HEALTH AND SOCIAL CARE LAW

What is Health and Social Care Law?

Health and Social Care Law (also called Community Care Law) concerns the powers and duties of local authorities and NHS bodies to provide services to those with disabilities and their carers. Individuals with disabilities may include those with physical disabilities, learning disabilities, autism, older people, those with acquired brain injuries or people with mental health problems.

Community Care services may include residential or nursing care, provision of support at home, community-based services such as respite and day centre services, help with housing adaptations, provision of equipment and access to befriending and advocacy services.

Why choose us?

Ben Hoare Bell’s Health and Social Care Department is the largest and most established provider of health and social care advice in the Northeast region. We have had numerous successes in challenging the decisions of local authorities across the North of England: successfully increasing Personal Budgets, resisting reductions in budgets and services, and achieving better outcomes for our clients with disabilities and their carers.

Legal Issues on which we advise

Our Health and Social Care Department provides advice and if necessary representation in relation to all aspects of community care law including:

  • Assessment and Care Planning
  • Personal Budgets and Direct Payments
  • Local Authority Charges for Services
  • The Rights of Carers to Assessments and Services
  • Children Leaving Care Services
  • Discharge from Hospital, including Aftercare under Section 117 of the Mental Health Act 1983
  • NHS Continuing Healthcare
  • Reorganisation of Local Authority Services

We can offer appointments at our Newcastle, Gateshead and Sunderland offices.

Recent Related Blogs:


ASSESSMENT AND CARE PLANNING

Under the Care Act 2014 most people with disabilities who have a need for services are entitled to a community care assessment carried out by local authority social services departments. Those who provide informal (unpaid) care to people with disabilities are entitled to a carer’s assessment.

When a local authority carries out a Care Act assessment of an adult with needs or a carer it must decide whether that person meets the eligibility criteria set out in The Care and Support (Eligibility Criteria) Regulations 2014. If a local authority considers the person to have s”eligible” needs it must go on to draw up a care and support plan (for adults with needs) or support plan (for carers) setting out the personal budget sufficient to meet the person’s needs. Personal budgets may lead to services being commissioned directly by the local authority or to funding being provided as Direct Payments to enable the individual to arrange their own support.

There are often complicated processes involved in assessing people’s needs, planning their care and support, and making decisions about which services they should receive. Individuals with disabilities and their carers often do not know that they are entitled to challenge the assessments and decisions of local authorities. In fact it is often possible to challenge local authorities if they have not complied with their own policies or with the relevant government guidance.


PERSONAL BUDGETS AND DIRECT PAYMENTS

A Personal Budget is the local authority’s calculation of how much funding is sufficient to meet the cost to the local authority of meeting a person’s needs.  To calculate this, the local authority will formulate an approximate figure (often called an “indicative budget”) which it will derive from its assessment processes. Local authorities may use “Supported Self-Assessment Questionnaires” or points-based systems for assessing needs which are called “Resource Allocation Systems”. This process is fraught with difficulties and often leads to a figure which is insufficient to meet the person’s needs. The local authority should in these circumstances go on to carry out a detailed assessment to establish how much a care package will cost but in practice they often fail to do so.

In most circumstances individuals with disabilities and their carers have the right to receive a Direct Payment. This is a payment made directly to the person in question so that they can arrange their own services instead of the local authority arranging services for them. Local authorities must provide sufficient funds to meet the reasonable costs of paying for the services.

Disputes frequently arise about whether the Personal Budget is adequate and about how services are to be planned.


LOCAL AUTHORITY CHARGES FOR SERVICES

The rules relating to when local authorities must or may charge for services they fund are complex. They are set out in The Care and Support (Charging and Assessment of Resources) Regulations 2014 which contain separate rules for residential and non-residential services. When assessing the contribution that individuals with disabilities should pay towards their non-residential services, local authorities must make an adequate allowance for certain expenditure that the disabled person has to incur as a result of their disability. This is called “disability-related expenditure”.

Local authorities often underestimate disability-related expenditure or fail properly to take into account housing related costs that individuals with disabilities pay to their families. This can meant that individuals pay more in contributions than they should. Similar disputes can arise in connection with charges for residential care.


THE RIGHTS OF CARERS TO ASSESSMENTS AND SERVICES

The Care Act 2014 was revolutionary in that for the first time it provided carers with rights to services. Before the Care Act carers’ services were at the discretion of local authorities.

Under the Care Act carers are entitled to a carer’s assessment which must always take into account the ability and willingness of carers to provide care. The sustainability of the caring arrangement, as well as the carer’s wish to engage in work and education, and the need for carers to have adequate respite and private family time must all be considered.

Where carers meet the eligibility criteria under The Care and Support (Eligibility Criteria) Regulations 2014 the local authority is under a duty to provide carers with services and must draw up a “support plan” setting out the eligible needs of the carers and the budget or services which are to be provided to meet those needs.


CHILDREN LEAVING CARE SERVICES

Most people who as children spent any significant time in the care of local authorities, whether with the agreement of their parents/guardians or as a result of court orders, are entitled to be provided with a range of support services. These can include the provision of accomodation, financial support or support to access education. These duties arise by virtue of the amendments made to the Children Act 1989 and can apply up to the age of 24.


DISCHARGE FROM HOSPITAL INCLUDING MENTAL HEALTH CARE

Most patients discharged from acute care hospitals have statutory rights to a thorough process of discharge planning so that they are not discharged from hospital until it is clear that the needs they will have in the community are going to be met.

Many patients detained in psychiatric hospital under the Mental Health Act 1983 will become entitled to free aftercare services to meet the needs which arise from their mental health problems. The local authority and the clinical commissioning group in the area where the patient is resident or in the area where the patient is sent on discharge from hospital are jointly responsible for providing the necessary aftercare services.


NHS CONTINUING HEALTHCARE

Individuals whose disabilities give rise to a particularly high level or complexity of needs may be entitled to have all of their care funded by the NHS (free of charge) as NHS Continuing Healthcare patients. This can apply to individuals who are in residential or nursing care or who are living in their own home, in supported living placements or with their families. Whilst there is a financial advantage in being assessed as eligible for NHS continuing healthcare, there can be disadvantages in terms of the care planning process and the relative lack of experience on the part of NHS bodies (in particular Clinical Commissioning Groups) in managing complex care packages. NHS continuing healthcare patients are in many circumstances entitled to take their personal health budget as a direct payment.

Our Health and Social Care Department has particular experience of representing individuals across the country in relation to NHS Direct Payments and Personal Health Budgets.

Other issues which engage the law surrounding the NHS include procedures for the discharge of patients from hospital and the policies and procedures of NHS trusts relating to decisions about whether to fund particular treatments under the NHS.


REORGANISATION OF LOCAL AUTHORITY SERVICES

Local authorities are entitled to reorganise their social care services (for example day services and respite centres) but they must follow a fair and lawful process. Typically this involves fully consulting those likely to be affected by these changes, and compliance with the “public sector equality duty” under section 149 of the Equality Act 2010. This requires all public bodies when making decisions to have due regard to the need to promote the opportunities of, among others, those with disabilities.

Challenges to local authority decisions may be made through the process of judicial review. The court does not look at the merits of the local authority’s decision: it looks at the lawfulness of the process which led to the decision.


WILL I HAVE TO PAY FOR LEGAL ADVICE AND REPRESENTATION?

Legal Aid is generally available for these types of work subject to meeting financial criteria. If you think you may be eligibile for legal aid we can take some financial details from you during an initial telephone call or meeting and generally we will be able to give you an indication as to whether you qualify for legal aid at that point. The financial test involves an assessment of your (and where relevant your family’s) income and capital. You can check whether you are eligible for legal aid by going to the LAA’s website.

If you are not eligible for legal aid we can discuss with you the likely cost of you paying privately for the work we do for you. Depending on the nature of the work, it will often be possible for us to work on the basis of a fixed fee or on the basis that we will limit our costs to an agreed sum at each stage of your case. Our costs may vary depending on the level of experience of the person dealing with your case.