Step 5 - agreeing what community care services you'll get
If the local authority is going to offer support, this information should be contained in an individual care plan, setting out:-
- the support that is to be provided, by whom, when, and the objectives of the support
- details of the agencies providing the support
- a contact point to deal with problems (particularly outside working hours); to deal with urgent changes in services provided to meet new needs, and to arrange any reassessment
- a statement of when the assessment and care plan will be reviewed, and details on how a client and/or a carer can apply for a review
- in complex cases, the details of the person (known as a 'care manager') who is responsible for ensuring that the individual receives the services.
54The plan will normally be in writing if a continuing service is to be provided; but in any case, the local authority should supply a written statement if the person needing care, or carer, asks for it.
Financial assessment
The local authority may carry out an assessment of the client's financial circumstances, to establish whether s/he can afford to pay a charge for a service. Any financial assessment of a person's ability to pay for a service should be made after a needs assessment has been carried out, and after the local authority has decided whether or not to provide any services. Ability to pay should not influence the decision on whether to provide services. Even if a person of 65 or over receives free personal care or personal support the local authority is likely to carry out a financial assessment.
More about charging for services
If a local authority has assessed a client as needing support to meet her/his care needs, it must offer the client choice about how her/his care and support should be arranged and how the budget should be spent to best meet her/his needs. This is called self-directed support.
Problems with services
If the council won't provide a service you need
If a local authority is under a duty to provide a service which a client is assessed as needing, lack of resources can be taken into account when deciding whether to provide services but cannot be used as the sole basis for refusing to do so. In addition, a local authority may take its own financial position into account when assessing need in the first place.
94If a local authority refuses to provide a service which it has a duty to provide, this can be challenged.
More about challenging decisions about community care services
95If a local authority only has a power to provide a service, it can generally refuse to do so because of lack of resources. This may be challengeable if the decision is unreasonable, for example, if the client badly needs the service and it would be easy for the authority to provide. You may need specialist help to challenge a decision in this situation. The local authority will probably have a policy about when it will provide discretionary services which it only has a power, not a duty, to provide. It is important to consult this policy, and see if the local authority is following it in the client's case. If not, it may be possible to challenge the decision. In some cases, it may be possible to challenge the policy itself.
96If the client believes that there is a record of her/his unmet needs but the local authority will not give her access to a copy of that record, s/he should request access to the file.
More about challenging decisions and access to personal records
Under the Human Rights Act 1998, which incorporates many of the articles of the European Convention on Human Rights into UK law, there is a right not to suffer inhuman or degrading treatment. It may be argued that if a local authority fails to deliver services that a client has been assessed as needing this too could be a breach of her/his human rights. The Scottish Government has produced guidance on the procurement of care and support services; one of its aims is to assist public bodies to make decisions that comply with all human rights obligations (endnote 5).
More about the right not to suffer inhuman and degrading treatment and the Human Rights Act
If you don't agree with the service they're offering
A person whose care needs have been assessed may agree with the needs assessment, but not agree with the service proposed by the local authority to meet those needs. Alternatively, the client might have thought that the services would be appropriate but, once s/he had started receiving them, decided that they were inappropriate. S/he could ask for a review and/or one of the other remedies for challenging a decision.
98When the client feels that the service provided is unsatisfactory because it is not provided to an appropriate standard s/he can check what standard s/he should be able to expect from the national care standards.
More about national care standards
99The client may want to make a complaint using either the local authority complaints procedure or directly to the Care Inspectorate.
More about how to make a complaint
If the council says you must go into a care home
One of the main aims of community care is to enable a person to remain in her/his own home. Her/his wishes should be fully taken into account. In any case, a person cannot be forced to go into a care home against her/his wishes, unless s/he is incapable of managing her/his own affairs.
More about local authorities' duties towards people who are incapable of managing their affairs
102In order to remain in her/his own home a client may need services at home. If the assessment shows a need for services at home but the local authority ignores this and insists on residential care, this decision can be challenged as a refusal to provide services at home. Alternatively, the client may want to challenge the assessment itself, if the local authority only considered residential care and did not consider the clients need for services at home.
More about challenging decisions
If you're refused free personal care
110If the client is assessed to see if s/he receives or should receive free personal care or personal support but the local authority does not consider that s/he needs services of this kind, the local authority will not pay for it. If the client wants to continue to receive the care services s/he has been receiving s/he can do this but will have to pay for the services. It will be useful to check what services the person receives or has applied for against the definition of personal care or personal support. If the client considers that s/he does receive care which is included in the definition s/he should challenge the decision.
More about challenging decisions
Person is applying to be assessed for free personal care
26Anyone aged 65 or over who lives at home and receives personal care services, should not be charged for the services if the local authority agrees, after a care needs assessment, that the person requires the care.
27It is possible that someone may receive a range of services from a number of agencies as part of a community care package to enable her/him to stay at home. The local authority should assess what elements of the care that the person receives are personal care or personal support and should not charge for these services.
27aThe Court of Session has ruled that a local authority should not charge for services that are personal care or personal support (endnote 3). 3 David Sandeman Boath v. Perth and Kinross Council [2009] CSOH 66 (15 May 2009)
Does a local authority have to provide or arrange support
Under some legislation a local authority has a duty to provide support to a client where an assessment has shown that s/he needs it. This duty may be, depending upon the legislation, to a person or to a general group. A client is in a stronger position to challenge a local authority's refusal to provide a service where the duty is to a person. Even where the duty is to a person, this does not give the client an absolute right to the service. For example, a local authority may argue that it is unable to provide the service because of its financial position, but the client can challenge this argument.
Under some legislation a local authority has the power to provide a particular service to a client where an assessment shows that s/he needs it. The provision of that service is discretionary and the local authority will not necessarily provide it. However, the client can challenge the local authority's exercise of its discretion in some situations.
More about challenging community care decisions
It is possible that someone might belong to two or more client groups, for example, s/he may be both elderly and disabled. Therefore, when trying to obtain a particular service from a local authority the client and/or adviser should emphasise any duty the local authority may have to a person assessed as having a certain need, rather than a power relating to another group.
Local authorities will usually try to identify a client as a member of a client group when deciding what services to provide to a person needing care. It is likely to refer to client groups in the information it provides about community care services. Clients may not see themselves as belonging to a group and may take offence at being identified as such. Or the client may belong to more than one group. The client group approach may be helpful at an initial stage when thinking about the range of services that may be available. However, a local authority must consider the care needs of a particular individual, and her/his views.
Financial assessment
The local authority can charge for some services. There may be a financial assessment to see whether the client should pay charges for any service(s). The local authority will work out how much a client has to pay once it has decided what services the client is entitled to.
More about charging for non-residential community care services
More about charging for care homes