Using the law to develop and improve equipment and adaptation provision
This document provides an overview of the law underpinning equipment and adaptation provision in Scotland. It begins with an explanation of why it is important that equipment and adaptation policies and practices are informed by the law. It goes on to set out in summary form legislation and legal principles, with explanatory comments and illustrative practical examples relevant to equipment and adaptation provision.
The examples are just that and not exhaustive. Apart from covering topical issues, they are intended also to demonstrate generally how the law can be used to think through equipment and adaptations issues and support the policy outlined in the report by the Joint Future Group , Community care: a joint future. The detail represented by the examples is included because:
- they represent the type of issue regularly raised by professionals in the equipment and adaptation field
- detailed decision-making in respect of individuals represents the acid test of whether an equipment and adaptation service is functioning well, and
- it is relatively easy for local authorities and the NHS to make statements of aspiration, less so to get the hard detail right
1.1. Basing policies and practices on the legal framework. There are a number of general points to make about why policies and practices developed and implemented by local authorities and the NHS need to be informed by the law. These points are not about `over-legalising' provision; rather they are about using the law as a tool to support effective policies and practices in the light of Community care: a joint future [Joint Future Group 2000].
1.2. Local authorities and the NHS: public bodies created by and subject to legislation. The very existence of local authorities and the NHS depends on legislation. They are public bodies and therefore creatures of statute; their ability to act depends on duties and powers in legislation. A failure to act in accordance with the legislation is unlawful.
Duties specify what must be done, and powers what may [but does not have to] be done. Even duties to provide services are subject to various conditions being satisfied, such as identification of need by a local authority or the NHS and the application of eligibility criteria for service provision. The courts have also identified two different types of duty. The first comprises a specific duty towards individual people, such as is found in s.2 of the Chronically Sick and Disabled Persons Act 1970. Such a duty is of the strong variety and amenable to enforcement by an individual. The second type of duty is referred to as a general or target duty, which is toward the relevant section of the population in general, but is not easily enforced by any one individual. Such a duty can be found in s.12 of the Social Work [Scotland] Act 1968.
In addition to primary [Acts of Parliament] and secondary [statutory instruments] legislation, local authorities and the NHS are also subject to a considerable quantity of guidance issued by the Scottish Executive and by its predecessor, the Scottish Office. Such guidance fills the gaps left by the legislation, which typically provides a framework only, shorn of excessive detail. Guidance in this context is sometimes referred to as quasi-legislation. Although it is not legislation, a failure to have due regard to such guidance can in some circumstances lead paradoxically to findings of unlawfulness in judicial review cases. In the context of community care, two types of guidance can be distinguished.
First is the stronger form of guidance that states on its face that it is issued under s.5 of the Social Work [Scotland] Act 1968. This section of the 1968 Act stipulates that local authorities must perform their functions under the general guidance of the Secretary of State [eg Circular CCD 8/2001: Single shared assessment of community care needs].
In Robertson v Fife Council, the House of Lords [Lord Hope] expressed his agreement with the view expressed by the English High Court [ R v Islington London Borough Council, ex p Rixon], that this meant that "local authorities are required to follow the path charted … by the guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course".
Second, is `lesser' guidance not issued under s.5 of the 1968 Act, but which local authorities should still have regard to. The NHS, too, must at least have regard to guidance issued to it, although there is no equivalent of the s.5 guidance issued to local authorities.
Case example: guidance and care plans. For example, when a local authority produced an individual care plan for a community care client, the court concluded that, because the plan resembled so little what was envisaged in practice guidance [issued by the Department of Health and the Scottish Office 1991, Care management and assessment: practitioners' guide]. Even though it did not comprise the stronger form of guidance made under statute, the court found that the local authority had unlawfully overlooked it [ R v Islington London Borough Council, ex p Rixon].
Case example: guidance, the NHS and treatment for a disabled person. For example, when a health authority refused to provide beta-interferon treatment for a man with multiple sclerosis, the High Court in England concluded that the health authority had acted unlawfully, because it had disregarded guidance on such treatment issued by the Department of Health. However, it might have been lawful to depart from the policy in the guidance, since it did not bear the badge of mandatory requirement, had the authority at least considered the guidance and formulated clear reasons for the departure from it. But this it had not done [ R v North Derbyshire Health Authority, ex p Fisher].
Therefore, in terms of logic alone, local authorities and the NHS should pay full attention to such legislation and guidance when local policies and practices are being developed. [It should be noted that this is a potentially onerous task for local authority social work services, since they are subject to considerably more detailed and complicated legislation relevant to equipment and adaptations, than are the NHS or local authority housing services].
1.3. Legislation for the welfare of clients and patients. Legislation directly governing local authority and NHS provision is `welfare legislation' and is intended for the welfare of clients and patients. For professionals wishing to assist people to the best of their ability, it is important that such legislation and the attendant guidance is fully utilised, to the extent that it can support their work. This is covered in Section 2 of this document.
However, it is not enough to know what the legislation says, because it is the law courts who interpret what the legislation states and apply it to individual situations. To this end, a number of important legal principles have been developed in what are known as judicial review cases, through which the courts exercise a `supervisory jurisdiction' over the decisions of public bodies [including local authorities and the NHS].
Overall, these principles applied by the courts are generally about legal and administrative fairness in decision-making and can be of great assistance to local policy makers, managers and professionals when local policies and practices are being developed and implemented. If taken seriously by local authorities and the NHS, these principles are likely to benefit clients and patients, and give substance to some of the idealistic but vague aspirations so often uttered in respect of social and health care services. Their application will also reduce the vulnerability of local authorities and the NHS to potential judicial review of their decisions. Judicial review is covered in Section 3 of this document.
A further legal dimension to the decision-making of public bodies comes in the form of the Human Rights Act 1998, and discrimination legislation such as the Disability Discrimination Act 1995 and the Race Relations Act 1976 [ see Section 4 of this document].
Beyond the strictly legal, are the activities of the ombudsman - covering both local authorities and the NHS - who generally becomes involved if complainants have exhausted complaints procedures and are still dissatisfied. Ombudsman investigations into maladministration involving decision-making in general, and equipment and adaptations in particular, provide many lessons in how to make provision fairer [ see Section 3 of this document].
1.4. Health and safety at work legislation: balancing risks, resources and benefits. The implications of health and safety at work legislation - in respect of employers' duties to both employees and non-employees - need careful consideration in terms of the balance to be struck between risk to employees, risk to non-employees, available resources and benefits to clients and patients.
Clearly, a cavalier or piecemeal approach to health and safety may put both employee and non-employee at risk. Equally, at the other extreme, misguided and unrealistic attempts to eliminate all risk both to employees and to non-employees can significantly, and unnecessarily, hamper the provision of services, including equipment and adaptations.
1.5. Law of negligence. The common law of negligence worries some providers and prescribers of equipment and adaptations, anxious that they might be vulnerable to being sued for damages by clients or patients. However, it is essential for staff at all levels to get to grips about the implications of negligence law. A failure to do so cuts both ways. It can lead to that very carelessness which puts clients and patients at risk and might indeed lead to litigation. Equally such a failure can lead to excessive anxiety, and to cautious and defensive practices which neither benefit clients and patients nor are demanded by the law.
1.6. Dispelling the legal myths. Overall then, the practical purpose of setting out the legal framework for equipment and adaptation provision is:
- to dispel the myths about the law which sometimes hinder provision
- to give providers greater confidence by making clear what the law says and what it does not say
- to show how the law can be approached positively to support the sort of change envisaged by the Joint Future Group in Community care: a joint future ; and
- generally to clarify policies, practices and decision-making
The law will sometimes be more helpful than at other times; but, on balance, it is in general likely to be of more assistance to providers than they commonly suppose.
1.7. English and Scottish case law. A certain amount of English case law is included in this document, particularly in relation to judicial review cases about community care decision-making. The reason for this is that there are simply very few Scottish judicial review cases in the community care field.
The status of cases is broadly as follows. If appealed, Scottish judicial review cases progress from the Court of Session [Outer House], to the Court of Session [Inner House], and finally to the House of Lords. English judicial review cases progress from the High Court, to the Court of Appeal and then, as in Scotland, finally to the House of Lords;
Where the legislation is identical or very similar in England and Scotland, English High Court and Court of Appeal cases will be persuasive in a Scottish court; whereas a House of Lords decision will be binding. Conversely, Scottish Court of Session cases [Outer House or Inner House], are persuasive in England, and a Scottish case reaching the House of Lords is binding in England.
For instance, the English House of Lords case of R v Gloucestershire County Council, ex p Barry, about eligibility criteria in community care, is binding in Scotland, because the legislation [s.2 of the Chronically Sick and Disabled Persons Act 1970] is effectively the same. On the other hand, the implications for England of the Scottish case of Robertson v Fife Council, about community care assessment and charging people for care home placements - which also reached the House of Lords on appeal from the Inner House of the Court of Session - are less clear, since there are differences in the Scottish and English legislation.
Nevertheless, with only a handful of community care cases in Scotland, it is essential to include examples from England, in order to gain an idea of how the courts view decision-making by local authorities and the NHS.
1.8. Chronically Sick and Disabled Persons [Scotland] Act 1972. Section 2 of the Chronically Sick and Disabled Persons Act 1970 is effective in Scotland by virtue of s.29 of that 1970 Act, which in turn was inserted by the Chronically Sick and Disabled Persons [Scotland] Act 1972. Therefore, for the sake of brevity, s.2 of the 1970 Act is for the most part referred to in this document - without repetition of this full explanation as to the source of its application to Scotland.