Client status under statute

Whilst it may seem judgmental and ‘stereotyping’ to put users into pigeon holes as part of assessment, and agonise over whether they count as one sort of client or another, there is in fact a legal need to do this to some extent, and one which can work to the advantage of service users…

Public authorities cannot do anything which involves the expenditure of public money, without being able to point to a statute which gives them a power to do that thing. It may be a very general power or duty in question – like taking into account the economic, social and environmental well-being of the area, or doing ‘anything calculated to promote the welfare of the inhabitants of xyz’ or it may be a specific thing, like providing aftercare for mental health ex-detainees – but the important point to note is that most functions in health and social care are worded so as to relate to a particular section of the public in mind – those who are disabled, carers, aged or elderly, ill, people who have been ill or about to be ill, etc.

Thus whilst it would be straightforward (and neatly electorally accountable) for an authority simply to spend money according to its own published eligibility criteria, this general principle of public law requires that officers and members only spend money on what Parliament has given them power to spend money on, and not just what would make sense. It would thus be just as unlawful to spend money on a client group who did not come within the terms of one of the statutory provisions underpinning community care services, as it would be to refuse ever to spend money, on another client group who did.

The other reason it really matters to be counted as one sort of client, rather than another, is because in England and Wales, at least, (it is different in Scotland), there are several different statutes which cover community care, and some of the service provision functions set out in them are worded as

 

  • duties owed to specific client groups who are identified objectively (ie s117 Mental Health Act – aftercare provision, owed to all those leaving hospital from under a compulsory Mental Health Act section (WatsonFoxRe K); it is generally accepted that this duty must be performed, regardless of a resources difficulty in the budget of the authority concerned.

 

 

  • duties owed to specific clients whose needs have been assessed subjectively by the authority as necessitating the authority’s intervention by way of provision or funding of appropriate services, in order that their assessed needs are met (ie s2 Chronically Sick and Disabled Persons Act 1970 – home-based services for disabled people with a qualifying extent of need for a community care services (Barry), and s21 National Assistance Act 1948 – residential and nursing care for anyone needing care and attention not otherwise available (Help the AgedTammadge McGregorKujtimBatantu Tower Hamlets). It is clearly the law already, that such duties, once triggered, must be performed, regardless of a resources difficulty in the authority concerned.

 

 

  • general ‘target’ duties to the general public or a group of people adjudged subjectively by the authority to have particular problems (ie s3 National Health Service Act 1977 – which is owed to the general public in a HA’s area, according to ‘a clinical’ need, but also subject to resources (Hincks); and s17 Children Act 1989 – owed to children ‘in need’ in the area (LambethBarking)). These duties do not always have to be performed, for instance, if there is a budget difficulty – not even if the person concerned has met criteria for qualifying as a person in need. It may be different if the person concerned has met criteria for a particular service, according to the authority’s own policies and plans.

 

 

  • mere discretions, which don’t have to be performed at all (ie the power to promote the welfare of old persons, in s45 Health Services and Public Health Act 1968). Budgetary problems will often mean that aspirations to provide services in this sphere have to be deferred, reined in, or suspended. It remains to be seen whether this can be done even if a person has met the authority’s own criteria for a service.

 

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