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Introduction to Community Care

LEGISLATION

The legislation relating to community care in Northern Ireland is contained in a variety of Acts and Orders. Government guidance and directions are also highly significant. The following are some of the most important pieces of legislation:

Health and Personal Social Services (NI) Order 1972, as amended

Chronically Sick and Disabled Persons (NI) Act 1978

Disabled Persons (NI) Act 1989

Children (NI) Order 1995

INTRODUCTION

There is no definition of the term community care in law but it has been loosely interpreted to mean the provision of both social and health care.  Community care services can include such things as support offered to a person at home, access to respite and day care, family placements, the provision of sheltered housing, placement in group homes and hostels or residential and nursing homes.  In 1990, proposals for improving the management and delivery of community care services were set out in the government policy paper People First: Community Care in Northern Ireland in the 1990s. The fundamental principle, as outlined in this document, is that a person who needs care and support should be encouraged and assisted in order to enable her/him to live, with as much independence as possible, in the community, as opposed to living in an institution.

Legislation, policy and guidance issued since 1990 have been geared towards achieving this aim and more people than ever before now reside in the community with the support of health and social services.  In turn, this has led to an increase in the number of people seeking information and assistance regarding the provision of community care services and their rights and entitlements to those services. The government re-committed itself to the principle of independence in the community in its report Review of Community Care (DHSS&PS 2002).  Based on a review of community care commissioned in 2001, the report identified seven areas for improvement by which the government hopes to ensure a better delivery of services to clients. These notes set out the basic principles of community care law, including the rights and entitlements of a person to receive community care services and the remedies available to a dissatisfied service user.

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1.  THE LEGAL FRAMEWORK

In as much as there is a body of community care law in Northern Ireland, it is a combination of different statutes, which have been enacted during the last 30 years, without any unifying principles underlying them.

Furthermore, in addition to the main statutes governing service provision, there is a range of other legislation which may be relevant in different contexts eg regulations governing such things as the payability of Attendance Allowance and Disability Living Allowance (DLA), the running of residential and nursing homes, the provision of services to children, etc.

Since devolution, the Department of Health, Social Services and Public Safety (DHSS&PS) has assumed responsibility for health and personal social services issues. Community care legislation in Northern Ireland was created by various sources and is to be found in:

Public authorities are also issued with guidance in various forms. It is important to be aware of the legal significance of guidance.  There are many different types of guidance including policy guidance, practice guidance, departmental policy, codes of practice, circulars and advice notes. The precise status and importance of the various types of guidance in the law is difficult to measure. 

Generally, guidance does not impose legally binding obligations although it does carry significant weight in any dispute about the assessment of need and the provision of services.  Some types of guidance, eg guidance made explicitly under legislation which specifically requires authorities to act under it, may impose a legal obligation. A public body will not automatically be acting unlawfully if it does not follow guidance, although a decision not to follow it would have to be clearly justified.

1.1 Health & Personal Social Services (NI) Order 1972

The Health and Personal Social Services (NI) Order 1972 (HPSS'72) as amended by the Health and Personal Social Services (NI) Order 1991 (HPSS'91) and the Health and Personal Social Services (NI) Order 1994 (HPSS'94) is the key piece of legislation governing the provision of health and social services care in Northern Ireland. The order imposes a number of duties including:

1.2 Chronically Sick and Disabled Persons (NI) Act 1978

The Chronically Sick and Disabled Persons (NI) Act 1978 (CSDP'78) contains specific duties in relation to a person who is chronically sick or has a disability. Sections 1 and 2 outline the duty to share information and make such arrangements as are necessary for the provision of social welfare services to meet the needs of any person coming within the definition of chronically sick and disabled:

1.3 Disabled Persons (NI) Act 1989

Section 4 of the Disabled Persons (NI) Act 1989 (DP'89) creates a specific duty in relation to assessments of people who come within the definition of chronically sick or disabled. An assessment must be carried out when requested by either a person with a disability or a carer, in the context of the provision of services under Section 2 of the CSDP'78.

1.4 Mental Health (NI) Order 1986

The Mental Health Order 1986 (MHO'86) places a general duty on boards to:

Also of note is Article 40, which imposes a specific duty on social services in respect of applications for admissions and guardianships.

1.5 Children (NI) Order 1995

While all the above provisions apply equally to children and adults, the Children (NI) Order 1995 (CO'95) creates certain rights and duties specific to children, which may be relevant in the context of provision of community care services. Social services are under a general duty by virtue of Article 18 of this Order to safeguard and promote the interests of children in need and, in furtherance of this duty, are empowered to provide a wide range of services. The powers available to trusts in relation to the provision of services to children are almost unlimited and include the giving of assistance in kind or, in exceptional circumstances, in cash.

It may therefore be possible in a family situation to access services under CO'95 in cases where there is a failure on the part of a trust to exercise its discretion under other general provisions to provide services.

As a result of the enactment of the Carer’s and Direct Payment Act (NI) 2002 (CDPA’02), new provisions have been inserted into CO’95.  These are:

1.6 Northern Ireland Act 1998

Section 75 of the Northern Ireland Act places a duty on public bodies to promote equality of opportunity between different groups of people including older people, people with disabilities and carers.

Public authorities are required to carry out equality impact assessments to ensure that they are acting in a way which is not in breach of their obligations under Section 75.  If they find that they are acting in a way which adversely impacts on one of groups defined under Section 75, they are obliged to consider how to rectify the problem. This is usually done by implementing equality schemes. A person wishing to complain that a public authority has failed to carry out an equality impact assessment, has carried out the assessment inadequately (eg, has not considered relevant information) or has failed to implement an equality scheme should first raise the matter with the public authority. If the person complaining is not satisfied with the response s/he may then complain to the Equality Commission. The complaint must be sent to the Equality Commission during a period of twelve months from the date of which the complainant first knew of the matter alleged. The Equality Commission may then carry out an investigation and report on its findings. If the public authority fails to implement its recommendations within a reasonable time, the Equality Commission may refer the matter to the Secretary of State.

A person may also be able to challenge a public authority’s failure to adhere to its duties under Section 75 in court.

Details for the Equality Commission are as follows:

ECNI, Equality House, 7-9 Shaftesbury Square, Belfast BT2 7DP.

Telephone: 028 90 500 600
Textphone: 028 90 500 589
Enquiry Line: 028 90 890 890
Fax: 028 90 248 687
Email: information@equalityni.org

1.7 Human Rights Act 1998

In October 2000, the Human Rights Act (HRA) came into force in Northern Ireland . This Act seeks to protect people’s human rights by giving further effect to the European Convention on Human Rights and, whilst it is largely concerned with prevention, it is important to note that the courts have also interpreted the HRA as placing a positive obligation on public authorities in certain cases. The following articles are most likely to be of relevance to providers and users of community care services.

It is possible to envisage a situation where, for example, the failure of a trust to provide services to meet an assessed need could amount to a person being left in such a state as to amount to inhuman or degrading treatment.

Article 8(1) provides that everyone has the right to respect for her/his private and family life, her/his home and correspondence.

A lack of effective domiciliary care may be disruptive of family life, as could the placing of someone in residential care who wishes to remain at home.

A person may also wish to rely on this article when faced with the closure of the residential or nursing home in which s/he lives. It may be possible to challenge a trust’s decision in certain circumstances on the basis of a breach of the right to respect for private life, family or home.

Article 8(2) sets out a number of grounds on which a public body may legitimately interfere with a person’s right under Article 8(1). One of the grounds is that the interference is necessary in the interests of the economic wellbeing of the country. If a trust put this forward as an argument then the courts would have to decide whether or not the interference was justified.

1.8 Carers and Direct Payments Act (NI) 2002 

The Carers and Direct Payment Act (NI) 2002 (CDPA’02) received royal assent in May 2002 but not all of its provisions were brought into force. The Act gives new rights to carers and inserts paragraphs into the Children (NI) Order 1995. It also abolishes all previous legislation on direct payments.

The CDPA’02 makes provision for direct payments to be made to a person with parental responsibility for a child with a disability, a parent with a disability who has parental responsibility for children and a child with a disability aged sixteen or seventeen.  

The CDPA’02, for the first time, gives carers a statutory right to an assessment of need when requested. When such an assessment has been carried out, a trust must consider whether or not it should provide services to the carer. The CDPA’02 also empowers trusts to make direct payments to carers (including sixteen and seventeen year old carers) for the services that meet their own assessed needs.  Furthermore, when a trust carries out an assessment under HPSS’72 on a person being cared for and a carer asks for a carers assessment to be carried out at the same time, the trust must take into account the results of the carers assessment when deciding what services if any to provide to the person being cared for.

The CDPA’02 also makes provision for vouchers to be given to enable a carer, a person being cared for or a person with parental responsibility for a child with a disability to have a break from caring, but this section of the act has not yet been brought into force. 

Finally, the CDPA’02 sets out that trusts must take such steps as are reasonably practicable to ensure that information is available to carers regarding their right to assessments. 

1.9 Other legislation

Various other pieces of legislation govern matters relating to the provision of community care services. Whilst the majority of queries arise from the provision of, or failure to provide, community care services under the above legislation, advisers should be aware that a person may have rights and entitlements to community care services under other pieces of legislation.

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2. HEALTH & SOCIAL SERVICES STRUCTURE

2.1 Pre and post devolution

Prior to 2 December 1999, the Department of Health and Social Services (DHSS) had a statutory duty, set out in the HPSS'72, to provide social services and integrated health services in Northern Ireland.

It was the role of the Health and Social Services Executive (HSSE) to oversee the provision of health and personal social services in Northern Ireland, to improve the health and social wellbeing of the people of Northern Ireland and to provide leadership, direction and support for health and personal social services in Northern Ireland.

Health and social services boards were established to enable the DHSS to carry out its functions and meet its statutory duty. The boards purchased packages of services to meet the needs of people resident in their area from a range of providers including health and social services trusts.

Following devolution, the structure of government changed and some functions moved from the control of one department to another. The DHSS no longer exists. It has been replaced by the DHSS&PS and the Department for Social Development (DSD).

The DHSS&PS deals with health and personal social services issues, whilst the DSD deals with such issues as housing, social security, urban regeneration and community development.

2.2 The DHSS&PS

The aim of the DHSS&PS is to improve the health and social wellbeing of the people of Northern Ireland .  The DHSS&PS consists of the Planning and Resources Group, Health and Personal Social Services Management Group, five professional groups and the Social Services Estates Agency.

2.2.1 Health and social services boards

Under the Health and Personal Social Services (Reform) ( Northern Ireland ) Order 2007 the existing four health and social services board areas are to the replaced by a Health and Social Services Authority. At the time of writing the four existing health and social services board areas - Eastern, Northern, Southern and Western, - remain.

The boards act as agents of the DHSS&PS in planning, commissioning and purchasing health and social services for people resident in their area.  In deciding which services are needed, the boards assess the population's health and social care needs and it is then their responsibility to commission and purchase services to meet those needs.

2.2.2 Health & social services trusts

The five trusts in Northern Ireland - Belfast, Northern, Southern, South Eastern and Western - are managerially independent of the boards and control their own budgets. Trusts are responsible for the management of staff and services at hospitals and other establishments, which in the past were managed or provided by boards.  Most of the key statutory functions of boards in relation to the provision of social services have been delegated to trusts.

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3. DUTIES AND POWERS

Legislation creates both duties and powers for boards and trusts.

3.1 Duties

Duties are mandatory unless qualified and may be either general or specific.

3.1.1 Mandatory duties

A mandatory duty is usually signified by the use of the word 'shall' in the legislation.  If the duty is mandatory, a board or trust must discharge that duty and failure to do so will permit a person to apply for judicial review of the action or inaction of the board or trust.

3.1.2 Qualified duties

A duty may be qualified. This is usually signified by the use of the words 'to such extent as is necessary' or 'so far as is reasonably practical'.  If such a qualification is used, it gives the board or trust a degree of interpretation in discharging the duty, therefore it may be more difficult to successfully challenge a board or trust for its failure to discharge that duty.  When such a challenge is made, the court will decide whether or not something is necessary or reasonably practical.  It is worth noting that the courts have traditionally been reluctant to interfere with clinical decisions of doctors and other professionals and that often it is those persons who decide whether or not something is necessary or reasonably practical.

3.1.3 General or specific

A duty may also be either general or specific. A general duty is one which is owed to a group or class of people, as opposed to a specific duty, which is owed towards an individual.  In general, it is more difficult for authorities to avoid a duty towards an individual person and it is easier to bring a challenge against an authority which has failed to discharge such a duty. 

3.2 Powers

Powers are discretionary.  A discretionary power is often signaled by the use of the word 'may' in the legislation. The full extent of the obligation on a board or trust in exercising a power will depend on the exact wording of the legislation and the individual circumstances of the case. The exercise of a discretionary power may be challenged by way of judicial review, which would consider whether the decision of a board or trust was unreasonable, whether it was made for the wrong purposes, or whether all relevant considerations had been taken into account.

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4. COMMUNITY CARE SERVICES

4.1 Range of services

The various Acts, Statutes and Orders discussed above place duties on boards and trusts in relation to the provision of services to persons residing in their area. Each person will have different requirements and will not necessarily require all the services which the boards and trusts are under a duty to provide. However, as a result of their statutory and other obligations, it is expected that boards and trusts will make the following range of services available to a person in need of community care services and her/his carers:

Note: Assessment may be regarded as a service in itself where a person with a disability or a carer specifically requests it under DP'89 and CDPA’02.

4.2 Entitlement to services

A person who has special needs which mean s/he cannot cope in one way or another with her/his own care is entitled to community care services. These needs may arise through illness or as a result of physical or mental disability or from a dependency which has developed over a length of time in institutional care.

In planning for and providing services, social services refer to individuals in terms of client groups, which is practical shorthand for social workers. However, this creates a difficulty in that most people do not think of themselves as carrying the label that social services might place on them and may not therefore realise that they are entitled to a particular service. Furthermore, putting a person into a category may adversely affect the kind of treatment or services s/he receives. If a person has a range of needs but is treated mainly as coming within one of the client groups, s/he may not be considered eligible for services on offer to people in another client group. It is essential to bear in mind that the defining factor, which determines a person's entitlement to community care services, is her/his individual and particular need for care and support.

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5.  ASSESSMENT OF NEED

5.1 Legislative basis for assessment

Assessment of need has a central role to play in the provision of community care. Correct assessment is crucial to the provision of appropriate care to meet a person’s needs.

There is nothing in the legislation relating to health and social services provision in Northern Ireland which states that an assessment of need must be carried out in all cases. Until the enactment of the CDPA'02 which, as stated above, means that carers now have a statutory right to an assessment of need when requested, the only piece of legislation which contained a legal right to an assessment of need was DP'89.  Section 4 of DP'89 sets out that a person with a disability who requests an assessment is entitled to be assessed for services under Section 2 of CSDP'78.  In addition, under the Children Order as amended by the Children (Leaving Care) Act ( Northern Ireland ) 2002, trusts are now under a duty to assess and meet the care and support needs of young people leaving care until they are at least 21 years old.

However, although there is no general duty to assess need in the Northern Ireland community care legislation, People First, Care Management: Guidance on Assessment and the Provision of Community Care (hereinafter referred to as the guidance) sets out that:

'From 1 April 1993… health and social services boards will be required to assess the care needs of any person who appears to them to be in need of community care services and to decide, in the light of that assessment, whether they should provide, or arrange for, the provision of any services.'

Whilst this is guidance and does not carry the weight of legislation, a trust deviating from this guidance would have to show good reason for doing so. Note that responsibility for the provision of social services has been delegated to health and social services trusts under HPSS’94.

Moreover, whilst there is no duty to assess contained in the legislation, there is often a duty to meet need and, in order to meet a person’s needs, those needs must be identified and this is generally done by an assessment.

5.2 Triggering assessment

There are several ways in which a person's need for an assessment may be triggered. For example, a person may:

5.3 Type of assessment

Once it has been determined that a person requires an assessment, the decision must be made as to what level of assessment is required. Some people will require a higher level of assessment than others. In some cases, a person's needs are readily apparent and an assessment can be carried out with relative ease to identify those needs. However, in certain cases it will be necessary for a comprehensive multi-disciplinary assessment to be carried out to ensure that all the needs of the individual have been identified.  It is up to the board or trust, having regard to all the relevant factors, to determine what type of assessment a person requires and to arrange for the assessment. There is no effective legislative description of what the assessment process should involve except that contained in Section 3 of Part 11 of the DP’89 where the details of what a formal assessment should include are set out. However, that Section of DP’89 has never been brought into force and the only other indication as to what the assessment process should include is to be found in the guidance which sets out that 'the initial screening process, if necessary involving a home visit, should determine whether the comprehensive procedures ought to be called into play and, if they are to be used, which officer should co-ordinate the assessment.'

The guidance also states that comprehensive assessment should include physical, mental and social functioning and suggests that the areas to be covered include:

All appropriate agencies and professions involved with a person and her/his problems should be brought into the assessment procedure. These may include, for example, social workers, family members, physiotherapists, occupational therapists, speech therapists, dieticians, dentists, general medical practitioners, community psychiatric nursing staff, housing officers, social security officials, home care assistants and voluntary workers.

The DHSS&PS is currently developing a single tool for assessing the health and social care needs of older people.

In contrast to the position in Northern Ireland where there is no detailed guidance on the carrying out of assessment, in England detailed practice guidance has been issued entitled Care Management and Assessment: a Practitioners’ Guide. This guidance sets out six models of assessment ranging from simple through multiple to comprehensive. It suggests that authorities develop guidelines on the levels of assessments they consider appropriate for different types of needs and that those guidelines should include the timescales considered reasonable for the completion of each type of assessment.

5.4 Notification of outcome of assessment

Once the assessment process has been completed, the individual and her/his carer should be informed of the result of the assessment and given the name of an individual to contact for any further discussion. Whilst there is nothing in legislation compelling trusts to provide written copies of assessments, guidance states that a written statement should always be provided on request.  The Guidance on carer`s assessments goes further and states that ’the carer must always receive a copy of their assessment’ without any need for a trigger request.

Furthermore, the Data Protection Act gives a person the right of access to personal data held on her/him. Where this is denied, the person may appeal to either the Data Protection Commissioner or the courts. When a person requests a copy of the assessment, it should be provided within 40 days of the date of request. In addition, the right under the Freedom of Information Act 2000 to make application for official information held by public bodies (the ‘right to know’) came into force in January 2005.  For trust staff it means that, in effect any information held about living individuals is potentially accessible under the Freedom of Information Act 2000).

5.5 Failure to assess

Having considered the above duties, it should be apparent that it would be extremely difficult to meet a person's needs without having assessed her/him and, in practice, assessments are carried out to establish what a person's needs are. Any refusal of a request for an assessment for services might give rise to litigation where a person is refused services or is dissatisfied with the level of services provided.

5.6 Housing assessments

The issue of assessing and meeting housing need for a person who is ill or has disabilities is complex.  Both the Northern Ireland Housing Executive (NIHE) and trusts have duties in relation to housing.

5.6.1 Role of NIHE

NIHE is the statutory body with responsibility for providing public housing and it has duties to those found to be homeless.  A person can be homeless if it is not reasonable for her/him to continue to occupy her/his current accommodation.  This may be, for example, because of substantial disrepair, or perhaps because of the house not being suitable for a person with a particular disability.  If the person is found to be unintentionally homeless and in priority need, there is an obligation on NIHE to secure accommodation for her/him, usually after some time in temporary housing.  Three reasonable offers of housing will be made but need not be in the person's area of choice.

NIHE has no statutory obligation to adapt the homes of its tenants to meet their need.  It does have an obligation under the Housing (NI) Order 1992, Article 52, to operate a disabled facilities grant scheme which is open to tenants, landlords and owner occupiers.  NIHE carries out assessments of need following recommendations from a trust and then carries out a financial assessment as to the amount of grant aid to be offered.  In practice, NIHE is committed to carrying out adaptations to its own homes recommended by trusts, despite the lack of statutory obligation.  Similarly, registered housing associations adapt their properties as they are able to access departmental funding on the basis of a social services recommendation.

5.6.2 Role of social services

Housing is one of the main areas which should be assessed as part of multi-disciplinary community care assessment.  Under Articles 4 and 15 of HPSS'72, the trust must meet an assessed social welfare need, including a need for residential or other accommodation.

There is also a duty to meet the needs of children for accommodation under the CO'95.  This sits with the obligation to promote the upbringing of the child with her/his family.  In order to establish this, it would be necessary for an assessment to be carried out.

Section 2(e) of the CSDP 1978 places a statutory duty on trusts to provide assistance in arranging for the carrying out of adaptations to the home, or to provide additional facilities designed to secure greater safety, comfort or convenience, where either is necessary to meet a person's housing needs.  This is the basis for many community occupational therapy assessments.

Although NIHE has agreed to assess the need for and carry out adaptations to its properties which are occupied by people with disabilities, the only statutory obligation in this area remains with the trust.  This means that if there is a failure by NIHE to assess or meet need correctly, the trust may be considered to have failed in its obligation to assist in the arranging for the adaptation of the home.  There has been litigation on the extent of the trust's obligation under Section 2(e) CSDP 1978 and it has been held that adaptations are carried out.  However there is still legal debate as to whether this interpretation of the legislation is correct.

For current guidance on housing adaptations for people with disabilities see ‘Inclusive Design through Home Adaptations, a Good Practice Guide’, NIHE, 5 February 2004.

5.7 Resources and assessment of need

There has been considerable litigation and legal debate on the question of whether or not social services can take their own financial resources into account when assessing a person's needs.  Two cases in particular have gone as far as the House of Lords and they dictate the current state of the law on this issue.

5.7.1 R v Gloucestershire CC, ex-parte Barry [1997] 2 WLR 459 HL

This case concerned the obligations of social services under Section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (CSDP'70) (which is equivalent to CSDP'78).

Mr Barry was a 79 year old man with a disability who had been assessed by social services as needing home care assistance including cleaning and laundry services. Those services were initially provided to Mr Barry but were later withdrawn when the local authority encountered a shortage of financial resources. The authority wrote to around 1,500 people who were on the lowest priority level for the home care service telling them that their service would be either reduced or withdrawn.   Some of those people who were receiving their service under CSDP'70 sought a judicial review of the decision.

When the Court of Appeal heard this case, it held that the duty to assess need could not be connected to the financial position of the local authority.  However, when the case went to the House of Lords, it held by a majority decision (3:2) that a local authority could take into account its own resources when assessing both the needs of a person with a disability and whether services (eg practical assistance in the home) were required to be provided to meet that need. This meant that a local authority could, when its budget got tight, re-assess a person as having less need (because the council had less resources) by changing its eligibility criteria.  Then, even though her/his personal needs had not changed, the person may no longer be eligible for assistance and the service could be withdrawn or reduced. The Court held that services could not, however, be withdrawn without a re-assessment of need.

This case diluted the statutory duty owed to chronically sick and disabled persons under Section 2 of the CSDP'70 and changed it from a duty to a mere discretion, until the case of R v East Sussex CC, ex parte Tandy (discussed below). However, whilst the Tandy case is the most recent in the area of resources, it was distinguished from the Barry case and that means that the Barry case is still the legal precedent in cases arising from the duty to meet need under Section 2 of the CSDP'70.

5.7.2 R v East Sussex CC, ex-parte Tandy [1998] 2 All ER 769 HL

In this case, a differently constituted House of Lords considered the duty of a local authority under the Education Acts of 1993 and 1996 and came to the conclusion that the resource arguments in the Barry case were largely restricted to cases concerning Section 2 CSDP'70.

Beth Tandy was a pupil in the local education authority's area. She suffered from ME and as a result was unable to attend school on a regular basis. She received five hours home tuition per week pursuant to Section 298 of the 1993 Education Act. The local authority then encountered a cash crisis as a result of which it resolved to cut its home education budget from £100,000 to £25,000 per year. Expressly taking this factor into account, the authority decided to cut Beth Tandy's home tuition to three hours per week. The House of Lords had to decide whether or not the local authority's resources were a relevant factor to take into account in deciding to cut Beth Tandy's tuition.

In a unanimous judgement, the House of Lords held that the duty owed under the 1993 Education Act was a specific duty which was owed to each child individually, and that there was nothing in Section 298 to indicate that local authorities could take their resources into account when deciding such matters.

5.7.3 Commentary and current legal position

Although there appears to be little difference between this case and the earlier Barry case, the judges distinguished the two cases on the basis that the needs in CSDP'70 were not of the same magnitude as those under the Education Act. Since the Tandy case, other cases have been decided on the grounds that, where a statutory duty is owed towards an individual, lack of available financial resources is not an excuse for failing to meet an identified need. Whilst there have been no cases on the issue of whether resources are relevant to the assessment of need, it has been suggested that, even when assessing need, the scope for including resource consideration is limited except in relation to Section 2 CSDP'70.

The present position is that trusts can take their available resources into account during the assessment process when making a decision as to whether or not a need exists, ie a trust can decide that the provision of certain services is not necessary.  For example, a trust might decide that it is not necessary for it to provide laundry services to people resident in its area. (Even in doing that there may be a problem if the trust has a blanket policy which fails to take account of individual needs and it may be possible to legally challenge such a policy). However, once it has been decided that services are needed then they must be provided regardless of the availability or otherwise of resources.

Some commentators and lawyers are of the view that it is likely that the House of Lords will, before long, decide that the assessment of need should also be resource free for most if not all community care services with the exception of Section 2 CSDP'70.

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6. MEETING ASSESSED NEEDS

6.1 Duty or power to meet need?

Once it has been established that a person has needs, the next consideration is whether these will be met by the provision of a service.  It is necessary to check whether the trust is under a statutory duty to meet the need or whether it merely has a power to do so and may exercise its discretion in considering whether to provide the service.

6.1.1 Statutory duty

If there is a statutory duty, the trust cannot refuse to meet an assessed need on grounds of lack of resources. Trusts can only take their available resources into account during the assessment process when making a decision as to whether or not a need exists (see 5.7.3).

6.1.2 Power

Where there is simply a power to provide a service, the trust is able to exercise its discretion. However, it must exercise its discretion properly. This means that, where a trust has a policy, it should comply with that policy and the policy must be fair, reasonable and non-discriminatory. It is also essential that the policy is not so rigid that it does not take account of individual circumstances. If it appears that there has been an abuse of discretion, a person who has been refused a service may be able to seek a judicial review of the trust's decision.

6.2 Waiting lists and delay in meeting assessed need

It is often the case that a trust will not refuse to provide the service but will operate a waiting list due to financial constraints.  As noted, a trust must carry out a statutory duty and, where no time limit for doing so is set down in the legislation, the law implies that it should be carried out within a reasonable period of time. This allows someone who has been on a waiting list for a considerable amount of time to take court action to force the trust to provide the service.

The Scottish case of McGregor v South Lanarkshire Council involved a successful challenge to a waiting list for residential care funding. Prior to the decision in the Northern Ireland case of Hanna v Craigavon and Banbridge HSST several waiting list cases in Northern Ireland had been settled before court action had been initiated.  However, the High Court in that case found that the operation of a waiting list system for beds in residential accommodation was appropriate. With regard to the particular facts of the case a delay of seven months in failing to ensure Ms Hanna’s discharge from hospital to a residential home when there was no medical reason for her to remain was not unreasonable.   

For a person who has been placed on a waiting list for a service and who feels that there has been excessive delay, there is also the option of making a complaint to the Ombudsman on the grounds of maladministration. This has already happened on numerous occasions in England .

6.3 Wishes of the individual

Sometimes the situation will arise where a trust wishes to meet an assessed need by providing a particular service and the person in need wishes a different service to be provided. In those circumstances, it is important to check that both services actually meet the person's need.  Consideration can be given to whether the service suggested meets a person's particular psychological or cultural needs.  If only one of the services meets those needs, the person should draw this to the attention of the trust. If, however, the services are equally suitable in terms of meeting needs, the trust may take into account its resources at this stage, ie it can have regard to the fact that one option is more cost-effective in deciding which service to offer.  This was established in R v Lancashire CC ex. p. Ingham (1995).  

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7. CARE MANAGEMENT

7.1 Care packages

Once a comprehensive individual assessment has been completed and a decision has been taken that publicly funded care can and should be arranged, it is the responsibility of the trust to design appropriate care arrangements in consultation with the person, her/his informal carers, and all the care professionals involved. The guidance emphasises that care arrangements should begin with the needs and wishes of the person and her/his carers and that board or trust staff should, as far as possible, aim to provide or arrange the provision of services which will meet those particular needs and wishes.

7.2 Management and monitoring

It was recognised in People First that a person's care needs may change over time and must be monitored. It is therefore recommended that a single professional worker should be assigned as a personal contact to each individual. The principal contact for the person is the case manager who takes responsibility for designing and assembling a package of services tailored to her/his needs and for ensuring that the services are effectively coordinated, delivered and monitored.

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8. THE ROLE OF CARERS

Approximately seven million people in the UK are carers. This saves the government an estimated £57 billion per year (www.carersuk.org). In Northern Ireland , it is estimated that approximately 250,000 people are carers (A Manifesto for Northern Ireland ). It is essential therefore that consideration be given to the needs of carers.

The CDPA’02 is the first piece of legislation in Northern Ireland dealing with carers rights and it defines a carer as someone who provides or intends to provide a substantial amount of care on a regular basis.

Sections 1, 4 and 5 of CDPA'02 give carers, child carers and carers of a child with a disability, the right to an assessment when requested. Once a carer’s assessment has been carried out, the authority must consider what services if any can be provided to the carer or the person being cared for. The authority may charge for the services provided. As stated earlier, the Act also empowers trusts to make direct payments to carers (including sixteen and seventeen year old carers) for the services that meet their own assessed need.

The CDPA'02 sets out that an authority shall take such steps as are reasonably practicable to make information available to carers concerning their right to an assessment.

The CDPA'02 also provides for vouchers to be made available to enable carers, those being cared for and those with parental responsibility for a child with a disability to have a break from caring but this section of the act has not yet been brought into force.

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9. PAYING FOR SERVICES

Once an assessment of need has been carried out and a decision taken as to what services are to be provided to meet the individual's needs, a financial assessment may be carried out to determine whether or not a person will have to pay for, or make a contribution to, the cost of providing the services. The issue of who pays for community care services is one which gives rise to many queries. The rules which apply in relation to charging for domiciliary services are different to those which apply to residential and respite care. The principal difference is that trusts have a duty to impose charges for residential accommodation whereas there is only a power to charge in respect of the whole range of non-residential services. Notwithstanding this important distinction, however, there are some fundamental principles which apply to all aspects of charging.

9.1 Fundamental principles

9.1.1 Assessment of need

All decisions about the provision of services must be made independently of any consideration of a person's financial resources. This means that assessment of need is the first stage in the process and must be carried out before any consideration of the financial situation.

9.1.2 Financial assessment

The second stage is a consideration of a person's ability to pay.  Regardless of whether a trust has a duty or discretion to impose a charge, it must take into account a person’s ability to pay in determining the amount of any charge.  There are no fixed charges and any charge imposed by social services must not exceed what is reasonable for a person to pay.

9.1.3 Inability or failure to pay

It is also important to note that where a person has been assessed as needing a service, social services may not refuse to provide the service if s/he is unable or fails to pay the charge imposed. In any such case, where payment of a charge which is considered to be appropriate is not forthcoming, a trust may take legal action in seeking to recover any charge as a debt but is legally obliged to continue to provide the service.

9.1.4 Attendance Allowance and Disability Living Allowance

Whilst services are not often refused because of the failure or inability of a person to pay charges, there has in the past been a tendency on the part of trusts not to assess individuals for services on the basis of availability of personal means. In particular, the practice of encouraging people to use Attendance Allowance or DLA to pay for their own care services in the home was not uncommon. In June 1999, the HSSE issued a direction to all boards and trusts that people were not to be asked to use their benefits to pay for services privately.

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10. CHARGING FOR DOMICILIARY SERVICES

Once a person has been assessed as requiring domiciliary services (also known as non-residential services), the trust must exercise its discretion in deciding whether or not to charge for those services.

10.1 Legislative basis

Trusts have discretion to charge for domiciliary services. Article 15 (4) of HPSS'72 allows social services to recover such charges (if any) as the trust considers appropriate in respect of any services provided under Article 15.

Similar discretionary powers to charge for services are written into other provisions in HPSS'72, eg Articles 7 and 8, which are provisions in relation to the prevention of illness, care and after-care, and the care of mothers and young children respectively. 

Other than those general provisions, there is no specific legislation regulating the imposition of charges for domiciliary services. This, coupled with the lack of a clear policy statement or any comprehensive guidance on charging, has resulted in inconsistencies in the manner in which trusts throughout Northern Ireland approach charging for such services.

10.2 General principle

As a general principle, there should be no consideration in the financial assessment of income and capital of any other party other than that of the person in need and her/his spouse or civil partner. In practice, however, it is often suggested to other family members or carers that a contribution should be made by them towards the cost of care services provided in the home. This happens particularly where the trust exercises a capping policy on the amount it will pay towards an intensive domiciliary care package. There is no legal basis for asking for such a contribution.  

10.3 Charging

Historically, domiciliary personal social services have attracted a relatively low level of charges or have been provided free of charge. However, there are some notable exceptions amongst which is the home help service.

10.3.1 Home help scheme

A means-tested charge has been applied to the home help service for many years in line with the DHSS&PS policy as set out in Circular HSS(SS)1/80. This model home help scheme outlines the criteria for assessment and charging of individuals aged under 75. Those over 75 are not charged. The circular is regularly amended to take account of increases in social security benefits which are applied when assessing a person’s ability to pay for the service. A trust must have regard to this guidance when carrying out a financial assessment. An attempt by a trust to apply a charging policy which is inconsistent with the guidance may be challenged by judicial review.

10.3.2 Meals

A standard subsidised charge, ie not subject to a means test, set and reviewed annually by the DHSS&PS, has been levied for many years for meals provided at day centres. Charges for the meals-on-wheels service have followed a similar pattern. 

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11. CHARGING FOR RESIDENTIAL CARE

Trusts have a duty to charge for residential services. Article 99 of HPSS'72 provides for charging for accommodation in board and trust managed homes and Article 36 of HPSS'72 makes provision for charging for accommodation in voluntary or private homes. In both situations, a financial assessment must be carried out in accordance with the Health and Personal Social Services (Assessment of Resources) Regulations 1993 (HPSS'93 Regs) (as amended) to ascertain the person's ability to pay. Guidance on charging is contained in the Charging for Residential Accommodation Guide (CRAG) which is issued by the DHSS&PS and is regularly updated.

When a person is assessed as requiring nursing or residential care, the trust will undertake a financial assessment to see whether or not s/he can pay, or requires assistance paying the residential care fees. The trust will look firstly at the person's capital, and then, if s/he has less than the capital limit, the trust will look at income.

The capital and income rules which trusts must follow in conducting a financial assessment for a person entering residential care are similar to those applied in determining entitlement to Pension Credit (PC) or Income Support, although there are some significant differences.

11.1 Capital rules

11.1.1 Financial limits

In order to receive assistance from social services with care fees, a person must not have capital in excess of specified limits. Those limits are set down in the HPSS'93 Regs as amended and trusts are not entitled to substitute their own scale for judging a person’s ability to pay. This was confirmed in the case of R v Sefton MBC ex parte Help the Aged, where the local authority’s policy of waiting until people had only £1,500 left before providing financial assistance was held to be unlawful. The current capital limits are as follows.

11.1.2 What counts as capital?

Capital can take many forms and there is no useful definition of what it includes in the legislation or regulations. Capital includes a person's home and any land or property owned by her/him although there are circumstances where the value of a home can be ignored. These are discussed below.

Capital can be distinguished from income because a capital payment is made without being tied to a period and is not intended to form part of a series of payments. Savings count as capital. This includes money in a bank or building society, cash at home, shares and unit trusts. Fixed term investments are taken into account unless the money is unobtainable.  An investment which can be realised before the end of a term, albeit with a loss of interest, is taken into account, eg a Tessa. Money or other assets held on trust are taken into account in certain circumstances; for more details on this see Law Centre (NI) Encyclopedia of Rights, B.2 Financing Residential Care.

11.1.3 When is the value of a person's home ignored?

Often one of the major concerns for a person entering residential care is whether or not her/his home will have to be sold. The term home includes the garage, garden and outbuildings, together with any land or other premises which are not occupied, but which it is unreasonable to sell separately.

From 22 April 2002, when a person enters residential care permanently, the value of her/his home is disregarded for up to twelve weeks. After that, how the property is treated depends on who is still in occupation.

The value of the home is ignored if any of the following still lives there:

The trust also has a general discretion to ignore the value of the premises occupied by any third party where this would be reasonable in the circumstances.

The discretion to ignore the value of the home where a person goes into residential care permanently and the home is occupied by a third party is a far wider power to disregard the value of the property than that contained within PC or Income Support regulations. The discretion may be exercised, for example, where a long-standing carer or family member under 60 continues to live in the person’s property after her/his admission to care. It is important therefore to provide reasons why the home should be disregarded and to ask the trust to exercise its discretion on this basis.

11.1.4 When is other capital ignored?

In certain circumstances, other capital can be ignored. These include tax rebates, arrears of a number of social security benefits (ignored for up to one year), the surrender value of life assurance, endowment policies or annuities and personal possessions.  However, where personal possessions are purchased in order to enable a person to claim or increase her/his entitlement to assistance with care fees, the value of those is taken into account. An interest in property which a person will or may possess in the future, but does not possess at the time of assessment, is generally ignored as capital. However, this does not apply where the future interest is in land or premises for which a person has been granted a lease, tenancy, sub-lease or sub-tenancy.

11.1.5 Valuation of capital

The value of capital is based on its current market value or surrender value. From this is deducted 10% for expenses attributable to sale and also the amount of any charge secured on the asset (eg an outstanding mortgage).

Where more than one person has an interest in a capital asset other than land, each person will be deemed to have an equal share of the asset until such times as the asset is sold and each person possesses her/his actual share.

Where the asset which is jointly owned is land, the value of a person's share is the price her/his interest would realise if sold to a willing buyer, minus 10% and the amount of any charge secured solely on the person's share. The resulting value could easily be minimal, as there may be few willing buyers for a part share in a house.

11.1.6 Disposal of capital, notional capital

Regulation 25 of the HPSS'93 Regs provides that a person may be treated as possessing actual capital of which s/he has deprived her/himself for the purpose of decreasing the amount that s/he may be liable to pay for residential care (for exceptions to this see Law Centre (NI) Encyclopedia of Rights, B.2, Financing Residential Care).

It is important to note that trusts have discretion as to whether or not to assume notional capital and accordingly they should have regard to all relevant factors.  Trusts cannot take account of irrelevant factors and could be challenged if they act irrationally in making their decision.  The key question for trusts to consider is motive: what has been the reason behind the person's decision to get rid of an asset?

There may be more than one purpose for disposing of a capital asset, only one of which is to avoid a charge for accommodation. CRAG explains that avoiding the charge need not be the resident's main motive but it must be a significant one.

Pragmatically, the earlier the transfer the lower the risk. CRAG also explains that it would be unreasonable to decide that a person had disposed of an asset in order to reduce her/his charge for accommodation when the disposal took place at a time when s/he was fit and healthy and could not have foreseen the need for a move to residential accommodation. Nonetheless, the legal test is one of purpose of transferring property or other assets and not timing.

Where it is held that a person has deliberately transferred an asset to a third party in the six months prior to going into care, or after going into care, the trust has the power to seek recovery of accommodation costs from the third party.  If an asset is transferred to more than one person, then each person is liable for charges up to the value of her/his share of the transferred asset. If assets are deliberately transferred more than six months before going into care, the trust still has discretion to treat the resident as possessing that asset and to seek recovery of charges from her/him.

11.1.7 Relevant case law

Two decisions are worthy of note.

In the case of Yule v South Lanarkshire Council, (1999 2 CCLR 395), the Scottish Court of Session held that the true purpose of any transfer of property could be determined without a specific finding having to be reached concerning the state of knowledge or intention of the resident.

In the case of Robertson v Fife Council, (2000 SLT 1226), the court refused to find it unreasonable of the council to hold that a woman who had transferred her home to her children two and a half years before entering residential care had deprived herself of capital for the purpose of reducing liability for care fees. The Council was accordingly entitled to treat the woman as having notional capital from which she could pay the fees.

11.2 Income rules

Once it has been established that a person is not disqualified from assistance by virtue of the amount of capital which s/he has, the trust will consider her/his income. In order to do this, the trust must ascertain what the cost of the accommodation will be and also the level of income which the person will have when in care. The trust will take into account almost all income except an allowance for personal expenses of £20.45.

There are, however, two important exceptions, Attendance Allowance and DLA (care component). These benefits are payable for only four weeks to people who enter residential accommodation on a permanent basis and who are not fully self-funding. Although these benefits are ignored for the purposes of PC and Income Support calculations, they are taken into account when assessing entitlement to social services assistance unless a person is only entering care on a temporary basis, in which case Attendance Allowance or DLA (care component) is disregarded.

11.3 Preferred accommodation

Guidance issued by the HSSE makes it clear that a trust must arrange to provide care in a person's preferred accommodation, subject to the accommodation being available and suitable to her/his needs, and provided that it does not cost more than the trust would usually expect to pay for care for someone with such needs. Where a person is unable to make a choice because of ill health, then the wishes of the carer should be taken into account.  Guidance sets out that the cost test is not whether a cheaper option is available but what a trust would normally pay to meet a person's needs by the provision of residential care.

If a person chooses a more expensive option, the placement may be arranged by the trust providing a third party (eg a family member or friend) is prepared to meet the difference. In such cases, the trust will normally pay the full charge and recover the extra cost from the third party. Third party top-ups should only be happening where the third party has agreed to pay the additional amount in order that the person entering care can enter a particular home which is more expensive than the trust considers reasonable. If the trust has placed an unreasonable restriction on the amount which it considered reasonable, or if the person’s needs can only be met by being placed in a particular home, a request for a third party top-up payment may be improper and may be open to legal challenge. In these ci