« Previous | Contents | Next »
Listen
Supporting People - Supporting Independent Living: Folder 2 - Part 3: Operational Guidance and Part 4: Financial Guidance
6 Short and Long Term Services
6.1 Introduction
6.1.1 Local authorities will require to make a distinction between 'short-term' and 'long-term' support. Services or individual support packages will be designated short-term or long-term according to the type of support service rather than the wider needs of the user. Where possible, designation will be on a service basis, and may be reviewed as part of the five-yearly service review.
6.2 Key Criteria for Short and Long Term Services
6.2.1 Short term services aim to bring about independent living within two years (disregarding practical delays in securing move-on accommodation) following resolution of a specific need or needs which the supported living arrangement aims to remedy, or following completion of a time-limited programme of support of under two years intended duration.
6.2.2 The service also aims to increase the individual's capacity for independent living (even if fully independent living may not be likely) through a package of time limited housing support. The initial package would be expected to last for less than two years and the support plan envisages a planned move to more independent accommodation thereafter. Where a service offers 'short term' support with accommodation and follow on by outreach that could extend beyond two years these should be considered as two separate 'short term' support packages.
6.2.3 Services will generally be taken to offer support on a short term basis where the service primarily meets such needs as:
- Domestic violence
- Single homeless
- Homeless families
- Drugs / alcohol rehabilitation
- Young vulnerable people
- Ex-offenders
- Refugees
6.2.4 Services, other than those referred to above should be considered "long-term". If a service aims to maintain a limited degree of independent living which is not expected to increase, and may diminish over time, as part of a permanent or open-ended arrangement it should be regarded as a long term service although it might be anticipated that the service user may move on in the shorter term to a service with a higher or lower level of support.
6.2.5 It is likely that services for the following client groups will be considered long term:
- Physical disability
- Learning disability
- HIV / AIDS
- Mental health
- Older people
6.2.6 Where the support offered by the service is categorised as long term (see above), it will be subject to the charging regime. However some long term services may be offered on a short term basis to an individual service user with a short term need. For example, sheltered housing may be offered with a short-term rehabilitative or assessment objective after a stay in hospital. In such cases the service user will be exempt from charges.
6.3 Other Services
6.3.1 The majority of services will fall into the categories above. The rest are likely to fall into the following three categories:
- Services which offer support on both a temporary and long-term basis. In this case, whether users are liable for charges will be decided on a case-by-case basis according to the service users' circumstances.
- Fluctuating support will generally be treated as short term provision. Support will be treated as fluctuating if there are periods (4 weeks) during the last year where no support has been needed or received, or if this is an agreed feature of the support package provided.
- Movement of a service user from temporary to long-term status in mixed support project: support will become chargeable once an open-ended package of long term support is agreed.
6.3.2 Where an individual has multiple needs, once again the criterion for charging will be the intended duration of the specific support offered not according to client group. If the individual is in a service designated as offering short term support, there will be no charge.
6.3.3 Decisions on services will be reviewed as part of the initial service review and thereafter at five yearly intervals.
6.4 Human Rights Act 1998 and Disability Discrimination Act 1995
6.4.1 There is concern that charging for long term services would disproportionately affect those who are older or disabled and that this could amount to discrimination under the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998) or the Disability Discrimination Act (1995).
6.5 The Human Rights Act
6.5.1 Article 14 of the Human Rights Act 1998 states that the "enjoyment of the rights and freedoms set forth in this convention shall be secured without discrimination on any ground ….". A breach of Article 14 of the convention could result in both the individual authority and the Government being liable. However Article 14 must actually breach a specific right. The rights are listed in the convention. Under current legislation there is no right to housing support services. For the local authority or Government to be accused of discrimination under the Human Rights Act a substantive right must be engaged.
6.5.2 It could be argued that by charging for support individuals are being subjected to "inhuman or degrading treatment" under Article 3. There is case law to back this in respect of the local authorities statutory responsibilities to provide care, however the provision of support services is not a statutory responsibility. The power in section 91 of the Housing (Scotland) Act 2001 is by its nature discretionary. Where an individual is likely to face "inhuman or degrading treatment" because they are in a crisis situation they will be receiving 'short term' not 'long term' services. Short term services will not be charged for, so discrimination is not an issue. It is also the case that individuals will be financially assessed for long term services. Those who are financially unable to pay for the services offered will be financially assisted so they are not left in a degrading or inhuman situation.
6.5.3 Although there appears to be no grounds for direct discrimination there is a risk that local authorities could be accused of indirect discrimination. Although all potential users will be financially assessed (therefore no direct discrimination is taking place, whereby a service only financially assesses one client group) this will disproportionately affect older and disabled people. EU and UK law recognises indirect discrimination as a form of discrimination but it is yet to be recognised by the European Court of Human Rights. However, since the ECHR has been incorporated into UK law the opportunity to claim indirect discrimination does exist, but no grounds have been identified.
6.5.4 Grounds for discrimination that are prohibited in the Human Rights Act list "race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status". As yet there is no case law that has shown disability or age as "other status" grounds under which to claim discrimination either directly or indirectly.
6.6 The Disability Discrimination Act
6.6.1 The only provision of the Disability Discrimination Act that seems to be applicable here is section 19(1)(b). This says that it is unlawful for providers of services to discriminate against a disabled person by having a practice or policy which makes it impossible or unreasonably difficult for disabled persons to make use of a service which a service provider makes available or is prepared to make available to other members of the public. For discrimination to arise the service must be offered to other members of the public. Where the service is specifically for disabled people there are no grounds for discrimination. Also, anyone in a charge eligible service will be financially assessed. This will rule out making any service "unreasonably difficult" to access as anyone who cannot financially afford the service will be financially assisted.
6.7 Conclusion
6.7.1 The Scottish Executive will expect local authorities to charge for long term services as described above. Those service users receiving long term services will be financially assessed to ensure all those who cannot afford to access the services are not adversely affected. All those that can afford to contribute towards the cost of services will be expected to do so. Although this will largely affect the older population and those with disabilities they will not be the exclusive users of these services. Local authorities must ensure that in operating the CoSLA charging guidance all user groups are treated equitably. If this is done it would be unlikely that individuals would find grounds for claiming discrimination within the Supporting People charging regime.
« Previous | Contents | Next »