The law affecting community care is substantial. This makes an overview all the more essential. Local authorities and NHS bodies are ‘creatures of statute’, that is, bodies existing by virtue of legislation. Their functions can only be lawfully performed with reference to powers and duties conferred by this legislation. For these local authorities and NHS bodies to apply local policies that are inconsistent with the legislation is illogical and runs the risk of their acting unlawfully.
This chapter provides first of all a summary of the legal framework relevant to community care decision-making as covered in this book. Second, it sets out, in bare form but broken down into categories, a list of the relevant legislation (Acts of Parliament) and other law, in order to give the reader a birds’ eye view of this extensive legal landscape.
2.1 SUMMARY OF THE BOOK
The following represents a summary account of the legal framework.
•Remedies: non-judicial (Chapter 4) and judicial (Chapter 5). A range of remedies and redress exist, ranging from the informal to the legal. They include local councillors or Members of Parliament, the press, complaints procedures, going to the ombudsmen for redress, and legal cases. Different types of legal case can be brought depending on the nature of the decision or action involved and the remedy sought. Types of legal case include judicial review (challenging the decision-making process of a public body), negligence (seeking compensation for personal injury), health and safety at work (criminal prosecution), human rights (against public authorities), disability discrimination etc. In order to pursue such remedies, the obtaining of information, both public and private, may be crucial – under the Freedom of Information Act 2000 and Data Protection Act 1998.
•Assessment by local social services authorities (Chapter 6). The community care system revolves around assessment under s.47 of the NHS and Community Care Act 1990. Such assessment is to determine people’s needs for community care services. These services are not contained in the 1990 Act but are scattered across five other pieces of legislation stretching back 60 years to the National Assistance Act 1948. Assessment is meant to be ‘needs’ rather than ‘service’ led. This means in principle that service provision should be moulded to people’s assessed needs, rather than those needs fitted into whatever services happen to be available.
•Threshold of eligibility: who is entitled to services (Chapter 6). Local authorities do not necessarily have a duty to meet all the needs that they have identified. This is because each local authority can, quite lawfully, set a ‘threshold of eligibility’. Any needs that are assessed to come beneath this threshold do not have to be met and are sometimes labelled ‘unmet needs’. In contrast, needs coming above the threshold are sometimes referred to as ‘eligible needs’. They, generally, must be met, irrespective of a lack of resources within the relevant local authority budget. However, the local authority is permitted to offer the cheapest option to meet such needs, so long as that option is consistent with fully meeting the person’s assessed needs and with the Human Rights Act 1998.
•Setting the threshold of eligibility in line with available resources (Chapter 6). This duty on a local authority to meet a person’s ‘eligible’ needs – that is those needs assessed as coming over the relevant local threshold of eligibility – in principle and law (though not necessarily in practice) prevents arbitrary refusal or withdrawal of some services.
Nevertheless, any absolute duty to make provision is diluted overall by the fact that a local authority can, from time to time, adjust the threshold of eligibility in the light of its reduced resources. Raising the threshold allows the authority not only to assess new applicants for services more restrictively – but also to reassess existing users of services and accordingly to remove or reduce services even if a person’s needs or situation have not changed. This illustrates how local authorities have considerable legal and practical leeway in which to tailor services to available resources, by allowing just enough people to qualify for services within budget. Central government has issued guidance to this effect, called ‘Fair access to care services’ (FACS). The direction of the threshold across local authorities has been upward, thus reducing the overall number of people eligible for help.
•Mismatch between threshold of eligibility and resources (Chapter 6). A rational setting of the threshold requires political honesty, which is not easily come by in every local authority. In other words, there is sometimes a political incentive for an authority to set a low threshold (and thus demonstrate how generous, caring and deserving of re-election the ruling body of local councillors is). However, without a correspondingly generous allocation of resources, a mismatch will arise between the duty to meet people’s assessed, eligible needs and the financial ability to meet those needs.
Once such a mismatch arises, local authorities are tempted to cut services in an arbitrary and unlawful manner. For instance, some might unofficially and clandestinely reset the previously agreed and publicised threshold of eligibility in order to relieve the pressure on an inadequate budget. Others might – irrespective of a person’s assessed, eligible needs – begin to apply blanket policies in terms of what services they will provide, or impose rigid cost ceilings on care provision for individual service users. Alternatively, they may keep people waiting for services for inordinate periods of time, or meet only a proportion of the eligible need that has been assessed for each person. Such shortcuts risk findings of unlawfulness by the law courts or of maladministration by the local government ombudsmen. They are nonetheless widespread.
•Review and reassessment (Chapter 7). Faced with pressures on resources, local authorities often find themselves reviewing people, with a view not just to checking that a person’s needs are being met adequately, but also to changing, reducing or withdrawing services. A reassessment is a prerequisite. Following this, a significant change, reduction or withdrawal of services is only lawful if the person’s needs have reduced or changed, they can reasonably be met in another way or the threshold of eligibility has changed. Local authorities can also withhold services in the face of unreasonable behaviour by service users, although there are specific provisos to this.
•Care plans and provision of services (Chapter 8). Following a decision about the services to be provided, various guidance (but not legislation) states that a care plan should be drawn up by the local authority. The plan should contain details about objectives, services, agencies to be involved, costs, needs which cannot be met, date of first review, and so on. The form and complexity of a care plan will vary greatly depending on the level and type of service involved. The law courts have held that either a failure to follow, or at least to have proper regard to, this guidance about care plans can amount to unlawfulness.
In addition, the courts have accepted that a care plan is likely to be evidence of what a local authority has accepted as its duty to meet a person’s assessed needs. Thus significant non-adherence by the local authority to a care plan is likely to indicate breach of its duty to meet a person’s assessed, eligible needs.
Registration and inspection of care providers (both the independent sector and local authorities) come under the Care Standards Act 2000 and have been the responsibility of the Commission for Social Care Inspection and of the Healthcare Commission. From April 2009, under the Health and Social Care Act 2008, a new Care Quality Commission is due to replace both these two Commissions and the Mental Health Act Commission. Local authorities and the NHS are increasingly contracting out services to the independent sector. Whether in-house or contracted out, financial and performance targets can lead to immense pressure on both commissioners and providers, leading to an erosion of standards of care.
For vulnerable service users, therefore, regulatory legislation is in principle more important than ever. Nonetheless, it is also clear that such regulatory bodies are unable to detect and prevent all poor, and sometimes calamitous, practices. This means that local authorities and NHS bodies, too, have a responsibility to monitor the adequacy of the provision of their own services, as well as those they have contracted out. The local government ombudsman has been highly critical of local authorities that have failed to do this, with detrimental consequences, including the death of service users. And the Healthcare Commission has continued to publish disturbing reports about the erosion of standards of basic care, hygiene and personal dignity within the NHS.
•Residential and nursing home accommodation (Chapter 9). Local authorities have in some circumstances a duty to make arrangements under the National Assistance Act 1948 for the provision of residential accommodation (often in care homes) for people who because of age, illness, disability or other circumstances are in need of care and attention not otherwise available to them. When local authorities have found themselves short of money in relation to this duty, disputes have predictably arisen about when it arises and its extent – involving, for instance, vulnerable older people in the north west of England or destitute asylum seekers in the south east.
•Charges for residential and nursing home care (Chapters 9 and 10). When local authorities place people in care homes, they have a duty to assess them financially and to decide what to charge for the accommodation, if anything. This decision is based on a legally prescribed means test under the National Assistance Act 1948. Depending on what sort of needs people have, and thus what type of home they need to go to, local authorities set a ‘usual cost level’ which represents the maximum amount they are generally prepared to pay in relation to different levels of need.
Some, perhaps many, local authorities have attempted to find loopholes in the rules so as to dilute their obligations. For example, there are rules about the ‘topping up’ of care home fees by a third party, usually a member of the resident’s family. If a resident wishes to be placed by the local authority in a more expensive home, then the local authority can agree, subject to this third party making up the difference between the authority’s usual cost level and the actual fee charged by the care home. However, such topping up is only lawful if there is a choice involved, and the resident’s needs could have been met in a cheaper care home charging fees within the local authority’s usual cost level.
However, in practice, there appears to be widespread flouting of these rules by local authorities, and a concomitant reluctance to explain to families what the rules really are. This results in families being effectively forced by some local authorities to top up care home fees unlawfully.
People in nursing homes should have the registered nursing care element of the accommodation paid for by the NHS, unless they have what is called ‘NHS continuing health care’ status – in which case the NHS is responsible for funding all elements of the person’s placement (accommodation, board, personal care and nursing care). See below.
•Non-residential community care services (Chapter 11). Community care services are defined by legislation to include a range of non-residential services (such as personal care, recreational activities, travel, day services, equipment and adaptations to people’s homes, holidays and meals).
These services are provided under a range of legislation for groups of people such as those with disabilities (physical, sensory or learning), elderly people, people with a mental disorder, people with drugs or alcohol problems, and people who are ill. Central to non-residential community care services is s.2 of the Chronically Sick and Disabled Persons Act 1970. The 1970 Act has been at the heart of a number of key legal cases which have established that a local authority must meet a person’s assessed, eligible need – but that in meeting that need, the authority is only obliged to offer the cheapest option consonant with meeting that assessed, eligible need.
The other legislation comprises s.29 of the National Assistance Act 1948, s.45 of the Health Services and Public Health Act 1968, s.254 and schedule 20 of the NHS Act 2006, and s.117 of the Mental Health Act 1983.
•Charges for non-residential community care services (Chapter 12). For non-residential services, local authorities have discretion to charge. That is, they can charge if they wish but don’t have to. Though only a power rather than a duty, it is the one social services power local authorities generally choose to utilise to the full. Any charge made must be a reasonable one. This is under s.17 of the Health and Social Services and Social Security Adjudications Act 1983.
If the local authority is satisfied, following representations from the person being charged, that it is not ‘reasonably practicable’ for him or her to pay it, then it must reduce the charge to a level at which it will be reasonably practicable for the person to pay it. Central government has issued guidance, setting out a number of rules, with the purpose of achieving a consistent approach to charging by local authorities. Such consistency has not been achieved.
If people do not pay the assessed charges, the legal position seems to be that local authorities cannot legally withdraw services – at least those that they have a duty (as opposed to a power) to arrange. But authorities do have the power to recover money owed as a debt. One significant and continuing trend has been the shift in definition of certain services to ‘social’ rather than ‘health’ in nature. For example, services such as bathing or respite care, previously provided free of charge by the NHS, might now be provided by local social services authorities for a charge.
•Direct payments, individual budgets (Chapter 13). If certain conditions are met, local authorities have a duty under the Health and Social Care Act 2001 to make direct payments to people who have been assessed as having eligible needs. This means that the local authority does not directly arrange the required services, but instead must give people a reasonable sum of money to enable them to purchase services (or assistive equipment) themselves – in order to meet their assessed needs.
One step beyond direct payments, central government has been attempting to impose on local authorities something called ‘individual budgets’ as part of what it calls ‘self-directed care’. This seems to envisage the allocation, for example per annum, of a certain sum of money based on the person’s level of need. The person can then suggest how that money might be spent in order to meet his or her assessed needs. If the local authority concurs with the person’s suggestion, either the money can be given as a direct payment, or the local authority can itself – or arrange for somebody else to – organise the services as requested by the person. ‘Self-assessment’ of need is also encouraged. The nature of such individual budgets is somewhat vague, since to date central government has issued no legislation or policy guidance about them. There remains uncertainty about how they will fit into the existing legal framework; in particular there are questions about whether capping the allocation of money, self-assessment and decisions about services are consistent with the existing legal rules under the NHS and Community Care Act 1990.