The Law in relation to the Assessment and Provision of Community Care Services

Fair Access to Care Services - Background papers mainly for professionals

The Law in relation to the Assessment and Provision of Community Care Services

Index:

Introduction, Scope and Overview of Key Legislation

Assessment

Provision of Services

Introduction

The provision of social services is governed by law. That law consists of primary and secondary legislation (i.e. Acts of Parliament and Rules and Regulations) together with government guidance which must be followed by local authorities save in exceptional circumstances.

In some cases local authorities have a duty to act which means that they must do so; in others they have a power to act, i.e. the law enables them to do something but does not compel them so to do.

Scope

This paper provides a summary of the key laws relating to assessment for, and the provision of, community care services. It is relevant to all practitioners working with adults. National guidance and local policies / practice guidance describe the principles and processes to be followed when undertaking these tasks.

Overview of Key Legislation

There are two aspects to be considered. First, there is the assessment of a person's needs; second, bearing in mind the outcome of that assessment, the decision to provide (or not) particular services.

Assessment

There are a number of statutes that deal with the matter of assessment.

The overarching duty on local authorities is set out in the NHS and Community Care Act 1990.

NHS and Community Care Act 1990 Section 47(1). This imposes a duty on local authorities to carry out an assessment of need for community care services with people who appear to them to need such services and then, having regard to that assessment, decide whether those needs call for the provision by them of services.

An assessment is triggered where :

The person appears to be someone for whom community care services could be provided and
The person's circumstances may need the provision of some community care services

There are a number of other Acts which deal with the matter of assessment:

The NHS and Community Care Act 1990 Section 47(2). If, during the Section 47(1) assessment the person is identified as being 'disabled' *, that person has additional rights as set out in Section 47(2). This requires local authorities to make a decision as to the services required under Section 4 of the Disabled Persons (Services and Consultation and Representation) Act 1986.

Note: * see Section 29, National Assistance Act 1948 below

Disabled Persons (Services and Consultation and Representation) Act 1986 Section 4. This imposes a duty on local authorities to decide whether the needs of a disabled person call for the provision by the Local Authority of any services in accordance with Section 2(1) of the Chronically Sick and Disabled Persons Act 1970.

National Assistance Act 1948 Section 29 (1). To qualify for services under this Section persons must be:

'aged 18 or over who are blind, deaf, or dumb, or who suffer from mental disorder of any description, and other persons aged 18 or over who are substantially and permanently handicapped by illness, injury, congenital deformity or such other disabilities as may be prescribed by the Minister'.

The definition of 'disabled person' should be interpreted in this context to mean people over 18 years who have a permanent and substantial disability such as learning disability, physical disability, sensory impairment, mental health difficulties, chronic illness or any combination of these.

LAC(93) 10 Appendix 4 asks councils to give a wide interpretation to the term substantial to take full account of individual circumstances and a flexible interpretation to the term permanent in cases where they are uncertain of the duration of the condition. Examples include episodic or recurring illness, intermittent disability / conditions.

People who are disabled within the terms of this definition are not obliged to register with the Department, nor is access to assessment and services dependent on registration.

Chronically Sick and Disabled Persons (CSDP) Act 1970 Section 2. This places a duty on local Authorities to assess the individual needs of everyone who falls within Section 29 of the National Assistance Act 1948 above.

Assessment of Carers

The Carers and Disabled Children Act 2000 Section 1. This section gives carers, aged 16 or over, the right to an assessment of their ability to provide care or continue to provide care:

Where they provide or intend to provide a substantial amount of care on a regular basis for another individual 18 or over

And

the local council is satisfied that the person cared for is someone for whom it may provide or arrange for the provision of community care services.

This right exists even where the person cared for has refused an assessment by the local council social services department or has refused the delivery of community care services following an assessment.

Note: The Carers and Disabled Children Act 2000 will only rarely be used by councils looking at the needs of 16 and 17 year old carers. Where it is used in these circumstances the assessment must be child centred and follow the guidance set out in the Framework for the Assessment of Children in Need and their Families (paragraphs 3.61 to 3.63.)

(Ref The Carers and Disabled Children Act 2000 policy and practice guidance).

The Carers and Disabled Children Act 2000 Section 6 . This section provides that a person with parental responsibility for a disabled child has the right to an assessment from the local authority of their ability to provide (and to continue to provide) care for the child. The local authority must take that assessment into account when deciding what services, if any, to provide under section 17 of the Children Act 1989. (Ref The Carers and Disabled Children Act 2000 policy and practice guidance).

Disabled Persons (Services Consultation and Representation) Act 1986 Section 8. Carers also have rights under this section which requires local councils to have regard to the ability of the carer to provide or continue to provide care when deciding what services to provide to the disabled person. In these circumstances the assessment of the cared for person must take account of the carer situation and record this as part of the assessment of the cared for person. This requirement exists even where the caring role is not of a regular or substantial nature.

Mental Health Act 1983, section 117 requires a local authority jointly with the Health Authority to provide aftercare services for people leaving hospital after being compulsorily detained. It is implicit in such a duty that a process of assessment must be undertaken prior to discharge to identify needs and how they will be met.

The delivery of all mental health services is framed within the Care Programme Approach (CPA) which provides the framework for all patients, both in hospital and in the community. Among the key elements of the CPA are:

Systematic arrangements for assessing people's health and social care needs
The formulation of a care plan which addresses those needs
The appointment of a Care Co-ordinator
Regular review of the care plan.

Other specific assessment requirements within Mental Health are determined by Sections 2, 3, 4 and 7 of the 1983 Mental Health Act. These sections require an Approved Social Worker to undertake an assessment of an individuals mental health along with key health colleagues.

Provision of Services

Fair Access to Care Services and the Duty To Provide

Once a community care assessment is carried out, councils need to make decisions about whether to provide support or not to individuals. Fair Access to Care Services (FACS) provides councils with an eligibility framework for adult social care to identify whether or not the duty to provide services under the following legislation is triggered. (Ref. Fair Access to Care Services policy and practice guidance).
The duty on social services to provide or arrange services is triggered only for those people with eligible needs - that is needs above the threshold for services line. The national FACS policy - LAC (2002)13 - states that councils may take account of the resources available to them in deciding which needs to meet.
Needs that are identified as eligible needs and which sit within the laws relating to a duty on Social Services to provide services must be met. How those needs are met is a separate issue.

Provision of services takes place primarily under:

The National Assistance Act 1948, Section 21 and Section 29
The Chronically Sick and Disabled Persons Act 1970, Section 2
The Health Services and Public Health Act 1968, Section 45
The NHS Act 1977, Section 21
Mental Health Act 1983, Section 117
Carers and Disabled Children Act 2000
Community Care (Direct Payments) Act 1996

Duty to arrange/provide services for people with Eligible Needs

National Assistance Act 1948 Section 21(1). Concerns the provision of residential accommodation to certain groups of people over 18 years who through age, illness, disability or any other circumstances are in need of care and attention which would otherwise be unavailable to them. The duty is owed to people 'ordinarily resident' in the Local Authority's area.
National Assistance Act 1948 Section 29. The local council has a duty to exercise its powers for people 'ordinarily resident' in its area and must provide:

A social work advice and support service
Facilities for rehabilitation and adjustment to disability
Facilities for occupational, social, cultural and recreational activities

Chronically Sick and Disabled Person's Act 1970 Section 1. This section imposes a duty on local authorities to provide information about relevant services.

Chronically Sick and Disabled Person's Act 1970 Section 2 (1). This section sets out the types and range of services that local council's should have available to meet the needs of 'disabled people' *. These include: provision of practical assistance in the home; provision of recreational facilities outside the home or assistance to take advantage of educational facilities; provision of assistance with works for adaptation in the home; provision of meals.

Note: * See Section 29(1) of the National Assistance Act 1948 above.

National Health Services Act 1977 Section 21. This section identifies that services can be provided in relation to expectant mothers, prevention and after care and that home help and laundry facilities are functions exercisable by social service authorities. Schedule 8 identifies the power to provide and maintain day centres or similar facilities and power to arrange services specifically for people with alcohol and drug problems. Also to provide laundry services as part of the input of home help services.

Mental Health Act 1983 Section 117(2) This section creates a joint duty on the local Health and Social services Authorities to provide after care services to various categories of people who have been detained in hospital for as long as the person needs them. Aftercare services are not defined in the Act but will include social work support in helping the ex-patient with problems of accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities.

Community Care (Direct Payments) 1996 Act This sets out the circumstances when direct payments should be considered. It gives local authorities the power to offer people cash payments as an alternative to arranging social care services to meet their assessed, eligible needs. (Ref Direct Payment policy)

Carers may also have access to Direct Payments. See Carers and Disabled Children Act 2000 Section 5 powers set out below.

Health Services Act 1968 Section 45. The Local Authority has a power to make arrangements to promote the welfare of older people.

The Carers and Disabled Children Act 2000 Section 2. Under this section the Local Authority has powers to provide services for carers following a carer's assessment (whether joint or separate) under Section 1 of this Act. Services to carers are not defined by the Act. The local authority may provide any services they see fit to provide and which in their view help the carer care for the person cared for. These services may take the form of physical help or other forms of support such as training or counselling for the carer. (Ref The Carers and Disabled Children Act 2000 policy and practice guidance).

The Carers and Disabled Children Act 2000 Section 5. This section extends the option of Direct Payments to carers aged 16 years or over who care for a person aged 18 or over. (Ref The Carers and Disabled Children Act 2000 policy and practice guidance).