Legal and administrative background
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9 Social services authorities have a statutory duty to assess the needs of any person who appears to them to need ‘community care services’ and to decide in the light of the assessment whether services should be provided for that person [5]. A care plan should then be drawn up and reviewed annually.
10 In addition, the Department of Health have issued guidance to social services authorities specifically on the planning and delivery of social care to those with learning disabilities. Such services should be planned on an individual basis taking account of age, needs, degree of disability and the preferences of the individual and his or her parents; parents should be fully informed about decisions about the services to be arranged; and authorities should recognise the legitimate anxieties of parents about the continuity of service for those whose severe learning disabilities mean that they will need support throughout their lives [6].
11 When residential accommodation is provided, authorities need regularly to assess and review each individual and plan a package of services aimed at ensuring that he or she receives any supporting services in a setting which offers the most scope for individual development and wellbeing [7].
12 Social services authorities also have a duty to provide a complaints procedure under the NHS and Community Care Act 1990. They must follow a three stage process: Stage 1 – informal resolution; Stage 2 – formal investigation; and Stage 3 – Complaint Review Panel. At the time of these events there was a 28-day time target for each stage, but this could be extended to three months for Stage 2. A council has 28 days to decide whether to accept Panel recommendations. The Council may decide not to do so, but must give sustainable reasons.
13 In March 2001 the Government issued a White Paper [8] which set out its vision of the future for people with learning disabilities. It had at its centre four key strategic elements of Rights, Independence, Choice and Inclusion and envisaged that each individual would have a comprehensive, multi-disciplinary assessment of their needs, called ‘Person-Centred Planning’. The White Paper envisaged the development of alternative settings for services then being provided in long-stay hospitals, large hostels and day centres. This ‘reprovision programme’ would provide replacement community-based services, meeting new standards. The White Paper has never been enacted. However, the Council has advised that the aim of the proposed ‘reprovision programme’ of replacing long-stay hospitals, large hostels and day centres with community care services meeting new standards has been achieved in its area, and has said that this could not have been so without the agreement.
14 The agreement between the Council and the Trust set out the future arrangements for the local provision of learning disability services. Paragraph 2.1 of the agreement states:
‘The Council shall exercise the statutory functions of the Council, the PCTs, and the Trust … in relation to those members of their communities requiring Learning Disability and Services. This shall include … the provision of accommodation and care [and] the provision of assessment and treatment …’
Paragraph 2.6 explains further that:
‘For the purposes of this Agreement the Council will act as Lead Provider for the Services, and the functions of the Trust and the PCTs will be delegated to the Council to the extent necessary to enable the Council to perform this function.’
Paragraph 5.1 states:
‘The parties agree to provide the financial resources to the partnership as detailed in the budgets outlined …’
15 With regard to complaints, paragraph 11.5 of the agreement says that complaints about the services provided under the agreement should be dealt with in accordance with the Council’s statutory complaints procedure. However, paragraph 11.5.1 goes on to say that complaints related to matters wholly within the statutory or professional responsibilities of the Trust, and which are not resolved locally, should be dealt with under the Trust’s complaints procedure [9].
16 The Human Rights Act 1998 incorporates into UK law the rights and freedoms guaranteed by the European Convention on Human Rights. Public authorities have a duty under the Human Rights Act to ensure that their actions are compatible with the principles of the Act.
[5] NHS and Community Care Act 1990, section 47(1)(a).
[6] Local Authority Circular (92)15.
[7] Ibid.
[8] Valuing People: A new strategy for learning disability for the 21st century.
[9] Frank was a recipient of both health services and social care. His parents’ complaints encompassed both of these.
