Legal literacy: safeguarding people experiencing homelessness, 15 February 2021

Presentations for this event are available here.


Webinar

Webinar transcript

Moderator: So, my name's Adi Cooper, I am the Care and Health Improvement advisor at the Care and Health Improvement Programme, which is a joint-, a joint programme from the Association of Directors of Adult Social Services and the Local Government Association, focused on sector-led improvement in, in adult social care. This is a, a fifth of a series of eight sessions that builds on work that we've done over the last couple of years around adult safeguarding and homelessness, and I lead from the programme on adult safeguarding. So, in 2019, 2020, we had a series of four national workshops which we organised through the Care and Health Improvement programme and that brought together people across the country but also across different sectors and organisations, in terms of bringing people together to-, I'm gonna take-, I'm gonna stop my video because apparently my sound isn't very clear, and see if that helps. Michael, put your thumb up and tell me if I'm-, if it's better.

 

Sorry, I'm taking my video off to see if the sound is better, thank you. Apologies for that. So, I was just talking about where these workshops come from, so these-, the four workshops that we did in 2019, 2020 brought together people from across the country, we had speakers talking about safeguarding and homelessness and particularly people experiencing risk of abuse and neglect. The outcome of that was a, a briefing that Michael Preston-Shoot authored for us that brought together positive practice in this field. So, originally before the pandemic last year we'd planned to disseminate that briefing and use it to support further discussion and debate at a regional level, but also as we all know, Covid changed al our plans last year. So, in discussion with members of the advisory group which had supported the work for the last couple of years, we discussed what would be most helpful at that time, and that was the-, this is the outcome of those discussions. So, we've planned a series of these eight sessions based on different themes, today's session is about legal literacy, but the objectives for today are the same at the other seminars, the virtual seminars, which are to share information, particularly positive practice, in these areas of work, which is adult safeguarding and homelessness, to provide an opportunity to understanding how safeguarding people who experience homelessness has changed over the last year or so due to Covid and the responsive initiatives, such as Everybody In, and to provide input to a further being which we're hoping to publish later this year.

 

So, the outcome of the work that we do through these webinars will be pulled together into an updated briefing, so I'm just going to reiterate because more people have joined the call that please could you use the Q&A function for questions, we have got time at the end for the speakers to answer questions. I'm going to reiterate that the slides that you'll see and actually a recording of this sessions will be available probably by around-, by the end of the week or on Thursday for you to be able to download slides or share the recording with your colleagues. So, just without any further ado, I'm going to hand over to Michael Preston-Shoot, who is going to talk for a while about generally about legal literacy and why-, what it is and why it matters. So, Michael, can I hand over to you, please, thanks?

 

Michael Preston-Shoot: Thank you, Adi, and good morning everybody and thank you for joining, 266 people and counting, it's really great. So, this session is about legal literacy, I've no doubt that Laura and Henry will zoom in on the minutiae of the law and particularly case law judgements, to help us navigate the complex terrain around mental capacity, mental health, no recourse to public funds and so forth. So, this is just by way of, of, of opening the session to think about what legal literacy actually is and, and why it matters before we delve into the more substantive law detail that, that Laura and Henry will cover. So, what is legal literacy, and why does it matter? The origins of, of legal literacy go back at least as far as the mid-1980s, when in social work there was a debate between Louis Blom-Cooper and Professor Olive Stevenson about what should lie at the heart of social work practice, particularly in relation to child protection. And Louis Blom-Cooper, as a result of a couple of, of enquiries into the deaths of, of children, including Jasmine Beckford, argued that the only mandate for social work practice was in fact the law, whereas Olive Stevenson argued very strongly that at the heart of social work practice should be an ethical duty of care, that values, social work values in particular, lie at the heart of, of, of practice.

 

For legal practitioners who are in the room, debate about legal literacy goes back even further than that, all the way back at least to an article in a law journal called Pericles and the Plumber, which debated whether the purpose of legal education was to ensure that legal practitioners had a sound technical understand of the law, or in fact whether the purposes of legal education was, was more around the purposes of law in, in a social democracy, and I suspect that's, that's more familiar to Laura than, than perhaps to me, that kind of debate about what should lie at the heart of legal education. What Suzy, Bray, and I argued when reflecting on the debate between Olive Stevenson and Louis Blom-Cooper was that it wasn't as simple as simply either one mandate or another mandate being at the heart of practice and that the reality was actually more complex, and that whether you were a social worker, a health visitor, a paediatrician, or indeed a lawyer, the reality was much more complex, and, and that it was combining and navigating through the interface of legal rules, an ethical duty of care, and also human rights and, and a commitment to, to social justice.

 

And that led us to believe that for legal literacy, irrespective of the disciplined, the profession that you are trained in, you need both a sound knowledge of the legal rules, the powers and duties for intervention, the principles of administrative law, which set the standards for the exercise of, of statutory authority, that you should be able to identify how real-world circumstances fit with those legal rules, clearly all of that has to be filtered through professional codes of ethics for social workers now, Social Work England as well as the British Association of Social Workers, but other professions will have their own regulatory bodies and codes of ethics. And of course, all of our works is governed by the Human Rights Act and the European Convention on Human Rights and Fundamental Freedoms, and that we should be able to demonstrate how we have navigated through all of this in order to reach the best decision possible in relation to particular people that we are working with. So, legal literacy is much more complex than simply arguing for one or other mandates to be at the centre of, in our case today, adult safeguarding and people experiencing multiple exclusion hubs.

 

So, in a nutshell, this is where our understanding of legal literacy has reached through all of the development work that has gone on certainly since the 1980s. It's the ability to connect relevant legal rules with professional priorities, professional values, professional ethics, and indeed also human rights and, and social justice. So, it is the ability to connect, doing things right, a technical understanding of the law, doing right things, which is informed by values and ethics, and then right space to thinking, which is profoundly influenced by the Human Rights Act, the European Convention on Human Rights and Fundamental Freedoms, and indeed UN conventions in so far as they apply to the work that we're doing. And from (audio distorts 10.07) we'll start in different places, and this applies, I'm sure, as much to judges, for example in the Court of Protection, as it does to social workers and other front-line practitioners. Some people will start with an emphasis on doing things right, a technical understanding of the powers and duties codified in law. Some people will start with an emphasis on doing right things, they will start with a-, with ethics and, and values. Some people will stat with a profound commitment to social justice and to human rights, and still others may well start with what their own particular organisation or multi-agency partnership has codified in local procedures, policies, and protocols. The importance is, is less which position it is correct to start from, the importance is that ultimately all of these four orientations have to, in some way, be balanced in order to reach the best decision possible.

 

And that requires for legally literate practice that we are all able to show our workings, that in our-, in the recording of our decision making, we are able to defend how we have decided which powers and duties, in primary legislation, in other words in substantive law, are relevant to a particular situation that we are working with. And then, which principles, which ethics, which values, have a significant bearing on a particular case that we are working with, and then which human rights are engaged in, in the particular case, whether it is a right to private family life or a right to liberty, or a right to life, or a right to live free of inhuman and degrading treatment, and perhaps the last of those will be part and parcel of the focus that Henry provides for us later on this morning. And then, the standards by which we exercise powers codified in law, particularly mindful here of the standards codified in administrative law, and as I suspect Laura and Henry will both highlight in the course of the morning, there may be significant case law judgements that help to illuminate a particular situation with which we are struggling. So, when we come to make a decision in relation to a particular case, it should be possible for all of us to show our workings out in a way that slide captures. So, substantive law, most of which I know that Laura and, and Henry will touch on, includes what is captured on this slide, but there will be other areas of substantive law that may well have a bearing on particular cases that you are working with, and so it is particularly important that in any decision that we are moving towards, we have considered all of the available legal options.

 

Principles captured, not just in substantive legislation such as the wellbeing principle in the Care Act, but principles also captured in codes of ethics, codes of values, codes of practice from regulatory bodies, and being able to articulate very clearly which principles had a significant bearing on the decisions that we are reaching in particular cases. And then, being able to articulate which rights are engaged, both rights in the European Convention on Human Rights and Fundamental Freedoms, but also in UN conventions, such as the conventional rights of people with disabilities. And the standards in administrative law, that we must be sure that in any action that we take we are acting lawfully and that we are making timely decisions, that we have taken into account all relevant considerations to have avoided bias, that we have shared information and consulted with people that we might expect to be consulted with in relation to decisions that we're taking, and that we provide reasons for the decisions that we have-, that we are minded to take, because it is important people have an opportunity to challenge the decisions that we have taken.

 

And as I've flagged already, I'm sure that Laura and Henry may well touch on p[articular cases that have a bearing on, on particular decisions that we might be called upon to take in the area of adult safeguarding and homelessness, here are just three that you might want to explore, they're chosen at random, but just to illustrate that judicial decisions do provide very helpful signposts about how we might navigate very complex decisions. And why does it matter? Why does legal literacy matter? It matters because we are accountable to service users, to patients, to citizens, to experts by experience, we are accountable to them for our practice. We may be held accountable also in the high court by way of judicial review, we may be held accountable by local governments and social care ombudsman investigations into complains about practice, we may be held accountable with coroner inquests, or we may be held accountable by regulatory bodies, such as Social Work England or the Independent Office of Police Conduct and other regulatory and inspectorate bodies, CQC, Ofsted, and so on. Legal literacy matters because we can be held accountable for our decisions, and so we should be able to give a good account of how we have reached the best decision possible in particular situations.

 

And for that to happen, we as practitioners need support from our own individual organisations and from the multi-agency partnership. We need spaces where we can talk about law and what might be relevant in particular situations. We need access to legal advice, training on, on legal literacy and on specific areas of, of law, briefings that update our understanding as the law evolves, as the law develops, and we will face that big time in 2022 when liberty protection safeguards are, are introduced. So, we need reflective space where all of us can engage with legal practitioners and with other practitioners to explore how the law may assist in particular cases that we are working with. And there are some resources, and these are just a few, perhaps the resource that I would most like to highlight is something that has been issued pretty recently by research in practice, it is a whole set of resources, tools, on, on legal literacy, which you can find on the research in practice website about organisational support for legal literacy and about how supervision and other forms of reflective spaces can be used to enhance our legal literacy.

 

So, that's it from me by way of a brief introduction, and I'm neither either directly, or through Adi, going to pass on to Laura. Adi's picture has come up, so I'll pass back to Adi.

 

Moderator: Thank you very much Michael, that was really helpful by way of introduction, so no further do, I'm handing over to you, Laura, to share your slides and start. Thank you.

 

Laura Pritchard-Jones: Apologies, it seems that I'm having difficulty sharing my slides. Hang on.

 

Moderator: No worries, just keep trying.

 

Laura Pritchard-Jones: There we go, they've come up.

 

Moderator: Thank you. Yep, they're up.

 

Laura Pritchard-Jones: Fantastic. So, if I just move over to that. (audio cuts out 20.16) talk this morning. Obviously, it's already been mentioned that you're going to have access to the slides after the event, so really, where I have referred to case law, and I will be talking about a few bits of case law throughout, I've included links if anyone's interested in going to find them, you can follow the links in the slides, and of course with this era of home working just the usual apology if you hear a large-, a dog bark in the background. Unfortunately, it can't be helped. I'll try and avoid it, but she does have a tendency to fly at the window occasionally. So, one of the key conversations I often have with practitioners in this area, generally around legal literacy, is, is more around legal complexity, I suppose, and I think that's probably one of the main reasons as to why legal literacy can be daunting, can be difficult, is perhaps to do with what we perceive to be the complex area of the law, the complex state of the law in particular, and not only that but on top of that, obviously, you also have the role of the courts, you have the role of case law as well. And as we'll see in a couple of slides, you know, the, the Court of Protection in particular has been quite active recently in developing and implementing certain aspects of the Mental Capacity Act. So, it's often, I think, that we can't really divorce legal literacy from legal complexity and the minutiae of the law and how they all fit together.

 

So, what I wanted to talk about in particular this morning is a little bit more about how we can navigate at least some of those complexities and misconceptions about the law in practice and start to think about how those legal frameworks actually fit together. So, what we have here, really, is firstly, this is very similar to the diagram that Michael's just included on his slides as well, and actually, for me, this is as much-, this is only part of the legal framework, but it's probably what I would call the, sort of, bread and butter part of the legal framework. So, you know, by and large, legal framework that you're going to be thinking about when working with adults facing homelessness in a safeguarding capacity are the, sort of, key pieces of legislation. You've got obviously the Care Act, and within that you've got the different elements of terms of wellbeing, in terms of assessments, care and support planning you've also obviously got the regulations to be familiar with, to, to determine whether a person is eligible for care and support. You've got the Mental Capacity Act 2005, thinking about whether a person has capacity to make decisions at a specific time, you've got provisions around advocacy and safeguarding in the Care Act as well, and you've also got aspects of advocacy within the Mental Capacity Act. You've got all the provision in terms of assessment treatment, community care under the Mental Health Act, and then you've of course got also specific legislation in relation to homelessness under the Housing Act or the Homelessness Reduction Act.

 

But the reason that I've included the Human Rights Act at the top of there is basically because underpinning all of this, really, and the way that-, we'll talk in a little while about the way that the Human Rights Act operates in the background, but underpinning all of this, really, has to be this consideration of a rights-based practice. So, making sure that everything that we're doing, even when we're working with this legislation, actually meets those aspects of the Human Rights Act, it upholds a person's human rights, because there is now a legal obligation on public bodies to make sure they're acting in a way that's compliant with human rights. So, beyond even those specific legislations that we might think and we might work with on a daily basis, you do have that really important general public law framework which is the Human Rights Act. And of course, as Michael mentioned, the Human Rights Act brings into effect the rights contained in the European convention on Human Rights, and so one of the reasons I start with this diagram, and of course like I say, this isn't even the entire situation, and I know Henry is going to talk to you later on about the legal framework in relation to those without recourse to public funds, but one of the reasons I start with, sort of, even just a small part of the legal framework is because understanding legal literacy and understanding its importance and also navigating the complexity, this diagram shows that, actually, it's not just navigating the complexities within particular or discreet areas of law or particular legislation, but it's also understanding how those powers fit together and where they intersect, so how you can navigate some of those complexities and the points at which they intersect.

 

But also, how those powers fit more generally within that overarching human rights framework. So, you know, a more accurate diagram would probably have lines going between every single of these particular boxes. And hen, of course, beyond this, as Michael mentioned, you also have questions and issues in terms of what the role of the courts and and what the role of case law is.

 

Laura Pritchard-Jones: So, what I want to focus on today for the rest of this session is really thinking about how we can navigate a very small number of these complexities and in particular I've chosen to focus on the way that the Care Act and the Mental Capacity Act fit together and where that sits within human rights compliant practice. So, at the very least I think to start with in order to understand those intersections and how they fit together, we can't really avoid looking at least in a little more detail at how the law in this area works, and particularly the, the law in the Human Rights Act. So, the Human Rights Act came into force in 2000. It really reps-, I think it's fair to say it represented the first attempt to codify any sort of rights into domestic legislation in the UK. Now, it's a common misconception that the Human Rights contains rights, and it doesn't. What it actually does is it, it codifies and it enshrines the rights contained in the European Convention into domestic law, and I've listed some of the ones, as Michael has mentioned earlier on, some of the key ones that we might be thinking about when working towards safeguarding adults facing multiple exclusion homelessness. And what this basically means is that it makes it possible to argue human rights before domestic courts, and the way that that was done is basically it brought into force an obligation on public bodies or, to use the technical term, those exercising functions of a public nature, organisations exercising functions of a public nature such as local authorities, NHS trusts etc, to act in a manner that was compliant with those rights. So, basically there's a general standing obligation not to violate a person's human rights.

 

And lastly the Human Rights Act also places an obligation on courts. So, the obligation doesn't just rest with, with public bodies but it also, the courts being a public body, it also places an obligation on courts to interpret legislation in a manner that is also rights compliant, so also in a manner that's complaint with a person's human rights. And if it can't do that then it can make what's called a declaration of incompatibility, although statistically speaking before the courts that's still a very rare occurrence. And if we think about the role of human rights and particularly over the last twelve months we can see actually that rights played quite a crucial role in terms of the Care Act easements, for example, and this really shows and emphasises how important that human rights framework is. So, if-, back in early 2020 obviously when the pandemic first hit we had the coronavirus act and one of the things that that did was change or provide for easements that local authorities could draw on in order to sort of lessen the impact of the pandemic in terms of their practice and they could derogate a little bit from the legal obligations in the Care Act. And one of the things that they could do is to-, under the Care Act there's a duty to meet eligible needs and so one of the easements was that duty was replaced with a power. So, there's a difference between a duty and a power, okay? A duty means that you have to do that and a power means that you can do that. And basically that meant that, that a local authority didn't have to meet on individual needs but there was one key exception and that was where a failure to meet needs would result in a violation of their human rights. So, if there would be a violation of a person's rights then a local authority still had a duty to meet those needs.

 

So, with that in mind and really just in terms of the, the, the most up-to-date developments in social care, you can start to see why the Human Rights Act as a piece of legislation is so important in-, because it basically frames the rest of the legal powers that exist in this area and it also frames our practice when we're drawing on those particular legal powers. And of course a further aspect of legal literacy, as Michael mentioned, is the role of the courts and understanding the role of the courts and the role of case law that comes out of the courts. And so I've included some information here about what is the role of the main courts that you perhaps might encounter? So, the first of course is the Court of Protection, and the Court of Protection's role is to clarify and to interpret issues under the Mental Capacity Act, and some of the ways that it's done this recently in particular that you might be familiar with, so under section 3, as you may know, under section 3 of the Mental Capacity Act a person is unable to make a decision if, among other things, they are unable to perhaps understand information relevant to a decision. And so one of the feature that the-, that the Court of Protection has clarified recently is, well, what is relevant information in certain contexts? So, one of the most recent cases that I was writing an update on last week is what is relevant information for the purposes of consenting or refusing the COVID vaccine? So, the Mental Capacity Act and the Court of Protection-, the Court of Protection basically has a fundamental role in interpreting certain aspects of the Mental Capacity Act. It can also obviously decide on matters of dispute under the Mental Capacity Act.

 

So, for example, if there's a dispute about medical treatment or a dispute about residence, either between the person who might be subject to the capacity assessment, their local authority or their NHS trust, or perhaps even between the family, for example, and the NHS trust or the local authority. So it can decide on matters of dispute under the Mental Capacity Act and, again, you know, the vice president of the courts has been very forthright over the last couple of years in issuing guidance, so that's another role that the court has, is very often it will issue guidance and it did so recently about what-, when an application should be made to the Court of Protection in the case of serious medical treatment. And it can also make final determinations in relation to capacity in best interests as well. So, where for example there's uncertainty about the outcome of the capacity assessment as to whether someone does lack capacity or not, or whether that inability to make a decision is because of a disturbance in the functioning of the mind or the brain under section 2. This is exactly what the court had to decide in Pennine Acute Hospitals v TM, which is a case that also came up on Michael's slide so it's nice to see the links there.

 

And this case involved a gentleman called TM. He was in his early 40s and they weren't sure but it looked like he'd come over from Zimbabwe a number of years earlier. He was found one evening slumped in the middle of a bus shelter in Manchester. When-, he was taken to hospital and there was a little bit of sort of lengthy detail in the backgrounds of this but basically they tried to perform an MRI scan, they saw that he had some sort of brain injury but they couldn't exactly be sure as to the precise cause of that, so what had actually caused-, and he was also refusing the proposed amputation. So, he needed both his legs amputated, or the doctors thought that he needed both his legs amputating otherwise that he would lose them and he would probably-, he, he would die from sepsis. It was almost inevitable that that would happen. And the couple of issues that the court had to determine is firstly did he lack capacity? He was refusing this amputation so what was the case of his incapacity? What was the cause of his inability to understand the information relevant to the decision because he, he didn't believe that he was going to die, he thought he was going to get better? And secondly, if he did lack capacity, if that was down to an impairment or disturbance in the functioning of the mind or the brain, would it be in his best interest then for this to go ahead? So, you can see that the Court of Protection is really, sort of-, it's the-, it's, it's got a massive role in terms of interpreting the Mental Capacity Act, in terms of deciding on matters of dispute under the Mental Capacity Act and also in terms of making final determinations when there's uncertainty about passing best interests.

 

The High Court also is another court that you'll be familiar with and there's various divisions to the High Court but basically the two that we'll probably encounter the most are the family division and the Queen's bench division. So, the family division traditionally has more to do in terms of cases involving children and cases involving the end of marriages, so divorces and settlements, but it's, it's developed an increasing role in the-, in recent years to decide matters in relation to those who don't necessarily lack capacity under the Mental Capacity Act but whose decision making might be threatened or might not be fully autonomous because of some sort of coercion or undue influence. And it does that by reference to its inherent jurisdiction, so it can intervene in terms of using its inherent jurisdiction where an application is made under the IJ in order to make decisions in relation to adults who may be being coerced, even if they don't lack mental capacity under the MCA. It also has a role in terms of resolving disputes in relation to other matters under legislation such as the Care Act. So, the case R on the application of SG and Haringey, this involved whether a local authority had acted unlawfully in not putting in place an advocate for somebody who was going to have considerable difficulties being involved in a needs assessment. So, you can see how the role of the courts is really quite fundamental to legal literacy because it provides clarification, it even decides those cases that are taken by practitioners, by legal teams to determine certain issues and particularly, you know, in the-, in the Court of Protection to determine the-, for a final determination in relation to mental capacity. Now, I know there's a lot of text on this slide so I'm not going to talk through it all, don't worry.

 

What I really want to draw attention to is-, I said I was going to focus on the Care Act and the MCA so what I want to draw attention to here in particular are the, the key elements obviously the-, of the legislation, in particular when we're thinking about homelessness and safeguarding, but also when we're thinking about the-, when we're thinking about some of the misconceptions that come from the legislation. So, we start off with the Care Act, obviously the primary driver is that, that duty to promote wellbeing in section 1, and all the consideration that we have to have regard to including, you know, protection from abuse and neglect, physical and mental health. I've just pulled a selection out there, and particularly the selection that might be most relevant in safeguarding adults who are facing homelessness. But then we obviously move onto thinking about a needs assessment. So, if it's apparent that someone has needs for care and support then there's a legal obligation under the Care Act to undertake a needs assessment but also there's a duty-, there's a right in section 11 of the Care Act to refuse a needs assessment. One of the areas of misconception really around this in particular is, sort of, do we still then have to do a needs assessment in any circumstances? And this is exactly what the law clarifies is that you still have to undertake one if a person lacks capacity and it's in their best interests for one to be done, or on the other hand if a person is experiencing or at risk of experiencing abuse and neglect. So, we start to see here how those jigsaws, i.e the pieces of law, start to fit together because in order to determine whether you still need to continue with your obligations in the Care Act, you have to understand the Mental Capacity Act and how that fits in.

 

So, the-, if you think about the legal framework as being more of a jigsaw rather than a spider diagram then it starts to make a little bit more sense because you have to understand say the MCA in order to determine whether those obligations under section 9 still take hold, not withstanding a person is refusing it. And of course lastly under section 42, and again this is just a wild summary of the, the absolute sort of key or, or the, the provisions that are at the forefront of the Care Act really and practice in this area. You've got section 42 adult safeguarding enquiry, which should be instigated where the conditions are met. So, obviously we've got needs for care and support or apparently so, although again a common misconception is that, you know, we don't have to necessarily do a section 42 enquiry if they-, if-, we only have to do a section 42 enquiry if they're having those needs supported or we-, or they have a care package. Again, that's incorrect. There's no reference to that in section 42 at all. If they're experiencing or at risk of experiencing abuse and neglect, and as a result of those needs they're unable to protect themselves. So, again, we have that legal framework in section 42 as to an enquiry but section 42 doesn't actually allow us to do anything, yes? This is why, again, legal literacy is important in this regard because we have to-, it's a gatekeeper. Section 42 is a gatekeeper into understanding whether we need to revert back and think about a needs assessment or do we need to do a Mental Capacity assessment or do we need to put, put an advocate in place? And again in terms of the Mental Capacity Act we have here some of the key principles, so some of they key aspects. So, section 1, we start with those basic principles that underpin mental capacity.

 

So, two that I want to draw attention to in particular where there are often quite a few misconceptions as to what they mean, so first of all a presumption of capacity. Everyone has to be presumed to have capacity unless it's established that they lack it but this doesn't equate to a presumption that we don't need to investigate capacity, okay? So, we still-, there's that sort of professional curiosity, there should still be that professional curiosity in the background to, to decide whether we need to investigate capacity in the first place. And the second principle that I want to draw attention to in particular is about unwise decisions. So, nobody is to be determined to lack capacity simply on the basis of an unwise decision, but if you think about it practically, any of you who do capacity assessments, the reason you do a capacity assessment in the first place is because you're concerned that they perhaps have made an unwise decision about something. So, an unwise decision may well be evidence that an assessment is needed. And of course the MCA also contains the legal tests for establishing whether a person does in fact lack capacity to make a decision, a particular decision at a particular time and we establish this through a combination of section 3 and section 2. Now, some of you might be wondering why I've put section 3 above section 2. The code of practice to the MCA as it currently exists says that you are to establish a disturbance in the functioning of the mind or the brain and then you need to look at to whether that is causing an inability to make a decision. So, are they unable to use and weigh relevant information or understand relevant information?

 

And actually, again, this emphasises the importance of legal literacy because in 2013 the Court of Appeal, so a more senior court even than the Court of Protection, held that that was the incorrect order for the test and that actually what you need to start with is looking at whether they're unable to make a decision under section 3. And only then if you've established that do you actually look for whether that's because of an impairment in the functioning of the mind or the brain. So, again, reiterating here the importance of legal literacy from the perspective of understanding case law and judgements. And of course, lastly, if anything is done on behalf of a person who lacks capacity then it's done in their best interests, and any sort of failures-, one of the things that the court's been very clear on is that any failures in respect of best interest or, or following the procedure to, to identity what might be in someone's best interests or capacity assessments, this-, they've been very clear that this will be determined to be a violation of a person's rights. So, in this particular case in the bottom left, Essex County Council and RF, this involved a man who was in his mid-90s who had a mild to moderate degree of dementia. There were some concerns about financial abuse but basically he-, following a capacity assessment he was taken to a care home, quite a, a distressed state, and he was basically unlawfully deprived of his liberty in a care home for about eighteen months. So, we-, the court held that that was a violation of his-, both his Article 5 and his Article 8 rights and fined-, found-, fined the local authority. So, again, we see-, hear the links between the way that failures in MCA practice can link to that human rights framework and, and be determined as a-, as a, a violation of a person's rights.

 

So, just to bring this round to an end then for the next couple of minutes, obviously as Michael referred to, this series of events are company's practice briefing and on one of the quotes on one of the pages was, was really nice and I thought this is a really good way to try and bring everything together into practice. That quote is that human stories are at the centre of homelessness and adult safeguarding and so what I wanted to, to try and bring this all together for the last couple of minutes is with a human story and this is a story I'm sure that will be familiar to many of you working in this sector and any of-, any of you in particular who've worked with adults facing multiple exclusion homelessness. So, this is in relation to Davina who was 29 and she was diagnosed with a learning disability as a child. She was also repeatedly sexually abused by a close family member as a teenager and she ran away from home when she was seventeen, moved in with Sam who was a boyfriend and soon started abusing drugs and alcohol, and not long after they were both evicted and this left them rough sleeping. She's presented at A&E several times and each time the, the injuries were consistent with domestic violence and possibly serious sexual abuse. During her last A&E visit clinicians thought her behaviour was also consistent with a personality disorder, and very often those engaged in personality disorder may well be the types of cases that end up in the Court of Protection because it's very difficult to determine capacity in terms of whether it meets section 3 and section 2, and the intersection with abuse or whether it's abuse that might be the cause. But various safeguarding referrals have been made but not progressed and Davina also repeatedly refuses any social care involvement.

 

So, again, I've put human rights complaint approach at the beginning of this particular flow chat and this, this particular flow chart really just talks us through the way that the different areas of law fit together. So, you know, we think about her refusal to-, of the, the needs assessment. Well, we know under section 11 one of the things that we then have to question is does she have the capacity under the Mental Capacity Act to make that decision? And the Court of Protection in a local authority and GP has been very clear recently as to the types of things that you might want to look at whether she understands. Does she understand the relevant information? So, does she understand that the local authority are under duty to needs assess? That the assessor might speak to other people and that she can withhold consent to this? That the local authority will assess her wellbeing? So, this is clarification from the Court of Protection to the Mental Capacity Act that ultimately feeds into the Care Act. Is she-, is she unable to make a decision? Why is this? Is this because of her learning disability or because of the personality disorder, or is it because of substance abuse, or is it because of abuse, abuse of another person? If it's one of the first three then arguably Court of Protection, Mental Capacity Act. If it's the last then perhaps Inherent Jurisdiction. And either way, you know, if she's subject to some sort of abuse then there would be a, a duty to needs assess anyway, in which case you revert back to those questions in the top right around her capacity to consent or make decisions about her care and support needs.

 

And lastly this section 42 enquiry, I mentioned earlier that it was a gatekeeper and this really emphasises why legal literacy is important because actually a section 42 enquiry, if it was progressed, I'd want to know-, one of the main things about legal literacy is it can-, it allows you to ask questions and one of the things that I would want to know is why was it not progressed, because on the face of it she meets those criteria? And then that opens up questions as to whether there are any other sort of legal obligations on us, particularly in terms of doing a needs assessment, issues around her mental capacity and how the-, those things are affecting her decision-making, does she need an advocate under section 67 for a needs assessment or section 68 for a safeguarding enquiry? So, certainly a section 42 enquiry is the precursor that feeds into asking questions about whether other areas of law feed into this and, and, and what other powers and duties, powers are available and duties that are incumbent on us? So, thank you very much for listening. I think I'm just about at the end of my time now. Yeah, thank you very much for listening, just a very last slide is a survey or a study that we're currently undertaking. If anyone is interested in getting involved in this, just want to put this up there, do please send me an email or visit the website. Thank you very much.

 

Moderator: Thank you very much Laura. Really helpful and really comprehensive overview. We're now about to have a few minute break. Can I ask people to come back for 10:55am so Henry can start his presentation? And can I also remind people to post questions in the Q&A for the section at the end for Laura, Michael and Henry. So, if we could come back in about-, about seven minutes, about 10:55am, and we'll start the, the third presentation then. See you all soon.

 

So, welcome back. Hopefully we have people have come back from their comfort break. Welcome back to the session. I'd like to ask Henry to do his presentation, which I think builds on what's come before in terms of Laura's comments about complexity around legal literacy. This is an area of complexity and thank you Henry for presenting this morning. I'll hand over to you.

 

Henry St Clair Miller: Brilliant, thank you very much Adi, that's great. So, this presentation is really informed by my responsibility at Islington, working with families and adults with no recourse to public funds, but also and, and perhaps most importantly a wider role through the NRPF Network, providing advice and guidance to local authorities across the United Kingdom on this area of practice. And really the things that stand out to me about working with people who have no recourse to public funds is that it is quite a complicated operating environment and it's made so really because when we talk about immigration-based exclusions, they are quite varied, they are often fast changing and to stay up-to-date with all of that is quite a challenge for practitioners. When making decisions about what support we can provide, we're often required to balance a number of factors within different sets of law and sometimes case law, and it's really because of that complexity that unfortunately you do get a variance of practice between different law authorities, and in the worst case you will have misunderstandings of entitlements as well. We also find that when it comes to working with people who are-, have NRPF and are homeless, then when we are trying to find ways to resolve that case we're struck by the lack of assistance that is out there, and I can reflect both on our scarce resources as local authorities and indeed also for our colleagues in the voluntary and community sector where, for example, you might be trying to access immigration advice and there is not much capacity. So, those are the things which make it difficult but I also enjoy working in the area because there are plenty of opportunities for making a difference. I will go through today the statutory safety nets which is in place to protect the most vulnerable.

 

I know from my own practice and there's probably many people on this call who will share the same experience that in fact the lot-, there's lots of positive things we can do with people who are homeless or at risk of destitution and have unsettled immigration status. There are actually lots of things we can do to help, leading-, to help, leading to a number of positive outcomes for them. And then there's this other important aspect which is about partnership, because amongst that complexity you, you don't have to always be the expert. Sometimes if you have an open mind you can realise that in fact there is something I don't know about or something where in fact somebody else might have the answer and I-, and I don't.

 

Henry St Clair Miller: So, so scope for partnerships is really important. And that includes thinking about bringing in expertise of other organisations. Perhaps from the VCS who have that experience of working with migrants and indeed providing immigration advice, for example. So, really thinking about broadening our offer. It is worth, given that complexity, just to recap on the main groups of people that I'm talking about when I'm referring to people who are not able to access welfare benefits and housing. They are broadly those with leave to remain with no recourse to public funds, encompassing many people with permission to enter the United Kingdom and reside here on family private life routes, or have applied successfully to work or study here, or maybe they have other forms of visa with the NRPF condition imposed. We then, within the cohort, also have those who have no current immigration permission and indeed, for this group, life is even a bit more difficult because they will face other sanctions in terms of accessing healthcare, working, renting in the private sector and so on. Indeed, that middle group will also be people who might be at risk of enforced removal. And then for European Economic Area nationals who were present in the United Kingdom before the 31st of December 2020, there will be some who have difficulties accessing welfare benefits and housing, either because they have pre-settled status and that remains a requirement to be economically active in order to access that welfare state support.

 

And indeed also the category of European Economic Area national who can and must apply under the EU settlement scheme but has not yet done so. When we think about the scale of the issue, well finding reliable data is quite difficult but these are some interesting facts for those that do like data. So, 1.4 million people may have leave that is subject to the NRPF condition for migration observatory research. When it comes to those who might be unauthorised migrants or have no status, a useful estimate of 800,000 to 1.2 million people was provided. We know that 2 million grants of pre-settled status under the EU settlement scheme have been issued with no automatic entitlement to benefits for those people. And everyone will be aware that as of the 1st of January 2021, European Economic Area nationals coming to the United Kingdom will have no recourse to public funds and we see new NRPF groups through the national oversees visa, British national overseas visa from the 31st of January 2021. Now, against all of that, the number who are actually supported by social services remains very small compared to those larger numbers in terms of total population fitting into those groups. This is data that we have through the NRPF connect database which is used by 66 local authorities supporting vulnerable adults and families under social services duties. Really, what I focussed on is the expense of this. It cost those 66 local authorities £44 million in accommodation subsistence provision, so we are talking high cost. The average per annum cost being £17,000 to £18,000 a year just in accommodation and subsistence. We also see from our data about the client group that it takes a long time to find a resolution, with the average duration of support two years.

 

And with 27% of the cohort of non-European Economic Area national households having been in support for over 1,000 days. We think that kind of statistic is going to be relevant to any service that has accommodated rough sleepers during Everyone In, who have no recourse to public funds. Once an intervention is made, it takes time to find a positive outcome for that person. And with the final statistic, we know that that positive outcome is usually a grant of leave to remain. It is a statistical fact that 77% of all cases exiting the social services safety net do so because they are granted leave to remain. And that is something that we would have to reflect on in our practice, particularly when it comes to case resolution. Now, thinking about COVID-19, the question is, how has the law changed since the Humanitarian Housing response and redoubling our efforts to protect the home-, homeless has been undertaken for the last ten months? Well, I can answer that really quickly, no change. So, the government position in 2021 remains the same as we-, as it was ten months ago, despite all of the change in terms of how we have acted to support people. There is no change to the NRPF conditions and indeed the government is clear that councils need to apply the law and that means making an individual assessment. So, that is the official line. So, I think for a period, certainly more was being done for vulnerable people than the law really allowed, and that is something now that we must consider and perhaps inherit as an issue in our practice. So, I'm just going to just, sort of, focus on what the safety net actually is. So, this is how it comes about that social services departments do, in fact, have a responsibility to provide financial assistance to somebody with no recourse to public funds and it really is about three key areas.

 

Adults with care and support needs under the Care Act 2014. Families under section 17 of the Children's Act 1989. And we also see this responsibility in relation to children who are care leavers, they've been looked after by the local authority, they reached eighteen years of age and at that point they do not have a form of settled status, meaning that they have no recourse to public funds and the social services team provides accommodation and subsistence to them as a former relevant child from the age of eighteen to 21, possibly to 25. Now, when we look at this safety net, I always remind social services departments that this is not an accident. You can't have the NRPF condition without also knowing that social services are there to protect the most vulnerable. You certainly can't have some of the sanctions that exist in terms of excluding people from services like healthcare, renting in the private sector, employment, again, without social services being there to meet those who are most in need. And what we already observe from the slide is that it is never right for a child to be left without support and destitute and a destitute child will be a child in need and that will engage section 17 of the Children's Act for families. With adults the duty arises when you must meet the care and support needs that arise or are related to a physical or mental impairment or illness. I'm going to look at this in a little bit more detail now and certainly destitution on its own is not going to be sufficient to engage the care act responsibility. So, a couple of slides now looking at assessing and meeting needs under the Care Act and, I, I guess because this is our safety net, this is what we have in England, then we need to make it work as effectively as we possibly can when it comes to safeguarding and protecting adults.

 

Interesting that colleagues on this presentation have already mentioned the well-being principle and I do think it is important to reflect on that in our practice. This is at all stages. So, when we are dealing with referrals, when we're assessing, when we're meeting needs. And of course, those aspects of well-being that will be particularly important to people with no recourse to public funds may include social and economic well-being, suitability of living accommodation, protection from abuse and neglect. Might not mean that I have a formal duty to provide care and support, but it certainly means I'm going to engage with the issues that that person is facing and try and find a way of helping or assisting them, even if that is just by signposting and information. In dealing with our safety net, it is absolutely important to realise that we will need assessments. We cannot just by-pass or avoid that responsibility. Where there is an appearance of need, that is where we're going to need the Care Act assessment in order to establish what level of need is precisely, what additional housing concerns the person my have or housing needs the person may have. But in terms of me thinking about any step down planning, I'm gonna need the Care Act assessment to determine whether or not the person has eligible needs. The duty to meet eligible needs will arise when the adult is ordinary resident in the local authority's area. So, we're very much here talking about where an adult has taken up voluntary residency in a particular area, regardless of how long they have resided there. And if, indeed, ordinary residence is not easy to determine, then the test will be present in the area with no place of settled residency.

 

An important aspect running alongside this responsibility to assess where there's a reasonable appearance of need warranting that assessment, is that there is a power to provide emergency accommodation and meet needs pending the outcome of the assessment. That is extremely helpful when we are saying, 'Yes, we need to step in to look at what is going on for this person. Yes, they are homeless, yes they are destitute.' Then this power can be usefully used to provide accommodation on a without prejudice basis whilst the social worker completes the assessment and whilst any other investigations are required. When it comes to providing accommodation under the care act, well then there are some really important factors that would be considered. So, the duty to meet an adult's eligible needs, needs, must arise from a-, from or be related to the physical and mental impairment or illness. So, in the assessment, we have to be engaging with what the person's needs are, as the main question. Much less, I guess, at that assessment stage around are they destitute? It's much more about how is that condition impacting on activities, daily living? To what extent might social services step in to provide some formal package of care on top of any accommodation that might be provided. It's helpful within the act that it's clear that any type of accommodation can be provided. So, we're not talking just about residential care, nursing home placements, this could be accommodation that you provide in the community, akin to what a housing department might provide. And if that is suitable for you to provide a care package and meet those eligible needs, then that will be required-, it will require you to provide the accommodation on top of any other service that you are delivering.

 

However, it is also clear that there is no duty to meet needs that arise solely due to destitution. Now, I don’t think that that has a massive impact on how we operate in this area because the eligibility criteria is focussed on the physical or mental impairment or illness. However, this section 21 destitution exception just puts this beyond doubt, that if you're talking about providing care and support, it's got to mean something more than just providing accommodation. So, it really remains needs led. And I do also refer people working in this field to the power to meet care and support needs that do not meet the eligibility criteria under section 19 one. I think that where we have cases where there might be quite significant medical needs, quite significant risks to the adult, it is important to think that even though the eligibility criteria may not have been met, perhaps the specific circumstances of the case might still warrant the provision of financial assistance as part of a package of care. It might be cases, for example, where people are on kidney dialysis three times a week, where it would be inappropriate to expect them to be on the streets. But yes, in fact, they can meet all of the outcomes under the eligibility regulations independently. However, that is where we might think about a human rights led approach and thinking about ensuring that someone who is, indeed, vulnerable and has care and support needs, but not to the level to engage the eligibility criteria would in fact be assisted. Now, I, I, I have to always remind myself doing this that in the United Kingdom there is clearly no statutory provision to just accommodate somebody who's NRPF and destitute. But I think we are trying to work as best we can within the framework that we have.

 

And in doing that, I had an interesting conversation with a colleague who joined outreach services with an NRPF specialism and she, she said this to me about a case. So the service user had complex needs that presented challenges regarding engagement and his lack of documentation prevented him from being able to access services. On reflection, more timely interventions such as offering accommodation appropriate to his needs, ensuring his needs were assessed prior to hospital discharge, and making a safeguarding referral in order to ensure a plan of accommodation was considered may have helped to stabilise his situation sooner. Now, in this case, I know that my team, kind of rightly, I guess, was on the side of saying, 'Well actually, this person doesn't have eligible care needs,' at one point in our interaction over a number of years with this person. And then, you know, low and behold, no one's got engaged with him in terms of supporting him. He has become progressively more unwell. It gets to such a crisis point that we do step in to provide accommodation and in fact, there was a very happy outcome to this case where he did stabilise, we helped him with his immigration matters and he moved on. Fantastic. But it always makes me think about this, this safety net and to think that, you know, I've really got to make sure it is working as effectively as it can in order to make sure that we don’t have to have people going through what this gentleman experienced before we do step in and deal with those matters. So, it's just something to bear in mind in my own practice really, even though I'm aware of quite a stringent safety net when it comes to just homelessness.

 

Now, also I do know that a lot of local authorities are now left working, kind of, at above and beyond level because of the impact of providing emergency accommodation during the pandemic. And then realising that a-, this, this period of response is, I guess, coming to an end at some point and we're not sure exactly what's going to happen. And I think these are some of my key points on what we need to do in this situation. Well, I think number one, it is important to check the direction of travel with the council's leadership and the politicians because I'm a big believer in collective responsibility of an organisation and not just shirking that responsibility and leaving it to the front line worker to make an impossible decision on a case by case basis. And I think an interesting, interesting questions to the leadership are, of course, you know, what are your objectives? Can you please clarify, is it ending homelessness? Is it acting in a way that is all about protecting public health? Or is it about following the law? Now, in my area of work, you can't just follow the law to achieve those two other outcomes, so how are you going to act? And to what level do you want me to use discretion? And I think that's a really healthy discussion at a senior level. For those who we are assisting, then we need to communicate clearly with them now. We've got a window of opportunity where we are providing assistance, where we can work towards sustainable outcomes for them. And mitigate the risk of them returning to the streets. So, we need to be active in doing that and, equally, we need to be explaining this work, this idea, this concept to the people we are assisting, including any requirements on them to engage with the recommendations that we might make.

 

Such as thinking it's a good idea to access immigration advice. We expect you to do that as part of this area of engagement. So, these are the kinds of, they're not necessarily answers at this stage, but they are things that we can do whilst we're still permitted to go a little bit above and beyond. When I look at sustainable outcomes, it is also important to be quite specific about what they are. So, it's change of immigration status, which means you are granted leave to remain with recourse. That can also include people who can apply under the EU settlement scheme and indeed those with a form of leave to remain with NRPF who can change the condition to make sure that they then have recourse. We have some groups where it might be possible for them to work and become self-sufficient. And of course, it's never going to be a taboo to talk about return to country of origin. In some cases that is going to be a necessary outcome. It might not be the first thing we investigate. It might certainly not be the outcome that the person themselves wish to-, wishes to achieve, but it is important that we do keep that on the cards as a possible exit route from support. This slide always goes wrong so I’ll try this one and it's not looking much better. So, it works when I'm not going the slide show but this is the reason for closure for vulnerable adults supported by social services under the care act. Again, the data source is the NRPF connect database. Fortunately, most of the captions are there, so it's quite clear on the screen to you. The large half, the just over half, the reason for closure there is grant of status with recourse to public funds.

 

So, in our practice, we know that the majority of adults we support will get a grant of leave to remain, but it takes a lot of work to get them to that position in terms of gathering documents, working with them to, to clarify their identity and indeed engaging the help of immigration advisors along the way. If I look at the outcomes, well, I could imagine if I was to see statistical outcomes from everyone in, I would assume that the proportion of people accessing asylum support would in fact be higher, because I know that a number of asylum seekers have now moved on to asylum support. But I would say that overall this would be quite analogous to what you might expect as a result of our operations from a housing perspective in the last ten months. And I think it's important in the cases you are supporting to have a plan of action to ensure they are moving towards these outcomes during this time, and to prepare ourselves for a time when maybe we're not able to act with such discretion. There are also a number of good practice things that you can do, and I think this brings me to the-, to the end. You're gonna need specialism in this area of work. If you have complexity then you, you, you do need to have people who are gonna spend some time understanding how that then materialises into the case management role of a-, of-, from a local government perspective. Make sure that we have protocols to identify cases at the time of referral. I think it is going to be important to ensure that adult social care is not inundated with requests for assessment. It's important that if you are going to make that referral, that adult social services understands why you're making it and indeed that you do provide evidence of need to ensure that the assessment can proceed in an efficient way.

 

When you are engaged in providing support, know who you're supporting, know what's going on in their lives, engage with their issues and try, as a council, to work towards the best possible outcome through case resolution. The NRPF network provides a lot of information about this complex area of work that I still get tongue tied talking about, even when doing a presentation for the hundredth time on the subject. And I think that I would like to refer you to our website for further information on this area. Thank you.

 

Moderator: Thank you Henry, that was really helpful and really comprehensive. We have a number of questions over quite a range and I'm trusting Michael to have looked at those questions that colleagues have raised. Thank you very much for raising them. And Michael being able to direct them, perhaps at the right person. So, I'm gonna hand over to you, Michael, around managing the Q&As.

 

Michael Preston-Shoot: Okay. Thanks, thanks Adi and thank you to those who've put questions in, in, in the Q&A. There was a question about whether the, the slides from today can be used with appropriate acknowledgement. I know Laura has already answered that question. Speaking for myself, yes, you can use my slides with appropriate acknowledgement, that's absolutely fine. There was a question also which I'll endeavour to answer which was about the distinction between a legal duty and a legal power. And I'll, I'll watch to make sure that Laura is either nodding or shaking her head. There are two types of statutory duty. One is an absolute duty. That is where a local authority must do something without exception. And section 117 aftercare plans in the Mental Health Act 1983 are an example of an absolute duty. There are also discretionary duties, and section 9 of the Care Act is an example of a discretionary duty. And that is when the duty arise when the local authority considers that the circumstances are met. So, if somebody appears to have care and support needs, the duty to assess arises. That's a discretionary duty. So, in, in your decision making, if you go back to the slides that I used right at the outset of this morning, you have to give your reasons as to why you think the duty arises in the context of a case. So, absolute duties and discretionary duties are characterised by the use of the word 'must'. A power, as Laura said, is something that you may do if you consider it necessary. And once again, you must capture in, in your recording, the circumstances that led you to believe that the power should be exercised in a particular case. Laura, have I captured that? Yeah, Laura's nodding so, thank you. So, that deals with that.

 

There was then also a question which I think I can begin to answer based on Laura's analysis of PC versus the City of York and the fact that section 3 of the Mental Capacity Act, whether someone can understand, retain, use or weigh precedes section 2 of the act, which is whether a person has an impairment in the functioning of the mind or brain. And the question was, whether the code of practice is going to be changed. And my understanding, as of last Friday, is that the Ministry of Justice, with the Department of Health and Social Care is looking at revision of the code of practice for the Mental Capacity Act, not least because of the introduction of liberty protection safeguards. So, I would expect some changes to the general code of practice to come in at the same time as the definitive guidance for liberty protection safeguards is issued later on this year, if the timetable remains as it is currently outlined. Right, I think what I'll now do is first of all, ask Laura questions or observations that have arisen in the chat, and then I've got some also for Henry. Laura, one question that came up and I-, and I-, I've, I've heard this question in other contexts too, it relates to paramedics and whether a paramedic can override consent when a person has capacity but is nonetheless at extreme risk. Have you got any guidance that you could offer paramedics in that kind of situation? Nothing like starting off with an easy question.

 

Laura Pritchard-Jones: Yeah, thanks for this. So, with my legal hat on, I would say thinking about consent and capacity, as long as you can evidence that the capacity assessment has been rigorous enough and thorough enough, a person has absolute right to refuse any sort of medical treatment or to be taken anywhere, as long as they have capacity to do so. In those cases, we may find that there's an urgent application to the court lodged, but then how you would do that if you were a paramedic, you know, and you were out there and someone was refusing while you were actually out on a call. But those urgent court protection applications are usually for those that are refusing medical treatment in a hospital. So, where there's a legal team on-hand to, to apply there and then. So, ultimately, I would say, if-, even if they're at extreme physical risk, a person, and I go back to a judgement in a case we might all be familiar with, I don’t know. Airedale NHS and Bland, this was a case arising out of the Hillsborough disaster in the early 1990s that said an adult of sound mind has the right, for whatever reason, to refuse treatment. Whether those reasons are rational, irrational, unknown or known. So, ultimately if someone even, even if they were at extreme physical risk, they have the right to refuse that treatment. However, it will be important to be able to evidence that there has been a thorough capacity assessment in as thorough as it can be, and that you've, you've explained that relevant information to them. You've explained the pros and cons, what might happen if they don’t go to hospital, and that you can basically justify that decision. Again, linking back to what Michael said, that you can justify that decision to say, and explain in your reporting, that that-, why that decision was taken.

 

Michael Preston-Shoot: Thanks Laura. And, and along the same lines, a, a number of observations or questions about people living on the streets, people who are experiencing homelessness who are assessed as having capacity, who are declining care and support assessments, but where the choices that they are making are experienced as exceedingly unwise. So, it's the whole issue about capacity versus risk, particularly in cases of self neglect or, or alcohol dependence. So, again, whether you've got any pointers. And I guess that depends in part, doesn't it, on, on the thoroughness, the robustness of, of a mental capacity assessment and the degree to which executive capacity is, is factor into, to that assessment. But anyway, again, any observations you've got about capacity versus risk.

 

Laura Pritchard-Jones: I think part of what-, and, and just to go back really to, to a sort of similar question that's also been posted and I think what's built into this and the reason that I draw on it now is because there is a legal uncertainty around the role of substances and substance use. And, so drug and alcohol use in particular, and I think that's one of the faults in the existing Mental Capacity Act code of practice. So, there's very little clarity as to the role that they play in terms of the legal implications. And so, I think, and again, this is a really good pointer as to how you can't divorce that legal framework. So, the relatively basic, you know, section 11, someone refusing, okay, but you still have to do one if, if they don’t have capacity to, to refuse and if they're at risk of experiencing abuse and neglect. That still then doesn't divorce it from professional questions about, sort of, professional practice and how do we work with those individuals? How can we engage and so you can't divorce those, sort of, legal questions from also the practice perspective and those, sort of, practice questions of what techniques do we use? What, you know, how do we go about working with individuals who are facing those sorts of challenges. I don’t have any pointers on that side, obviously, not being a practitioner, but certainly from a legal perspective, the most important thing is being able to be rigorous enough in those, those capacity assessments and thinking about, 'What is the decision here that I am assessing?' Is the decision one under section 11 to refuse a needs assessment? Is it to make decisions about their care and support?

 

And that's where that case law from the Court of Protection really comes in handy because there's been a raft of case law in various different scenarios that elaborates more on for, for professionals what the relevant information is and also how, what types of considerations do we have to take into, into account when we're thinking about whether a person can truly use or weigh information. So, a case I'm thinking of in particular at King's College and C, this was about medical treatment and the refusal of dialysis. But the, the lady in question was found to have capacity to refuse that, even though she could have had a relatively active and normal life later on, she was refusing dialysis, she, she'd attempted suicide and the court said very clearly, had a very, very clear set of guidance as to what the role of our values as assessors should be in deciding whether someone is able to use and weigh. And actually, they were very clear to say that it's that person's values that feed into use and weighing information. So, although someone might understand that she might die, but she doesn't care, and that's her prerogative to place that on her own situation. But again, that doesn't absolve that, sort of, requirement to make sure that we're making defensible decisions if anything progresses or goes to the Court of Protection, goes to the family court, we have to be able to show that we've, we've understood what information we're asking someone to understand.

 

Michael Preston-Shoot: Okay, thanks Laura. I'll, I'll, I'll give you a rest for a bit and, and, and turn to Henry. Henry, perhaps an easy question to kick off with and, and that was about what is destitution in the meaning of section 21 of the act?

 

Henry St Clair Miller: Okay. So, yeah, this is where there is the destitution exception where a need for care and support cannot arise from the physical effects or anticipated effects of destitution for someone who has no recourse to public funds,. Now, in terms of a definition of destitution, there, there isn't one within the Care Act or code of practice. I guess the closest we have is under the Immigration Asylum Act 1999 where the Home Office has defined it as someone who doesn't have accommodation, or has accommodation but not sufficient funds to meet other welfare needs. So, that's as close as we can get to a definition of destitution, yeah. Is that sufficient, do you think?

 

Michael Preston-Shoot: Well, in the absence of any definition in the-, in the Care Act statutory guidance-,

 

Henry St Clair Miller: Yeah, it is, what-, it's, it is what-, it is what it says. I mean, in what it seems to, to us, but it's just, I guess, it's always having to get, it can be difficult for the assessing social worker who wants to do the right thing for somebody, you know, but that right thing in terms of trying to assist to avoid being destitute might be around how you promote well-being. If you don’t have an eligible need and all needs are related to the lack of accommodation, then unfortunately, there just isn't a duty. And so, it's requiring the social worker doing the assessment to really make, make that different-ation.

 

Michael Preston-Shoot: Yeah, and, and, and again, I'll, I'll look to see whether Laura is nodding or not, but in the absence of any statutory definition of a word or term, in, including what is in statutory guidance, I would reach for the dictionary to understand the ordinary meaning of the word because that's what judges would do. In the absence, as I understand it, in the absence of any statutory definition. So, it's what do we ordinarily understand by the word destitution and, and if we base our decisions on that, then that should be defensible in the absence of any other definition. I'm looking at Laura, yeah, Laura's nodding. So, that's, that's good. Another question, Henry, was an-, well, more an observation really, that very often local authorities don’t exercise powers. So, the, you know, where they have a power to do something but not a duty to do something, local authorities very often don’t exercise those powers. And, and the follow up question then was, have you got any suggestions as to what a practitioner might do if, if the local authority has a power to do something but is choosing not to exercise it?

 

Henry St Clair Miller: Okay, yeah, I mean, obviously, a difficult question to answer. But I guess, the, the issue is, people will say well, a local authority doesn't always exercise its power, but I'm always thinking well, no, they would've exercised their power in some cases but you, you've, you've, you've, you've identified a case where they haven't done it. I guess, what I don't like seeing is inconsistency of practice, and I think inconsistency comes out of not really understanding the service user group or your residents and your community pressures and so, therefore, not then defining what your response is. So, I think, in good practice, we use those powers to achieve our strategic objective. And if that is to keep people safe and reduce homelessness, then my, my leaders want me to use those powers to do that and I'm really happy to have powers that I can call on to make a difference, and that's the way I look at it. So, I think there's that element. In terms of a challenge, well, indeed, if, if the local authority is being irrational by not enacting a, a power then that is the kind of thing that can be challenged through judicial review, but, but sometimes the legal department may also be of assistance to try and explain what, what needs to be done. A need to have it all written down, so I mean, if it's a-, if it's a not using your power to provide emergency accommodation then I think we need to have the reasoning for that. Why is it that the person can survive in what-, whatever other accommodation they have available whilst you do the assessment? Similarly and I saw others about assessments where people haven't had eligible needs and they're not willing-, the local authority's maybe not willing to reassess. Well, I'd still be wanting to look at the quality of that initial assessment.

 

You know, is it clear to me that they have understood the wider circumstances for this adult in terms of their lack of accommodation and funds and their immigration issues. Yes, it might still be that they haven't met the eligibility needs, but I would still expect there to be some help in that assessment or letter about where they're signposting the person onto, what other options this person might have. That should have been communicated. And I guess, if you're talking about the power under section 19 one to meet non-eligible needs again, I would expect that power to be referenced in the assessment and, and I feel that the local authority is in shaky-, on shaky grounds for not reaching a conclusion that is necessary to use that power if they haven't yet got themselves out of it in terms of a written reason for why they're not gonna enact it. So, you're meant to be acting with maximum discretion in that-, in that grey interim time. So, it's a positive-, it can be positive to find out what your overall responsibility is to somebody, even if it does not then lead to a ongoing interaction with the service user.

 

Michael Preston-Shoot: Okay, thanks, thanks Henry for that. I'll, I'll, I'll give you a breather. There was an interesting observation, Laura, about your observation about the hole in the mental capacity act relating to alcohol, adverse childhood experiences, trauma and so forth. If you were to wave a magic wand, could you just say a little more about what you think the hole is and, and, and how you might hope that that hole might be fixed when, when, when the new code of practice comes out?

 

Laura Pritchard-Jones: That's an interesting one.

 

Michael Preston-Shoot: Yeah, speculate Laura, speculate.

 

Laura Pritchard-Jones: Yeah. I, I think, well, the hole is first and foremost whether, I suppose, whether any sorts of those issues can, can meet the diagnostic threshold under section 2. So, that, to put it bluntly, we can look at whether someone is able to use and weigh information, relevant information, use and weigh it, make a decision, retain that information. And then we have to link that to, obviously, section 2, we have to prove that causative nexus between section 3 and section 2 which is that that is because of a disturbance in the functioning of the mind or the brain. And so, that is really where the gap is, isn't it? It's a clear line on whether these issues or these aspects are sufficient to prove section 2. And if they are, in the same way as we can identify that someone who is older and has dementia is unable to make a decision about certain things, you know. The recent case that I was talking about in relation to the COVID vaccine, that involved a decision as to whether an older woman with dementia who lived in a care home was able to understand the information about why she might have the COVID vaccine, the risks and benefits to it, what might happen if she didn't, and whether she was able to use and weigh and retain that information. And the court concluded that she wasn't able to, even though it was a relatively simple and straightforward decision to make, because of the advanced nature of her dementia. That's almost like a relatively straightforward example of where someone lacks capacity. What we have in terms of the gap with-, in relation to childhood trauma, substance abuse, etc., is, is not as clear-cut a link as to whether that is often causing an inability to make a decision.

 

Is this-, and it goes back to that sort of, basic point, is in-, is it an inability to make a decision or simply an unwise decision? And I know that's thrown into sharp relief in Scotland, for example, because they have that, that distinction written into the statute in particular about being unable versus an unwise decision. So, I think that's where the gap is, even though-, and we talk about section 2 in the-, in the Mental Capacity Act as being the 'diagnostic threshold'. But if you look at the code of practice as it currently exists, it includes a link to alcohol or substance in the code of practice. But it's not clear whether that means, for example, you know, you turning up drunk to A&E on a Friday night having drunk far too much, knocked your head, unconscious and you now need emergency treatment. Or does it include long-term alcohol and substance abuse? The, the courts, I should say, the Court of Protection in the few cases that have presented to court, have been inclined in some ways, although not definitive, have been inclined to think that it could suffice for the purposes of section 2. Certainly substance abuse. And in the couple of cases I can think of involving childhood trauma, there has been an intersection between childhood trauma and some sort of emotionally unstable personality disorder, hence why that was built into my, my case study with Davina. And in those cases again, the court has been inclined to think that a person lacks mental capacity because of their personality disorder that arises as a result of the childhood trauma. But the main gap that we have is in terms of those links. I think, if I could wave a magic wand in relation to the Mental Capacity Act, personally, I would go back-, I mean, personally I would go back to look at what it misses from the original consultations in the 1990s.

 

And actually, if you look at the original consultations, it was even supposed to include abuse. So, we wouldn't have the inherent jurisdiction if we-, if we-, if we had the original formulation. But I, I would have a much clearer statement that these aspects, and we particularly, you know, be in consideration of whether the childhood trauma has led to any sort of psychological impairment or, or, or personality disorder. Not a conclusive answer, but I would certainly like to see more emphasis on that in the code of-, code of practice that comes out.

 

Michael Preston-Shoot: Yeah, thanks. That's really comprehensive Laura. What, what has come through the, the Q&A whilst you've been talking is, is, is whether you're familiar with, or whether you can cite any cases that, where the Court of Protection has considered executive capacity? I can think of one, GW versus a local authority which was the case of Huntingdon's career. Where a person, by their observed behaviour, was unable to keep themselves safe, even though she talked a good talk about keeping herself safe. That would be one. And, and in parallel, someone has mentioned Korsakoff syndrome. So, in relation to substance misuse, whether it's Korsakoffs or some other impulse control disorder or, or something like that. I guess those kinds of diagnoses might qualify as impairment in the functioning of the mind or brain. So, just whether you can think of any cases immediately that, that would, would capture this notion of executive capacity, particularly in relation to substance misuse.

 

Laura Pritchard-Jones: I can't think of one in relation to substance misuse, but there was certainly one where there was an intersection of what the psychologists thought was a personality disorder following childhood trauma and sexual abuse and I think, again, there's a lot of case law, but I think it-, I think it talks about executive functioning and really delving in as to whether that personality disorder and the childhood trauma has actually meant that this person is unable to make a decision about her abusive sexual relationships, or whether it's an unwise decision. And there's a really detailed psychologist's report and really detailed assessment by the judge, and that's the case of Leicester City Council and MPZ. And that was-, I think it was at the end of, not last year but the year before. That's one of the more recent ones I can think of anyway.

 

Michael Preston-Shoot: Okay, thank you that's, that's really helpful. Right, switching focus again, just to-, just to, kind of, spread things around, Henry, there was a very specific observation or question around the impact of a ruling which I must confess I haven't heard about, but, but maybe you have. Fratila and Tanase. Is that a ruling with which you are familiar, because the, the p, the person who put it in the Q&A was, was asking a question around the impact of that ruling for, for, for-,

 

Henry St Clair Miller: Yeah, it was a good-, it was a good question cause I like the fact that there were different questions within it. I need to try and find it again. Yeah, so, yeah, I mean, we're aware of the Fratila case and from a, sort of, local authority NRPF perspective, we're really happy that it may lead to a situation where people with pre-settled status will have an automatic entitlement to benefits, because currently, the government's been found to be acting in a discriminatory factor, not to give an automatic right to benefits for those with pre-settled status under the EU settlement scheme. You know, which is-, which is kind of good from my area of work. But we also know that it is-, it is going to be-, I mean, permission to appeal wasn't allowed, but the, the government is still gonna fight this, so it's not clear what the outcome of this will be. But the Child Poverty Action Group have got some really, you know, it's their case and they've got some excellent pointers on what people can do now. And, you know, the Child Poverty Action Group do advise, and this is the first-, answer to the first question, should we be supporting all those with pre-settled status to apply for benefits? Well, they are advising yes, right, so that's a yes. And then will these claims be successful? I don’t know. And, and then it gets a bit more technical. So, I'm not sure. But, but it's like the, the Child Poverty Action Group, I mean, maybe we can send a link to their advice PDF on what to do around benefit applications as part of this. And, and it-, and it's looking positive.

 

But I, I, I'm obviously, when I present on what the-, what currently is happening, currently an EEA national would have to be economically active, an EEA national with pre-settled status would have to be economically active to actually guarantee getting benefits. But please make applications. If for some reason they are not working or can't work at present. So, we're all waiting to see what happens.

 

Michael Preston-Shoot: Okay. Thanks Henry. I mean, it reminds me of when I first qualified as a social worker a long, long time ago. My training was, was, was full of anti-poverty practice and, you know, links with the Child Poverty Action Group was something that we were all encouraged to do. And, and I think, you know, a lot of social work practices lost that anti-poverty lens. And here we've got a case that is reminding us again of the importance of, of counter-acting poverty in whatever way that we can. So, I'd certainly indulge the link to the Child Poverty Action Group, and perhaps we can put that up on the LGA website at some point. There was a question that links not, not to the-, not to the case but, but this whole question of pre-settled status and un-settled status. And it was just a, a, a, a request, could you possibly clarify the meaning of un-settled status?

 

Henry St Clair Miller: Yeah, so, and that was a good question as well, and it kind of made me think about that I might have actually said un-settled status and I-, and I'm-, and I'm kind of thinking, well I don’t really know what it is. And I think this comes from trying to struggle with trying to rationalise things within immigration law that, that are-, that are really hard to tie down. So, I'll come back-, I'll come back to the question. But I guess I think my reflection when that was asked was that there's a really important thing that we need to do when immigration status and entitlements are not clear. So, we must establish clearly what somebody's immigration status is. So, terms like settled, un-settled, they are-, they are open to interpretation. So, always clarify what is someone's immigration status specifically including where they are on an immigration journey. That's what we must do. Then second, if they are trying to seek services, what services are they? Under what law is that service being provided? And then if someone is saying, oh, they can't get that because of their status, well that's for the decision-maker, the authority to be able to explain why it is they can't get it and how they might be helped to get round that exclusion. And I think that that's the way we, we need to operate in order not to discriminate. So, really do understand the, the, the immigration status. What services they are requesting and being specific about any barriers to, to meet-, you know, to obtaining that service, and really not, not putting that responsibility on the person to find out themselves, you know. We, we need to have the answers.

 

If I go back to the settled, pre-, if, if it's relating to EU settlement scheme it, you know, the settled status is where you have ILR, you know, which is a form of settled status, where, where you have a long future in the UK. And then pre-settled is where you haven't done your five years yet. So, you might get ILR under the scheme but you haven't quite got there yet. And I guess un-settled might also just capture other people who might be on a route to-, route to settlement. You know, lots of people are on a route to settlement but face various hurdles and restrictions along the way, so they're not currently settled. So, there's so many different ways it could be looked at.

 

Michael Preston-Shoot: Okay, thank you Henry. We've run out of time. There's just one point I want to, to make in relation to observations in the comment boxes, the Q and E box before we move onto what follows this particular webinar. And that relates to section 42 of the Care Act and, and Laura helpfully included in, in one of her slides that there's no reference to mental capacity in section 42. There's no reference to consent. There's no reference to whether or not somebody is or is not homeless. There are just three criteria in section 42, sub section 1, and there is helpful guidance on the LGA ADAS website on the framework for, for, for safeguarding concerns and I would strongly recommend that, that people access that, that guidance. Okay I'm just briefly going to put up some final slides before I pass back to Adi just to let people know what's coming next in the sequence of webinars. So, we've had some already. Here's the one today, and enormous thanks to Laura and to Henry. There's one next week on the governance of adult safeguarding and homelessness and that will include a presentation from me about the latest learning from safeguarding adult reviews. And I know that Jane, amongst other areas in her presentation, is going to look at the learning coming out of fatality reviews. And the further webinars on the 1st of March and the 8th of March and I hope as many of you as possible will be able to join those webinars. A, a reminder, as Adi flagged up at the beginning, that we are intending to produce a second briefing on adult safeguarding and homelessness that will build on the eight webinars. If any of you have got case studies of positive practice about direct work with individuals, about innovative service commissioning, then please send those case studies to me at that address.

 

And then just a reminder, we have had now the first national analysis of safeguarding adult reviews. You can find the reports on the local government association website. There's also material on the research in practice websites. There are other resources around making safeguarding personal and particularly on section 42 of, of the Care Act and you can find this publication on the LGA website. Okay, Adi, I'm gonna pass back-,

 

Moderator: Thank you Michael. So, thank you everyone for joining us this morning. I'm sorry we haven't got time to answer all the questions that were raised in the chat. Thank you so much to Michael, Laura and Henry for their presentations. Just to reiterate again, the presentations and a recording of this session will be available on the LGA website in the next two or three days. There'll be a very short survey that will be sent out to you just to get some feedback. Please do feed back so we know how to continue to improve this work. And thank you again for joining us this morning and I hope you have a good week ahead of you. Thank you Michael for managing the questions as well, and the events team to supporting us in terms of making this a reality and so-, running so smoothly this morning. So, thank you everyone and goodbye.

Presentations

Legal literacy – what it is and why it matters
Professor Michael Preston-Shoot
, Emeritus Professor of Social Work, University of Bedfordshire and Chair of the London Region Network of Safeguarding Adults Board Independent Chairs    

Legal literacy – navigating the complexities in the legislation
Laura Pritchard-Jones,
Law Lecturer, Keele University

Supporting people with no recourse to public funds – legal framework and practice challenges
Henry St Clair Miller,
Head of NRPF, Refugee and Migrant Services, London Borough of Islington