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Lawyer's statement

“The law is one tool for accountability. It sets the territory for professional practice, which must be lawful. It provides channels through which accounts must be given and redress can be sought. It establishes a framework for promoting human rights and achieving social justice. Where an employer sanctions unlawful or unethical practice, the legal rules now clearly uphold the practitioner’s code of practice as the primary reference point.”

Legal point

Effective consultation and involvement in assessment and the construction of care packages, requires the provision of information. Section 9, Disabled Persons Act 1986 broadens the duty in the Chronically Sick and Disabled Persons Act 1970, requiring that information is available in appropriate formats about all community care services provided by the local authority and by other organisations. Policy guidance reiterates that for users and carers to be involved in assessment, they must be provided with information about services and eligibility criteria. Practice guidance further requires that this information is straightforward, relevant, accessible and accurate, to enable users and carers to make informed choices.

A similar framework exists in respect of support for children and families. The Children Act 1989 requires every local authority to publish information about services for children in need and to ensure that those who might benefit from services receive relevant information (Schedule 2 (1)).

Evelyn's statement

“I have many worries and concerns right now – for my children, my parents and myself. I do not know which way to turn. I am very anxious. I have never seen a social worker before but I have heard what other people say about them. We have always managed as a family before.

I do not know what I am entitled to. I do not know what my parents have a right to, although I have some idea about the services that the council can provide. What can you do for us?

I want you to tell me about my rights and I hope you will fight for me. I don’t mind if you need to check out what I might be entitled to but I would prefer you to be honest rather than to pretend to know something you don’t.

Our family situation is complicated. I am unwell. This affects what I can do for my children and for my parents. My ill-health affects them too. How will you decide what help to give us?”

Legal point

The GSCC Code of Practice, which has a statutory basis in the Care Standards Act 2000, addresses some of Evelyn’s concerns. Social workers must treat each person as an individual, respecting their privacy, dignity and the personal information they provide. Social workers must be honest and communicate openly and accurately. They must respect confidential information and notify their employer where resource or other difficulties inhibit the delivery of safe care.

Guidance issued alongside the Carers and Disabled Children Act 2000 requires that information for carers is comprehensive, accurate, appropriate and accessible.

Effective consultation and involvement requires the provision of information. Section 9, Disabled Persons Act 1986, requires that information is available in appropriate formats about all community care services provided by the local authority and by other organisations. Guidance requires that service users and carers are provided with information about services and eligibility criteria, which is straightforward, relevant, accessible and accurate.

Sophie & Celeste's statement

“We are very worried about our mother and grandparents. We love them very much. We do what we can but it can be very tiring, especially after school. You won’t tell them that we said so, will you?

The teachers have said that we are young carers but we do not understand what this means. Do you know?"

legal point

Young carers may be children in need (Children Act 1989, section 17). You must provide information about the services and supports available in a manner that is accessible and comprehensive.

The Children Act 2004 requires that a local authority ascertains and considers the wishes and feelings of a child when considering what services, if any, to provide under section 17, Children Act 1989.

The degree to which you respect the confidentiality of Sophie and Celeste will turn, partly, on the degree to which you assess that they are of sufficient age and understanding to understand their situation and information you provide that is relevant to it, and can evaluate that information.

Assessment

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Lawyer's statement

“This is a complex case. Evelyn is both an adult needing services and a parent who may require assistance in order to exercise her parental responsibility fully. She is also a carer who has been providing a substantial amount of care on a regular basis.

Evelyn’ parents are also adults who appear to require services and carers. Sophie and Celeste are quite possibly children in need.

Proper assessment of need is the cornerstone of high quality care provision and should be undertaken according to assessment frameworks. These require that assessment of need should be aimed at meeting an individual’s wishes and actively involve service users whose views should be taken into account. All those areas where an individual may have needs should be considered, where need is defined as requirements to enable people to achieve, maintain or restore an acceptable level of independence and quality of life.

Local authorities may set bands of eligibility but whether these should be applied must be considered in each and every application for assistance and allocation of problems to particular bands must be reasonable.

Disabled parents should not become victims of demarcation disputes between adult’s and children’s services, which can result in delays in assessment and service provision. Different services must have agreements in place for how they will work together in such cases. Policy guidance has clarified that assessment includes the ability to manage daily routines and involvement in family and wider community. Disabled parents may require help with their responsibilities, which should be provided initially through community care law. Provision under the Children Act 1989 may be implemented if concerns about Sophie and Celeste remain.”

Legal point

Assessment is a process that must be characterised by recognition of individuality. Need should be assessed on an individual basis, to which responses should also be individualised rather than stereotyped.

Case law has established that referrals must be investigated thoroughly and with proper care, with professionals presenting any concerns they hold to service users and carers (Re E and Others (Minors) (Care Proceedings: social work practice) [2000] The Times, 10 May.

Social workers must distinguish between absolute and discretionary duties to assess, the former applying to disabled people.

Policy and practice guidance provides substantial detail on what to include in assessment of need when working with disabled parents, other disabled people, and adults in need of care and services. The process of assessment must be able to demonstrate how this guidance has been followed and applied.

Evelyn's parents statement

“We have been used to doing things for ourselves and we do not like relying on others. We want to live in our own home but we do know that we must have some help to do so. However, it is very difficult to know where to get help. What can you do for us?

We have been used to looking after Sophie and Celeste when this helps our daughter to continue working. We want to continue to do this but need help. What can you do here?”

Legal point

Evelyn’s parents are both service users and carers, which means that you will have to assess them under different pieces of legislation.

The GSCC Code of Practice requires you to promote their independence while protecting them from harm and assisting them to understand and exercise their right to family life. This includes recognising that they have the right to take risks and helping them to identify and manage potential and actual risks to themselves and others.

The key to service provision is assessment. The NHS and Community Care Act 1990 provides for assessment where the local authority is satisfied that a person might be in need of community care services. However, this duty is discretionary, with the local authority deciding whether an assessment is necessary and appropriate. The duty to assess is not dependent on the physical availability of services. The duty to assess arises where the local authority has a legal power to provide community care to an individual (R v Berkshire CC, ex parte P [1998] 1 CCLR 141; R v Bristol CC, ex parte Penfold [1998] 1 CCLR 117). Assessment as a process must be needs-led rather than resources or services-led.

Where the person is disabled, within the meaning of section 42, NHS and Community Care Act 1990 and section 29, National Assistance Act 1948, a concurrent assessment under the provisions of the Disabled Persons Act 1986 (section 4) must be done. Where disabled people themselves request an assessment, directly or through their primary carer, the local authority is under an absolute duty to carry out an assessment which must, additionally, consider the willingness and ability of the carer to care (s8, Disabled Persons Act 1986). Moreover, this assessment must, according to policy (DH, 1990) and practice guidance (DH, 1991a), be comprehensive. The Disabled Persons Act 1986 therefore represents a stronger mandate for users and carers, being an absolute duty concerning assessment rather than leaving the local authority to decide whether a discretionary duty to assess is triggered.

Evelyn's statement

“My situation is complex. I need help if I am to continue looking after my parents. My parents are very independent and will not welcome social workers becoming involved. Can you help me to continue to look after them?

I can manage looking after my children but this would be easier if everything I need is on the ground floor of my home. You won’t think I cannot look after my children, will you? Can you help with this? When I have asked for help previously for myself and to look after my parents and children, I have been passed between departments. Everyone says that someone else is responsible for dealing with my situation.

Managers where I work are not very understanding of my situation and keep suggesting that I should leave my job because I can no longer cope with its demands. Is there anything you can do about this?”

Legal Point

The GSCC Code of Practice for social workers requires practitioners to promote the interests of service users and carers, and to promote their independence while protecting them from harm and assisting them to understand and exercise their rights. This includes recognising that service users have the right to take risks and helping them to identify and manage potential and actual risks to themselves and others. Assumptions about parenting should not be made on grounds of parental disability.

You can draw Evelyn’s attention to the Disability Discrimination Act 1995 and Disability Discrimination Act 2005, outlining the responsibilities on employers to make reasonable adjustments at work and to take positive action to counteract discrimination.

Evelyn is a carer but also a service user in her own right and a parent. Her situation demonstrates that families do not come in boxes that mirror the ways councils divide their functions and duties. A local authority has a corporate responsibility. Organisational and financial divisions are for administrative convenience and should not be used to justify withholding provision from Evelyn just because the resources have been allocated to particular budgets.

Sopie & Celeste

“Most teachers at school do not listen to us or talk with us. Will you be any different?

We have to help our mother get ready for work before we go to school and when we come home we help her with whatever she needs. We do some shopping and housework. We do get tired.”

Legal point

The Human Rights Act 1998 has made an important contribution to rights-based provision, and facilitates challenges to unjustifiably interventionist or non-participatory professional decisions. Article 8 (ECHR) has been used to give significant recognition to children’s participatory rights.

The Children Act 2004 requires that a local authority ascertains and considers the wishes and feelings of a child when considering what services, if any, to provide under section 17, Children Act 1989. What should be covered is outlined in the assessment framework.

Deciding & giving reasons

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Lawyer's statement

In my experience managers are sometimes more concerned about achieving government targets than acting in line with the legal rules. Resource constraints can have a profound effect on decisions that practitioners recommend and managers take.

Implementing the law is difficult. The challenge for social workers is that the law allows for some discretion. There is room for interpretation. However, using discretion must be reasonable, be based on information, and be the outcome of following guidance on what to include in an assessment. Using a clear framework helps social workers present assessments and action plans authoritatively and to be clear why they have reached particular conclusions.”

Legal point

The principles for the use of legal powers and duties, and for the exercise of authority, must be clear. These principles should accord with professional ethics and clearly draw on a relevant knowledge base.

It is unlawful to ignore elements of guidance when reaching a decision about what services to provide. Guidance does not prioritise objectives for community care. Needs-led assessment, service user choice, maintaining people’s independence, and working within available resources, are juxtaposed without any recognition of apparent conflict. However, a lawful intervention is one in which resources are not the dominant consideration. Any intervention must have a reasonable chance of meeting the needs identified in order to be lawful.

The process of decision-making should incorporate:

  1. time for people possibly affected by the use of authority to prepare and present their case
  2. time for consultation between those involved based on a full disclosure of concerns and issues
  3. reasons for the decision, drawing on professional values and knowledge
  4. time for contesting the decision-making grounds
  5. representation by advocates throughout
  6. independence from the original decision-making process of those considering complaints.

Evelyn's parents statement

“We want social workers who will act, advocate strongly for us, and work in a thoughtful, reflective way. We expect you to know what you are doing, to be honest when you need to ask someone else for guidance, but also to share your understanding and thoughts of what we are trying to achieve in our situation.

The law gives you the general rules and entitlements. The art of a good social worker is to apply the rules to individuals who are unique. We want to feel a sense of fairness in how you treat us. We want to be treated as individuals, not in a standard way, when you apply the law and procedures.

You may have a demanding workload, with lots of people to see. We realise that every case is different but you need to get the law right.”

Legal point

The GSCC Code of Practice requires that social workers strive to establish and maintain people’s trust and confidence.

Evelyn's statement

“I will listen carefully to what you say you have decided to do for us. It is important for me to know what has made you decide. I want you to be straight with me. You will need to put it in writing for me so that I can remember what you have said.

I know that although the law is the same, different councils have different policies. I sometimes think they move the goal posts when it suits them and make up their own rules. A key question for me, therefore, is how you interpret the law and what rules you are operating. I hope that you will question them also, because I will. When you make decisions about what help to give me, tell me why, because I might want to challenge your reasons.”

Legal point

Public organisations have a positive duty to promote Articles 6 (the right to a fair hearing) and 8 (the right to respect for private and family life) of the European Convention. This can be done in part by giving reasons for decisions, opening up practice to challenge, and by demonstrating how intervention will promote Evelyn’s family life and that of her children and parents.

Sophie & Celeste's statement

“Please do not use words that we do not understand. We want to understand how you will help our family. What can our grandparents and mother expect from you? What will this mean for us? We do not have much money as a family so what will your help cost us? Do not ignore us – we are part of this family too.”

Legal point

The Children Act 1989 requires that the voices of young people are heard and that children of sufficient age and understanding are fully involved in decision-making about their lives.

The responsibilities laid on social workers by the GSCC Code of Practice apply equally to young people as well as to adults.

The Carers (Recognition and Services) Act 1995 applies to young people so that the guidance on involvement and consultation applies to Sophie and Celeste.

Decisions should be made by managers on the basis of knowledge of the file and in consultation with professionals who know the family.

Partnership

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Lawyer's statement

“Ultimately policy guidance allows need to be defined by the local authority rather than the service user or carer but social workers must take individual felt and expressed need and choice into account in assessment and care planning.

Effective partnership requires the provision of information, about which you will have read earlier. Key principles underpin partnership in assessment. First is the right to citizenship, involving equality of opportunity and the right to family life. Second is respect for independence, incorporating the right to self-determination and risk-taking. Third is the minimum intervention required to achieve agreed objectives, what the Human Rights Act and European Convention recognise as ‘proportionality’. Finally, there is the central importance of dignity and fulfilment.”

Legal point

Fair Access to Care Services policy guidance asserts that service users, whether or not disabled, should be active partners in assessment. Guidance and case law in relation to children in need and child protection have also established that parents must be involved in the decision-making process and must be enabled to respond to concerns and allegations. Expressions of choice must be considered in line with guidance. Similarly, all areas of need identified in guidance must be explored – for children in need and their families this will include the individual child, their immediate carers and the wider environment.

Evelyn's parents statement

“We have found out for ourselves and learned a lot about what social workers should do for people in our position. You need to know that we might know as much as you do. We may have different priorities from each other and from you. Involve us as individuals as well as a couple and do not just put us in boxes by age or role.

Social workers have a very difficult job. We realise this but you can do it with respect and working alongside us. There is a difference between what social workers have to do and how they do it. We know the difference between good and bad practice. We may disagree with what you conclude but we can cope with disagreement if you approach us with honesty and openness.”

Legal point

The GSCC Code of Practice requires social workers to support the rights of service users and carers to control their own lives and to make informed choices about the services they receive.

Evelyn’s parents may both be in need of community care services as well as carers of each other and of Evelyn and her children. A variety of assessments under different Acts of Parliament will be necessary. In community care, moreover, the voices and choices of service users and carers should be heard and heeded.

Evelyn's statement

“I would like us to talk about what needs to be done to help me and my family. I expect you to take notice of my views. I do not expect you always to agree with me, and I want you to be honest about what you think and why, but above all I expect you to listen to me about how we might set out to solve the problems we have.

It takes time for me to build up trust and to open out. I expect you to allow me that time. I also want you to stick around. I do not want to have to start all over again next time with a different social worker.

Getting involved with social workers was a difficult step to take. I wondered what you would think of me having to ask for help. I hope you will recognise and be prepared to talk about how emotional, how difficult this step feels. Recognise our fears and talk to us about what we feel.”

Legal point

The GSCC Code of Practice requires social workers to respect and where appropriate promote an individual’s wishes and views.

Local authorities must work in partnership with parents to promote the upbringing of children by their families so far as this is consistent with their welfare. They must do so using the least coercive measures possible and in away appropriate to the child’s racial origin, culture and linguistic background.

The principles or core elements of partnership when working with children in need and children in need of protection have been listed in policy guidance and are very much in line with social work values.

When undertaking community care assessments, practice must take account of the carer’s views (section 8, Disabled Persons Act 1986).

Sophie & Celeste's statement

“Talk with us, listen to us, do not ignore us just because we are children. We have our opinions too. We look after our mother and grandparents and we have our own ideas about what you can do to help us.”

Legal point

Children have a right to have their views heard in decisions about their lives. The Children Act 2004 requires that local authorities must ascertain and consider the wishes and feelings of young people when addressing what services to provide under section 17, Children Act 1989.

The Children Act 1989 is permeated with the requirement on social workers and the courts to ascertain and consider the wishes and feelings of children and young people.

Numerous inquiries highlight that children have been ignored and that the failure to listen to them has been a contributory factor in child care failures.

Recording & Review

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Lawyer's statement

“Recording has taken on added significance because Article 8 of the European Convention includes the idea that the right to family life can only be exercised effectively where people have access to records that enable them to understand what took place and why, when professionals were intervening in their lives.

From records it must be possible to determine whether decisions have been based on individual needs assessments, whether guidance has been followed, and what factors and evidence were considered when deciding what needs should be addressed.

Review has taken on added significance since the Human Rights Act 1998. Articles 6 and 8 have been used successfully to establish the accountability of local authorities for reviewing cases according to statutory timetables and when service users have drawn attention to failures in the standard of care being provided.”

Legal point

Effective intervention requires files to have an adequate chronology of significant events. It must be possible to see serious problems when reading a file (Re E and Others (Minors) (Care Proceedings: social work practice) [2000] The Times, 10 May).

The GSCC Code of Practice specifies that social workers are accountable for the quality of their work. This includes the obligation to maintain clear and accurate records.

Evelyn's statement

“What will you say about me and my family? Who will you show your notes to and can I see them? I know that you promised me a written copy of the assessment and the care plan. What should this contain?

What will you do if my circumstances change, especially as I have life-limiting disability?”

Legal point

All professionals should keep clear, accurate, full and balanced notes of all relevant meetings and conversations with parents and other people involved in a case (Re C (Care Proceedings: Disclosure of Local Authority’s Decision-Making Process) [2002] 2 FCR 673). Access to files is covered by the Data Protection Act 1998.

Written outcomes of an assessment should be provided, with a care plan where one follows. This should include a statement of needs and an analysis of why care or intervention to a particular level is required. Objectives and the services to be provided should be clearly stated, together with details of other options considered and any differences of opinion expressed. If there are unmet needs, these should be stated with accompanying reasons. Finally, the date for the first review should be given.

Care needs should be reviewed regularly to establish if the objectives specified in the care plan are being or have been met. Where necessary, services can be increased, revised or withdrawn. Review is a process designed to ensure that services remain appropriate. Any changes to provision must not be solely resource driven and must be reasonable in the sense of being likely to meet the needs identified and following a detailed analysis of options.

Making Complaints & Representation

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Lawyer's statement

“A challenge is possible to assessment and service provision where that assessment and any care plan is irrational, perverse or built around resources rather than need and agreed objectives. Any care plan to be lawful must have a reasonable chance of meeting the needs identified.”

Legal point

Service users and carers must usually exhaust complaints procedures first before resorting to the Ombudsman or judicial review. This is because the courts see complaints procedures as less formal and speedier mechanisms for resolving concerns and grievances.

The Ombudsman and the courts have been critical of failures by local authorities to comply with statutory timetables for handling representations, to investigate complaints properly, to understand their responsibilities under legislation and to implement recommendations. This illustrates how difficult it can feel for service users and carers to obtain redress and to hold local authorities meaningfully accountable.

Evelyn's parents statement

“There is no point in complaining. We might lose the services we have been given and any goodwill social workers are showing towards us. In any case, compared to what used to happen, people like us are better off nowadays.”

Legal point

People are often deterred from making complaints and representations because of unequal power relations, lack of information and support, dependence on services and low expectations. An anti-oppressive approach to social work practice requires such structural inequalities to be challenged through provision of literature, advocacy, and a rights-based approach to entitlements.

Evelyn's statement

“How can I complain if I am not satisfied with what you are doing for me and my family?”

Legal point

The GSCC Code of Practice requires social workers to help service users and carers to make complaints. Social workers and their employers must take complaints seriously.

Sophie & Celeste's statement

“What if we do not agree with what you are saying or doing? What can we do then?”

Legal point

The Adoption and Children Act 2002 amends section 26, Children Act 1989 to place a duty on local authorities to make arrangements for assistance to looked after children and young people leaving care who make or intend to make complaints. Whilst Sophie and Celeste have not been looked after by the local authority, it may nonetheless be possible for them to access such an advocacy service.