Editor’s comment

The silly season news-wise having ended, the silly season for the generation of huge amounts of Department of Health Directions began.

Is there a delinquent senior bureaucrat who goes abroad each summer after carefully placing their humourously inclined minions in holiday jobs? For instance, mathematical confusion emanated over the summer period from a certain local authority, which shall simply be known as “nameless”. Targets are important things, the NHS Plan contains at least 68, but from the aforesaid nameless wonder emanated the classic: “Beds unblocked in week 23 of 2003 = 12. Care beds filled in week 23 of 2003 = 12. Total = 24.” Work that one out.

Then that same bureaucrat returns every autumn with the aim of making a killing after cornering the world paper market. So whatever the true situation ECA readers, A4 printer-paper fetishists and insomniacs will want to obtain copies of:

Abolition of Residential Allowance: LAC (2003)20;
The Community Care (Delayed Discharges, etc.) Act 2003: Guidance for Implementation LAC (2003)21;
The (20th) revision of the Charging for Residential Accommodation Guide (CRAG) LAC (2003)22.

They are all available from the Department of Health website. We shall return to these scintillating documents within ECA over the course of this and the next few issues.

One of the tiny pleasuroids that I did not know I had, which I now find stimulated into life by being ECA editor is the occasional receipt of a “review copy”. This invigorates me for a number of reasons:

Arrogance. It often appears to be received before the author receives their own copy;
Miserliness. Receipt carries the merit of possessing something useful obtained free of charge;
My desk has legs of odd lengths. It is almost evened up now. Thanks.

I was, I admit, frankly surprised to receive a copy of Spoon magazine presumably for the purpose of review. I admit to replying to this presumed invitation in a cryptic manner. I am hoping to see a reciprocal review of Ferret magazine amid the cutlery in the next edition. I should like it back by the way.

I vaguely recall reading that the shortest ever review of a play was for a performance of “A Good Night Out”. The review consisted entirely of the word “No”.

I was pleased to receive a review copy of the new Child Poverty Action Group (CPAG) title: Paying for Care Handbook. For readers unacquainted with the excellent series on benefits, of which it forms a part, then drop a line to CPAG at 94 White Lion Street, London, N1 9PF or search for it on the CPAG website. Their journal, Welfare Rights, is also well worth its subscription fee. As to my review of the contents of Paying for Care Handbook pressure of space and a not very subtle bid to reach the Guinness Book of Records requires a pithy and simple-to-follow word: Indispensable.

Even using few words can still be confusing. Drafting and ambiguity should not go together. If lawyers leave issues of ambiguity in their wake, then money and family harmony tends to be lost. For care professionals, the consequences can be fatal. Can it get any worse than that? I thought not. But what about this expression: “Press the switch and close the valve”. Does this mean:

Press the switch, which also closes the valve?
Press the switch and then close the valve?
Press the switch and close the valve simultaneously?

As it is a rather important part of the safety operations manual of a certain elderly Soviet-made nuclear reactor, one can imagine that rather more than money might be lost through misinterpretation. A sobering thought. I am not planning any visits east in the near future.

I was fascinated to listen to Alistair Cooke’s incisive report in his “Letter from America” on the election of Arnold Schwarzenegger as Governor of California. Alistair Cooke may not be diverting listening to everybody but his breadth of knowledge is hard to match. We should, I am sure, take heed of people who are able to bring nearly 100 years of age into account in a relevant fashion. Genuine perspective, as contrasted with plausible and attractively disguised prejudice, is a rare and valuable commodity. Perspective tends to temper expedience, or at least to indicate the difference between what is actually mere expedience and what may be appreciably better in the long term.

Alistair Cooke’s main theme was that the election of The Terminator to high public office was dangerous. That is especially as California tends to indicate broader political change well ahead of other US states, even nations, it having the World’s fifth largest economy and rather more influence than even that might indicate. It was a landslide reaction against the incumbent. But it was a reaction in favour of what?

Voting ex-patriot Austrians into power has historically poor antecedents. Comedy shows will continue to remind us of this at least until Arnie makes president. I have already placed my bet. In this context, Governor Schwarzenegger did not help himself by having allegedly commented that he found the “Fuhrerprinzip” attractive. The Fuhrerprinzip – leadership system – has several characteristics sometimes resisted on screen by the muscle-bound governor’s portrayals:

It is a system put in place as a result of disillusionment;
There is no time for democracy;
The leader is the boss;
The leader chooses an elite who assist him at different levels of fuhrerdom;
The people must obey;
In short, it is Arnie knows best.

The counties of California are in crisis. They built the dotcom boom and were ravaged by its bust. They have a massive deficit, unemployment, pollution and a whole Californian carafe full of other problems. So suddenly the literal strongman and perhaps also a version of the Fuhrerprinzip looks attractive. We shall inevitably see just how attractive. Will it ultimately play through in the reels of Hollywood glitz or the late Leni Riefenstahl?

But what has this resurgence of Hollywood’s ambition to take over the real world to do with the reader concerned with elder care? Primarily it is, I submit, all about “the rule of law” and the insidious progress its antithesis, disorder and the rule of mere authority makes when that rule is forgotten. If the new governor really has some affection for the Fuhrerprinzip, then mere authority is on the upward part of its cycle and not just in California.

“And so, whoever has the legislative or supreme power of any commonwealth, is bound by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges,” John Locke.

There is a lot of talk of rights. There is nothing wrong with that, in itself, at least so long as the reflection of “duties” is given equal status. In that temperance of rights, I betray myself of course. The modern, rather less well tempered usage of the word rights, it is noted, appears to have emanated in no small measure from California.

The foundational legal principle of the rule of law is, I would suggest, talked about a good deal less than rights. Rights are relatively easy to understand and indeed to stand up for. But the rule of law is currently less remarked upon and it is arguably in a problematic decline. This appears to happen periodically in history and may even be cyclical if not exactly predictable. For historical “cyclists” among ECA readers it is submitted that we appear, in many economic and other ways, to be at the awkward “just around 1929” point again. The current decline in the rule of law is evidenced, as in other fields, in that of the law relating to the elderly. In fact, it provides at least one especially valuable example.

The rule of law requires what I would term “procedural justice”. The rule of law is how the law comes about or how it is applied rather than what it is. Bad law, which is put in place by proper legislative process is quite possible and, as most readers will be aware, it is also quite common. But the law, whatever it is, good or bad, must be conducted in a manner that is objectively just if the rule of law is to be said to be in operation. The rule of law tends to arise where:

Underlying law, a written or unwritten constitution, governs the relationship between those who are in authority and those who are not in authority. There are limits on the power of the executive – the ministers and secretaries of state. Although this can seem tenuous, the ultimate sanction is still there. We can vote them out. Even the prime minister as the head of the executive is not above the law. One doubts that the Queen would last long if she committed some terrible crime despite being immune from prosecution as the head of state. European law now also provides some additional force to our unwritten and case law supplemented constitution, which Alfred Lord Tennyson believed created: “A land of settled government. A land of just and old renown, where freedom slowly broadens down. From precedent to precedent.” Over sentimental for the modern reader but he may have had a point;
Judges are not subject to the interference or influence of state officials who have particular interests who otherwise would tend to influence the judicial decision upon the matter in hand. The degree of irritation caused to the tax office by certain cases running against them may generate a subsequent legislative reaction, but it does not generate judicial partiality in favour of the revenue. In Tony Blair’s speech to the Labour Party conference this year he – a lawyer – spoke negatively, in the context of asylum seekers, of “judicial interference”. He implied this interference would be stopped or at least should be stopped. Whatever the reader’s political views or views about asylum seekers, genuine or otherwise, this expression might quite naturally make the hair curl. Even the tough old hairs of barrister’s wigs might strain out of shape just a little. Whatever ECA readers’ views on the subject, the constitution does continue to prove its mettle. Judicial mettle versus political expediency operates as a check however popular that expediency may be;
There is a distinction between those who make the law and those who enforce it. Otherwise it is not possible for the law to be or applied impartially. There is a clear distinction between parliament and the judiciary. In many historical and even current states, that distinction is regrettably absent. In March 1933, special courts were established in Germany. They tried cases of “malicious gossip” against those who, even in private, criticised the government, Nazi Party or Hitler. Later the “People’s Court” was founded in 1934 to deal with “treason type” offences, which seems to have been saying anything at all remotely negative about Hitler or the Reich. Treason equalled death. The law was generally “simplified” by which we should read that the rights of the defendant were suspended. “Anyone who offends against the community of the people, must fall.” The Fuhrer, the government, the ruling party and the courts became one engine of partiality and brutal injustice (see, for example, Robert Gellately – Backing Hitler, Oxford 2001);
Public debate on law occurs in accordance with established procedures. Hansard is not usually such a great read these days. The wonderfully pithy, ideologically generated, javelins of the likes of Benn, Foot, Heath, Thatcher and the like are less common. But the arena is still there and it is also echoed in the committee room.

The rule of law has not always proved universally agreeable. Traditional organic conservatism tends to suggest that the rule of law with all its procedures, checks and balances should be relaxed when dealing with internal or external threats. That applies to criminals and terrorists but can also be readily extended to others who are demonised by those in authority. “If you can get people to believe they are under attack you can get them to do anything,” (Goebbels – attributed). ID cards on the agenda, hard-to-apply, money-laundering rules and prisoners without trial at Guantanamo Bay might lead us to label both President Bush and Tony Blair as politically both traditional conservatives. I await many e-mails for making that suggestion but the reader can probably understand the sentiment if not agree with me directly.

But regrettably some local authorities also appear to be in disagreement with the rule of law in the context of dealing with older people. In particular that is in dealing with the capital assessment of their assets under the National Assistance Act means test for long-term care fees. I refer in the following description to a real case. Some readers may suspect exaggeration. Unfortunately, I have to say that there is none.

Imagine the day comes for a local authority complaints panel hearing over an issue of deprivation of capital. If the elderly person who made the gift can be shown to have intended to secure local authority assistance by way of that transfer, then they will not obtain help with their care fees. The practical effect will be to deprive the recipients of the value received. They would feel duty bound to expend it on care fees. The elderly person, now in care, cannot speak for themselves as they no longer have the mental ability to do so. They are, therefore, a vulnerable person by virtue of both physical and mental frailty and may be rendered more financially vulnerable still by the end of the proceedings.

The daughter, an ordinary hard working, Council Tax paying, member of the community, must represent her mother’s interests and those of the family. The facts have already gone before the commissioners for income support. The evidence, of which there was plenty, concerning the rationale of the transfer was accepted by that independent tribunal. Income support continues. This gives comfort but the daughter knows that the local authority involved have, shall we say, “a bit of a reputation”.

The daughter enters the room where the panel are gathering, alone. The panel is, truthfully, not exactly independent from the local authority complained against. It consists of three councillors from one political party. The locality is a one-party state. There is also an independent member. But upon entering, that member is greeted by the councillors, who are clearly on friendly first-name terms with him. The reference to a recent focus-group meeting in their conversation is also a teensy bit of a give away.

The daughter sits down and the councillors and independent member are all offered coffee and biscuits by an official. The daughter is surprised that she is, quite obviously, ignored on this point.

Eventually, the inquisitor general speaks. The daughter has previously presented detailed papers to the panel. The same that went before the commissioners for income support. The panel have not read them and in fact ignore them throughout. The panel chair asks a selection of seemingly irrelevant, though pointed, questions, which would reveal nothing to anyone of any use. “A point” is clearly being made: “do not mess with us!”

The daughter objects that the questions that the panel appear to think are relevant are not and she attempts to divert them to the facts and the evidence. She is snapped at that: “This is not a court of law.” In fact, it becomes ever clearer that the law has nothing to do with it.

All the daughter has received so far from the local authority legal department is an unreasoned statement that deprivation of capital occurred and care fees are denied. The panel ask the local authority lawyer, hiding away in a corner, to give their reasons. The lawyer simply states that they have been advised that this is a case of deprivation. By who? That is never asked. Why? That is never considered as to either law or fact.

After the hearing, a letter, still with no reasons, repeats that: “In the panel’s view, a deprivation of capital occurred and care fees are denied.” It is mentioned that a further appeal can be made to the director of social services. Another unbiased individual. As for judicial review of the panel decision this can be an expensive and inadequate remedy. It can take the complainant back to square one without resolving the issues. In the present context, it is also a source of some understandable judicial irritation because they must attempt to deal with the aftermath of a system incorporating obvious shortcomings.

This situation is repeated many times daily and is, I submit, a denial of due process and clearly undermines the rule of law. Although there are honourable exceptions, many panels simply operate in a dishonourable fashion:

“Judge not according to the appearance,” (Romans 7 v 24). With operation of the rule of law the personal attributes of the person must not influence the decision. The person becomes an abstract legal entity. In most panel situations, this is simply not likely to happen. There is distinct scope for arbitrary personal “justice” based upon the pleasure or displeasure of any authority. “That shifty looking son is just a liar.” “These people are troublemakers.” “I can’t accept this evidence. I can’t find a way around it but I still won’t accept it.” “The policy is to be tough on these people.” It is submitted that this personalisation of justice is especially likely when poorly trained people sit on panels “trying” cases when they do not even have the facts and details of the relevant law in front of them. They have neither legal knowledge nor independent legal advice to help them assess the case properly. Willingness to listen to reasoned argument on the day is, it appears, frequently lacking. What can a panel base a decision upon in cases dealt with in this way other than some form of prejudice?
The creation of rules in accordance with known and accepted procedures by the recognised authority, namely the legislature through the secretary of state, are routinely ignored in panel hearings. The Charging for Residential Accommodation Guide (CRAG – recently updated as LAC (2003)22 issued by the Department of Health is mandatory guidance on the issue of care-fee assessment, including deprivation of capital. It is routinely, and it is suggested deliberately, ignored or misinterpreted. That is not indicative of the operation of the rule of law.
Openness is a key aspect of the rule of law, which is often absent from panel hearings. Many local authorities seem to have a plethora of policies. But who knows on what? Not all policies are written down. Lawyers are aware that in large institutions, policy sometimes takes the place of law even if the two are diametrically opposed. But local authorities know they have to at least appear to be open to criticism. The word is “accountability”. Unfortunately, few local authorities really appear to want to take criticism so seriously as to take action. As any district auditor will tell you, genuine accountability is hit and miss. There should surely be no room for hidden rules in the guise of policy, which bias proceedings. The law must be promulgated and known but so should anything else subterranean affecting its administration. Providing a panel procedure, but failing to provide reasons for a panel decision on the specifics, suggests secrecy and not openness. It renders the process opaque and pointless especially as the final appeal to the director of social services is generally perceived as an exercise in rubber stamping.
Is the law applied with universality by panels? The rule of law requires that the law must be applicable to all, both lay and lawmaker. Do councillor’s families who complain to councillors get a better deal? Do local authority workers feel they can’t complain? Do they get a fairer hearing? Does political colour affect a decision? The lack of separation between effective law-maker, local authority members on the panel, and the complainant is highly problematic. It leads to all kinds of worries that would be absent if a truly independent, impartial tribunal was involved. Even if these concerns merely amount to rumours, they undermine the credibility of the panel process and the law. Furthermore, the financial interests of any local authority are intimately connected with the issues discussed by panels, especially in cases considering deprivation of capital. Self interest must not be relevant to the making of a decision if the rule of law is to operate. It is inconceivable to the author that panels constituted by a local authority to decide upon local authority matters do not sometimes act primarily in a self-interested manner. Why? Because they can and we are all human and therefore prone to bias especially in judgements concerning our own “back yard”. The anecdotal evidence available also indicates that it happens with great regularity.

I do not have a “down” on local authorities, although I admit to being a cynic by nature and to being deeply disappointed by the evidence. Currently, they are their own political enemy:

It is unfortunate, but for the most part complaints panel hearings, especially in capital-assessment cases, are a legal laughing stock. They affect lip service to the law while playing out time-wasting, unamusing and pointless pantomimes. They become “simplified” show trials, procedural façades lacking any serious legal quality and devoid of fairness. Worse, they tend to demonise vulnerable, hard-working older people, their carers and wider family. These ordinary people become the enemy, an enemy without rights, without the protection of the rule of law, elder-care terrorists. It is reasonable to warn that resentment has a tendency to create a great firmament;
It is a shame that no party political agenda appears to have grasped the need for the simple remedy required to end this parody of justice. But politicians might take notice if they were made more aware that expensive bed blocking could be eased overnight. That is, if people felt they would receive a fair hearing on financial issues upon discharge from the NHS into local authority supported care. As the complaints panel hearing is, quite legitimately, just seen as a biased sham, a blocked bed is considered to be the only means of leverage left to the aggrieved. That benefits nobody.

Perhaps ECA readers might have a significant role to play in securing the place of independent tribunals onto those political agendas? If not then who? Elder care, justice and reduced bed-blocking are certainly good populist issues. Maybe an Arnie is required after all. “Long live the Reaktion…” “I’ll be back.”

Features

Why do the Cretans live so long? Free
In some long-term studies, the Cretan population has been proven to have a lower incidence of heart disease and cancers than in other developed countries. The Cretan people also live longer and, as a visit to any mountain village graveyard will demonstrate, the magical century is still a commonplace life span. Both their excellent health and longevity have been attributed to their diet, a variation on the now famous "Mediterranean diet". ECA's Cretan correspondent Derek Pearce has sought out a leading local chef and taverna owner and asked him for his views on the extended lease on life that Cretans seem to have been granted. Good food, good company and a healthy relationship to eating would all seem to him to be linked. For readers, chilled by another grey British winter, and already thinking about visiting Crete in the summer of 2004, this looks like good news. Take this as both an invitation and a suggestion

The draft Mental Incapacity Bill Free
The draft Mental Incapacity Bill has received a mixed reception, from those who have campaigned for years for legislation to better protect people and enhance their rights, to those who fear that such a bill will allow euthanasia by neglect. Martin Terrell, a partner at Rix & Kay, assesses the publication of the draft bill, the controversies and potential pitfalls, and its implications for decision making in personal welfare and healthcare matters.

Key update: Treatment of investment bonds: Revised Charging for Residential Accommodation Guide LAC (2003)22 Free

Studies on ageing: ECA series in conjunction with the Sheffield Institute for Studies on Ageing (SISA) Free
Clients invariably want to achieve something. A major problem with the perfectly fit and able client can be discerning exactly what. Some have strong but misconceived ideas. Some know nothing at all and need to be led back through some basics before progress can be made. Still more are simply vague and need encouragement to tease out underlying issues. Some omit vital information. Having reached the end of one set of apparently concluded instructions, the client pipes up: “But that still leaves the problem of my mistress and my children on the other side of town.” Pro-forma instructions have a useful role in avoiding such embarrassing situations. But where the communication skills of the client are impaired it is inevitably more difficult and legal advisers can feel exposed by a lack of understanding about the nature and impact of the communication problem. In this article, Pam Enderby, professor of rehabilitation at the University of Sheffield, helps advisers understand some of the complex issues surrounding communication and capability.

Help for the neglected client Free
“Love and a cough cannot be hid” so the old proverb goes but neglect tends to be grey upon grey. Ged Morton, a solicitor working for the City of Sunderland, explains the practicalities of the No Secrets guidance.

The Land Registration Act 2002 Free
“Wilt thou do the deed and repent it? Thou hadst better never been born,” (Sigurd the Volsung, William Morris, 1834-1896). Forgive the pun, but to help readers avoid doing or rather registering their “deeds” wrongly, ECA has asked Ros Lovell of the York Land Registry to summarise the changes wrought by The Land Registration Act 2002 and the Land Registration Rules 2003. For non-property lawyers and other readers outside the legal profession, this might seem unimportant, but it marks the end of some familiar documents. The land certificate and the charge certificate will be no more. There are also changes to one area surrounded by popular myth, namely adverse possession, or “squatter’s rights”.

Community foundations and older people Free
Charitable giving is often a significant thought in the mind of the older person. The saying goes: “Better give a shilling than lend half a crown.” The modern equivalent: “Better give five new pence than lend 0.07 Euros” doesn’t sound quite as snappy. However, Clare Brooks, of Community Foundation Network, reminds readers of one of the more recent and most successful developments in charitable giving linked with the local community.

ECA course: The basics of financial planning Free
“Assumptions” are what we base much of our thoughts on. Useful and false ones abound. To quote Rudyard Kipling in The Old Men: “This is our lot if we live so long and labour unto the end – That we outlive the impatient years and the much too patient friend: And because we know we have breath in our mouth and think we have thoughts in our head, We shall assume that we are alive whereas we are really dead.” Michael Hague continues with part three of the ECA course: The basics of financial planning, with assumptions in mind. In the quest for better understanding, you will probably be surprised to meet “the man in black” and to engage in the “Monte Carlo simulation”. Who said lawyers and doctors have all the good jargon?

Intergenerational justice Free
Elderly Client Adviser has traditionally assisted legal advisers in their support of the property rights of older people. In more recent years, this has expanded to assist legal and other caring professionals in both the private and public sectors in their support of the broader interests of older people. That remains the magazine’s mainspring. But even as this shift in emphasis has developed it has also become apparent that in an increasingly multi-generational world legal advisers, experts and policy-makers will have to grapple with the concept of “intergenerational justice”. This is an especially topical subject, as younger politicians in continental European countries are perceiving that they and their peers are being taken advantage of by older people. Older people who, they argue, were educated for free, were always in employment, worked relatively short hours, retired young and mortgaged their nation’s future to pay for their own state subsidised pensions and extensive welfare provision. In short, some nations are entering an era of intergenerational disputes, which are reminiscent of historical class and industrial conflicts. Jörg Tremmel is the geschaftsfuhrender vorstand (managing director) of the Stiftung fur die Rechte Zukunftiger Generationen (Foundation for the Rights of Future Generations.) He explains what intergenerational justice means and how it will become of crucial socio-legal importance during the next few decades.

The ECA course: Part three Protecting the interests of older people Free
“Of comfort no man speak. Let’s talk of graves, of worms and epitaphs. Make dust our paper and with rainy eyes write sorrow on the bosom of the earth. Let’s choose executors and talk of wills,” (Shakespeare, King Richard II). In this third section of the ECA course, aimed at assisting beginners in the law affecting the elderly, and at providing useful reminders for those already engaged at expert level, David Coldrick indicates some further points relevant to the will-planning solution described in part two.

Regulars

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