Ed Mitchell examines how the drive to personalise services has exposed the tensions between old and new social care legislation
The personalisation initiative is a radical re-engineering of the provision of care services. The governing community care legislation, however, reflects an earlier, often more paternalistic era. This means that personalisation strains at the boundaries of the legislation governing adult care services.
Currently, the expansion of direct payments is constrained by section 51 of the Health and Social Care Act 2001. This says that direct payments may only be made to a client who “consents” to them. If he or she does not have the formal mental capacity to give a valid consent to direct payments, they are not available.
This restriction, however, will soon be removed in England. The Health and Social Care Act 2008 has amended the 2001 Act and, as a result, regulations can be made authorising direct payments to be made to third parties.
The third party would then be required to use them to purchase the community care services needed by the client. Conditions could be imposed requiring the recipient to consult the client before deciding that service provider to commission to deliver services.
The Department of Health are currently consulting on draft regulations.
The DH’s personalisation guidance – Local Authority Circular (DH) 2008(1) – says that a client with an individual budget (who decides not to take all or part of it as a direct payment) can decide how the budget will be spent.
Currently, this is not fully achievable because the community care legislation charges a local authority, and no one else, with deciding which services to provide to meet a person’s needs.
So, the challenge is to find an approach which pays significant regard to a client’s choices while respecting the fact that the law requires the authority to make the formal decision.
The process of agreeing a client’s own plan for services can be constructed so as to achieve this. If a social worker is content with their client’s proposals for services, he or she can then make the formal service provision decision which implements those proposals.
Under the NHS and Community Care Act 1990, legally effective community care self-assessment is not possible. The Act requires the local authority itself (through its social workers) to assess a person’s needs for community care services. This means a client’s assessment of need cannot bind a local authority. But, as with individual budgets, if social workers are content with a client’s self-assessment, they can adopt it as the authority’s formal assessment of need.
The Fair Access to Care Services (eligibility criteria) guidance has in many areas diverted resources away from preventive services. In fact, the High Court confirmed in 2007 that, as a general rule, it is lawful for local authorities only to fund services to meet “critical needs” (R (Chavda) v Harrow LBC. It seems likely therefore, that local eligibility criteria will have to be re-drawn in order to achieve the desired focus on preventive services.
Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care’s legal expert
This article is published in the 23 October issue of Community Care magazine under the heading How personalisation stretches the law on adult social care