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26.Nov.2010

Local authorities managed to sustain recent improvements in the provision of adult social care in 2009/10, the Care Quality Commission has reported in its final annual performance assessment under the existing framework.

The CQC’s report found that joint commissioning and monitoring of services were more widespread. “This was a key strength in half of all councils,” the watchdog said. However, it was also an area for improvement in a third of local authorities.

Other key findings from the report include:

• Some 95% of all 152 councils were assessed as performing well or excellently
• Just seven were assessed as performing adequately, “and must improve”
• For the seventh year running, no councils were rated poor
• Areas such as dignity and respect, choice and control, and emotional health and well-being continued to improve.

Significantly, the report also revealed that the number of concerns reported to councils under the adult safeguarding system increased by nearly a third, to 103,000 referrals. The watchdog put this down to a growing awareness of safeguarding through public information campaigns and closer working between councils and health agencies.

CQC chief executive Cynthia Bower said: “The large majority of councils provide good standards of care, whether they run the services themselves or commission them from the private or voluntary sectors. But a few need to improve considerably before they can say they are providing good services for local people.

“Our experience is that good performance is the result of strong leadership and commitment by elected councillors and service managers, working together with a skilled and dedicated workforce. They encourage people to be actively involved in shaping their own care packages, and they develop and commission the services that meet people’s individual needs.”

Bower added that the best-performing councils worked closely with health agencies to deliver joined-up care.

The arrangements for performance assessment, in operation since 2002, are to change for 2010/11, with the emphasis on councils taking more responsibility for driving and monitoring improvement locally.

The CQC is currently working with a range of organisations – including the Local Government Group and the Association of Directors of Adult Social Services – to design this new system of performance assessment.

Cllr David Rogers, chairman of the Local Government Association’s community wellbeing board, hailed the fact that 95% of councils performed well or excellently as a great achievement.

He said: “Councils across the country work tirelessly to provide the best possible level of social care so people in need can enjoy the respect and dignity they deserve. It’s testament to this dedication that the vast majority of town halls continually improve their services every year, giving more elderly and vulnerable people control of their own lives and independence.”

However, Rogers also warned that would be “very hard times in the years ahead” as local government faces up to a multi-billion pound shortfall in its adult social care budget.

“Tough decisions will have to be made and councils will have to work harder than ever to keep building on this good record,” he argued.

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18.Nov.2010

The regime where people convicted or cautioned for certain crimes are automatically banned from working with children or vulnerable adults breaches human rights law, a High Court judge has found. Adam Wagner assesses the ruling.

In The Royal College of Nursing & Ors, R (on the application of) v Secretary of State for the Home Department & Anor [2010] EWHC 2761 (Admin), the High Court ruled that a scheme which prohibits people convicted or cautioned for certain crimes from working with children or vulnerable adults breaches human rights law.

The system of automatically banning those convicted for or who admit certain crimes from working with children and vulnerable adults without allowing them to make representations breached their rights to a fair trial.

The Safeguarding Vulnerable Groups Act 2006 was introduced following the findings of the 2004 Bichard Inquiry into the Soham Murders. The Act introduced a ‘Vetting and Barring” scheme for people working with children, whereby a new Independent Safeguarding Authority (‘ISA’) must maintain lists of people who are barred from certain kinds of work with children and adults. That list includes those who are convicted of, or admit to, certain specified criminal offences, including various sexual offences, and those involving violence or the mistreatment of children. Once barred, the restrictions on work last from a minimum of one to a maximum of ten years.

Four of the claimants were nurses. Two had accepted police cautions for leaving their children at home unsupervised, one was convicted of giving a child an unauthorised kiss and the other was subject to an investigation into her being drunk at work. Because of the way the Act works, the first three had all been placed automatically on the barred list after accepting their cautions or being convicted. They were eventually taken off the lists after challenging the decisions, but only after many months of being unable to work in their chosen field.

The Claimants alleged the scheme is unlawful and in breach of the European Convention on Human Rights on four grounds, namely that

• The scheme requires the ISA to place individuals who have been convicted or cautioned for a wide range of offences on the barred lists without the right to make representations prior to listing contrary to Articles 6 [right to a fair trial] and 8 [right to private and family life] ECHR
• The scheme as operated does not allow individuals who are given a right to make representations to do so orally rather than solely in writing, contrary to Article 6 ECHR
• The scheme does not give individuals placed on a barred list the opportunity of a full merits review on appeal contrary to Article 6 ECHR
• The minimum barring period of ten years for a person aged 25 or over is disproportionate and in breach of Article 8 ECHR.

Ultimately, only the first ground succeeded, but this was enough to render the automatic barring mechanism in breach of the European Convention on Human Rights.

The cornerstone of the Claimants’ case was the decision of the House of Lords (now the Supreme Court) in R (Wright) v Secretary of State for Health & Another, in which it ruled that the procedure under the Care Standards Act 2000 of allowing the provisional listing of care workers onto a similar ‘barred from work’ list as to the present case without their being able to make representations ran contrary to article 6 and article 8 rights.

In that case, Baroness Hale said that although that scheme “appears premised on the assumption that permanently to ban a person from a wide variety of care positions does require a full merits hearing before an independent and impartial tribunal“, nonetheless "the process does not begin fairly, by offering the care worker an opportunity to answer the allegations made against her, before imposing upon her possibly irreparable damage to her employment or prospects of employment". [28]

The crucial point in Wright was that a care worker could be banned from working in their chosen profession for many months without having had the chance to make representations. Article 6 of the European Convention provides that when determining a person’s civil rights, “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law“. This was clearly not the outcome of the scheme under the Care Standards Act.

The claimants in the current case faced the difficulty that the newer version of the barring list only automatically listed individuals if they had been convicted or had admitted to an offence, which on the face of it sounds fair. The older scheme placed people on the list if they were merely suspected of an offence, which the House of Lords rightly considered to be too harsh, despite the importance of protecting children. Moreover, Wright dealt with a scheme which has now been completely replaced. Baroness Hale made clear that “[w]hile we have been informed of its existence, we have not heard argument on whether or not that scheme is compatible with the Convention rights as the question does not arise on these appeals”. As such, “Nothing which I have said in this opinion is intended to cast any light upon that question.“

However, whilst accepting the obvious differences between the cases, Mr Justice Wyn Williams had no problem finding the reasoning of the House of Lords of significant relevance. He said that the consequences “are as real for the persons placed on the barred lists under the 2006 Act as they were for the persons provisionally listed under the earlier scheme.” [59]

The Secretary of State argued that the potential consequences of the automatic barring system were justified by the seriousness of the relevant offences, and the potentially disastrous effects that allowing perpetrators to work with children would have. The judge rejected this reasoning for two main reasons.

First, there was a significant delay between the offences being reported and the claimants’ names appearing on the barred lists [63], which suggested the scheme was not as fast or effective as it may have been painted by the Secretary of State.

Second, and more importantly, the claimants, who were convicted of relatively minor offences, were precisely the category of people who would suffer most from the automatic barring measures: "… it would be wrong to proceed on the basis that the cases of the Second, Third and Fourth Claimants are in some way unrepresentative. I have no reason to doubt that they are typical examples of the type of cases referred to the Interested Party in respected of specified offences at the less serious end of the spectrum. Yet it seems to me that automatic barring is bound to have the greatest adverse effect upon those cautioned or convicted for offences at the less serious end of the scale, however efficiently their cases are considered. It is persons convicted or cautioned for comparatively minor specified offences that suffer most from automatic barring and have most to gain if they are permitted to make representations about whether they should be barred in advance of barring taking place." [64]

As to the need for a holding measure, the judge considered that the policy was simply too big a hammer to crack this particular nut: "The need for a holding measure in respect of a person convicted of a serious specified offence will be a rarity. Persons convicted of such serious offences will usually be sentenced to a term of imprisonment although I acknowledge the possibility that a minority of such persons might be made subject to some form of community punishment. This minority category, however, will be well known to the police and the probation services. The reality is that in most cases where an individual has been convicted of a serious specified offence the risk of harm to children or vulnerable adults thereafter will be non-existent (because the person is in prison) or small (because the person is subject to supervision within the community). It is difficult to see how the legitimate aim of safeguarding children and vulnerable adults from such persons would be compromised by permitting those persons to make representations about whether they should be included on barred lists before that step is taken."

The judge went on to reject the claimants’ three other grounds (see paras 79 to 128) and ultimately made a declaration that the Safeguarding Vulnerable Groups Act 2006 was incompatible with the European Convention on Human Rights. While technically the Secretary of State need not follow the decision, in practice it is rare for declarations such as this to be ignored. It is not clear yet whether the decision will be appealed.

Comment

The Soham murders were awful and shocking, and the public outrage which followed justifiably focussed on the fact that Ian Huntley, Jessica Chapman and Holly Wells’ killer, had worked as a caretaker at the girls’ school, and did so despite various authorities being aware of allegations against him of indecent assault and underage sex. He had even been charged by the police for rape.

The recommendations of the ensuing Bichard Inquiry were accepted and the law was changed to make it harder for people who had been convicted of relevant offences to work with children or vulnerable adults. The inquiry found a gap in the child protection system and the government duly plugged it.

But that was not, and should not have been, the end of the story. The European Convention on Human Rights is concerned not just with protecting the rights of individuals, but also with balancing their rights against those of others. Baroness Hale in Wright identified the great difficulty of achieving this balance in child protection cases: "How is a proper balance to be struck between the need to protect the vulnerable adults, who may be at risk from a care worker who has been referred to the Secretary of State, and the need to protect the care worker from suffering irreversible damage to her civil rights, as a result of allegations which later turn out to be unfounded, even frivolous or malicious, or at the very least blown up out of all proportion?"

A key principle of human rights law is that state policy should be proportionate, that is the means must be justified by the end sought. In this case, the judge found that although the end was of great importance, the means were draconian. Automatic barring from work without a right to make representations “is not a mere formal or technical breach. It is a denial of one of the fundamental elements of the right to a fair determination of a person’s civil rights, namely the right to be heard“.

This case highlights not only the importance of protecting basic fair trial rights, but also the tendency to impose draconian laws following emotive public scandals. That said, it is often difficult to know predict the collateral damage which will be caused by a policy before it is put into practice. Similarly, the Victoria Climbié Public Inquiry recommended the setting up of a national children’s database, which became ContactPoint. This cost £224m and, following campaigning by civil liberties groups who claimed it placed too much information about children at the hands of too many people, has now been unceremoniously switched off. A similar fate may one day befall Sarah’s Law, resulting from the death of Sarah Payne, which allows people to ask police if someone with regular access to their children has a record of child sex offences.

There are no easy answers to the dilemmas posed by setting child protection policy, and to that end the new government has commissioned an urgent review into the child protection system. It would do well to examine Mr Wyn Williams’ decision as well as that of the House of Lords in Wright, in order to gain an insight into the sensitive and finely posed balancing of rights which must form part of any new policies which aim to protect children.

Adam Wagner is a barrister at 1 Crown Office Row (www.1cor.com). This article first appeared on the chambers’ UK Human Rights Blog.

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17.Nov.2010

The Care Standards Tribunal has heavily criticised both the General Social Care Council and Southampton City Council over their conduct of a case in which a social worker lost her registration to practise.

Southampton sacked Beverley Peek over a series of matters which the council said “verged on” gross misconduct. But she was on a final warning because of a benefit fraud conviction in 2004 and was sacked without notice as having breached a ‘final warning’.

The council also said she should have disclosed that she was fined £175 for failing in 2009 to supply log book to the Driver and Vehicle Licensing Agency for a car she had owned for a few days before returning it to a garage.

Ms Peek appealed against the loss of her registration to the First Tier Tribunal, but the GSCC applied to have her case struck out on the grounds that it stood no reasonable prospect of success.

Finding in Ms Peek’s favour, tribunal judge Liz Goldthorpe attacked the GSCC’s stance.

“Any regulatory organisation that takes the view it is appropriate to apply routinely for this draconian measure in most appeals, regardless of the merits of the case, could be said to have a particularly high handed attitude to its functions,” she said.

“At the very least it seems to point to a rather blunt approach to the appeal process that smacks of an unnecessarily dismissive view.”

Applying for strike outs “quite unnecessarily wastes public resources in the form of judicial and administrative time and must cause perfectly legitimate applicants unnecessary distress, inconvenience and expense,’ the judge said.

GSCC director of regulatory operations Michael Andrews, said: “We do not have a policy to apply for a strike out in every case, and are committed to making registrants aware of their right to appeal decisions made by GSCC conduct panels.

“We believe that this right is essential to ensure a fair conduct process. However, we acknowledge the comments of the Care Standards Tribunal and are currently working to see if there are any lessons to be learnt.”

Southampton had said Ms Peek failed to record her caseload but the tribunal found she was the only qualified social worker in a team of 18 and “we gained the impression of a large and overwhelming caseload in a chaotic and unworkable setting where there were unclear procedures and the expectation of a quick throughput”.   

The tribunal also said it was inappropriate for a casework manager and supervisor, who was the subject of a grievance taken by Ms Peek within the previous 12 months, to be have been responsible for investigating a complaint against her.

It “attached no weight whatsoever” to the motoring this offence and was “at a loss to understand why [Southampton] should have placed such weight upon it in their decision-making process”.

The judgment concluded: “We have no hesitation in concluding that she  has satisfied us as to her suitability to be registered as a social worker.”

Southampton declined to comment.

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05.Nov.2010

Town hall chiefs have welcomed the government’s announcement that the Care Quality Commission will no longer conduct an annual assessment of councils’ adult care under the existing framework, and called for the removal of the equivalent assessments of children’s services conducted by Ofsted.

The announcement in relation to adult social care was made by Minister of State for Care Services Paul Burstow at the National Children and Adult Services Conference.

“The government’s new approach will see a shift towards more sector-led assessment, with councils holding greater responsibility for driving improvement,” the CQC said.

The watchdog insisted that it would “still have an important role to play, which will be defined over coming months. We will share our plans as they develop.”

Cllr David Parsons, chairman of the Local Government Group’s improvement board, said: “The scrapping of the annual assessment of adult care is a positive step towards the common-sense inspection approach which councils have been arguing for. The next logical step is to get rid of the equivalent assessments of children’s services carried out by Ofsted.”

He added: “Keeping an eye on how vital services are doing is important. Councils want to know they are doing the best they possibly can when it comes to offering help and support to older and more vulnerable residents, but collecting data and dealing with external inspection is not the best way of improving care.”

Parsons argued that at a time when public money is under huge pressure, councils “should not be forced to spend money ticking boxes when that funding could be spent instead on frontline services”.

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03.Nov.2010

Some councils appear to have erroneously charged for the provision of re-ablement services on the basis that they are not intermediate care services, the Department for Health has revealed.

In a circular to local authorities, the Department said: “Councils should review the arrangements they have in place and satisfy themselves that these comply with the legislation with a view to repaying any amounts that may have been wrongly charged (and received).”

The circular said the majority of councils do not collect charges for the first six weeks and only raise charges where this extends beyond six weeks in accordance with s. 15 of the Community Care (Delayed Discharges etc.) Act 2003 and the relevant regulations.

The Department for Health said regulation 4(2) of the 2003 regulations required intermediate care to be provided free of charge for the first six weeks.

It added: “Accordingly, re-ablement services are likely to fall within the definition of intermediate care services and should not be charged for the first six weeks. Whether or not the re-ablement services provided to a person do in fact fall within the definition of intermediate services will need to be examined on a case by case basis.

“It is to be noted that ‘community equipment (aids and minor adaptations) service’ (within the meaning of the 2003 Regulations), sometimes part of a package of re-ablement, is also to be provided free of charge where the cost of making the adaptation is £1000 or less whether as part of a re-ablement package or stand alone.”

The circular also contained a copy of a letter from NHS Deputy Chief Executive David Flory, called on primary care trusts to develop local plans in conjunction with local authorities and FT/NHS Trusts and community health services on how best to spend the additional £70m announced for post-discharge support in 2010/11.

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29.Oct.2010

The Court of Appeal has upheld a decision that the Royal Borough of Kensington and Chelsea failed to give adequate reasons when it calculated a disabled woman's personal budget.

In Savva, R (on the application of) v Royal Borough of Kensington and Chelsea [2010] EWCA Civ 1209, Rafaela Savva appealed against a High Court judgement in March 2010 rejecting her assertion that the way the council calculated her personal budget of £170.45 per week was unlawful.

Kensington and Chelsea meanwhile cross-appealed against the decision of Pearl J that it had failed to give adequate reasons for setting the budget at that level.

The local authority pointed to the fact that there are some 5,000 recipients of personal budgets for which it is responsible, and argued that it would be unduly onerous for it to have to provide reasons behind every decision.

Both appeals were rejected. Giving the lead judgement, Lord Justice Kay ruled that the way in which the council used its Resource Allocation System was proper, and that it was entitled to use methodology recommended by the Department of Health.

But the judge added: “When a local authority converts an established right – the provision of services to meet an assessed eligible need – into a sum of money, the recipient is entitled to be told how the sum has been calculated.”

Lord Justice Kay said he accepted the burden would not be insignificant “but it is what fairness requires”.

He added: “If a local authority were entitled to notify a bald figure without any explanation, the recipient would have no means of satisfying himself of herself that it was properly calculated.”

The judge argued that the provision of adequate reasons could be achieved with reasonable brevity. “In the present case, I would consider it adequate to list the required services and assumed timings (as was actually done in the FACE assessment), together with the assumed hourly cost”.

Lord Justice Kay said: “I appreciate that some recipients require more complicated arrangements which would call for more expansive reasoning but if that is what fairness requires, it must be done.”

The judge suggested that counsel for Mrs Savva’s suggestion – that the provision of adequate reasons would extend to every decision having to include an explanation of the council’s RAS – “goes too far”.

On whether the duty to provide reasons could be satisfied by notice in the decision letter that reasons would be provided on request, which would be attractive to councils if few such requests were made, Lord Justice Kay said there was a dearth of authority on the point and “such as there is seems equivocal”.

However, he added: “It seems to me to be a matter of common sense that, in a case such as this, if a recipient is made a timely offer of the provision of reasons on request, the court would reject an application for judicial review based on a failure to provide reasons where no such request had been made.”

The judge acknowledged that the cross-appeal had become academic, in that after the High Court decision, Kensington and Chelsea had since revisited the matter and produced a new decision, supported by reasons.

Ed Archer