NATIONAL ASSOCIATION OF FINANCIAL ASSESSMENT OFFICERS

GOOD PRACTICE, TRAINING AND INDUCTION GUIDE

VOLUME 1

LEGISLATION AND GENERAL GUIDANCE

INDEX

VOLUME 1 / Introduction, Legislation and General Guidance
VOLUME 2 / Glossary of Terms
VOLUME 3 / Charging Policies
VOLUME 4 / The Financial Assessment Process
VOLUME 5 / Assessing the Costs of Disability
VOLUME 6 / Charging for Non Residential Care
VOLUME 7 / Charging for Residential Care (excluding Property)
VOLUME 8 / Charging for Residential Care – Property Issues
VOLUME 9 / Financial Safeguarding of Service Users
VOLUME 10 / Information for Service Users and Consultation
VOLUME 11 / Performance Management and Benchmarking
VOLUME 12 / Fast Track Review and Complaints
VOLUME 13 / An Introduction to State Benefits
VOLUME 14 / Case Law
VOLUME 15 / Counsels Opinion
VOLUME 16 / Commissioners Decisions
VOLUME 17 / Useful Documents, sample information Leaflets etc

CONTENTS

1.Introduction

2.National Assistance Act 1948

3.The Chronically Sick and Disabled Persons (CDSP) Act 1970

4.The mental Health Act 1983 (Section 117)

5.Health and Social Services and Social Security Adjudications Act 1983 (HASSASSA)

6.National Health Service and Community Care Act 1990

7.National Assistance Act ( Choice of Accommodation ) Directions 1992

8.Human Rights Act 1998

9.The Care Standards Act 2000

10.Local Government Act (Supporting People) Act 2000

11.Health and Social care Act 2001

12.Charging for Residential Accommodation Guide (CRAG)

13.Continuing Care Guidance

14.Fairer Charging for Home Care and Other Non Residential Services

14.Local Authority Circulars (LAC)

1. INTRODUCTION

1.1The NAFAO Induction, Training and Good Practice Guide document aims to assist local authority staff undertaking financial assessments and associated activities in line with appropriate charging guidelines and relevant legislation.

1.2As such it can be used to contribute to the induction of new staff, ongoing training in particular areas and as a reference source when specific issues arise that is not part of the normal day to day routine.

1.3The guide will be reviewed and updated at regular intervals to include new issues that are brought to light and any additional guidance that becomes available.

1.4The guide has been produced to help members but it must be emphasised that it has no legal status and merely attempts to provide and share information and represent a consensus of what constitutes good practice.

1.5Individual councils will be responsible for developing their own Charging Policy, interpretation of the appropriate legislation and regulations and seeking their own legal advice where necessary

1.6It is hoped that councils who use or adapt this Guide will contribute to achieving a greater level of consistency in the development and application of charging policies.

KEY LEGISLATION AND GUIDANCERELATING TO COMMUNITY CARE.

2.NATIONAL ASSISTANCE ACT 1948

The National Assistance (Assessment of resources) Regulations 1992 (NAA) came into force on 1st April 1993 and forms the basis for C.R.A.G. (Charging for Residential Accommodation Guide).

The NAA 1948 is the main legislation therefore that directs charging for residential services. It makes charging a duty of local authorities (not optional) though gives some discretion.

The main sections relating to charges are:

Section 21 (2A) – requires capital to be disregarded up to the relevant capital limits.

Section 22 (1) – requires charges to be made for accommodation in accordance with regulations.

Section 22 (2) – requires local authorities to set a standard rate for local authority homes equal to the full cost of providing the accommodation.

Section 22 (3) – requires local authorities to recover the full cost but if a person is unable to pay the full cost there must be an assessment of ability to pay to decide what contributions should be made.

Section 22 (4) and (4A) – an annual National Assistance (Sums for Personal Requirements) Regulations are issued which sets the Personal Expenses Allowance (PEA).

Section 26 (A) – forbids local authorities from providing financial assistance to those who were resident on 31 March 1993.

Section 42 – gives local authorities the power to recover the costs of residential care from a liable relative if the resident dies with a debt for charges remaining i.e. a spouse but not a daughter.

3.THE CHRONICALLY SICK AND DISABLED PERSONS (CSDP) ACT 1970

The CSDP Act requires councils to make arrangements for the provision of certain services to individual chronically sick and disabled people, who are ordinarily resident in their area. A council only has to provide services if it is satisfied that they are necessary to meet the needs of the person. The services are:

  • provision of practical assistance within the home;
  • provision of disability aids and equipment;
  • assistance with adaptations to the home;
  • provisions of meals at home or elsewhere;
  • provision of, or assistance in, getting a telephone or any special equipment necessary to use a telephone;
  • provision of, or assistance in, taking advantage of educational or recreational facilities both inside and outside the home, including provision of, or assistance with, transport to and from the facilities;
  • provision of holidays.

The Chronically Sick and Disabled Persons Act 1970 gives local authorities a duty to provide a number of services including a telephone for certain disabled people, or help them in getting a telephone. However, it is up to each authority to decide whether there is a need for such help.

Who qualifies: An individual has a right to an assessment for services under the Chronically Sick and Disabled Persons Act if they are substantially and permanently handicapped, blind or partially sighted; deaf or hard of hearing; mentally ill or mentally handicapped. The assessment will consider whether an individual might be eligible for services provided under the Act.

4.ACCOMMODATION PROVIDED UNDER THE MENTAL HEALTH ACT (MHA) 1983 Section 117.

1.The duty to provide accommodation (and other community care services) under MHA 1983 - s117 is a quite separate community care service compared to the duty under the National Assistance Act (MHA) 1948 – s21. The duty only applies in respect of persons who are detained under MHA 1983 – s3, or admitted to a hospital under s37 or transferred to a hospital under a transfer direction made under s47 or s48 and then cease to be detained or leave the hospital. It is the duty of the Health authority and the local social services authority to provide relevant after care services for any person to whom this section applies.

2.The duty to provide accommodation under MHA 1983 – s117 only arises after a Social Services authority has assessed the patient as requiring the service. Accommodation provided under MHA 1983 – s117 differs from the service under NAA 1948 – s21 in that local authorities are not permitted to charge for the services provided.

3.The service user’s care needs, for which services are being provided, should be reviewed at regular intervals. This review, especially where it relates to s117, should, where possible, be undertaken by the care manager responsible for the service user, in consultation with the original care plan and the relevant health staff, relatives and other agencies involved with the placement under s117.

4.As soon as the health authority and the local social services authority are satisfied that the person concerned is no longer in need of after care under supervision, it will be necessary to charge the service user under the NAA 1948 – s21. This will be for services that continue to be provided, from the date the s117 order ceased. (See ceases to be detained, below)

5.REASONS FOR DETENTION.

While there is no minimum age limit for admission to hospital under MHA 1983, the nature ( and time scale) of the Act’s detention process means that s117 service users will generally be adults over 16 years of age.

Section3:

Persons are detained under MHA 1983 – s3 when admitted for treatment (as opposed to being detained under s2 whether or not accompanied by any treatment).

Section 37:

Persons may only be detained under MHA 1983 – s37, by order of a criminal court after being convicted of an offence, (punishable by imprisonment), in criminal proceedings, and the court being satisfied (among other things) that at the time of conviction the offender was suffering from a specific mental disorder.

Section 45a:

Under s45a, and subject to certain restrictions, the Crown Court may, when sentencing a person who suffers from a psychopathic disorder to a term of imprisonment, direct that they be detained in a specific hospital.

Section 47:

Persons may only be detained under MHA 1983 – s47 if they are serving a sentence of imprisonment (in prison), and the secretary of state is satisfied that they are suffering from a specific mental disorder, (i.e., mental illness, psychopathic disorder, mental impairment or severe mental impairment), and should in consequence be removed and detained in hospital.

Section 48:

Detention under MHA 1983 – s48, arises in the same circumstances as under s47, except that s48 applies to persons who although detained, are not serving a sentence of imprisonment, (e.g. under the Immigration Act 1971), and the person must be suffering from a mental illness of severe mental impairment.

6. CEASES TO BE DETAINED:

The duty to provide after care services under s117 only applies to persons detained by virtue of, section 3, 37, 45A, 47 or 48 of the Act; the duty crystallises when the person ‘ceases to be detained’ under the MHA 1983, authorised by the district Health authority, social services and other relevant agencies.

5.HEALTH AND SOCIAL SERVICES AND SOCIAL SECURITY ADJUDICATIONS ACT 1983 (HASSASSA)

There are 3 sections relevant to residential charges i.e.:

Section 21 – deals with transferring an asset to a third party. Allows a local authority to claim deprivation of assets but the local authority must prove the intention was to avoid charges and only applies to assets disposed of 6 months prior to assessment of need and the local authority arranging a placement. It does not apply to self funders, those who have not been assessed or those whose placement was not arranged by the local authority.

Section 22 – deals with placing charges on land or property. HASSASSA over rides a general power in Section 111 of the Local Government Act 1972 which means that interest cannot be charged on the debt during the lifetime of the resient. Only applies when there is a single owner of the property otherwise a Caution must be used.

Section 24 – requires local authorities to charge interest on the debt from the day after the death until the day that the debt is paid.

Section 17 of HASSASSA gives the right to charge for non residential services (or not to).

The only requirements were to be “reasonable” and only take into account the resources of the service recipient. The only equivalent to CRAG is a letter from the Departement of Health and Social Services Inspectorate in January 1994 which is not detailed and is ambiguous.

6.NATIONAL HEALTH SERVICE AND COMMUNITY CARE ACT 1990

This makes a legal duty for local authorities to assess the care needs of anyone who “in the authority’s view” may be in need of community care services.

In addition anyone requiring residential care must be assessed to establish whether they are in need of care and attention not otherwise available to them.

If a person is able to make their own arrangements or has an advocate or relative who is willing and able to make appropriate arrangements AND has assets or income in excess of the relevant limits, the local authority has discharged its duty.

This was reinforced and clarified by the Community Care (Residential Accommodation) Act 1998.

As there were examples of care assessments being completed and because the person had in excess of the capital limits the local authority felt it was not an obligation to make arrangements for residential care. The legislation clarified the situation i.e. anyone with the appropriate resources and is able to make their own arrangements can do so. However, anyone who cannot make their own arrangements, or who does not have an advocate or relative who is willing and able to do so, must remain the responsibility of the local authority no matter how much money they have.

The same will apply to someone waiting for a property to be sold before becoming self funding.

The same will apply to those whose capital is reducing to the upper limit.

There is still some lack of clarity in cases where a person is capable or has a relative or advocate will and able but who wishes to remain with the local authority as a fill fee payer (can they).

Definitions:

Self Funder – a person who meets the full cost of residential or nursing care and who has made their own arrangements or became responsible for their own arrangements following temporary public support while a property is being sold.

Full Fee Payer – a person who meets the full cost of residential or nursing care by reimbursing the fees paid by the local authority e.g. in a local authority’s own accommodation or someone in the independent sector who is unable to make their own arrangements.

The N.H.S. and C.C. act also requires local authorities to provide information to the public as a first essential part of the care management process. This will include charge for services.

There is also a requirement to provide a formal complaints procedure.

7.NATIONAL ASSISTANCE ACT 1948 (CHOICE OF ACCOMMODATION) DIRECTIONS 1992

This direction is intended to ensure that people who are assessed as needing residential care are able to exercise a genuine choice over the place where they receive that care.

If the individual concerned expresses a preference for a particular home, (“preferred accommodation”) within the UK, the authority must arrange for care in that home, provided:

The accommodation is suitable in relation to the individual’s assessed needs

To do so would not cost the authority more than it would usually expect to pay for someone with the individual’s assessed needs

The accommodation is available

The person in charge of the accommodation is willing to provide accommodation subject to the authority’s usual terms and conditions for such accommodation

The residential/nursing home chosen by the individual would need to contract with the authority using the same criteria of suitability and conditions applied to their other contracted homes.

The authority must also arrange for care in accommodation more expensive than it would normally fund provided there is a third party willing to pay the difference between the cost the authority would usually expect to pay and the actual cost of the accommodation.

In addition to those entering residential care, the directions also apply to people already in residential care who may wish to move.

Ref: NAA 1948 (Choice of Accommodation ) Directions 1992.

8.HUMAN RIGHTS ACT

This Act brings much of the European Convention on Human Rights into U.K. law.

The Act imposes an express duty on local authorities to comply with Convention Rights.

Every decision taken by a local authority is potentially effected by this legislation.

here are 14 Articles under Convention Rights, the key ones for Financial Assessment purposes being.

  • Article 6 The right to a fair hearing in a reasonable time scale.
  • Article 8 Rights to respect for private and family life.
  • Article 9 Freedom of thought, conscious and religion.
  • Article 14 Prohibition of discrimination/

It is open to anyone to bring a claim that a local authority decision is unlawful under the Convention. There is a general time limit of 1 year for bringing proceedings.

Cases should be heard in the most appropriate Court or Tribunal and Courts can award damages (including for anxiety and stress) against a local authority guilty of breaching the convention.

There are no restrictions on the types of policy or decision that can be challenged and breaches of the Convention can be either direct or indirect.

Local authorities must not take decisions which break Convention rights or act in a way that contributes toward or facilitates a breach.

Local authority decisions, therefore, need to be robust enough to withstand intensive scrutiny of their merits.

Financial assessment procedures should be reviewed to take into account Convention rights.

9.THE CARE STANDARDS ACT 2000:

The Care Standards Act 2000 established a new, independent regulatory body for social care and private and voluntary healthcare services. This body is now the National Care Standards Commission.

The main purpose of the Care Standards Act is to reform the regulatory system for care services in England and Wales. These include residential/nursing homes, children’s homes, domiciliary care agencies, fostering agencies, voluntary adoption agencies.

The transfer of the inspection and registration duties for residential/nursing homes will take place from April 2002.

Prior to the Act, the Inspection and Registration functions of residential/nursing homes were subject to The Registered Homes Act 1984 (amended in 1991). Under this legislation local authorities were responsible for the inspection and registration of residential care homes and the Health Authority for nursing homes. Although Independent residential homes were required to be registered, local authority residential homes were exempt. (They were still required to be inspected using the same standards as for Independent homes).

The Care Standards Act 2000:

Establishes a new, independent regulatory body which is “The National Care Standards Commission” For the first time local authorities will be required to meet the same standards as independent sector providers.

Establishes new, independent Councils (General Social Care Council –GSCC) to register social care workers, set standards in social care work and regulate the education and training of social workers and raise standards through codes of conduct and practice. A register of social care staff will be set up. The current Central Council for Education and Training in Social Work (CCETSW) will be abolished.

Reforms the regulation of childminders and day care provision for young children. Responsibility for the regulatory function (in England) will transfer from local authorities to Her Majesty’s Chief Inspector of Schools for England (HMCIS) under a new arm of OFSTED. In Wales these will transfer to the new regulatory body to be established as part of the National Assembly for Wales.

Provides for maintenance of a list of individuals who are considered unsuitable to work with vulnerable adults. It will operate in a similar way to the list established under the Protection of Children Act 1999. Care homes, must register with the Care Standards Commission and employment agencies providers must carry out checks before offering employment, and other businesses which supply individuals for care positions will be required to refer people to the list.