9.1Need for care and attention
Local authorities have both duties and powers to arrange residential accommodation of various types under s.21 of the National Assistance Act 1948. Under s.26 of the 1948 Act, such accommodation may be arranged through the independent sector. The fundamental conditions that must be satisfied are:
•a person must be at least 18 years old
•this need must arise from age, illness, disability or any other circumstances
•the care and attention required must not be available otherwise than by the provision of accommodation under s.21.
Whether in respect of people subject to immigration control, or others in various types of need, s.21 of the 1948 Act continues to be legally scrutinised as to its meaning and scope. Notwithstanding its age, the courts have confirmed that it is a prime example of legislation that is ‘always speaking’. Therefore, it should be interpreted in a way that continuously updates the meaning of wording, in order to allow for changes to society since the legislation was originally drafted.
The flexibility of s.21, and this requirement that it be interpreted to keep pace with changing social circumstances, means that uncertainties (as identified in Chapter 3) flourish at times when pressure is put upon the Act because of those changing circumstances. Thus, it has remained a significant battleground as local authorities have sought to limit potentially ruinous expenditure.
For instance, it has continued to be closely scrutinised in the case of asylum seekers and other people subject to immigration control (see Chapter 14). A body of case law has also developed about how far s.21 creates obligations to provide residential accommodation in the form of ordinary housing as opposed to care home placements. These cases have largely arisen as a result of the shortage of social housing, and the inability of local authorities to meet people’s housing needs under the Housing Act 1996.
Owing to the costs involved of providing residential accommodation, local authorities predictably tend to exploit ambiguity or uncertainty in order to avoid potential responsibilities. For instance, disputes over where a person was person was ‘ordinarily resident’ before entering residential accommodation are legion, since this determines which local authority is responsible for making the placement. In the case of some people – particularly perhaps in the case of people with learning disabilities – such placements can run into thousands of pounds each week for one individual.
Likewise, with financial concerns in mind, some local authorities have sought ways to undermine the legal rules about when the ‘topping up’ of care home fees, typically by the family of a resident, is or isn’t lawful. Families may find themselves asked unlawfully by the local authority to add to the fee paid by the authority – when it is in fact the latter that should be covering the whole amount.
Similarly, owing to the failure of central government and NHS bodies to set out and to adhere to clear legal rules about NHS continuing health care (see Chapter 18), local authorities have for many years ended up placing people in care homes (and charging them under the National Assistance Act 1948) – instead of the NHS doing so free of charge under the NHS Act 2006 and its predecessor, the NHS Act 1977). For significant numbers of people, this has meant having to sell their homes and use up their savings unnecessarily and at the unlawful behest of local authorities (see Chapter 18).
Local authorities have also unlawfully or maladministratively sometimes placed people in, and charged them for, residential accommodation under the 1948 Act – when in fact the placement should instead be free under s.117 of the Mental Health Act (following a person’s hospital detention and discharge under that Act).
The apparent unconcern with which some local authorities exact legally dubious charges from vulnerable people and their families under s.21 of the National Assistance Act is an irony. It is, after all, local authorities that have been given the lead in protecting vulnerable people from financial harm and abuse.
9.1 NEED FOR CARE AND ATTENTION
Section 21 of the National Assistance Act 1948 refers to the making of arrangements for providing ‘residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention not otherwise available to them’. The duty has been taken by the courts to be a strong one (R v Sefton MBC, ex p Help the Aged). The need specified under s.21 of the National Assistance Act 1948 is for care and attention, but the only service that can be provided is residential accommodation, together with associated amenities and requisites. There would thus appear to be something of a mismatch between the need and the service. The explanation is that the accommodation itself is not the care and attention, but is the only means by which the requisite care and attention, or ‘looking after’, can be provided (R(Wahid) Tower Hamlets LBC). The House of Lords has subsequently confirmed the importance of this term, ‘looking after’:
The meaning of ‘looking after’. Looking after, in the context of s.21 of the National Assistance Act, means more than just ‘accommodation’. It means ‘doing something for the person being cared for which he cannot or should not be expected to do for himself; it might be household tasks which an old person can on longer perform or can only perform with great difficulty; it might be protection from risks which a mentally disabled person cannot perceive; it might be personal care, such as feeding, washing or toileting. This is not an exhaustive list. The provision of medical care is expressly excluded’. This meant that a person subject to immigration control, and HIV positive, was not in need of care and attention. This was because he was under the care of the National Health Service, took medication which had to be kept in refrigerated conditions, and needed to see a doctor every three months; but otherwise his illness did not affect him and he was able to look after himself (R(M) v Slough BC).
The courts have also considered whether the phrase ‘not otherwise available’ refers back to ‘care and attention’ or to ‘residential accommodation’. They have concluded that it means care and attention not otherwise available (not residential accommodation not otherwise available: R(M) v Slough BC). The courts have held a local authority should look ahead to some extent, if the circumstances are such that a person is not in immediate need of care and attention but is likely soon to be so (R v Newham LBC, ex p Gorenkin). However, the legislation refers to people who ‘are’ in need of care and attention, and the House of Lords has stated that therefore (a) the primary focus must be on present rather than future needs, (b) there needs to be sensible flexibility, and (c) intervention should be premised on a need for care already existing, but (d) if there is a present need for some sort of care, then the local authority is empowered to intervene before the need becomes a great deal worse (R(M) v Slough BC).
In formulating eligibility criteria about when a person is to be deemed to be in need of care and attention, local authorities may up to a point (in terms of a ‘limited subjective element’) consider their resources (R v Sefton LBC, ex p Help the Aged). It is thus permissible for local authorities to apply a threshold of eligibility to determine whether a person is eligible for a care home placement, or for some other form of residential accommodation. Since 2002, the threshold used by local authorities derives from guidance issued by the Department of Health on ‘fair access to care’ (see section 6.12).
9.1.1 AGE, ILLNESS, DISABILITY OR ANY OTHER CIRCUMSTANCES
The care and attention required must be due to age, illness, disability or any other circumstances. Age, illness and disability are not defined. The term, ‘any other circumstances’, means precisely what it says. The following two court cases illustrate this in terms of destitution and domestic violence; both were held to be relevant circumstances, although the law was subsequently altered in respect of the destitution of asylum seekers or other people subject to immigration control (see Chapter 14).
Any other circumstances: asylum seekers. The Court of Appeal ruled, upholding a decision of the High Court in relation to asylum seekers, that the term ‘any other circumstances’ did not necessarily have to be of a kind with age, illness or disability (the other conditions for assistance under s.21 of the 1948 Act).
However, the court also stated that, even if it were wrong and it did have to be of a kind with these other terms, it was clear that the circumstances of the asylum seekers – without food and accommodation, inability to speak the language, ignorance of Britain, and stress – could result in illness or disability, thus establishing potential eligibility under these terms of s.21 rather than ‘any other circumstances’. Nevertheless, this did not mean that s.21 was a safety net for just anyone who happened to be short of accommodation and money (R v Westminster CC, ex p A: decided before the 1999 and 2002 Acts relating to immigration and asylum).
Similarly, domestic violence could be a relevant ‘other circumstance’ when a local authority considers whether the needs of an asylum seeker stem from destitution alone or something more (R(Khan) v Oxfordshire CC).
The open-ended, though not limitless, nature of ‘any other circumstances’, and the subsequent history of how the term has been applied, was indeed foreseen in 1948 at the time the Bill was passed in Parliament. It was described as not concerning age or infirmity (the original criteria in the section) but was to cover the difficult or marginal case, such that its absence might ‘run us into trouble’. At the same time, it was not intended to place ‘indefinite responsibility’ on local authorities (Hansard 1948). Such limitation was illustrated in 2004, when the High Court held that a local authority did not simply have to accommodate en masse a group of Chagossian islanders who had arrived in England claiming to be destitute. However, it would have to accommodate some of the islanders, if relevant need were demonstrated in individual cases (R(Selmour) v West Sussex CC).
9.1.2 TAKING ACCOUNT OF PEOPLE’S ABILITY TO MAKE THEIR OWN ARRANGEMENTS
In deciding whether care and attention is otherwise available, the local authority must disregard the person’s capital resources beneath the relevant capital upper threshold applying to care home fees (National Assistance Act 1948, s.21(2A) (see 10.6 below).
Even before the National Assistance Act 1948 was amended to put this beyond doubt, the Court of Appeal had held that to treat a person as able to make her own arrangements for residential accommodation – once her capital had fallen below the relevant threshold – was not lawful. The local authority had in fact been pursuing a policy that allowed a person’s resources to fall to the £1500 required for funeral expenses – far below the capital threshold – before it would assist (R v Sefton MBC, ex p Help the Aged). In similar vein, the local ombudsman has stated that, when people are already in residential care and their capital dips below the relevant financial threshold, a policy of delaying council funding and not back dating it would be likely to be unlawful and was in any case maladministration (Cumbria CC 2000).
Undue delay in funding decision for person already in a care home. A local authority told the wife of a self-funding resident of a care home to contact the local authority when his resources fell below the capital threshold. She did so, assuming that as soon as this point was reached, the council would contribute to the funding. In fact, from the point of the wife contacting the council, it took the local authority a total of 17 weeks to decide on the funding. The local ombudsman felt that seven weeks would have been reasonable; this meant that there were ten weeks of undue delay. This was maladministration (Staffordshire CC 2000).
However, the local ombudsman in one case suggested that the effect of the Sefton judgment was limited to those already in residential care (and currently paying for themselves). She suggested that this still left open the question of whether waiting lists for those people in hospital or in their own homes were lawful – even where savings are below the capital threshold (Liverpool CC 1999). In fact, the effect of the Sefton judgment seems not to be limited to those already in residential care; the court’s conclusions appear to apply to any person assessed to be in need of care and attention, not just a person already in a care home. Furthermore, central government subsequently amended the relevant regulations to make it quite clear that the rules concerning the test of resources applied not just to residents but also to prospective residents (SI 1992/2977, r.2).
The Department of Health guidance points out that the effect of this rule does not mean that people who do have capital over the threshold will necessarily have to make their own arrangements. This is because, in some circumstances, the person might be unable to make their own arrangements (for example, because of physical or mental inability to do so); in which case, the local authority would still have a duty to do so (albeit then charging the person). Likewise if a person were to become ‘self-funding’ through sale of his or her property, the local authority should only sever its contract with the care home if the person is able to manage their own affairs or has assistance in doing so (LAC(98)19, paras 10-11).
This same principle applies in relation to the ‘12-week disregard’ rules (see section 10.6.3.2), whereby for the first three months of a permanent stay in a care home arranged by the local authority, the value of a person’s home is disregarded. Guidance points out that, at the end of the period, the local authority will have to consider whether the value of the resident’s assets mean that council support is no longer needed and that the authority’s contract with the care home should be terminated (LAC(2001)10, para 12). But the proviso concerning the inability of a potential self-funder to manage his or her affairs is equally applicable in these circumstances.
For a person who can afford to pay the full amount of the fee, the question of whether a person makes the arrangements, that is contracts, with the care home – or whether the local authority does so – remains important. This is because many care homes tend to charge private individuals more for a placement, than they would charge a local authority. In effect, because local authorities continually attempt to keep down the amount of fee they are prepared to pay, care homes charge private individuals that much more – in order to cross-subsidise those residents placed by local authorities (CCC 2007, p.4). It could therefore be highly advantageous financially to a resident to be placed by the local authority, rather than to place himself or herself in the home.
In any event, irrespective of the financial means of a person, a local authority still has a duty to assess a person’s needs under the umbrella of s.47 of the NHS and Community Care Act 1990. This is not just a legal technicality. For prospective residents it may be useful because they will receive assessment, information and advice. The local authority can point out that if they choose a more expensive home, but their money then runs out, the local authority might try to move them to a cheaper home – subject of course to a reassessment and decision that their needs could reasonably be met by moving them. Equally, for the local authority it is useful, because if too many people are, unknown to it, paying for themselves in care homes, its budget may then get unexpectedly hit by these residents – whom they sometimes term ‘depleters’ – when their money reduces to the threshold at which the local authority is obliged to step in (Spiers 2007). Nonetheless, evidence suggests that local authorities continue to avoid (a) assessing people about to go into a care home who will be self-funding, and (b) reviewing those self-funders already in care homes (Dalley 2008, p.8).
9.1.3 PROVISION DIRECTLY BY THE LOCAL AUTHORITY
Local authorities may directly provide residential accommodation themselves under s.21 of the National Assistance Act 1948, rather than contract with the independent sector.
9.1.4 MAKING ARRANGEMENTS THROUGH THE INDEPENDENT SECTOR
Under s.26 of the 1948 Act, the local authority may arrange for provision of residential accommodation by entering into arrangements with independent sector providers. The courts have held that a s.26 arrangement is only in place when the local authority is paying (i.e. has a contract with) the independent provider (see e.g. Chief Adjudication Officer v Quinn; Steane v Chief Adjudication Officer). For instance, providing somebody with advice on entering a care home (where the person would pay his or her own fees), and even providing transport to it, would not constitute ‘making arrangements’ under s.26. This principle has since been reiterated:
No community care services being provided in the absence of a s.26 agreement. Responsibility for certain residents of a care home, with ‘preserved rights’ and funded by social security benefits, was transferred to the local authority. The residents remained in the home, and the authority made payments based on the previous (social security) rate with some adjustments. However, no agreement under s.26 of the 1948 Act was in place. The care home subsequently sought more money for the care provided; the local authority argued that it was providing community care services and was obliged to pay only up to its usual cost level for such care. The court found that community care services were not being provided, given the absence of a s.26 agreement; and therefore the care home proprietor might have an arguable case to claim a ‘reasonable sum’ for the care provided (Yorkshire Care Developments v North Yorkshire CC).
9.1.5 EDUCATIONAL PLACEMENTS
Sometimes the question arises about responsibility for funding what are sometimes called specialist college placements for people aged 18 years or over. The local social services authority, the local education authority department or the Learning and Skills Council may all be involved. In summary the position appears to be broadly as follows and by no means straightforward.
First, the Learning and Skills Council (LSC) has general duties to secure the provision of proper facilities for people aged 16 to 18 years, and of reasonable facilities for those aged 19 years or over (Learning and Skills Act 2000, ss.2-3). In carrying out those general duties, the Learning and Skills Council must have regard to people with learning difficulties (s.13). However, there are two further particular duties and one power in respect of residential placements for people with learning difficulties:
•Duty to under 19-year-olds. For a person with learning difficulties and under 19 years old, if the LSC cannot secure sufficient (in quantity) and adequate (in quality) education or training without securing also boarding accommodation, then it must secure provision of boarding accommodation as well.
•Duty to those aged 19 to 24. For a person with learning difficulties who is 19 years old or over but under 25, if the LSC is satisfied it cannot secure the provision of reasonable facilities for education or training unless it also secures provision of boarding accommodation, then it must secure the provision of boarding accommodation for him.
•Power in respect of those aged 25 years or over. For a person who is 25 years old or over, if the LSC is satisfied that it cannot secure the provision of reasonable facilities for education or training for a person with a learning difficulty who is 25 or over unless it also secures the provision of boarding accommodation for him, it may secure the provision of boarding accommodation for him.
In respect of all placements, the Learning and Skills Council imposes a number of conditions, and applies additional criteria to determine whether a residential placement is appropriate (LSC 2006).
Second, education authorities have a power to secure the provision of further education for people who are 19 years or over. In exercising this power, authorities must have regard to the needs of people with learning difficulties (Education Act 1996, s.15B).
Third, as to social services responsibilities, the courts have from time to time grappled with the issue. In one such case, the judge did make a general comment on the dividing line between what should be regarded as education or as community care:
Community care or educational need. A 20-year-old man with learning disabilities was due to take up a residential college placement. However, neither the local authority nor the Further Education Funding Council (FEFC: since superseded by the Learning and Skills Council) would agree to fund the placement.
In the event, the court dismissed the case against both local authority and the FEFC. For some reason that is not entirely clear, the court referred only to social services legislation covering non- residential services (National Assistance Act 1948, s.29; Chronically Sick and Disabled Persons Act 1970, s.2) – and not to s.21 of the 1948 Act covering residential accommodation. Nevertheless, the judge considered whether educational and community care needs were mutually exclusive.
He concluded that formal instruction in an academic sense would obviously not correspond to a community care need. For a person with a learning difficulty, teaching him or her to read or the basic principles of mathematics (addition, subtraction, multiplication and division) would obviously be purely educational. However, instruction on how to deal with money or to read or how to recognise certain signs (e.g. on food labels or on male and female facilities) could amount to community care needs, notwithstanding an educational element. There would sometimes be overlap; but the correct approach – where the real purpose was to meet a community care need – was to regard it as welfare provision, notwithstanding its educational content.
However, this approach might not necessarily apply to a ‘quite additional educational content for which statute provides a duty or power to provide’ (R v Further Education Funding Council and Bradford Metropolitan District Council, ex p Parkinson).
The following local ombudsman case also illustrates the confusion and maladministration – and significant financial recompense to be paid by the local authority – that can arise when responsibilities are not clarified and funded:
Funding specialist college placements.