There is no one statute dedicated to governing the provision of domiciliary services. The statutory framework, in England at least, treats care services either as residential, or non-residential. Thus whatever is said here about the legal framework for domiciliary services (which can be anything from personal care to night sitting, or shopping, cleaning, benefits collection, etc) applies also to day care, social work advice and support, and any other non-residential service.
There are the following important features to bear in mind about the framework for domiciliary care:
Firstly, services are able to be provided from public funds under 5 different pieces of legislation:
The Chronically Sick & Disabled Persons Act – home based services for those covered by the threshold test in s29 NAA: persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed….
The services mentioned in s2, and for which a need has at least to be considered, on assessment, are
(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
The National Assistance Act 1948 – wider non residential welfare services such as day care, or instruction in the home, or recreational activities (s29);
The Health Services and Public Health Act – practical assistance in the home for old persons (s45) (please excuse the language – it comes from a statute written in 1968)
The Mental Health Act – anything non-residential which is needed by way of aftercare (s117)
The National Health Service Act 1977 schedule 8 – home help and laundry (s21)
In all cases, eligibility depends on two things: the client comes within the definition of the persons intended to benefit from the statute in question, and the client is assessed by the authority as needing its assistance.
All non-residential care is chargeable at the discretion of the authority providing it, other than anything included in a s117 aftercare package provided to a person after discharge from under a compulsory section of the Mental Health Act. The charging power (s17 HASSASSA) is based on a concept of reasonableness, which justifies a means assessment of clients before a rate is fixed for their particular package.
Certain legal principles have been established through litigation involving domiciliary care, which are of wider application in certain situations:
A current care package cannot be cut back without a proper re-assessment – and this holds good regardless of any financial crisis in one part of an authority: Gloucestershire ex p Barry
The authority is in charge of deciding what exactly is appropriate to meet need, although it must take the client’s and carers views into account; there is no right to choose to stay at home and receive services, if that does not accord with the authority’s view of what is appropriate. If the authority’s proposals are unacceptable to the client, the offer of services can be refused, but the authority is not obliged to meet the client’s needs in the way that the client wants, unless that want is also a need in itself: Southwark LBC ex p Khana, Kensington & Chelsea ex p Kujtim
A care package cannot be withdrawn on the basis that the person refuses to pay current or pre-exiting arrears of the charge: Powys CBC ex p Hambidge
A proper re-assessment will identify why what was needed before is no longer to be regarded as needed: Birmingham City Council ex p Killigrew;
What must be provided is services which are reasonably considered to be appropriate to meet the assessed needs: Haringey LBC ex p Norton (no.1)
It is not necessarily a breach of statutory duty to miss out on providing a non-essential service: Islington LBC ex p MacMillan
It would be inappropriate to change someone’s personal carer without consulting them and giving them a chance first to assert that the change would cause them significant hardship: Essex County Council ex p Bucke