Welfare services for older persons are the ‘Cinderella’ service amongst the community care legislative provisions, since residential and nursing care have always been considered a reasonable option and necessarily provided for this client group. Yet assessment, care planning and commissioning guidance for this client group is now at the cutting edge of the government’s modernisation programme, with the promotion of independence at its core. The National Service Framework for Older Persons is being used as a model for rolling out Single Assessment, Information Sharing, and better strategic commissioning for the wider care community. Ageism (discrimination against people just because they are over 65, for instance) has been formally outlawed in the NHS and social care field.
Even though the current legal framework fails to provide a solid basis for all these good intentions, and practice rolls forwards without much concern about the underlying gaps between the rhetoric and actual legal rights – law and legislation are far from irrelevant to older persons’ causes. Far from it, – and somewhat sadly, one might think, because the results so far have not really done older persons any favours, in practice. We think that this is because the culture in social care is an anti-legalistic one, instead of one in which practitioners are trained to see that law can empower well-informed clients.
Section 21 of the National Assistance Act has been the single most important focus for test case litigation in social care over the last 10 years – and this litigation has established the following principles, which remain as binding law, whatever the rhetoric, until the legislation is changed.
Help the Aged ex p Sefton MBC established that a duty is triggered to provide appropriate residential care once the statutory test was met – which was whether care and attention were needed (according to criteria) and was it otherwise available? This case could have been used country-wide by practitioners and senior management, NHS Trusts and the government, let alone by clients and carers, to establish that it is unlawful to run a residential care waiting list by reference to sticking within the budget for the month or quarter. But its potential has not been used to the full, perhaps because the case did not involve a wait for actual service – the client was self-funding a current care placement, albeit from capital below the threshold.
Another example is the Lancashire County Council ex p Ingham decision, in which it was clearly established that an authority can take the cheaper of two adequate means for meeting need, in making its care planning decisions, even if that selection is not in accordance with the client’s choice. This case underlines that the emphasis on choice and user preference is simply an aspiration in guidance, and hence only one aspect of a lawful provision decision.
Instead of embracing the potential for arguing that before such a power arises, the alternatives must both (or all) be defensible as adequate to meet the assessed need, this case is relied on by some authorities to justify cost-capping actual delivered packages of social care, to the equivalent cost of residential provision. The options of 2.5 hours care a day albeit in one’s own home for someone who needs 24 hour care is the plainest example ever, to our minds, of a so-called ‘choice’ being presented to a vulnerable person, at a difficult stage, of an inadequate alternative, which is unlawful.
We can only conclude that legal reasoning and principle is not considered accessible enough to be put to use by those campaigning for change, which saddens us, (it would, since we are lawyers!) because we are convinced it can be a constructive and ethical basis for resolution of heavily competing pressures and priorities.
Since people will resort to litigation, eventually, and since the outcome of the cases constitutes the law for other people’s situations, (which cannot be said of government guidance) we should have thought that a change of culture is needed – or maybe a change in the law itself. If the case law results in uncomfortable truths for all stakeholders, the answer must surely be to change the legislation, not ignore the law, or bury it under guidance which sometimes ignores the underpinning of all social care provision by that very legislation.
By way of summary, services for older persons are provided under:
s21 National Assistance Act 1948 – residential settings for persons needing care and attention not otherwise available to them, by reason of age, or illness, amongst other things. A duty is triggered once the person is assessed as in need of care and attention not otherwise available.
schedule 8 National Health Service Act 1977 – home help and laundry for households where there is someone aged living there. Duties and discretions arise for those assessed to be in need.
s29 National Assistance Act and the Chronically Sick and Disabled Persons Act 1970 – general welfare services, and specific home-based care, but only if the person concerned is more than just ageing – because of the threshold test for disability not including mere age as a criterion for entitlement. Duties and discretions arise, depending on ordinary residence.
s45 Health Services and Public Health Act 1968 – a power to provide services for the promotion of the welfare of old people, including practical assistance in the home. Approvals and Guidance in a circular from the DHSS (19/71) specified that the power extends to provide meals, recreation, advice about other agencies, support, visiting and advisory services, including practical assistance in the home, which can include equipment for daily living.