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Can The Professional Deputy Standards Stand Up To Social Care Cuts?

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Cate Searle, Director & Head of Community Care Law, takes a look at the OPG’s standards guidance for Professional Deputies one year on.

It’s a year since the Office of the Public Guardian (OPG) introduced standards for professional and public authority Deputies. As the OPG hasn’t released a formal review or annual report, I thought it would be useful to find out what private client solicitors and Deputies say about how these standards are working out in practice. Last July, the OPG said the aim of the standards was to make it easier and clearer for Deputies to manage their clients’ affairs. The OPG Checklist is certainly clear. Feedback from Professional Deputies is that they welcome the opportunity to demonstrate that they not only satisfy the standards for their clients, but that they exceed them.

However, the OPG Professional Deputy Standards Guidance came hot on the heels of the implementation of the Care Act 2014 in April 2015. The “Age of Austerity” has seen ongoing cuts to those very sources of state support that Deputies must demonstrate they have explored for their vulnerable clients. In addition, the Care Act has replaced all the community care legislation with which vulnerable and elderly client solicitors were so familiar – even good old CRAG has gone. This means that we are all fighting our clients’ cases on the basis of new law and guidance but with no precedent case law to rely upon.

Have cuts and more stringent resource allocation left many of society’s most vulnerable adults and children without access to adequate health and social care support and services? If so, how are we as community care law, private client and Professional Deputy or Attorney lawyers tackling this issue for our clients?

Looking at the recurring themes in our community care law casework experience over the past year, it certainly appears much more difficult for our lay-clients to retain adequate support services and funding for themselves or relatives. Professional Deputies tell us that their most severely disabled clients have either lost a long standing NHS Continuing Healthcare award, or been screened out of CHC eligibility, even where specialised 2 to 1 care was required 24/7. Other Deputies describe cases where a middle aged or elderly couple, one or both with care and support needs, are told that the more disabled of the two must move into residential care, where their needs can be met more cheaply, despite their enduring wish to live and / or be cared for together. We have also seen an increase in requests for help with difficult and sad cases where families are at breaking point having cared for a severely disabled child who has never been assessed for any health or social care support.

Despite the promises of the Care Act, none of my team or the private client solicitors we meet at our training seminars have met a single carer who has benefited from their new legal rights to assessment and services under the Care Act 2014. Very few adults with care and support needs feel that appropriate importance has been attached to the statutory well-being principle in their own case.

Are there any silver clouds on the horizon? Possibly. In May 2016 the Government earmarked £433 million for Care Act duties in 2016-17, although, according to the Local Government Association that isn’t enough to improve support for our elderly and vulnerable population. In our experience, skilled, specialist challenges to unfavourable Health and Social Care funding decisions do have a positive impact, perhaps because local resolution or compromise is more appealing to the public body than potentially precedent-setting litigation.

There has been no precedent Care Act ruling so far but we all eagerly await the outcome of the High Court well-being challenge against Oxfordshire County Council. Some Professional Deputy lawyers attending our training seminars report great success with well-reasoned requests for a public body to exercise its discretion under the Care & Support Statutory Guidance. We continue to assist families and Deputies in successfully challenging the withdrawal of NHS CHC funding.

Although the austerity cuts make our clients’ lives and our roles harder, the OPG standards provide us with a framework to make a difference and show that we make a difference for our clients. I look forward to reading what the OPG has to say about the first year.

About the author

Cate Searle

cate-searle

Based primarily in our Brighton office, I lead the community care law team. As one of a very small number of solicitors specialising in NHS continuing healthcare law, I have built an expanding practice in this area which has given our firm a nationwide profile far and above its relative size. I also provide expert opinion on community care law issues for the specialist press, speak as a guest lecturer and train other legal professionals. In 2011 I was asked by the Law Commission to give my views as part of the consultation on proposals for inclusion in the Adult Health & Social Care Bill.

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