Scottish Government

Using the law to develop and improve equipment and adaptation provision

Chapter 2
Welfare Legislation

The following provides an overview of relevant welfare legislation [and related guidance], illustrated with comments and examples relevant to equipment and adaptation provision.

2.1. Community care legislation. Community care legislation governs the provision of services, including equipment and adaptations by local authority social work services. It sets out in some detail duties concerning assessment of clients and carers, and decisions about services.

2.1.1. Community care assessment: Social Work [Scotland] Act 1968, s.12A. Section 12A contains a duty to assess a person aged at least eighteen years who appears to may be in need of community care services [which include equipment and adaptations] and for whom the local authority must or may provide such services. The local authority, having regard to the results of that assessment, must then decide whether the needs of that person call for the provision of any such services.

The courts have held that a] this duty of assessment sets only a low threshold and therefore most people will be entitled to some form of assessment; b] that it is triggered not by the potential need for community care services which a local authority in fact provides, but instead by the potential need for those services which it could legally provide in principle [see R v Bristol City Council, ex p Penfold, and R v Berkshire County Council, ex p Parker].

For example, certain categories of disabled people or other community care clients who might be in need of equipment - but who will almost certainly not meet eligibility criteria for provision of that equipment because their need will not be judged to be high or severe enough - nevertheless will still have a right to assessment.

2.1.2. If a person is disabled: Social Work [Scotland] Act 1968, s.12A. If during a community care assessment, it appears that the person is disabled, then a decision must be made about the services the person requires under s.4 of the Disabled Persons [Services, Representation and Consultation] Act 1986 [which refers back to s.2 of the Chronically Sick and Disabled Persons Act 1970]. The person must be told that this is happening and what his or her rights are under the 1986 Act.

Indeed, under the Disabled Persons [Services, Consultation and Representation] Act 1986, the duty to assess a disabled person on request [s.4], and the duty to have regard to the ability of a carer to continue to provide substantial care on a regular basis [s.8], remain free-standing duties [but see below for the effect on s.8 of other provisions relating carers].

2.1.3. Taking account of the views of clients and carers: Social Work [Scotland] Act 1968, s.12A. In deciding about what services to provide, the local authority must also take account, so far as is reasonable and practicable, of the views of the person being assessed. In addition, where it appears that a carer is providing a substantial amount of care on a regular basis, then the local authority must take account of the care being provided and, so far as is reasonable and practicable, the views of the carer.

The taking account of the views of both the person being assessed and the carer embodies in legislation what clearly ought anyway to be an essential part of professional good practice. It is difficult to envisage how a community care assessment about equipment or adaptations could in any real sense be adequate if no account were taken of such views. For example, the carer might be injured if no provision is made, might be the person who will actually operate the equipment or adaptation, might point out the effect the equipment or adaptation will have on the functioning rest of the household, might simply be opposed to having any equipment or adaptations - and so on.

Case example: talking and listening to people. The courts could take this obligation seriously. For instance, in England where taking account of a client's views is demanded only in guidance [ Community care in the next decade and beyond: policy guidance, Department of Health 1990] but not in legislation, the High Court nevertheless still found a breach of duty when a social worker did not make sufficient effort to elicit the views of a client with learning disabilities [ R v North Yorkshire County Council, ex p Hargreaves].

2.1.4. Assessing carers. Social Work [Scotland] Act 1968, s.12AA . An informal carer providing or intending to provide substantial and regular care for another person aged 18 or over may, whether or not the carer is a child, request a local authority to assess his or her ability to care.

The local authority must comply with the request if it appears to it that the person cared for is a person for whom it may or must provide, or secure the provision of, community care services. The local authority also has a duty [under s.12AB] to inform such a carer that he or she may be entitled to an assessment under s.12AA.

If it subsequently assesses the cared-for person under s.12A, then it must have regard to the results of the carer's assessment in relation to the cared-for person's assessment and to the decision about services for the cared-for person.

All of this does not apply to carers who provide the care under contract or who are volunteers for a voluntary organisation.

Where such an assessment is made, s.8 of the Disabled Persons [Services, Consultation and Representation] Act 1986 does not apply - ie the duty to `have regard' to the ability of the carer to provide care when an assessment is made under s.4 of the 1986 Act.

The ability of a carer to care, either at all or safely, may in some circumstances depend very much on the provision of equipment and adaptations - for the community care client. These statutory provisions relating to carers therefore give assessing professionals an additional tool when they are making a case for the provision of equipment or adaptations.

2.1.5. Taking account of NHS provision: Social Work [Scotland] Act 1968, s.12A. If it appears to the local authority that a person may need services provided by the NHS, then the local authority must notify the NHS "and shall request information from them as to what services are likely to be made available" by the NHS. The local authority must then take account of this information when carrying out its duty of assessment and decision about provision.

This provision is clearly consistent with the legislation concerning joint working between local authorities and the NHS [contained in the Community Care and Health [Scotland] Act 2002], with single shared assessments to be operated by local authorities and the NHS [Circular CCD 8/2001], and with the joining up of equipment and adaptation services as outlined in Community care: a joint future [Joint Future Group 2000].

2.1.6. General welfare services: Social Work [Scotland] Act 1968, s.12. There is a general duty on local authorities to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area. In relation to this, there is a duty to make arrangements and to provide or secure the provision of such facilities [including the provision of or arranging for the provision of residential and other establishments] as they may consider suitable and adequate. Such assistance may be given in kind or in cash to [or in respect of] any relevant person.

2.1.6.1. Relevant person. The relevant person condition has to be satisfied twofold. First, he or she must be somebody in need who is not less than eighteen years of age. A person in need is someone who

1. needs care and attention arising from infirmity, youth or age, or
2. suffers from illness or mental disorder or is substantially handicapped by deformity or disability, or
3. needs care and attention arising from drug or alcohol dependency or from release from prison or other type of detention.

Second, a relevant person is someone who requires "assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority on a later occasion".

In addition, before giving any assistance in cash to a relevant person, the local authority must have regard to the person's "eligibility for receiving assistance from any other statutory body and, if he is so eligible, to the availability to him of that assistance in his time of need".

2.1.6.2. Nature of the general duty. The above general duty in s.12 of the 1968 Act is, in respect of any individual client, weaker than the more specific, individual duty contained in s.2 of the Chronically Sick and Disabled Persons Act 1970. The courts have held that it is very much more difficult to enforce such general, as opposed to specific, duties [see eg Lord Clyde's comments in R v Gloucestershire County Council, ex p Barry].

2.1.6.3. Equipment and adaptations. Section 12 does not of course contain reference to equipment or adaptations although the word `assistance' is clearly broad enough to cover these.

The client group covered by section 12 extends beyond the chronically sick people, disabled people or people with a mental disorder covered in Scotland by s.2 of the Chronically Sick and Disabled Persons Act 1970 [see s.29 of the 1970 Act]. Thus in the case of people not categorised by the local authority as chronically sick or disabled or mentally disordered, but as nevertheless in need of equipment or adaptations, provision would need to be made under the 1968 Act rather than the 1970 Act.

2.1.6.4. Advice and guidance. The terms `advice' and `guidance' could clearly be relevant to the advice-giving and information functions of an equipment and adaptation service - as envisaged by Community care: a joint future [Joint Future Group 2000].

2.1.6.5. Cost-effectiveness. The dual reference in s.12 of the 1968 Act to the giving of assistance in kind, if a failure to do so would cause greater expense, could be used to support the provision of equipment and adaptations - since there is a strong argument that they are cost-effective ways of meeting people's needs.

2.1.7. Equipment and adaptations: Chronically Sick and Disabled Persons Act (CSDPA) 1970, s.2. Section 2 of the 1970 Act is effective in Scotland through the Chronically Sick and Disabled Persons [Scotland] Act 1972]. It applies potentially to any chronically sick and disabled person or person with a mental disorder, to whom s.12 of the Social Work [Scotland] Act 1968 applies - or, if the person is under 18 years of age, to any disabled child to whom s.2 of the Children [Scotland] Act 1995 applies.

These conditions established, if the local authority is satisfied both that the person has a need and that it is necessary for the local authority to meet that need, then it has a specific, enforceable duty toward the individual person to make arrangements for various services - including equipment and adaptations:

1. "the provision of practical assistance for that person in his home
2. the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities
3. the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him
4. the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority [under s.12 of the 1968 Act or s.23 of the 1995 Act] or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements
5. the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience
6. facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise
7. the provision of meals for that person whether in his home or elsewhere
8. the provision for that person of, or assistance to that person, in obtaining, a telephone and any special equipment necessary to enable him to use a telephone"

2.1.7.1. Range of services and implications for equipment and adaptations. The full list of services is given above for two reasons. First, whilst it is important in any policy initiative to focus on the main matter in hand - in the context of this document, the provision of equipment and adaptation services - it is also at the same time imperative to remember that such services are a part of community care more generally. As Community care: a joint future [Joint Future Group 2000] states, equipment and adaptation services should be integrated with the rest of community care services.

Second, although paragraph e] above appears to be the relevant paragraph for equipment and adaptations, in fact other paragraphs might also contain equipment implications in some circumstances - for instance, a], c] and f].

2.1.7.2. Need, and necessity to meet the need, for equipment and adaptations. The courts have held, in a major judicial review decision [ R v Gloucestershire County Council, ex p Barry] binding in Scotland as well as elsewhere in the United Kingdom, that in determining what constitutes need and necessity, that a local authority may apply eligibility criteria. Such criteria, in part at least, may be based on the resources available to the local authority. However, in setting the criteria [and re-setting them, for example, from year to year], an authority should conduct a balancing exercise, weighing up the cost of providing services against the needs of disabled people. Thus, although such criteria can be more or less strict, authorities still have to show that they are based on just such a balancing exercise.

Nevertheless, once an individual person has been judged to meet the criteria as to both need and necessity, then the duty to meet the need [within a reasonable time] is absolute - and at this stage a lack of resources is no defence to non-provision. However, if the local authority has identified more than way of meeting the assessed need, then it is entitled to offer the cheapest option, so long as it can demonstrate that this option will genuinely meet that assessed need [ R v Gloucestershire County Council, ex p Barry].

The requirement that both need, and a necessity to meet that need, be established was in fact clearly stated in the original Scottish Circular issued about the 1970 Act and the Chronically Sick and Disabled Persons [Scotland] Act 1972 [Circular SW12/1972].

Local authorities will have to make a judgement about the level at which to set criteria - and the consonance of any such criteria with an effective equipment and adaptations service as envisaged in Community care: a joint future [Joint Future Group 2000].

2.1.7.3. Implications for equipment and adaptation services of the legal rules about need and necessity. For example, a person might be assessed by the local authority as needing an expensive adaptation, which is the only way the local authority has identified of meeting that person's need. In the absence of an alternative source of provision - for example, a discretionary home improvement grant under the Housing Act 1987- then the local authority would be obliged to assist with meeting the need under s.2 of the Chronically Sick and Disabled Persons Act 1970.

Similarly, if under housing legislation a disabled person were offered alternative housing instead of adaptation of the existing home, it would fall to the local authority to decide whether a duty to adapt still arose under the 1970 Act. Considerations might be whether the alternative accommodation was a reasonable way of meeting the person's needs, and whether the person's refusal of it was reasonable.

2.1.7.4. More than one option to meet a need. On the other hand, for example, a local authority might assess various personal care matters and identify three different service options to meet a person's need - for instance, a downstairs extension, stairlift to the existing bathroom or a strip wash and commode in the living room. In principle, the authority could offer the cheapest option, so long as it could maintain that the cheapest option will indeed meet the need [for this principle judicially explored, see the English Court of Appeal decision: R v Lancashire County Council, ex p RADAR].

However, in this last example, it would be for assessing professionals to ask themselves the circumstances in which they are - or aren't - prepared to argue on professional grounds that strip washes and commodes in living rooms are adequate ways of meeting certain people's needs. This is an important question to ask, because although community care assessments in general take place within the context of administrative policies and eligibility criteria, professional judgement still carries considerable weight and remains a crucial part of identifying needs and options to meet those needs.

2.1.7.5. Meeting a need within a reasonable time. Where no time limits are specified in legislation, the legal expectation is that a duty will be performed within a reasonable period of time - in effect without undue delay. However, what constitutes undue delay will generally depend on all the circumstances of the case; in the community care context this will clearly be linked to urgency and to the nature of the need involved.

2.1.7.6. Judicial decisions about waiting times for community care services. The courts have considered waiting times only sparingly.

Case example: waiting time. In Scotland a delay of several months in funding a care home placement was held to be a breach of duty in the Outer House of the Court of Session. The judge did add that if, contrary to his view, waiting times did indeed have a part to play in the allocation of scarce resources, then at the very least there should have been a process of prioritisation - which in this case there was not [ MacGregor v South Lanarkshire Council].

Case example: waiting time. In the English High Court, two years after a community care assessment of a woman who had been temporarily placed in NHS premises for assessment, the local authority had still made no decision about, nor provision for, her long-term future. The judge found that, although the local authority had an undoubted discretion to make short-term and interim decisions, this could not replace the need to make a decision about that long-term future [ R v Sutton London Borough Council, ex p Tucker].

2.1.7.7. Local government ombudsmen: decisions about waiting times for equipment and adaptations. Though not amounting to judicial consideration, the local government ombudsmen in England have considered many times complaints about waiting times both for assessment for, and provision of, equipment and adaptations [ see 3.2.1].

[The Scottish local government ombudsman has not, at least in completed investigations, explored this issue to anything like the same extent. Whatever the reason for this, it would appear not to be because the phenomenon has not existed in Scotland [see the Scottish Executive's [2001] report, Equipment and adaptations services in Scotland: a survey of waiting times for social work provision].

2.1.7.8. Identity of assessors for equipment and adaptations. It should be noted that the legislation does not state who should be assessing for, and prescribing, equipment and adaptations. There is an assumption that if a public body has a duty, then it will perform it competently; the bottom line is that it does not matter who assesses for and prescribes equipment and adaptations, so long as they are competent to do so.

[Thus, for example, the reason why so many occupational therapists work for local authorities is that their expertise has been perceived to be required for the competent discharge of local authority responsibilities relating to disabled people, equipment and adaptations. However, this is not to say that, depending on the complexity of a person's needs, that other staff cannot competently undertake work relating to equipment and adaptations].

2.1.7.8.1. Competence, assessment and changes to equipment and adaptation services. This legal position concerning competence supports the point made in Community care: a joint future [Joint Future Group 2000] that various - including unqualified - staff can offer advice on simple equipment and adaptation solutions if they are appropriately trained. The reason for exploring the widening of roles would be precisely to bring benefits for the people whom local authorities and the NHS serve.

This sort of issue will have to be sensibly addressed if, as recommended in the same document, occupational therapy expertise is to be targeted and used more effectively, and other staff [qualified or otherwise] are to be involved. The cultural change that this represents for staff should not be underestimated in terms of their both giving up, and taking on new, responsibilities. Thus, clarity of responsibility and of competencies will be required - in respect of both qualified and unqualified staff, including occupational therapists, physiotherapists, nurses, speech and language therapists, therapy and nursing assistants, equipment store staff, van/delivery drivers, nurses, nursing assistants, social workers, social work assistants, general practitioners etc.

Example: occupational therapy assistants and more complex solutions. For example, in some areas local authority occupational therapy assistants have received training in more complex equipment and adaptation solutions and, with support from their local authority occupational therapist colleagues, are able to do more in that particular field than NHS therapists [with expertise in other specialist fields of work] could do.

2.1.7.9. Self-assessment for equipment and adaptations. There is sometimes uncertainty about the legality and practicality surrounding what is known as `self-assessment' - that is when a person is asked to articulate their own perceived needs.

To the extent that self-assessment is an important part of the overall assessment decision of a local authority, it simply reflects basic professional and legal points. Professional, because it is difficult to see how assessing staff can make decisions about people's needs for equipment and adaptations without listening to, and understanding, their perceptions, views and wishes. Legal, because self-assessment can be viewed as one way, as demanded in s.12A of the Social Work [Scotland] Act 1968, of ensuring that people's views are taken account of, when a local authority reaches it decision.

Community care: a joint future [Joint Future Group 2000] states that people should be able to decide for themselves about 'simple' equipment and adaptations; and previous Scottish Office guidance stated that some older people could assess their own needs accurately - for items such as special cutlery or a raised toilet seat - and that authorities should accept self-assessment where the request was reasonable and resources were available [Circular SWSG 10/1998, Community care needs of frail older people: integrating professional assessments and care arrangements, par a 11].

2.1.7.10. Self-selection of equipment and minor adaptations. Self-selection by people of 'simple' equipment and adaptation solutions is suggested by Community care: a joint future [Joint Future Group 2000] as one option for reducing inefficiencies and improving choice for people. However, sometimes professionals express anxiety, both legal and practical about such schemes. Legally, the position in welfare legislation is as follows.

When people self-select certain equipment and adaptations - assisted by advice and information provided by local authority staff [or those acting on behalf of the local authority] - the process could, legally, be regarded as a simple community care assessment followed by provision of a simple service. Indeed, the English High Court has stated that it is obvious that the level and nature required of community care assessment will vary according to the circumstances of the particular case [ R v Bristol City Council, ex p Penfold]. Likewise, different levels of assessment have always been envisaged by policy guidance [Scottish Circulars: SWSG 11/91 on assessment and care management, and CCD 8/2001 on single shared assessment].

Alternatively, to the extent that a self-selection scheme operates without any form of assessment or decision-making by the local authority, provision might not legally come under s.2 of the Chronically Sick and Disabled Persons Act 1970 [because the local authority would not be making a decision about a particular individual person]. Instead, such a scheme might be better characterised as coming under a general scheme for assistance of the local population within s.12 of the Social Work [Scotland] Act 1968 [or alternatively under some other general empowering provision of Scottish local government legislation].

2.1.7.11. Assessed need against client preference. Community care guidance points out that people's preferences and views about their situation are crucial to good assessment [Circulars SWSG 11/91 on care management and assessment; and CCD 8/2001 on single, shared assessment]; indeed s.12A of the 1968 Act now demands that the client's views be taken account of in the assessment.

However, the legislation is clear that ultimately it is the local authority which must make the final decision about a person's needs and how to meet those needs. For instance, if a client expresses a preference for an equipment or adaptation solution significantly more expensive than the local authority thinks is needed, then the authority is under no obligation to bow to that preference - although it must take proper account of it.

Similarly, if the solution preferred by the client goes beyond the level of acceptable risk [in terms of health and safety] which the authority is prepared to contemplate, then the authority is entitled and arguably obliged to refuse to approve that solution. Even so, it should be noted that identification of acceptable levels of risk is by no means always easy, hinging as it sometimes does not only all the individual circumstances of the client or patient situation, but also the approach of the assessing professional.

2.1.7.12. Adaptations in the home. The wording relating to adaptations in s.2 of the Chronically Sick and Disabled Persons Act 1970 is somewhat convoluted. It comprises the making of arrangements for the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home.

It has sometimes been suggested [though it has not been judicially considered] that this might mean that the local authority would only ever have a duty to provide partial or arms-length assistance. However, the better view is probably that, depending on the person's need, the duty could either mean partial or full-blown assistance. For an example of a similar discussion and conclusion about the implications of the word `facilitate' in paragraph f] of s.2 of the 1970 Act concerning holidays, see the English High Court case of R v North Yorkshire County Council, ex p Hargreaves no.2.

Although not judicially considered hitherto, the word `home' in the 1970 Act could reasonably be interpreted as including the curtilage of a dwelling, and thus the garden, for example. This would also mean that an adaptation involving an extension to the dwelling - whilst not literally within the present four walls - would be within the curtilage, and thus an adaptation `in the home'. [Indeed, by way of comparison with other legislation, it should be noted that the word `house', for the purposes of home improvement grants under the Housing [Scotland] Act 1987, is expressly defined in s.338 of that Act to include yard, outhouse and garden].

2.1.7.13. Additional facilities designed for the person's greater, safety, comfort or convenience. The term `additional facilities' is drawn in very wide terms and can clearly cover the provision of equipment, as well as anything else which could be reasonably described as a facility.

One issue sometimes raised in practice is whether the word `additional' means a facility additional to what a person already has, or [more narrowly] means a facility which is additional in the sense that a non-disabled person would not require it. Clearly, the first approach goes considerably wider, whereas the latter would restrict provision to 'disability' equipment only and mean that local authorities would not be under pressure, as they sometimes put it, to furnish a disabled person's house with `ordinary' equipment. The courts have not interpreted the meaning of `additional' in this context, but local authorities may need to take a view on how they wish to approach it. Even the word `designed' does not appear necessarily to clarify the issue, since it could presumably be taken to mean, more narrowly, `designed by the manufacturer' - or, more broadly, `intended by the local authority' - for the person's greater safety, comfort or convenience.

Example: bread making machine. A disabled woman of Asian origin might be unable to continue to cook for her family, and so request a machine to make rotis [a type of bread], which are a staple for people of her cultural background [see the example given in: Vernon A. User-defined outcomes of community care for Asian disabled people. Policy Press, 2002,p.19]. Such a machine would in principle be ruled out if the local authority took the narrow approach and insisted that it could only ever provide equipment which had been purpose- made for disabled people. Whereas if it took the wider view of what `additional facilities' meant, it would at least be able to consider provision of such a machine - which, a luxury for some people, might be a necessity for others.

It should also be noted that local authorities are under a duty to consider not just safety, but also comfort and convenience.

2.1.7.14. Instructions, maintenance, repair, replacement, review, monitoring, recall of equipment and adaptations. Arguably such matters are integral to the meeting of a person's needs under community care legislation. For instance, community care legislation implies, and guidance spells out, that people receiving community care services need to be reviewed [Scottish Office and Department of Health 1991, Care management assessment: practitioners' guide,p.83; and Circular CCD 8/2001 on single shared assessment] - and this will include review of at least some people's equipment and their use of it.

However, such matters concern health and safety and so are dealt with below in greater detail under health and safety at work legislation and under negligence [ see Parts 5 and 6 below].

2.1.7.15. Divisions of responsibility for equipment and adaptations. Divisions of responsibility for equipment and adaptation provision under social work, housing and NHS legislation are considered below.

2.1.8. Duty to provide information and to individuals CSDPA 1970, s.1. There is a general duty on local authorities to publish from time to time general information about services. There is also a specific duty to inform individual service users of other relevant services [effective in Scotland through the Chronically Sick and Disabled Persons [Scotland] Act 1972.

These duties support the policy in Community care: a joint future [Joint Future Group 2000] that information must be produced for the public on equipment and adaptation services.

2.1.9. Domiciliary services and laundry facilities: Social Work [Scotland] Act 1968, s.14. Local authorities are under a duty to provide, on a scale adequate for the area, domiciliary services for households where there are people in need [defined as for s.12; see above].

Such services are defined as provided in the home, and as appearing to the local authority to be necessary to enable a person to maintain as independent an existence as is practicable in the home [s.94].

Under s.14, there is a linked power to provide laundry facilities for those households for which such domiciliary services either are, or could be, provided. Laundry facilities could clearly include equipment and adaptations - such as a washing machine - as well as other forms of service.

2.1.10. Care homes. For residents in care homes, a question likely to arise is what equipment and adaptations the care home should provide under statute [Regulation of Care [Scotland] Act 2001 and derivative regulations and care standards] and within its basic fees - and what equipment [though not normally adaptations] should be provided by local authority and NHS community equipment services separately and additionally, on loan to individual residents. [The Scottish Executive may issue standards about this in the future: the matter was adverted to in the consultation document, The future of care homes in Scotland, Scottish Executive 1999].

Example: wheelchair provision in a care home. A care home might provide as an integral part of its services, a pool of wheelchairs for the general use and transportation of residents. Where an individual resident uses a wheelchair for most of the day and requires specific features and perhaps special seating, the NHS wheelchair service should provide the wheelchair on loan to that individual resident.
It is sometimes suggested that people resident in care homes are no longer living in their own home, and this can be used as a criterion for the NHS to refuse provision. As a matter of policy and good practice this is unhelpful. As a matter of law, it would be arguable that for the NHS in any locality to refuse, as a matter of inflexible rule, to provide care home residents with a wheelchair, would amount to an unlawful fettering of discretion - i.e. unlawful application of a rigid policy [ see 3.1.1]. For the NHS to expect care homes to provide specialist, individualised wheelchairs [perhaps with special seating] is not realistic; it would be tantamount to the NHS abandoning some care home residents to potential immobility, discomfort, harm and pain.

In the present absence of detailed, central guidance from the Scottish Executive, it would clearly be beneficial if, at local level, local authorities, the NHS and care homes could reach consensus on their respective responsibilities for equipment in care homes. Such consensus could be reached by a combination of general agreement, contract terms, and specification in individual residents' care plans.

2.1.11. Direct payments: Social Work [Scotland] Act 1968, ss.12B and 12C. Local authorities have a power under the 1968 Act to make direct payments to certain groups of people including, currently, disabled adults aged 18 years or over. From April 2004, it is intended that, as far as adults are concerned, payments be widened beyond disabled people to all community care client groups. From June 2003, the power to make a payment to eligible people was converted to a duty.

Direct payments are made in lieu of community care services if a person consents and is able to manage the payment, with or without assistance. The person is then able to purchase his or her own services. [From June 2003 - through s.7 of the Community Care and Health [Scotland] Act 2002 - guardians and attorneys [as defined under the Adults with Incapacity [Scotland] Act 2000] are able to consent to, to receive and to alter direct payments on behalf of the person without capacity to do so themselves].