Accessing community and social care services

Social Care Services
Meningitis Amputee Conference
31 October 2014
clarkewillmott.com
Joanna Burton, Solicitor
Clarke Willmott LLP
T: 0845 209 1816
E: joanna.burton@clarkewillmott.com
W: www.clarkewillmott.com

Legal Aid
Legal Aid is available, subject to financial
eligibility, for advice on community care
services and for representation at the first tier
tribunal or in judicial review proceedings.
Clarke Willmott has a community care contract
with the Legal Aid Agency and as such we can
offer, subject to financial eligibility advice paid
for by the Legal aid agency under the Legal
Help scheme and full representation at the first
tier tribunal, the Court of Protection or in
Judicial Review proceedings.
clarkewillmott.com

Mental Capacity Act 2005
Applies to those aged 16+ years who lack the
mental capacity to make the relevant decision
themselves
Provides a legal framework for making decisions ‘in
the best interests’ of P
Presumption of capacity:- lack of capacity to make
a decision is not to be confused with making an
unwise decision
The assessment of capacity is time and issue
specific
The Court of Protection can, in respect of P who
lacks the capacity to make those decisions, make
health and welfare declarations and orders in
respect of care, residence, contact with family and
friends, sex and marriage etc that are in the best
interests of P
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Social Care Legislation, and Statutory
Regulation and Guidance
Article 8 ECHR - Human Rights Act 1998
Equality Act 2010
S47 National Health and Social Care Act 1990
National Health Service Act 2006
s7, s17, 17A and S117 Mental Health Act 1983 (as
amended 2007)
s17 Children Act 1989
s21, s29 National Assistance Act 1948
Fair Access to Care Services 2002 (FACS 2002)
Chronically Sick and Disabled Persons Act 1970
Various carers’ legislation 1980s, 1990s and 2000s
S57 Health and Social Care Act 2000 (Direct
Payments)
Care Act 2014 (social care provisions from 1.04.2015,
financial provisions (the cap) from 1.04.2016)
clarkewillmott.com

Care Act 2014
Principle of ‘Wellbeing’
S1 Principle of wellbeing
S2 P best placed to decide what is best for him or her.
Applies to all adults, and those children aged 16 and 17 years
old who may not be covered by the Children Act 1989 and
who are often referred to as being in ‘transition’.
Provision for adult carers of adults and children and has
additional provisions for duties to child carers of adults
After each section it makes provision for duties if the
individual lacks the mental capacity to make that particular
decision.
Social care provisions including personal budgets, Personal
Independent Budgets and direct payments in force from 1
April 2015
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European Convention of Human
Rights (ECHR) Human Rights Act
1998
Article 2: Right to life
Article 3: Right not to be subjected to inhuman or degrading
treatment
Article 5: Right to liberty and security of person
Article 6: Right to a fair trial
Article 8: Right to a private and family life
Article 14: Right not to be discriminated against
Part II Article 2: ‘No person shall be denied the right to
education …. the state shall respect the right of parents to
ensure that such education and teaching in conformity with
their own religious and philosophical convictions’
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Article 8 – European Convention of
Human Rights (HRA 1998)
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society……
This is a right to autonomy and privacy irrespective of your
age.
Under the Convention public authorities have a ‘positive
obligation’ to ensure that our rights are respected.
This includes the provision of services to ensure that we can
enjoy a private and family life with autonomy.
Article 8 also prohibits a public body (eg local authority) from
interfering with your private and family life except in
accordance with the law and if necessary.
Article 8 rights apply to almost every aspect of our daily lives
and are critiocal for those in need of social and health care
services.
clarkewillmott.com

EQUALITY ACT 2010
Article 14 ECHR (HRA 1998) – Prohibition of
Discrimination ‘on any ground’.
Equality Act 2010 amalgamated the equality
and anti- discriminatory legislation of the
previous 40 years with the aim o f ‘reducing
socio economic inequalities’ and to ‘require the
exercise of certain functions to be with regard
to the need to eliminate discrimination’
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S6, s15, s19 EQUALITY ACT 2010
DISABILITY and DISCRIMINATION
S6 A person (P) has a disability if (a) P has a physical or
mental impairment, and (b) the impairment has a substantial
and long term adverse effect on P’s ability to carry out normal
day to day activities
S15(1) A person (A) discriminates against a disabled person
(B) if – (a) A treats B unfavourably because of something
arising out of B’s disability, and (b) cannot show that the
treatment is a proportionate means of achieving a legitimate
aim.
S19 A person (A) discriminates against (B) if A applies to B a
provision or practice which is discriminatory in relation to a
relevant protected characteristic (eg disability) of B’s
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S20 EQUALITY ACT
DUTY TO MAKE ADJUSTMENTS
The duty (ie mandatory, must) to make ‘reasonable adjustments’
comprises of 3 requirements:-
S20(3) the first …. where a provision, criterion or practice of A’s puts
a disabled person at a substantial disadvantage …..in comparison
to a person who is not disabled, to take such steps as it is
reasonable to have to take to avoid the disadvantage.
S20(4) the second …. where a physical feature puts a disabled
person at a substantial disadvantage in comparison to a person
who is not disabled, to take such steps as it is reasonable to have
to take to avoid the disadvantage.
S20(5) the third .... Where a disabled person would but for the
provision of the auxiliary aid, be put at a substantial disadvantage
in comparison to a person who is not disabled, to take such steps
as it is reasonable to have to take to provide the auxiliary aid.
S21 Failure to do carry out this duty is discriminatory and an
application to the Health and Social Care First Tier Tribunal or
judicial review may be available to you.
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Children Act 1989
S1 ….. the child’s welfare shall be the courts
paramount consideration
When considering whether to make or change an order
under the CA 1989 the court must consider the
following:
S3(a) ascertainable wishes and feelings of the child
S3(b) physical, emotional and educational needs of the
child
S3(c ) the likely effect on him of any change in his
circumstances
S3(d) age, sex, background and any characteristic the
court considers relevant
S3(e ) any harm which he has suffered or is at risk of
suffering
S3(f) how capable each of his parents, and any other
person in relation to the child is of meeting his needs
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S17 Children Act 1989
‘Child in Need’
S17(10) … a child shall be taken to be in need
if –
17(10)(a) he is unlikely to be achieve or
maintain, or to have the opportunity of
achieving or maintaining a reasonable
standard of health or development without the
provision to him of services by the LA…
17(10)(b) his health or development is likely to
be significantly impaired or further impaired
without the provision of such services
he is disabled
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S17(11) Children Act 1989
‘disabled child’
S17(11)…. a child is disabled if he is blind,
deaf or dumb or suffers from a mental disorder
of any kind or is substantially and
permanently handicapped by illness, injury or
congenital deformity or such other disability as
may be prescribed, and in this part –
‘development means physical, intellectual,
emotional, social or behavioural development
and ‘health’ means physical or mental health
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S17 Children Act 1989
S17(1) It is the duty of every LA….. (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.
S17(3) Any service provided….by this section
may be provided for the family of a particular
child in need or to any member of his family if it
is provided with a view to safeguarding or
promoting the child’s welfare
s17(6) Services provided under s17 can
include accommodation, giving assistance in
kind , or in cash
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s17A Children Act 1989
Direct payments
S17 (7) and (8) LAs can, subject to parents being
on certain benefits eg income support, child tax
credit etc, charge for services that they provide
under s17 CA 1989 but the child’s or the parents’
finances must be means tested.
Direct Payments are calculated by the cost of the
services that the LA would have funded or provided
without charging to allow the parent to purchase
those services themselves.
s17A (2) The LA can make Direct Payments to
the following people: (a) a person with parental
responsibility for a disabled child (b) a disabled
person with parental responsibility for a child (c ) a
disabled child aged 16 or 17
clarkewillmott.com

s23A, 23B Children Act 1989
Duties to Looked After Children 16
and 17
S23A refers to a ‘relevant child’ ie a child who is no longer a
looked after child (includes a child who was accommodated
under s20 CA 1989), but was previously and is aged 16 or 17
years old
s23B sets out the additional duties which include staying in
contact with that child, carry out an assessment of need,
prepare a pathway plan etc.
s23B(8) duty to safeguard and promote the child’s welfare
and ….. Support him by (a) maintaining him (b) providing him
with or maintaining him in suitable accommodation and (c )
providing him with such other support as may b prescribed
s X Care Act 2014 has provisions for children aged 16 and 17
(transition) who were not looked after children
clarkewillmott.com

National Health Service Act
2006
Provision of continuing health care by the NHS
Free at the point of delivery
Health and social care services maybe funded
partly by NHS and partly by LA. If part funded
by NHS it will be the ‘nursing’ element or
provision of a service that requires a particular
health skill or expertise.
100% NHS funding of health and social care
needs for those whose needs are ‘primarily
health care needs’ and meet the criteria set out
in the National Framework. Very high bar.
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S47(1) NHSCCA 1990
Assessment of health and social
care needs
Right of assessment whether services are being
funded 100% by the NHS or provided only by the
local authority
S47 (1) where it appears to a local authority that
any person to whom they may provide or arrange
for the provision of community care services may
be in need of any such services shall (a) carry out
an assessment…… (b) having regard to the results
of that assessment, shall then decide whether his
needs call for the provision of such services
Assessment should identify needs and classify
them under the eligibility criteria according to the
statutory guidance Fair Access to Care Services
2002: Low, moderate, substantial, critical.
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Care Act 2014
Assessment
S9 duty of the LA to carry out an assessment
of need: wording v similar to that of s47
NHSCCA 1990
S10: Duty to carry out a carer’s assessment
s11person can refuse an assessment but if
they do the LA no longer has to keep a ‘Care
Account’ for that person (so they will no longer
accrue monies against the cap)
S11(2) If a person lacks capacity to consent to
an assessment then a best interest decision
must be taken to decide if he or she should
have the assessment
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Duty to provide services
S47(2) NHSCCA 1990 – if at appears through
the assessment process that the person is ‘a
disabled person’ they should proceed to the
provision of such services.
Fair Access to Charging 2002 – four criteria:
low, moderate, substantial or critical
LAs only have to provide and/or fund services
to meet assessed eligible needs
LAs have to choose their eligibility criteria
from FACS 2002- most will meet substantial
and/or critical needs
clarkewillmott.com

S21, s29 National Assistance Act 1948
Chronically Sick and Disabled
Persons Act 1973
s117 Mental Health act 1983
Local authorities can charge for care services that they provide but
they must carry out a means test or financial assessment first.
S21 NAA 1948 – the provision of accommodation to meet needs –
can be residential care, supported living, adult placement, rented,
B&B etc.
S29 NAA 1948 – the provision of domiciliary care services in a
person’s own home
S2 CSDPA 1973 – a whole range of services and items can be
provided including cleaning etc and the provision of radios, tvs etc
S117 MHA 1983 – after care services to meet the mental health
needs of a person who has been detained in hospital under s3 or
s37 MHA 1983. These services are free.
All but s117 MHA 1983 are all being repealed by the Care Act 2014
and the Care Act 2014 does not anywhere specify or limit types of
services that can be provided to meet needs.
clarkewillmott.com

Care Act 2014
Eligibility criteria and care services
S13 LAs must decide whether or not needs
meet the eligibility criteria.
Eligibility criteria will be set out in regulations
and it is likely to be very similar to that set out
as substantial and critical in FACS 2002.
S18 Duty to meet assessed eligible needs.
Services to meet needs are not specified –
personalisation – Care and support plan.
clarkewillmott.com

Care Act 2014
Care and Support Plan
The Care Act 2014 does not specify particular services eg
accommodation or personal care etc rather it focusses on
‘wellbeing’ and the duty of the LA to acknowledge that the
individual is best placed to decide what is best for his or her
wellbeing.
S X Following the assessment (s X) a Care and Support Plan must
be made setting out what services are going to be required to meet
all assessed needs and outcomes. The Care and Support Plan
should include services etc to meet all needs not only those that the
LA may have a duty to provide for.
The Care and Support Plan should identify which needs the LA
and/or NHS have a duty to meet and the services that will or should
be provided to meet those needs.
The total cost of providing the services in the Care and Support plan
will be used for calculating the Personal Budget for the person; and
in turn the cost of services to meet assessed eligible needs will be
used to calculate the Independent Personal Budget and the IPB
will determine Direct Payments.
clarkewillmott.com

Carers
Legislation: various from 1986
onwards
Right to an assessment of needs
Right to have services provided to them to
meet those needs
Respite – a service provided to the disabled
person for the relief of the carer.
Remember Article 8 ECHR, Equality Act 2010,
s17 Children Act 1989.
Care Act 2014 will repeal all the carers’ Acts
and provisions currently on the statute books
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Carers
Care Act 2014
s 10 Duty of the LA to carry out an assessment
of carer’s needs
S20 duty to provide services to meet the needs
of the carer
S20 provisions for child carers of an adult
Cost to the carer of care services to meet
carer’s needs may be able to go towards the
carer’s ‘Care Account’ (in force after 1 April
2016)
Be imaginative and remember: Article 8 ECHR,
Equality Act 2010, s17 Children Act 1989
clarkewillmott.com

Direct Payments now
S 17A(2)(b) Children Act 1989 – Direct payments
can be paid to the disabled person with parental
responsibility for a child
S57 NHSCA 2001 – Direct payments calculated by
the cost of care services needed to meet the
assessed eligible needs of the disabled adult can
be paid to that adult or a third party so that the
adult can choose their own care providers or
employ their own carers.
Direct payments can be used to pay for up to a
total of 28 days per year of residential respite care
but cannot be used for full time permanent
residential care.
S57 NHSCA 2001 will be repealed by the Care Act
2014
clarkewillmott.com

Direct Payments
Care Act 2014
S31 – Duty to offer and pay Direct Payments either
to the adult needing care services or to a third
party
S32 Direct payments to a person who lacks the
mental capacity to manage those direct payments.
Direct Payments are calculated by the cost of
services that the LA would be responsible for
paying for to meet the assessed eligible needs of P
The adult must be able to manage their direct
payments
If Direct Payments are paid to a third party the third
party must be able to manage them and the LA
must be satisfied that the third party is a suitable
person.
clarkewillmott.com

Care Account – The Cap
s29 Care Act 2014
In force from 1 April 2016
Referred to in the press as ‘The Cap’
From 1 April 2016 there will be a cap (£75,000) on the
amount an individual will have to pay in their lifetime for
the health and social care costs to meet those
assessed eligible needs that are not congenital or
acquired at birth.
The LA will therefore have to keep a Care Account for
every individual in its area to record the amount that the
individual has paid towards meeting the costs of care to
meet their assessed eligible needs.
It will therefore be important to have an assessment
from the LA and to ensure that the LA does keep a
record of the services paid for by the individual.
At present it is not clear whether the costs will be
calculated only from the age of 18 years, or whether
they are lifetime costs.
clarkewillmott.com

Court of Protection Team
Clarke Willmott
Anthony Fairweather (Senior Partner - Bristol)
Anthony.fairweather@clarkewillmott.com
Jess Flanagan (Associate Solicitor - Bristol)
jess.flanagan@clarkewillmott.com
Heledd Wyn (Associate Solicitor - Taunton)
heledd.wyn@clarkewillmott.com
Joanna Burton (Solicitor - Southampton)
joanna.burton@clarkewillmott.com
Caroline Featherly (Paralegal)
Siobhan Newton (Paralegal)
Michelle (Para Legal)
Alexander Irlam (Administration)
clarkewillmott.com

Bristol
Anthony Fairweather, Senior Partner
E: anthony.fairweather@clarkewillmott.com
Jess Flanagan, Associate Solicitor
E: jess.flanagan@clarkewillmott.com
Taunton
Heledd Wyn, Associate Solicitor
E: heledd.wyn@clarkewillmott.com
Southampton
Joanna Burton, Solicitor
E: joanna.burton@clarkewillmott.com
clarkewillmott.com
Caroline Featherby, Paralegal
Siobhan Newton, Paralegal
Michelle Manley, Paralegal
Alexander Irlam, Administration
Court of Protection Team
Clarke Willmott

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