1. Community and residential care Brayne & Carr: Law for Social Workers: 10e Chapter 16

2. Who needs community care? Children? The old? The ill? Physically disabled? Mentally disordered? Destitute? Carers?

3. Two key concepts Community care duties of SSD are those that are listed under LASSA sch. 1 Starting point for making/altering provision of community care is an assessment under NHSCCA s.47

4. Who is the service user? Mental capacity issue - the person asking for a service is not necessarily the statutory service user. Who agrees to receive what service? A carer is a service user in her or his own right The carer who is a child is also a child in need under the Children Act 1989

5. Some more key concepts Carers’ needs must be assessed and met Some assessed needs must be met; some assessed needs may be met Social services may secure - need not provide Service users may be offered direct payment in cash to buy service Service users’ means irrelevant to assessment - but charges levied

6. Overview of the range of services for the range of service users NAA - residential care NAA - services in the community for the disabled HSPSA - support for older people NHSA - support for expecting mothers/mothers of under fives, discharged patients MHA - after-care/guardianship of mental patients

7. Community care planning and co-ordination NHSCCA s.46 - need for overall plan Co-operation with NHS under NHSA s.22, MHA s.117, Community Care (Delayed Discharges) Act Liaison with housing department and voluntary organisations under s.46

8. Local authority will have the following schemes for support within community - 1 Departments must provide these schemes: –Support and advice for the disabled –Support, home help, training or occupation facilities for mentally or physically ill, pregnant women, elderly people

9. Local authority will have the following schemes for support within community - 2 Departments may provide these schemes: –Recreational, holiday, travel, accommodation help, sheltered accommodation and training for the disabled –Wardens, meals on wheels, laundry for the elderly –Care/residential accommodation for expectant mothers and mothers of under fives –Training, recreation, day centres, respite care etc for physically ill or mentally disordered

10. Hierarchy of aims following assessment (a) support so that the service user can live at home; (b) move to more suitable accommodation; (c) move to another household; (d) move to residential care; (e) move to a nursing home; (f) long-stay hospital care. (DoH Policy Guidance)

11. Assessing the individual Within any relevant National Service Framework Taking into account (circular 92(12)) - Capacity/incapacity; - Preferences and aspirations; - The living situation; - Support from relatives and friends; and - Other sources of help.

12. Assessment according to priority - 1 Fair Access to Care Services, look at problems with health, control over environment, abuse/ neglect, personal care/domestic routines, work, education or learning, vital social or family relationships and categorise each need as –Critical –Substantial –Moderate –Low

13. Assessment according to priority - 2 Authorities then decide at which level needs will be met and assess each need of each individual against the above criteria

14. Meeting individual assessed needs Duty to meet assessed need Assistance in home, access to facilities, holiday, meals, communication aids for disabled service user under CSDPA s.2 Home help and laundry for older people, disabled, mentally disordered or physically ill under NHSA sch 8 Power to meet assessed need Sheltered employment for disabled under DPEA s.3 Meals, home assistance, help with finding accommodation for older persons under HSPHA s.45

15. Residential care - 1 Overlapping responsibility with housing department – can need be met without residential care, in particular via Supporting People Duty to provide residential care under NAA s.21 if required because of ‘age, illness, disability or any other circumstances’

16. Residential care - 2 Choice available to resident Asylum seekers’ needs can be met so long as need is for care, not just for economic reasons

17. Some case law examples - when things go wrong Bernard v Enfield (2002) R v Sefton MBC ex p Help the Aged (1997) R v Gloucestershire County Council, ex parte Barry (1997) (R v Kirklees MBC, ex parte Daykin (1997) R (L) v London Borough of Barking and Dagenham (2001) R v North and East Devon Health Authority, ex parte Coughlan (2001)

18. Charging for services Community and residential provision must be made regardless of means Charges levied according to means (HASSASSA s.17; NAA s.22) After-care (including residential care) under MHA must be free No charge for health care element of residential care

19. Direct payments Under CCDPA 1996, and 2003 Regulations –Service-user must be assessed for direct payment –Service user can refuse –Not available in guardianship

20. Other sources of financial support include IS Retirement pension WTC DLA AA CA SF IB CTB/HB

21. Mental Capacity Basic principles Presumption of capacity Individuals to be supported to make own decisions Decisions by persons with capacity need not be wise All decisions made for a person without capacity are in their best interest Intervention should minimise restriction

22. How to assess capacity to make a decision Can service user Understand relevant information? Retain relevant information? Use relevant information? Communicate the decision?

23. If capacity is lacking Can the decision be made later when capacity may be regained?

24. If capacity is lacking Service user can still participate in decision making Wishes and values (present or previously stated) to be taken into account Views of others to be taken into account

25. If capacity is lacking And if you act in best interests, s.5 protects you from legal liability S.6 permits proportionate restraint

26. Mental incapacity of service user Removal from home under NAA s.47- district council medical officer applies to magistrates court Lasting Power of Attorney Application to Court of Protection Advance decisions on treatment Role of Independent Mental Capacity Advocate