The enactment of the Chronically Sick and Disabled Persons Act 1970 was a historic event. For the first time, parliament, and by extension wider society, recognised the concept of rights for disabled people. However, the rights under the 1970 act never quite lived up to their billing. This is why the 40th anniversary of the act recognises both a landmark and a missed opportunity.
To put the act in context requires a description of what went before it. Home care services were largely ignored when the welfare state was established. A vaguely expressed, discretionary power to provide services was contained in section 29 of the National Assistance Act 1948. But there was nothing like an enforceable duty to provide care services for individual disabled people.
By contrast, the 1948 act did contain duties to provide residential accommodation for disabled people. In other words, institutionalisation was prioritised over independence.
In that context, the most significant provision of the 1970 act was section 2. The promoter of the act, Alf Morris MP, said when introducing the legislation into parliament that section 2 was intended to convert the permissive provisions of section 29 of the 1948 act into provisions that were “mandatory upon local authorities” and to “standardise local provision on the basis of the best existing practice”.
The wording chosen to try to achieve these aims operates as follows. Section 2 lists various services for disabled people such as practical assistance in the home. It goes on to state that, where a local authority has decided that it is “necessary” to provide such a service to meet a disabled person’s “needs”, then the service must be provided.
There were early doubts as to the effect of the new legislation. The first Department of Health and Social Security circular on the act, issued in August 1970, stated that “criteria of need are matters for the authorities to determine in the light of resources”. Also, there appeared to be some reluctance to champion the act and its values.
In December 1970, for example, David Weitzman MP referred in parliamentary debate to the “remarkable ignorance” of its provisions and recounted that one council officer had written to the DHSS saying, “will you please send me a copy of the Chronically Sick and Disabled Persons Act as no one here seems to know anything about it?”.
It fell to the courts to decide what the 1970 act really meant. In 1997 the conclusive answer was given by the Law Lords in R v Gloucestershire CC, ex parte Barry. Section 2 is not as generous as it first appears. The question of whether a person “needs” a service and whether it is “necessary” to provide it may be informed by local resources.
Section 2 did not, therefore, create an objective needs-led entitlement to home care services. This is why we have local eligibility criteria for non-residential care services that can be redrawn according to local priorities and pressures. The legislation was not drafted tightly enough to ensure that the aims of the promoters were met.
The 1970 act was a watershed. It provided a platform for development of a disability-rights movement. But it did not really achieve what had been hoped. The question of whether its aims will ever be realised is as uncertain as ever. There is a real possibility that the opportunity to create an open-ended right for disabled people to the social care services that they need has been lost for ever.
Ed Mitchell is a solicitor and editor of Social Care Law Today