Community Care aims to enable people who have a disability are ill or elderly achieve maximum independence and control over their own lives.
Your rights to services
Informal and Formal Complaints
Introduction
Community care is defined in the 1989 White paper, Caring for People, as ‘ providing the right level of intervention and support to enable people who have a disability are ill or elderly achieve maximum independence and control over their own lives.
To achieve this, money which had been used by the DSS to pay for people in residential care was passed over in 1993 to social service departments, so they could provide more help for people in their own homes. The object was that fewer people would need to go into residential care because there would be a greater range of care in the community, and the local authority would act as a gatekeeper for such care.
Assessment of a persons needs is seen as fundamental as this triggers the provision of services either directly from the local authority or arranged by them from the independent sector, at home or in residential or nursing homes (called collectively, residential care). Local authorities have the lead role in this, but both health authorities (boards in Scotland) and housing departments are recognised as key players in helping someone remain at home. There is a duty on local authorities to invite these agencies to assist in the assessment where there is a health or housing need.
Information on Paying for Long Term Care
Health care and social care:
Because there is no obvious dividing line between what is a social care need and what is a health need, it is often an area of dispute. More so as most health care is free at the point of delivery, whereas people are increasingly being charged for social care.Health authorities can decide not to provide services where they consider such services are not reasonably required, and can take into account there own resources in deciding what services to provide. Local authorities can provide health services where they may reasonably be considered to be part of a ‘social services package for an individual. Health services which go beyond this remain the responsibility of the health authority, and this is a matter of the scale and type of service required.It is largely left to health authorities to agree their policy and eligibility criteria with the local authority. There is guidance to clarify the NHS responsibilities for meeting continuing care needs (new guidance is expected in the near future).Each health authority has to publish its policies, plans and eligibility criteria for meeting continuing health care needs in its area. What is provided by the health authority and therefore free will vary from area to area. Likewise, each local authority has to publish its community care plans, and must have a Community Care Charter publicly available which sets out their standards of service. In England these will be replaced by Long Term Care Charters in June 2000.
In law there is no single piece of legislation which covers community care, but a complex web of Acts, Regulations, directions and guidance going back to the National Assistance Act 1948.
Where to go for help?:
Go to the local area office of the social services department. In Scotland, it is the social work department. For help with housing you may be passed on to your local housing department. The social services department has the lead responsibility for assessing your needs and ensuring that services are provided to meet the assessed needs. Social services should involve the housing department and the health authority where there is a need for their services.Although occasionally a health authority may undertake the community care assessment at the request of social services, the social service department is always the place to start.
If you already have a social worker, discuss your needs with them. Otherwise, look up the address of your nearest office in the phone book under the name of your local authority. For example, look up ‘Essex County Council and find the heading ‘Social Services Department, Area Office. If you outline the type of help you want, they can put you through to the right section. Your health visitor or occupational therapist may also be able to help arrange for the services you need.
Caring Matters
https://www.caringmatters.org
Provide information about the rights, responsibilities, and resources for people whose lives are touched by long term care. Legal and financial matters related to mental incapacity are their speciality.
Assessment of needs:
Basically, if you have difficulty managing at home because of your age, illness or disability, you can ask for an assessment. If it is apparent to the local authority that you might have a need for services, then you should not have to ask for it. However it is not only disabled people who can get an assessment from the local authority.The assessment should look at the whole range of community care services, your capabilities and incapacities, your preferences and aspirations, what support you have available and other sources of help. Some local authorities screen people by asking a few questions over the phone. Others have decided to carry out assessments in limited circumstances, for example only assessing a person at severe physical risk. However, the decision to provide a care assessment is separate from a decision about whether to provide services. Even if the local authority, because of its resource constraints, is unlikely to provide a service, you should not be denied an assessment.In order to decide whether a persons needs for service is great enough to actually receive it , authorities draw up a general list of ‘eligibility criteria, ie the criteria which must be present in any particular case before a person is considered eligible for services. Local authorities produce information about their assessment procedures and their ‘eligibility criteria and it may be useful for you to refer to this.Guidance states that you should be informed in writing of the result of your assessment. If your needs are urgent, services can be provided before an assessment takes place. It should then be carried out as soon as possible.
If you are refused an assessment, or feel it has not taken account of your needs, or there is a delay in carrying it out, you can use a complaints procedure or seek legal advice if it is very urgent (see ‘If you are not satisfied with your care services).
Carers
Some of the legislation mentions carers and it is stressed in much of the guidance that the contribution of carers should be formally recognised in any assessment. Carers can request that an assessment of their own abilities to provide and to continue to provide care be carried out at the same time as the person for whom they are caring is assessed for services.. The assessment of the carer should be taken into consideration in the decisions made as a result of the disabled persons assessment.
In February 1999, the government published a national strategy for carers, Caring about Carers. There is before Parliament, the Carers and Disabled Children Bill which proposes a right for carers to be assessed independently and services for the person cared for to be provided in consequence, and for carers to be able to receive Direct Payments.
How can you register as disabled?:
Anyone whose disability is ‘substantial and permanent can register with their local authority. But you dont have to register in order to qualify for an assessment or for services. The requirement to keep registers only applies to England and Wales. This section does not apply in Scotland.To register, contact the area office of your local social service department. They will arrange for someone, usually a social worker or occupational therapist, to visit you and complete a registration form. Registering may not have any immediate benefit, but it is a useful thing to do. The more accurately the register reflects the number of disabled people in the community, the better services can be tailored to meet their needs.
Some local authorities may automatically register you when you apply for help from them. In some cases, the authority will send you a card confirming your registration and all should give you information on the services available to disabled people. Other authorities give no written confirmation.
What help can be provided?:
Local authorities have various duties and powers to provide services. Certain services must be provided by the local authority. There is a legal duty to do so. Other services may be provided but there is no requirement to do so.
What are your rights to services through Community Care
If you are disabled and you are assessed as needing one of the services listed in section 2 of the Chronically Sick and Disabled Persons Act 1970, your local authority has a duty to make arrangements for the provision of the service. These services are:
Practical help in the home, eg home help;
Providing or help in getting a radio, television, library or similar recreational facilities;
Lectures, games, outings, or other recreational facilities outside your home and any help needed to take advantage of educational facilities;
Help with travelling to any of these or similar activities;
Any adaptations, such as a ramp or lift or special equipment needed in the home ‘for greater safety, comfort or convenience; this can even include building an extra room on the ground floor;
Holidays;
Meals, either in the home or a local centre;
A telephone, and any special equipment necessary to use the phone, eg Minicom;
Your needs and local authority resources:
Local authorities may wish to refuse or withdraw services because of a shortage of resources and their eligibility criteria defining needs they will meet and services they will provide may be very strict in consequence. Local authorities are entitled to have regard to their resources in deciding how and to what level they will provide services to meet identified needs, but the circumstances in which a local authority may use its lack of resources as a reason for not providing services at all are limited.
It is only where the law (in an Act) requires a local authority to make an Assessment of a persons need before deciding whether any services are required that it can take into account of its own resources, and then only where the type of service under consideration is such that an authority has to consider whether it is necessary or not for a particular person. This applies to most services under section 2 of the Chronically Sick and Disabled Persons Act 1970.
Resources cannot be taken into account in deciding whether services are to be provided:
In cases where there is an absolute duty to provide services which does not depend on a prior assessment of individual need, eg services under s.117 of the Mental Health Act 1983;
In cases where a persons circumstances fall within in an authoritys eligibility criteria since the authority has thereby already decided that such needs call for the provision of services;
Once an authority, as a result of conducting an assessment has decided that a person has a need for services – that is, once an authority has accepted that there is a need, it may not use lack of resources as a reason not to provide the services to meet those needs;
Where a person is at severe physical risk if services are not provided.
Once services are provided, an authority may not simply withdraw or reduce them (whether or not as a result of introducing stricter eligibility criteria) without conducting a review of the community care assessment of the person concerned.
Seek advice if you feel you are not getting the services you need because of resource problems in the local authority. Resources issues are repeatedly coming before the courts and the above statement of the law may be subject to change.
Do you have to pay for your care?:
A local authority may charge for domiciliary services ( ie services provided in the home) and other services in the community (eg day centres) which it either provides or arranges for you. You cannot be charged for services provided by the NHS, such as district nurses. Many local authorities are introducing new or increased charges. Each local authoritys charging policy for domiciliary and day care is different, so what follows are general principles. (The government is currently looking at ways of harmonising charges by authorities.)
The local authority has the power to charge a reasonable amount for its services. However, it has a responsibility to consider each persons case individually. They should provide you with written details of how much you will be charged and a breakdown of how this has been worked out, together with details of what to do if you think you cannot afford the charge.
In deciding how much to charge you, the local authority should take into account the amount you spend on meeting your everyday needs as well as any extra costs you may have as a result of your disability. For example, you may have extra costs for laundry, extra fuel costs, transport, special diet, specially made shoes, extra or warmer clothing and bedding, cleaning materials, painkillers; maybe you pay for gardening or walking the dog. They should make sure you have enough money for these things if you are charged for services.
Disability Living Allowance mobility component should not be taken into account in assessing your income (s.73(14) Social Security Contributions and Benefits Act 1992).
The local authority cannot charge:
Anyone (family, carer or friend) other than the person using the service; they can only take into account the income and capital of the service user when deciding how much you should pay;
The parent or guardian for childrens services if the child is under 16 and the parent or guardian is on income support, working families tax credit, disabled persons tax credit;
A young person aged between 16 and 18, on income support or income based JSA;
For services provided under section 117 of the Mental Health Act 1983.
If you cannot afford to pay the charge, the local authority has a duty to decide how much you can afford to pay and reduce the charge or not to charge you at all. A council may not however say – if you do not pay we will not provide the service. It may also not withdraw a service because someone has failed to pay the charge. This is because the decision to meet a need is separate from and comes before the decision whether to charge for the service.
However, they can use debt enforcement proceedings, such as taking the individual to court, for the recovery of arrears. Although many people are willing ( indeed, prefer) to pay a reasonable amount if they are able to, some councils are exacting charges from people living on income support or equally low incomes. Also some councils have higher charges if you get Attendance Allowance or Disability Living Allowance care component. You may be able to show you already use this money for other essential spending. If you cannot afford the charge, ask for it to be reduced or waived. For more information on charging, see the materials produced by the Coalition on Charging available from Mencap
you can complain about the amount you are being charged and have your case heard by a review panel. Some local authorities have a separate charges complaints procedure which is shorter than the standard complaints described below.
If you are not satisfied with your care services:
Wherever possible problems should be resolved locally, perhaps with the aid of a local councillor. Social services departments must have a complaints procedure; most publish an explanatory leaflet. Information regarding the action you can take if you are unhappy about the assessment, or the services to be provided, should be given at the same time of the care assessment and again when you are informed of any charge. A social services complaints officer can provide a copy of the complaints leaflet but it should be easily available from your local office.
Complaints (informal – formal)
The procedure has three stages; informal problem solving, formal registration, and review.
Informal problem solving – At this stage you should contact the social worker, occupational therapist, home carer or person who is working with you. Talk through the problem and try to have it put right. If you are still unhappy, go on to the next stage.
Formal complaint – Write to the director of Social Services or to the Complaints Officer, setting out exactly what your complaint is and ask for this to be registered as a formal complaint. If you need help to write the letter, the social worker can help you, or any member of social services or a friend, relative or neighbour.
At this stage the Complaints Officer will investigate the complaint. The officer will be somebody who has not had contact with you before. If the complaint is made on behalf of a child, an independent person must be appointed by social services to assist in the investigation of the complaint. You must get a reply within 28 days of the authoritys receipt of your registered complaint. If this is not the full response to your complaint, you should get an explanation of the current position with a full response within three months.
Review
If you cannot resolve a complaint informally or are unhappy with the authoritys full response to your registered complaint, you can ask for the complaint to be heard by a review panel. You must ask for a review within 28 days of the date the local authority tells you the result of their consideration of your complaint.
The review panel consists of 3 people; at least one person, the chairperson, must be independent of the authority (ie not an elected member or an employee). Its hearing must take place within 28 days of the date the local authority received your request for a review. You should be given at least 10 days notice, in writing, of the time and place of the hearing. You should be accompanied by someone who may speak on your behalf – this person should not be a lawyer acting in his or her professional capacity.
The review panel must record its recommendations within 24 hours of the hearing and notify you in writing. Their letter should explain the reasons for their recommendations.
your local authority then has 28 days to decide what action, if any, to take in the light of the review panels recommendations. The authoritys reply should also give reasons for the decisions taken. This is particularly important if the decisions differ from the review panels recommendations. A High decision stated that your local authority cant overrule the Panels decision without ‘substantial reason and without having given (the Panels) recommendation the weight it required.
Other steps
As well as using the complaints procedure, you can take the matter up with local councillors or your MP if you feel it would be helpful for them to know the system is not working for you. Rather than use the complaints procedure, you may wish to consider a legal remedy such as judicial review or a complaint to the local authoritys Monitoring Officer. The Monitoring Officer (usually the Chief Executive or Borough Solicitor) is responsible for ensuring decisions are lawful and procedures correctly followed. It may be useful to contact a national organisation to discuss ways of pursuing your case. You must act quickly. Contact your local law centre or the Disability Law Service or Public Law Project. Or you may wish to contact the Local Government Ombudsman. It is also possible to ask the Secretary of State to us his default powers.
Law Centres & Disability Law Service – see section Law Centres