Practical Law

This is the latest in our series of quarterly adult social care update blogs, giving readers a snapshot of the most important cases, issues and developments in adult social care. This post looks at developments from February 2016 to April 2016.

Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments covered or if you think we have missed something that should be brought to the attention of adult social care practitioners.

In this post we look at:

• New legislation and guidance.
• Care Act 2014: developments.
• Mental health.
• Health.

NEW LEGISLATION AND GUIDANCE

Regulation and Inspection of Social Care (Wales) Act 2016 (Commencement No 1) Order 2016

The Regulation and Inspection of Social Care (Wales) Act 2016 (Commencement No 1) Order 2016 was made on 26 March 2016 and brought into force from 6 April 2016 the following consequential amendment provisions of Schedule 3 to the Regulation and Inspection of Social Care (Wales) Act 2016:

• Paragraph 59, which amends section 33 of the Public Services Ombudsman (Wales) Act 2005 to extend the requirement for listed authorities to give publicity to the availability and operation of complaints procedures to the new bodies (care home providers, domiciliary care providers and independent palliative care providers) that are subject to the Ombudsman’s jurisdiction.
• Paragraphs 60 to 65, which make minor amendments to the Social Services and Well-being (Wales) Act 2014 (SSWWA 2014), including to some of the Welsh text, to certain cross references in section 42 (duty to meet support needs of a child carer) and to the definition of “voluntary organisation” in section 197(1).

Care Act 2014 (Commencement No 5) Order 2016

The Care Act 2014 (Commencement No 5) Order 2016 was made on 24 March 2016, and brought into force the following provisions of the Care Act 2014 relating to Wales on 6 April 2016:

• Section 50, which puts Welsh local authorities under a temporary duty to meet care and support needs in the event that a care establishment or agency becomes unable to carry on because of business failure. Related provisions in section 52 are also being brought into force.
• Schedule 1, paragraph 2, which relates to Welsh local authorities discharging their duty under section 35 of the SSWWA 2014 by arranging for the provision of accommodation in England, Scotland or Northern Ireland.
• Section 75(8)-(11) and Part 2 of Schedule 4 to the SSWWA 2014, relating to direct payments for after-care under the Mental Health Act 1983.

Social Services and Well-being (Wales) Act 2014 (Commencement No 3, Savings and Transitional Provisions) Order 2016

The Social Services and Well-being (Wales) Act 2014 (Commencement No 3, Savings and Transitional Provisions) Order 2016 has been made and brought into force on 6 April 2016 the majority of the adult care and support provisions in the SSWWA 2014. For information about the provisions in the Act that came into force prior to 6 April 2016, see Legal update, Social Services and Well-being (Wales) Act 2014 (Commencement No 2) Order 2015 made.

The Order also sets out transitional arrangements for people receiving support and services prior to 6 April 2016 as well the arrangements in relation to issues such as deferred payments agreements, ordinary residence, sight registers and the appointment of directors of social services.

Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) (Secondary Legislation) Regulations 2016

The Social Services and Well-being (Wales) Act 2014 (Consequential Amendments) (Secondary Legislation) Regulations 2016 have been made and came into force on 6 April 2016.

The Regulations were made under section 198 of the SSWWA 2014 and sections 195(6) and 201 of the Health and Social Care (Community Health and Standards) Act 2003. The Regulations revoke Welsh secondary legislation made under primary legislation since repealed by the 2014 Act, and set out consequential and incidental amendments to secondary legislation required as a consequence of the commencement of the SSWWA 2014.

The amendments made by the regulations include the revocation of the National Assistance (Sums for Personal Requirements) and Social Care Charges (Wales) (Miscellaneous Amendments) Regulations 2015.

Social Services Codes (Appointed Day) (Wales) Order 2016

The Social Services Codes (Appointed Day) (Wales) Order 2016 was made on 8 February 2016. It appoints 6 April 2016 as the day on which codes of practice issued by the Welsh Ministers under section 145(1) of the SSWWA 2014 come into force. For more information on the codes, see Legal update, Social Services and Well-being (Wales) Act 2014: codes of practice and statutory guidance published.

DBS publishes updated guidance on referral duty and power for local authorities and regulatory bodies

On 4 March 2016, the Disclosure and Barring Service (DBS) published updated guidance for local authorities and regulatory bodies on the duty and power to refer to the DBS. The duty and power to refer also apply to a Health and Social Care body (HSC) or the Education Authority (an Education and Library Board prior to 1 April 2015) in Northern Ireland.

For more information on the DBS and the duty to refer see Practice note, Safeguarding Vulnerable Groups Act 2006 and Safeguarding Vulnerable Groups Act 2006: checklist for Regulated Activity Providers: Checklist.

The DBS guidance explains:

• When a local authority, HSC or the Education Authority has power to refer a person to the DBS, and provides examples of when the power to refer applies. The power to refer occurs when those organisations are not acting as a regulated activity provider (the employer), which will usually be when they are undertaking their safeguarding role.
• When local authorities are under a duty to refer a person to the DBS, and provides examples of when the duty to refer applies. Local authorities are under a duty to refer where they fall within the definition of a regulated activity provider and they have withdrawn permission for a person to engage in a regulated activity in specified circumstances.
• That when the DBS is considering whether to include a person in, or remove a person from a barred list, and the DBS thinks that a local authority, HSC or the Education Authority holds any prescribed information, those organisations must comply with a request from the DBS to provide that information.

OPG publishes guidance on local authority deputyship responsibilities

On 14 January 2016, the Office of Public Guardianship (OPG) published guidance reminding local authorities of their legal obligations and duty of care when appointed as a deputy by the Court of Protection to manage the financial affairs of people who lack mental capacity.

The guidance reminds local authorities that:

• They are obliged to act in accordance with the Mental Capacity Act 2005, its associated regulations and the Mental Capacity Act 2005 Code of Practice.
• When the named deputy is the director of adult services or another local authority officer they may delegate duties to other local authority staff, but will remain accountable for actions and decisions in relation to those clients. Duties cannot be delegated to organisations outside the local authority.
• If they decide to change from direct provision of a deputyship service and are entering into contractual arrangements with an external provider, the local authority should satisfy itself that the provider is fit to handle the finances of vulnerable people. Any local authority wishing to retire as deputy from their existing cases must apply to the Court of Protection.

CARE ACT 2014: DEVELOPMENTS

Updated factsheets accompanying Part 1 of the Care Act 2014

On 19 April 2016, the Department of Health (DH) published updated factsheets to accompany Part 1 to the Care Act 2014 to reflect changes made to the statutory guidance on the Act in March 2016 (see DH: Care and support statutory guidance: changes in March 2016). The thirteen factsheets were initially published in June 2014, and offer guidance to local authorities on a wide range of responsibilities under the Care Act 2014 including:

• General responsibilities of local authorities: prevention, information and advice, and shaping the market of care and support services.
• Assessing needs and determining eligibility.
• Protecting adults from abuse or neglect.

New Pan London Adult Safeguarding Policy and Procedures

The Association of Directors of Adult Social Services (ADASS) London launched a revised version of the Pan London Adult Safeguarding Policy and Procedures on 9 February 2016. The policy and procedures are extensively revised following implementation of the legal  framework for adult safeguarding in the Care Act 2014 and chapter 14 off the Care and Support Statutory Guidance, and:

• Was agreed at the ADASS Dignity, Capacity and Safety Group meeting on 2 December 2015 (see Legal update, Practical Law Local Government: looking forward to 2016: Multi-Agency Adult Safeguarding Policy and Procedures).
• Was agreed by ADASS, the Metropolitan Police and NHS England, with the aim of improving the effectiveness of a multi-agency approach to adult social care.
• Aims to deliver consistency across London in the way that all organisations respond to concerns about vulnerable adults at risk.

ADASS has stated that it will keep the policy up-to-date by reviewing it periodically. Those using the new policy were invited to provide ADASS with feedback on it, which is intended to contribute to this review process.

MENTAL HEALTH

Court of Appeal should re-consider FTT’s jurisdiction to conditionally discharge patients detained under Mental Health Act 1983 on terms that amount to a deprivation of liberty (Upper Tribunal (Administrative Appeals Chamber)) (MM v WL Clinic and another)

On 21 January 2016, Charles J sitting in the Upper Tribunal refused an application by the Secretary of State for Justice (SoS) for permission to appeal against his earlier decision MM v WL Clinic and another [2015] UKUT 644 (AAC), in which he held that for the purposes of Article 5 of the European Convention on Human Rights, a restricted patient under the Mental Health Act 1983 can give a valid consent to the terms of a conditional discharge that, when implemented, will create a deprivation of the patient’s liberty.

Charles J said that the background to the case and the fact that the grounds of appeal are relevant to patients subject to community treatment orders and guardianship as well as restricted patients, meant that the application for permission to appeal should be decided by the Court of Appeal (court). This would ensure that if permission is granted, the court could make directions for expedition, and in respect of the issues to be heard and determined.

It will be interesting to see whether the SoS pursues the application and what the court’s decision is likely to be on the question bearing in mind its earlier decision in Secretary of State for Justice v RB [2011] EWCA Civ 1608.

HEALTH

Local health boards in Wales can set funded nursing care rates (Court of Appeal) (Forge Care Homes Ltd and others v Cardiff & Vale University Health Board and others)

The Court of Appeal has allowed the appeal of the appellant local health boards in Wales (LHBs) against the High Court’s decision quashing the LHBs’ determination of the rates to be paid for nursing care provided to certain residents in care homes (see Legal update, Funded nursing care rates: Welsh Local Health Boards’ decisions set aside). The issue was the proper construction of section 49(2) of the Health and Social Care Act 2001 and the extent of the NHS’s liability (through LHBs) to fund care home residents’ NHS Funded Nursing Care (FNC).

The LHBs argued they were only obliged to pay for FNC, that is clinical or medical care, by a registered nurse and not for the provision of other services by way of social care (such as help with washing or eating) even if that social care was in fact provided by a nurse since local authorities are responsible for providing social care. The distinction was justified by the excepting words at the end of section 49(2) “other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse”.

The court (with Elias LJ dissenting) held that a distinction had to be drawn between FNC and social care, paid respectively by the NHS and local authorities. It did not follow from the fact that a nurse needed to be on call at all times that everything they did on duty had to be treated as a service that needed to be provided by a registered nurse. What mattered was the actual work being done and, given the various and changing factual circumstances, the extent to which the registered nurse’s activities and individual tasks in the care home needed to be provided by a registered nurse. Therefore, the NHS could lawfully set the rate paid to care homes to reflect time spent, directly or indirectly, on nursing tasks to be carried out by a nurse, but excluding the time a nurse spent on social care. That had to be funded by the care homes or local authorities, or, subject to their means, the residents of the care homes.

It will be interesting to see whether the care homes appeal this decision given the likelihood of continuing disputes about apportioning the split between nursing and non-nursing care.

House of Commons Library Briefing Paper published on policies and services for people with autism in England

The House of Commons has published a briefing paper with an overview of the legislation, policies and services in relation to people with autism. Although the note focuses on policies in England, it briefly outlines autism strategies implemented in the rest of the UK.

The briefing paper provides an overview of:

• The Autism Act 2009, which placed statutory requirements on the government to publish an adult autism strategy.
• Updated statutory guidance to local authorities, NHS bodies and NHS Trusts published in April 2015 to support implementation of the autism strategy Think Autism.
• The new duties to people with autism in the Care Act 2014, including the duties to ensure that professionals who assess the needs of adults with autism have the relevant training and qualifications.