Social Care
This section has been created to provide practitioners with a basic overview of the key pieces of legislation which relate to Community Care, thus providing an underpinning knowledge for both the assessment and decision-making processes.
For a more in-depth explanation of this important framework you are advised to reference the most complete website on the subject SCHWEHRCARE designed and maintained by the former lawyer Belinda Schwehr; an excellent resource.
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Acts mentioned in Legislation regarding Community Care services. |
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The National Health Service and Community Care Act 1990 (NHS & CC Act) is the Key piece of legislation relating to Community Care. However unlike the Children Act of 1989 it does not remove any other legislation that has gone before it. What it has done is to build on other Acts and change some of the discretionary Powers in those previous Acts into Duties, or statutory responsibilities.
Section 47 is a particularly important section of the Act as this references a "community care assessment" and assessing the individuals needs for community care services, these are mentioned in the previous section, section 46, and are therefore the basis for carrying out a "Needs Led" assessment.
Prior to this piece of legislation it was broadly observed that assessments were being "carried out on" people with a view to slotting them in to existing services and if their needs did not fit within existing provision then a service was either not provided or an inappropriate solution was used. The philosophy of this more recent legislation is to develop a "partnership" between two (or more) equals, and having identified individual needs, to explore the choices of solutions which will most effectively enable those involved to live as independantly as possible with minimal intrusion.
Powers and Duties are part of the "language" of legislation and are used with regards as to whether a Local Authority has discretion to provide something or whether they must do something. (a statutory responsibility).
For example section 47 of the NHS & CC Act says....
.... 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 an such services, the authority - shall carry out an assessment of his needs for those services;
Clearly in this form the "language" is referring to a statutory responsibility and therefore the local authority must carry out an assessment of the individuals needs for the services identified.
An example of discretion within the NHS & CC Act is as follows....
.... having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.
The onus here is on the local authority to develop, and publish, a criteria which explains to its customers when they will provide assistance and when they will not.
Section 47
1: Subject to subsections (5) & (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.
2: If at any time during the assessment of the needs of any person under subsection (1)(a) above it appears to a local authority that he is a disabled person, the authority -
a) shall proceed to make such a decision as to the services he requires as is mentioned in section 4 of the Disabled Persons (services. Consultation and representation) act 1986 without his requesting them to do so under that section; and
b) shall inform him that they will be doing so and of his rights under that act.
3: If at any time during the assessment of the needs of any person under subsection (1)(a) above, it appears to a local authority -
a) that there may be a need for the provision to that person by such District Health Authority as may be determined in accordance with regulations of any services under National Health Service Act 1977, or
b) that there may be a need for the provision to him of any services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) which is not the local authority carrying out the assessment.The local authority shall notify the District Health Authority or the local Housing Authority and invite them to assist, to such an extent as is reasonable in the circumstances, in the making of the assessment; and, in making their decision as to the provision of the services needed for the person in question, the local authority shall take into account any services which are likely to be made available for him by the District Health Authority or local Housing Authority.
4: The Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take out, subject to any directions and to subsection (7) below, it shall be carried out in such a manner and take such forms as the local authority considers appropriate.
5: Nothing in this section shall prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.
6: If, by virtue of subsection (5) above, community care services have been provided temporarily for any personas a matter of urgency, then, as soon as is practicable thereafter, an assessment of his needs shall be made in accordance with the preceding provisions of this section.
7: This section is without prejudice to section 3 of the Disabled Persons (Services, Consultation and Representation) Act 1986.
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Sections of Acts |
Services they mention |
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Part III of the National Assistance Act 1948 |
residential accommodation and welfare services |
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Section 45 of the Health service and Public Health Act 1968 |
welfare of elderly people |
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Section 21 of the National Health Service Act 1977 |
home help and laundry services |
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Section 117 of the Mental Health Act 1983 |
after care services |
The 'foundation' Act for Local Authority social services; a very 'generalised' piece of legislation giving local authorities powers to provide a wide range of services for a wide range of clients but spelling out very little in detail. It leaves local authorities with wide discretion as to what they provided, for whom and on what criteria. It was a type of 'enabling legislation'.
This attempted to provide for older people much of what was to be provided for chronically sick and disabled persons under the 1970 Act. Section 45 is very generalised, but a circular issued in 1971 spelt out in detail what the duties are. ( It is almost identical to the 1970 Chronically Sick and Disabled Persons Act.)
This laid a duty on local authorities to provide home help facilities and a power to provide laundry facilities on the basis of illness, age and handicap. It also contained the power to provide day centres, meals, social work support and residential accommodation to support people through illness and recuperation. The local authority may charge for any or all of the services provided under this legislation. Charges must be reasonable and related to the person's ability to pay.
This Act lays a duty on District Health Authorities and the local authority to make after care arrangements for certain classes of patients who have been discharged. The local authorities under the Mental Health Act are obliged to appoint a sufficient number of approved social workers in order to meet the needs of the Act. The mental Health Act 1983 allows for people with mental disorder to be detained in hospital for assessment and/or treatment, or placed into guardianship if certain criteria are met.
Duties to provide residential accommodation for people over 18 by virtue of age, illness or disability and care or attention not otherwise available to them.
Duty for people ordinarily resident and other people who are in urgent need.
Duty to provide temporary accommodation for those in urgent need whom it could not have been reasonably foreseen .
Duty towards people who are or have been suffering from mental disorder, or for preventing mental disorder. For both normally resident and people with no settled residence.
Also duties on local authorities to make arrangements for services for residents for....
Their welfare. Supervision of hygiene. Obtaining medical attention. Board and other services - but not anything the Local Authority thinks is unnecessary. Regular review of arrangements. Duty to continue to make arrangements to provide accommodation for residents of Local Authority homes now transferred.
For people over 18 years old who are blind, deaf, dumb or who suffer from mental disorders or who are permanently and substantially handicapped by illness, injury or congenital deformity or other disabilities as may be prescribed....
Maintain registers of disabled people who are ordinarily resident Provide Social Work Services - e.g. advice or support Facilities for social rehabilitation and adjustments to disability including assistance to overcome limitations of mobility and communication. Facilities for occupational, social, cultural, and recreational activities are, where appropriate, paying people for work undertaken.
Local Authorities have 'powers' to make arrangements 'for any of the following purposes to meet the needs of the elderly':
Provide meals and recreation in the home and elsewhere.
To inform the elderly of services available to them and to identify elderly people in need of services.
To provide facilities or assistance in travelling to and from the home for the purpose of participating in services provided by the authority or similar services.
To assist in finding suitable households for boarding elderly persons.
To provide visiting and advisory services and Social Work support.
To provide practical assistance in the home, including assistance in the carrying out of works of adaptation or the provision of any additional facilities designed to secure greater safety, comfort or convenience.
To contribute to the cost of employing a warden on welfare functions in warden assisted training schemes.
To provide warden services for occupiers of private housing.
Home Help and Laundry Facilities. Duty to provide Home Help suitable to the scale of the area if a person is suffering from illness, lying in, an expectant mother, aged, handicapped as a result of having suffered from illness or congenital deformity. Prevention of illness and Care of People who are ill or have been ill.
Duty towards people who are, or have been, suffering from mental disorder....
To make arrangements to provide centres - including training and day centres.
To appoint sufficient ASWs.
To exercise their functions towards people received into guardianship under part 2 or 3 of the Mental Health Act 1983.
To provide Social Work and related services to help in the identification, diagnosis, assessment and social treatment of mental disorder and to provide Social Work support and other domicilliary and care services to people living in their homes and elsewhere.
Under section 117 of the MH Act, Social Services and Health Authorities have a duty to provide after care for people to whom section 3 or 37 or 47 and 48 apply - until the authorities are satisfied that the person concerned is no longer in need of such services. e.g. services identified via the Child Protection Agency. occupation - accommodation - residential care.
Section 3 - Civil referral. Longer term treatment order - up to 6 months - renewable - nearest relative must agree.
Section 37 - Guardianship from courts.
Section 47 - Transfers from prisons to hospitals for prisoners serving a sentence.
Section 48 - Transfer to hospital of other prisoners
There is a duty on the local authority under this Act to inform itself of the number of persons within its area to whom Section 29 of the National Assistance Act 1948 applies.
In addition, this Act empowers the local authority to provide practical assistance in the home, recreational facilities, help in travelling to facilities, advice and assistance with aids and adaptations, the facilitating of holidays, the provision of meals and the provision of a telephone.
The Acts relevant to Community Care are numerous, therefore the reader a basic awareness of what they are. However this is by no means a definitive list, therefore I would recommend accessing the books listed at the top of the page or looking at the Schwehrcare website.
Central government appreciates that legislation can be particularly difficult to translate into working practices, they therefor produce guidance documents that explain the purposes of the legislation and offer interpretations which local authorities can put into practice.
Caring for People (HMSO 1989) - spelt out the tasks that needed to be encompassed by local authorities to provide community care, these formed the basis of the NHS & Community Care Act.
Community Care in the Next Decade and Beyond (policy guidance) - as above but with guidance about procedures
Care Management and Assessment (practitioner guide) HMSO 1991 - Introduced the 7 stage cycle of care management and explained the work processes involved, it also has checklists in to assist with the process.
Care Management and Assessment (managers guide) HMSO 1991 - outlines preparatory work to be done prior to implementation of the NHS&CC Act in 1993 and explains the managers role within Care Management.
Getting the Message across - looks at communicating the principles and policies of community care to all sectors of the community.
Assessment systems and community care - A Joint Review by Social Information Systems and the Social Services Inspectorate of the Department of Health. Department of Health. 1991
Foster /Laming letters 14/12/92 - This letter highlights that Social Services may not always be responsible for carrying out an assessment, other agencies may have clear responsibilities e.g. Health or Housing, however it is Social Services who are the 'hub' of the wheel.
Local Authority Circulars - These are documents from government that clarify procedures or make additions to existing policy. There have been a large number of these.
Partners in Caring - This looks at what has happened since the implementation of Community Care.
Much of the above text reflects some of the Key guidance published by the Government and is available via Local Authority Library services or through independent purchase from book shops.