is just one of the pieces of legislation in England which defines the parameters of social care services – the things Councils have always been able to arrange, if they feasibly came within the following highlighted words – but services a right to which has always depended for the individual, on a prior finding of necessity, ie eligibility.
Even when a person is eligible, however, in a particular domain of NEED, it has always been up to the council to decide whether they would meet the need in a particular way, because the council is the decision maker on appropriateness of service provision.
The Act envisages arrangements by the council, needing to be made, in order that a person’s identified needs be met, for the following things or activities.
(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,
One of the debates since Personalisation became government policy, is what might people want to spend the money on? And are all such things actually – in legal terms – really social services?
Thinking very hard about stretching the language in the legislation above, is one way of answering this question:
- Gym membership (or any club membership, even if it’s one a bunch of personal budget recipients set up for themselves), massage, a buddy for using public transport, taxis, an escort for socialising, art therapy, season tickets or subscriptions to activities such as the theatre, football – paying for all these things could logically come under “facilitation of” / “access to” recreational facilities or ‘instruction’ or ‘outings’ if people were eligible for them under FACS guidance in the first place.
- Life coaching, specialist communication assistance (eg for a deafblind person), emotional support, financial management support, a personal trainer: “instruction in how to overcome the effects of one’s disability”, or even – “practical assistance in the home” – likewise, if eligible, once again
- Any classes or courses – likewise…
- A person to provide support at college or university: assistance to that person “in taking advantage of educational facilities available to him”
- Transport: “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”
- Emergency respite at one’s house: practical assistance in the home
- Supervision at home: night-sitter services – see LAC (93)10
- Telecare, Helpline, commode, electric scooter, recliner chair etc, air conditioning, grab rails, cot sides, a stair lift, electronic tracking device, fall monitor etc: the provision of any additional facilities designed to secure [the person’s] greater safety, comfort or convenience
- A computer, a Wii, Guitar Hero, ‘brain trainers’: the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
- Caravans: recuperative holidays or holiday homes – see LAC (93)10
- Gardening, cleaning, ironing, shopping, home handyman services, financial management support: practical assistance in the home or ‘home help’
- Cocaine? Cannabis? Cigarettes? All these are ‘recreational facilities’ of a kind, but one is illegal and harmful, but allegedly fun. One is illegal but allegedly therapeutic. And one is legal and a source of vital tax income to the government, but clearly harmful, even in moderation… so it is unlikely that a court would mandate purchase of any of these things out of a community care budget!
- Reputationally difficult things: What about spending a direct payment on an agency that is playing fast and loose with the illegal worker rules – the recipient is not committing an offence, it’s the agency. But it is public money, being spent on an illegal worker. The LA does not have to agree to anything it does not want to agree to. So this one is hard to call, in legal terms. If it wants to take the risk, on the basis that it’s for the police to pursue, and to stop the funding would destroy the care relationship which is working really well, it could also educate its Members better, to deal with the press politely but by reference to the legal framework, if it wants to.
- What about things that just make us feel happier? Or less miserable? Are these things community care services?
For instance, what about a pet, for the sheer loving of one…? Great for one’s happiness and heart-rate, according to the evidence, but difficult to force into the language in any of the Acts from which the notion of community care services are derived. It’s hard to argue in favour of pets, though it obviously makes sense, given the evidence…because there are no community care services specifically for addressing social isolation or stimulating a person that could be stretched to cover buying and maintaining a pet. A pet is not a recreational facility, in the ordinary use of the word. FACS guidance and Personalisation Agenda emphases on ‘outcomes’ have ignored the law, underlying social services funding, unfortunately.
- The purchase of sex or somewhere to engage in it?: It is not illegal to spend money on securing a sexual activity for oneself. Paying for sex when you know that the other person has been exploited, by being subjected to threats, force or deception, is criminal, and is a strict liability offence. But sex is clearly a leisure activity and could arguably be regarded as a game or an outing…. And help with accessing it could certainly be agreed to be a vital need, in a person-centred holistic assessment, under something as woolly as FACS – referring back to VITAL roles and relationships, it is suggested. It is not a crime to sell sex, although the contract is unenforceable for public policy reasons. Street offences are what prostitutes and those searching for sex are criminalised for, and it could even be said to be good for the area to get if off the streets, some would say. Would advocates call it ‘practical assistance in the home’! Probably not, but why shouldn’t it be seen as “instruction in one’s own home, or elsewhere, as to how to overcome the effects of one’s disability”? Since it may be illegal to buy sex for someone else, and it is definitely illegal to buy it for someone mentally incapacitated, perhaps this represents a bright, shining outcome for the idea that once the money is a direct payment, then it’s as if it’s private money, in the client’s hands, and no longer the money of the local authority, no longer being used to procure anything, in the ordinary sense of public procurement?
- Councils will not be looking forward to the media attention if they take up this opportunity and start filling up PBs with money for this activity – and they don’t have to – but they have to be careful as to how they say no. Getting it wrong could mean judicial review / a human rights claim under article 8 (respect for private life, and one’s sexuality).