Community Care’s investigation reveals serious failures with the legal compliance systems of many councils, writes social care legal expert Ed Mitchell.
It is clear that some, and possibly most, of the reablement services for which councils are charging should in fact be provided free of charge. From the descriptions given to Community Care, most of the services are designed to enable a person to maintain or regain independent living skills. In substance, therefore, they are intermediate care under the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003.
These regulations define intermediate care as “a structured programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live in his home”.
The reality is that most of the descriptions of reablement service given to Community Care match that description. This means they must be free of charge for six weeks.
Councils should realise that the label attached to a service is simply irrelevant, as is the fact that a local primary care trust also provides an intermediate care service.
These services are supposed to be free to prevent people from being discouraged from seeking them at a time of crisis. This recognises the wider benefits to society that accrue from targeted support being provided at the right time when a person’s home life is at risk of collapsing. To inhibit uptake of the services by failing to provide them free of charge is therefore a false economy.
Councils appear to have incorrectly assumed that meeting a person’s social care needs is not a function of intermediate care. There is nothing in the regulations that excludes services simply because they have been designated as being primarily to meet a social care need.
Guidance issued last year by the Department of Health – Intermediate Care – Halfway Home – is misleading, and does not even mention the definition given in the 2003 regulations. Given that, it is hardly surprising that inconsistencies have arisen.
However, guidance cannot be used to determine the meaning of legislation; reams of case law show this.
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