ACCESSING COMMUNITY CARE SERVICES – THE LEGAL FRAMEWORK

Lisa RichardsonSolicitor, Public Law DepartmentIrwin Mitchell LLP, Manchester

Introduction

• Who am I?

• What is community care?

• What is the lawful assessment process?

• What can I do if things go wrong?

What is Community Care?

1. Community care refers to services provided to vulnerable members of society (adults or children) to enable them to live as independently as possible for as long as possible.

2. Community care is also a legal term - refers to those non-medical services provided by social services departments rather than the NHS.

• Section 17(1) Children Act 1989: duty of LA “to safeguard and promote the welfare of children within their area who are in need”

Who is a “child in need?”• S17(10) Children Act 1989:a) unlikely to achieve or maintain…a reasonable

standard of health or development without the provision of services by a LA; or

b) their health or development is likely to be significantly/further impaired without such services; or

c) they are disabled

Community Care: Children

– For the purposes of s17 CA, a child is disabled if they are “blind, deaf, dumb or suffer from mental disorder of any kind or is permanently handicapped by illness, injury or congenital deformity”

– “development” means physical, intellectual, emotional, social or behavioural

– “health” means physical or mental health

– mental disorder – autism, Asperger’s Syndrome or ADD

Community Care: Children

Community Care: Children

What services are available?

• Once a child is accepted as being “in need” and that need is identified in an assessment, a number of support services are available under section 17(2) of the Children Act

• LA is required to provide a range of services appropriate to the child’s needs which can include:

– Advice, guidance and counselling

– Occupational, social, cultural or recreational activities

– Home help (including, eg, laundry facilitites)

– Facilities for or help with travelling to any other service provided

– Assistance to enable the child and their family to have a holiday

– Services designed to minimise the effect of their disabilities on disabled children (adaptations, equipment)

Community Care: Children

What services are available?

• In addition, if a child is considered to be disabled within the meaning of s17 CA, they will be entitled to the following services under s2 CSDPA 1970 if the local authority considers it necessary to provide such services to meet the child’s needs:

– Practical assistance in the home (eg dressing, washing, cooking, cleaning etc)

– Provision of equipment to satisfy a recreational need (eg computer, television,etc)

– Provision of recreational facilities (day centres, recreational outings, drop- in clubs etc)*

– Provision of educational facilities (i.e. enabling the individual to access to educational facilities)

– Travel and other assistance (to participate in any community based services)

Community Care: Children

How can I access services for my child?

• Request an assessment - Not an explicit duty to assess (as for adults) but case law established duty does exist

• Guidance – “Working Together to Safeguard Children”

• A local authority should make a decision about the type of response that is required within 1 day (i.e. any urgent action, s17 assessment needed)

• A maximum of 45 days for an authority to ‘conclude’ an assessment and decide what steps to take

• LAs should have local protocols for assessment setting out how the cases will be managed once a child is referred to social services

Assessment Guidance• The Guidance makes it clear that whatever legislation the child is assessed

under, the assessment should:

– gather important information about the child and family including liaising with any relevant agencies (eg. health services)

– see the child to ascertain their wishes and feelings

– conduct interviews with the family (separately from the child and together as appropriate)

– analyse their needs and/or the nature and level of any risk and harm being suffered by the child,

– Inform all the relevant agencies and the family of any decisions and, if the child is in need, of the plan for providing support

Assessment Guidance

• If an assessment is requested there is no legitimate way for an authority to avoid carrying one out if it accepts the child is disabled or otherwise ‘in need.’

• However, an assessment may not be required if family are satisfied by services being provided informally through some form of ‘local offer’

Children and Families BillThe Children & Families Bill, at present going through Parliament, is expected to become law from September 2014. This will include:

• A requirement for LAs to publish and maintain a Local Offer with information and advice for parents of children with SEN & disabilities re. what Education, Health and Social Care services are available locally and how to access them.

• Establish the new Education, Health and Care Plans (EHC Plans)

– Replace current Statement of SEN and Learning Difficulty Assessment - broadly the same as the current SEN but the ECH Plan will run from birth to 25

– Streamlined assessment - co-ordinated across education, health and care. Information from existing relevant assessments should be used and professionals should share information.

– Provides for a personal budget to be offered as a way to receive the support set out in the ECH Plan – detail to be set out in regulations.

• Insert a new section 17ZA into the Children Act 1989, which will require provision being made to children ‘in need’ under section 17 of the 1989 Act to continue after the young person turns 18 where an EHC plan is maintained.

How are services provided?

• Guidance – “Where the local authority children’s social care decides to provide services, a multi-agency child in need plan should be developed which sets out which agencies will provide which services to the child and family. The plan should set clear measurable outcomes for the child and expectations for the parents …”

• Personal budget – the amount that the LA considers sufficient to purchase services to the child’s eligible needs

• Choice of whether to receive directly commissioned services or receive direct payments and arrange the services yourself

• The LA must be able to break down the PB to show it meets assessed needs BM v Lancashire County Council [2011] EWHC 2931 (Admin)

CarersCA 1989 s17(3) – services can also be provided to the child’s family to safeguard or promote the child’s welfare

Carer’s assessments

•right to a carer’s assessment if you provide (or intend to provide) a substantial amount of care on a regular basis for your disabled child.

•“regular basis” - 1995 Carer’s Act Practice Guidance – care that is regularly provided includes care given as and when a fluctuating condition requires it.

•“substantial amount” – 2000 Carers Act Practice Guidance – key test is to consider the impact of the caring role on an individual carer

•LA must let carer know of their right to a carer’s assessment if they are carrying out or considering carrying out an assessment of a child for whom you are providing (or intending to provide) a substantial amount of care on a regular basis

Carers

• Purpose of carer’s assessment is to assess ability to provide and continue to provide care for your child.

• Will look at

• Autonomy (your views about carer role)

• Health and safety (impact of caring on your wellbeing)

• Managing daily routines (how these may be affected by caring)

• Involvement (whether your participation in other areas of your life, is diminished because you are a carer

• Will also look at whether you are working or want to work or take part in education, training or leisure activites

• Assessor will then decide whether the risk to your ability to care for your child is critical, substantial, moderate or low

• If critical or substanial, LA must take action . May provide services for you, eg

• Training

• Driving lessons

• Help with housework

• Repairs/insurance for a car

Access to short breaks• There is no duty to provide services for carers, only a power. Therefore, may provide services to your

child which benefit you, such as short breaks or respite care.

• From 1 April 2011, duty under s25 of Children and Young Person Act 2008 on LA’s to provide ‘breaks from caring to assist parents and others who provide care for disabled children to continue to do so’

• A short breaks service must comprise a range of short breaks including:

• Day time care in or outside the child’s home

• Overnight care in or outside the child’s home

• Educational and leisure activities

L A’s must also produce a short breaks services statement. This statement must set out details of

• The types of breaks available

• Eligibility criteria

• How the range of services is designed to meet the needs of carers in their area

If assessment has shown respite/short breaks are required, LA must ensure these are put in place – vouchers, DPs

Social Care : AdultsNHS CCA 1990 s.47(1) :

•Where it appears to a local authority that any person for whom they may provide community care services may be in need of 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 needs call for the provision by them of any such services

•Social Services are under a duty to involve carers in the assessment of the user’s needs and in the planning process

•Carers who feel they need community care services in their own right can ask for a separate assessment.

– The assessment should be conducted without taking into account the resources of the authority or the disabled person.

– A local authority must also assess each need as being either low, moderate, substantial or critical. It will then have its own policy as to which of those needs it will meet, for example any need assessed as substantial or critical.

– The assessment should be completed within a reasonable period (28 days)

Social Care : Adults

• Individuals with long term care needs will often require services from the NHS as well as their Local Authority's Social Services Department.

• The distinction between Social Services care and NHS care is important because services provided by the NHS are free, whereas those arranged by Social Services are means tested.

• If a child has complex needs, the boundaries between health and social care are not always clear.

NHS Care

The assessor will gather information about your child, including assessments from other agencies (eg social services) before using theChildren and young people’s decision support tool to help decide if your child has continuing care needs.

The decision support tool looks at 10 areas, called "care domains". These are:•challenging behaviour •communication •mobility •nutrition, food and drink •continence and elimination •skin and tissue viability •breathing •drug therapies and medicines •psychological and emotional needs •seizures

For each of these, there are five possible levels of need:•priority •severe •high •medium •low

The assessor will decide which level of need applies to each care domain, taking into account the age of your child and the care they would be expected to need if they weren’t ill or disabled.

If your child is found to have three high ratings, one severe rating, or one priority rating, it’s likely that they’ll be eligible for NHS continuing care. 

At the end of the assessment phase, the assessor will make a recommendation about whether your child has a continuing care need, and if so, the care package that would be required to meet their need.

NHS Care

Interaction between NHS and LA

• Section 82, NHS Act 2006: NHS and LAs required ‘to co-operate with one another in order to secure and advance the health and welfare of the people of England and Wales’.

• Sections 10 & 11 Children Act 2004: duties on local authorities working together with their ‘relevant partners’ (eg CCGs)

• CCGs and Local Authorities must have in place a protocol for dealing with disputes as to who is responsible for providing care, and must not allow disputes to delay service provision

Identifying Unlawful DecisionsLook out for:•Failures to carry out assessments

•Failures to produce lawful assessments and care plans: look out for care plans where provision is not quantified or the timescales for carrying out assessments are not met.

•Failure to make provision: look out for instances where the local authority and/or the PCT are not making provision in line with their own assessment.

•Reductions in provision: Has the local authority formally reassessed before reducing provision? On what basis do they feel the need of the individual/carer has decreased?

How to challenge care decisions

• Consider a complaint if time is not a factor - perhaps in tandem with making initial enquiries but don’t delay!

• Find out what LA’s complaints process is and time limits involved so don’t miss deadlines – see LA website

• At the end of the complaints process if still dissatisfied can go to the Local Government Ombudsman to complain about “maladministration” which could relate to how a service is delivered.

• If you have reached the end of this process and are still dissatisfied with, for example, an ongoing failure, or if this is an urgent matter, Judicial Review is the ‘remedy of last resort’. This is particularly relevant if the lack of care presents an immediate risk to the individual’s health and well being.

Judicial Review

• Procedure by which High Court reviews lawfulness of decisions made by public bodies.

• Identify decision: What? Who? When? NB Time limits 3 months.

• Find document recording decision: letter / minutes / tribunal decision.

• Final decision? All rights of appeal / review exhausted?

• Is there an urgent need for remedy?

• Grounds broadly limited to- acting outside or beyond powers given (ultra vires)- acting irrationally or perversely- procedural impropriety

Seeking Judicial Review • An individual claimant (via a litigation friend) or a family member can ask for judicial review

• CPR 1998 21.4(3) provides that a person may act as litigation friend if they

– can fairly and competently conduct proceedings of behalf of the child or protected party,

– has no interest adverse to that of the child or protected party and

– where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings.

• Legal Aid can be obtained for affected individuals whose means qualify them for public funding. If a child, the means to be assessed are the child's if we need to bring the matter before the court, but could be the parents/carers for initial investigations

– Gives valuable protection against an adverse costs order if some part of whole of the action is lost

– Family member can bring the action on behalf of the claimant (who may themselves qualify for legal aid)

Seeking Judicial Review

• Gross income not to exceed £2,657 per month

• Disposable income not to exceed £733 per month

• Capital:

• 0 - £3,000 – eligible

• £3,000-£8,000 – contribution required

Assessed on child’s means, other than for initial pre-action correspondence.

Public Law Department

Email:lisa.richardson@irwinmitchell.com

Telephone: 0161 838 3082

Useful information: http://www.irwinmitchell.com/personal/protecting-your-rights/human-rights/social-healthcare-law