| CIRCULAR: SWSG5/93 5389
17 March 1993
Dear Sir/Madam
SOCIAL WORK (SCOTLAND) ACT 1968 (CHOICE OF
ACCOMMODATION) DIRECTIONS 1993
Summary
Directions have been made by the Secretary of State for
Scotland concerning the rights of individuals to choose where they receive residential
care under new community care arrangements. A copy of the directions is attached, together
with guidance on its operation.
Background
1. The directions are intended to ensure people have a
genuine choice over where they receive residential care. The directions are described in
detail in the attached guidance.
Action
2. Authorities should ensure that they are in a position to
comply with the requirements of the directions when they come into force on 1 April 1993.
Enquiries
3. Enquiries about this circular should be addressed to
Neil Rennick, Social Work Services Group, Room 52, James Craig Walk, Edinburgh EH1 3BA
(Telephone 0131 244 5389).
GUIDANCE
SOCIAL WORK (SCOTLAND) ACT 1968 (CHOICE OF
ACCOMMODATION) DIRECTION 1993
Purpose
1. Under new community care arrangements social work
authorities will increasingly make placements in residential and nursing homes. This
direction is intended to ensure where that happens individuals are able to exercise a
genuine choice over where they live.
2. It also gives individuals the right to enter more
expensive accommodation than they would otherwise have been offered if there is a third
party willing and able to pay the different in price for the period for which the
individual is in the home.
3. This direction is intended to formalise the best
practice which most authorities would in any case have adopted. It sets out the minimum
that individuals should be able to expect. It is not, however, intended to mark the limits
of the choice that authorities may be able to offer people. Even where not required to act
in a certain way by this direction, authorities should exercise their discretion in a way
that maximises choice as far as possible within available resources.
Summary
4. If, after an assessment of need, an authority decides to
provide residential care for a person either permanently or temporarily, it will make a
placement on his (or her) behalf in suitable accommodation.
5. If, after evaluation of options, the individual
concerned expresses a preference for particular accommodation ("preferred
accommodation"), the authority must arrange for care in that accommodation, provided:
* the accommodation is suitable in relation to the
individual’s assessed needs
* to do so would not cost the authority more than it would
usually expect to pay for accommodation for someone with the individual’s assessed
needs
* the accommodation will be available
* the person in charge of the accommodation is willing to
provide accommodation subject to the authority’s usual terms and conditions for such
accommodation.
6. If a resident requests it, the authority must also
arrange for care in accommodation more expensive than it would normally fund provided
there is a third party willing and able to pay the difference between the price the
authority would usually expect to pay and the actual price of the accommodation.
Preferred Accommodation
7. As with all aspects of service provision, subject to an
authority’s assessment of need and its decision on what type of service it can
arrange, there should be a general presumption in favour of people being able to exercise
choice over the service they receive. The limitations on authorities’ legal
obligation to provide preferred accommodation set out in the direction are not intended to
deny people reasonable freedom of choice, but simply to ensure that authorities are able
to fulfil their obligations for the quality of service provided and for value for money.
The terms of the direction are explained more fully below. If for any reason an authority
decides not to arrange a place for someone in his preferred accommodation it must have a
clear and reasonable justification for that decision which relates to the criteria of the
direction; it must inform the individual, and his carer, if appropriate, of its decision
and justification.
Suitability of accommodation
7.1 Suitability will depend on the authority’s
assessment of individual need. Each case must be considered on its merits.
7.2 Consequently accommodation will not necessarily be
suitable simply because it satisfies registration standards. On the other hand
accommodation will not necessarily be unsuitable simply because it fails to conform with
the authority’s preferred model of provision or meet the letter of a standard service
specification used by an authority to purchase care.
7.3 This direction does not require an authority to
contract with any accommodation where, for any reason, it is prevented by law from doing
so.
Price
7.4 The test should be whether the price of preferred
accommodation is more than the authority would usually expect to pay when purchasing
residential care for someone with the same assessed needs as the individual concerned.
This is not necessarily the same as the price that the authority would in fact have paid
had the particular individual not decided to exercise his right to choose, since that
might be either higher or lower than the authority would usually pay. For example, the
cost of a particular placement at a given time might be determined by the fortuitous
availability for whatever reason of a place below the cost that an authority would usually
expect to meet, or else by the temporary unavailability of accommodation at the
authority’s usual price.
7.5 The prices being compared should be gross prices before
income from charging. Given the different amounts that authorities will recover from
individuals by way of charges, it would not be possible to determine a net price which an
authority would normally expect to pay.
7.6 Prices will vary around the country. There may be
circumstances where an authority may consider that a move to another part of the country
is an integral part of an individual’s assessed needs (eg to be near a relative), and
therefore one of the factors to be considered in determining what the authority would
usually expect to pay.
7.7 Prices may also vary according to the type of care. For
example, the price an authority might usually expect to pay for respite care might be
different from its usual price for permanent care, the price for an adult with learning
difficulties will depend on his support needs.
7.8 An authority must tell the individual what price it
would normally pay and indicate what accommodation is available at that price.
Availability
7.9 A place in an individual’s preferred accommodation
may not always be available immediately. If the client wishes, an authority should where
necessary be willing to consider making temporary or intermediate arrangements which
satisfy his assessed needs, until a place becomes available.
Conditions
7.10 In order to ensure that they are able to exercise
proper control over the use of their funds, authorities need to be able to impose certain
technical conditions, for example in relation to payment regimes, review, access,
monitoring, audit, record keeping, information sharing, insurance, sub-contracting etc.
7.11 The contract conditions required of preferred
accommodation should be broadly the same as those it would impose on any other similar
operation. Stricter conditions should never be used as a way of avoiding a placement. As
with suitability, account should be taken on the nature and location of the accommodation.
There may be reasons why it would be reasonable to adapt standard conditions and
unreasonable not to. For example, authorities should take into account the fact that homes
in other areas, or which take residents from many areas, may have geared themselves to the
normal requirements of other authorities.
7.12 In setting their usual terms and conditions,
authorities are reminded that Part II of the Local Government Act 1988 stipulates that
they may not specify non-commercial considerations in contracts. Non-commercial
considerations are defined in section 17(5) of that Act (See Annex A).
More expensive accommodation
8. The direction also places a duty on authorities to make
placements in more expensive accommodation than they would usually, provided there is a
third party able and willing to pay the difference. A third party might be a relative (but
not a liable relative, see 11.15), or another source.
9. This direction applies only where a resident explicitly
chooses to enter accommodation other than that which the authority offers him, and where
that preferred accommodation is more expensive that the authority would usually expect to
pay.
10. This direction does not mean that authorities may set
an arbitrary ceiling on the amount they are willing to contribute towards residential care
and require third parties routinely to make up the difference. If challenged an authority
would need to be able to demonstrate that its usual cost would be sufficient to allow it
to provide people with the level of service they could reasonably expect without third
party contributions.
11. Similarly, the direction is not intended to allow
authorities to require third party contributions in cases where the authority itself
decides to offer someone a place in unusually expensive accommodation, for example, where
there is at the time in question no suitable accommodation available at the
authority’s "usual price".
Responsibility for paying for accommodation
11.1 When making arrangements for residential care for an
individual under the Social Work (Scotland) Act 1968, an authority is responsible under
section 26(2) of the National Assistance Act 1948, for the full price of that
accommodation. Therefore where an authority places someone in more expensive accommodation
it must contract to pay the accommodation’s fees in full. It has the power to recover
a refund from the person for whom the accommodation is provided, in terms of section 26(2)
of the National Assistance Act 1948, as amended by section 42(3) of the NHS and Community
Care Act 1990 (these provision are applied for the purposes of accommodation provided
under the 1968 Act by section 87 of that Act). The third party’s contribution will be
treated as part of the resident’s income for charging purposes and the authority will
be able to recover it in that way.
11.2 The prospective resident in these cases will therefore
need to demonstrate that there is a third party able and willing to pay the difference
between the authority’s normal price and the accommodation’s actual fees.
11.3 In order to safeguard both residents and authorities
from entering arrangements which are likely to fail, the third party must reasonably be
expected to be able to continue to contribute for the duration of the arrangements.
Authorities should assure themselves that there is every chance that the third party will
continue to have the resources to make the required payments.
11.4 Authorities will be aware that under Section 26(3A) of
the National Assistance Act 1948 (as inserted by the NHS and Community Care Act 1990), it
is open to them to agree with both the resident and the person in charge of his
accommodation that instead of paying a contribution to the authority, the resident may pay
the same amount direct to the accommodation, with the authority paying the difference. In
such a case the third party would also pay the accommodation direct on behalf of the
resident. However, it should be noted that, even where there is such an agreement for the
resident to make direct payments, the authority continues to be liable to pay the full
price of the accommodation should either the resident or relative fail to pay the required
amount.
11.5 Authorities should also note that because arrangements
under section 26(3A) of the 1948 Act require the agreement of all parties, it would not be
reasonable for them to refuse someone his preferred accommodation on the grounds that the
individual (or his preferred accommodation) would not enter such an arrangements.
11.6 Authorities must be willing to include, in contracts,
agreements to pay interest where payment of fees is delayed.
The amount of the third party contribution
11.7 The amount of the third party contribution should be
the difference between the actual fee for the accommodation and the amount that otherwise
the authority would usually have expected to pay for someone with the individual’s
assessed needs. In determining this amount the authorities should apply the same
consideration as above (7.4-7.8), except that in these cases it will need to state a
precise figure in each case.
11.8 The amount of the third party contribution should be
calculated on gross prices, ie the difference between the preferred accommodation fees and
the fees that an authority would usually expect to pay. The fact that a resident would not
have been able to meet the full price of the accommodation that the authority would
otherwise have arranged does not affect his ability to benefit from this part of the
direction. When the third party’s contribution has been taken into account, the cost
net of charges to an authority of the more expensive accommodation should be the same as
it would have been in accommodation at the authority’s usual price.
Price Increases
11.9 Arrangements between the authority, resident and third
party will need to be reviewed from time to time to take account of changes to the
accommodation’s fees and also changes to the amount the authority would usually
expect to pay. These may not change at the same rate, and residents and third parties
should be told that there cannot be a guarantee that any increases in the
accommodation’s fees will automatically be shared evenly between the authority and
third party should the particular accommodation’s fees rise more quickly than the
costs the authority would actually expect to pay for similar people. An authority may find
it useful to agree with the resident and third party that the third party’s
contribution will be reviewed on a regular basis.
Responsibilities of residents and third parties
11.10 Authorities should make clear to residents and third
parties the basis on which arrangements are to be made when they seek to exercise their
right to more expensive preferred accommodation. It should be clear from the outset to the
resident, third party and person providing the accommodation
* that failure to keep up payments will normally result in
the resident having to move to other accommodation
* that an increase in the resident’s income will not
necessarily lessen the need for a contribution, since the resident’s own income will
be subject to charging by the authority in the normal way
* that a rise in the accommodation’s fees will not
automatically be shared equally between authority and third party
* that if the accommodation fails to honour its contractual
conditions, the authority must reserve the right to terminate the contract.
11.11 Authorities may wish to consider making a binding
legal agreement with the third party to this effect.
Suitability and Conditions
11.12 The criteria for suitability, and willingness to
provide on the basis of normal conditions should be applied in the same way as for other
preferred accommodation (paragraph 7.1).
11.13 An exception to this is that it would be reasonable
to expect providers entering this kind of arrangement to agree to do so on the basis that
the authority has the right, subject to notice, to terminate the contract should the third
party’s payments cease or cease to be adequate.
11.14 If following an assessment an authority decides
residential accommodation without nursing should be provided, but the individual expresses
a wish for particular accommodation with nursing the authority should assess whether that
accommodation would be suitable (and be able to justify its assessment). The authority
would not need to pay more than it would normally pay for a residential care home.
Liable relatives
11.15 Because they may already be obliged to contribute to
the cost of accommodation these arrangements do not apply to relatives liable to
contribute to the cost of accommodation under section 42 of the National Assistance Act
1948. In other words, for the purposes of this direction such people cannot act as third
parties for the care of a relative to whose care they are already obliged to contribute.
11.16 However, although the direction imposes no legal duty
to do so, there is no reason why authorities should not enter into similar arrangements
with liable relatives who have the resources both to meet their liability (which may
result in the local authority having no need to contribute) and make an additional third
party payment. Indeed, there is no reason why authorities should not, at the request of
the resident, arrange more expensive accommodation if he can from his own resources afford
to pay the additional cost.
People already resident in residential care
12. People already placed by an authority in residential
accommodation have the same rights under this direction as those who have yet to be
placed. An individual who informs an authority he wishes to move to different or more
expensive accommodation may seek to do so on the same basis as anyone about to enter
residential care for the first time.
People who are unable to make their own choice
13. There will be cases in which prospective residents are
unable to express a preference for themselves. Authorities should take into account the
preferences expressed by the resident prior to his becoming incapable, his career and the
resident’s personal representative, where applicable; but should act in the best
interests of the resident.
Effect on tendering, effect on block contracting
14. Many authorities will already be consulting on, or
involved in formal tendering and contracting procedures. As this direction is intended
simply to formalise best practice, there should be no conflict between it and arrangements
authorities have already made.
15. However, authorities will need to review their
arrangements to see if any further action is needed. In particular, where authorities have
already published details of their contracting policies, they will need to inform
prospective providers of any amendments to that policy required in the light of this
direction.
16. For example, where authorities are conducting, or have
completed, exercises designed to draw up closed lists of approved suppliers they will need
to make it clear that as a result of this direction such a list cannot now be regarded as
an exhaustive statement of those providers with whom the authority will contract. It would
not be reasonable for an authority to use as a test of the suitability of accommodation
its presence on, or absence from, a previously compiled list of approved suppliers. The
direction does not, however, prevent an authority having a list of preferred providers
with which it will contract where a potential resident expresses no preference for
particular accommodation, nor from recommending such providers to prospective residents.
Information
17. For individuals to be able to exercise genuine choice
they need information about the options open to them. They should be given full, fair and
balanced information with which to make the best choice of accommodation. This should
include information about the quality of homes (including local authorities own homes),
including information which is available from the arm’s length inspection units.
Authorities should explain to individuals their rights under this direction. Individuals
should be told explicitly that they may allow the authority to make a placement decision
on their behalf, that they may choose from an approved list (if the authority operates
such a system) or if they wish that they are free to choose any accommodation which is
likely to meet their needs subject to the constraints set out in this direction.
Authorities might consider including this in a leaflet for prospective residents and their
carers.
18. The general public should be provided with information
on their entitlement to choose accommodation, this will be the part of the guidance to be
published or care services and assessment procedures (see circular SWSG11/91).
Monitoring
19. A forthcoming Scottish Office circular will set out
arrangements for monitoring progress on implementing the community care changes. Attention
will be given to assessing the extent to which choice for service is being facilitated.
Complaints
20. Complaints about the application of this direction and
decisions taken in individual cases will fall within the scope of authorities’
statutory complaints procedures. Authorities should ensure that prospective residents are
aware of the existence of the complaints procedure and of their rights under it. They
should also ensure that for complaints concerning pricing at least one independent member
of each Complaint Review Body has a knowledge of accounting practices.
ANNEX A
Paragraph 5, Part II Local Government Act 1988
(5) The following matters are non-commercial matters as
regards the public supply or works contracts of a public authority, any proposed or any
subsisting such contract, as the case may be, that is to say -
(a) the terms and conditions of employment by contractors
of their workers or the composition of, the arrangements for the promotion, transfer or
training of or the other opportunities afforded to, their workforces;
(b) whether the terms on which contractors contract with
their sub-contractors constitute, in the case of contracts with individuals, contracts for
the provision by them as self-employed persons of their services only;
(c) any involvement of the business activities or interests
of contractors with irrelevant fields of Government policy;
(d) the conduct of contractors or workers in industrial
disputes between them or any involvement of the business activities of contractors in
industrial disputes between other persons;
(e) the country or territory of origin of supplies to, or
the location in any country or territory of the business activities or interests of
contractors;
(f) any political, industrial or sectarian affiliations or
interests of contractors or their directors, partners or employees;
(g) financial support or lack of financial support by
constructors for any institution to or from which the authority gives or withholds
support;
(h) use or non-use by contractors of technical or
professional services provided by the authority under the Building Act 1994 or the
Building (Scotland) Act 1959.
SOCIAL WORK (SCOTLAND) ACT 1968
(CHOICE OF ACCOMMODATION) DIRECTIONS 1993
The Secretary of State, in exercise of the powers conferred
by section 5(1A) of the Social Work (Scotland) Act 1968 [ a)
1968 c.49; section 5(1A) of the Act was inserted by section 51 of the National Health
Service and Community Care Act 1990 (c.19)("the 1990 Act")] a) and of all
other powers enabling him in that behalf, hereby makes the following Directions:
Citation and Commencement
1. These Directions may be cited as the Social Work
(Scotland) Act 1968 (Choice of Accommodation) Directions 1993 and shall come into force on
1 April 1993.
Local authorities to provide preferred accommodation
2. Where a local authority has assessed a person under
section 12A (assessment) of the Social Work (Scotland) Act 1968 ("the 1968 Act")
[ b) Section 12A was inserted by section 55 of the 1990 Act.
This amendment comes into force on 1 April 1993] b) and have decided that
accommodation should be provided under Part II of the Act [ c)
The relevant amendments to Part II of the 1968 Act are as follows. Section 12 was amended
by the 1990 Act, Schedule 9, paragraph 10(5); section 13B was inserted by section 56 of
the 1990 Act; section 13A was also inserted by section 56 of the 1990 Act; and this
amendment comes into force on 1 April 1993] c), the local authority shall, subject
to paragraph 3 of these Directions, make arrangements for accommodation under Part II of
the Act for that person at the place of his choice (in these Directions called
"preferred accommodation") if he has indicated that he wishes to be accommodated
in preferred accommodation.
Conditions for provision of preferred accommodation
3. Subject to paragraph 4 of these Directions the local
authority shall only be required to make or continue to make arrangements for a person to
be accommodated in his preferred accommodation if -
(a) the preferred accommodation appears to the authority to
be suitable in relation to his needs as assessed by them;
(b) the cost of making arrangements for him at his
preferred accommodation would not require the authority to pay more than it would usually
expect to pay having regard to his assessed needs;
(c) the preferred accommodation will be available within a
reasonable period;
(d) the persons in charge of the preferred accommodation
provide it subject to the authority’s usual terms and conditions, having regard to
the nature of the home, for providing accommodation for such a person under Part II of the
1968 Act.
Preferred accommodation outside range of cost regarded
by local authority’s as reasonable
4. (1) Subject to sub-paragraphs (2) and (3) below,
paragraph 3(b) of these Directions shall not apply to a local authority which makes
arrangements which cost more than the local authority would usually expect to pay in order
to provide a person with his preferred accommodation if a third party’s contribution
to that person (which is treated as that person’s resources as assessed under the
National Assistance (Assessment of Resources) Regulations 1992 [ a) SI 1992/2977] a) is such that he can reasonably be expected to pay for
the duration of the arrangements an amount which is at least equal to the difference
between -
(a) the cost which the local authority would usually expect
to pay for accommodation having regard to the person’s assessed need, and
(b) the full standard rate for that accommodation as
specified in section 22(2) of the National Assistance Act 1948 [ b) Section 22(2) of the National Assistance Act 1948 was amended by section 44(3)
of the 1990 Act, and applied in respect of accommodation provided in Scotland under the
1968 Act by section 87(3) of that Act] b) (liability to pay full cost of local
authority accommodation, the "standard rate") or pursuant to section 26(2) to
(4) of that Act [ c) The relevant amendments to section 26 of
the 1948 Act are as follows. Subsection (2) was amended by section 42(3), and subsection
(3) by section 42(4), of the 1990 Act and these amendments come into force on 1 April
1993. Subsection (4) was amended by the Schedule to the Housing (Homeless Persons) Act
1977 and section 20(1)(b) of the Health and Social Services and Social Security
Adjudication’s Act 1983 (c.41). Section 26(2) to (4) is applied for Scotland by
section 87(3) and (4) of the 1968 Act] c) (liability to pay full cost of other
accommodation arranged by local authority).
(2) Sub-paragraph (1) shall not apply in respect of cases
in which the third party’s contributions are made by a person who is liable under
section 42 of the National Assistance Act 1948 [ d) As
respects Scotland, section 42 of the 1948 Act was amended by the Law Reform (Parent and
Child) (Scotland) Act 1986, Schedule 1, paragraph 5 and is applied by section 87(3) of the
1968 Act] d) to maintain the person who wishes to be provided with preferred
accommodation.
(3) Nothing in these Directions shall prevent a local
authority from making or continuing to make arrangements for a person to be accommodated
in his preferred accommodation where the cost of making such arrangements is more than the
local authority would usually expect to pay having regard to the person’s assessed
needs.
Under Secretary
Scottish Office
Edinburgh
16 March 1993
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