Recent Developments in Community Care Law

Recent Developments in Community Care Law

ACCESS TO HOUSING OUTSIDE THE HOUSING ACT

David Carter, barrister, Arden Chambers

ASSESSMENTS

Adults

  1. Where it appears to the authority that any person for whom they may provide community care services may be in need of any such service, they:

(a)must carry out an assessment of his/her needs for those services; and

(b)having regard to the results of that assessment, must then decide whether his/her needs call for the provision by them of any such service: NHSCCA 1990 s.47(1).

  1. For these purposes, “community care services” mean services which a local authority may provide or arrange to provide under:

(a)National Assistance Act 1948 Pt.III (local authorities - accommodation and welfare);

(b)Health Service and Public Health Act 1968 s.45 ((local authorities – welfare of elderly);

(c)National Health Service Act 2006 s.254, Sch.20 (and National Health Service (Wales) Act 2006 s.192, Sch.15) (local authorities - care of mothers, young children; prevention of illness, care and after-care; home help and laundry facilities; research); and

(d)Mental Health Act 1983 s.117 (health authorities and local authorities: - mental health after-care services): NHSCCA 1990 s.46(3)(a).

  1. NHSCCA 1990 s.47(1) imposes a very low threshold test for the duty to arise; an authority cannot refuse to carry out an assessment because they reasonably believe that there is no (or no sensible prospect) of it providing services for the applicant: R v Bristol CC ex p Penfold (1998) 1 CCLR 315, QBD.
  1. For guidance on assessing adults, see LAC(2002)13 “Fair access to care services: guidance on eligibility criteria for adult social care”. There is specific guidance for particular user groups, i.e. old people, mental health service users, people with learning difficulties, carers and disabled parents.
  1. The needs of a disabled person have to be assessed with reference to the available resources and the eligibility criteria for services can change according to the authority's financial position: R v Gloucesertshire CC ex p Barry [1997] AC 584, HL.

Children

  1. There is no statutory duty to assess equivalent to NHSCCA 1990 s.47(1) for adults but in R (G) v Barnet LBC, R (A) v Lambeth LBC, R (W) v Lambeth LBC [2003] UKHL 57; [2004] 2 AC 208; [2004] HLR 10, HL, the majority held that there was an implicit duty to assess a child (see Lord Hope at [77]).
  1. Where it appears to an authority that a child within their area is in need, the authority may assess his/her needs for the purpose of the Children Act 1989 at the same time as any assessment of his/her needs is made under, inter alia:

(a)the Chronically Sick and Disabled Persons Act 1970;

(b)the Disabled Persons (Services, Consultation and Representation) Act 1986; or

(c)any other enactment: CA 1989 Sch.2, para.3.

  1. The Department of Health guidance, Framework for the Assessment of Children in Need and their Families (March 2000) states:

(a)authorities should complete an initial assessment of a child’s needs within seven working days from the initial referral to the social services department (paragraph 3.9); and

(b)if an authority decide to carry out a core assessment, it should be completed within 35 working days (paragraph 3.11).

  1. The initial assessment should determine:

(a)whether the child is in need;

(b)the nature of any services required;

(c)from where and within what time scales; and

(d)whether a core assessment is needed (paragraph 3.9).

  1. A core assessment is an in-depth assessment, which should address the central or most important aspects of the child’s needs and the capacity of his/her parents to respond appropriately to those needs. At the conclusion, there should be an analysis of the findings to provide an understanding of the child’s circumstances and inform planning, case objectives and the nature of service provision (paragraph 3.11).
  1. In Lambeth LBC v Ireneschild [2007] EWCA Civ 234; (2006) 9 CCLR 686, the Court of Appeal warned against subjecting assessments – which by necessity were prepared quickly – to “over zealous scrutiny”. Courts should therefore be wary of expecting so much from social workers in preparing such reports that they are unable to discharge their “front line” duties. Nor can a social worker be expected to engage in a detailed analysis of the material on which an assessment is based and decide what points have and have not been put to the claimant, with a view to taking steps to ensure that any points which have been missed are drawn to his attention.

Age assessment

  1. In R (B) v Merton LBC [2003] EWHC 1689 (Admin); [2003] 4 All ER 280, QBD, Stanley Burnton J gave the following guidance at [36] et seq:

(a)The assessment of age in borderline cases is a difficult matter, but it is not complex. It does not require a trial and judicialisation of the process is to be avoided. It is a matter which may be determined informally provided safeguards of minimum standards of inquiry and fairness are adhered to.

(b)Except in clear cases the decision-maker cannot determine age solely on the basis of the appearance of the applicant. In general, the decision-maker must seek to elicit the general background of the applicant, including family circumstances and history, educational background and activities during the previous few years. Ethnic and cultural information may also be important. If there is reason to doubt the given age, the decision-maker will have to make an assessment of credibility by questions designed to test credibility.

(c)There should be no predisposition to assume that an applicant is an adult, or conversely that he or she is a child. The social services department of a local authority cannot simply adopt a decision made by the Home Office. It may take information into account, but it must itself decide whether the applicant is a child.

(d)The local authority is obliged to give adequate reasons for its decision that an applicant, claiming to be a child, is not a child.

(e)The court should not be predisposed to assume that the decision-maker acted unreasonably and carelessly or unfairly. It is for the claimant to establish that the decision-maker acted in such a way.

  1. See also R (I and 0) v Secretary of State for the Home Department [2005] EWHC 1025 (Admin), The Times, June 10, 2005, QBD; R (T) v Enfield LBC [2004] EWHC 2297 (Admin); [2005] 3 FCR55, QBD and (for guidance on the use of experts in such cases) R (A) v Liverpool CC [2007] EWHC 1477 (Admin).

PROVISION OF SERVICES BEFORE ASSESSMENT

  1. Nothing shall prevent an authority from temporarily providing or arranging the provision of community care services for any person without carrying out a prior assessment of needs if, in the opinion of the authority, the condition of that person is such that he or she requires those services as a matter of urgency: NHSCCA 1990 s.47(5); see also R (AA) v Lambeth LBC [2001] EWHC Admin 741, QBD, per Forbes J at [14][17].

Services and care plans

  1. Once an authority have made a decision under the NHSCCA 1990 s.47(1)(b) that a person’s presenting needs require community care services, they must make arrangements for those services to be provided: s.47(5). This is referred to as “care-planning”.
  1. Good practice requires care plans to:

(a)be written;

(b)specify the services that the person is entitled to receive; and

(c)include any other salient information connected with the service provision.

Care plans

  1. Once needs have been assessed, the services to be provided or arranged and the objectives of any intervention should be agreed in the form of a care plan. The objective of ensuring that service provision should, as far as possible, preserve or restore normal living implies the following order of preference in constructing care packages which may include health provision, both primary and secondary, housing provision and social services provision:

(a)support for the user in his/her own home including day and domiciliary care, respite care, the provision of disability equipment and adaptations to accommodation as necessary;

(b)a move to more suitable accommodation, which may be sheltered or very sheltered housing, together with the provision of social services support;

(c)a move to another private household, i.e. to live with relatives or friends or as part of an adult fostering scheme;

(d)residential care; nursing home care;

(e)long-stay care in hospital: “Community Care in the Next Decade and Beyond”, paragraph 3.24.

  1. The aim should be to secure the most cost-effective package of services that meets the user’s care needs, taking account of the user’s and carer’s own preferences. Where maintaining an individual in their own home would provide a better quality of life, this should be preferred to admission to a nursing or residential home but local authorities have a responsibility to meet needs within the resources available which will dictate the degree of compliance with an individual’s preferences: “Community Care in the Next Decade and Beyond”, paragraph 3.25.
  2. Failure to produce a proper care plan is unlawful: R v Islington ex p Rixon (1998) 1 CCLR 119, QBD.

ADULTS

The duty to arrange accommodation

  1. In general, authorities exercising social services functions are subject to a duty to make arrangements for the provision of residential accommodation for adults who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them: NAA 1948 s.21(1), DoH Circular No LAC (93) 10 App 1.

Persons subject to immigration control

  1. Unless regulations provide otherwise, NAA 1948 s.21 does not apply to a person subject to immigration control if his/her need for care and attention has arisen solely because he or she is destitute; or, because of the physical effects, or anticipated physical effects, of being destitute, unless regulations prescribe otherwise: NAA 1948 s.21(1A), IAA 1999 s.116; see also O v Wandsworth LBC, Bhikha v Leicester CC and Secretary of State for the Home Department [2000] 1 WLR 2539; [2001] 33 HLR 39, CA; R (AW, A and Y) v Croydon LBC, Hackney LBC and Secretary of State for the Home Department [2007] EWCA Civ 266, CA.
  1. The “physical effects” of destitution include mental illness resulting from destitution: R (PB) v Haringey LBC, Secretary of State for Health and Secretary of State for Communities and Local Government [2006] EWHC 2255 (Admin), QBD; [2007] HLR 13, QBD.
  1. Where a person subject to immigration control with a medical condition loses his/her accommodation and becomes destitute, the authority must ask themselves whether the physical effects on him/her of being without accommodation would be more severe because of destitution plus his/her medical condition: R (M) v Slough BC [2006] EWCA Civ 655; (2006) 9 CCLR 438, per Maurice Kay LJ at [11], [21].
  1. Where a person is made destitute as a result of having to flee domestic violence, it does not follow that her need for care and attention arises solely from destitution: R (Khan) v Oxfordshire CC [2002] EWHC 2211 (Admin); [2003] HLR 23, QBD.

Asylum-seekers

  1. Where an asylum-seeker’s need for care and attention does not arise solely from destitution but also arises from illness, the authority owe the asylum-seeker a duty under NAA 1948 s.21(1) and not NASS: R (Westminster CC) v Secretary of State for the Home Department [2002] UKHL 38; [2002] 1 WLR 2956; [2002] HLR 58, HL.
  1. Where NASS has previously provided an asylum-seeker with asylum support, it is not obliged to provide assistance from when he or she becomes destitute until his/her health has deteriorated so that he or she is in need of care and attention under NAA s.21(1)(a): R (Mani) v Lambeth LBC [2003] EWCA Civ 836; [2004] HLR 5, CA.

Which authority is responsible?

  1. The duty falls on the authority in whose area the person is ordinarily resident, or if the person has no settled residence or is in urgent need of accommodation, to the authority in whose area the person physically is present: NAA 1948 s.24.

The nature of the duty

  1. This duty does not, however, provide a safety net on which any person who is short of money or accommodation can rely: R v Hammersmith & Fulham LBC ex p M (1997) 30 HLR 10, CA. The proper test is whether a person is “in need of care and attention”: R v Newham LBC ex p Plastin (1997) 30 HLR 261, QBD. It is not enough for an applicant to show that he or she is destitute, he/she must be in desperate need of care and attention because of the risk that otherwise there will be damage to his/her health or that there is some other reason why he or she urgently requires assistance: R v Southwark LBC ex p Hong Cui (1998) 31 HLR 639, QBD.
  1. A need for care and attention is a pre-condition to the existence of the duty. Ordinary accommodation may be provided under NAA 1948 s.21 but the fact that a person is in need of ordinary accommodation does not make him or her in need of care and attention; ordinary accommodation is merely one means by which a need for care and attention can be met: R (Wahid) v Tower Hamlets LBC [2002] EWCA Civ 287; [2003] HLR 2, CA.
  1. Once an authority conclude that a person is in need of care and attention they are obliged to provide him or her with residential accommodation: R v Sefton MBC ex p Help the Aged (1997) 1 CCLR 57.
  1. An authority do not have to carry out an assessment of need (under NHSCCA 1990 s.47) before they have the power to provide accommodation under s.21: R (AA) v Lambeth LBC [2001] EWHC Admin 741, QBD.

“Any other circumstances”

  1. A person who was not entitled to welfare benefits can be in need of care and attention by reason of “any other circumstances”; in addition to a lack of food and accommodation, relevant factors in this decision are an inability to speak English, ignorance of Britain and the stressful circumstances in which he or she came to Britain: R v Hammersmith & Fulham LBC ex p M (1997) 30 HLR 10, CA.

Residential accommodation

  1. “Residential accommodation” means no more than where a person lives; it does not mean “accommodation with an institutional quality”: R v Newham LBC ex p Medical Foundation of the Care of Victims of Torture and others (1997) 30 HLR 955, QBD.
  1. Where authorities provide accommodation, they may also provide board and other services, amenities and requisites in connection with the accommodation except where such provision is considered by the authority to be unnecessary: NAA 1948 s.21(5). They are not, however, under a duty to +provide board or other services with accommodation: R v Newham LBC ex p Medical Foundation for the Care of Victims of Torture and others (1997) 30 HLR 955, QBD.

Type of accommodation

  1. The accommodation which may be provided by the authority is not limited to any specific kind of accommodation and may include ordinary and sheltered housing as well as residential care homes, but the authority are entitled to have regard to their resources in deciding how they meet the applicant’s needs: R v Islington LBC ex p Batantu (2000) 33 HLR 76, QBD.
  1. Authorities have a discretion as to the type of accommodation to provide, but they should not confine themselves to bed and breakfast accommodation where it is not suitable to the applicant’s needs: R v Newham LBC ex p C (1998) 31 HLR 567, QBD.
  1. Authorities must take full account of the applicant’s wishes, but where an authority reasonably concluded that the only way that an applicant’s needs could properly be met was by a placement in a residential care home, they had satisfied their duty: Khana v Southwark LBC [2001] EWCA Civ 999, CA; [2002] HLR 31, CA.
  1. The authority are not required to be a direct provider of accommodation and may discharge this duty wholly or in part through a voluntary organisation or any other third party: NAA 1948 s.26(2), R v Wandsworth LBC ex p Beckwith [1996] 1 WLR 60, HL.

Discharge of duty

  1. The authority are entitled to treat their duty as discharged and refuse to provide any further accommodation if the applicant unreasonably refuses the accommodation offered or if, following its provision, by his/her conduct manifests a persistent and unequivocal refusal to observe reasonable requirements for occupation of that accommodation: R v Kensington & Chelsea RLBC ex p Kujtim [1999] 4 All ER 161; (1999) 32 HLR 579, CA. When exercising a duty to provide accommodation to a mentally ill applicant, an authority are under a duty to explain clearly and “to the point of comprehension” any offer which is made, so as to be sure that the applicant understands what is being offered and its location: R (P) v Newham LBC, unreported, November 9, 2000, QBD.

DOMICILIARY AND COMMUNITY-BASED SERVICES

National Assistance Act 1948

  1. NAA 1948 s.29 enables local authorities to make welfare arrangements in respect of eligible persons.
  1. In general, social services authorities have the power to make arrangements for promoting the welfare of the following persons who are ordinarily resident in their area:

(a)persons 18 or over who are blind, deaf or dumb or who suffer from any mental disorder; and

(b)persons 18 or over who are substantially and permanently handicapped by illness, injury or congenital deformity or such other disabilities prescribed by the Minister: NAA 1948 s.29(1).

What services?

  1. Authorities must provide:

(a)a social work service and advice and support for people in their own homes;

(b)facilities for social rehabilitation and adjustment to disability; and

(c)facilities for occupational, social, cultural and recreational activities: DoH Circular No LAC (93) 10 App 1.

  1. Authorities may provide (irrespective of ordinary residence):

(a)assistance in finding accommodation;

(b)workshop hostel services;

(c)warden services for occupiers of private housing; and

(d)subsidising warden costs in warden assisted housing: NAA 1948 s.29(4).

Chronically Sick and Disabled Persons Act 1970

  1. A social services authority has a duty where it perceives it necessary, that a person, qualifying under NAA 1948 s.29, who is ordinarily resident in the social services authority’s area, in order to meet that person’s needs, to make arrangements, inter alia, of the following nature:

(a)the provision of practical assistance in the home;

(b)the provision of recreational facilities including a television or wireless;

(c)the provision of games, lectures or other recreation outside of the home;

(d)the provision of assistance in travelling in order to take advantage of service provision outside the home;

(e)the provision of assistance for that person for the carrying out of any works of adaptation in his/her home or the provision of any additional facilities designed to secure his/her greater safety, comfort or convenience;

(f)facilitate the taking of holidays;

(g)the provision of meals in the home or elsewhere; and

(h)the provision of special equipment enabling a person to use the telephone: CSDPA 1970 s.2(1).

Assistance for adaptation works

  1. CSDPA 1970 s.2(1)(e) above falls into two parts, structural alterations to the person’s home and additional alterations such as fixtures and fittings. DoH Circular No LAC (90)7 in respect of disabled facilities grants impresses on social services authorities that the duty extends to carrying out the works (including financing them) as opposed to merely facilitating them by finding an architect for example.
  1. A social services authorities, who refer a disabled person to a housing authority to obtain a disabled facilities grant, do not discharge their and any delay requires social services intervention. For these purposes, the social services authority is the “lead authority” and a refusal by the housing authority of the grant will not absolve social services of their responsibility: DoH Circular No LAC (90)7.
  1. Social services can charge for equipment provided which, generally, the NHS cannot: DOH Circular No LAC (90)7, para.19.

Particular groups

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