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9.6 Integrated Children’s Disability Service Occupational Therapy - Legal Framework

SCOPE OF THIS CHAPTER

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

AMENDMENT

In January 2021, this chapter was updated throughout and should be re-read


Contents

Caption: contents list
   
1. Legislation and Guidance
  1.1 The Children Act 1989
  1.2 The Chronically Sick and Disabled Persons Act 1970
  1.3 The Children and Families Act 2014
  1.4 The Care Act 2014
  1.5 The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards (DoLS)
  1.6 The Mental Capacity (Amendment) Act 2019 and Liberty Protection Safeguards (LPS)
  1.7 Positive and Proactive Care: reducing the need for restrictive interventions 2015
  1.8 Guidance on reducing the need for restraint and restrictive intervention: Children and young people with learning disabilities, autistic spectrum conditions and mental health difficulties in health and social care services and special education settings 2019
  1.9 The Human Rights Act 1998
  1.10 The Equality Act 2010
  1.11 The Carers (Recognition and Services) Act 1995
  1.12 The Health and Safety at Work Act 1974
  1.13 The Manual Handling Operations Regulations 1992 (as amended) (MHOR)
  1.14 The Provision and Use of Work Equipment Regulations 1998 (PUWER)
  1.15 The Lifting Operations and Lifting Equipment Regulations 1998 (LOLER)
  1.16 Deaf Children: Positive practice standards in social services (2002)
  1.17 The National Framework for Children and Young People’s Continuing Care (2016)
  1.18 The Housing Grants, Construction & Regeneration Act 1996
  1.19 The Regulatory Reform (Housing Assistance) (England and Wales) Order 2002
  1.20 The Housing Act 1985
  1.21 The Housing Act 1988
  1.22 Delivering Housing Adaptations for Disabled People – A Good Practice Guide (updated 2015)


1. Legislation and Guidance

  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:


1.1

The Children Act 1989

 

The Children Act 1989

  • Part III s.17 contains a general duty to safeguard and promote the welfare of children in need in the area and extends the provisions of the Chronically Sick and Disabled Persons Act 1970, the Disabled Persons Act 1986 and any other relevant enactments to cover disabled people under the age of 18 years;
  • A child in need is defined to include not just a disabled child, but also a child whose health or development is at risk. A disabled child is defined as described in the National Assistance Act 1948 s29 (“persons who are blind, deaf or dumb, and other persons who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed”.);
  • Part III subsection 17A refers to the duty to provide a Direct Payment to meet assessed needs;
  • Part III s.27 states that if it appears to a local authority that another authority (social services, NHS, housing, education) could help in the exercise of any of their functions under Part III they may request the help of that other authority specifying the action in question. That authority must comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions;
  • Schedule 2 states “Every local authority shall provide services designed a) to minimise the effect on disabled children within their area of their disabilities; b) to give such children the opportunity to lead lives which are as normal as possible, and c) to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring”.


1.2

The Chronically Sick and Disabled Persons Act 1970

 

The Chronically Sick and Disabled Persons Act 1970

  • Section 2 states that where a local authority have functions under Part 3 of the Children Act 1989 in relation to a disabled child and the child is ordinarily resident in their area, they must, in exercise of those functions, make any arrangements within subsection (6) that they are satisfied it is necessary for them to make in order to meet the needs of the child;
  • Subsection 6 gives a list of services including “the provision of assistance for the child in arranging for the carrying out of any works of adaptation in the child’s home or the provision of any additional facilities designed to secure greater safety, comfort or convenience for the child”.


1.3

The Children and Families Act 2014

 

The Children and Families Act 2014

  • Replaces Statements of Special Educational Needs with Education, Health and Care (EHC) plans;
  • Requires that (s.37;e) “in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970” is included in the plan;
  • Requires the local authority to carry out a parent/carer needs assessment if they believe that a parent carer may need support, or they receive a request from a parent/carer and they are satisfied that the disabled child and family are eligible for support under the Children Act 1989. This assessment can be combined with one for the disabled child and could be carried out by the same person at the same time.


1.4

The Care Act 2014

 

The Care Act 2014

  • Applies to adult services and does not apply to children, other than in transitional provisions when a child is approaching the age of 18 years. Young people with likely needs once they turn 18 should be identified early;
  • Gives a national eligibility threshold for adults with an increased emphasis on people's wellbeing and a formal duty to take steps to reduce or prevent care needs;
  • Carers of adults have the same rights to assessment and support as those being cared for;
  • Care and support of adults should continue without disruption if they move between local authorities;
  • Better integration between social care, housing and the NHS for adults.


1.5

The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards (DoLS)

 

The Mental Capacity Act 2005 and Deprivation of Liberty Safeguards (DoLS)

  • The Mental Capacity Act 2005 was implemented in 2007 and applies to everyone involved in the care, treatment and support of people aged 16 and over who are unable to make all or some decisions for themselves;
  • It is designed to empower people to make decisions for themselves wherever possible, and by protecting people who lack capacity;
  • With the Deprivation of Liberty Safeguards, the Mental Capacity Act allows restrictions and restraint to be used for the support of a person aged 18 and over in a care home or hospital, but only if they are in the best interests of a person who lacks capacity to make the decision themselves.


1.6

The Mental Capacity (Amendment) Act 2019 and Liberty Protection Safeguards (LPS)

 

The Mental Capacity (Amendment) Act 2019 and Liberty Protection Safeguards (LPS)

  • The Mental Capacity (Amendment) Act received royal assent in May 2019 but has not yet been implemented and a Code of Practice has not yet been published;
  • It will replace the Deprivation of Liberty Safeguards with Liberty Protection Safeguards;
  • Liberty Protection Safeguards will apply to those aged 16 and over and can be used in hospitals, care homes and other settings (including family homes).


1.7

Positive and Proactive Care: reducing the need for restrictive interventions 2015

 

Positive and Proactive Care: reducing the need for restrictive interventions 2015

  • This guidance was produced for services supporting adults and aims to ensure that restrictive interventions are used in a transparent, legal and ethical manner.


1.8

Guidance on reducing the need for restraint and restrictive intervention: Children and young people with learning disabilities, autistic spectrum conditions and mental health difficulties in health and social care services and special education settings 2019

 

Guidance on reducing the need for restraint and restrictive intervention: Children and young people with learning disabilities, autistic spectrum conditions and mental health difficulties in health and social care services and special education settings 2019

  • This guidance is non-statutory and advisory and applies to local authorities responsible for providing social care to children with learning disabilities, autistic spectrum conditions and mental health difficulties;
  • Children with learning disabilities, autistic spectrum conditions and mental health difficulties are at greater risk of displaying behaviours that challenge and are therefore at heightened risk of experiencing restraint and restrictive intervention;
  • Restrictive intervention should only be used when absolutely necessary, in accordance with the law and clear ethical values and principles which respect the rights and dignity of children, and in proportion to the risks involved.


1.9

The Human Rights Act 1998

 

The Human Rights Act 1998

  • Sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law.


1.10

The Equality Act 2010

 

The Equality Act 2010

  • Provides a legal framework to protect the rights of individuals;
  • Includes a duty on ‘controllers of premises’ (anyone who manages or rents out a property) to make reasonable adjustments for disabled people.


1.11

The Carers (Recognition and Services) Act 1995

 

The Carers (Recognition and Services) Act 1995

  • Entitles those carers of children under 18 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 they care for is being assessed.


1.12

The Health and Safety at Work Act 1974

 

The Health and Safety at Work Act 1974

  • Under s.3 of the 1974 Act, the employer has a duty to ensure, “so far as is reasonably practicable”, that people who may be affected are not exposed to risks to their health or safety.


1.13

The Manual Handling Operations Regulations 1992 (as amended) (MHOR)

 

The Manual Handling Operations Regulations 1992 (as amended) (MHOR)

  • Requires employers; to ensure, so far as is reasonably practicable, the health, safety and welfare of all their employees while at work;
  • Aims to reduce musculoskeletal injuries as a result of manual handling at work. Employers must:
    • Avoid, so far as is reasonably practicable, manual handling operations carrying a risk of injury; failing this;
    • Assess the relevant manual handling operations and take appropriate steps to reduce the risk of injury to the lowest level reasonably practicable.


1.14

The Provision and Use of Work Equipment Regulations 1998 (PUWER)

 

The Provision and Use of Work Equipment Regulations 1998 (PUWER)

  • Stipulates duties of inspection and maintenance of some equipment used at work.


1.15

The Lifting Operations and Lifting Equipment Regulations 1998 (LOLER)

 

The Lifting Operations and Lifting Equipment Regulations 1998 (LOLER)

  • Places duties on people and companies who own, operate or have control over lifting equipment and requires that all equipment used for lifting is fit for purpose, appropriate for the task, suitably marked and, in many cases, subject to statutory periodic 'thorough examination'.


1.16

Deaf Children: Positive practice standards in social services (2002)

 

Deaf Children: Positive practice standards in social services (2002)

  • This guidance includes standards for supporting Deaf children and their families.


1.17

The National Framework for Children and Young People’s Continuing Care (2016)

 

The National Framework for Children and Young People’s Continuing Care (2016)

  • Provides guidance for clinical commissioning groups (CCGs) when assessing the needs of children and young people whose complex needs cannot be met by universal or specialist health services.


1.18

The Housing Grants, Construction & Regeneration Act 1996

 

The Housing Grants, Construction & Regeneration Act 1996

  • Provides the 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 providing discretionary assistance under The Regulatory Reform Order 2002;
  • Provides definitions of who may qualify for a DFG, irrespective of the type of tenure;
  • Sets out the purposes for which mandatory DFGs may be given;
  • Section 24 states that “a local housing authority shall not approve an application for a grant unless they are satisfied a) That the relevant works are necessary and appropriate to meet the needs of the disabled occupant, and b) That it is reasonable and practicable to carry out the relevant works having regard to the age and condition of the dwelling. In considering the matters mentioned in paragraph (a) a local housing authority which is not itself a social services authority shall consult the social services authority.


1.19

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

 

The 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;
  • Adds providing access to a garden to the list of purposes for which a DFG may be given.


1.20

The Housing Act 1985

 

The 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.


1.21

The Housing Act 1988

 

The Housing Act 1988

  • 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.


1.22

Delivering Housing Adaptations for Disabled People – A Good Practice Guide (updated 2015)

 

Delivering Housing Adaptations for Disabled People – A Good Practice Guide (updated 2015)

  • This good practice guide was published by the Home Adaptations Consortium 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 checklist.

End