11.1Non-residential services for disabled people: National Assistance Act 1948, s.29
A substantial range of non-residential community care services is covered by various community care legislation applying to local social services authorities. Access to these services is governed by assessment conducted under s.47 of the NHS and Community Care Act 1990 (see Chapter 6). However, these services are not contained within the 1990 Act itself, but instead are scattered within five other pieces of legislation. These are the National Assistance Act 1948 (s.29), Chronically Sick and Disabled Persons Act 1970 (s.2), Health Services and Public Health Act 1968 (s.45), NHS Act 2006 (schedule 20), and the Mental Health Act 1983 (s.117).
On the positive side, the services are wide ranging. They include social work services, advice, support, holidays, practical assistance in the home, assistance to take advantage of educational facilities, recreational activities, additional facilities (equipment), home adaptations, holidays, night sitter services, home help, laundry service, visiting services, assistance in finding accommodation etc.
Less helpfully, the very extent, overlap and fragmentation of the legislation governing non-residential services feeds the type of uncertainty outlined in Chapter 3. Not only are service users unaware of what services could or must be provided, but so too sometimes are local authority officers. Furthermore, it is particularly in the case of non-residential services that local authorities have so effectively deployed the government policy of ‘fair access to care’ – by imposing ever stricter thresholds of eligibility for services, thereby denying services to increasing numbers of older people. This minimising of assistance given to older people in their own homes, with local authorities treating eligibility as highly a moveable feast, is a typical escape route from potential legal and financial obligations, also explained in Chapter 3.
The legislation contains individual duties which are more easily enforceable such as under the Chronically Sick and Disabled Persons Act 1970; general duties less easily enforceable such as those under s.29 of the National Assistance Act 1948; and powers, not enforceable, such as those under schedule 20 of the NHS Act 2006. The 1970 Act probably remains the epitome of welfare legislation creating a strong, legally enforceable duty (with the associated resource implications), which sits increasingly uneasily with the broad brush, resource-limited approach which both central and local government are striving for.
11.1 NON-RESIDENTIAL SERVICES FOR DISABLED PEOPLE: NATIONAL ASSISTANCE ACT 1948, S.29
A number of non-residential services for disabled people are listed under s.29 of the National Assistance Act 1948. However, s.29 states that the provision of such services is subject to either approval or direction by the Secretary of State. An approval confers a power, whilst a direction created a duty, to provide services.
11.1.1 NON-RESIDENTIAL WELFARE SERVICES (1948 ACT): DUTIES
By means of directions issued under s.29, there is a general duty to arrange services for disabled people who are ordinarily resident within the area of the local authority. For disabled people who are not ordinarily resident, arranging these services is a power only (LAC(93)10, appendix 2). Ordinary residence is discussed in Chapter 14. The duty consists of:
•compiling and maintaining a register of disabled people
•providing a social work service and such advice and support as is needed for people at home or elsewhere
•providing, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations of mobility or communication
•providing, either at centres or elsewhere, facilities for occupational, social, cultural and recreational activities – and, where appropriate, payments to persons for work they have done.
Although the directions do create a duty, the courts have held that it is of a target, general nature only. This means that in the event of non-provision of a service, it is likely to be difficult legally to enforce provision for any one individual. For instance, in one case the court stated that it would be impermissible to adjudicate on the s.29 target duty with reference to an individual case (R v Islington LBC, ex p Rixon; see also R v Cornwall CC, ex p Goldsack).
Walking assistance at a day centre. The court concluded that the walking assistance being given to a young disabled woman at a day centre was being provided under s.29 of the 1948 Act rather than under s.2 of the CSDPA 1970. It might have been provided under s.2 if it had been closely associated with meeting her recreational needs, but this was not so in the particular case (R v Cornwall CC, ex p Goldsack).
Even so, a number of local ombudsman investigations have concerned s.29 services and identified maladministration in relation to them, irrespective of the strength of duty:
Failure to provide social work services. In one investigation relating to support and advice given to people entering or resident in nursing homes before April 1993 (when social services departments assumed responsibility for nursing home funding), the local ombudsman stated that a social work service should in principle be available to ‘all those living in their area’, i.e. residents of private nursing homes should not be excluded (Buckinghamshire CC 1992).
In another, the ombudsman found maladministration because, in considering whether to provide social work support, the authority had not balanced the views of relevant professionals against the resources it had available (Tower Hamlets LBC 1993).
Failure to provide adequate advice. On more than one occasion the local ombudsman has found maladministration because of a failure on the part of local authority staff to provide directly – or at least to ensure provision of (e.g. by pointing people to other sources)-adequate advice about welfare benefits (e.g. Stockton-on-Tees BC 1997; Wakefield MDC 1993).
In one case, the ombudsman pointed out that either the council should offer adequate training to social workers to enable them to give proper advice, or it should instruct them to advise clients to obtain advice elsewhere (Devon CC 1996).
Social rehabilitation and adjustment to disability. A person with learning disabilities was placed in a residential home by the local authority. The authority provided, in addition, a support worker for 30 hours a week, in order to meet his developmental needs (under s.29 of the National Assistance Act 1948) by way of social rehabilitation and adjustment to disability. The amount of time allocated seemed reasonable to the ombudsman; however, the lack of precision in setting, working towards and recording the meeting of targets was maladministration (Manchester CC 1993).
188.8.131.52 Registration of disabled people
The duty to keep a register of disabled people under s.29 of the 1948 Act is one that has by and large not been rigorously carried out by local authorities. Nevertheless, in the case of partially sighted people, local authorities are sent a form known as the Certificate of Vision Impairment (CVI) 2003, signed by a consultant ophthalmologist (DH 2003f). This notification should then trigger registration of the person by the local authority; in turn the person is then eligible for certain benefits, for example a television licence. Also, such certification and registration means that the person is deemed to be disabled under the Disability Discrimination Act 1995 (SI 2003/712).
For hearing impairment, Department of Health guidance states that there is no formal examination procedure for determination, under s.29, as to whether a person is deaf or hard of hearing (LAC(93)10, appendix 4).
Department of Health guidance asks local authorities to keep registration data under three main headings: very severe handicap, severe or appreciable handicap and other persons (for example, people with a less severe heart or chest condition or with epilepsy). The first two of these categories are themselves further explained (LAC(93)10, appendix 4):
•Very severe handicap includes those who:
need help going to or using the WC practically every night. In addition, most of those in this group need to be fed or dressed or, if they can feed and/or dress themselves, they need a lot of help during the day with washing and WC, or are incontinent
need help with the WC during the night but not quite so much help with feeding, washing, dressing, or, while not needing night-time help with the WC, need a great deal of day-time help with feeding and/or washing and the WC
are permanently bedfast or confined to a chair and need help to get in and out, or are senile or mentally impaired, or are not able to care for themselves as far as normal everyday functions are concerned, but who do not need as much help as the above two categories.
•Severe or appreciable handicap includes those who:
find most things difficult, or three or four items difficult and some impossible
can do a fair amount for themselves but have difficulty with some items, or have to have help with or two minor items.
11.1.2 NON-RESIDENTIAL WELFARE SERVICES (1948 ACT): POWERS
By means of approvals (as opposed to directions) issued by the Secretary of State under s.29, there is a power to arrange a further range of services for disabled people irrespective of whether they are ordinarily resident in the area or not (LAC(93)10, appendix 2). The services are:
•providing holiday homes
•providing free or subsidised travel for people who do not otherwise qualify for other travel concessions
•assisting a person to find accommodation which will enable him or her to take advantage of arrangements made under section 29
•contributing to the cost of employing a warden in warden-assisted housing, and to provide warden services in private housing
•informing people to whom s.29 relates about services available under that section
•giving instruction to people at home or elsewhere in methods of overcoming effects of their disabilities
•providing workshops where such people may engage in suitable work and for providing associated hostels
•providing suitable work in people’s own homes or otherwise, and to help people dispose of the produce of their work.
The power to give instruction to people at home or elsewhere in relation to overcoming their disability is clearly a wide one. However, instruction is not the same as education. In R v Further Education Funding Council, ex p Parkinson, the court held, in its attempt to separate out the education and social services functions of the local authority, that instruction could not include a service that was ‘purely educational’.
The House of Lords has in the past confirmed (in a rating valuation case) that s.29 could not authorise the arranging of residential accommodation (Vandyk v Oliver (Valuation Officer)).
11.1.3 DEFINITION OF DISABILITY
A basic condition of eligibility for the provision of non-residential welfare services under s.29 of the National Assistance Act 1948 (and under the Chronically Sick and Disabled Persons Act 1970, s.2) is that the person be disabled. Avoiding use of the words disabled or disability, the blunt language – which now seems anachronistic – states instead that a person must, in order to be eligible, be (a) blind, deaf, dumb; (b) have a permanent and substantial handicap through illness, injury or congenital deformity; or (c) have a mental disorder of any description.
The definition is elaborated upon in longstanding guidance. The approach advocated by the guidance, and by the government during the passing through Parliament of the NHS and Community Care Act 1990, appears to be a generally inclusive one. This should discourage local authorities from setting narrow definitions of disability in order to exclude people from eligibility for services. The definition applies also to the Disabled Persons (Services, Consultation and Representation) Act 1986, s.4, the Housing Grants, Construction and Regeneration Act 1996, and s.17 of the Children Act 1989.
First, Department of Health guidance points out that registration of disability is not a condition for provision of service. It is instead a question of whether or not the person is to be regarded as having a hearing, vision or speech impairment or is substantially and permanently handicapped by illness, injury or congenital deformity (LAC(93)10, appendix 4, para 5). It is about registerability not actual registration.
Second, for people with blindness or partial sight, the guidance refers to the established procedure of medical certification and local authority registration. For people with hearing impairment, it states that the ‘deaf’ category should include people who are deaf with speech, deaf without speech, or hard of hearing (that is, those who, with or without a hearing aid, have some useful hearing and whose normal method of communication is by speech, listening and lip-reading (LAC(93)10, appendix 4).
Third, the guidance states that it is not possible to give precise guidance on the interpretation of the phrase ‘substantially and permanently handicapped’. However, it asks local authorities to give a wide interpretation to the term ‘substantial’, which should always ‘take full account of individual circumstances’. With regard to the term ‘permanent’, it states that authorities would wish to interpret this ‘sufficiently flexibly to ensure that they do not feel inhibited from giving help under s.29 in cases where they are uncertain of the likely duration of the condition’. However, the guidance does suggest registration categories and gives examples of ‘very severe’ and ‘severe’ handicap (LAC(93)10, appendix 4).
184.108.40.206 Categorising disabled people in practice
Despite the inclusive approach urged by the guidance, it appears that in practice some local authorities, faced with what they perceive to be excessive demand for services under the Chronically Sick and Disabled Persons Act 1970, are sometimes tempted to restrict what they mean by ‘substantial handicap’. These authorities might, for instance, attempt to exclude certain groups of older people on the grounds that they might be frail, but that they are not disabled. It is then argued that those people are not eligible for services under s.29 of the National Assistance Act 1948 and s.2 of the Chronically Sick and Disabled Persons Act 1970. In which case, they might at best qualify for services for ‘aged’ or ‘old’ people under either the weaker duty contained in schedule 20 of the NHS Act 2006, or for services under the Health Services and Public Health Act 1968, which an authority has a power but no duty to provide.
However, such an approach carries the risk of discriminating against older people and being potentially unlawful, by implying that the effects of frailty and age do not ‘count’ as disability, even if the consequence is that those persons are in fact significantly disabled in daily life. Indeed, Department of Health guidance (LAC(93)10), providing examples of ‘substantial handicap’, refers to handicap in terms of function, not of condition or of age. And frailty would often be associated with an ‘illness’ such as arthritis (so as to bring it within the overall s.29 definition which refers to illness, injury or congenital deformity).
Alternatively, some local authorities may take ‘permanent’ to mean, strictly, for the rest of a person’s life. Others, more generously, tend to draw on the definition of ‘long term’ in the Disability Discrimination Act 1995, and take disability likely to last longer than 12 months to be a ‘permanent’ disability. The interpretation of ‘substantial and permanent handicap’ appears never to have arisen directly in a legal case.
Local authorities also increasingly have to consider the question of obesity and whether it constitutes substantial and permanent handicap. It would appear that if obesity has arisen from illness or impairment resulting in disability – or alternatively has itself caused illness or impairment (which has then in turn resulted in disability) – then the person would come under the definition contained in s.29. However, if the obesity has not arisen from, or resulted in, illness or impairment, then it is unclear whether obese people would fall under s.29 and be eligible for assistance – for instance, if they were to approach the local authority asking for assistance simply because they have outgrown their living room chairs or their bath. Likewise there is some doubt about how obesity fits into the definition of disability in the Disability Discrimination Act 1995 (Doyle 2005, p.16).
220.127.116.11 Other definitions of disability
In addition to the term ‘substantial and permanent handicap’ under s.29 of the 1948 Act, related terms also apply under other legislation:
•The term ‘handicapped’ is one of the conditions governing community care services arranged under schedule 20 of the NHS Act 2006. There is a question as to whether this term (a condition for receipt of home help services or laundry facilities) is to be construed as including the whole class of so-called handicap (i.e. both mild and substantial) or only the mild. The correct construction is probably the former, inclusive of both mild and substantial disability.
•‘Disability’ is one of the qualifying conditions for provision of residential or nursing home care under s.21 of the National Assistance Act 1948, where, however, it is not defined.
•The term ‘illness’ is used in s.3 of the NHS Act 2006 in respect of health care and in schedule 20 in respect of certain community care services. As defined in s.275 of the 2006 Act, it includes mental disorder (as defined in the Mental Health Act 1983), and ‘disability’ requiring medical or dental treatment or nursing.
•The definition applied by the 1948 Act should be distinguished from the definition in the Disability Discrimination Act 1995, although there are some similarities. The 1995 Act definition does not directly supplant the s.29 definition in the 1948 Act. Arguably though, to the extent that a local authority is using its discretion to interpret the s.29 definition, it could, or perhaps should, seek to utilise the 1995 Act definition.
11.1.4 PAYMENTS AND PROHIBITIONS
There are two particular prohibitions contained in s.29 of the 1948 Act.
18.104.22.168 Prohibition on payments
The payment of money to disabled people is prohibited (except in relation to workshops and provision of suitable work). However, the effect of this prohibition is now reduced in the light of the existence of direct payments made under the Health and Social Care Act 2001 (see 13.1 below).
22.214.171.124 Anti-duplication provisions
Also prohibited is the provision under s.29 of any accommodation or services required to be provided under the NHS Act 2006. This latter provision has caused some confusion. For example, in one case it was argued that because home help could be provided by a local authority under schedule 8 of the NHS Act 1977 (predecessor to schedule 20 of the 2006 Act), it could therefore not be provided under the Chronically Sick and Disabled Persons Act 1970 (in the guise of practical assistance in the home). This would be because the 1970 Act was in effect an extension of s.29 of the 1948 Act. The judge rejected this, stating that what authorised services under s.2 of the 1970 Act was precisely s.2 of the 1970 Act – and not s.29 of the 1948 Act.
This decision may appear straightforward and pragmatic, but does not sit easily with the Court of Appeal’s decision, in another context, that s.2 of the 1970 Act is not freestanding and is firmly hitched to s.29 (R v Powys CC, ex p Hambidge).
The term ‘required to be provided’ is suggestive of a duty. However, as far as NHS provision goes under the NHS Act 2006 as a whole, not many services are listed in the Act (medical, nursing, ambulance and services in relation to illness are explicitly referred to in s.3 of the Act). So it becomes difficult to discern what exactly is ‘required’ to be provided by the NHS under the 2006 Act.
It is clear that social services legislation is not capable of being used to provide registered nursing care, because this is legally prohibited. However, registered nursing care is limited to those services provided by a registered nurse and involving the provision, planning, supervision, or delegation of care – so long as the nature of the services and the circumstances of their provision are such that they need to be provided by a registered nurse (Health and Social Care Act 2001, s.49).
Other than registered nursing care, one way of pinpointing NHS, as opposed to social services, responsibilities might be to scrutinise relevant Department of Health directions and guidance. For instance, Department of Health guidance – on NHS continuing health care (see 18.3) and on NHS services in nursing homes (see 17.9), and in residential homes and people’s own homes (see 17.10) – lists various services.
Sometimes it is unclear when a service should be regarded as health or social care, sometimes it is more straightforward. In a case concerning tracheostomy care for a child, the court concluded that such medically related care was inherently health care provision and beyond the power of a local social services authority to provide. It noted that ‘the gravity of the consequences of a failure in care, the duration of the care need, which required her carer always to be present lest something had to be dealt with rapidly, underscores the medical rather than social service nature of the provision’. Otherwise, the obligations placed on social services would be far too broad (R(T) v Haringey LBC).
However, in another case about an anti-duplication provision (albeit in a different context), the court held an item could be regarded as either medical or non-medical, depending on the way in which it was being used:
Incontinence pads as non-medical items. The Social Fund (a social security agency) was prohibited, legally, from providing assistance with medical items. On the basis that incontinence pads were medical items provided by the NHS, a Social Fund officer had denied a 26-week supply of pads to a woman who was incontinent, arthritic and had asthma. The relevant health authority did provide free incontinence pads in principle, but in practice its criteria were so stringent – regular double incontinence or terminal illness – that the woman did not qualify. Hence her application to the Fund.
The judge found that the decision of the Social Fund officer, that the pads were medical items and thus excluded by the Social Fund rules, was wrong. She had asked whether the pads were needed for a medical problem and were thus necessarily a medical item. However, it was ‘quite clear that a handkerchief might not be needed, but for a severe attack of a runny nose in a heavy cold. It is quite clear that a bowl might not be needed unless there was a medical problem of a severe bout of vomiting but nobody would think of those articles, the handkerchief or the bowl, as medical items’ (R v Social Fund Inspector, ex p Connick).
On the same basis, the Social Fund has in the past assisted on occasion with powered wheelchairs, which would normally be regarded as the statutory responsibility of the NHS.
Whatever the answer, it is clear that local authorities argue all the more about divisions of responsibility when they are short of resources; and then tend to take decisions improperly, expediently and in a hurry, as the local ombudsman found:
Provision of psychotherapy services. The local authority had, from 1987, been making up the difference between the charges of a residential therapeutic community home and the DHSS (as it was then) funding available for a woman with mental health needs. When the placement came to an end, the authority agreed to fund psychotherapy sessions for the woman. The dispute arose around the authority’s subsequent attempt to stop such funding, and its rather belated attempt to suggest that such provision was health, rather than social, care – and so was properly an NHS responsibility.
The local ombudsman concluded that whatever view the authority took in hindsight, it had obligations to the woman. Although it was entitled to reduce or stop the funding, it had to take into account the woman’s needs as well, not focus solely on an overspent budget, and to make the ‘promised assessment’ of the benefit and value of the therapy. Had a proper review been carried out, the authority might have decided to stop the payments earlier than it did. However, the failure to carry out proper review and assessment meant that the authority made a sudden decision to withdraw without giving adequate notice.
Once the director of social services had decided that these were health rather than social care needs, no approach was made to the health authority about alternative sources of funding.