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Adult social care problems - taking legal action

This advice applies to England

If things go wrong with your adult social care, you may have to take legal action to solve the problem.

In most cases, making a complaint using the local authority complaints procedure will solve a problem. But in some cases, you might need to take legal action.

You could start legal action as well as making a complaint. Taking legal action shouldn’t normally prevent or delay your complaint being investigated through the local authority complaints procedure if you want it to be. However, in very exceptional circumstances, this could happen, for example, if a judge rules that the investigation of a complaint would interfere with the legal case. If you're told that legal action is why your complaint isn't being investigated within a reasonable time-scale, you should get expert advice.

Remember that legal actions can be expensive and time-consuming and you’ll need expert advice before you consider taking legal action.

Making a claim for compensation

If you’ve been injured because of the negligence of a local authority or care provider, you may be able to make a claim for compensation. You’ll need specialist legal advice about this.

Reviewing a decision - judicial review

You may be able to take legal action so that a court can review the decision of the local authority. This is called judicial review. You have the right to make a claim for judicial review if you’ve been affected by an unlawful act or decision of local authority. For example, this could be an option if you need to challenge a decision not to provide care services. You’ll need specialist legal advice about judicial review.

Human rights law

You may be able to take legal action for a breach of one or more human rights under the Human Rights Act 1998, for example:

  • the right to respect for private and family life
  • the right not to be  treated in an inhuman or degrading way.

Local authorities and private companies or voluntary organisations with a contract with the local authority to provide care services have a legal duty to follow the Human Rights Act.

Situations that may involve inhuman or degrading treatment include:

  • not helping you to eat if you're too frail to feed yourself
  • using too much force to restrain you
  • ignoring your calls for help
  • washing or dressing you without caring about your dignity.

Example

X was staying in hospital following a number of strokes. Against her wishes, the hospital wanted to discharge her and move her into residential care as this would be cheaper than caring for her at home. She argued that if she was moved into residential care, this would have a negative impact on her mental health and would be against her human rights. As a result, funding was arranged to support her care at home.

This example is based on a case study written by the Britsih Institute of Human Rights. For more details, go to: www.bihr.org.uk/

You’ll need specialist legal advice about taking action under human rights law.

Discrimination

Here are just some examples of discrimination:

  • you’re refused care because of your age
  • you’re not given information about the costs of care in large print and you can’t see to read normal print - this could be disability discrimination
  • staff in a care home make jokes and insulting comments about your disability. You could have a claim for harassment
  • your local authority social services department take longer to assess your needs because you’re an Irish Traveller. This is discrimination because of race.

Discrimination is only against the law if it’s because of things like your age, disability, sex, sexual orientation or race.

You can take legal action about discrimination and will need specialist legal advice.

Get help

You will almost always need specialised legal advice to take one of the cases described above. Your local Healthwatch might be able to give you the details of local specialist solicitors.

Next steps

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