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COMMUNITY CARE ASSESSMENTS AND SERVICE PROVISIONS
DECISIONS – AN OVERVIEW
KRISTINA STERN
THE BASICS
1. Community Care services comprise a range of services provided under a range of different statutes. The most common community care services are those provided under:
(1) The Mental Health Act 1983, section 117
(2) The National Assistance Act 1948, sections 21 and 29
(3) The Chronically Sick and Disabled Persons Act 1970
2. Community Care provision must be divided up into stages. They are:
(1) Community care assessment of needs – the obligation is upon the local authority but often in practice cooperation between health and social services is required
(2) A decision as to whether or no the individual’s needs require provision of community care services
(3) A service provision decision, i.e. what services are actually going to be provided. Once a decision has been made that it is necessary to provide services to meet the individual’s needs then the local authority is under an individual duty to make those arrangements.
3. A local authority is obliged to assess the community care needs of any person in respect of which it has a power to provide community care services – R v. Berkshire CC ex parte P 1 CCLR 143.
4. Resources of a person in need of community care services do not appear to be relevant to their community care needs as such, save that if services and/or accommodation are actually being provided, then it would not be necessary for a local authority to provide services to meet the need. Resources become relevant at the stage of charging for community care services.
5. This is provided expressly in relation to section 21 of the National Assistance Act 1948 by virtue of an amendment introduced by section 53 of the Health and Social Care Act 2001:
Disregarding of resources when determining need for residential
accommodation
In section 21 of the 1948 Act (duties of local authorities to provide accommodation), for subsections (2A) and (2B) there shall be substituted—
“(2A) In determining for the purposes of paragraph (a) or (aa) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of the person’s resources as may be specified in, or determined in accordance with, regulations made by the Secretary of State for the purposes of this subsection.
(2B) In subsection (2A) of this section the reference to a person’s resources is a reference to his resources within the meaning of regulations made for the purposes of that subsection.”
6. The relevant regulations, which provide that capital up to the capital limit shall be disregarded, are the National Assistance (Residential Accommodation) (Disregarding of Resources) (England) Regulations 2001.
7. Section 54 of the Health and Social Care Act 2001 provides that individuals can in certain circumstances make additional payments to secure more expensive accommodation by the local authority.
S54Funding by resident etc. of more expensive accommodation
(1) Regulations may make provision for and in connection with the making, in respect of the provision of Part 3 accommodation, of additional payments—
(a) by persons for whom such accommodation is provided (“residents”); or
(b) by other persons (including persons liable to maintain residents by virtue of section 42 of
the 1948 Act).
(2) In this section “additional payments”, in relation to a resident, means payments which—
(a) are made for the purpose of meeting all or part of the difference between the actual cost of his Part 3 accommodation and the amount that the local authority providing it would usually expect to Pay in order to provide Part 3 accommodation suitable for a person with the assessed needs of the resident; and
(b) (in the case of additional payments by the resident) are made out of such of his resources as may be specified in, or determined in accordance with, regulations under subsection (1); and for this purpose “resources” has the meaning given by such regulations.
(3) In this Part “Part 3 accommodation” means accommodation provided under sections 21 to 26 of the 1948 Act.
8. The relevant regulations are the The National Assistance (Residential Accommodation)
(Additional Payments) (
(Amendment) (
circumstances additional top up payments can be made either by the resident or
by third parties.
9. It was held by Scott Baker J. in R v.
10. A local authority’s resources are relevant to its thresholds for assessment of need and whether or not it is necessary to meet the need (R v. Gloucestershire CC ex parte Barry [1997] AC 584), but once it has been determined that it is necessary to provide services to meet a need, a local authority cannot rely upon its own limited resources as a justification for failing to meet the need (see eg Batantu v. Islington
Borough Council (Henriques J., 8th November 2000).
11. A local authority is under a duty to make such arrangements as soon as is reasonably practicable – R v. Kirkham MBC ex parte Daykin and Daykin (1997-8) 1 CCLR 512, 527B.
12. By virtue of section 22 of the National Health Service Act 1977 PCTs and local authorities must cooperate in exercising their respective functions.
THE STATUTORY FRAMEWORK
13. Section 47(1) of the National Health Service and Community Care Act 1990 (“NHSCCA”) provides:
“(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any
person for whom they may provide or arrange for the provision of community care services may be
in need of any such services, the authority -
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
14. The obligation can require notification of relevant PCT in circumstances where it appears to the local authority in the course of an assessment that there may be a need for health services.
15. It is significant to note that the obligation to assess arises irrespective of whether or not the individual has himself requested an assessment, and irrespective of whether or not the individual is in need of community care services in that particular local authority’s area.
16. “Community care services” are defined in s.46 of the NHSCCA as services which the local authority may provide or arrange to be provided under
(1) Part III of the National Assistance Act 1948 – accommodation and welfare services for persons in need of care an attention and/or who are “blind, deaf or dumb, suffer from mental disorder, or over 18 and substantially and permanently handicapped by illness, injury or congenital deformity”.
(2) section 45 of the Health Services and Public Health Act 1968 –promotion of welfare of old people
(3) section 21 and Schedule 8 to the National Health Service Act 1977 –services in relation to the care of expectant or nursing mothers, prevention, provision of centres for training and occupation of persons
5 whose care is preventative, who are ill, or who have been ill, and homehelp and laundry facilities for those who are ill, or handicapped.
(4) section 117 of the Mental Health Act 1983 – after care services for those who have been discharged from compulsory detention under the Mental Health Act 1983.
17. As regards accommodation, S.21 of the National Assistance Act 1948, which falls within part III of that Act, provides that
“local authorities may with the approval of the Secretary of State, and to such extent as he directs must, make arrangements for providing residential accommodation for persons aged 18 or over 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.”
By virtue of Appendix 1 to LAC (93) 10 the Secretary of State directed local authorities to make arrangements under section 21 in relation to persons ordinarily resident in their area. Under section 22 of the National Assistance Act 1948, the local authority can charge for such accommodation.
18. A local authority is empowered to provide “normal” housing under section 21 of the National Assistance Act 1948 - see R v. Bristol CC ex p Penfold [1998] 1 CCLR 315 and R v. Wigan MBC ex parte Tammadge [1998] 1 CCLR 581.
19. As regards more general welfare services, S.29 of the National Assistance Act
1948, which falls within part III of that Act, provides that
“local authorities may with the approval of the Secretary of State, and to such extent as he directs must, make arrangements for promoting the welfare of persons aged 18 or over who are blind, deaf, dumb, suffer from mental disorder or are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”
Section 29 services include a range of services, and can include workshops, hostel accommodation, and recreational facilities. By virtue of Appendix 2 to LAC (93) 10 the Secretary of State directed local authorities to make arrangements under section 29 in relation to persons ordinarily resident in their area for the purposes, inter alia, of providing facilities for occupational, social, cultural and recreational 6 activities and facilities for social rehabilitation and adjustment to disability including assistance in overcoming limitations of mobility or communication.
20. Section 2 of the Chronically Sick and Disabled Persons Act 1970 (“CSDPA”) provides that
“Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely –
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational activities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the local authority under … section 29 or, with the approval of the local authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience … then … It shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.”
21. Section 4 of the Disabled Persons (Services, Consultation and Representation)
Act 1986 provides that
“When requested to do so by –
(a) a disabled person
(b) his authorized representative; or
(c) any person who provides care for him in the circumstances mentioned in section
8, a local authority shall decide whether the needs of the disabled person call for the provision by the authority of any services in accordance with section 2(1) of the 1970 Act (provision of welfare services).”
22. In performing its functions under the above legislation, local authorities are required by virtue of section 7(1) of the Local Authorities Social Services Act 1970 (“LASSA”) to act under the guidance of the Secretary of State. The Secretary of State has issued policy guidance pursuant to LASSA, which local authorities are effectively required to follow (per Sedley J in R v. Islington LBC ex p
Rixon [1998] 1 CCLR 119: “Parliament by section 7(1) has required local authorities to
follow the path chartered by the Secretary of State’s guidance, with liberty to deviate from it
where the local authority judges on admissible grounds that there is good reason to do so but
without the freedom to take a substantially different course”). The Secretary of State has also issued other guidance (not pursuant to LASSA) to which local authorities must have regard and deviation from which may be unlawful: see ex p Rixon (above).
23. Section 4 of the Disabled Persons (Services, Consultation and Representation)
Act 1986 provides that, when requested to do so by a disabled person or his
authorised representative, a local authority “shall decide whether the needs of the disabled
person call for the provision by the authority of any services in accordance with section 2(1) of the 1970 Act (provision of welfare services)”.
24. Section 8 of the Disabled Persons (Services, Consultation and Representation)
Act 1986 provides that:
“Where (a) a disabled person is living at home and receiving a substantial amount of care on a regular basis from another person (who is not a person employed to provide such care by anybody in the exercise of its functions under any enacement), and (b) it falls to the local authority to decide whether the disabled person’s needs call for the provision by them of any services for him under any welfare enactment, the local authority shall, in deciding that question, have regard to the ability of that person to continue to provide such care on a regular basis”.
25. Carer’s assessments are provided for by the Carers and Disabled Children’s Act 2000, which enables carers of adults in needs of community care services, and carers of disabled children (freestanding right to assessment if requeted irrespective of whether community care assessment of person cared for is being carried out), to request a carer’s assessment which must then be provided. See also the Carers (Recognition and Services) Act 1995 (obligation to assess carers when making a community care assessment, if requested to do so)
CHILDREN
26. Section 17 of the Children Act 1989 imposes general duty on local authorities to safeguard and promote the welfare of children by providing services for children in need. Section 17 provides:
“(1) It shall be the general duty of every local authority (in addition to the other duties imposed
on them by this Part)-
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare. (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash.
…
(10) For the purposes of this Part a child shall be taken to be in need if -
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(11) For the purposes of this Part, … ‘developments’ means physical, intellectual, emotional, social or behavioural development; and ‘health’ means physical or mental health.”
27. It is now accepted that section 17 of the Children Act 1989 provides a power, but not a duty, to provide accommodation to a child with his family.
28. Schedule 2, Part I, paragraph 1 provides that
“Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.”
29. Schedule 2, Part I, paragraph 1(1) provides that “Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area”.
Paragraph 3 provides that
“Where it appears to a local authority that a child within their area is in need, the authority
may assess his needs for the purposes of this Act at the same time as any assessment of his needs
is made under -
(a) the Chronically Sick and Disabled Persons Act 1970;
(b) Part III of the Education Act 1993;
(c) the Disabled Persons (Services, Consultation and Representation) Act 1986; or
(d) any other enactment.”
30. The duties imposed upon social services authorities under the Children Act 1989 are social services functions (sections 2, 3 and Schedule 1 of the Local Authority Social Services Act 1970). Accordingly, section 7(1) of the Local Authority Social Services Act 1970 applies. This provides that “Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State”.
31. Section 2 of the Chronically Sick and Disabled Persons Act 1970 applies to disabled children by virtue of section 28A of that Act.
NURSING – HEALTH (NHS) OR SOCIAL (LOCAL AUTHORITY) CARE
1. The leading case on this issue is the judgment of he Court of Appeal in R v.
North and East Devon Health Authority, ex parte Coughlan [2001] QB 213. This 10 concerned, in part, the extent of the NHS’ obligation to provide nursing care. If the NHS has an obligation to provide the nursing care in question, then such nursing care cannot be provided by the local authority.
2. On the issue of the extent to which the Secretary of State is obliged to provide nursing services, the Court of Appeal held that he “need not provide nursing services if he does not consider they are reasonably required or necessary to meet a reasonable requirement.”
In exercising his judgment he is obliged to bear in mind the comprehensive
health service which he has a duty to promote, but he is under no duty actually to
provide a comprehensive health service. Further, he is entitled to take into
account the resources which are available to him, and the demands on those
resources. He may not, however, decline to provide nursing services “simply
because social services will fill the gap”.
3. Further, if the Secretary of State has legitimately excluded certain nursing services from the services provided by the NHS, the Court of Appeal held that those services can then lawfully be provided by a local authority. However, the nursing services which can be provided by a local authority are limited to those “which can legitimately be regarded as being provided in connection with accommodation which is being provided to the classes of persons referred to in section 21 of the Care Act [i.e. the National Assistance Act 1948] who are in need of care and attention; in other words, as part of a social services care package.”
4. It is clear in the judgment of the Court of Appeal that not all nursing services are capable of being regarded as part of social services’ care, but there can be no precise legal line drawn between those services that can properly be so considered, and those that cannot. It will always be a question of degree.
However, the Court of Appeal gave a “very general indication as to where the line is to be
drawn” as follows. If the nursing services are
a) merely incidental to or ancillary to the provision of the accommodation which a local authority is under a duty to provide to the category of persons to whom section 21 [of the National Assistance Act 1948] refers;
(focussing on the quantity of the services) and
b) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide
(focussing on the quality of the services), then they can be provided under section 21. The overriding test appears to be one of primacy: is the individual’s primary need a health need?
5. In any individual case the question of whether or not services are being provided by health or social services will depend upon the eligibility criteria applied by the particular authorities/PCT.
6. Section 49 of the Health and Social Care Act 2001:
S49Exclusion of nursing care from community care services
(1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority, in or in connection with the provision of any such services, to—
(a) provide for any person, or
(b) arrange for any person to be provided with,
nursing care by a registered nurse.
(2) In this section “nursing care by a registered nurse” means any services provided by a registered nurse and involving—
(a) the provision of care, or
(b) the planning, supervision or delegation of the provision of care, other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse.
32. The Scheme for ensuring that care provided by a registered nurse is provided free by the NHS has been set up by reference to guidance contained LAC 2001/017 and 2001/018. The precise effect of these on the provision of nursing care by a local authority has to be determined.
GUIDANCE
33. The White Paper to the NHSCCA recognises (see para 2.4) the importance played by suitable good quality housing, day care services, leisure facilities and
12 employment and educational opportunities in improving the quality of life enjoyed by persons with care needs.
(1)
(2)
(3) In relation to timing, at para 3.2.11 the White Paper provides that
“Assessments should be carried out timeously”.
(4) In relation to accommodation, at para 3.5.1 it is provided that “If dependent people are to be helped to continue living in the community then their homes must be places where it is possible to provide the care they need. The Government believes that housing is a vital component of community care and it is often the key to independent living …”.
(5) Also at para 3.5.4 “Where necessary, housing needs should form part of the assessment of care needs and the occupational therapist may have a key role here.”
34. The Policy Guidance provides as follows:
(1) Care Management involves three distinct processes: assessment, design of a care package, and implementation and monitoring (para 3.9).
(2) Assessment should involve a clear assessment of the individual’s needs, taking into account his wishes and criteria for assessment applied by the local authority (paras 3.15 – 3.20);
(3) Care Plans should set out the services to be provided or arranged and the objectives of intervention (para 3.24).
35. The Practitioners’ Guide provides as follows:
(1) Care management and assessment constitute one integrated process for identifying and addressing the needs of individuals within available resources, recognising that those needs are unique to the individual concerned (para 3).
(2) Need is a complex concept which has been analysed in a variety of different ways. In this guidance, the term is used as a shorthand for the requirements of individuals to enable them to achieve, maintain or restore an acceptable level of social independence or quality of life, as defined by the particular care agency or authority (para 11)
(3) Need is a multi-faceted concept, which for the purpose of this guidance, is subdivided into six broad categories, each of which should be covered in a comprehensive assessment of need:
personal/social care
health care
accommodation
finance
education/employment/leisure
transport/access (para 16).
(4) There should be two clear stages: assessment of the individual’s needs, and then care planning (para 24).
(5) An individual care plan should specify: the needs to be met, the services to be provided, the outcomes to be achieved and the means of measuring outcomes (para 26).
CONCLUSION
36. Of necessity, this papers provides an overview of the provision of community care services. The lawfulness of any assessments or community care provision decisions will be scrutinised in judicial review applications. The courts are willing to do so provided that there is a serious justiciable issue to be considered. The courts are, however, reluctant to intervene when they are in effect being asked to
14 make the assessment, or to enforce the provision of services on a day to day basis, themselves. Thus, for issues to attract the attention of the administrative court it is necessary to show that there has been a serious failure to comply with statutory obligations, or to comply properly with such obligations.
37. The more practical questions of the enforcement of the obligations to provide, or to assess for, community care services will depend upon relationships developing with the relevant local authorities, and to a real extent with the cooperation of the individuals to whom care should be provided. Local authorities, and health authorities, are notoriously short of funds. They, and courts, may be very reluctant to enforce community care obligations as a means of reducing the burden upon insurers and/or the NHSLA. This may well shape any developments in relation to the obligation to provide community care services for those who have good personal injury or clinical negligence claims.
38. However, equally persuasive, will be the interest in ensuring that community care services are not denied to those who need care and attention or welfare services, simply because their families have the ability to pay for them. Such persons can of course be charged for local authority services (except those under section 117 of the Mental Health Act 1983). The charging provisions would be meaningless if those with resources were denied services. The precise terms of the charging provisions, and the matters which can or cannot be taken into account in determining the individual’s resources, should not be allowed to impinge upon that general principle.
KRISTINA STERN
11th March 2004
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