LocalGovernmentLawyer Adult Social Care 2017 13 “Different local authorities take different views and have taken different advice on it and you end up with some very different positions when the law is so unclear, meaning that you end up with quite arbitrary decisions,” said another. While it remains to be see whether this situation will improve following the publication of revised statutory guidance on ordinary residence at the end of last year, one additional unfortunate side- effect of ordinary residence disputes, it was noted, has been to put a barrier between joint working and information sharing between neighbouring authorities’ legal teams in some parts of the country. Where this problem has not got in the way, the benefits of neighbouring social care lawyers sharing their experiences were described as being “substantial”. Working with the healthcare sector As well as friction between local authorities, there also remains considerable uncertainty and disagreement about where when and where responsibility for social care is passed from healthcare providers to local authorities. The issue, it was generally agreed, is as much cultural and practical as legal. An example cited was the frequent failure of healthcare providers to give proper consideration under s117 of the Mental Health Act at the outset to what constitutes social care and what constitutes healthcare provision. The result is that, if a dispute arises later, there is no written assessment of a patient’s needs on which to base a decision. It is yet to be ingrained into many medical professionals that a patient’s needs should be considered as a whole, but many do not seem to consider this to be part of their roles. “If you’re a doctor, you don’t want to be filling out one of your forms trying to identify whether what you’re providing is in legal terms health or social care,” said one participant. “It’s kind of a legal problem imposed upon medical practice out of our need for tidy mindedness but for the poor people on the ground it’s pretty problematic.” Peggy Etiebet, a barrister at Cornerstone Barristers, said that this situation frequently creates problems in the event of a dispute. “When we have a challenge and I’m asking my client who is responsible for providing the existing joint package and they can’t give me an answer, so I don’t know who to take instructions from and I don’t know who can make the decision, whether it’s social care or whether it’s health. When a dispute occurs that’s when the trouble happens because in law, it’s either social care or health and I need to know which one it is.” This, it was generally agreed, is symptomatic of the wider issue of the lack of integration between local authorities and healthcare providers. For example, while the s7 duty to co-operate was found to be working well in some parts of the country, more commonly it as described as being a “damp squib” that is yet to be used by many local authorities. And, as the survey showed, Section 75 agreements may now be widespread but they do not seem to be a panacea either. “When things get tough people tend to retreat back to what they know and so they tend to retreat back to ‘well I’m doing social care and you can do the health’, or the other way round, and we’re not paying for that because that’s a health need,” said a participant. “You then have a row between managers over whether this is covered by the Section 75 agreement while, in the meantime, you’ve got a judicial review ticking away and you’re trying to explain to the solicitors that we haven’t actually yet identified a client to take instructions from and they can’t understand quite why you haven’t identified a client after two weeks. And it’s really tough.” So if the Care Act has failed to significantly improve the integration between health and social care, what prospect is there of further legal reform? According to the Law Commission’s Tim Spencer-Lane, while desirable, legal reform in this respect remains a long-term prospect. “We often talk about integration as a law reform concept rather than a practice-lead concept, but there are big policy issues to chew on if you are talking about integration at a legal level,” he said. “What happens to the individual duties, what happens to the charging issues? But if the government did bite the bullet and really go down that route, then these are the sorts of issues it would have to grapple with and I think that would be fascinating.” In the meantime, what effect might further devolution have? One of the key features of the Greater Manchester Devolution deal was that the regional mayor would be given control over the NHS in the region. Weightmans’ head of local government Simon Goacher told the roundtable that his firm had recently hosted a roundtable involving the region’s Director for Integration and that proactive efforts are being made to improve functioning of health and social care in the city. “They have put a lot of effort and time into developing what they call a ‘Manchester First’ culture, where they think about the people of Greater Manchester rather than their own institutional issues. The project had quite an injection of transformational funding to “When we have a challenge and I’m asking my client who is responsible for providing the existing joint package and they can’t give me an answer, so I don’t know who to take instructions from and I don’t know who can make the decision…that’s when the trouble happens because in law, it’s either social care or health and I need to know which one it is.” Peggy Etiebet, Cornerstone Barristers Attendees Derek Bedlow Publisher, Local Government Lawyer Jill Bailey Principal Lawyer, London Borough of Enfield Lanna Childs Lawyer, HB Public Law Tom Crookes Solicitor, Gateshead Council Peggy Etiebet Barrister, Cornerstone Barristers Simon Goacher Head of Local Government, Weightmans LLP Philip Hoult Editor, Local Government Lawyer Lynn Hull Adult Social Care Lawyer, Peterborough City Council Anne Kingsley Professional Support Lawyer, Lexis Nexis Tim Spencer-Lane Lawyer, The Law Commission