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posted 1 Nov 1994 in Volume 1 Issue 1
Community Care
The Future
Publication Date: Nov 1995
By the very nature of the impact of Community Care law the Private Client practitioner needs to be aware of not only the ethic behind the Community Care legislation, but also the progression of the legislation as this are of law develops. As a Local Authority lawyer recently stated, this is a very new area of law in which everybody is feeling their way!
More importantly, as the Public Law Project has stated from time to tome in connection with Community Care matters, this is a relatively untested field and more importantly one where the variations in practice throughout the country present complex issues, so that whilst policy is clear in one area a different policy will operate in another.
The law in relationship to Community Care is extremely complex and is dependent on not only the National Health Service and Community Care Act , but a number of other major pieces of legislation, directives and statutory instruments. It can, therefore, be a potential minefield unless there is an awareness of the complexity and a realisation that there is no simple answer to any question.
Significant for the private practitioner is the lack of national standards for the way in which community care issues were developed. Not only are there variations throughout the country, but there may well be variations within local directorates of Social Services, which will be related to the teams who implement the legislation.
Although the intention is that the services provided under the National Health Service and Community Care Act should be needs led and then a financial assessment should follow, it is quite clear from the shortage of funds available that these services are, in fact, resource driven and there is considerable expectation which is unlikely to be met, bearing in mind the financial constraints under which Local Authorities are placed.
Community Care law ties in very closely with Welfare and Benefits law and a working knowledge in this field is required as Local Authorities follow Income Support guidelines. However, it is important to be aware that there are cases which have been taken through to the Social Security Commissioners, which will give contrary rulings to Local Authority procedures. (Palfrey Times Feb. 1995).
The real impact of community care is that for all but the extremely wealthy and the extremely poor, the impetus in residential and nursing care has passed from the private individual and the Health Authority to the Local Authorities. Under Section 47 of the National Health Service and Community Care Act 1990, Local Authorities are under a statutory duty to assess anyone who applies to them for an assessment for community care services, whether of a domiciliary residential or nursing care, nature. That assessment cannot be refused. However, once that assessment will follow and whilst at the moment the financial assessment is implemented mainly in connection with residential mainly in connection with residential and nursing care, in some areas financial assessment does follow domiciliary packages, bearing in mind that many domiciliary packages are more expensive to implement. The guidelines on charging for residential and nursing home accommodation are set out in the Charging for Residential Accommodation Guidelines (CRAG) for the Local Authorities and these are continually updated. Practitioners will find them of great assistance in following the way in which the Local Authorities implement their charging policy.
Much myth and folklore exists in connection with the funding of community care and it is important to understand that many clients are indeed misinformed and have been misled by articles and programmes which have appeared in the media and by the lack of information available from local social Services departments. Social Services departments were required under the legislation to provide information to members of the public in order to enable them to find out about their entitlements. Research at the current time clearly shows that information is not consistently available throughout the country, nor indeed with any community. Many people who need the information are vulnerable and elderly and unlikely to know where to obtain such help and assistance. A number of people have jumped on the community care bandwagon and it, therefore, makes it singularly important for practitioners to be well informed so that their clients are given the best advice possible.
Assessment procedures and placements in residential or nursing care are now closely tied in with the new guidelines on discharge from hospitals. Local Authorities and Health Authorities are working closely together on prescribed procedures on the arrangements to be made for people being discharged from hospital. Clearly until this is finally settled area by area there may well be difficulties. Matters have to be settled by early 1996.
The impact of the Gloucestershire case on funding has yet to be felt. This case is one of the first and most important in Community Care law. The judgement is extremely complex, but does emphasise that Local Authorities may take into account their overall financial position in determining what services may be made available to an applicant. However, services may not be withdrawn until the recipient of services has been reassessed as to whether those services are no longer required. However, the Gloucestershire County Council ex parte Mahfood 1995 case is currently before the Court of Appeal. It is anticipated that a further number of cases will be reported during the latter months of 1995, which will have impact on assessment and funding for community care. See future issues of ECA.
For those families who are able to think far enough ahead it is probable that they will be able to undertake financial planning for community care, but it is a planning for community car, but it is a question of looking at not only Trust and Tax law to see whether any of the projected action which might fall foul of the various rules relating to gifts made under the Inheritance Tax provisions are viable and whether they assist under the Community Care legislation. The majority of families wish to conserve assets and many are keen to pass either cash or property to the next generation. The dangers, particularly in dealing with the family home, do need to be pointed out to the elderly client, namely that they will, of course, be subject to the vagaries of any family matrimonial problems, as the property concerned now forms part of their children's assets. It is appropriate, therefore, to consider whether there are alternative measures which could be taken which would be more advantageous to the elderly relative. This is where the drafting of an appropriate Will ascribing a life interest, or serving a joint tenancy, may be much more appropriate to ensure that assets are conserved for the family.
It is also a case where it is possible that this may then enable maximisation of Local Authority funding and the Benefits Agency funding to be utilised. There are health warnings on putting assets into Trust and in any case in making any gifts, particularly if these are made within six months of going into a nursing home where it is clear that the emphasis in making a gift has been to avoid community care charges. The onus of proof is on the Benefits Agency or the Local Authority to prove the specific purpose for which these gifts have been made. It is frequently queried whether putting assets into Trust, of which the settlor is the beneficiary, would avoid problems. It has to be said that if the settlor is also a beneficiary then the gift is made and within the six month period the Local Authority is applied to for funding. It is suggested that if the gift was made to a family member, say six months and two days prior to that application, then an application was made for assistance with funding that the gift could not be set aside. However, it is important to be aware that in the financial constraints which operate at the present time that many Local Authorities will be looking very closely at how to raise their funds. There is no doubt that they will be looking more closely at placing charges over properties. Note : refusing residential care and opting for domiciliary care does not necessarily protect the family home. A charge may still be placed over it.
This is just one issue which indicates the misinformation which is prevalent out in the client base at the moment.
Practitioners, therefore, will find that those who have become involved in community care on behalf of service users face the following problems:-
a) the complexity of the legal framework
b) the uncertainty of Local Authorities about the extent of their powers and their duties.
c) the fact that Government guidance is unclear as to whether it must be rigidly adhered to
d) lack of funds
e) uncertainty about charging policies
The fact that in R.v. Gloucestershire County Council ex parte Mahfood 1995 relies on five statues, namely: the National Health Service and Community Care Act 1990, the National Assistance Act 1948, Disabled Persons (Services Consultation and Representation Act) 1986, the Chronically Sick & Disabled Persons Act 1970 and the Local Authority Social Services Act 1970 is surely an indication of the need for a very careful and thorough understanding of the legal framework within which many of the cases affecting community care will fall.
The impact of charging for services whether in the private, voluntary or public sector is one which is an interesting problem.
Section 17 of the Health and Social Services and Social Security Adjudications Act 1983 gives Authorities the power to recover such charges (if any ......) as they consider reasonable for a range of services, but not all listed, are not defined as community care services by the National Health Service and Community Care Act 1990. How reasonably the Local Authorities behave under such legislation is, of course, a singular question for the practitioner. Clearly the charging policy is in conflict at times with the Chronically Sick & Disabled Persons Act 1970 and a question is whether, in fact, such services as provided by the Local Authority are free standing under the Chronically Sick & Disabled Persons Act 1970, or whether they are provided pursuant to the Local Authority functions under Section 29 of the National Assistance Act 1948 .
In conclusion, therefore, this is an extremely significant area of law which will affect an increasing number of people.
Unfortunately, the majority of people who are affected by this law are the disabled and elderly, who are often reluctant to take the strain of testing the law. Apart from the sheer cost of making such a claim, the cases are likely to receive considerable publicity, which may be difficult to cope with. It is, therefore, recommended that where clients feel that there is a claim against the Local Authority, or a challenge should be made, particularly about assessment of funding of community care, that they contact some of the national charities, who may well be prepared to sponsor a case, or indeed they may wish to approach the Public Law Project for assistance in this matter.
A number of other cases which concern Community Care have now reached the Courts and present possibilities for legal challenges under the system. These include cases referring to the closure of residential homes and the provision of homes for different categories of people under the National Assistance Act 1948 .
1. R.v. Wandsworth LBC ex parte Beckworth (1995) Times 4th May . Watch this space as the case is now with the House of Lords.
2. Duties to consult if homes are to be closed. R.v. Devon County Council ex parte Baker (1995) All E.R.Reports and ex parte Beck worth No.2 (1995) Times 5th June.
3. Who should provide nursing services and continuing care - both the National Health Service and Social Services Department have a duty to provide, but the National Health Service has no power to charge for its services.
There are a number of cases on this issue before the Health Services Commissioner and there are likely to be reports very shortly. Other areas of challenge include what constitutes an assessment, who should do it, when should it be done, how should it be done, or even should it be done without talking to any potential clients at all. The 1990 Act clearly does not define procedure.
The scope, therefore, is unlimited, the law is dynamic, it is a question of watch this space. ECA .
Anne Edis, Partner
Palmer Wheeldon
