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9.8 Countywide Children’s Occupational Therapy - Legal Framework

SCOPE OF THIS CHAPTER

This guidance sets out the legal framework within which the Occupational Therapy Service operates.


Contents

  1. Introduction
  2. Legal Framework


1. Introduction

The purpose of this guide is to set out the eligibility criteria and process to be followed for the commissioning of disabled children's OT services


2. Legal Framework

  Below is a summary of the legislation, which is relevant to the work of occupational therapy staff in assessing the needs of disabled children and their carers
2.1

Chronically Sick and Disabled Persons Act 1970

Section 1 places a duty on Local Authorities to inform themselves as to the number and needs of substantially and permanently disabled people in their area. Also, to ensure that people are aware of services relevant to their needs.

Section 2 gives Local Authorities a duty to arrange for one or all of a wide range of services where they are satisfied that they are necessary to meet the needs of permanently disabled persons resident in their area. This includes "the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his/her home or the provision of any additional facilities designed to secure his/her greater safety, comfort or convenience".
2.2

Housing Act 1985

Sections 8-10 set out the main powers and duties of local housing authorities.

These sections allow them to directly fund council house adaptations.
2.3

Disabled Persons Act 1986

The following sections have not yet been implemented- 1, 2, 3 and 7.

Sections 5 & 6 require education and adult social care departments to work together to ensure that the needs of young disabled people are assessed prior to their leaving fulltime education.

Section 8 requires social care departments to have regard to a carer's ability to continue providing care on a regular basis, when it is assessing the needs of a disabled person.
2.4

Housing Act 1988

This allows the Housing Corporation to make grants to registered Housing Associations for approved purposes. This includes funding adaptations to enable Housing Associations to convert their existing stock to meet the needs of disabled residents.
2.5

Housing Grants, Construction and Regeneration Act 1996

This Act provides the current legislative framework for Disabled Facilities Grants (DFGs). Since 1990, local housing authorities have been under a statutory duty to provide grant aid to disabled people for a range of adaptations to their homes.

The maximum amount of grant available for a mandatory DFG is currently £30,000.

A local housing authority does not have a duty to assist applicants with costs above this ceiling. However, they may refer cases of hardship to the social services authority or consider using their discretionary powers of assistance.

The Act provides definitions of who may qualify for a DFG, irrespective of the type of tenure. It also sets out the purposes for which mandatory DFGs may be given.

Section 24 places a duty on housing authorities to consult the social services authority on the adaptation needs of disabled people, i.e. whether works are necessary and appropriate. The housing authority must decide what action to take on the basis of that advice and judge whether it is reasonable and practicable to carry out the works.
2.6

Regulatory Reform (Housing Assistance) (England and Wales) Order 2002

The general power under Article 3 of this order enables housing authorities to give discretionary assistance for adaptations. This can be given for a wide range of purposes including, providing small-scale adaptations more quickly, providing top up assistance to mandatory DFG and assisting with the acquisition of alternative accommodation.
2.7

Delivering Housing Adaptations for Disabled People

This good practice guide was published by the Office of the Deputy Prime Minister in November 2004 and advises Local Authorities on how to establish first class adaptations services. It sets out key principles, Legislative requirements, time targets and a good practice system review check list
2.8

National Health Service & Community Care Act 1990

The aim of the community care policy is "to enable people to live an independent and dignified life at home, or elsewhere within the community, for as long as they are able and wish to do so". ("Community Care in the Next Decade and Beyond" H.M.S.O. 1990).

Section 47 requires each Local Authority to carry out assessment of the care needs of people who, in its view, may require community care services. It must inform disabled people of their rights and then decide on their need for any of the welfare services specified in Section 2 of the Chronically Sick and Disabled Persons Act 1970. Once an individual's need for welfare services has been established, the authority must make the necessary arrangements to meet it. There is a requirement to liaise with local health and housing authorities where there may be a need for their services, in order to invite them to assist in the assessment process and in deciding on necessary services.
2.9

The Children Act 1989

Every Local Authority is also required to take reasonable steps to minimize the effect of their disabilities on disabled children, and to give them the opportunity to lead lives, which are as normal as possible.

Section 17 requires that services be provided for children in need, their families and others, and that a child shall be taken to be in need if he/she is disabled. The definition of "disabled" is as described in the National Assistance Act 1948. The provisions of the Chronically Sick and Disabled Persons Act 1970, the Disabled Persons Act 1986 and any other relevant enactments are also extended to cover disabled people under the age of 18 years. This section also applies to taking account of the needs of young carers. Subsection 17 (a) refers to the duty to provide a Direct Payment to meet assessed needs.

Part 1 of Schedule 2 gives the Local Authority a duty to provide information about all appropriate services (provided by themselves and others) to those who might benefit from them. It also requires every Local Authority to maintain a register of disabled children within their area. The Local Authority also has a duty to assess the needs of children in need in their area.
2.10

Carers (Recognition and Services) Act 1995

This Act entitles those carers who are providing a "substantial amount of care on a regular basis" to an assessment of their needs.

This duty arises if a carer requests an assessment of their "ability to provide and continue to care for the relevant person", when the person he or she cares for is being assessed.
2.11

Carers and Disabled Children Act 2000

This Act extended Local Authorities' power to offer direct payments to the following groups:

  • Parents with responsibility for a disabled child and who provide a substantial amount of care on a regular basis to that child;
  • Disabled young people aged 16 and 17 years;
  • Carers (over the age of 16 years) who provide a substantial amount of care to an adult.
2.12

Health and Social Care Act 2003

This Act changed the power to offer Direct Payments into a duty.' Local Authorities' will be required to make Direct Payments where an individual who requests and consents to one, meets the criteria' (LAC (2001) 23 p9.
2.13

The Disability Discrimination Act 2005

The Disability Discrimination Act (DDA) 2005 aims to end the discrimination that many disabled people face. This Act gives disabled people rights in the areas of:

  • Employment;
  • Education;
  • Access to goods, facilities and services;
  • Buying or renting land or property.
The Act also allows the government to set minimum standards so that disabled people can use public transport easily.
2.14 Mental Capacity Act 2005 - The Mental capacity Act 2005 came fully into force in October 2007. It is designed to protect those people who lack the ability to take decisions for themselves. As part of the act it defines restraint and gives criteria that need to be met for restraint to legally occur.
2.15 Department of Health Guidance for restrictive physical interventions - This guidance was written for providers, commissioners and regulators. Its purpose was and is to ensure that physical interventions are used as infrequently as possible, that they are used in the best interest of the service user, and that when they are used; everything that is possible is done to prevent injury and maintain the individuals' dignity.

End