Rights and legal issues
I am unhappy with the way in which my local Council has treated me should I get legal advice? When might I need to seek legal advice?
You might want legal advice if you feel that your local Council has treated you unreasonably or unfairly. For instance, you might want to challenge social services' assessment of your needs and the resulting care plan. Whilst most complaints should be made to the Council's Complaints Officer, there may be situations where you need to seek an urgent remedy, or you remain dissatisfied with the outcome of the Complaints Procedure. A specialist Community Care lawyer will be able to advise you.
Am I entitled to public funding (Legal Aid)?
If you receive Income Support, Income Based Job Seekers' Allowance or Guarantee State Pension Credit, you will automatically qualify for Legal Aid.
If you do not receive one of the above benefits, but your monthly "disposable" income is between £273 and £632 inclusive and your savings are less than £8,000, you may be entitled to Legal Aid. However you will have to pay a monthly contribution towards your legal costs. The Legal Services Commission will work out how much you will have to contribute and send you an "offer" letter. It is then up to you to decide whether you want Legal Aid.
"Disposable" income means what you have left to live on, after set allowances for children and deductions for housing costs, tax, national insurance, maintenance paid and child minding. A number of benefits will also be disregarded. These include (amongst others), Direct Payments, Disability Living Allowance (DLA), Carers Allowance and Severe Disablement Allowance. Unless you get Income Support, your partner/spouse's income will also be assessed. If you own your own home, you may still qualify for Legal Aid. You will need to discuss this with a solicitor.
Community Legal Service (CLS)
If you need information about a legal issue and want to know who and where your local adviser is you can contact the Community Legal Service. You can access free quality legal information and advice by calling 0845 345 4 345. or going to their website : www.clsdirect.org.uk
(FAQ answered by Julie Cornes Solicitor from Fisher Meredith Solicitors based in London. www.fishermeredith.co.uk )
Does a service provider legally have to provide information in a way or format that meets my needs ?
Generally Yes. Under the Disability Discrimination Act (DDA) an individual has rights so that information and communication is provided equally to disabled and non-disabled customers alike.
This is a general duty for service providers to provide information to all disabled people regardless of their impairment (Braille, large print, audio, CD Rom, plain English etc). However, some service providers are not covered by the legal duties specified under the DDA-for example
- Manufacturers and designers of products
- Private members clubs not open to the public.
- Services available in the UK but provided from outside the UK
- Selling, letting or managing of premises.
- Any service that is not provided to the public.
A service provider may claim, occasionally that it is not reasonable for them to provide accessible information. The service provider must give a very good reason for this. This justification would be seen as reasonable if it fell into the following categories:
- Health and Safety
- The disabled person being unable to enter into a contract
- The service provider being otherwise unable to provide a service to the public.
- The greater cost of providing a tailor made service.
Small providers may have more room to use these particular get out clauses than bigger ones. Many people want further changes to the DDA.
For further information about the DRC Code of Practice and other obligations of the DDA contact the Disability Rights Commission (DRC) Helpline: 08457 622633
What is Fair Access to Care Services (FACs)?
" Fair Access to Care Services" is a government policy. It provides a guide to Social Services departments. This helps them decide who can get a service from adult social services through an assessment. Fair Access to Care Services Guidance covers all adult users of social care, including older people.
It says that authorities should assess ‘presenting' needs and decide whether these are ‘eligible' needs, that is, whether they mean the person fits the criteria for getting services. If there are eligible needs, the authority must arrange appropriate and cost effective help.
To decide which needs are eligible, the authority must assess us against an eligibility framework, grading needs as either:
- Critical
- Substantial
- Moderate
- Low
They should assess the risk to the independence of the person being assessed, in each of four areas below equally not just risk in relation to Health & Safety:
- Autonomy and freedom to make choices.
- Health and safety including freedom from harm, abuse and neglect, and taking wider issues of housing and community safety into account.
- The ability to manage personal and other daily routines.
- Involvement in family and wider community life, including leisure, hobbies, unpaid and paid work, learning, and volunteering.
- So the assessment should take into account risks to:
- sustaining social support and relationships sustaining family roles and other social responsibilities
- life and health including risk of abuse or neglect
- choice and control over day to day environment
- ability to carry out personal routines
- ability to take part in work, education or learning
A judgement on whether the risk in each area is critical, substantial, moderate or low will be made. Authorities can set a level for meeting eligible needs, taking into account their resources. They should prioritise needs with immediate and/or long term consequences.
The assessment should be rounded, person centred, transparent and non discriminatory. If it is agreed you need assistance then, together with the individual, councils a ‘care plan' should be developed.
The written record of the "care plan", a copy of which should be given to the user, should include as a minimum:
- A note of the eligible needs and associated risks to independence.
- The individuals preferred way of getting the support
- Options to manage emergency situations.
- Details of services to be provided, and any charges the individual is assessed to pay, or if direct payments have been agreed.
- Agreed support which "carers" and others are willing and able to make.
- A review date.
Councils should not have blanket policies to not provide certain services. Councils can have cost limits on packages as a guide, but should not apply these rigidly. In particular, the range of services available to older people should not be substantially different from those available to younger people.
NCIL has growing concerns that the spirit of FACS guidance is not always followed. This can lead to inequality of access to Independent Living in different parts of the country. What is your experience? Let us know!
Where can I get official forms and to make an Enduring Power of Attorney (EPA)?
An Enduring Power of Attorney Information pack is
available through:
Oyez Stationers 144 - 146 Feter Lane London EC4
tel: 0870 7377370 or www.formslink.co.uk
It costs £10.49 - ask for the EPA pack with guidelines.
Can my Local Authority take my assessed charge for services out of my direct payment without my agreement?
Local Authorities, when producing their policy on charging should make sure that the individual service user has the choice about whether the assessed charge is taken at source(Net) or that the charge is reimbursed to the local council after payment of the direct payment(gross).
Any local authority who has policies stating that charges will be taken at source as the only option is not complying with the department of health guidance (DoH) which is also backed up by the Chartered Institute of Public Finance and Accountancy (CIPFA). The DoH guidance states "There are two ways in which an individual may make a financial contribution to the cost of his or her care. The council may make a direct payment that is equivalent to their estimate of the reasonable cost of the service and subsequently seek reimbursement (gross payment). Alternatively, the lcoal council may deduct from their estimate the assessed charge before the payment is made and make direct payments net of the amount that the individual is expected to make (net payment). Councils should take into account the views of users when producing their policy on charging allowing sufficient flexibility to respond to individual circumstances."
If you are having your charges deducated at source and wish to change this arrangement please contact your local authority direct payment service (referring to the guidance above) and ask for this to be done.