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Useful
Information 
See Below for:-
Act to provide carers with new rights and
services
Local authority told it must consult on
home care charges
Do councils have duty to provide
services to children in need?
Human Rights Act. DOH Guidance to
councils.
Act to provide carers with new rights
and services
What effect will the Carers and Disabled
Persons Act 2000 have when most of its sections come into force on 1 April 2001?
The
act is already on the statute book, but it was only on 14 February this year that
the Secretary of State made an order bringing most of its provisions into force
on 1 April. The act in general terms provides carers with much needed statutory
rights to access assessments and possible provision of services to support them
in their caring roles.
One of the main provisions of the act is to give a carer (over 16) the right to an assessment if they are providing a substantial amount of care on a regular basis to a person (over 18) to whom the local authority would have the power to provide community care services.
The
assessment is of the carer's ability to care, but importantly, the local authority
must consider the assessment and then decide (1) whether the carer has needs in
relation to the care provided; (2) whether the local authority could meet those
needs; and (3) if so, whether services should be provided.
The local authority is
given a very wide discretion as to the services it can provide to a carer, so
long as it will "help the carer care for the person cared for".
The exception to this is that services of an intimate nature cannot normally be provided under this act to the cared for person. New regulations define what constitutes a service of an intimate nature and includes most personal care.
As services can sometimes be provided either through this act or through the NHS and Community Care Act 1990, the act states that the local authority must decide under which provision the service is being provided. This is clearly important for the local authority and the service users to know who the recipient of the service is, who can be charged, and who may be entitled to direct payments.
As to charging, the act contains specific provision for charging carers for services they receive, on the same basis that community care service users can be charged. On direct payments, the act contains amendments to the Community Care (Direct Payments) Act 1996 to allow carers in receipt of services under the new act to be entitled to be considered for direct payments in lieu of services.
Next, the act makes provision for a person with parental responsibility for a disabled child to request an assessment of his or her ability to care for that child, where the local authority is satisfied that it could provide services under section 17 of the Children Act 1989 (whether it is assessing the child and its family for such services or not). The local authority must then take the assessment into account when deciding what, if any, services to provide under section 17. Further, on section 17 of the Children Act 1989, a new section 17a is to be added, giving the local authorities powers to make direct payments in lieu of Children Act services, either to a person with parental authority or to the child him or herself if aged 16 or 17.
Practitioners also need to be aware that a plethora
of guidance comes with the new act. Policy guidance (which social services departments
must comply with other than in exceptional circumstances) deals with the scope
of the act, assessments, service provision and direct payments. There is also
new practice guidance on the provisions of the act as they affect carers, young
people and direct payments. All guidance is available on the Department of Health
website - www.doh.gov.uk
Local authority told it must consult on home care charges
The case of the Queen on the application of Carton v Coventry Council (30 November
2000) engaged some of the issues raised in the draft guidance recently issued
on home care charges.
Service users argued that the local authority had acted unlawfully by failing to instigate a consultation process with users before deciding whether to increase charges for home care services. It was also argued that it was wrong for the council to take into account income derived from disability living allowance paid for night time care, when calculating the charge for daytime services provided by the council.
The court accepted that to substantially alter a charging policy without consultation was unlawful because (a) users had a legitimate expectation of being consulted where there had been consultation when changes had been proposed on previous occasions; and (b) it was unfair not to consult when the changes had a significant impact on users. The court also held, without saying more, that "it was irrational, unlawful and unfair for the defendants to apply a new charging policy which treated as income available for day care sums of disability living allowance paid in respect of night care".
Extensive formal government guidance is available to local authorities in relation to charges for residential care, none is currently available for charges for home care services, levied under section 17 of the Health and Social Services and Social Security Adjudication's Act 1983.
The
department of health is now seeking to remedy that situation with draft guidance
issued as "Fairer Charging Policies for Home Care and other Non-residential Social
Services", together with a consultation paper inviting views by 30 March 2001.
Both documents can be found at http://www.doh.gov.uk/scg/homecarecharges/index.htm.
Some of the points made in the draft guidance are as follows:-
Local authorities have a broad
discretion as to whether to charge and what charging system to adopt charges should
not reduce income levels below basic levels of income support disability living
allowance and attendance allowance can be taken into account as part of a person's
income, but a means test is the best way to ascertain whether such income is available
to be considered. DLA and AA paid for night care should not be taken into account
when considering charges for day services.
Welfare rights advice should be provided at
the same time as charges are assessed Councils are advised to consider adopting
the levels of capital disregards used for residential charges, although the value
of a person's home should not be taken into account Advice is given about taking
into account joint income and savings where the person has reliable access to
these Advice is given about levels of income to be taken into account, and maximum
levels of charging to be set to avoid "poverty traps" and "work disincentives"
Users should receive information about how charges are calculated and how a review
can be requested. Consultation about charging policies and increases in charges
should follow "good practice advice". (Following the Carton v Coventry Council
30 November 2000 case, of course, there will be some situations where consultation
is legally essential) and Services should not be withdrawn simply because of a
failure/inability to pay charges. Stephen Cragg Doughty Street Chambers
Do councils have duty to provide services to children in need?
One
of the unresolved issues in community care law is the nature of the duty under
section 17 of the Children Act 1989 to children in need. Do local authorities
have an absolute duty to provide services to children in need, once that child
has been assessed as needing that service? Or does the assessment of need provide
no more than a target for social services to provide such services as they are
able, subject to available resources?
The issue becomes most stark where local authorities assess children in need as requiring larger or more suitable accommodation.
Despite the granting of permission (the process by which the court decides that a case is at least arguable), in a number of judicial review cases where it is argued that the section 17 Children Act duty is an absolute duty which must be met once the need for accommodation is assessed, the courts have still not finally adjudicated on the matter.
In two recent cases settlement was reached on the day of the final hearing meaning that the court no longer needed to consider the matter. In The Queen on the application of Abaidia v London Borough of Lambeth (CO/1072/99, 4 December 2000), the local authority agreed to provide the claimant and her eight children with a five-bedroom house within a fixed period of time. In The Queen on the Application of Brummell v Manchester City Council (CO/3574/00, 15 January 2001), the local authority agreed to reassess the need for accommodation and undertook not to take its resources into account when deciding on such need. In both cases the local authorities paid the claimants' costs.
Human Rights Act. DOH Guidance
to councils.
ARTICLE 8 - Right to respect for private and family
life, home and correspondence
7.Health and social services inevitably have an impact on people's private and family life, in many cases of the most serious kind, for example separating parents from their children. Z v the UK mentioned above, raised Article 8 points although the Commission found there was no separate issue under Article 8 in addition to the violation of Article 3. In TP & KM v UK which concerned the removal of a child into care it was found that the mother applicant was not provided with a proper, fair or adequate opportunity to participate in the decision making process in breach of Article 8. An emergency place of safety order was obtained in which evidence by way of a video interview with the child played a large part. There was nothing wrong with the emergency procedure but the continuation of that order without the participation of the applicant was wrong, in particular the fact that the video was not made available to the applicant for a year. The case was also referred to the Court last autumn.
Chief Inspector SSI to council.
5. Social
Services Departments should actively develop existing good practice in a manner
suited to the new human rights culture, linking as appropriate to the equality
and race-relations agenda.
2. The Act will apply to Local Authorities, the NHS and persons from whom they contract services and private or independent bodies when they provide public services.
The right to respect for private and family-life, the right to life and not being subjected to inhuman and degrading treatment. When the Human Rights Act comes into effect, people will be in a stronger position to challenge before the UK courts, what they consider to be unjustifiable interference with those rights by health and social care laws, policies, practices and procedures.
Where a Social Services Department decides not to provide social services, or does not provide the services that the user wants, it will be open to the user to challenge the social services' decision through the Courts, in particular by means of judicial review. The challenge would often focus on the needs of the user and/or whether the Social Services Department decided the matter unfairly or unreasonably. The user could raise points under the ECHR. It would be advisable for social services authorities to identify the potential areas of challenge and take advice as to how this will affect their decision-making.
Watch this space for more to come.
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