Details

03.Feb.2010

A mental health charity has been fined £30,000 and ordered to pay £20,000 in costs for failing to protect an employee who was stabbed to death by a paranoid schizophrenic.

Ashleigh Ewing, a 22-year-old support worker at Mental Health Matters, was attacked by Ronald Dixon in his home in 2006. Dixon admitted manslaughter by reason of diminished responsibility.

Mental Health Matters pleaded guilty in Newcastle Crown Court to a breach of s. 2(1) of the Health and Safety Act 1974 for failing to do all that was reasonably practicable to ensure her safety.

The charity had been aware of Dixon’s history of violence, his refusal to take his medication and that his condition was worsening. Ewing was nevertheless sent to visit him alone at his house.

The prosecution accepted that her death was not caused by Mental Health Matters, but said further risk assessments and training should have been carried out to protect her. Prosecutor Kevin Donnelly said: “Mental Health Matters failed to identify and respond to the increasing risks to which Ashleigh Ewing was exposed in the course of employment.”

For the defence, James Maxwell-Scott said the charity “unreservedly wishes to apologise to her family and the court for the failing which it admits. Mental Health Matters is deeply sorry that this tragedy occurred and its thoughts and sympathies are first and foremost with the family.”

Ewing’s family said in a statement: “It was tragic that she had to pay with her life so that lessons could be learned which might save lives in the future.”

The Health & Safety Executive brought the prosecution. Its head of operations, Pam Waldron, said: “This is an unusual case which shows the need for employers to assess the risks to employees who visit individuals in their homes and for arrangements to be reviewed when changes occur. We believe that if Mental Health Matters had carried out a risk assessment, it would have resulted in the visiting arrangements being reviewed.”

The HSE said working alone is not in itself against the law, and it will often be safe to do so. However, it added, the law “requires employers and others to think about and deal with any health and safety risks before people should be allowed to work alone”.

For more information, click here.

Details

25.Jan.2010

Barnet Council this week applied for permission to appeal a recent High Court decision that quashed its plans to end a residential warden’s service in sheltered accommodation.

Under Barnet’s proposals, the residential service tied to each sheltered housing scheme would be replaced by a new ’floating’ service covering the whole borough.

In December 2009, Judge Milwyn Jarman QC threw out Barnet’s plans, and also those of Portsmouth City Council to introduce similar changes.

The judge said members of Barnet’s cabinet had not fully considered its duties under the Disability Discrimination Act, although he did acknowledge that the council had consulted widely and changed its policy following that consultation.

Explaining the decision to seek permission to appeal, Lynne Hillan, Leader of Barnet Council, said: “We are obviously respectful of the judge’s comments but the judgment has such a potentially wide-ranging impact on the way councils do business that we have no alternative but to keep the option of an appeal open.”

She repeated the council’s concern – expressed immediately after the ruling – that the judgment suggested “a council has to demonstrate that every member, not just officers, involved in the decision making gave full and stated consideration to all relevant legislation and guidance. This raises profound issues for the working of local government.”

Councillor Hillan added: “In developing our service we will, as always, consider the needs of disabled people in the borough, but we do need to make sure we are making services open to all disabled people in the borough, not only those in one type of accommodation.”

The original High Court ruling was reported in some quarters as being a major blow to Barnet’s ‘Easycouncil’ model, but as Peter Keith-Lucas of Bevan Brittan recently pointed out in Local Government Lawyer, the judgement “does not support the rhetoric”.

Details

20.Jan.2010

The Law Commission has put reform of community care law high on its agenda. Tim Spencer-Lane outlines what is involved.

The legal framework for adult social care is widely recognised as inadequate, incomprehensible and outdated. It remains a confusing patchwork of often-conflicting statutes enacted over a period of 60 years. There is no single, modern statute to which service users, carers and social care staff can look to understand whether services can or should be provided, and, if so, what kinds of services.

In 2008, the Law Commission announced a review of adult social care law as part of its Tenth Law Reform Programme. This presents a timely and important opportunity to undertake a thorough review of the law under which residential care, community care, adult protection and support for carers is provided. The ultimate aim is to provide a coherent legal structure, preferably in the form of a single statute, for these services.

What is the Law Commission?

The Law Commission is a statutory body created in 1965 for the purpose of reforming the law to ensure that it is as simple, accessible, fair, modern and cost-effective as possible.

The Commission has a hugely successful track record in the field of law reform. Over two thirds of our law reform reports have been implemented in whole or in part. A notable recent example is the Law Commission’s report on Mental Incapacity, which was implemented in the Mental Capacity Act 2005.

Why adult social care?

The piecemeal and ad hoc development of the law has prevented the development of coherent and consistent key values and principles underpinning adult social care. Starting with the post-war Labour Government, adult social care legislation has reflected the particular philosophical, political and socio-economic concern of the government of the day. For example, the welfare state ideology that underpins the National Assistance Act 1948 sits uneasily alongside the managerial and consumerist principles of the NHS and Community Care Act 1990. Given the amount of legislation in this area, this makes for mixed messages about the principles and values underpinning the provision of services.

The language and concepts used in some of the older pieces of legislation are anachronistic, discriminatory and at odds with more modern definitions and understandings. For example, the core definition of disability in community care law, which is the starting point for determining whether community care services are provided, is contained in the National Assistance Act 1948. That definition refers to people as being “dumb”, “crippled”, “handicapped” and congenitally deformed, which is not only out of date and offensive but also at odds with modern definitions of disability, such as that contained in the Disability Discrimination Act 1995.

A further problem is that the historical practice of introducing new Acts which augment and work in parallel with previous Acts – rather than consolidating the Acts and repealing the earlier version – often means there are multiple statutes which over-lap and sometimes contradict one another.

Carer’s assessments epitomise this problem. There are four different statutes that regulate the circumstances in which a carer’s assessment must be undertaken and the type of assessment that must be carried out. Each of these Acts builds on the earlier legislation but does not replace or repeal it, and each differs subtly from each other.

While negotiating this amount of law can be difficult in itself, the problem is exacerbated by the range of “soft law” that also needs to be considered, including local authority circulars and guidance issued by the Department of Health and other bodies. Some of this is binding, some of it isn’t, and much of it is hard to find.

Trying to navigate a way through this legal landscape can prove a daunting prospect not only for service users and clients, but also for social workers, the courts and lawyers. There is no single statute outlining whether services can or should be provided and there are no underlining principles to guide interpretation and understanding. Negotiating such a landscape takes time, costs money and leads to less certain outcomes.

How long will it take?

This is a major project and has been split into three phases. The first phase was the publication of a scoping report in November 2008, which sets out our detailed agenda for reform.

The second stage is the substantive project, which will involve formal consultation with acknowledged experts and interested parties. A consultation paper will be published at the end of February 2010, followed by a formal public consultation lasting four months.

The final stage will involve the production of a Bill, either by the Law Commission or the Government.

Setting the reform agenda

We believe that the adult social care project gives us a chance to step back from short-term political concerns. To some extent, it gives us a blank sheet of paper to look at the legal structure of adult social care.

The areas of law that will be covered will include the introduction of statutory principles, the simplification of the community care assessment process and how the law regulates the provision of services. We will also be reviewing the ordinary residency rules and the legal framework for safeguarding adults from neglect and abuse. The review will also consider whether a community care tribunal is needed to provide a merits-based review of service decisions.

The Law Commission believes that this project could achieve real benefits for service users, carers, social workers and others who live under and use the law. Coming at a time when the Government has launched a review on the future of care and support, it should also give a much-needed boost to the profile of adult social care.

Tim Spencer-Lane is a lawyer in the Public Law Team at the Law Commission.

For further information please visit here.

If you have any comments on the inquiry, please email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Details

12.Jan.2010

Children as young as nine have been the subject of forced marriage protection orders (FMPOs), research by The Times has revealed.

Orders were obtained for 86 females during the twelve months since the legislation was introduced, twice the expected number. Almost half (39) were children.

The Times’ research comes just weeks after the publication of a Ministry of Justice report on the workings of the new legislation.

The MoJ review found that, in contrast to the police, some local authorities were reluctant to use the powers the Forced Marriages Act of 2007 gives them.

“There is [also] a lack of clarity about the boundaries between care proceedings under the Children Act, Court of Protection cases and forced marriage cases,” it said, adding that the Act did not sit well with social services working methods.

The review also found there was:

•    a low level of knowledge of the legislation
•    a continuing need for publicity within communities and better interagency cooperation
•    a “surprising” geographical distribution, with just three of the designated courts responsible for 51 out of the 64 orders then recorded
•    the process is thought to be straightforward to use, with judges and court staff becoming familiar with the process and developing standard templates.

Common prohibitive orders include forbidding the respondent/s from removing the person (or the person to be protected) from the jurisdiction, applying for a passport/travel document for them or entering into any arrangements in relation to the engagement or marriage of that person. The respondent/s can also be required to surrender the victim’s passport, return them to the jurisdiction of England and Wales or allow them to be interviewed by a member of the British High Commission.

On 1 November 2009, local authorities were designated a “relevant third party”, allowing them to apply for an FMPO on behalf of the victim without first requiring leave of the court.

Details

06.Jan.2010

A leading charity has called on the main political parties to address failings in social care as concerns grow that budgetary pressures will see service standards fall.

A survey of nearly 1,500 carers and people with dementia by Alzheimer’s Society revealed significant concerns about the standards of care being provided. These included:

• Only 23% said all their care needs were met;
• Less than a quarter (24%) felt staff providing care had the skills and understanding necessary; and
• Only 12% of carers always had access to short breaks.

Neil Hunt, chief executive of the Alzheimer’s Society, said: “It is unacceptable for a care service to be failing such a vulnerable group to such a staggering degree. There are currently 700,000 people in the UK living with dementia. This number will increase to more than a million within 20 years. The vast majority of these people will need some level of social care so it is vital we have a robust system in place that meets their needs.”

Hunt said he was reassured by the fact that political parties were talking about adult social care, but insisted that there needed to be more detail.

“MPs have told us this is an important issue but we now need to hear guarantees on how each of the parties would provide a fair, transparent and high quality social care system,” he added. “This must explain how they will develop a social care system that is fit for tomorrow but also how it addresses failings today.”

Alzheimer’s Society set out three ‘demands’ for the parties’ manifestos: details of how they will develop a quality care service; a guarantee that attendance allowance will not be scrapped in favour of moving the money into care services; and a higher priority for dementia research.

The charity’s report comes a month after the chief executive of the Care Quality Commission, Cynthia Bower, said she was “deeply concerned” about the possible impact of lower spending on social care, and the prospect of councils raising eligibility criteria as public spending is squeezed.

In its first report since being set up, the CQC also called on local authorities to drive up care standards by purchasing from providers more effectively. It will introduce a new registration system for adult social care providers, NHS providers and independent healthcare. It will also have tougher enforcement powers.

Details

21.Dec.2009

The Department for Work and Pensions (DWP) has set out measures that could be used to limit the rents that housing benefit will pay so that people are not placed in housing “other working households could not afford.”

The DWP's White Paper has been released a month after it was revealed a family receiving benefits were living in a £1.8million property off Edgeware Road, at a cost to the taxpayer of £1,600 a week.

The reforms also seek remove the payment of £15 a week for families if they rent a home below the LHA’s maximum for their area.

DWP Secretary Yvette Cooper, said scrapping high rent payments will encourage people to move off of benefits and get back into work. “We will also guarantee that people will be better off in a job than on benefits," Cooper said.

According to the DWP, the new scheme incentivises work by offering a Transition into Work payment that maintains the benefit at the out of work rate for a set period of time, making the transition smoother and simpler.

A spokesperson from the DWP said although it is too early to evaluate the impact of the announcement on local authorities, all interest groups including councils are encouraged to respond to the Paper.

For more information please visit: www.dwp.gov.uk/buildingbritainsrecovery