set up under the Health and Social Care Act 2008 to act as the independent regulator of health and adult social care services in England.

It took over responsibilities from three bodies – the Healthcare Commission, the Commission for Social Care Inspection, and the Mental Health Act Commission – and began operating on 1 April 2009.

The National Audit Office said the CQC had had “a difficult task in establishing itself and has not so far achieved value for money” in its key role.

The Commission has faced a number of problems since its launch. According to the NAO, these included:

• missed deadlines for registering health and social care providers, other than NHS trusts. This happened at the same time as levels of compliance and inspection activity were falling significantly
• a significant number of staff vacancies with 14% of posts empty at the end of September 2011. This followed government-wide recruitment constraints
• difficulties with the process for registering care providers, which “did not go smoothly”. The NAO said the timetable for two of the three tranches of registrations was not met, with the CQC forced to divert inspectors from compliance activity to registration work to rectify the problem. Together with the vacancy rates, this meant the Commission completed only 47% of the target number of compliance reviews between October 2010 and April 2011.

Amyas Morse, head of the National Audit Office, said: "Against a backdrop of considerable upheaval, the Care Quality Commission has had an uphill struggle to carry out its work effectively and has experienced serious difficulties. It is welcome that it is now taking action to improve its performance.

"There is a gap between what the public and providers expect of the Care Quality Commission and what it can achieve as a regulator. The Commission and the Department of Health should make clear what successful regulation of this critical sector would look like."

In its response to the NAO report, the CQC acknowledged it had been through a “challenging period” but insisted that it was now “firmly on the right track and making rapid progress”.

It said it was committed to increasing the numbers of unannounced inspections in order to identify and tackle poor care.

Chief Executive Cynthia Bower said: “As the NAO report makes clear, we faced a difficult task. We had to bring together the work of three organisations and bring in a new model of regulating health and adult social care. Not everything has gone smoothly, but we have learned, reviewed what we do and made changes – often with support of others involved in health and social care.

"We are a young organisation and we are still evolving - but I firmly believe that we are making real progress. In October alone, we conducted more than 1,400 unannounced inspections. In the last three months we have recruited and trained over 100 additional inspectors.”

Bower claimed the CQC’s report on its Dignity and Nutrition inspection programme, which looked at the care older people receive in 100 acute hospitals, showed how effective its regulatory system could be. This programme will shortly be rolled out to social care, she added.

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01.Dec.2011

Local authorities may have to consider innovative approaches if the challenge of funding adult care provision is to be met. Nathan Holden examines one possible option.

“The current adult social care funding system in England is not fit for purpose and needs urgent and lasting reform”

These are the opening words of the report of the Commission on Funding Care and Support published in July by the Commission’s chair Andrew Dilnot.

The Commission’s less than startling conclusion is that the adult social care funding system, conceived in 1948, is not fit for purpose in the 21st century. The key problem is that people are very reluctant to sell their homes to pay for care. As the Report points out, people with assets that exceed £23,250 receive no financial support and have to fund their own care. In calculating a person’s assets for the purposes of meeting the cost of residential care account is taken of their housing assets. To most this seems unfair when typically the value of their home has been built up with a lifetime of taxed earnings.

Government spending on adult social care has reached £14.5bn per annum with approximately half going on caring for older people. According to research around one in ten people at age 65 face future lifetime care costs of more than £100,000.

To ameliorate this apparent unfairness the report recommends that an upper limit is set on care costs that an individual has to meet. The Report suggests that this is set at £35,000 and would cover an individual’s lifetime. Once an individual had contributed this sum the state would take over. The basic idea is that the £35,000 acts like an insurance excess for those that have the assets; those that don’t would be funded in the same way that they are now – i.e. fully by the state.

The proposals have been very well received, but they are costly at somewhere between £1.3 and £2.2bn and it is not clear from where the money will come. There is an obvious danger that central government would look to local government to pick up the tab on the basis that local government historically has the responsibility for delivering elderly persons’ care services. That position is unlikely to change for so long as the issue remains a political ‘hot potato’.

The cost is also likely to increase. Figures produced by the Office for Budgetary Responsibility predict that spending on long term care is expected to increase by around 40%, from 1.2% to 1.7% of gross domestic product.

So what are the alternatives?

McKinsey Global Institute published a report in November 2010 entitled From austerity to prosperity: Seven Priorities for the long term. The report focuses on challenges faced by the UK economy going forward as it emerges from recession and in particular the effects of the ageing population. It points out that 434,000 people currently live in residential care (the vast proportions of whom are elderly) and that this is set to increase to 759,000 people by 2030.

The McKinsey argument is that as the state is overburdened with public debt and that it makes no sense not to try to release some of the trillion pounds that the older generations have tied up in their homes or to look at other alternatives before opting for additional funding. In particular, argues the report, too little attention is paid to equity release products, such as reverse mortgages. There is very little take-up of these schemes – there are only 120,000 such mortgages in the UK, worth around £6.5bn, or 1% of pensioners’ net housing wealth. However, the low take-up is not surprising – the products have had a chequered history. The McKinsey research identifies that although many think they are a good idea in theory the majority do not trust the providers and only half think that they give good value for money.

The solution to these problems involves a combination of measures – on the one hand to encourage (or possibly force) people to effectively insure against getting old through a compulsory scheme and, at the same time, address a wider degree of suspicion about the equity release model. The reputational issue, they suggest, could be addressed by encouraging well-know, ‘High Street’ names in the finance industry to offer these products, and further by ensuring that equity release did not have negative tax or benefit consequences for the homeowner. However, the really difficult issue to resolve is tackling the cost of equity release products. At present they are comparatively expensive and it is suggested that the costs will only come down if there is a market into which financial institutions can sell on the loans they provide.

In the United States the cost issue has been overcome by the Government National Mortgage Association (Ginnie Mae) a Federal agency. Ginnie Mae acts as a guarantor of a special type of mortgage-backed security called the Home Equity Conversion Mortgage. Under this scheme approved private sector lenders enter into reverse mortgage arrangements which are then pooled into securities and offered to the market with government-backed guarantees as to their value.

So you might ask the question, what has this to do with local government in the UK? Local government is by and large responsible for adult social care and the cost of that care is set to rise as the elderly population increases. It is therefore in the interests of councils to consider how best to meet the challenge. A proactive way of doing so might be to emulate the US model. Local government are very well placed to borrow. Indeed the new powers under the Localism Act will provide an ideal means of achieving this objective, although existing powers under section 2 of the Local Government Act 2000 will work just as well.

How would this work in practice?

• Local authorities or authorised lenders could offer reverse mortgages.
• These mortgages would then be turned into securities that would then be sold with a local authority guarantee, which would free up existing capital (e.g. lending capacity) to allow for further lending to provide further loans.

Whether local authorities decided to club together and create mutuals guaranteeing mortgaged backed securities would be down to whether it would be possible to garner enough interest in acting collectively. Furthermore, in order to deliver lower cost products, which would be in the interests of everyone, it would be necessary to have enough participants to spawn a secondary market for the product.

The other point to consider would be whether, following the LAML case, setting up a company for sharing mortgage risk lawful. In LAML the courts held that the actions of a group of local authorities to set up a company to provide insurance to themselves and other local authorities fell outside of the powers in section 2 Local Government Act 2000 to promote the economic, social or environmental well-being of their area. Setting up a company for the purposes of sharing mortgage risk is not dissimilar; however, whether the new general power of competence in the Localism Act can overcome these possible pitfalls is yet to be seen. In any event it would not be too difficult for Parliament to provide a specific power, as they did in the LAML case, if need be.

Putting aside the technical issues,  the important point is that councils should be looking into some of these innovative solutions now because the issue will only become more pressing. Taking a proactive, rather than reactive, approach is likely to be more productive in the long run for local authorities and the populations they serve.

Nathan Holden is a partner at Mills & Reeve. He can be contacted on 0121 456 8350 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

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01.Dec.2011

The Judicial Appointments Commission has launched its first exercise to select judges to hear welfare appeals in the Upper Tribunal, Administrative Appeals Chamber.

The selection exercise will see up to eight judges appointed. The tribunal is a specialist court of appeal for social security cases, but also covers areas such as mental health, special educational needs, care standards, cases barring individuals from working with children and vulnerable adults and regulatory matters (including information rights).

The tribunal decides applications for permission to appeal and appeals, almost exclusively on points of law and mainly on paper. The JAC said that as a result there are few oral hearings in social security matters.

The JAC is looking to select both salaried and deputy (fee-paid) judges. There will be two salaried and up to four fee-paid posts in the new Rolls Building in London and two fee-paid posts in Edinburgh.

The positions are open to UK solicitors, barristers and advocates with at least seven years’ post-qualification experience, as well as to others with relevant legal expertise such as academics.

“The Lord Chancellor expects that candidates for the salaried posts will have sufficient directly relevant previous judicial experience,” the JAC said. “Exceptions may be made for those who have demonstrated the necessary skills in some other significant way.”

For the fee-paid posts in Edinburgh, knowledge and experience of Scots law is required, but it is not necessary to have a Scottish legal qualification.

The application materials can be downloaded from the JAC website. The application window closes on 22 December 2011.

The JAC has meanwhile hailed the high level of women who were successful in the two largest selection exercises it completed between April and September 2011.

“In Circuit Judge and District Judge (Magistrates’ Court) competitions, where women made up only 20 and 19% of those eligible to apply (the eligible pool), they formed 37 and 47% of the final selections made respectively,” it reported.

“Competition for these roles was strong with more than nine applications for every Circuit Judge vacancy and 13 for every District Judge role.”

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29.Nov.2011

The government has hired more than 80 new judges to tackle a major backlog in welfare appeals, The Times has reported.

The newspaper said the recruitment exercise was the first time that extra posts had been needed since 2007, when ten Social Entitlement Chamber judges were recruited.

According to The Times, in 2010-11 the number of appeals in the Social Entitlement Chamber were 23% higher than the preceding year and 72% up on 2008-09.

Ministers recently unveiled changes to the Work Capability Assessment, which is part of a government programme to see whether claimants on incapacity benefit are fit to work. The test is seen as one of the key reasons for the rise in appeals.

A Department for Work and Pensions source told The Times that the test improvements and the increased number of judges meant that the appeals system was coping.

However, claimant lawyers said a greater number of their clients were now seeking to appeal adverse decisions.

Arvin Narendra, a lawyer at Duncan Lewis Solicitors, told the paper that some cases were now taking up to a year to go from lodging the initial appeal to having the final tribunal hearing date.

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28.Nov.2011

The Information Commissioner has slapped two local authorities with monetary fines worth a combined £140,000, saying he wanted to send “a clear message” to the social care sector.

The breaches of the Data Protection Act both involved the sending of emails containing sensitive information to unintended recipients.

The Information Commissioner, Christopher Graham, rounded on the local government sector for its "sloppiness", claiming that there was “too much of this sort of thing going on”.

Worcestershire County Council was hit with an £80,000 penalty after a member of staff emailed highly sensitive personal information about vulnerable people to 23 unintended recipients in March this year.

The individual had clicked on an additional contact list before sending the email, which was only intended for internal use.

According to the ICO, Worcestershire had:

• failed to take appropriate measures to guard against the unauthorised processing of personal data, such as providing employees with appropriate training and clearly distinguishing between internal and external email distribution lists, and
• failed to properly consider an alternative means of handling the information, such as holding it in a secure system that could only be accessed by members of staff who needed to see it.

The employee realised they had made an error immediately and sought to contact the unintended recipients to ensure that the information was deleted.

“Fortunately, on this occasion all of the unintended recipients worked for registered organisations used to operating within the council’s protocols about handling sensitive data,” the ICO said.

North Somerset Council has meanwhile been given a monetary penalty of £60,000. The ICO said that in this case, a member of staff sent five emails – two of which contained highly sensitive and confidential information about a child’s serious case review – to the wrong NHS employee.

The incidents took place during November and December 2010 and arose because the council's employee had selected the wrong email address when creating a personal distribution list.

Despite being told about the error by the unintended recipient, the employee continued to email information on a further three occasions.

Two Assistant Directors at North Somerset raised the issue with the employee on 9 December but later that day a fifth incident took place. The NHS organisation verbally confirmed to the local authority that it destroyed the emails after their own internal investigation was complete.

According to the ICO, North Somerset had some policies and procedures in place but had failed to ensure that relevant staff received appropriate data protection training. The watchdog has called on the council to adopt a more secure means to send information electorically, “including encryption and ensuring that managers sign off email distribution lists”.

Both Worcestershire and North Somerset have agreed to take remedial action.

Christopher Graham, said: “Personal information in cases involving vulnerable people is about the most sensitive personal information imaginable. It is of great concern that this sort of information was simply sent to the wrong recipients by staff at two separate councils.

“It was fortunate that in both cases at least the email recipients worked in a similar sector and so were used to handling sensitive information. This mitigating factor has been taken into account in assessing the amount of the penalties.”

The Information Commissioner said that people who handled highly sensitive personal information needed to understand the real weight of responsibility that came with keeping it secure.

“Of course this includes having the correct training and policies in place, but it’s also about common sense," he said. "Considering whether email is the appropriate medium, checking and double checking that the right recipients will receive the information – and measures like encryption and data minimisation – should be routine.”

Graham added: “I hope these penalties send a clear message to those working in the social care sector. The Information Commissioner takes this sloppiness seriously – and so should you.”

The penalties levied on Worcestershire and North Somerset bring the total of local authorities fined by the ICO to five. The other local authorities to have to pay out were Surrey County Council (£120,000), Hertfordshire County Council (£100,000), Ealing Council (£80,000) and Hounslow Council (£70,000).

The watchdog has been working on a business case to be submitted to the Ministry of Justice that would give it stronger powers to conduct compulsory audits of local authorities’ and NHS organisations’ data protection compliance.

See also: Privacy matters

Philip Hoult