Whilst ‘stereotyping’ people by reference to a generic description, or particular client group is understandably regarded as retrograde and stigmatising, and risks harking back to the medical model of disability, it so happens that being categorised as a person with a disability is a great boost to a client’s prospects of qualifying for a service, under the current legal framework for social care. That status can come about through registration as a disabled person, or an authority’s acknowledgement that a person comes within s29 of the National Assistance Act. Formal registration puts the matter beyond argument, in any authority’s mind.
We think that those arguing for a rights-based approach to health and social care should not lose sight of this irony, just because it goes against the grain to consider the positive benefits, for once, of claiming a generalised status …
Local authorities have some discretion to tighten their local definition (or widen it!) of disability but cannot ignore the categories of people who definitely count under s29 National Assistance Act eg. those who are ‘blind, deaf, dumb’ AND those ‘with a mental disorder of any description’ OR those who are permanently and substantially handicapped by illness, injury or congenital deformity’. (Please excuse the language – it’s in the statute which was written in 1948….).
Moderate learning difficulties due to developmental impairment, since they as ‘a mental disorder’ cannot be excluded from the notion of disability just because the difficulties are not substantial – they count in their own right. This has implications for authorities which seek to suggest that persons with IQs over a level of 70 are not disabled, regardless of how they may be coping. We think the proper evaluation is that they may well be come within s29 NAA, but do not have severe enough needs to necessitate service provision….
There are differing definitions of disability in different Acts in different contexts. The definition of disability in the Disability Discrimination Act is a lot more modern than the one found in the 1948 National Assistance Act, for instance. The concept of ‘mental disorder’ in the Mental Health field may be very differently interpreted now, to how it will have to be interpreted by the profession in future, if the Mental Health Act reform proposals are made into law.
Why does any of this matter? It matters because in the social care framework, each of the relevant statutes was drafted on the assumption that provision would of course follow, once criteria were agreed to be met. The criteria were initially only the criteria in the statutes themselves, and whether or not one met them was a matter for professional consensus and determination. Local eligibility criteria set by reference to the budgetary crisis and based on an administrators’ concept of ‘need’ were not invented and sanctioned until the mid 1990s.
The Acts therefore all have different triggers and it is unlawful to provide services or take interventionist steps, if these triggers are not met; for instance, disabled people have to be ordinarily resident in the particular authority before they can qualify for a service under s2 Chronically Sick & Disabled Persons Act; and a person has to be ‘seriously irresponsible’ or ‘abnormally aggressive’ before they can be made subject to guardianship under the Mental Health Act.
The outcome of judicial review cases, involving persons with a physical or mental disability over the last few years, has been the following:
The courts have decided that the Chronically Sick & Disabled Persons Act (the statute which focuses on services for disabled people) ends in a mandatory DUTY – not a power – which must be implemented regardless of lack of resources, once assessed needs necessitating intervention have been identified. This Act only applies to people who count as disabled under the test in s29 National Assistance Act.
Different assessment routes exist in the legal framework, depending on whether a person counts as disabled or not:- s47 of the NHS (CC)A 1990 or s4 of the DP(SCR)A 1986 (this gives a disabled person a legal right to an assessment); and under s17 of the Children Act 1989 if the disabled person is a child;
The different routes to assessment above, determine whether a carer is entitled to be taken into account (DP(SCR)A 1986) or must request an assessment under the 1995 Act; and the definition of who qualifies as a carer is slightly different in respect of those two routes; so the service user’s status as disabled has an effect on their rights and their carer’s rights.
Certain statutory provisions are worded such that the service response need not actually be appropriate to meet all the assessed needs in some cases, but probably must be in others; disabled persons needs have been given strong force, in comparison for instance to those of persons who are merely categorised as ‘old’ under the Health Services and Public Health Act 1968. These differently worded statutory provisions would probably determine whether services must be maintained post-care plan, regardless of a budget crisis, or could be cut back.
The CSDPA services which are specifically referred to in the statute, and which therefore must be assessed for, even if the need is determined to be insufficiently pressing to necessitate intervention by the authority by way of service provision (see Haringey LBC ex p Norton no. 1), are as follows:
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise, and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,