COMMUNITY CARE LAW. Michael Preston Shoot April 2009

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1 COMMUNITY CARE LAW Michael Preston Shoot April 2009

2 Range of needs Older age Disability Mental health Illness Other circumstances

3 Range of services Domiciliary care Residential/nursing care Supported independent living

4 Definition of community care services NHSCCA 1990 s.46 definition part 3, NAA 1948 s.45, HSPHA 1965 (s.21 and sch.8, NHSA 1977) NHSA 2006 s.117, MHA1983 s.2, CSDPA 1970

5 Part 3, National Assistance Act 1948 s.21: residential accommodation duty 18+ s.29: non residential services to promote the welfare of disabled people Duty social work services advice and support social rehabilitation or adjustment to disability registers occupational, social, cultural and recreational facilities workshops and hostels Power holiday homes travel assistance in finding accommodation warden costs warden services information

6 S.45, Health Services & Public Health Act 1968 Power to make arrangements for promoting the welfare of older people provision of meals and recreation information on services travel assistance assistance in finding accommodation social work support and advice home help and home adaptations warden costs warden services

7 (s.21/sch.8 NHS Act 1977) NHS Act 2006 Duties for people with mental disorder training and occupational centres guardianship social work services home help (to all, regardless of category) Powers for people who are ill, aged or disabled training and occupational centres meals social work advice and support night sitting holidays social and recreational activities alcohol and drug dependency services laundry services

8 s.117, Mental Health Act 1983 Aftercare for people discharged from compulsory detention in psychiatric hospital under sections 3, 37, 47, 48

9 s.2, Chronically Sick & Disabled Persons Act 1970 Duty to provide non residential services for any disabled person assessed as needing them practical assistance in the home wireless and television library or similar recreational activities lectures, games, outings or other recreational activities outside the home travel to participate in such activities assistance with home adaptations holidays meals telephones

10 Accessing community care services Assessment of need Eligibility Review Care plan & package

11 Assessment mandates s.47(1) NHS and Community Care Act 1990 where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority: shall carry out an assessment of his needs for those services, and having regard to the results of that assessment, shall decide whether his need calls for the provision by them of any such services

12 s.47(2) NHSCCA 1990 assessment under both for disabled people if at any time during the assessment. it appears to the local authority that he is a disabled person, the authority (a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (Services, Consultation and Representation) Act 1986 without his requesting them to do so and (b) shall inform him that they will be doing so, and of his rights under that Act

13 s.47(3) NHSCCA 1990 referral to health & housing authorities If at any time during the assessment of the needs of any person it appears to a local authority: (a) that there may be a need for the provision to that person by (a health authority), or (b) that there may be a need for the provision to him of any services which fall within the functions of a local housing authority the local authority shall notify that authority and invite them to assist, to such extent as is reasonable in the circumstances, in the making of the assessment

14 Disabled people s.4, Disabled Persons (Services, Consultation & Representation) Act 1986 when requested to do so by a disabled person, or any person who provides care for him, a local authority shall decide whether the needs of the disabled person call for the provision of any services in accordance with section 2(1) of the Chronically Sick and Disabled Persons Act 1970

15 Disabled children s.5/6 Disabled Persons (Services, Consultation and Representation) Act 1986 Social services must determine whether a child who has a statement of special educational need is disabled at the first review after the 14th birthday. The school leaving dates of children so identified must be notified to social services, so that an assessment of need for community care provision can be made.

16 Definition of disabled s.29 National Assistance Act 1948 and s.17(11) Children Act 1989 blind, deaf or dumb, or who suffer from mental disorder of any description, and other persons who are substantially and permanently handicapped by illness, injury or congenital deformity, or such other disabilities as may be prescribed

17 Asylum seekers Immigration & Asylum Act 1999 excludes asylum seekers from public support and from s.21 NAA1948 support if need arises solely from destitution Immigration Asylum & Nationality Act 2002 welfare services provided through accommodation centres Children and adults in need of care and attention (e.g. through disability) are still be eligible for non economic support from local authorities

18 Guidance on assessment DH (1990) Community Care in the Next Decade and Beyond: Policy Guidance DH (1991) Care Management and Assessment: Managers' and Practitioners Guides Single Assessment Process (HSC 2002/1). Community Care Assessment Directions 2004

19 Single Assessment Process Person centred, standardised and outcome focused Levels of assessment contact/overview/specialist/comprehensive Stages of assessment information/referral/assessment/evaluation/careplanning/monitoring & review Domains of assessment User s perspective/clinical background/disease prevention/personal care/physical wellbeing/senses/mental health/relationships/safety/environment and resources

20 Care planning Individual choice Assessed needs Risk and protection Eligibility/resources

21 Eligibility Two tier decision under s.47(1) Eligibility criteria set in line with policy guidance Fair Access to Care Services Guidance Continuing Care Guidance It is not lawful to make blanket exclusions from eligibility or from services

22 Fair Access to Care Services 2002 Risk to independence as the guiding principle in determining eligibility Four tiers of priority Critical Substantial Moderate Low Councils may take into account Resources Local expectations and costs Agreements with other agencies (eg NHS)

23 Continuing Care 2001 R v North & East Devon Health Authority ex parte Coughlan [1999] 2 CCLR 285 Local authorities only responsible for nursing care that is incidental or ancillary to accommodation and care that a social services authority can be expected to give HSC 2001/15 Guidance on issues to be taken into account in determining responsibility R (Grogan) v Bexley NHS Trust & South East London SHA & Secretary of State for Health [2006] 9 CCLR 189 The criteria used by Bexley for determining continuing health care eligibility were fatally flawed The government guidance is insufficiently clear

24 The impact of resources Gloucestershire judgement R v Gloucestershire CC and Another ex p Barry [1997] 2 All ER 1 Resources may be taken into account when setting eligibility criteria Resources may not be taken into account when assessing need itself but may be considered when deciding whether and how it is necessary to meet assessed needs Once service is deemed necessary, what is provided must be able to meet the identified needs

25 Carers assessment s.8, Disabled Persons (SCR) Act 1986 Where an assessment of a disabled person is being undertaken under s.4 of this act, the assessment must take into account the carer's willingness and ability to continue to care s.1, Carers (Recognition & Services) Act 1995 where a local authority carry out an assessment under section 47(1) of the NHS and Community Care Act and an individual (the carer) provides or intends to provide a substantial amount of care on a regular basis. the carer may request the local authority, before they make their decision as to whether the needs of the relevant person call for the provision of any services, to carry out an assessment of his ability to provide and continue to provide care for the relevant person

26 Services to carers Carers and Disabled Children Act 2000 Power to assess a carer over 16 even where cared for person has refused assessment Power to provide services to carers Power to make direct payments Voucher schemes for respite provision to increase flexibility and autonomy Focus on information, flexibility, emotional support and responsiveness to individual need

27 Carers (Equal Opportunities) Act 2004 Duty to inform carers (including children) of rights to assessment under previous legislation Duty to consider work education, training and leisure when undertaking assessment Duty of co operation between authorities in planning and providing for carers services Carers and Disabled Children Act 2000 and Carers (Equal Opportunities) Act 2004 Combined Policy Guidance

28 Direct payments Community Care (Direct Payments) Act 1996 (later integrated within the Health and Social Care Act 2001) cash payments to meet assessed need disabled people (including young people 16/17), older people, carers Community Care, Services for Carers and Children s Services (Direct Payments) Regulations and Guidance 2003 Duty to provide direct payments where the conditions are met Community care services (s.46 NHSCCA 1990) Carers services (s.2 Carers & Disabled Children Act 2002) Family support (s.17 Children Act 1989) Set to become the cornerstone of provision Individual budgets (Independence, Well Being and Choice 2005/Our Health, Our Care, Our Say 2006)

29 Charging for services Residential s.44, NHSCCA 1990 residential accommodation must be charged for (but nursing care is excluded) National Assistance (Assessment of Resources) Regulations 1992 Community Care (Residential Accommodation) Act 1998 local authorities must follow the charging regulations LAC(2000)3 accommodation as part of s.117 aftercare package may not be charged for Services forming part of intermediate care package provided free for 6 weeks Non residential s.17 HASSASSA 1983 charging is optional (and encouraged) LAC(2000)3 services as part of s.117 aftercare package may not be charged for LAC (2001) 32 Guidance on Fair Charging Policies